KUALA LUMPUR (July 12): The High Court here has dismissed the application made by former Penang chief minister and Bagan member of Parliament (MP) Lim Guan Eng for his undersea tunnel graft trial — which is supposed to begin at the Sessions Court today — to be transferred to the High Court.
In delivering his ruling today, High Court judge Justice Datuk Muhammad Jamil Hussin said the Federal Court has already decided that Section 62 of the Malaysian Anti-Corruption Commission (MACC) Act 2009 is constitutional, and that the lower courts are bound by that decision.
"As such, Section 62 of the MACC Act is still in force and the courts must give effect to it. Any legal questions that may arise regarding Section 62 of the MACC Act, in my opinion, can be addressed and decided by the Session Court's judge," he said.
According to Section 62 of the Act, the defendant has to file his defence first before the commencement of the trial and once documents by the prosecution have been delivered.
However, in another case involving Lim, the Court of Appeal found the section to be unconstitutional.
Lim, who is also a former finance minister, previously said in an affidavit in support of his transfer application that it is proper that his case be transferred to the High Court as the legal issues pertaining to the section should be presided over by a High Court judge and that the decisions can later be referred to the Federal Court should the case be appealed further.
He also said there are legal issues regarding the recording of the prosecution's witness statements under Section 112 and Section 51 of the Criminal Procedure Code and Section 30 and 33 of the MACC Act, especially the statements taken before and during the trial.
Lim was referring particularly to the testimony provided by Consortium Zenith Construction Sdn Bhd's senior executive director Datuk Zarul Ahmad Mohd Zulkifli.
To this, Muhammad Jamil said witness statements are privileged and that Lim, as the accused, is not entitled to the witness statements prior to the commencement of the trial. This, he added, has also been decided by the Federal Court before.
"Session Court judges have the legal qualifications and are very experienced in hearing cases against the applicant (Lim). I believe the Session Court judge has the ability to deal with legal questions that may arise in this case.
"The applicant failed to show how the issues raised in the application would be a question of law of extraordinary difficulty if such issues were faced by a Sessions Court judge," he said.
Following the delivery of the decision, Lim's defence counsel and Puchong MP Gobind Singh Deo applied for a stay of proceedings.
However, the application was also dismissed after deputy public prosecutor Wan Shaharuddin Wan Ladin contended that most of the prosecution witnesses who are from Penang and Negeri Sembilan have already been called to testify this week and that there are no special circumstances for the stay to be granted.
As such, trial proceedings for the graft case will begin tomorrow before Sessions Court judge Azura Alwi.
On Aug 7 last year, Lim was charged in his capacity as the then chief minister of Penang to have solicited gratification to help Consortium Zenith Construction secure the undersea tunnel project. He is alleged to have sought 10% of the profit to be made by the company from its owner Zarul.
Then on Aug 10, Lim was charged in the Butterworth Sessions Court with using his position as the then chief minister of Penang to receive RM3.3 million in gratification for himself as an inducement for helping the company to secure the project valued at RM6.3 billion.
Subsequently on Sept 11, the Bagan Member of Parliament was charged in the same court with two counts of causing two plots of land belonging to the Penang government worth RM208.8 million to be disposed of to two companies that were linked to the state’s undersea tunnel project.
Lim has pleaded not guilty to all four charges.