DALAM MAHKAMAH SESYEN MALAYSIA

NO. KES 62-548-2007

(Mahkamah Sesyen Jenayah Kuala Lumpur)

DI ANTARA

PENDAKWARAYA

DAN

UTHAYAKUMAR A/L PONNUSAMY

__________________________________________________________________

WRITTEN SUBMISSION OF ACCUSED (23/10/12) ON:-

1. No case to answer by Accused

2. Prosecution failed to prove prima facie case against Accused.

______________________________________________

M/s Manoharan & Co

Advocates & Solicitors

Suite C5-5, 5^th Floor,

Tower C, Wisma Goshen,

Plaza Pantai,

Off Jalan Pantai Baru,

59200 Kuala Lumpur.

PART 1

A. Submission of no case to answer by Accused.

B. Prosecution has failed to make out prima facie case against Accused.

Introduction

The Accused is a Human Rights lawyer of 20 years standing with a long history of minority and human rights activism and championing public interest issues. The Accused was first arrested 11 years ago in 2003 right outside the Sepang Magisterts Court after the Inquest proceedings of S. Tharmarajen (19) who died in police custody.

The Accused arrest and detention on 13/11/07, for 1 ½ years ie two days after this Sedition Charge under the ISA was his tenth out of twelve arrests.. All on public interest matters.

At all material times the Accused was fighting in the general public interest to uphold especially Article 10 (1) (a) (freedom of speech), Article 8 (Equality), Article 5 (Liberty of the person), Article 11 (Freedom of Religion) of the Federal Constitution and Section 295 of the Penal Code (defiling a place of worship).

Submission

1. The original charge is dated 11/12/07 where the Accused was charged under Section 4 (1) (c) of the Sedition Act 1948 ie for printing, publishing any Seditious publication in www.policewatchmalaysia.com website.

2. About one month after the charge ie about December 2007, this website was closed down.

3. Then only 4/6/12, about 4 ½ years later was the charge amended to Section 4 (1) (a) ie for allegedly committing an act which has a Seditious tendency.

4. According to Section 3 of the Sedition Act, the tendencies specifies six categories ie (a) to (f) ie (a) Ruler/Govt (b) alter government unlawfully (c) disaffection against administration of Justice (d) disaffection against Yang Di Pertuan Agong (e) ill will and hostility between the races (f) right, status, position, privilege in Article 152, 153 181 of the Federal Constitution. Based on the evidence of the Prosecution there is nothing in the charge sheet that refers to items (a) to (f) hereinabove

5. But the Charge Sheet does not specify which sub section of Section 3 of Sedition Act is the offence committed by the Accused.

6. It is the right of the accused to prepare his defence and to get a fair trial.

7. The Accused could not have possibly committed all the offences of Seditious tendency ie against the Ruler Government, alteration of governments Justice, Yang Dipertuan Agong ill will among races & questioning Article 152 153 of Federal Constitution all in one go.

8. Section 173 (f) (II) and Section 180 of the Criminal Procedure Code lays out a prima facie case as – “a prima facie case has been made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.

9. From the evidence of the Prosecution witnesses ie SP-1, (ex Deputy Federal Police CID Chief and now CPO of Sarawak) SP-2 (Investigating Officer) and SP-3 (ex Malaysiakini reporter) credible evidence proving each ingredient of the offence as stated in the charge sheet has not even been tendered let alone being proven.

10. There are ten (10) ingredients of the offence against the Accused as follows which SP-1, SP-2 and SP-3 failed to prove each ingredient as per Section 180 of the Criminal Procedure Code (Procedure after conclusion of case for prosecution) as follows:-

a) Commonwealth ethnic Indian peace loving subjects in Malaysia presecuted by government backed Islamic extremist violent armed terrorist who launched a pre dawn violent armed attack and destroyed the Kg Jawa Mariaman Hindu temple at 4.00 a.m this morning (15.11.2007).

(No witness at all was called to prove this ingredient for example the Police Chief of Selangor that what the Accused had allegedly stated did not happen)

b) Appeal to refer Malaysia to the World court and International criminal Court for crimes against it’s own ethnic minority Indians.

(No witness at all was called to prove this ingredient for example the de facto Law Minister on this.)

c) “Appeal for U.K to move emergency U.N Resolution condemning “ethnic cleansing” in Malaysia.

(No witness at all was called to prove this ingredient for example the then Prime Minister Tun Dr. Mahathir at the time Kg Medan took place Attorney General Tan Sri Gani Patail that there was “ethnic cleansing” in Malaysia on the Kg Medan incident.

d) “Since independence in 1957 the Malaysian Indians have been permanently colonialised by the Islamic fundamentalist and Malay chauvinists UMNO led Malaysian government.”

(No witness at all was called to prove this ingredient for example the then Deputy Prime Minister and now Prime Minister Dato Seri Najib to outline what has been done for the Indians and that there is no discrimination of the Indians in Malaysia.

e) “100 over Indians were slashed and killed by the UMNO controlled Malaysian government in the Kampung Medan mini genocide.

(No witness at all was called to prove this ingredient for example the then Head of Prosecution Dato Yusof, IGP and CID Federal Police Chief that five Indians were not killed and 100 over Indians were not slashed in the Kg Medan incident).

f) “The UMNO controlled Malaysian court struck off a victim’s public victim’s public interest civil suit for a Public Inquiry to be held (Kg Medan) without even the said UMNO controlled government having to file in their defence.”

(No witness at all was called to prove this ingredient for example Chairman of Suhakam that the Courts struck out and on why a public Inquiry was not held for the Kg Medan incident).

g) “Every week one person at average is killed in a shot to kill policy and in every 2 weeks one person is killed in police custody”.

(No witness at all was called to prove this ingredient for example the Federal Police CID chief to prove that every week one person is not shot dead and in every two weeks one person does not die in police custody.

h) “A violent armed pre down attack at 4.00 a.m this morning was launched by the UMNO controlled Malaysian government backed by about 600 police, riot police, Islamic extremist and armed terrorists which completely destroyed this Kg Jawa Hindu temple.”

