When dealing with decisions of appealing against acquittals of political personalities and/or friends, decision to not appeal or to withdraw appeals by the Public Prosecutor/Attorney General raises questions...Was there preferential treatment? Was there political interference with the exercise of power of the Public Prosecutor....???
More so, in this case when the High Court convicted, but the Court of Appeal acquitted on a 2-1 decision.
One of the reported reasons for that acquittal seems to be a failure of prosecution - why did the prosecution NOT challenge the evidence in court. [Oh yes, the judge also has the power to ask questions ... an important power when prosecution 'fumbles'...???]. This was a CRIMINAL CASE after all not a civil case....
She said one of the essential elements of the offence — the sum of RM2 million paid by Aset Kayamas Sdn Bhd managing director Tan Sri Chai Kin Kong — was not for Tengku Adnan, but the two Kuala Kangsar and Sungai Besar by-elections held in June 2016.
The judge noted that Chai had revealed this during his testimony, and it was not challenged by the prosecution.
"His testimony as the star witness [of the sum] being a donation to UMNO was not challenged. The witness said that Tengku Adnan had requested donations for the two by-elections to the amount of RM5 to RM6 million.
"Chai was willing to pay RM2 million for this and the prosecution did not cross-examine Chai on this or treat him as a hostile witness or impeach him in this case. The evidence was also supported by the evidence of Tadmansori Sdn Bhd (a company controlled by Ku Nan) chief operating officer Datuk Mohd Hasbi Jaafar, that the money was for UMNO.
"In addition, the Malaysian Anti-Corruption Commission investigating officer Mohd Saad Bordani also testified and agreed that Chai and Tengku Adnan had told him that the RM2 million [was a] political donation," Justice Suraya said in the majority judgement.
The judge said it is trite that the prosecution is bound by the testimonies of their own witnesses, without cross-examinations done.
Is the door now open for the corrupt, to now be able to turn around, when caught, and say that the monies were for 'political donations' ...or some donations for some welfare activities... should not political donations be paid directly to political parties?
Now, in every election and by-elections, Election law stipulates the amount of monies that '...no expense shall be incurred by a candidate at an election or by his election agent, after the date of publication of the notice of the election in the Gazette, during or after an election, on account of or in respect of the conduct or management of such election, in excess of-(a) two hundred thousand ringgit in the case of an election to the Dewan Rakyat;(b) one hundred thousand ringgit in the case of an election to a Legislative Assembly;...Section 19, ELECTION OFFENCES ACT 1954 (REVISED 1969)...
Now, will the prosecution charge Tengku Adnan and the 2 candidates in Kuala Kangsar and Sungai Besar by-elections held in June 2016 under the Election Offences Act - where '...on conviction by a Sessions Court, be liable to a fine of five thousand ringgit and, subject to any specific provision to the contrary in any written law relating to any election, shall by conviction until the expiration of five years from such conviction become incapable of being registered or listed as an elector or of voting at any election under this Act or of being elected at any election, and if at that date he has been elected at any election, his seat shall be vacated from the date of such conviction...'
If the court found him not guilty of corruption, could not the court charge him for an election offence...?
The giver, the recipient, the candidate, the election agent could all be charged for this election offense still - but the consent of the Public Prosecutor is needed...
167 When a person charged with one offence can be convicted of another
LET'S NOT MAKE A MOCKERY OF MALAYSIAN LAWS ...AND THE CRIMINAL JUSTICE SYSTEM...
LET THERE BE NO PREFERENTIAL TREATMENT OF POLITICIANS...
Press Release | The Attorney General Must Provide a Cogent Explanation Regarding Withdrawal of Tengku Adnan’s Appeal 19 Nov 2021 6:53 pm
The
Malaysian Bar refers to the recent news that the Attorney General’s
Chambers has reportedly withdrawn its appeal against the Court of
Appeal’s decision to acquit former Federal Territories Minister, YB
Datuk Seri Tengku Adnan Tengku Mansor (“Tengku Adnan”) in a RM2 million
corruption case.1
In December 2020, the Kuala Lumpur High Court convicted Tengku Adnan of accepting a RM2 million bribe during his capacity as the Federal Territories Minister. The Court of Appeal then quashed the conviction in a 2-1 majority decision,2 and the prosecution had filed an appeal to the Federal Court against the acquittal in July 2021.3
We are therefore perturbed by the Attorney General’s Chambers’ purported decision to withdraw the appeal, taking into consideration the fact that the Court of Appeal’s decision was not unanimous.
The Attorney General is the principal legal adviser to the Government and is also the Public Prosecutor. The power granted by the Federal Constitution to institute any proceedings for an offence is exercisable at his discretion. It is our view that the reasons behind withdrawing an appeal in such a high-profile case must be revealed to demonstrate accountability to the rakyat. Tengku Adnan currently serves as the Member of Parliament (“MP”) for Putrajaya — a position where he is elected to represent the interests of members of his constituency. Surely as a matter of good governance, questions regarding the integrity of such a public figure must be answered in a transparent manner, and not be left ignored. At the time of writing, the Attorney General’s Chambers has yet to provide any statement for its decision.
It is axiomatic that the Attorney General must answer for the exercise of the constitutional power that he holds and the discretion to discontinue prosecutions, because these powers are exercised on behalf of the rakyat and for the rakyat. The wide-ranging discretionary powers held by the Attorney General in his capacity as the Public Prosecutor must be weighed comprehensively against the rule of law and the administration of justice. Any suggestion that a public figure is able to use his/her influence to buy himself/herself out of accountability must be avoided at all costs.
