Monday, November 14, 2016

Disturbing trend in 'graft cases' in Malaysia - Inadequacies of Prosecution or 'something else'?

The Administration of Justice in Malaysia is in doubt? See the Malaysiakini article below. 

The competency of the investigating authority(Police, MACC, etc), the prosecution and the courts come into question when so many 'personalities' are getting acquitted by our Malaysian courts, and remembering one of comments made by judges in the Kasitah Gaddam and also Eric Chia's case - the prosecution's failure to call material witnesses...

In the Eric Chia's case, the judge was reported saying:-

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,...- Star, 27/6/2007, Eric Chia acquitted of CBT
 In the Kasitah Gaddam's case, the judge was reported saying:-
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.- Star, 13/8/2009, Kasitah freed of corruption charges

Now, High Court, Court of Appeal and Federal Court judgments will get reported in law journals, and as such, we could really study the reasons for the acquittal - not the same for Session Court judgments. Sadly, our media also DO NOT publish the Judgments or report clearly the reasons for the acquittal given by the Courts...will the prosecution appeal? That we shall see..

Generally, even before a person is charged in court the prosecution do generally make sure that there already exist sufficient credible evidence, be it documentary evidence or human witnesses. The charging of a person without this is nothing short of incompetency and abuse of the laws and the administration of justice, and these 'victims' should rightly be accorded compensation and damages for the failings of the Public Prosecutor and the investigating authorities.  

Corruption, misappropriation of funds and kleptocracy, as it is, is very difficult to prove. More so, when it comes to 'smarter' and richer persons, who have the knowledge and capacity to 'hide' better their wrongdoings...using various intermediaries and banks in other countries.

Investigation also needs sometimes to be able to go to other countries to complete their investigation - hence Mutual Legal Assistance, where the availability of this option, to complete investigations is in the hands of the Attorney General. 

We remember that the Attorney General denied this request even to MACC in the 1MDB and related matters  investigation. As such, this would have weaken the capacity to do a good investigation. Recent reports allege that Malaysia also 'blocked' the investigation of foreign countries who were investigating allegations concerning 1MDB and related companies. A very bad move indeed, and certainly a bad example to Malaysians - not assisting police investigations is OK?

 The failure to secure convictions in such graft cases is a concern that needs to be addressed.

Are some people given preferential treatment? Or is it that the 'rich' can afford better lawyers - and the quality and standard of our Deputy Public Prosecutors need to be much improved...

* All postings are mere opinions  

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

Besides PKFZ, nine other graft cases saw acquittals as well

    Kow Gah Chie     Published     Updated

  • The decade-old Port Klang Free Zone (PKFZ) scandal hit the headlines again when former Port Klang Authority (PKA) general manager OC Phang was acquitted on three counts of criminal breach of trust totalling payments of RM254.85 million.

    This came as almost no surprise, following the acquittal of two former transport ministers, Dr Ling Liong Sik and Chan Kong Choy, in October 2013 and January 2014 respectively.

    Thus far, no one has been found guilty for alleged offences committed in connection with the PKFZ scandal.
    Besides Phang, Ling and Chan, three others from the private sector - PKFZ's turnkey contractor Kuala Dimensi Sdn Bhd’s former chief operating officer Steven Abok, former project manager Law Jenn Dong and project consultant BTA Architect's Bernard Tan - were slapped with various charges.

    Launched in November 2006, PKFZ, modelled after the highly successful Jebel Ali Free Zone in Dubai, United Arab Emirates, caught the nation by surprise when its setting-up cost ballooned from RM1.96 billion to RM12 billion. Yet, the project was reported to resemble a ghost town, six months after its completion.

    The government vowed action on the Transport Ministry in connection with the PKFZ scandal, while the Public Accounts Committee (PAC) recommended that Chan and Phang be investigated for criminal breach of trust.

    Indeed, the PKFZ case is not an isolated incident in the past three decades.

    There were other similarly high-profile cases involving, among other crimes, fraud and corruption involving billions of ringgit in losses, which ended up with nobody being held responsible after the hearings of these cases.

    This is despite the government continuously pledging its commitment in anti-corruption and clamping down on irregularities.

    Malaysiakini has compiled several such similar high-profile cases, which are:

    1. Perwaja Steel

    Set up in 1982, Perwaja Steel was the brainchild of the then prime minister Dr Mahathir Mohamad, who wanted key state-owned companies to venture into heavy industries.