(No witness at all was called to prove this ingredient for example the CID Chief of Selangor to prove that there was no armed pre dawn attack on the Padang Jawa hindu temple and that this temple was not destroyed

i) “State sponsored direct discrimination against the Indians in Public University intakes. Indian (Tamil) schools, skills training institutes, civil service and private sector job opportunities, business and licence opportunities and in almost all other aspects of daily life”.

(No witness at all was called to prove this ingredient for example the Chief Secretary to the Government, the Director General of Public Services Department, Licencing authorities, local authorities that there is no direct discrimination against the Indians as aforesaid.

j) “We fear that this peace loving Indian community of Tamil origin having been pushed to the corner and the persecution getting worse by the day may be forced to into terrorism in a matter of time as what has happened to the Sri Lankan Tamils”.

(No witness at all was called to prove this ingredient for example the then Prime Minister Tun Ahmad Badawi that the Indians had not been pushed to a corner and no persecution of the Indians in Malaysia.

It is submitted here that Section 3 Sedition Act only states that the intention is irrelevant. It never stated that the truth is irrelevant. And this honourable Court is about the truth and not otherwise.

11. The Accused was prosecuted for having committed an act with Seditious

tendencies ie allegedly writing the letter to ex British P. M Gordon Brown dated 15/11/07.

12. To start off with, this letter was never recovered by the Investigating Officer

SP-1 or any other prosecution witness from the office, home, vehicle or any place controlled by the Accused.

13. The Prosecution has not called Gordon Brown or any of the 51 persons

this letter had allegedly been cc copied to testify in Court.

14. Unlike in any other criminal case:-

a) There is not even a First Information Report on this Gordon Brown letter (“P-13”)

b) The accused was never arrested or investigated at all.

c) But instead the Accused was abruptly arrested and charged on the very same day ie on 11/12/07.

d) Two days later on 13/12/07 the Accused as detained without trial under ISA for 1 ½ years for in effect the same charges (See Charge Sheet and Grounds for ISA detention). The Accused herein adopts the Double Jeopardy submission earlier in Court)

The Charge Sheet

15. No evidence has been adduced that the Accused was on 15/11/07 or at any time in 2007 present at NO. 135-3-A, Jalan Toman 7 Kemayan Square, 70200 Seremban and then wrote the said letter to Gordon Brown.

16. To the contrary “SP-2” The Investigating Officer testified in Court that the legal firm at NO. 135-3-A Kemayan Square was registered under the Accused name (but) the Solicitor (in charge) there was the Accused brother P. Waytha Moorthy.

17. On page 1 of P-13 (Gordon Brown letter) the person allegedly sending out the letter has the e-mail address as waytha@hotmail.com indicating P. Waytha Moorthy who (is in charge) of the said Seremban Office

18. However Waytha Moorthy was never called to testify as a Witness that he is or is not the maker of this said letter.

19. “SP-2” the Investigating Officer testified that the Accused was operating from his legal firm at Menara Mutiara Bangsar, K.L and had not testified that he or any other person had ever seen the Accused at No. 135-3-A on 15/11/07 or at any time at all.

20. “SP-2” had testified that he had raided and searched both the K.L and Seremban legal offices, of the Accused confiscated computers, documents from computers, documents and other evidence. But the ‘P-13” letter to Gordon Brown, “P-1” or any other evidence confiscated from these legal offices were never tendered produced or even referred to in Court.

21. The one and only one document in the Charge Sheet produced and refered to by SP-1 and SP-2 was “P-13” and also “P-1” but which was never recovered from the Accused’s office, his home, vehicle or premises controlled by him but allegedly from the www.policewatchmalaysia.com website which the government had within one month of the Accused being charged closed down the same. This Accused submit is to suppress evidence against the Accused.

22. SP-1 and SP-2 could not prove in Court ie by printing out “P-13” out in Court from the policewatchmalaysia.com website.

23. “P-13” is not signed at all by the Accused and the Prosecution has failed to prove that the Accused is the maker of P-13.

24. The closest the Prosecution could get is the Accused mobile phone number 013-3504711 and the Accused name at page 2 of “P-13”. Being a human right activist and a public interest human rights lawyer the Accused name and mobile phone number is within public knowledge.

25. This is then left with only the word Legal Advisor. The learned DPP tried to get “SP-3” on 25/9/12 to testify that the Accused is the legal adviser but failed because SP-3” referred to the Accused as the Hindraf leader and not the Legal Adviser as is in “P-13”.

26. The learned DPP had on 30/9/09 Court proceedings informed the Court that the operator of the www.policewatchmalaysia.com would be called as a Witness, but the DPP has failed to do so.

27. The Learned Attorney General (A.G) had on the very day of prosecuting the Accused on 11/12/07 stated that there is no “ethnic cleansing” and that the Prosecution has evidence that there is no such thing. (“ada bukti-bukti tidak ada keadaan sedemikian”).

28. But no such witnesses were called to testify or documents tendered and neither did “SP-1” “SP-2” or “SP-3” testify on this proposition as was stated by the A.G.

29. The only piece of evidence tendered supposedly against the Accused is Exhibit “P-14”, (Celcom Report) “P-15” (Celcom Report) and “P-16” (TM Report). Exhibit P-15 is Celcom’s Certification that the Accused’s mobile phone number is 013-3504711 and his address as 10-4-4, Tivoli Villas, Bangsar, K.L and the name of Organisation address is No. 6 Jalan Abdullah, Bangsar K.L. But charge sheet contains the No. 135-A Kemayan Square, Seremban address and the Seremban telephone and fax numbers

29 (a) The P-15 (Celcom report) is not proof at all or linked to P-13 of the Charge Sheet or stated at all in P-13.

30. “P-16” is TM’s confirmation of the Accused name of the Streamyx Account uth@tm.net.my is 245-1, Jalan Tun Sambanthan, KL and the billing address being Menara Mutiara Bangsar, K.L.

31. However on “P-13” of the charge sheet, the e-mail address is waytha@hotmail.com and not the Accused uth@tm.net.my. which is said to be the e-mail address of the Accused. This is fact disproves the Prosecution case.

32. The address stated in “P-13” of the charge sheet bears the No. 135-3-A, Kemayan Square, Seremban address and the Seremban telephone and fax numbers whereas the addresses in “P-16” (TM Report) bears the K.L addresses of No. 245-1, Jalan Tun Sambanthan, K.L and Menara Mutiara Bangsar, K.L.

