KUALA LUMPUR: The High Court in Kuala Lumpur was told that the verdict by the Sessions Court judge, instructing Kinabatangan Member of Parliament Datuk Seri Bung Moktar Radin and his wife, Datin Seri Zizie Izette Abdul Samad, to present their defence against three corruption charges, was both incorrect and unjust.
Counsel M. Athimulan, representing Bung Moktar, argued that none of the three charges provided any evidence suggesting that his client had received any form of gratification from Madhi Abdul Hamid, an investment agent with Public Mutual Bhd (the 24th prosecution witness), or Norhaili Ahmad Mokhtar, a Unit Amanah consultant (PW25).
"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 demonstrates that Zizie Izette transferred that money to her husband. Even the learned deputy public prosecutor cross-examined their own material witness (PW24), treating them as hostile," he said.
This statement was made while submitting the couple's applications for a revision against the Sessions Court's decision, which mandated them to mount a defence against corruption charges amounting to RM2.8 million, related to a RM150 million investment in Public Mutual Bhd unit trusts.
Athimulan also contended that the factual findings concerning the essential element of gratification under Section 17(a) of the Malaysian Anti-Corruption Commission Act (MACC) made by the Sessions Court were in violation of the law. He maintained that the finding of prima facie evidence, indicating that every element of Section 17(a) of the MACC had been proven, was clearly unjust (lacking legal evidence to substantiate) and contrary to established legal principles.
"We further contend that when the finding is not based on the evidence on record and is proven to be erroneous from the record itself, it results in significant injustice and a miscarriage of justice for the applicants. The Sessions Court judge's findings against both applicants are fundamentally misconceived and non-compliant with legal provisions.
"The findings are 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 additionally maintained that the Sessions Court judge had erred in her interpretation and application of Section 50(1) of the MACC, specifically regarding the mandatory presumption against Bung Moktar.
Defence counsel M. Athimulan asserted that the prosecution had failed to prove that the accused had received gratification from PW24 and PW25, thus lacking affirmative evidence to establish this primary fact.
Consequently, he argued that since the element of "received gratification" under Section 17(a) of the Malaysian Anti-Corruption Commission Act (MACC) had not been affirmatively proven, the statutory presumption under Section 50(1) of MACC was inapplicable and could not be invoked under the law.
Furthermore, Athimulan contended that the Sessions Court judge's use of Section 50(1) of MACC shifted the burden of proof to the accused to rebut the presumed facts based on the balance of probabilities. He emphasised that this kind of error and irregularity, if left uncorrected, would render the accused's trial unfair and could potentially lead to a conviction if the accused chose to exercise their right to remain silent under Section 173(h) of the Criminal Procedure Code (CPC).
Additionally, Lawyer Datuk K. Kumaraendran, representing Zizie Izette, adopted Athimulan's submission.
Meanwhile, Deputy Public Prosecutor Law Chin How argued that the applicants had not been convicted or found guilty of the respective charges at this point since the trial had not concluded. He asserted that the applicants would have the opportunity to defend themselves at the end of the trial if it commenced expeditiously, without the need for a revision at this stage.
Law further said that challenging the prima facie ruling amounted to an abuse of the court process and maintained that the applicants' right to a fair hearing was preserved since they had not yet testified in their defence.
He raised the question of whether revisionary power should be exercised against the Sessions Court judge's prima facie ruling, citing Section 325 of the CPC, which grants the High Court the power of revision, requiring the High Court to assess the correctness, legality, or propriety of any finding, sentence or order recorded or passed by the subordinate court.
On Sept 2 of last year, Sessions Court judge Rozina Ayob had ordered Bung Mokhtar and Zizie Izette to enter their defence on all three corruption charges. This decision prompted them to file revision applications in the High Court against the Sessions Court's ruling.