On Sept 7 2023, the session court ruled that the prosecution had proved all the ingredients of the charges against the duo and that the presumption of corruption under Section 50 of the Malaysian Anti-Corruption Commission (MACC) Act 2009 had been triggered.
On 29 April 2024 - a High Court using his REVISIONARY powers. High Court Judge Datuk Azhar Abdul Hamid said that the sessions court judge’s finding of a prima facie case was ‘incorrect and perverse’. Bung and Zizie were acquitted...
On 18/11/2024, The Court of Appeal today ordered Kinabatangan Member of Parliament Datuk Seri Bung Moktar Radin and his wife Datin Seri Zizie Izette Abdul Samad to enter their defence on three corruption charges involving RM2.8 million.
It's GOOD that there has NOT been a U-TURN on all the efforts of law enforcement and prosecution that started after GE14(2018)...
Still waiting on the Public Prosecutor/AS
Court of Appeal orders Bung Moktar, wife Zizie Izette to enter defence over three corruption charges involving RM2.8m
PUTRAJAYA, Nov 18 — The Court of Appeal today ordered Kinabatangan Member of Parliament Datuk Seri Bung Moktar Radin and his wife Datin Seri Zizie Izette Abdul Samad to enter their defence on three corruption charges involving RM2.8 million.
A three-man bench comprising Justices Datuk Ahmad Zaidi Ibrahim, Datuk Mohamed Zaini Mazlan, and Datuk Noorin Badaruddin made the decision after allowing the prosecution's appeal against the couple’s acquittal by the Kuala Lumpur High Court on Sept 7, 2023.
On Sept 18, 2023, the prosecution filed an appeal against the decision of High Court Judge Datuk Azhar Abdul Hamid on Sept 7, 2023, which had acquitted the couple of the charges.
The High Court arrived at the decision after allowing Bung Moktar and Zizie Izette’s application to review the Sessions Court’s ruling on Sept 2, 2022, which had ordered them to enter their defence on the charges.
Justice Mohamed Zaini, when reading out the unanimous decision, said that the critical issue in this appeal is whether the High Court has a right to subject the findings of a prima facie case for revision.
He explained that a criminal trial generally begins when an accused person faces charges, after which the prosecution starts its case by calling witnesses and presenting evidence to support its claims.
“At the end of the prosecution’s case, the trial court must analyse the witness testimonies and the evidence produced on a maximum evaluation basis and determine if the prosecution has established a prima facie case against the accused.
“A prima facie case is established when the prosecution has presented credible evidence proving each element of the offence, which would justify a conviction if left unchallenged or unexplained,” he said.
Justice Mohamed Zaini further said if the court finds that the prosecution has not established a prima facie case against the accused, the court shall acquit the accused.
“If the court finds that the prosecution has established a prima facie case against the accused on the offence charged, the court shall call upon the accused to enter his defence. The decision to acquit or to call for defence would have been arrived after a maximum evaluation exercise by the trial judge.
“These procedures and criteria are set up under Section 173 of the Criminal Procedure Code and the provisions under this section are mandatory. Once the court finds that the prosecution has made up a prima facie case against the accused, it shall call upon the accused to enter his defence because of the word shall the court has no other option,” he added.
Justice Mohamed Zaini said it is established law that the accused cannot appeal a decision to call for defence.
“The court’s findings at this stage are not subject to appeal, as they do not constitute a final resolution of the respondents rights requesting a revision of these findings is essentially the same as filing an appeal against them. The due process of the trial must continue, allowing the respondents to present their defence,” he said.
Justice Mohamed Zaini said the High Court’s findings on the Sessions Court judge’s decision to call for defence was premature.
“The learned Sessions Court judge’s oral ruling was brief and does not contain comprehensive reasoning for her decision. The oral ruling was not a judgment that contains the grounds for her decision.
“The learned Sessions Court judge, in fact, has no obligation to give any reasons at this stage in calling for defence. That obligation only arises at the end of the trial, whether she chose to acquit or convict the respondents (Bung Moktar and Zizie Izette). These are insufficient material in a brief or a ruling for the learned High Court judge to revise, assuming that his lordship has the powers to do so,” he said.
Justice Mohamed Zaini also pointed out that the right to a fair trial applies equally to the prosecution.