33. ‘P-13’ states the telephone number as a Seremban number 06-7672995/6 and the fax number as 06-7672997. But the P-16 TN Reports states telephone number ie 03-2730093 which is no proof at all to P-13 or stated at all in P-13”.

34. Pages 3 and 4 of “P-16” (TM Reports) contains the Accused name and K.L telephone number 03-22825241 and 03-22825622 and bearing the Mutiara Bangsar, K.L address. But in P-13 of the Charge sheet yet again contains the Seremban telephone and fax numbers ie 06-7672995/6 and 06-7672997 and the 135-3A Kemayan Square Seremban address. This “P-16” is yet again not proof at all in relation to P-13 or stated at all in P-13”.

35. P-14, P-15 and P-16 in no way implicates the Accused at all or is evidence at all or is proven at all in relation to “P-13” of the charge sheet.

36. “P-17” (Malaysiakini.com report) was tendered through “SP-3” who could not confirm that P-13 was the letter by the Accused that she had read and had questioned the Accused on at the interview as per “P-17”.

37. DSP Chan (KBSJD) the boss of SP-1 was never called to testify.

38. With the learned DPP objecting to any questions on IDD-18, IDD-20, IDD- 21, IDD -27, IDD-28 (photo), IDD-30, IDD-31 (Sun Newspaper cutting) the Prosecution has failed to prove prima case and also proving each ingredient of the offence against the Accused.

39. Especially with the learned DOO’s Prolix Cross Examination, the Accused Cross Examination of SP-1 and SP-2 was stopped by the Court on IDD-33, IDD-34, IDD-35, IDD-36, IDD-37, IDD-38, IDD-39, IDD-40, IDD-41, IDD-42, IDD-43, Annual General Meeting of Bar Resolutions proposed by the Accused 150 further questions to SP-1 for that day only. With this the Prosecution has failed to prove prima case and also proving each ingredient of the offence.

40. The Accused also adopts all submissions during the trial on all of the accused applications but which was dismissed by the Honorable Court.

41. The Accused submits the authorities of Utahayakumar v Pendakwaraya at the High Court and also Court of Appeal.

42. Part 2 of the Submissions follows hereinafter

Part 2

(1) From the word go on the date Accused was charged on 11/12/2007 no less than the Attorney General Tan Sri Gani Patail had submitted that "Offence yang dilakukan sangat besar”. “Rujuk kepada pertuduhan Jadual A kepada pertuduhan dirujuk bagi tajuk “Ethnic Cleansing” di Malaysia”. “Tuduhan disini sangat serius dan tidak boleh difikirkan sedangkan pihak pendakwa ada bukti-bukti tidak ada keadaan sedemikian" (page 2 last paragraph of Nota Keterangan dated 11/12/2007.

(2) But the prosecution has closed its case but has never produced even one shread of evidence or even one document or one witness to state that there was no Kg Medan "ethnic cleansing" where five Indians were killed and 100 over caused grevious bodily injuries in a mysterious “operasi”. But the real truth on the Kg Medan incident was not revealed when no less than the Attorney General himself stated that there is evidence that there is no such thing.

(3) None of the 3 Prosecution witnesses testified or produced any evidence at all of there being no Kg Medan "ethnic cleansing" which is in the Charge Sheet (P-13, page 1, Re No. 2 and at paragraph no.3).

(4) None of the 3 Prosecution withness even testified on the Kg Medan incident as there was zero questions on Kg Medan that was put by the Prosecution to any of the three Prosecution Witnesses in Examination In Chief.

(5) Even though this very serious allegation is in the charge sheet, not even the Attorney General himself wants to produce any evidence at all on the Kg Medan incident, though he stated that he would.

(6) The original of “P-13” ie the letter to Gardon Brown dated 15/11/2007 was never tendered in Court. Only a purported and that too at best a supposed Internet printout (which is denied) was tendered.

(7) What more the Accused was never arrested, 112 statement taken, “P-13”, “P-1” or any other documents referred to in the Charge Sheet was never sized from the Accused’s office, house, vehicle or any place controlled by the Accused and was never tendered in Court. This is highly unusual.

(8) Page 1 of the Charge Sheet reveals that the Accused was arrested and charged on the very same day i.e 11/12/2007.

(9) This is despite the First Information Report on 25^th November Hindraf Rally 2007 ie IDD-18”/Exhibit “P-18” having been made on 28/11/2007.

(10) Page 1 of the Charge Sheet also reveals that the Accused was prosecuted by no less than the Attorney General Tan Sri Gani Patail himself who appeared in person and even objected to the Accused’s bail on 11/12/2007. The Accused herein submits Malicious and politically motivated prosecution.

(11) The Attorney General appearing in person is highly unusual.

(12) “P-13” does not carry the signature of the Accused and the charge is goundless.

(13) And neither has it been proven through any of the 3 Prosecution witnesses that it was the Accused who had written the "P-13" letter to Gordon Brown.

(14) The Charge Sheet is signed personally by the Attorney General (A.G) Tan Sri Gani Patail when the Accused had just over two weeks earlier had an open verbal clash with the A.G. (paragraph 12, page 21 Notes of Evidence dated 30/4/2009) at the Shah Alam Sessions Court with regards to the 25th November 2007 Hindraf Rally case when the A.G. said that Hindraf has links with LTTE terrorists.

(15) A few days later on 5/12/2007 the Accused had lodged a police report against the Attorney General (A.G.) because of his allegations that Hindraf has links with the LTTE terrorists that was published in the mainstream media (paragraph 9 at page 20 of Notes of Proceedings dated 30/4/2009.

(16) Thereafter a civil suit was filed against the A.G. for defaming the Accused (page 12 of Notes of Evidence dated 20/10/2008).

(17) Bad blood between the accused and A.G. since 2000 (rape victim Malika’s case Kg Medan incident in 2001 etc and a demonstration outside the AG’s office in Putrajaya in 2006 on non prosecution in Hindu temple demolishment cases led by the Accused. The accused had written to the A.G. but there was no prosecution of the criminals who had killed 5 Indian poor of Kg Medan and 100 over others caused grevious bodily injuries and injuries. Also the same for Malika’s and the Hindu temple demolishment cases. The accused is a frequent critic of the AG and his office as the AG.

