KOTA KINABALU: The High Court here will decide on September 27, this year on an application for revision by a staff of the Kota Kinabalu Courts against the Corruption Court’s decision to dismiss her application to recuse a judge from hearing her two criminal cases.
High Court Judicial Commissioner Lee Heng Cheong deferred his decision after hearing arguments from counsel Ram Singh who acted for applicant Jinny Daniul, 30, and a reply from deputy public prosecutor Joyce Blasius from the Malaysia Anti-Corruption Commissions (MACC), Sabah branch.
Sessions Court judge Nixon Kenedy Kumbong had on September 5, this year, dismissed Jinny’s application for the former to discharge himself from hearing her cases which have been scheduled for October 8 to 11, this year.
Ram Singh informed Lee, who heard the arguments in his chambers, that the said judge should recuse himself from hearing Jinny’s cases on grounds that the judge had prejudiced his mind when bail was revoked on July 6, 2012, in the absence of the accused but in support for the explanations given by the accused’s husband from the witness box.
The counsel also submitted that the revocation of bail was in breach of natural justice and unwarranted and the said judge was not the appointed judge to hear corruption cases in Sabah and Sarawak and having no expertise on corruption matters.
In her rebuttal, among others, Joyce pointed out that in order to allow the application or otherwise, the court must consider whether there is a real danger of bias if the learned Sessions Court judge proceeds to hear the cases.
Kumbong, in his decision, held there was no justifiable reason for him to recuse himself.
“The bail was revoked because the accused was absent and she could not be located although sufficient time has been given to the prosecution to locate and to trace her whereabouts, and even her counsel Ram Singh could not locate her whereabouts in the last hearing,” Kumbong ruled.
He further ruled that the remarks made by the accused’s husband, if any, which in his view was irrelevant for the purpose of hearing the merit of the case, in his considered opinion did not affect the running of this trial as the merit of the case has yet to be heard.
“The issue of fees and/ or anything related to her marital matters between the accused and her husband has nothing to do that will affect the main trial of the case as the accused, in the instant case, is charged under Section 16 (a) (B) of the Malaysia Anti-Corruption Commission (MACC) 2009 and alternative charge under Section 471 of the Penal Code,” he said.
Kumbong also said that when the case was heard before a deputy registrar of the High Court, it was clearly stated that the application was to be heard before him (Kumbong) and there was no application made as soon as possible to recuse him from hearing this case.
“Therefore, with respect, I hereby ruled that I shall proceed to hear this case and will not recuse myself from it,” he added.
The court had on July 5 this year issued an arrest warrant against Daniul, who failed to turn up in court when her case came up for a scheduled trial.
The court had also forfeited her bail in the sum of RM5,000 and discharged her husband from being her surety.
The High Court later granted bail to Daniul after allowing her application on August 13, this year and released her on a new bail set at RM10,000, with RM5,000 deposited and two local sureties, pending disposal of her case.
The accused was charged under Section 16 (a) (B) of the MACC Act 2009 and punishable under Section 24 of the same Act, with receiving RM50 in cash from a woman in return for a late birth registration document for the woman’s daughter without any trial before a magistrate.
The indictment carries a maximum jail of 20 years and a fine of not less than five times the amount of bribe or RM10,000, whichever is higher, upon conviction.
She was alleged to have committed the offence at the Kota Kinabalu Courts House between November and December, 2010.
Meanwhile, the accused also faces an alternative charge of dishonestly using as genuine a birth certificate registered under the name of the woman’s daughter bearing a forged signature of a magistrate, at the same time and place.
The offence was framed under Section 471 of the Penal Code, punishable under Section 465 of the same Code, which provides for a jail term of up to two years, or with a fine, or both, upon conviction.
During her first arraignment, Daniul was granted bail of RM10,000 and RM5,000 was deposited with one local surety.