Court of Appeal overturns Tengku Adnan’s RM2m corruption conviction in split decision

KUALA LUMPUR, July 16 — The Court of Appeal today set aside the conviction of Tengku Adnan Tengku Mansor on corruption charges.

Justice Datuk Suraya Othman, who was leading the bench, said out of the three judges, she and Datuk Ahmad Nasfy Yasin agreed that Tengku Mansor should be acquitted, while the third judge Datuk Abu Bakar Jais disagreed.

“Our decision is not unanimous. Nasry and I believe this appeal must be allowed while my learned colleague Datuk Abu Bakar dissents,” she said.

“These are not our full grounds but a brief summation of our verdict. We have a majority decision which allows the appeal to set aside the sentence of the trial judge, and therefore, acquit and discharge the appellant and we have a minority decision by Datuk Abu Bakar that dissents.

“So, on that majority decision, we acquit and discharge the appellant of the charge.”

When presenting her reasons for the acquittal, Justice Suraya said High Court Judge Mohamed Zaini Mazlan failed to take into consideration evidence provided by star witness Tan Sri Chai Kin Kong and investigating officer Muhammad Saad Bordani who both said the RM2 million purportedly given to Ku Nan was a political donation.

She said the prosecution also failed to re-examine Chai on this evidence during cross-examination.

“We feel trite and bound by the evidence that Saad Bordani and Chai said the money was indeed for political donations. With respect, we found nowhere in the grounds of the learned High Court judge did he consider this evidence.

“In similar vein no suggestions were made by the prosecution that Chai was dishonest or untruthful, no attempts were made to impeach him nor treat him as a hostile witness. Further, in his grounds for judgment, the learned High Court judge had not directed his mind on the failure of the prosecution to at least re-examine Chai during cross-examination that the money was a political donation for Umno.

“We find that such a failure on such a critical point amounted to a non-direction which rendered the conviction unsafe. In respect to the RM2 million, Chai said he received the receipt on June 16 or 17, 2016. We found that this direct evidence was neither contradicted nor disproved, and therefore, remained unchallenged by the prosecution.

“Thus, the prosecution’s contention that the receipt was only issued in November 2018 after the appellant was arrested and the receipt was a forged document remains unproved,” she said.

Justice Suraya proceeded to read out a part of Justice Mazlan’s verdict where he disregarded Chai’s evidence in respect to the RM2 million receipt, which he insisted was for political donations.

“We are not persuaded by the learned judge’s reasoning. Based on this set of facts, the judge should have adopted an inference in favour of the defence. With respect, we are of the view that the failure on the part of the learned trial judge to consider the foregoing unchallenged direct evidence especially of Tan Sri Chai amounts to serious misdirection which warrants appellate intervention,” she added.

Tengku Adnan, 70, or better known as Ku Nan, filed the appeal on December 21 last year after the Kuala Lumpur High Court, on the same day, sentenced the Putrajaya Member of Parliament to 12 months’ jail and imposed a RM2 million fine on him after finding him guilty.

However, the court allowed Tengku Adnan’s application for a stay of execution of the jail sentence and fine pending his appeal.

Tengku Adnan was charged in his capacity as a public servant, namely Minister of Federal Territories, with having received for himself a total of RM2 million from a businessman, Tan Sri Chai Kin Kong, who is Aset Kayamas Sdn Bhd (AKSB) director, via a Hong Leong Islamic Bank cheque belonging to the company which was deposited into a CIMB account owned by Tadmansori Holdings Sdn Bhd (THSB), which Tengku Adnan has an interest in and is known to AKSB as being related to his official duties.

He was accused of committing the offence at Pusat Bandar Damansara branch of CIMB here on June 14, 2016.

The charge was framed under Section 165 of the Penal Code which provides an imprisonment of up to two years or a fine or both, if convicted.

The defence led by lawyer Datuk Tan Hock Chuan said there were elements in the case that showed Ku Nan did not directly receive any money and argued the RM2 million was for political donations.

The prosecution, however, said all evidence showed that Ku Nan was the majority shareholder in THSB and that the receipts shown in court to justify the RM2 million was dubious at best.

Justice Abu Bakar, who was against the appeal, said Ku Nan had fulfilled the four elements for Section 165 that proves he had taken the RM2 million for his own and was not for his political party Umno.

Abu Bakar said Ku Nan was a public servant, obtained for himself a valuable thing in the form of a cheque worth RM2 million from Tan Sri Chai, had no consideration for the money and that the latter was aware of his capacity as a public servant and his official functions.

“The fact the accused was a public servant cannot be disputed. The second element with relation to payment of RM2 million from Chai, Chai was a director of Aset Kayamas and knew the accused,” he said.

“It could not be disputed that for the second element money is a valuable thing. The money was deposited into Tadmansori, a company of which the accused owns 99.99 per cent of its shares. Practically, the accused owns this company and is also the decision maker of this company.

“I agree with the trial judge finding that the accused had received the cheque for himself and not for political donations for Umno as he asserted. It was not issued to Umno, it was issued to Tadmansori.

“After it went into Tadmansori accounts, there was no evidence Tadmansori paid the amount to Umno. The cheque was for the accused himself and not Umno,” said Abu Bakar.

“For the third element, the prosecution must prove no considerations were given for the RM2 million in this sense the prosecution needs to show the accused gave nothing in return for the money he received.

“The cheque came from Aset Kayamas to Tadmansori. There were no business dealings between these two companies. Tadmansori gave nothing in return to Aset Kayamas and the accused gave nothing to Aset Kayamas hence the third element is proven.

“As for the fourth element, prosecution only needs to show the accused was aware that Chai and Aset Kayamas had connections with his official function as Federal Territories minister. There is no need for the prosecution to show that the accused assisted Aset Kayamas in his official function.

“The accused knew that Aset Kayamas was interested in the affordable housing project and there is evidence Chai met the accused on three occasions regarding this project. For this element, the prosecution need not prove that he obtained the RM2 million in return for a favour to Chai.

“The accused need not do a favour for them. It is sufficient for the accused to know that Chai and Aset Kayamas had a connection with his official function.”

Justice Abu Bakar said since the money went into Tadmansori account, it was self-serving for Ku Nan to say that he requested that Chai deposit the money into Tadmansori’s account instead of Umno’s accounts on the grounds he had used his own money for Umno and this was akin to a reimbursement.

He said Chai stated that the money was for political donations only because Ku Nan told him so and there was no evidence that Ku Nan had used that amount for Umno’s activities.

He said trial Judge Mazlan was correct in not giving much credence to Chai’s assertions.

“The trial judge had also correctly considered the gravity of the offence committed; hence, I would dismiss the appeal and affirm the conviction and sentence against the accused,” he concluded.