Lawyer: Zahid has ‘immunity’ for 46 out of 47 charges after giving MACC info, shouldn’t have been prosecuted

KUALA LUMPUR, Sept 6 — Former deputy prime minister Datuk Seri Ahmad Zahid Hamidi has “immunity” under the law over 46 of the 47 criminal charges that he is facing in a trial now, due to protection given in a now-repealed law to those who provide information to the Malaysian Anti-Corruption Commission (MACC), his lawyer argued in court today.

Zahid’s lead defence lawyer Hisyam Teh Poh Teik told the High Court this while presenting arguments to say that the prosecution had failed to prove a prima facie case against his client.

Previously, the prosecution had presented 99 prosecution witnesses who testified in court in relation to the 47 charges that Zahid is facing, and rested its case.

Today was the first day of submissions at the close of the prosecution’s case, where the prosecution and Zahid’s lawyers would be presenting their final arguments over several days before the court decides whether there is a prima facie case.

If a prima facie case is proven, it means there would be a case for Zahid to answer and defend. If a prima facie case is not proven by the prosecution, it would mean that Zahid can be acquitted of the charges.

Today, Hisyam argued that Malaysian Anti-Corruption Commission (MACC) Act’s Section 30(7) grants Zahid immunity from 46 of the 47 charges, as the latter had disclosed information to the MACC.

Section 30(7) was repealed in October 2018 but was still in force on July 2, 2018 and July 3, 2018 when Zahid spoke to and had his statements recorded by the MACC, Hisyam said.

Under Section 30(7), it generally stated that any person who discloses any information shall not be prosecuted due to the disclosing of such information, except for the offence under Section 27 of the MACC Act of making a false or misleading statement.

Hisyam said that the 89th prosecution witness and MACC investigating officer Fairul Rafiq Hamirudin had confirmed that Zahid was not charged under Section 27 for giving untrue information.

Hisyam also said that Zahid’s two statements to the MACC in July 2018 were recorded under Section 30(3)(b), which requires the disclosure of all information within one’s knowledge and to answer truthfully and not refuse to answer any question on the ground that it tends to be self-incriminating or incriminating of one’s spouse.

The giving of truthful information to the MACC would trigger the immunity from prosecution granted under Section 30(7), Hisyam said.

“Applying Section 30(7) to the case, it is our respectful submission that the accused cannot be prosecuted for 46 of the 47 charges. These charges are all of the 12 criminal breach of trust charges, in respect of the MACC Act, seven out of eight MACC charges are under immunity and the AMLA (Anti-Money Laundering Act), all 27 charges,” he said, referring to Zahid who is the accused in this case.

Hisyam said everything that Zahid told the MACC as recorded in the two statements to the MACC are “information” that falls under the immunity-granting Section 30(7), including information that Yayasan Akalbudi’s funds mainly came from him, information that he as a trustee had subsequently became the sole signatory of charitable organisation Yayasan Akalbudi’s bank account and information that this foundation had obtained millions of ringgit of “donations” from friends from the corporate world, companies, businessmen and various individuals.

For all 12 criminal breach of trust charges involving the use of Yayasan Akalbudi’s funds from 2014 to 2016, Hisyam argued that Zahid has immunity for all the Yayasan Akalbudi cheques which bore his signature — whether these were signed or stamped — as he did give information that he was the sole single signatory and the only one who could sign on these cheques.

For the 27 money-laundering charges, Hisyam similarly argued that Zahid also has immunity as he had in his statement to the MACC also gave information on where Yayasan Akalbudi’s funds came from, namely initially from him and subsequently from contributions or donations from friends and donors including both corporate bodies and individuals.

A total of 25 of the money-laundering charges involve Zahid’s alleged instructions to a lawyer to use such funds that were placed in a law firm’s clients account into fixed deposit accounts to earn interest, while one of the money-laundering charges involved the use of purported RM5.9 million in donations to buy two bungalow lots, while the final one involves alleged instruction to a money-changer to convert RM7.5 million into 35 pieces of cheque to be given the same law firm.

As for why Zahid should be immune from being charged with seven of the eight corruption charges under the MACC Act, Hisyam said this was based on Zahid’s statement to the MACC that he received “contributions and donations” from both individual and corporate donors, and as prosecution witnesses had testified to the court that the money given to Yayasan Akalbudi was for “charitable donations”.

Hisyam conceded however that Zahid does not have immunity from prosecution for one single charge relating to corruption, as the witness said a RM1 million sum was a “political donation” to the deputy prime minister (Zahid’s then role), while Zahid had not mentioned receiving “political donation” in his July 2018 statement to the MACC.

Apart from this charge, Hisyam applied to the court for a “permanent stay” on the 46 other charges which he said Zahid has immunity from being prosecuted.

“My Lord can rule at the end of the case to say there’s no prima facie case on these charges,” he said.

High Court judge Collin Lawrence Sequerah then interjected at this point to ask “who then shall be prosecuted”.

“This Section (Section 30(7)) granted immunity, at the time it was in force, who could be prosecuted under the Act?” the judge asked.

Hisyam then maintained that an accused person who gave evidence under Section 30(3)(b) cannot be prosecuted, saying that those who could be prosecuted would usually be those who had given their statement to the MACC under Section 53 instead of Section 30 of the Act, and that it applies to any offences and not just offences under the MACC Act.

Earlier, Hisyam also said the MACC should have known that Section 53 involves a statement by an accused to the MACC and Section 30 involves information disclosure usually used by witnesses, and should have known that recording Zahid’s statement under Section 30 would trigger the immunity protection under Section 30(7).

Hisyam also said that the law allows the accused to take advantage of any mistakes made during investigations and any errors made by the prosecution during a trial.  

Zahid’s trial resumes tomorrow morning.

Malaymail