He said, allowing an application for revision of a prima facie ruling disrupts a trial, creating an insufferable situation in which the trial court must accede to numerous requests for postponements to enable each party to appeal against an order made during the trial.
“This will frustrate the progress of trials, wasting precious judicial time and public expense, and must be stopped. Based on the aforesaid, we allow the appeal by the appellant.
“The High Court’s ruling is therefore set aside. The Sessions Court ruling is restored, and we order this case to be remitted back to the Sessions Court for the trial to continue without further delay,” said justice Mohamed Zaini. The court then fixed Dec 5 for mention at Sessions Court.
Bung Moktar, 65, who was then the non-executive chairman of Felcra Berhad, was charged on May 3, 2019, with two charges of accepting bribes of RM2.2 million and RM262,500 as an inducement to obtain Felcra approval to invest RM150 million in Public Mutual unit trusts.
He was alleged to have accepted the bribes from Public Mutual Berhad’s investment agent Madhi Abdul Hamid through Zizie Izette, 46, at Public Bank Taman Melawati Branch here between 12.30 pm and 5 pm on June 12, 2015.
Bung Moktar was also charged with receiving RM337,500 in cash from Unit Amanah consultant, Norhaili Ahmad Mokhtar, under the name of Zizie Izette for the same reason and place on June 19, 2015, while Zizie Izette was charged with three counts of abetting her husband over the matter at the same place, date and time.
Speaking to the press after the proceedings, Bung Moktar, who is also Sabah Barisan Nasional Sabah chairman, said he accepted the court’s decision today.
“Insya-Allah,
if that is the court’s ruling, it must be accepted... thank you,” he
said with a smile, accompanied by Zizie Izette. — Bernama, Malay Mail, 18/11/2024
Bung, wife acquitted as order to enter defence unjust, says High Court judge
Justice Azhar Abdul Hamid says the sessions court judge’s finding of a prima facie case was ‘incorrect and perverse’.
Justice Azhar Abdul Hamid said he was of the opinion that the sessions court judge’s finding of a prima facie case was “incorrect” and “perverse”, and had caused “great injustice” to both the accused.
“It is my view that this is a fit and proper case for this court to exercise its revisionary power.
“Both the applications are, therefore, allowed and the session court’s decision is set aside and substituted with an order of acquittal and discharge without calling for them to enter their defence,” he said in a written judgment released last week.
On Sept 7 last year, the session court ruled that the prosecution had proved all the ingredients of the charges against the duo and that the presumption of corruption under Section 50 of the Malaysian Anti-Corruption Commission (MACC) Act 2009 had been triggered.
In his 10-page judgment, Azhar said the trial judge’s decision ran contrary to the evidence tendered in court by the prosecution.
“Both material witnesses for the prosecution, namely SP24 (Norhaili Mokhtar) SP25 (Madhi Abdul Hamid) clearly stated in their oral evidence in court that no element of gratification exists in this case,” he said.
He said Norhaili had denied under cross-examination that what was stated in her written statements given during investigations had actually transpired.
“She also denied that the RM2.8 million paid to Zizie at Public Bank Taman Melawati was meant for Bung,” he said.
Azhar said Madhi had, in his evidence in court, also confirmed that there was neither any element of gratification nor request from either accused.
“He (Madhi) went on to confirm that the money (RM2.8 million) paid to Zizie was an introduction fee,” he said.
In the face of this evidence, Azhar said, the trial judge was wrong to accept the previous statements which the two witnesses gave to the Malaysian Anti-Corruption Commission in the course of its investigation.
“The trial judge determined that the oral evidence of these two witnesses do not give effect to the charges against both the accused,” he said, adding that such contradictory evidence made such testimonies completely untrustworthy.
Azhar said the High Court decision in the case of Lim Hung Wang v. PP (2011) empowered him to use his revisionary powers under Section 323 of the Criminal Procedure Code to review the decision of the sessions court.
The prosecution is expected to file its petition of appeal this week after having received the appeal records, which included the judgment, on April 23. The petition is intended to state where the High Court had erred in law and facts.
The Court of Appeal has set July 29 to hear the prosecution’s appeal against the acquittal. - FMT, 29/4/2024
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