Repco Low’s appeal on conflicting versions of notes of proceedings dismissed


The Court of Appeal today dismissed an appeal by former executive chairman of Repco Holdings Bhd, Low Thiam Hock (picture), for a review of the notes of proceedings by the Sessions Court judge which had convicted and sentenced him to five years’ jail and fine of RM5 million for attempting to manipulate the stock market in 1997.

Low, also known as Repco Low, filed the appeal against the dismissal of his revision application by the High Court on April 27, 2018.

A three-member bench of the Court of Appeal, led by Federal Court Judge Datuk Rhodzariah Bujang, unanimously dismissed Low’s appeal. The other two are Justices Datuk Has Zanah Mehat and Datuk Abu Bakar Jais.

Rhodzariah said there were two sets of notes of proceedings that were prepared and provided by the Sessions Court in respect of the defence case and that the learned Sessions Court Judge only signed or authenticated the notes of proceedings for two trial dates, not all trial dates.

“It was obvious the Sessions Court judge referred to the right notes that were agreed by both parties. Thus, the failure to sign or authenticate is not fatal and not detrimental to the conviction entered,” she said.

On Feb 29, 2016, Sessions Court Judge Mat Ghani Abdullah sentenced Low, 58, to five years in prison and RM5 million fine after finding him guilty of manipulating Repco Holdings Berhad’s share price.

He then appealed against the conviction and sentence at the High Court, which had fixed this Oct 30 to hear it.

Low, from Kota Kinabalu, Sabah, however, filed an application for revision complaining that the Sessions Court Judge had relied on incomplete and the draft set of Notes of Evidence in convicting him.

Earlier, Low’s counsel, Tan Sri Muhammad Shafee Abdullah, submitted that the first set of notes of proceedings was prepared and provided by the Sessions Court and it accompanied the grounds of judgment of the Sessions Court judge which were both sent to Low’s solicitor on June 21, 2016.

However, he said, although properly authenticated, the document contained many errors, were incomplete and inaccurate.

Muhammad Shafee further submitted that about six months later, a second and separate set of notes of proceedings were provided by the Sessions Court, which were later agreed by both parties to be used for the purpose of preparing written submissions (agreed notes).

The counsel said that upon perusing the Record of Appeal, which contained the second set of the notes of proceedings, it was discovered that the Sessions Court judge only signed and certified the notes of proceedings during mention and for only two trial dates.

“The notes of proceedings for the other 25 trial dates during the defence case were all not signed and certified by the Sessions Court Judge.

“The agreed notes, which were not signed and authenticated by the trial judge cannot be used in the appeal proper as it doesn’t satisfy the legal requirements under the Criminal Procedure Code designed to ensure the accuracy and reliability of such notes of proceedings.

“The appellant had endured this prosecution for at least 20 years and to order a retrial would, in all probability, cause extreme delay and expense as the allegation against him happened almost 20 years ago, and, there would be practical difficulties in terms of the recollection by the witnesses of what had transpired at that time,” he added.

Deputy public prosecutor Roz Mawar Rozain submitted that the Sessions Court judge Mat Ghani Abdullah was the only judge presiding over the entire defence case prior to his order of conviction and sentence against the appellant.

“That being the case, the learned judge had the benefit of hearing and appreciating the defence evidence be it oral or documentary,” she added.

She said the judge even made it abundantly clear in his grounds of judgment that the notes of proceedings recorded before the Sessions Court were agreed by all parties, and therefore, any inference of him not relying on the agreed and complete notes of proceedings was highly unlikely.

“The appellant’s contention is very speculative and too simplistic. It is not uncommon for Appeal Records, especially in criminal prosecution of offences under securities laws to not have the complete set of notes, documents and exhibits. What matters is the facts that evidently showed the learned Sessions Court Judge had relied on the complete agreed notes of proceedings when he decided and convicted the appellant.

“Hence, the respondent respectfully submits that there is no merit in this appeal. The appellant’s assertions are presumptuous based purely on conjectures, disregarding the facts and evidence in the case,” she added.

In 1999, Low was charged with instructing a representative of Sime Securities Sdn Bhd to purchase Repco Holdings shares by taking up any offer prices of the shares at the Kuala Lumpur Stock Exchange.

The act was calculated to create confusion on the price of the shares on KLSE.

Low was charged with committing the offence at Sime Securities, Level 21, Bangunan Sime Bank, Jalan Sultan Sulaiman, Kuala Lumpur, between 11 am and 5 pm on Dec 3, 1997.

The charge under Section 84(1) of the Securities Industry Act 1983, read together with Section 88(b) of the same law, provides a minimum fine of RM1 million and imprisonment for up to 10 years.

On Nov 14, 2006, Low was acquitted of the charge by the Sessions Court without his defence being called, but the prosecution made an appeal.

On Oct 15, 2010, the High Court dismissed the prosecution’s appeal, and the latter filed an appeal to the Court of Appeal, which then ordered Low to enter his defence at the Sessions Court.