KUALA LUMPUR: The High Court here was told that the findings of the Sessions Court judge to order Kinabatangan Member of Parliament Datuk Seri Bung Moktar Radin and his wife Datin Seri Zizie Izette Abdul Samad to enter their defence on three corruption charges were incorrect and perverse.
Counsel M. Athimulan representing Bung Moktar submitted that none of the three charges showing his client had obtained gratification from Public Mutual Berhad’s investment agent Madhi Abdul Hamid (24th prosecution witness) and Unit Amanah consultant Norhaili Ahmad Mokhtar (PW25) were brought in as evidence.
“In our case, none of the evidence from the two witnesses stated that they gave money to Bung Moktar through Zizie Izette and also there is no evidence from Zizie Izette or from anyone that the money received by the woman was received on behalf of Bung Moktar.
“No evidence showed that Zizie Izette handed over that money to her husband. The learned deputy public prosecutor cross-examined their own material witness (PW24) who was treated as hostile,” he said.
The counsel said this when submitted the couple’s applications for a revision against the Sessions Court’s decision which ordered them to enter their defence on the corruption charges amounting to RM2.8 million involving a RM150 million investment in Public Mutual Berhad unit trust.
Athimulan also submitted that the findings of facts as to the essential element of receipt of gratification under Section 17(a) of the Malaysian Anti-Corruption Commission Act (MACC) recorded by the Sessions Court were not according to law.
He said the findings of prima facie evidence holding that every element of Section 17(a) of MACC was proved, is clearly perverse (no legal evidence to support) and has been arrived at contrary to the established principle of law.
“We further submit that where the finding is not based upon the evidence on record and is proved to be wrong from the record itself, substantial injustice and miscarriage of justice has been caused to the applicants. The findings of the Sessions Court judge against both applicants are found to be entirely misconceived and non-compliance with the provision of law.
“The finding is not legal and regular. Incorrect application of the law warrants interference by the High Court by the use of revisionary jurisdiction. We submit that the decision of calling for defence is not according to law and suffers from illegality and incorrectness,” he said.
Athimulan further submitted that the Sessions Court judge was incorrect in her application of Section 50(1) of MACC of mandatory presumption against Bung Moktar.
“The prosecution had failed to prove the primary fact that the accused in fact did receive the gratification from PW24 and PW25. There is no affirmative evidence to prove the prime fact.
“Since there was a failure to prove affirmatively the element of ‘received gratification’ under Section 17(a) of MACC, the statutory presumption under Section 50(1) of MACC is not applicable and cannot be invoked in law,” he added.
The counsel also contended that the use of Section 50(1) of MACC by the Sessions Court judge, shifted the burden of proof rebutting on balance of probabilities as to the presumed facts.
“The invocation of presumption under Section 50(1) of MACC and shifting the burden on the accused is fundamental to the proper assessment of defence advanced by the accused at the trial.
“An error and irregularity of this kind, if left uncorrected would render the accused’s trial unfair. It would also condemn the accused to suffer a conviction if he exercised his right to remain silent under Section 173(h) of the Criminal Procedure Code (CPC),” he added.
Lawyer Datuk K. Kumaraendran representing Zizie Izette told the court that he adopted the submission by Athimulan.
Meanwhile, Deputy Public Prosecutor Law Chin How submitted that the applicants are not convicted and found guilty of the respective indictment at this juncture as the trial is yet to be concluded.
Law said the applicants are afforded the earliest opportunity to vindicate themselves swiftly at the end of the trial should the trial of the defence commence expeditiously without having the revision at this juncture.
He said the challenge of the prima facie ruling is equivalent to the abuse of the court process whereby the right of hearing of the applicants is kept intact as the applicants are yet to testify for the defence.
“The applicants attempt to vex the prosecution case for a second time over a similar subject matter by way of revision through this court to relitigate and re-evaluate the entire evidence that was being decided by the trial court at the prima facie stage.
“There is one crucial question that we intend to raise before this Court that whether a revisionary power ought to be exercised at this avenue against the prima facie ruling of the Sessions Court judge.
“Section 325 of CPC confers this court the power of revision which must read in line with Section 323 of the same code where the High Court must satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of that subordinate Court after the High Court examines the record of proceeding of the inferior court,” he said.
On Sept 2 last year, Sessions Court judge Rozina Ayob ordered Bung Mokhtar and Zizie Izette to enter their defence on all three corruption charges. This prompted them to file revision applications in the High Court against the Sessions Court’s ruling.-Bernama