(18) About one of the ISA grounds also state the protest led by accused outside AG’s office.

(19) There was a build up from 2000 to 11/12/2007 when the AG had appeared in person to prosecute the accused and it is submitted herein is malicious prosecution.

(20) The Section 5 of the Sedition Act 1948 consent by the AG is biased a nullity and the consent is vitiated on the aforesaid reasons (page 12 of the Notes of Evidence dated 20/10/2008.

(21) One week after shouting at the accused at the Shah Alam Sessions Court the A.G. had signed the Consent to prosecute (page 24), Notes of Evidence).

(22) When consent falls, the charge also falls and is a groundless charge by Section 173(g) CPC ab initio (from the very beginning).

(23) The previous learned Sessions Court Judge Puan Sabariah should have discharged herself on the Accused’s application not have heard this case further as she had not directed the Attorney General not to appear before her as the A.G. is also a member of the Legal and Judicial Services Commission ie also her boss which determines the Sessions Court Judge’s promotions transfer, salary increment etc.

(24) The previous said learned Sessions Court Judge had imposed a bail of RM50,000.00 with no submissions heard at all on the quantum of bail when the maximum fine is only RM5,000.00 and impounding the Accused passport when even the A.G. had not asked for the same.

(25) On appeal the High Court had reduced the bail to RM10,000.00 and had lifted the impounding of the Accused’s passport (page 32 of the Notes of Proceedings).

(26) This case was heard by the learned Judge Puan Sabariah was a Civil Court Judge and not a Criminal Court Judge and the learned Judge had refused to transfer the case to a Criminal Court.

(27) Despite the Accused objections that questions on the photograph and remarks in Exhibit P-1 is not related to the Charge, this document was marked as an Exhibit and the learned DPP’s questions were allowed. (page 41 & 42 of Notes of Evidence dated 30/9/2009).

(28) Despite the Accused’s Solicitor’s objections that “P-1” and “P-13” cannot be marked as an Exhibit as Section 90(A) of the Evidence Act is not applicable as the documents therein is only on the admissibility of documents produced (generated) by computers and of statements contained therein, this document was marked as “P-1” and “P-13” (page 45 and 46 of Notes of Evidence dated 30/9/2009).

(29) What more when P-1 was not stored in the computer of “SP-1” but is a cyber space or Internet document. It would be different if P-1 and P-13 was stored in any of the Accused’s computers or copied from the Accused computers that was confiscated by “SP-2” that was confiscated by “SP-2” and SP-1 or SP-2 had printed the same from here.

(30) “P-1” and “P-13” has no relationship with the computer and is not a computer produced (generated) as is the requirement in Section 90 (A) of the Evidence Act.

(31) It was submitted by the Accused Solicitor that there is no way of verifying the truth that is contained in P-1 as it was printed from the Internet.

(32) No independent expert witness or authority was brought in to testify by the Prosecution that “P-1” and “P-13” was indeed printed from www.policewatchmalaysia.com website.

(33) And neither was SP1’s & “SP-2’s” computer and printer brought to Court and “P-1” & “P-13” printed directly from policewatchmalaysia.com website and then tendered in Court (page 46 of Notes of Evidence).

(34) This website is no more in operations as it has been closed down by the government of Malaysia as has been testified by SP-1.

(35) SP-1 had testified that www.policewatchmalaysia.com (as in the Charge Sheet) does not exist any more “Laman web tak wujud lagi. Saya pasti laman web tersebut tidak ada lagi sekarang” (page 158 P. Uthayakumar notes on 29/11/2010).

(36) It is submitted here that this website was closed down by the government of Malaysia to suppress the evidence against the Accused.

(37) SP-1 testified that (as such) he cannot prove using a computer (in Court) to prove P-1 (or P-13 for that matter) as the same is no longer in the website as it no longer exists (page 60 of P. Uthayakumar notes on 29/11/2010).

(38) Also on this basis the Accused had made an application for the Charge to be dismissed by Section 173(g) of the Criminal Procedure Code but the application was dismissed (page 161 of P. Uthayakumar notes on 29/11/2010).

(39) The Prosecution had also failed to call as a witness the individual and/or company that had supposedly stored the said P-1 and P-13 in particular.

(40) In fact SP-2 had on 19/7/2012 (page 168 of Court Notes of Evidence) was asked by the Accused “Ada bukti mengenai pemilik dan pembina laman web policewatchmalaysia.com? And the answer by “SP-2” was “Melaui siasatan saya IP address yang cuba dikesan bagi pembina (dan pemilik) laman web tersebut tidak dapat dikenal pasti kerana web hosting telah didaftarkan di Amerika Syarikat”.

(41) In fact in the Examination In Chief, “SP-2” had never testified that he had printed out P-13. It was only at the Cross Examination stage and after the charge was amended from Section 4 (1) (c) to 4 (1) (a) did “SP-2” testify that he had personally printed out “P-13” after the police report “IDD-18” dated 28/11/07. This the Accused submits is an obvious aftertaught. (page 166 of the Court Notes of Evidence on 19/7/2012).

(42) Therefore “P-13” and also “P-1” should not have been admitted as an exhibit by the Court as Section 90(A) and read with Section 3 of the Evidence Act is not intended to allow documents from the Internet or cyberspace to be used as evidence especially so when the website has been forcibly closed down by the government and therefore cannot be proven.

(41) The Prosecution failed to produce in Court the hard copy from the Accused’s computer which had stored P-1 & P-13 and print the same in Court. This and only this can be evidence against the Accused which the prosecution has failed to.

(42) The drafters of the Evidence Act obviously took the position that it is not safe to rely on this kind of internet and cyberspace evidence and therefore omitted the word Internet printout at all from the provisions of Sections 3 and Sections 90(A) of the Evidence Act.

(43) The learned DPP’s submission that “This Website (www.policewatchmalaysia.com) will be part of the evidence in this case” “And the person operating the website would be called to testify in Court and the existence of the website is a direct contradiction as the charge had on 4/6/2012 been amended to remove the said website (page 49 Notes of Evidence dated 30/9/2009. This is a complete U TURN. Therefore Exhibit P-1 and P-13 which was said to be printed out from the www.policewatchmalaysia.com website is therefore inadmissible.

