PUTRAJAYA (May 6): Former prime minister Tan Sri Muhyiddin Yassin's four graft charges, which were reinstated by the Court of Appeal in February, had met all the ingredients of an offence under stipulated laws, and were not ambiguous.
In a 32-page written judgment that was released on Monday, the three-member COA bench also ruled that Section 3 of the Malaysian Anti-Corruption Commission (MACC) Act 2009 said an "associate", as termed in Muhyiddin’s charges, represents a political society or even a non-governmental organisation (NGO) and is not limited to companies.
Judge Datuk Hadhariah Syed Ismail, who wrote the unanimous decision, said the panel agreed with the prosecution’s argument that in the MACC Act, there is a specific Section 17 to describe commercial organisations (company or partnership). And if Section 3(c) is meant to only refer to commercial organisations, that would mean an organisation that does not carry business, such as an NGO, that receives gratification cannot be charged under Section 23 for abuse of power.
“This could not have been the intention of the Parliament. We agree with the appellant’s (prosecution’s) contention that the word "affairs" in Section 3(c) of the Act is clear and plain, and should be given its ordinary meaning, and therefore, the principle of noscitur a sociss (an unclear or ambiguous word in statute) has no application.
“It is observed the High Court judge did not make any finding on the maxis noscitor a sociss,” Hadhariah said, ruling that High Court judge Datuk Muhammad Jamil Hussin had erred in his decision to strike out the charges.
The defence had argued that the charges were made under Section 23 of the MACC Act where the term "associate" only refers to business organisations. Subsection (1) of Section 23 of the MACC Act stipulates that an officer of a public body shall be presumed, until the contrary is proved, to use his office or position for any gratification, whether for himself, his relative, or associate, when he makes a decision or takes any action in which such officer, or his relative or associate of his, has an interest, whether directly or indirectly.
The prosecution argued that the word "associate" includes a society and is synonymous with organisations where Parti Pribumi Bersatu Malaysia (Bersatu) is considered an organisation within the meaning of Section 3(c) of the MACC Act.
Charges not ambiguous
Hadhariah, who had sat with Datuk Azmi Ariffin and Datuk SM Komathy Suppiah, also said the charges levelled against the Pagoh Member of Parliament were not ambiguous, as claimed by the High Court judge.
The High Court judge had said it was not stated in each of the four charges whether Muhyiddin “made any decision” or “took any action” for gratification, and hence the judge claimed the prosecution did not state any offence.
The COA found that the respondent (Muhyiddin) was an officer of a public body at the time, and that he had used his position to obtain gratification and used the gratification for himself, his relative, or associate.
“This court agrees with the prosecution that the manner in which the offence was committed is not an ingredient of the offence. In other words, Section 23(1) (under which Muhyiddin is charged) does not require the prosecution to state in each charge whether he 'made any decision' or 'took any action' for gratification.
“We also agree with the prosecution that how the offence was committed relates to particulars of the offence, and evidence will be adduced at the trial to show its occurrence. Therefore, we are clear that the error or omission on the part of the appellant to state in each of the four charges whether Muhyiddin made any decision or took any action is not an error in stating the ingredients of the offence or an error in stating the particulars of the offence,” she said.
Hadhariah also said that the High Court judge had failed to make a finding as to whether the error here was in stating the ingredients of the offence or an error in stating the particulars of the offence.
She then cited a Federal Court decision and ruled that the High Court judge had erred, as the ingredients in the charges had been met, namely, that Muhyiddin had been charged in his capacity as Prime Minister and Bersatu president; allegations of how he used his position; there is mention of gratification; and the associate here refers to Bersatu.
“As all the ingredients of an offence under Section 23(2) have been stated, in our view, the charges are clear and unambiguous. In our opinion, the particulars contained in each of the four charges were sufficient to give Muhyiddin notice of the matter with which he was charged.
“Muhyiddin was not misled in any manner whatsoever merely because of the lack of particulars. As such, there was no necessity on the prosecution to set out the manner or give further particulars as to how the offence was committed,” the COA judge added.
She also said the court must be more liberal in interpreting the word "organisation" to include society, club, partnership, or association, and to limit the interpretation as argued by Muhyiddin’s lawyers, as it would defeat the purpose of the MACC Act.
“In our view, given the ordinary meaning of 'organisation' is a group formed for a particular purpose, [and] as society is also a group formed for a particular purpose; hence, society would fall within the definition of organisation. It follows that Bersatu, a political society, comes within the definition of associate as defined under Section 3(c) of the MACC Act,” Hadhariah said.
Muhyiddin has applied for a review of the COA decision, and the matter has been fixed for July 9. The court also allowed his application for a five-member bench to hear his review.
The 76-year-old Bersatu president and Perikatan Nasional chairman was charged with using his position as then prime minister to obtain bribes amounting to RM232.5 million from three companies, namely Bukhary Equity Sdn Bhd, Nepturis Sdn Bhd and Mamfor Sdn Bhd, and one Datuk Azman Yusoff for the party.
Muhyiddin is accused of committing the act at the Prime Minister's Office, Bangunan Perdana Putra in Putrajaya, between March 1, 2020, and Aug 20, 2021.
He also faces two charges of receiving money from illegal activities amounting to RM195 million from Bukhary Equity which was deposited into Bersatu's CIMB Bank account.
He allegedly committed the offence at CIMB Bank Menara KL Branch, Jalan Stesen Sentral, Kuala Lumpur Sentral, between Feb 25 and July 16, 2021, and between Feb 8 and July 8, 2022.