Kota Kinabalu: A former assistant civil engineer, who appealed against the 12 months’ jail sentence and RM20,000 fine on two counts for abusing his position in awarding a road maintenance project to his sister’s company, will know the outcome of his appeal on Aug 20.
High Court Judge Datuk Celestina Stuel Galid on Thursday fixed the date for appellant Herwan Malik after hearing his appeal against the Sessions Court’s decision and submissions from the prosecution as the respondent.
Herwan, 40, who was challenging both his conviction and sentence, appealed to set aside the decision made by the trial judge.
On Aug 29, 2023 he was convicted and sentenced to 12 months’ jail and RM10,000 fine in default three months’ jail on the first count for misusing his position as the committee member in making a decision on Kota Marudu District Office quotation to select Pemborong Sri Tassha which belonged to his sister Rozanah Malik, 32, to carry out the road maintenance project along Jalan Pertanian in Kg Sungai Laut, Kota Marudu.
The offence took place between 8am and 5pm on Feb 28, 2013 at the Kota Marudu District Office.
On the second count, Herwan was jailed another 12 months plus RM10,000 fine, or three months’ jail for misusing his position to award the road maintenance project in Kg Pendawar, Kota Marudu, to the same company at the same place at 3pm on April 30, 2014.
The offence under Section 23(1) of the Malaysian Anti-Corruption Commission (MACC) Act 2009 is punishable under Section 24 of the same Act, which provides for a jail term of up to 20 years,and a fine of not less than five times the amount involved or RM10,000, whichever is higher.
Herwan was ordered to serve the jail sentence concurrently but he managed to obtain a stay of execution pending an appeal to the High Court.
Counsel Shahlan Jufri, representing the appellant, raised 10 grounds of appeal, which summarised that the trial judge failed to properly evaluate all the evidence adduced during the trial and did not fairly or justly assess the defence.
He further argued that the Sessions Court judge erred in law and in fact by concluding that his defence was an afterthought, a bare denial, and a fabrication of evidence.
He also claimed the judge failed to draw an adverse inference under Section 114(g) of the Evidence Act 1950 against the prosecution, and erred in finding that he had failed to rebut the presumption under Section 23(2) of the Malaysian Anti-Corruption Commission Act (MACC) 2009.
Deputy Public Prosecutor Haresh Prakash Somiah urged the court to uphold the Sessions Court judge’s findings and dismiss the appeal.
He submitted that the evidence before the court had been tested for its truthfulness, and the credibility of all the respondent’s witnesses remained intact and that the appellant’s evidence, on the other hand, was shown to suffer from contradictions and bare denials.
He further argued that the respondent had successfully proven his case beyond reasonable doubt and that there was reason for the court to interfere with the Sessions Court judge’s findings.
