KUALA LUMPUR, Sept 21 — Datuk Seri Ahmad Zahid Hamidi’s lawyer today told the court that charitable and political donations were legal in Malaysia, and claimed his client was “unnecessarily” charged because the prosecution’s star witnesses did not say the millions of ringgit given were for bribes.
Ahmad Zahid’s lead defence lawyer Hisyam Teh Poh Teik today sought to clarify questions raised by the trial judge in relation to the term “political donations”.
In this trial, Ahmad Zahid is facing eight corruption charges, involving a total RM21.25 million in cheques that he was alleged to have corruptly received as a reward in his role as the home minister then in relation to alleged contract awards or proposed aid in receiving contracts.
The cheques were banked into law firm Lewis & Co, which Ahmad Zahid’s lawyers have insisted is a trustee that held money on trust for charitable foundation Yayasan Akalbudi, a foundation registered with the Companies Commission of Malaysia and where Ahmad Zahid is a trustee.
High Court judge Datuk Collin Lawrence Sequerah today highlighted that “political donation” is included under the definition of “gratification” under the law. Gratification is a key element of corruption or bribery charges.
Under Section 3 of the Malaysian Anti-Corruption Commission Act, “gratification” is defined as “money, donation, gift, loan, fee, reward, valuable security, property or interest in property being property of any description whether movable or immovable, financial benefit, or any other similar advantage”.
Teh responded by showing past court judgments in Malaysia that support Ahmad Zahid’s lawyers’ view that “political donations” are not illegal.
Citing the 2013 Court of Appeal judgment in a corruption case (PP v Zul Hassan & Others) involving an older version of Malaysia’s anti-corruption law which also included “donation” under the definition of “gratification”, he argued that it was not enough to show there was solicitation or receiving of gratification and that the prosecution must also prove that the asking or receiving of such funds were done corruptly in exchange for project awards.
He said the Court of Appeal had in that 2013 case said that the prosecution must show the purpose of the gratification to be unlawful, and that it had said the asking or receiving of funds for the purpose of donations to political parties alone is not against the law.
He said the Court of Appeal had also referred to a research paper from Vanderbilt University which had listed several examples where political donation may amount to corruption and bribery, including when donation is given on the condition that an election candidate or the receiver promises to perform a future act, or when the receiver promises a particular action on the condition that the contribution is given.
“My Lord will recall, as far as all these charges are concerned, none of the donors fall into the categories of examples given by the author. They came and said these donations are either political in nature or charity.
“As per the authority, the court recognises political donations are lawful, are permissible in law,” Teh told the High Court today.
Teh further cited the High Court’s 2018 decision (Md Zailani Md Zain v PP), arguing that the prosecution must prove that the purpose of the gratification or contribution was unlawful before the corruption charges can be established against Ahmad Zahid.
“The eight charges brought against the accused (Ahmad Zahid), they are not proven by the prosecution that there’s corrupt element — this is a bribe,” he said.
Throughout the trial, Ahmad Zahid’s lawyers had repeatedly highlighted that the businessmen who had given millions of ringgit through cheques — with some cheques physically handed over to Ahmad Zahid — had either said these were for charitable donations or political donations.
At one point, the judge noted that the prosecution’s view is that it does not really matter what the witness states regarding the money given, as corruption could be inferred from the facts.
Teh however replied that the witnesses’ views were important: “It’s very important that the witnesses must be clear as regards to the purpose of donation. All witnesses called by the prosecution on all these eight charges, very clear in their minds these are donations — either charity or political. These donations are not illegal under the law.”
“We find it very strange, My Lord, there are four important witnesses, 36th prosecution witness Junaith Asharab Md Shariff, 32nd prosecution witness Datuk Abu Hanifah Noordin, 34th prosecution witness Chew Ben Ben, 38th prosecution witness Azlan Shah Jeffril.
“These are main witnesses for the prosecution. They came before Your Lord, not a single one of them said this is corruption, this is bribery, this is corrupt gratification in exchange for contracts. None whatsoever.
“We find it very strange, unless and until they can bring authorities, we say this is a case of over-prosecution, accused person unnecessarily prosecuted for these charges,” he told the judge.
The judge said the prosecution’s view is that it can be inferred from the facts —- such as where contract was awarded and money was given sometime later —- irrespective of what the witnesses say.
Teh replied that the court should decide based on “direct evidence” given by prosecution witnesses under oath in court, and that the law does not allow for inferences to be made when there are direct evidence available.
In the event there are inferences, Teh said the criminal law in the country requires for the inference favourable to the accused to be adopted.
“So, based on this point alone, (there is) no evidence of rewards. Charges 16, 17, 18 will fall flat to the ground. This is the most important element, not proven by the prosecution,” he said, referring to three charges involving a total of RM2 million given by Azlan Shah through three cheques from his company Profound Radiance Sdn Bhd that he handed over personally to Ahmad Zahid.
Profound Radiance was appointed as the one stop centre for visa processing matters in Nepal and Pakistan prior to the giving of the RM2 million cheques, but Teh had today argued that the evidence showed that the appointment process went through proper procedures and protocols and that it was not Ahmad Zahid who had made the appointment.
Teh highlighted that Azlan Shah had previously denied in court that the RM2 million cheques were corrupt money or were corruptly given by him or corruptly received by Ahmad Zahid, adding that this businessman had also denied that the RM2 million was not given as a reward for Profound Radiance’s appointment for the contracts.
Teh argued that it would have been very easy for the prosecution witness Azlan Shah to say that the money given are as a “reward”, and “nothing will happen” to this witness as he would be protected by law under Section 132 of the Evidence Act.
Under Section 132, a witness would not be arrested or prosecuted over an answer given in court if the answer was given truthfully, as the witness could still be prosecuted for giving false evidence through such an answer.
Teh said he had not come across a case before where an accused person is convicted when there is no evidence of corruption from star witnesses, and challenged the prosecution to show court cases where this had happened.
Today, Ahmad Zahid’s lawyers concluded their oral submissions for all 47 charges that their client is facing, but reserved their right to make a final reply to the prosecution on two legal points relating to corruption charges.
The trial resumes tomorrow, where the prosecution is expected to start presenting its oral submissions.
Ahmad Zahid’s trial is currently at the end of the prosecution’s case, as all 99 prosecution witnesses have already testified previously.
At the end of the prosecution’s case, both sides will present their final arguments verbally through oral submissions, before the court decides whether the prosecution has proven a prima facie case that would require Ahmad Zahid to enter defence or if he should be released from the charges.
In this trial, Zahid ― who is a former deputy prime minister and currently the Umno president ― is facing 47 charges, namely 12 counts of criminal breach of trust in relation to charitable foundation Yayasan Akalbudi’s funds, 27 counts of money laundering, and eight counts of bribery charges.