PUTRAJAYA (March 6): A three member Court of Appeal bench on Wednesday has allowed former Federal Land Development Authority (Felda) chairman Tan Sri Mohd Isa Abdul Samad’s appeal over his conviction and sentence on nine counts of graft with regard to the acquisition of a hotel in Kuching, Sarawak, 10 years ago.
The bench, led by Datuk Vazeer Alam Mydin Meera, that also comprised Datuk Ahmad Zaidi Ibrahim and Datuk SM Komathy Suppiah, unanimously allowed the former Negeri Sembilan menteri besar’s appeal.
“The High Court judge had misdirected himself with regard to the decision and hence, the conviction is unsafe.
Vazeer said there are two versions of the purported money being given, and the benefit of the doubt should be given to the appellant.
“Hence, the conviction is unsafe and the conviction and sentence is set-aside,” Vazeer said.
Mohd Isa, 73, was found guilty by the High Court on Feb 3, 2021 on nine bribery charges amounting to RM3.09 million in Felda's acquisition of the Merdeka Palace Hotel & Suites in Kuching, Sarawak between July 21, 2014 and Dec 11, 2015, where the offence took place on the 49th floor of Menara Felda, Platinum Park, No 11, Persiaran KLCC, Kuala Lumpur.
Following this, he was sentenced by then High Court judge Datuk Mohd Nazlan Mohd Ghazali (now Court of Appeal judge) to a six-year jail sentence and RM15.45 million fine, or in default, another 18 years' jail, for being found guilty of nine counts of graft.
When met after the decision, Mohd Isa thanked God for the appellate court decision after a six-year struggle with this case and said he may consider returning back to politics.
Deputy Public Prosecutor Afzainizam Abdul Aziz said he would brief the Attorney General over Wednesday’s decision and decide on whether to file an appeal. Mohd Isa was represented by Datuk Salehuddin Saidin and Siti Sarah Khalil.
The prosecution has 14 days from Wednesday to file the appeal.
Three elements of graft have to be proven
Vazeer, in his grounds, said there are three elements to be proven under Section 16 of the MACC Act in a graft case, namely the accused or through others had received gratification from Ikhwan Zaidel, a director of Gegasan Abadi Properties Sdn Bhd (GAPSB) that owned the hotel; the acceptance by Mohd Isa of the said bribes for his assistance; and that the acceptance of bribes by Mohd Isa is corrupt.
Hence, Vazeer said it was incumbent for the prosecution to prove that Mohd Isa directed his former aide Zahid Md Arip to ask for the bribe and that he received it from Ikhwan.
It is to be noted that Zahid had contested against former prime minister Datuk Seri Najib Razak in Pekan in 2018 under the Parti Pribumi Bersatu Malaysia ticket but lost, although he was later appointed a senator.
In this case, Vazeer said the evidence shows that the Felda Investment Corporation Sdn Bhd (FICSB) board, of which Mohd Isa is also a director, had approved the acquisition, and the management had asked to negotiate the sum, and the decision was done collectively.
Vazeer said the High Court should look at Ikhwan’s evidence in his first meeting with Mohd Isa, who said that any approval to the acquisition of the hotel depends on the decision by the FICSB board and that Zahid was not present then.
“(Mohd) Isa also said to Ikhwan that he (Mohd Isa) can only assist but cannot make any promises, as it depended on the board,” Vazeer said.
The appellate court noted that the purported bribes were allegedly given after the approval of the FICSB board but in this case, there is no credible evidence produced that Mohd Isa instructed Zahid to seek the bribe from Ikhwan following approval of the purchase of the hotel for RM160 million, as the event (approval) was already gained.
Vazeer added that in this case, Zahid testifying that Mohd Isa told him “whatever they (Ikhwan) give, you receive it” cannot be construed as a directive to demand for a bribe.
“Zahid also testified that he had used the word salam (greetings) from (Mohd) Isa to Ikhwan, which had triggered the payments made to the appellant (Mohd Isa). However, there is no credible evidence [that] there was such an understanding between (Mohd) Isa and Zahid, and Zahid gave contradictory evidence in this,” Vazeer said.
“Zahid, during the cross-examination, admitted that (Mohd) Isa did not give salam greetings to denote (the greetings) as a signal before any transactions (bribe). The appellate bench noted that the material contradictions regarding this crucial issue were not properly evaluated by the trial judge,” Vazeer said.
The High Court judge, Vazeer said, should have evaluated this evidence to examine the credibility, consistency and accuracy of Zahid’s testimony.
“We (the appellate court) find the High Court’s findings over the demand of payment by (Mohd) Isa through Zahid, and that Ikhwan had made the nine payments [through] Zahid to (Mohd) Isa is not borne out of credible evidence,” he said, adding that the evidence shows Ikhwan made the payments to Zahid but there is no evidence that (Mohd) Isa had received them.
The appellate court, Vazeer said, noticed that the prosecution had provided two different narratives to the case, namely that Mohd Isa had sought the payments to approve the purchase and then later, changed it (the narrative) to seeking an inducement so as not to interfere in the purchase.
“The prosecution cannot change the goalpost at the midstream. They must keep the particulars stated in the charges stand,” he said, adding that the bench ruled that Mohd Isa’s call for defence should not have been called in the first place.
“The bench found there are merits in the appeal that warranted appellate intervention and the conviction is not safe. Hence, the bench discharges and acquits the appellant,” Vazeer said.