Saturday, August 15, 2009

Kasitah Gaddam & Eric Chia - Prosecution's failure to call witnesses - Was it just incompetence OR....?

The new Prime Minister (i.e. Abdullah Ahmad Badawi) came in and said that he was serious about fighting corruption - and, maybe to show that he was serious about it 2 BIG-GUNS were charged with corruption, one a famous businessman (seen by some as a good friend of the former Prime Minister Mahathir Mohammad), and the other a Land and Cooperative Development Minister (not an MP but a Senator).

Tycoon Tan Sri Eric Chia Eng Hock - he was acquitted in June 2007.

Kasitah Gaddam - he was just acquitted in 2009.

In both cases, it was as if the prosecution was not interested in ensuring that they be found guilty - and they failed to call important crucial witnesses, hence sabotaging their own case. Is this also not 'corruption'? Rakyat's money and resources have been wasted here...

In his 30-page oral judgment, he went on to fault the prosecution in every aspect of the case, from the way the main charge and alternative charge were proffered right to the tendering of documents, and its failure to call crucial witnesses.

Akhtar said the most glaring setback was the prosecution’s failure to call two material witnesses, who would have been able to confirm whether payment was needed for the technical assistance agreements (TAA) signed between Perwaja Rolling Mill Development and NKK Corporation.

He said former Perwaja company secretary R.R. Durai Rajasingam, who was involved in all Perwaja’s contracts, would have known the actual contents of the TAA.

“Yet the prosecution never called him. The question is why? I see nothing to say that he would be a hostile witness or give evidence against them.”

The judge also questioned the prosecution’s reluctance to call the five Japanese witnesses, including NKK Corporation, Japan, director N. Otani, who was present at the signing of the TAA in Japan in 1993.

“I wonder whether it was the Japanese witnesses who were reluctant or the prosecution was the one reluctant to bring them here,” he said.

Akhtar also said the prosecution’s contention that the TAA was free fell flat in its face when tendering its documents at the trial as they clearly stated that the agreements would be effective upon receiving first payment.

Another document by NKK Corporation not only requested for the payment to be in a lump sum but also stated the amount.

He said the prosecution failed to lead any evidence to show fabrication of that document, which it contended.- Star, 27/6/2007, Eric Chia acquitted of CBT

Now, see the similarities in the Kasitah Gaddam's case...
Former land and cooperative development minister Tan Sri Kasitah Gaddam was acquitted and discharged by the High Court here of committing corrupt practice and cheating involving shares belonging to the Sabah Land Development Board (SLDB) in 1996.

Judge Justice Suraya Othman ruled that the prosecution had failed to establish a prima facie case on both charges for the court to call Kasitah to enter his defence.

“The essential ingredients of both the offences of corrupt practice and cheating were not made out on the facts before the court. In the circumstances, the accused stands acquitted and discharged of both the charges against him,” Suraya said in her 74-page judgment.

Kasitah, 62, was the first Cabinet member to be charged with such crimes.

Not guilty: An overjoyed Kasitah sharing his elation with his wife Puan Sri Rosni Ambuting and lawyer Datuk Muhammad Shafee Abdullah after his acquittal of corruption and cheating charges at the Kuala Lumpur High Court Wednesday.

Immediately after the verdict, Kasitah said he was relieved and happy, adding that the judgment was a “pleasant surprise”.

“I want to see my mother in Ranau and spend a few days with her. Then, I want to perform the umrah with my family and close friends. After that I will think about reorganising my life,” he said.

His wife Puan Sri Rosni Ambuting and his grandaughter Jennay Joanis rushed up to kiss and congratulate him immediately after the court’s decision was announced.

Kasitah had claimed trial to using his position as SLDB chairman for his financial gain by taking part in the decision to approve a proposal to sell 16.8 million shares held by the board in Sapi Plantations Sdn Bhd to Briskmark Enterprise Sdn Bhd, where he was promised 3.36 million shares in Sapi Plantations on Oct 22, 1996.

On the second charge, Kasitah was alleged to have cheated the SLDB board members by omitting to disclose the offer by PPB Oil Palms Sdn Bhd to allocate five shares of the company for each share of Sapi Plantations in the proposal by company for listing on the KLSE.

He thereby dishonestly induced them to approve the sale of 16.8 million shares held by SLDB in Sapi Plantations to Briskmark Enterprise whereas they would not have approved the sale if they had known about the offer by PPB Oil Palms.

Justice Suraya said the failure of the prosecution in not calling six board members who were present in the meeting was detrimental to the case as it had created a big gap over the question of whether the board members were actually cheated by the accused.

She also said that evidence by lawyer cum board member Catherine Yong was very damaging as she did not indicate that Kasitah had misused his position or influence her or other board members during the meeting.

Besides that, the judge said there was no element of inducement on the part of Kasitah to the board members.- Star, 13/8/2009, Kasitah freed of corruption charges

The questions that many may be asking are:-

1) Whether the arresting and charging of these persons just a 'political drama', or was merely politically motivated? If this be the case, the police and the Public Prosecutor may be guilty of abusing their powers. Charging someone without even doing proper investigations or getting sufficient evidence is definitely wrong. Who is going to compensate them for the monies spent for lawyers, etc and for the pain and suffering they suffered. Who is going to compensate for the impact on Kasitah's political career? So, did the police and the Public Prosecutor just do the bidding of their then political master, and not the job they are meant to do independently and honestly, without fear or favour?

2) Did the Public Prosecutor throw the case...sabotage their own not disclosing to court all the incriminating evidence they had...or calling all the necessary witnesses? Was this done at the bidding of their 'political master'? Was this done because there was 'corruption' involved?

If they had called all necessary witnesses, and adduced all available witness, and then the court found them not guilty, we would not be asking these questions now. But the fact is that both judges in both cases, as reported in Star, finds that the prosecution did fail to call material witnesses, and or adduce required evidence...

Appeal to the Court of Appeal may also be useless. Why? Because the Court of Appeal will only be able to consider evidence already adduced during the trial at the High Court. Hence, evidence of witnesses not called or other evidences not adduced at the trial stage by the prosecution will also not be available for the Court of Appeal to consider. New evidence, just found not available at the time of trial, may be brought in ....but, in this case, we are talking about the prosecution - they should have all the required evidence before they even charge people...

Another trial - nope, our law does not allow a person to be charged and tried twice for the same offence...

Some may say that all this happens because our Malaysian police, Anti-Corruption Officers and the Public Prosecutor are incompetent and of 'poor-quality'...but, I would disagree, for I believe that they are sufficiently competent and are good when they want to...Hence, these failures in both these cases may be for some other reason...

Somebody should inquire into this matter...investigate it....after all, a lot of money was wasted here...

New guidelines need to be put into place ... as to when someone should be arrested? When someone should be tried? ...and maybe also about compensation to people who have been put to unnecessary expenses by the police, public prosecutors, courts...

1 comment:

lleekh said...

I think incompetence is the issue. A person of integrity and will do his/ her job honestly and scrupulously. Only an incompetent and unprofessinal person will be willing to let questions to be raised against his honour, integrity and professionalism. It is not just that people will know about your is there for all posterity. Immediately your children and family will know what you did. It never ceases to amaze me that corrupted officials, politicians can live way beyond their means. How do they justify to their family and friends when they wear the badge of corruption so blatantly with their huge bungalows, luxury cars, expensive jeweleries, holiday trips. Only people with a warped sense of values or people with a switch off in their brains can flaunt their ill-gotten wealth so. That is a kind of "incompetence".