PUTRAJAYA (Nov 18): Barisan Nasional (BN) Sabah chief Datuk Seri Bung Moktar Radin and his wife Datin Seri Zizie Izette Abdul Samad must enter their defence in the graft case involving RM2.8 million linked to a Felcra Bhd investment.
The Court of Appeal on Monday overturned the High Court's decision that acquitted and discharged the duo by allowing their revision application.
In a unanimous decision, a three-member panel led by appellate court judge Datuk Ahmad Zaidi Ibrahim, along with judges Datuk Mohamed Zaini Mazlan and Datuk Noorin Badaruddin, said that one cannot appeal a decision to enter defence and that due process of the trial must continue.
Reading out the brief grounds of judgement, Mohamed Zaini said: "It is established law that the accused cannot appeal a decision to call for defence. The court's findings at this stage are not subject to appeal, as if they do not constitute a final resolution of the respondents' rights".
"The due process of the trial must continue, allowing the respondents to present their defence. The respondents’ application is in fact an interlocutory appeal masquerading as a revision application," he said.
He added that the lower court's findings can only be challenged at an appeal after the conclusion of the defence's case.
As such, the matter has been remitted back to the Sessions Court, with the court setting Dec 5 for case management.
This appeal revolves around the Kinabatangan member of Parliament (MP) and his wife's revision exercise over the Sessions Court's decision in Sept 2022 for the duo to enter their defence. Judge Rozina Ayob ruled that the prosecution had established a prima facie case against the duo.
Following that, the husband and wife filed a revision application, with High Court judge Datuk Azhar Abdul Hamid subsequently overturning the lower court's decision, acquitting and discharging the duo.
In his decision, Azhar said that there was no evidence that Public Mutual investment agent Madhi Abdul Hamid and Unit Amanah consultant Norhaili Ahmad Mokhtar, the two star witnesses in the trial, had given money to Bung Moktar through his wife.
'Such applications disrupt trial, must be stopped'
On Monday, the appellate court panel also ruled that the High Court's finding was "premature", as the Sessions Court’s oral decision was brief and not comprehensive.
The panel noted that under existing law, the Sessions Court judge was under no obligation to give any reasons when calling for defence.
"That obligation only arises at the end of the trial.
"They are insufficient material in a brief or a ruling for the High Court judge to revise, assuming that His Lordship has the powers to do so," Mohammed Zaini said.
The panel also cautioned that such applications only disrupt a trial, "creating an insufferable situation" for numerous postponements.
"This will frustrate the progress of trials, wasting precious judicial time and public expense, and must be stopped," Mohammed Zaini said.
In May 2019, Bung Moktar, who was then the non-executive chairman of Felcra, was charged with accepting bribes of RM2.2 million and RM262,500 from Madhi and RM337,500 from Norhaili through Zizie as gratification to obtain Felcra’s approval to make a RM150 million investment in the Public Mutual unit trust.
Zizie faces three abetment charges for the offences committed in 2015.