(44) There are no provisions the Evidence Act that specifically allows evidence from the Internet.

(45) In any event as both the offices of the Accused in K.L. and the branch office in Seremban were raided and computers, computers files and files etc were seized, none was tendered in Court to prove P-1 and P-13 in particular.

(46) Even though the Court had made a decision to accept P-1 and P-13 but with the amendment to the Charge on 4/6/2012 in particular with the removal of the www.policewatchmalaysia.com website, the same now becomes inadmissible.

(47) Documents relating to Kg Medan ie:-

(a) Investigation Papers;

(b) Findings of Criminal Investigations

(c) Government White Paper

(d) Findings of the Malaysian Human Rights Commission (Suhakam).

(e) Decision on why no Inquest on the 5 Indians kiiled.

were never delivered to the Accused by the Prosecution further to Section 51(A)(1)(a) of the CPC.

(48) The prosecution’s case that most of these documents are Secret Documents cannot stand as the same is indeed in the charge sheet and must be served on the Accused (see page 53 of Notes of Evidence dated 30/9/2009)

(49) IF it is secret than it should not have been in the Charge Sheet in the first place.

(50) Why the secrecy. The A.G. has a paramount public duty to act in the general public interest and uphold what is fair in the administration of law and justice.

(51) The AG, Inspector General of Police (IGP), Chief Justice and Suhakam did not reply to the documents requested for by the Accused but when the Accused voices out the injustices, he is instead prosecuted (page 56 Notes of Evidence dated 13/1/2009).

(52) The police officer who had made the First Information Report (FIR) Supt Che Hamzah was never called as a Prosecution Witness. Why?

(53) SP-1 had testified that investigations against the Accused had begun on 25/11/2007 after the Hindraf Rally for Sedition and not immediately after 15/11/2007 ie date of letter to Gordon Brown dated 13/1/2010 (page 62 Notes of Evidence).

(54) SP-1 had testified on 13/1/2009 that P. Uthayakumar is the main leader of the 25/11/2007 Hindraf Rally (page 74 P.Uthayakumar’s Notes).

(55) “SP-1” supposedly received a phone call about “P-1” from a reporter but did not investigate who the caller is ie does not know his name or which press and did not record his mobile phone number which is highly suspicious (page 64 Notes of Evidence) dated 13/1/2010. This reporter was never called to testify in Court.

(56) “SP-1” testified that the initial investigation was only on the Indian man allegedly killed on 25/11/2007 (page 74 P.Uthayakumar’s Notes).

(57) “SP-1” testified that there was no investigations on the man supposedly killed as in “P-1” (page 65 Noted of Evidence) dated 13/1/2010. Why not? Selective Investigation? Selective Prosecution?

(58) SP-1 testified that he had surfed the policewatch website but did not see the letter dated 15/11/2007 (Exibit P-13 is the letter to Gordon Brown) (Page 67 Notes of Evidence) dated 13/11/2010.

(59) SP-1 testified he had been told that a Website can be hacked (page 67 Notes of Evidence dated 13/1/2010). Even though the police and government bodies have specialised IT experts, no such expert witness was called to testify that the www.policewatchmalaysia.com website was not hacked. But only the alleged Sedition was investigated. This in itself is selective malicious and politically motivated prosecution.

(60) SP-1 testified that ASP Redzaime “SP-2” is the Investigation Officer of the 25^th November 2007 Hindraf Rally. But ASP Redzaime denies any knowledge at all about the 25^th November 2007 Hindraf Rally. The Accused hereby submits SP-2 as not a credible witness and his testimony should not be taken into account. (page 68 of Notes of Evidence) dated 13/11/2010.

(61) SP-1 testified on 13/1/2010 that on his computer screen he had seen red marks believed to be blood on the man’s T-Shirt and said that the article reported to a man killed (page 71, 73 & page 101 Notes of Evidence) dated 13/1/2010.

(62) SP-1 testified that the man may or may not look dead (page 7 Notes of Evidence) dated 14/1/2010.

(63) But later in Cross Examination on 5/6/2012, upon the accidential discovery by the Accused from “P-2” of “D-19” in colour, now SP-1 changed his testimony and testified that the man therein is not dead (no alarm caused) and that there is no blood marks on the T-Shirt and there are people sitting behind the man on a chair. This is a direct contradiction by “SP-1”. (The Accused hereby submits SP-2 as not a credible witness and his evidence should not be taken into account.

(64) In any event one man had died in Emergency Ward on 25/11/2007 as per the death certificate by Hospital Kuala Lumpur dated 26/11/2007 “IDD-2” (page 78 Notes of Evidence dated 14/1/2010.

(65) The learned DPP submitted that P-1 is a document that had triggered the investigation that led to the charge (page 76 Notes of Evidence) dated 14/1/2010. It is submitted herein that it is because of the Accused leading 25/11/2007 Hindraf Rally that he is being prosecuted for an alleged offence committed eleven days earlier on 15/11/2007.

(66) The previous learned Judge Sabariah had on 14/1/2010 ruled that “SP-1” is to refer to documents to answer questions as to how many people were at the 25/11/2007 Hindraf Rally who were injured and the witness replied that he would check and answer the following day (page 78 Notes of Evidence dated 14/1/2010). However as the learned subsequent Judge Zamzani Mohd Zian had limited to 12.00 p.m. and 5.00p.m on 24/9/2012 for all further questions on SP-1 and SP-2 this question was never answered. And so were many other questions to both SP-1 and SP-2. There is therefore a failure of Justice.

(67) It is submitted that the Accused was prosecuted further to Ops Padam Hindraf after the 100,000 Hindraf Rally on 25/11/2007 (page 83 Notes of Evidence) dated 14/1/2010.

(68) SP-1 testified “Dalam kes ini tidak ada F.I.R. (page 78 P.Uthayakumar’s notes).

