Saturday 13 Apr 2024
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This article first appeared in The Edge Malaysia Weekly on September 11, 2023 - September 17, 2023

IN what appears to be his last act as the attorney-general, Tan Sri Idrus Harun instructed his officers to apply for a discharge not amounting to an acquittal (DNAA) of all 47 charges against Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi for dishonest misappropriation of RM31 million belonging to his charitable foundation Yayasan Akalbudi. This unleashed a firestorm of anger and public comments — mostly negative — against the Attorney-General’s Chambers (AGC) and the administration of Prime Minister Datuk Seri Anwar Ibrahim.

Court of Appeal judge, Justice Datuk Collin Lawrence Sequerah, sitting as a high court judge, granted the DNAA as the prosecution said it would not be carrying on with the case, which was already into the defence stage with 15 of Zahid’s witnesses having taken the stand, including him. Sequerah, having earlier found that a prima facie case had been made out by the prosecution, was quick to allude to the waste of taxpayers’ money and the court’s time when granting the DNAA.

Deputy public prosecutor (DPP) Datuk Mohd Dusuki Mokhtar in applying for the DNAA put forth 11 main reasons, one being that the Malaysian Anti-Corruption Commission (MACC) had informed the AGC that it needed to carry out further investigations into the charges.

The MACC’s further action appears to have been prompted by two representation letters dated Dec 8, 2022 and Jan 25, 2023, sent by Zahid to the AGC to review his charges. The first of the two letters came within days of Zahid’s appointment as deputy prime minister after the 15th general election in November last year.

On Feb 28 and March 7, four more representation letters were sent, which raised issues and evidence that ostensibly required the MACC to investigate further.

Other reasons listed for the DNAA include the fact that the letters of representation to the AG also contended that MACC’s investigations into Zahid were done in haste, careless and incomplete and that this would cause the reputations of the AGC and MACC to be harmed as it would be perceived that they had been used by certain quarters.

Another reason outlined was that Zahid believes that the 47 charges levelled against him were because of selective prosecution by the previous government and that the AG was of the view that this allegation needed to be looked at and investigated.

Zahid’s lawyers, not happy with the DNAA, had pressed the court to issue a discharge and acquittal as the prosecution was not able to give a definite timeline on when the investigations would be completed. His lawyer Datuk Hisyam Teh Poh Taik likened the DNAA to the “sword of Damocles” hanging over Zahid’s head, and urged the court to grant him a full acquittal.

Critics contend that a harbinger of the DNAA was when DPP Datuk Raja Rozela Raja Toran, who was the lead prosecutor in Zahid’s case, rather inexplicably asked for early retirement in the middle of the trial, ostensibly sometime around July or August.

Prosecution: Not a ‘single sen’ was used for the poor

In the trial, which began on Nov 18, 2019, almost four years ago, Raja Rozela told the court that the prosecution would prove that Zahid had misappropriated RM31 million of Yayasan Akalbudi’s funds, where not a single sen was used for the benefit of the poor. Yayasan Akalbudi was a charitable organisaton set up by Zahid to help the poor.

Raja Rozela said the prosecution would also establish that the accused had received RM17 million in bribes and a further RM4.25 million in gratification, plus proceeds from unlawful activity of RM65 million.

She said the RM31 million was entrusted to Zahid in his capacity as a member of the Yayasan Board of Trustees.

“[The] money trail to be presented in court will reveal that not a single sen of the RM31 million was used for the benefit of the poor,” she said.

Charitable funds used to pay personal credit card bill; Zahid blames Mazlina

Out of the 99 prosecution witnesses called in the trial, the key witness was Major Mazlina Mazlan @ Ramly, Zahid’s former executive secretary, who was handling payments allegedly on his instructions.

She had testified that during her tenure as his executive secretary from Dec 9, 2011 to May 2018, she was given approval by Zahid to use Yayasan Akalbudi’s cheques for various purposes, such as paying his personal credit card bills, vehicle insurance and road tax for his many personal vehicles as well as payments to Persatuan Bolasepak PDRM and two companies (Armada Holdings Sdn Bhd, and TS Consultancy & Resources).

She testified that on every occasion, she had presented Zahid with the Yayasan Akalbudi cheques to sign and he had duly signed them without questioning why she was using the fund’s cheques for his personal payments.

