KUALA LUMPUR, Sept 7 — Former deputy prime minister Datuk Seri Ahmad Zahid Hamidi was honestly mistaken in his thought that money from charity Yayasan Akalbudi — which he is a trustee of — could be used for other purposes such as personal reasons if it was repaid, his lawyer said in court today.
Zahid’s lead defence lawyer Hisyam Teh Poh Teik said that this honest mistaken belief was due to what his client said was advice from the law firm Lewis & Co.
Hisyam said that this information was given by Zahid to the Malaysian Anti-Corruption Commission (MACC) in July 2018 when his statement was recorded, further claiming that this would mean that Zahid has “immunity” from being prosecuted for criminal breach of trust over Yayasan Akalbudi’s funds.
Hisyam was presenting arguments in the High Court to say why his client should not continue to face criminal charges in this case, including arguments that there was “immunity” from prosecution over information that his client had truthfully told the MACC under a law that is now repealed but in force then.
In this trial, Zahid is facing 47 charges, including 12 criminal breach of trust charges relating to the use of millions of ringgit to pay for other matters such as his and his wife’s credit card bills, vehicles’ road tax and vehicle insurance.
Today, Hisyam zeroed in on three “killer” questions and answers in Bahasa Malaysia when Zahid’s statement was recorded by the MACC in July 2018, reading out these in court.
The first question asked by the MACC was, “Could the monies entrusted to Yayasan Akalbudi be used for activities that are not stated in its objects of the foundation?”
The answer given by Zahid to the MACC then was: “I am aware that funds withdrawn from the Yayasan must be in accordance with its permitted trust deed constitution. Nevertheless, it would be permissible, upon certain consideration on the advice of its lawyers (Lewis & Co) provided that the profits from its investments or repayments are made.”
“This is the defence of honest mistake. ‘I’m made to understand I can take the money out and put back, on the advice of lawyer,” Hisyam said in describing what this means.
Hisyam confirmed to the judge that the 87th prosecution witness, law firm Lewis & Co’s partner Muralidharan Balan Pillai was asked previously during the trial about this purported advice and that the latter had disagreed.
Hisyam then went on to read the two other “killer” questions asked by the MACC.
The second question was whether the funds from Yayasan Akalbudi can be used for “personal, family or political purposes”, with Zahid’s reply to the MACC in July 2018 recorded as him saying that: “It cannot be used for those purposes, but on lawyer’s (Lewis & Co) advice, upon certain consideration some latitude could be allowed so long the funds are paid back.”
And for the third question of whether it is an offence for the board of trustees to use the foundation’s funds for personal purposes, Zahid was recorded as telling MACC: “True, it is an offence but on lawyer’s advice (Lewis & Co) some latitude is allowed if the funds are repaid.”
Hisyam concluded by arguing that the disclosure by Zahid of such information to the MACC grants him immunity from being prosecuted for criminal breach of trust, based on the immunity under Section 30(7) of the Malaysian Anti-Corruption Commission (MACC) Act — repealed in October 2018 but still in force in July 2018.
“What is the immediate effect of the information given by the accused in the questions and answers? These are questions asked by the MACC officer, and these are answers given by the accused. So the effect would be the accused is granted immunity of all the 12 criminal breach of trust charges,” Hisyam said, referring to the 12 CBT charges where the prosecution is alleging that Yayasan Akalbudi’s funds were not applied according to the charitable foundation’s objects and were used for personal, family or political purposes.
Previously, the High Court had in this trial heard that Yayasan Akalbudi is a company registered with the Companies Commission of Malaysia.
The High Court had previously also heard that Yayasan Akalbudi’s company constitution had stated its objective to be for the receiving and administering of funds to eradicate poverty and the improvement of the poor’s welfare and research on poverty eradication programmes.
Among other things, Hisyam today argued that the defence’s argument of “immunity” from prosecution for Zahid is a credible argument.
Hisyam asserted that the MACC had made a “mistake” or “error” when it recorded Zahid’s statement in July 2018 under Section 30(3) which triggers the Section 30(7) immunity for those who disclosed information truthfully to the MACC, and that the law allows Zahid as the accused to take advantage of such an error at the investigation stage.
Hisyam said the MACC did not say why it had not chosen to record Zahid’s statement under Section 53 of the MACC Act, which is for statements recorded for accused persons.
“It’s very clear that when recorded under Section 30(3) of that Act, Section 30(7) is triggered, they must realise this, they cannot say ‘I did not know’. So it leaves them no excuse,” he said.
Hisyam also stressed that both the immunity argument and the duty of the prosecution to provide a fair trial are “two points of law” that “must take the driver’s seat”, and suggested that these are more important than Zahid’s case.
“The law at this point is more important than the accused,” he said, stressing on the importance of avoiding a miscarriage of justice.
In this trial, Zahid ― who is a former home minister and currently the Umno president ― is facing 47 charges, namely 12 counts of criminal breach of trust in relation to charitable foundation Yayasan Akalbudi’s funds, 27 counts of money laundering, and eight counts of bribery charges.
A total of 99 prosecution witnesses had previously testified in this trial before the close of the prosecution’s case, with Zahid’s lawyers and the prosecution to now present their final arguments before the court decides if there is a prima facie case against Zahid which would require him to enter defence or if he would be acquitted.
The trial before High Court judge Collin Lawrence Sequerah resumes tomorrow morning.
