Police Say They Cannot Rearrest The Suspect In The Ipoh Security Guard Assault Case

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Mior said that although they can't rearrest the suspect, they are going to see more serious charges when he turns up in court on 9 September for his case mention, reported Free Malaysia Today.

The suspect, Noor Azhar Muhammad, was previously charged under Section 335 of the Penal Code for voluntarily causing grievous hurt using a table in a condominium in Ipoh on 29 December 2020.

Following which, Noor Azhar was allowed bail until the re-mention of the case.

The case was then reclassified as murder after the victim died on Friday, 27 August, and amidst calls from the victim's family, who said that they were forced to take to social media to demand justice.

Noor Azhar is said to be a Kota Bharu Bersatu Youth division member.

However, according to Kota Bharu Bersatu division chief Mohamed Farid Mohamed Zawawi, the allegation about Noor Azhar being a member of the party is not true as he is no longer active in the party.

The Perak police chief cited Article 7(2) of the Federal Constitution, which offers protection against retrospective criminal laws and repeated trials.

Under Article 7(2), 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 court superior to that by which he was acquitted or convicted.

Mior, however, said that they are awaiting further instructions from the deputy public prosecutor.

"The matter is now with the deputy public prosecutor. We were told to adjust a few things (in the investigation papers) and we will wait for their reply," he was quoted as saying by The Malaysian Insight.

According to the joint statement, the DAP politician along with his colleague A Sivanesan, and lawyers Selvam Nadarajah and Omar Kutty believe that the police have made a mistake.

Kula said that police can rearrest the suspect in light of new developments in the case.

Mior's decision not to rearrest the suspect citing Article 7(2) of the Federal Constitution is "wrong in law and amounts to misdirection", the Ipoh Barat MP said in the joint statement.

Article 7(2), they said, is only applicable if the accused pleaded guilty and is out on bail.

"The accused was only charged on 6 January 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," they said, adding that Mior must clarify "if the accused has pleaded guilty and is on bail".

The victim's family uploaded the videos of the assault, saying they can no longer remain quiet.

In the closed-circuit television (CCTV) footage that captured the extremely violent assault, the suspect was seen throwing the guard's table at him, making the 64-year-old fall to the floor.

The guard appears unresponsive after he hits the floor as the suspect tries to move him around.

He highlighted that there are numerous cases in the country where an accused charged under rape and murder is able to obtain bail for rape but fails to do so for murder.

This is because murder is not a bailable offence in Malaysia.

"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 6 January 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," the lawmaker said.

Kula added that the Mior should adhere to Section 23(1)(a) of the Criminal Procedure Code which allows the police to rearrest an accused without a warrant when there are new developments.

In the security guard's case, the recent development is his death last month.

"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," Kula said.

"This incident and victimisation of the late Theva Sagayam leading to his unfortunate death have 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."

Kula pointed out that the case has attracted so much attention that even Prime Minister Datuk Seri Ismail Sabri has expressed his sadness, promising that "nobody is above the law".

"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 has been recommended by the police," he said, adding that the police should not be "misdirecting the law and applying it as they wish".

Kula and the others also reminded the police to work on reinstating the confidence of the public as "wishy-washy statements" like the one made by the Perak police chief "portrays double standards and corruption".