On Jan 24, 2022, Zahid was called to enter his defence as Sequerah ruled that the prosecution had proved a prima facie case against the Umno president after a maximum evaluation of the evidence.

The crux of the trial centred around Zahid and Mazlina, both of whom had differing testimonies about the payments. When Zahid was called to enter his defence, he took the stand and under cross-examination by Raja Rozela, insisted that it was Mazlina who was negligent when she used Yayasan money to pay for his car insurance policies, road tax and other personal bills.

The string of Zahid’s witnesses, including his former press secretary Datuk Fadzlette Othman Merican Idris Merican and the home ministry’s former deputy secretary-general Datuk Suriani Ahmad, among others, testified that Mazlina was negligent and “difficult to work with”.

At times, Zahid’s testimonry was testy. 

Raja Rozela had asked Zahid to explain how RM17.9 million of Yayasan Akalbudi’s funds had ended up in a fixed deposit account of a law firm called Lewis & Co, among others. She pointed out that Mazlina could not have used funds from the fixed deposit account.

Raja Rozela: Major Mazlina cannot handle the funds in the fixed deposit account. Do you agree with that?

Zahid: I agree, but …

Raja Rozela then cut him off and said “thank you very much”, to which Zahid replied sarcastically: “Thank you to you too.”

Raja Rozela then warned Zahid to be careful as he was addressing an officer of the court. 

As part of the proceedings, on Aug 1, 2022, Sequerah spent almost two hours viewing two bungalows at Country Heights, Kajang, Selangor, that were purportedly purchased with RM5.9 million of Yayasan Akalbudi’s funds. Zahid had testified that the purchase of the two properties was supervised by lawyer B Muralidharan of Messrs Lewis & Co.

According to him, he had decided to purchase the two properties that were offered by Country Heights developer Tan Sri Lim Kim Yew, as Lim was in need of money at the time.

This was purportedly to show that he did not purchase the bungalows for his personal gain.

Postponements of the trial that led to the DNAA

When the trial was slated to continue in January this year, for reasons unknown to the public and media, the court was informed that the prosecution intended to cancel the January dates and to resume the trial in April.

On April 10, when the trial was to resume, Zahid’s lawyer Hamidi Mohd Noh informed Sequerah of the representation letters, which have “new facts and new evidence” related to the charges against Zahid.

Strangely, although Raja Rozela was in attendance, DPP Abdul Malik Ayob had then addressed Sequerah, telling him that he had instructions from the attorney-general not to object to the application.

When the trial continued on Aug 1, Raja Rozela was notably absent, replaced by Dusuki. She remained tight-lipped about her absence and it was only on Aug 8 that the then AG Tan Sri Idrus Harun released a statement that Raja Rozela had opted for early retirement and that she had requested leave from Aug 30 onwards before her actual retirement date of Nov 1.

The trial then went on with Zahid’s defence witnesses testifying to his character and how he was a charitable man who was always very giving.

Almost a month to the date of Idrus’ statement, Zahid was granted a DNAA with Sequerah remarking that it would be a “waste of judicial time and taxpayers’ money” if Zahid were not charged again.

Zahid’s lawyers are currently seeking to appeal Sequerah’s decision to grant the DNAA and also seeking a full acquittal in the Court of Appeal.

Many quarters have said the application for the DNAA has, ironically, only served to mar the reputations of both the AGC and MACC.

In a statement, the Malaysian Bar Council pointed out that the AGC had applied for the DNAA “at such a late juncture” after a prima facie case had already been established by the previous lead DPP.

Anwar’s protestations of non-interference in the AGC also ring hollow in the face of public disappointment and disillusionment at the timing of the DNAA, which comes ahead of an impending by-election for a parliamentary and state seat in Johor.

That Anwar’s unity government needs the continued backing of Zahid as Umno president and the party’s  seats in parliament to demonstrate that his administration is stable, are but given assumptions. Barisan Nasional has 30 seats in parliament under Zahid.

Sequerah may have accepted the prosecution’s “cogent reasons” for the DNAA — he had little option given that it said it would not be carrying on with the case — but the public will need more convincing.

Of the 47 charges against Zahid, 27 were for money laundering (RM72 million), eight for bribery (accepting 21.25 million) and 12 for criminal breach of trust (RM31 million in charity funds). 

 

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