KUALA LUMPUR (Oct 24): Former Penang chief minister Lim Guan Eng's lawyers have formally informed the Sessions Court of their intention to impeach key witness Datuk Zarul Ahmad Mohd Zulkifli over his testimony in the trial. Lim's lawyers are seeking a court order for the prosecution to supply them with Zarul's statements recorded in both the Shah Alam and current KL trial.
The Shah Alam matter involves businessman G Gnanaraja, who was previously accused of three counts of cheating Consortium Zenith Construction Sdn Bhd (CZCSB) senior director, Zarul Ahmad.
Gnanaraja pleaded guilty and was fined RM230,000 to an alternative charge under the Companies Act 2016, while the KL matter centres on Lim’s graft trial.
Lim’s counsel Gobind Singh Deo told Sessions Court judge Azura Alwi that the defence was making the application under Section 145 and 155 of the Evidence Act, with the intention of securing the documents based "on a hunch" as to what Zarul Ahmad had said.
In the Shah Alam trial, a former CZCSB director Ibrahim Sahari told the court that the RM2 million was to be paid to Najib.
However, in Lim’s trial, two witnesses, namely a former director and a former vice president of CZCSB, told the court that the money was for Lim.
On Monday, Zarul Ahmad testified under cross-examination by Gobind that on Aug 17, he retrieved RM2 million from his safe and that the money was given to Najib. He also said that a Public Bank cheque in question for RM2 million was cashed out on the same day, with the money meant for Lim.
Zarul, 62, said he had rectified in his witness statement to what he testified under cross-examination.
Gobind contended that the defence was entitled to get the documents under the two sections of the Evidence Act based on a hunch that Zarul Ahmad may have not been telling the truth following different testimonies at the Shah Alam and KL courts.
“We (the defence) want to look at the purported rectification made by the witness as he changed something from what it was before to something else,” the counsel said, pointing to the contradictions.
He also cited the court’s recording of Zarul Ahmad’s testimony on Monday to highlight the discrepancy, as initially from the testimonies of witnesses in the Shah Alam and KL trial, there was only a RM2 million payment in question.
However, from Zarul Ahmad’s testimony Monday, it was revealed that the sum was not actually RM2 million but RM4 million that was passed to Gnanaraja, namely RM2 million from the CZCSB senior director’s safe to Najib, and another RM2 million from a company cheque that was cashed, and which he claimed was given to Lim.
Gobind said the defence has fulfilled the requirements under Sections 145 and 155 of the Evidence Act, for the statements taken from Zarul Ahmad to be produced to the defence, for them to consider in instituting impeachment proceedings.
Prosecution says defence application premature
The prosecution led by DPP Datuk Wan Shaharuddin Wan Laden said that it was premature for the defence to make the application, as it did not fulfil Section 51 of the Evidence Act for the discovery of documents.
He further questioned what if the documents produced entirely proved the truth in Zarul Ahmad’s statement that there was rectification.
Wan Shaharuddin added there was no basis for the defence to make the application and that the defence counsel should have cross-examined Zarul Ahmad further on what rectification had been made, as well as when and how it was made.
“The prosecution here says that from the cross-examination conducted yesterday, the defence had not properly cross-examined the witness to highlight the contradictions as alleged to satisfy the production of the documents,” he added.
Another DPP Mahadi Abdul Jumaat said that in any discovery application of documents, the applicant must show the two tests of relevancy and material discrepancy to seek the documents and here, the prosecution said the defence have not shown they fulfilled the two tests for the documents to be provided.
“Hence, the prosecution says this application by the defence should not be entertained and be dismissed."
Gobind, in reply, said the prosecution had only been submitting on the issue of Section 51 but had not addressed the application made under Sections 145 and 155 of the Evidence Act to possibly impeach this witness.
“There is material contradiction and the prosecution also concedes there was rectification. Hence, the defence should be provided with the documents,” he added.
Azura said that she needed time to decide on the matter and also read the written submissions which had been provided to the court on Tuesday.
She fixed Nov 2 to deliver her decision on the application.
Lim, 62, Member of Parliament for Bagan, is accused of using his position as then Penang chief minister to solicit a 10% cut in the RM6.3 billion undersea tunnel project’s profits from Zarul, in return for aiding the businessman’s company to secure the project.
Lim, who is also DAP chairman, is accused of accepting RM3.3 million in kickbacks from Zarul Ahmad. Part of the RM2 million in question concerns part of the RM3.3 million.
He also faces two counts of dishonest misappropriation of property in releasing two plots of state-owned land, cumulatively worth RM208.75 million, to Ewein Zenith Sdn Bhd and Zenith Urban Development Sdn Bhd — two property companies linked to the controversial undersea tunnel project.