THE Terengganu High Court has set aside the conviction and two-year jail sentence imposed on Sarawak Report editor Clare Rewcastle-Brown, declaring that the magistrate’s court erred in law by proceeding with her trial in absentia and rendering the entire process invalid.
In allowing Rewcastle-Brown’s appeal, High Court judge Mohd Radzi Harun held that the lower court had wrongly relied on Section 425A of the Criminal Procedure Code to conduct the trial without the accused present. As a result, he ruled that the conviction was unsafe in law and must be treated as though it never occurred.
He ordered that the case be mentioned before a different magistrate with a view to a retrial on the same charge, unless the prosecution decides otherwise. Radzi also clarified that the legal protection against double jeopardy did not apply, as the earlier proceedings had been declared a nullity.
In his judgment, Radzi emphasised that Section 425A, which permits a court to continue proceedings in the absence of an accused who has absconded, can only be invoked after the accused has been properly charged in court, with the charge read and a plea recorded.
"Section 425A must be read together with Section 173(a) of the CPC, which requires that an accused be brought before the court for the charge to be read and explained, and for a plea to be taken," he said.
He further rejected the argument that the phrase "notwithstanding any other provision of this Code" in Section 425A overrides the mandatory requirement of arraignment, stressing that the procedural safeguards under Section 173(a) remain essential.
As Rewcastle-Brown was never produced before the magistrate’s court for her charge to be read or for her plea to be recorded, Radzi concluded that Section 425A had been wrongly applied from the outset.
The judge also directed that prosecution witnesses be summoned again and that their evidence be recorded in the absence of the accused pursuant to Section 401(1) of the CPC.
In setting out his reasons, Radzi took into account the failure to serve the arrest warrant on Rewcastle-Brown and the broader realities surrounding extradition. He noted that Malaysia has no formal extradition treaty with the United Kingdom, that extradition would require dual criminality, and that the offence in question has been decriminalised in the UK.
He said these factors made any attempt to extradite Rewcastle-Brown unlikely to succeed. Radzi also observed that any Interpol Red Notice related to the case would probably not be entertained, as the offence appeared to fall under Interpol’s Category 1, which covers offences involving damage to honour.
Rewcastle-Brown had been sentenced in absentia on Feb 7 after being found guilty of criminal defamation under Section 500 of the Penal Code. The charge arose from statements in her book, The Sarawak Report: The Inside Story of the 1MDB Exposé.
Sultanah Nur Zahirah had also filed a civil defamation suit, alleging that the book contained claims insinuating she was involved in corrupt practices and had interfered in the administration of the Terengganu state government.
The suit further alleged that the statements suggested the Sultanah had used her position to influence the establishment of the Terengganu Investment Authority, the precursor to 1Malaysia Development Bhd, and to assist fugitive financier Low Taek Jho, also known as Jho Low, in becoming an adviser to the fund. - December 14, 2025
