We believe that the Police have made a mistake in their latest statement that the Bersatu youth member who was earlier charged with assault of a security guard, Theva Sagayam, cannot be rearrested (http://bitly.ws/ghNq)
Perak Police Chief, Mior Faridalathrash Wahid has issued a statement stating that the Bersatu youth member who was earlier charged with assault of a security guard cannot be rearrested as Article 7(2) of the Federal Constitution states that a person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a higher court.
It is this opinion which is unsustainable, wrong in law and amounts to a misdirection.
The accused was only charged on 6th January 2021 and his case has been dragging on since then, with no hearing date fixed.
Obviously if the accused had pleaded guilty to the offence, then Article 7(2) of the Federal Constitution protects him from being charged again for the same offence based on the same facts and evidence.
It is incumbent on the Perak Police Chief to clarify if the accused has pleaded guilty and is on bail now.
There are numerous cases in Malaysia where when one has been charged for rape and murder, the accused would obtain bail for rape but would fail to do so for murder. It is trite law that murder is not a bailable offence.
It must be stressed that the police had clearly stated that the Theva Sagayam’s case would be reclassified as a murder case. Due to the said reclassification, the accused is now a “murder suspect” and ought to be treated like any other murder suspect within the confines of the law.
The accused should not have special treatment especially after Theva Sagayam’s case has been reclassified as a murder case.
The initial charge against the accused on 6th January 2021 was framed under Section 335 of the Penal Code which is a bailable offence. Since the case is now reclassified as a murder case, it is now not a bailable offence and as such, it gives the opportunity to the accused to abscond if action is not taken immediately and swiftly.
Furthermore, our team of lawyers feel to the contrary that the Perak Police Chief should adhere and apply Section 23(1)(a) of the Criminal Procedure Code which clearly states that any police officer may without a warrant re-arrest the accused in light of the recent development in the untimely death of the late Theva Sagayam.
The reclassification of investigation to a murder case by the police is in itself admittance that reasonable suspicion exists against the accused that he has committed murder. In reference to this, we would like to highlight the CCTV video which has been widely circulated on social media regarding the incident between the accused and Theva Sagayam in which the contents of the video speaks for itself.
This incident and victimization of the late Theva Sagayam leading to his unfortunate death has attracted a lot of public attention and dissatisfaction among the public at large via social media. The reason behind this uproar is because an innocent man has been bullied and killed and yet, justice has not been done.
Even the Prime Minister in his tweet in reply to MP and lawyer, M.Kula Segaran has stated as follows:
“I’m saddened and appalled by this incident. Nobody is above the law. Justice must, and will take its course. Thank you YB for your concern”.
In this regard, we call upon the Attorney General to speed up the process to proffer charges under section 302 of the Penal Code for the offence of murder in accordance to what have been recommended by the police after the recommendation of our team of lawyers. The police should also take note of the concerns of the public and Prime Minister by not misdirecting the law and applying it as they wish.
In addition, the police should also work on reinstating the confidence of the public in them as wishy-washy statements like the one made by the Perak Police Chief, portrays double standards and corruption in their enforcements. Justice is not word based but action oriented. Therefore, the police should step up and take action.
Justice must be seen to be done.