(69) Pre Trial documents was not given to Accused as is required to be given to the Accused by Section 51A of the CPC even though it was referred to in the Charge Sheet in P-13 (Jadual A) ie. documents on:-

(1) Kg Medan tragedy

(2) Kg Medan Civil Suit against Suhakam for a Public Inquiry

(3) State sponsored racism

(4) Demolishment of Padang Jawa Hindu Temple

(5) State sponsored direct discrimation of Indians in Public University intake

(6) State sponsored direct discrimination of Indians inTamil schools

(7) State sponsored direct discrimination of Indians in Skills Training Institutes

(8) State sponsored direct discrimination of Indians in Civil Service

(9) State sponsored direct discrimination of Indians in Private Sector job opportunities

(10) State sponsored direct discrimination of Indians in Business opportunities

(11) State sponsored direct discrimination of Indians in Licence opportunities

(12) Official Death in Police Custody records.

(13) Official Death by Police shooting records.

(14) No persecution of the Indians in Malaysia.

(page 89 Notes of Evidence dated 14/1/2010)

(70) These documents are required for a fair trial to the Accused.

(71) According to Section 3(2)(b) of the Sedition Act in particular Parliament has decided that criticisms against the government is allowed (page 89 of Notes of Evidence dated 15/1/2010).

(72) The A.G. is prepared to frame the charge but is not prepared to deliver all the relevant documents related to the charge (page 89 of the Notes of Evidence dated 15/1/2010).

(73) The golden rule laid down in DPP v Woolminton where Viscount Sankey L.J. held in that “throughout the web of the English Criminal Law one golden thread is to be observed that it is the duty of the Prosecution to prove the accused guilt beyond all reasonable doubt subject ……………..” was not fulfilled by the Prosecution (page 93 Notes of Evidence) dated 15/1/2010.

(74) Article 10(1)(a) of the Federal Constitution guarantees freedom of speech (page 93 Notes of Evidence dated 15/1/2010).

(75) The Prime Minister in 2012 has announced a policy change that the Sedition Act is to be replaced and the de facto law Minister conceded that criticism of the government is allowed. Accused’s Solicitor M/s Manoharan & Co’s letter to the Prime Minister, Law Minister and A.G dated 17/7/12 refers) (submitted to Court).

(76) How is the Accused to prove his innocence when the documents are with the police government of Malaysia departments and authorities e.g. Public Universities, Education Ministry K.L, City Hall, Registrar of Companied (ROS), Registrar of Business (ROB), Local Authorities Finance Ministry etc.

(77) SP-1 (DCP Dato’ Acryl Sani) could not testify on all the names of death in police custody victims and the actual cause of death as the Bukit Aman police Headquarters do not have the Investigation papers (page 96 Notes of Evidence) dated 15/1/2010.

(78) The List of people injured on the 25/11/2007 Hindraf Rally was not given by SP-1 despite earlier testifying that he has the evidence (page 97 Notes of Evidence ) dated 15/1/2010.

(79) On the Laporan Risikan on 25/11/2007 Hindraf Rally, the DPP submitted that it is Rahsia (Confidential). But it was never shown to Court that this is indeed classified as Rahsia. (page 98 Notes of Evidence) dated 15/1/2010.

How can injury to people be Rahsia besar. It is submitted herein that it is because the Accused had led the 25/11/2007 Hindraf Rally that he was about 2 weeks later charged for Sedition, which is a Politically motivated selective and malicious prosecution (page 100 Notes of Evidence dated 15/1/2010).

(75) The Accused has already been punished by being detained under ISA for about 1 ½ years where the ISA charges largely in effect overlaps with the Sedition charge The Accused hereby submits Double Jeopardy ie punishment twice for same offence and adopts the full submission earlier in this Honorable Court..

(77) Nota Keterangan atau C.D. Rom dari 22/3/2010 sehingga 17/2/2011 telah tidak diberikan oleh Mahkamah oleh kerana Hakim terdahulu telah berpindah dan Setiausaha Hakim yang baru tidak dapat memberikan mengenai Nota Keterangan tersebut. Keadaan ini memprejuduskan kes tertuduh.

(78) “IDD-3” ie Death in lock-ups data from 2000 to 2010 (Feb) is not even signed by the maker and with no covering letter either (page 151 of P. Uthayakumar notes on (29/11/2010) “SP-1 testified that this was an oversight.” And neither was the maker of IDD-3 called to testify.

(79) SP-1 had testified on “IDD-3” that from 2000 to 2010 (Feb) ie 10 years and 2 months out of 147 cases of death in police custody only one Inquest had been conducted and for none of the cases the Inquest had been completed (page 153 of P. Uthayakumar Notes on 29/11/2010).

(80) SP-1 testified that there was only one prosecution of the relevant policemen for death in police custody in all of the 147 cases of death in police custody (but not for murder or manslaughter) (page 154 and 155 P. Uthayakumars Notes on 29/11/2010).

(81) IDD-1 is not a complete list as many Indian victims of death in police custody have not been included. (page 158 P. Uthayakumar notes on 29/11/2010).

(82) SP-1 had testified that the figures in “IDD-3” concerning Indian victims of death in police custody are not correct and “he testified” saya kena check balik dengan office (page 165 of P. Uthayakumar notes on 29/11/2010).

It is submitted here that many more Indian victims have been left out of “IDD-3”.

(83) “IDD-4” ie death by police shooting from 2000 to 2009 is also an incomplete document (page 167 P. Uthayakumar notes on 29/11/2010).

(84) IGSO 222 document on procedure for police shooting dead suspects was not allowed by the Court despite there being no evidence tendered that it is a classified document. It was based merely on the DPP’s believe (page 166 P. Uthayakumar notes on 29/11/2010).

(85) Referring to IDD-5, “Item No. 5 the Accused was first arrested right outside the Sepang Magistrate Court in 2002 after public campaigns in the case of death in police custody victim S. Tharmarajen (19) where the Accused had pointed out the errors or defects of the government (page 180 & 189 of P. Uthayakumar notes date 30/11/2010).

(86) In this Tharmarajen’s case DPP Noorin Badaruddin is believed to have directed the police to lodge a police report against the Accused after which the Accused was arrested and prosecuted for criminally intimidating a police Inspector in Court. Despite an application for the this DPP’s recusal, she was allowed to prosecute despite the Accused’s allegations that she has a personal vendetta against the Accused.

(87) It is absurd that S.Tharmarajen’s Inquest status since 2002 is still “Rujuk kepada TPR” 10 years on and the Inquest is still not completed? (page 182 & 183 P. Uthayakumar notes on 30/11/2010).

