KUALA LUMPUR (Feb 27): The High Court (Appellate and Special Powers Division) on Tuesday allowed an application by former finance minister Tun Daim Zainuddin, his wife Toh Puan Na’imah Abdul Khalid, and their children to amend their judicial review application to include quashing the charges of not abiding by the Malaysian Anti-Corruption Commission’s (MACC) notice to declare their assets.
While the Attorney General's Chambers (AGC) did not object to the amendment, they objected to the application to quash the charges faced by Daim and Na’imah separately.
Senior federal counsel (SFC) Liew Horng Bin, who appeared with SFC Shamsul Bolhassan, informed judge Datuk Wan Ahmad Farid Wan Salleh that the application to quash the charges should have been made in the criminal court, and not via a judicial review.
Liew cited the Sundra Rajoo versus AGC and two Datuk Seri Najib Razak cases, which had been decided by the Federal Court.
He said that in the Sundra Rajoo case, the apex court agreed that the application to quash or strike out the charge then should have been made in the criminal court, as the civil court hearing the judicial review application cannot grant a stay of the trial.
Liew also said that in the cases of former prime minister Najib, the Federal Court also ruled similarly that the application for a judicial review to strike out the charges should have been made in the criminal court.
“The apex court also ruled that the application by Najib amounted to a fishing expedition, and hence similarly, we (the AGC) say that the application filed for this judicial review also amounted to a fishing expedition,” he said.
Counsel Mervyn Lai, who represented Daim and Na’imah and appeared with Alicia Gomez, replied that an Australian civil court had allowed the striking out of a criminal charge, and this court should consider doing so.
Lai was asked to make a written submission to reply to what Liew told the court.
Daim and Na’imah are both charged under Section 36(2) of the MACC Act with not abiding by the notice to declare their assets, where the former finance minister is alleged of not declaring 71 assets, while his wife did not declare 12 purported assets.
Amendment filed on Jan 30 after Daim charged
Following the charges levelled against them, Daim and Na’imah on Jan 30 sought to amend the judicial review application they filed with their children, along with their two companies, to include quashing the charges faced by them.
Gomez, from Messrs Tommy Thomas, said the notice and statement that sought the declaration of assets under Section 36(1) are unlawful, and in the event they are declared void and quashed, the predicated offence of non-compliance would similarly be void and quashed.
Gomez said the proposed amendment is necessary for giving further and better particulars to accurately set out the duo's case for a judicial review.
Following Tuesday’s brief hearing, Wan Ahmad Farid directed Lai and Gomez to file their written submissions by Friday, and any other written reply by the same date.
The judge fixed Monday (March 4) to deliver his decision on whether to grant leave to Daim, Na’imah and their family members for the judicial review application.
On Jan 10, Daim, whose real name is Che Abdul Daim Zainuddin, Na’imah and their four children — Asnida, Md Wira, Muhammed Amir Zainuddin and Muhammed Amin Zainuddin — along with their company Ilham Tower Sdn Bhd filed a judicial review application to halt the MACC's investigations, and to quash the freezing of accounts and seizure of Ilham Tower.
For a judicial review, which is normally done ex parte (only in the interest of one side), leave has to be gained before the full merits of the review can be heard to ensure that the application is not frivolous, vexatious, or an abuse of the court process.
The hearing for leave was done on Jan 16, where the AGC opposed the application for leave to lift the freezing of accounts, seizure of Ilham Tower, and to halt the MACC's investigations.