    However, this RM250 million joint venture suffered RM120 million losses in its first year of operation.

    The Star reported that several attempts went into resuscitating Perwaja, but to no avail. It is estimated more than RM15 billion was lost in the process.

    The company's former managing director, Eric Chia, was charged with criminal breach of trust amounting to RM76.4 million in 2008.

    Three years later, the Singapore-born businessman was acquitted as the court found that the prosecutor failed to call material witnesses.

    2) National Feedlot Centre (NFC)

    The 2010 auditor-general’s report, which pointed out the weakness in NFC, particularly those related to its failure to meet its target of breeding 8,000 head of cattle by 2010, snowballed into major issues in the following years.

    National Feedlot Corporation (NFCorp), the company given a RM250 million federal loan to run NFC, came into the spotlight after the opposition exposed that the money was used to purchase properties and other expenses.

    NFCorp executive chairperson Mohamad Salleh Ismail, husband of the then Umno minister Sharizat Abdul Jalil, was later slapped with four charges involving RM49.7 million in March 2012.

    However, in November 2015, the prosecution dropped all the charges against Salleh.

    3) Kasitah Gaddam's case

    On Feb 12, 2002, the then Land and Cooperative Development Minister Kasitah Gaddam was charged with corrupt practices in the disposal of shares worth RM24 million while heading a Sabah state-owned body.

    The Umno minister also faced a second charge of misleading the directors of the Sabah Land Development Board in the share deal eight years ago.

    Seven years later, the High Court in Kuala Lumpur acquitted Kasitah, citing the prosecution's failure to call board members as witnesses to be detrimental to the case.

    4) Umno state assemblyperson's case
    Mustafa Salim (photo), the then Lenggeng state assemblyperson, was in 2008 found guilty of receiving RM20,000 at a restaurant in Mantin by a Sessions Court and sentenced to three years in jail.

    The money was purportedly an inducement for Mustafa to issue a supporting letter involving a sand project.

    However, he appealed and five years later, the High Court in Seremban overturned the conviction and sentence against him.

    5) Ex-Tourism director-general's case

    Former Tourism Ministry director-general Mirza Mohammad Taiyab was acquitted in 2009 from a charge of receiving valuable gratification in the form of an expensive dental treatment as a public officer.

    Mirza was charged under Section 165 of the Penal Code with accepting dental treatment worth RM13,860, paid by a director of an advertising firm, in 2008.

    In another case, Mirza, together with the former chief operating officer of Pembangunan Pelancongan Malaysia Bhd (Pempena), Mohammad Rosly Md Selamat, walked free in 2012 from criminal breach of trust (CBT) involving RM888,000.

    6) Umno Youth leader's case

    In June 2010, a Sessions Court in Temerloh, Pahang, acquitted former Federal Territories Umno Youth chief Norza Zakaria and his agent Halimi Kamaruzzaman of corruption charges on vote buying during the run-up to the Umno elections one year earlier.

    7) Ex-Sime Darby CEO's case

    Former Sime Darby Bhd president and group CEO Ahmad Zubair Murshid was acquitted in June for criminal breach of trust and fraud charges after a two-year trial.

    Zubir was charged with CBT that allegedly cost the company more than RM100 million in losses.

    8) Cheras Umno leader's case

    Cheras Umno division information chief Zamri Redzuan @ Ridzuan, who was charged with criminal breach of trust (CBT) involving RM4,350, claimed trial at the Sessions Court in Kuala Lumpur in March.
    He was acquitted two months later, after the prosecution withdrew the charge against him.
    9) Former CCID chief's case

    Former Commercial Crime Investigation Department (CCID) director Ramli Yusuff (photo) was slapped with five charges in Kuala Lumpur and Sabah, including failing to declare his assets, violating laws prohibiting civil servants from being involved in private business and abuse of power.

    Ramli was subsequently acquitted on all charges. Then, in 2012, the government dropped its appeal against Ramli’s acquittal.

    Ramli was alleged to be the "RM27 million cop" by MACC following its investigation against Ramil and his team in what was known as the "Copgate affair" allegedly involving then-inspector-general of police Musa Hassan and the then attorney-general Abdul Gani Patail. - Malaysiakini, 14/11/2016

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