(88) It is submitted that IDD-3, IDD-4 and IDD-5 are all inaccurate documents where tens more of Indian victims names shot dead by the police and died in police custody have not been included.

(89) SP-1 testified “saya tidak ada jawapan”. “Saya tidak tahu” when asked to explain that he had earlier testified that the police have to refer death in police custody cases to the DPP within three months but S. Tharmarajen’s case is already 10 years? (page 184 of P. Uthayakumar noted on 30/11/2010).

(90) It is submitted that “IDD-3, “IDD-4” and “IDD-5” are police cover up documents.

(91) In Lampiran B, Item 9 on death in police custody victim G. Veerasamy, it is stated as still ongoing where the Accused had also represented this deceased and the Accused’s lawyer N. Surendran had confirmed with the accused that morning that the Inquest had been completed same 2 years ago. To this SP-1 replied “saya tidak tahu”.

(92) Despite the Accused back pain (prolapsed disk) and asking for the afternoon to be off or only ½ day proceedings every day, the previous and present Judge denied the Accused’s applications despite being supported medical Specialist Orthopedic Surgeon’s letter from Pantai Hospital

(93) It is submitted that Page 79, IDD-3, item 10 the police had not completed their investigations despite 6 years on and that is why the Magistret could not hold an Inquest (page 188 of P. Uthayakumar notes on 30/11/2010.

(94) Referring to Lampiran B, IDD-5 on Item 19 when asked why after 4 years it is still stated as under investigations the reply by “SP-1” is “saya tidak ada maklumat untuk menjawab soalan ini.

(95) Referring to page 90, “IDD-3” Item 8 on “arahan Inquest tidak perlu diadakan oleh Magistret pada 26/6/2006”. When asked why “Inkues tidak perlu”, SP-1’s reply was “saya tidak ada maklumat tersebut.” When asked “kenapa Sudden Death Report (SDR) diserah kepada CID Chief Daerah (KBSJD) SP-1’s answer was “mungkin untuk kemas dan simpan”. This the Accused submits is to close the case after police cover up of the same

(96) In most of the cases in IDD-3, IDD-4 and IDD-5 it points to a police cover up of the death in police custody and police shooting dead of especially Indians cases.

(97) On the police being required to take action within 3 months but did not do so and “SP-1” not taking action against them “SP-1’s” answer was “kita hanya memantau” but “memang bertanggung-jawap”. (page 192 P. Uthayakumar notes on 30/11/2010).

(98) Referring to “IDD-5” Lampiran B Item 23, despite the gruesome pictures of A.Kugan killed in police custody SP-1 confirmed that there was no prosecution for this murder or mansloughter and 8 other Malay policemen were suspended but were not prosecuted at all together with policeman Navin who was charged. (page 195 P. Uthayakumar notes on 30/11/2010).

(99) In Lampiran B, IDD-5 item 24 in the death of Mathwes Saravanan when asked why it has been 1 year and 8 months and yet the status is “Dalam penyiasatan” “SP-1’s answer is “saya kena semak kertas siasatan untuk tahu kenapa” and “perlu semak dengan I.O untuk tahu sebab-sebab (page 199 of P. Uthayakumar notes on 30/11/2010).

(100) In all the death in police custody of Indian suspects and police shooting dead Indian suspects even the Ketua Unit Pendakwaan (prosecution) is believed to have collaborated with the police in not prosecuting the police criminals. And went the accused points out this error or defect this Seidtion case is brought against the Accused (page 200, 201 and 202 of P.Uthayakumar notes on 30/11/2010).

(101) When SP-1 was questioned on the Interlok book referring to the Indians as “Pariah”, SP-1 was asked why there was no prosecution for Sedition. All questions were disallowed. This again proves selective and politically motivated malicious prosecution by the prosecution against the Accused.

(102) The Accused had done public campaigns for a second post mortem report for death in police custody victim S. Tharmarajen (19) in “IDD-5” to be conducted in Singapore. This is another one of the hundreds of “pointing out the errors or defects of the government” that had angered the government and the prosecution that led to the Accused being charged for Sedition (page 212 of P. Uthayakumar notes on 17/1/2011).

(103) IDD-5 at page 2, item 30 on the death of Sundararaju killed in the Klang police lock-up, it was put to SP-1 that the Accused had also acted for this family. SP-1 had no answer as to why his body was not sent to Singapore for a Second Post Mortem (page 213 P.Uthayakumar notes on 17/1/2011).

(104) IDD-5 at page 2 item 47 on the death of G. Veerasamy in police custody where the Accused had also acted for the deceased family and had done public campaigns for a second post mortem report in Singapore but it was not done to do a police cover-up (page 215 of P.Uthayakumar notes on 17/1/2011).

(105) IDD-5 at page 3 No 88, it was put to SP-1 that the Accused had acted for the family of Manimaran who was given electric shock as part of the police interrogation in the Rembau police lock-up which had caused a heart attack and he had died. This was told to the accused by Manimaran’s son who was also detained with him. But “SP-1’s standard reply is “saya tidak ada maklumat dalam kes ini”.

(106) IDD-3 at page 47 item 3 on Hendry Sreedharan (18) it was put to SP-1 that the accused had also acted for this victim whom the police say hanged himself with a saree to which the reply was “saya tak pasti”. Especially so in Simpang Renggam there are no women prisoners.

(107) When put to “SP-1” that over 50 families out of the 149 cases of death in police custody who doubted the police investigations and hospital post mortem as police cover ups (SP-1 page 219 of P.Uthayakumar notes on 17/1/2011) he did not agree.

(108) “SP-1” testified that out of the 149 cases none were the policemen were prosecuted except for A. Kugan where only one policeman was charged for causing injuries and not murder or mansloughter (page 221 of P.Uthayakumar notes on 17/1/2011).

(109) “SP-1” testified that in none of the Indian death in police custody cases, were any policeman prosecuted for murder or manslaughter (page 221 of P.Uthayakumar notes on 17/1/2011).

(110) When put to “SP-1” that about 60% of the cases of death in police custody are the Indians as many more Indians cases have not been included in “IDD-3”, “IDD-4” and “IDD-5” the answer is only a mere two line “Tidak setuju” (page 225 and 226 of P.Uthayakumar notes on 17/1/2011).