The position of the Attorney General’s Chambers as a bastion of justice and a guardian of public interest must be fiercely guarded. The Malaysian Bar therefore emphasises the need for the Attorney General to give a detailed explanation behind the withdrawal of the appeal.
A G KALIDAS
President
Malaysian Bar
19 November 2021
1 “MPs, lawyers question AG Chambers' decision to withdraw appeal against Ku Nan’s acquittal in RM2m graft case”, The Edge Markets, 18 November 2021.
2 “Court of Appeal acquits Ku Nan of RM2 mil graft charge”, The Edge Markets, 16 July 2021.
3 “Prosecution appeals against Tengku Adnan’s acquittal in RM2m corruption case”, Malay Mail, 19 July 2021.
Source: Malaysian Bar
Court of Appeal acquits Ku Nan of RM2 mil graft charge
The Court of Appeal overturned the RM2 million corruption conviction against Tengku Adnan. (Photo by Shahrill Basri/The Edge)
PUTRAJAYA (July 16): A three-member Court of Appeal bench today acquitted former federal territories minister and Putrajaya member of Parliament Datuk Seri Tengku Adnan Tengku Mansor of graft involving RM2 million that entered into a company account which he controls.
Justice Datuk Suraya Othman who led the bench and Datuk Ahmad Nasfy Yasin allowed the appeal, while Datuk Abu Bakar Jais who is the second-most senior judge on the bench dissented.
With this, Tengku Adnan — better known as Ku Nan — was acquitted and discharged of the graft charge.
Justice Suraya said the bench wanted to deliver the decision earlier but had to delay it due to the Covid-19 pandemic.
She said one of the essential elements of the offence — the sum of RM2 million paid by Aset Kayamas Sdn Bhd managing director Tan Sri Chai Kin Kong — was not for Tengku Adnan, but the two Kuala Kangsar and Sungai Besar by-elections held in June 2016.
The judge noted that Chai had revealed this during his testimony, and it was not challenged by the prosecution.
"His testimony as the star witness [of the sum] being a donation to UMNO was not challenged. The witness said that Tengku Adnan had requested donations for the two by-elections to the amount of RM5 to RM6 million.
"Chai was willing to pay RM2 million for this and the prosecution did not cross-examine Chai on this or treat him as a hostile witness or impeach him in this case. The evidence was also supported by the evidence of Tadmansori Sdn Bhd (a company controlled by Ku Nan) chief operating officer Datuk Mohd Hasbi Jaafar, that the money was for UMNO.
"In addition, the Malaysian Anti-Corruption Commission investigating officer Mohd Saad Bordani also testified and agreed that Chai and Tengku Adnan had told him that the RM2 million [was a] political donation," Justice Suraya said in the majority judgement.
The judge said it is trite that the prosecution is bound by the testimonies of their own witnesses, without cross-examinations done.
Justice Suraya further said it is the court's considered view that the evidence of Mohd Saad is significant and revealed the cheque issued by Chai was for the expenses of the two by-elections.
"Nowhere in the grounds did his lordship (the High Court judge) consider the evidence of Chai and Hasbi that those monies were for political donations," she said.
"There is no vein that Chai is considered a dishonest or untruthful witness as there are no attempts by the prosecution to impeach or [treat him] as a hostile witness. Such a failure renders the conviction to be unsafe."
On the UMNO receipt received by Chai, Justice Suraya ruled that Chai's testimony was never contradicted or disproved and the arguments by the prosecution that it was a forged document remain untrue.
Minority judgement says trial judge proved all elements
Justice Abu Bakar in his minority judgement said the High Court was right in its decision to convict and sentence Ku Nan as all elements of graft had been proven including that he was a public officer.
The judge said the fact that money entered into Tadmansori's account without consideration as Aset Kayamas had no dealing with the company.
He added that there was also no evidence that money from Tadmansori had gone out to UMNO.
"I find that the money was deposited into the accused's account for his own use without a valuable consideration," he said, adding that there were also doubts with regard to the issue of the receipt produced by Chai.
"I find that the defence had not created a reasonable doubt for the case. The conviction and sentence against the accused is upheld," Justice Abu Bakar ruled.
However, as Justice Suraya said this is a majority decision, the bench is of the view that there is clearly a non-direction and misdirection by the High Court judge.
"[This case] requires appellate intervention... Hence we are allowing the appeal against the conviction and sentence. Hence, the accused is acquitted," she said.
After the decision, Ku Nan was seen saying a short prayer as he left the Palace of Justice.
The appeal was heard on April 22 but the bench deferred in delivering its decision.
Ku Nan is represented by counsel Datuk Tan Hock Chuan and Datuk S Satharuban while Deputy Public Prosecutors Datin Nurshuhaida Zainal Azahar and Asmah Musa appeared for the prosecution.
Whent met, Asmah said the prosecution would seek instructions on whether to appeal today's decision. The prosecution has 14 days from today to appeal today's decision at the Federal Court.
Last Dec 21, High Court Justice Mohamed Zaini Mazlan found the 70-year-old Tengku Adnan guilty of graft for accepting RM2 million from Chai.
For this, the now UMNO treasurer was sentenced to 12 months' jail and
fined RM2 million, against which he is presently appealing. - Edge Markets, 16/7/2021
Read also:
Ku Nan sentenced to 12 months' jail and RM2m fine for corruption charge
Posts
No comments:
Post a Comment