Ex-Cambodia cop fails to get officers cited for contempt

PUTRAJAYA: The Federal Court dismissed a contempt of court application by a former Cambodian police chief against a senior Immigration officer and a deputy public prosecutor.

Judge Tan Sri Richard Malanjum said the applicant, Heng Peo, failed to discharge the standard of proof required in bringing the action against Immigration enforcement chief Datuk Ishak Mohamed and deputy public prosecutor Hanafiah Zakaria.

"The standard of proof in a contempt proceeding is beyond reasonable doubt and the applicant failed to discharge that burden."

He said it was also an undisputed fact that the two did not breach any order of the Federal Court or Court of Appeal.

He said the complaint against Hanafiah was that he received a "thank you" telephone call from an Immigration officer as Heng Peo was taken to the Subang Airport.

"We have considered the grievances and are not satisfied that it amounted to contempt of court," Malanjum said.

He said Ishak had not only acted speedily but in accordance with the Immigration Act because the Court of Appeal did not make a prohibition order against his department.

"His (Ishak’s) act did not amount to contempt of court," Malanjum said in the unanimous decision. Sitting with Malanjum were Datuk Hashim Yusoff and Datuk Azmel Maamor.

At the outset of yesterday’s proceeding, Heng Peo’s counsel A. Sivananthan withdrew the action against Immigration director-general Datuk Wahid Mohd Don because he was overseas when the deportation took place. Wahid was earlier named in the application.

On Dec 21 last year, the Court of Appeal set aside the order of the High Court that Heng Peo be sent to Singapore, his last point of disembarkation.

Following the order, Heng Peo was immediately taken to the Subang Airport and sent back to Cambodia, despite his lawyers’ attempt to stay the deportation pending their appeal to the Federal Court.

Hanafiah appeared for the department at the Court of Appeal.

While Sivananthan and Abdul Shukor Ahmad filed their appeal documents with a certificate of urgency at the Federal Court registry, they were informed that Heng Peo had left Malaysia by a private plane at 12.35pm, an hour after the Court of Appeal delivered its decision.

On Feb 2 this year, Heng Peo, 52, obtained leave from the Federal Court to initiate committal proceedings against Ishak and Hanafiah.

In his submission yesterday, Sivananthan said the two had committed contempt because they had deprived Heng Peo of the opportunity to ventilate his appeal to the Federal Court.

He said a call at 11.45am by Immigration officer, Kasturi, to Hanafiah was questionable.

"Why say ‘thank you’ to him? It must be that she was informing Hanafiah that Heng Peo was being taken to the airport," he said, adding that an inference should be drawn that the DPP had knowledge of the deportation.

He said Ishak did not check with Hanafiah on the consequence of the Court of Appeal decision and instead acted on his own to hand over his client to Cambodian authorities.

Attorney-General Tan Sri Abdul Gani Patail, who represented the two officers, said there was a misunderstanding as to what transpired that day.

"It was a comedy of errors and the two had no intention of interfering in the administration of justice," he said.

Gani said the "thank you" call was normal and that he, too, had received such calls from accused persons in the past.

He said Sivananthan did not indicate to the prosecution that he was appealing to the Federal Copurt.

"He delayed in filing his appeal soon after the Court of Appeal decision as he was busy entertaining reporters."

Gani added that the department was right to deport Heng Peo because the Cambodian authorities had revoked his passport and Singapore had refused to accept him.

"Ishak was right to rely on a provision in the Immigration Act to deport him to Cambodia since he no longer had a passport," he said.