Malaysians Against Death Penalty and Torture (Madpet) notes that the prosecution’s failure in the recent Zahid Hamidi case raises questions about the independence, competence and professionalism of prosecutors in Malaysia.
[It also highlights] the need for reform and laws to safeguard the independence of deputy public prosecutors and to criminalise wrongful actions or omissions of prosecutors, done intentionally or negligently, for the benefit of the accused.
Former deputy prime minister, Umno president and Barisan Nasional chairperson Zahid Hamidi, in this case, was facing 33 charges of receiving bribes amounting to S$13.6m (RM42m) from Ultra Kirana Sdn Bhd (UKSB) as an inducement.
[The inducement was allegedly] for himself, in his capacity as a civil servant and the then home minister, to extend the contract of the company as the operator of the one-stop centres in China and the foreign visa (VLN) system as well as to maintain the [company’s] agreement [with the Ministry of Home Affairs] to supply VLN integrated system paraphernalia.
Zahid was also charged with another seven counts as home minister for allegedly obtaining S$1.2m, RM3m, 15,000 Swiss francs (RM70,000) and US$15,000 (RM69,000) in cash from the same company for himself in connection with his official work.
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It was reported that the High Court judge on 23 September found that prosecution failed at the close of the prosecution’s case to successfully prove a prima facie case against Zahid, who is also the Bagan Datuk MP, on not just some charges but all 40 bribery charges.
The judge found that the prosecution failed to call material witnesses and to adduce certain evidence. Zahid was acquitted without even having to enter his defence.
Before anyone is charged with an offence, prosecutors must verily believe that they have sufficient evidence to present in court to prove guilt beyond a reasonable doubt. To not do so may be considered an abuse of power on the part of the prosecution.
In any event, at the end of the day, the prosecution still needs to convince the judge or the court that an accused person is guilty beyond a reasonable doubt, or that at the close of the prosecution’s case, a prima facie case has been established against the accused.
Failure to call material witnesses
In Zahid’s case, the judge reportedly [said] that the prosecution failed to call important witnesses to ascertain the source of the funds allegedly paid to Zahid, among other.
One Nicole Tan was not called to testify to provide clarifications on the missing link by explaining the nature of the arrangement between UKSB and the Hong Kong subcontractors of which the money allegedly paid to Ahmad Zahid was derived from.
“The witness from Hong Kong including Nicole would be able to provide an explanation on the actual source of funds especially given that all three key prosecution witnesses confirmed the source of the monies paid to the accused did not originate from UKSB,” judge Mohd Yazid Mustafa said.
Of concern also is [that the failure to call] material witnesses has happened before in cases involving politicians and those allegedly connected to politicians.
Similar findings arose in the cases of Kasitah Gaddam [the then lands and co-operative development minister 1999-2004) and business tycoon Eric Chia.
In the Kasitah Gaddam case, it was reported:
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…(“Kasitah freed of corruption charges“, 2009)
In Eric Chia’s case:
Akhtar [the then Sessions Court judge Akhtar Tahir now High Court judge] 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. (“Eric Chia acquitted of CBT“, 2007)
Failed to adduce CCTV footage, toll receipts, envelope
It was reported that:
… the prosecution did not produce any sample envelope used for the alleged cash payments, remarking that he found it hard to imagine what kind of envelope could fit the bill stacks amounting to hundreds of thousands at the material time….
… neither close-circuit television footage nor toll receipts on delivery visits to Ahmad Zahid’s house or the deputy prime minister’s official residence – where the offences allegedly took place – were produced in court to support the prosecution’s case.
There is a need to now question whether the deputy public prosecutors acted independently and professionally, or whether they were compromised by ‘corruption’ or orders or instruction from their superiors or others.
Madpet believes that deputy public prosecutors handling any criminal case should be independent even from the orders or instruction of the public prosecutor, minister and government of the day.
Madpet is of the opinion that mishandling of prosecution duties intentionally or negligently for the benefit of the accused or any person who could be charged ought to be criminalised. One wonders, if another independent deputy public prosecutor was handling this case, whether it would have led to the same outcome for Zahid.
Appeal to Court of Appeal
Now, in Zahid’s case, the High Court judge could have erred in his judgment to acquit, and as such it is important that the prosecution immediately files an appeal to the Court of Appeal. We know that, in many cases, the appellate court has reversed decisions of the lower court.
In this case, Madpet urges the public prosecutor to immediately appeal to the Court of Appeal, as it is best that the appellate court confirms to us in Malaysia whether there was an error of judgment on the part of the High Court judge.
[It is] irrelevant to this particular case, [but] it is fresh in the minds of Malaysians what was reported in another case, where the transactions were through cheques not cash, where Zahid is accused of receiving bribes amounting to RM6m from Chew as a reward for appointing DTSB to implement a passport chip project – [the project was] for a period of five years or for a total of 12.5 million chips to be included in the polycarbonate biodata page of Malaysia’s international passports by the Immigration Department – through direct negotiations under the Ministry of Home Affairs.
In that case, Zahid repeatedly stressed that he chose not to deposit the money into his accounts or use it for his personal benefit.
“Even though at that time I was holding the post of deputy president (of Umno) and that money could be used for political purposes, I chose to use it neither for politics nor for personal purposes, but instead to channel it for charity, waqf and religious activities,” he said.
“If money is given to a politician, he has the discretion to deposit it into his own account or any other account he deems fit.”
Given this, Madpet reiterates its call that the prosecution files an immediate appeal to the Court of Appeal so that Malaysian doubts on the correctness of the High Court’s decision to acquit [Zahid without his defence being called, can be dispelled].
Acquittal is not proof of innocence
In the administration of criminal justice, an acquittal is not proof of innocence. It is simply a failure of the prosecution to prove guilt by establishing a prima facie case at the close of prosecution – or at the end of trial, [a failure] to prove beyond reasonable doubt that the crime [that the person has been] accused [of] had been committed.
An acquittal means Zahid can never again be charged for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been be made.
Madpet reiterates its call that the court should not acquit anyone when the prosecution elects to discontinue the proceedings mid-trial; they should just be granted a discharge not amounting to an acquittal.
In the current case, if the prosecution at any time during the trial found the evidence insufficient, it could have elected to seek a long postponement or to discontinue proceedings, and the court could have ordered a discharge not amounting to an acquittal. Then, they could secure more evidence required to continue with the prosecution.
It is not uncommon for prosecution witnesses to disappear or suddenly change their statement, or for evidence to be lost. Recall the Malaysian former spy case, where the money seized and kept by the Malaysian Anti-Corruption Commission was taken by an MACC officer (now already convicted), who then replaced it with counterfeit money.
Madpet notes that the power lies with the public prosecutor to immediately file an appeal with the Court of Appeal with regard to the decision of the High Court judge to acquit Zahid at the close of prosecution stage of the trial.
Madpet also calls for an investigation of the deputy public prosecutors involved in this case to determine whether there was any failure of duty, intentionally or otherwise.
Madpet also calls for reform and/or laws to ensure the independence of deputy public prosecutors handling a particular criminal case, including the freedom from instructions or orders from others, including the government of the day.
[Madpet notes] a public perception that Malaysian laws and administration of criminal justice accords preferential treatment to politicians and/or those with ‘connections’ to the government of the day or maybe tomorrow. [This is] contrary to a constitutional guarantee in Article 8(1), which states: “All persons are equal before the law and entitled to the equal protection of the law.”
Malaysia needs to also review and strengthen the mechanisms including safeguards to ensure the independence of the judiciary, prosecutors and law enforcers. – Madpet
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture
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