(111) With reference to “ID-6” a research report by NGO Police Watch and Human Rights Committee dated 8/9/2003 on deaths in police custody to Amnesty International “SP-1” agreed that S. Ragubathy’s name in “IDD-6 is not contained in “IDD-3”.

(112) When pointed out that “IDD-3” and “IDD-5” covers death in police custody from 2000 to 2011 and Ragubathy died in 2002 and that the Accused was Ragubathy lawyer “SP-1’s answer was a mere “Saya tidak ada maklumat tersebut”.

(113) It is submitted here that the absence of Ragubathy’s name alone in IDD-3 and IDD-5 proves that the same are not complete and credible documents and are police fabricated documents (page 228 of P.Uthayakumar notes on 17/1/2011).

(114) Similarly death in police custody victim Vivashanu Pillai’s and A. Subramaniam’s where the Accused had also acted as their lawyer their names are also not in “IDD-6” was confirmed by “SP-1”.

(115) Referring to “IDD-4” (list of police shooting dead) the Accused had also acted as lawyer for Tony Ponnusamy (30) 2003, M. Letchumanan and Mohanan Pillai but “SP-1” confirmed that Tony Ponnusamy and M Letchumanan’s (31) 2002 names are in “IDD-6” but not in “IDD-4.

(116) When put to SP-1 that “IDD-4” is also a fabricated document he simply replied “saya tidak setuju”.

(117) This is a very serious abuse of police powers ie shooting dead two suspects and no official account of them at all. But because they are the powerful police force they get away scot free (page 230 & 231 of P.Uthayakumar notes on 17/1/2011).

(118) “SP-1” did not have ready answer for many of the Accused questions as he did not have the records with him and had agreed to bring it at the next date. But as the learned Sessions Court Judge had a 24/9/2012 limited questioning “SP-1” only up to 12.00 pm and “SP-2” to 5.00 pm also on 24/9/2012 there is a failure of Justice to the Accused.

(119) On Operasi Copperhead when it was suggested to “SP-1” that thousands of Indians were racially profiled and victimized “SP-1” did not deny and had merely replied “saya perlu semak dengan statistic” (page 235 of P.Uthayakumar notes on 17/1/2011).

(120) When put to “SP-1” that there are some 5,000 Indian Scrap Metal operators who have been denied licences by the police and the local authorities simply because they are Indians “SP-1’s reply was “saya tidak ada maklumat berkenaan perkara tersebut”.

(121) Then put to “SP-1” that 95% of the Indian crimes in Malaysia is caused by the police and government denying them business opportunities licences permits, bank loans, skills training, higher education and scholarships the two line answer was “Tidak setuju”. SP-1 made no effort to rebut with a more detailed explanation.

(122) SP-1 testified that based on “IDD-3” in 2003 6 Indians had died in police custody. (Accused maintains very much higher). But in 2008 there was zero such cases. When put to SP-1 that this was because of the 25/11/2007 100,000 Hindraf Rally, SP-1 merely replied “saya tidak tahu”. It is submitted here that is it because of the Accused “pointing out the errors or defects of the government that this figure has been brought down to 0%.

(123) It is also submitted that based on the letter by the Accused’s letter dated 5/7/12 that the highest political level Cabinet Committee on the Indians and headed by no loss than the Prime Minister was formed in 2008. This letter is based on pointing out the “errors or defects of the government”.

(124) On the whole “SP-1” and “SP-2’s evidence had been evasive and not answered most of the Accused’s questions let alone proving a prima facie case against the Accused SP-3’s testimony also does not prove a prima facie case.

(125) “SP-1” confirmed that the OCPD and OCS of the police stations are responsible for their detainees but cannot confirm if even one OCPD or OCS has been prosecuted for any offence arising from the aforesaid deaths in police custody.

(126) In fact SP-1 confirms that to the best of his knowledge not even one case where the police has been prosecuted for the murder or manslaughter of a detainee (page 245 of P.Uthayakumar notes on 19/1/2011).

(127) Di bawah gambar “IDD-9”, “SP-1” agreed that the body of Ragubathy was given by the police only after 35 hours and that for the muslims it is “secepat mungkin”.

(128) “SP-1” also agreed that Ragubathy’s horizontal surgical scar is indicative of a heart disease and that the police cannot take him to be treated of a government clinic.

(129) “SP-1” testified that not even prosecution for negligence was instituted against any policemen in Ragubathy’s case.

(130) “SP-1” was put the question that it was right at the doorsteps of the Sepang Magistrets Court after Tharmarajen’s Inquest that the Accused was first arrested in 2003 but the answer was “saya tidak tahu”.

(131) In “IDD-6” in the case of Anuar bin Sarip it is the first of series of death in police custody cases taken up pro-bono by the Accused as a matter of public interest and had in fact won a RM1.4 Million award for the widow Suzana Binti Mohd Aris at the K.L. High Court. The Accused had also acted pro-bono for Azli Bin Hamzah and Ho Kwai See, all of whom died in police custody to which “SP-1” replied “Saya tidak tahu”.

(132) On a suggestion that the Indian victims in “IDD-4”, “IDD-5” and “IDD-3” are not the full list, hundreds more covered up and not revealed and are just the tip of the iceberg “SP-1” merely replied “Tidak Setuju”.

(133) On a suggestion that the UTK is the police sharp shooters team which executed police shoot to kill orders, SP-1 had made a bare denial of “Tidak Setuju” (page 251 of P.Uthayakumar notes on 19/1/2011).

(134) Referring to The Star newsreport in 1999 that in 10 years the police shot dead 635 suspects and this amounted to 1.3 persons shot dead per week and 60% of then are Indians, SP-1’s answer was simply “Saya Tidak Tahu”.

Conclusion

In conclusion based on the evidence of P-1, P-2 and P-3, the prosecution has especially failed to prove each of the ten (10) ingredients in the Charge Sheet. The Prosecution has also failed to prove a prima facie case against the Accused according to Section 173 (f) (II) and Section 180 (4) of the Criminal Procedure Code.

Therefore the Accused humbly submits no case to answer and prays that he is acquitted and discharged.

Thank you.

……………………………..

Solicitors for the Accused