Prosecution changes goal post, presents two conflicting versions of case - Judge
'The prosecution cannot change the goal post midstream.'
KUALA LUMPUR - The Court of Appeal today ruled that the prosecution in Tan Sri Mohd Isa Abdul Samad’s corruption case involving RM3 million over the agency’s purchase of Merdeka Palace Hotel & Suites (MPHS) in Kuching, Sarawak has presented two different narratives of its case.
The three-judge panel, led by Judge Datuk Vazeer Alam Mydin Meera when reading out the judgement stated that in the charges and their opening statement it was stated that the gratification was a reward for helping to approve the purchase of MPHS, and then in the course of trial the narrative was changed to 'inducement' so that Mohd Isa did not interfere with the contract for the purchase of MPHS.
"The question then arises as to which element Section 16(a)(A) MACC Act 2009 was used by the learned trial judge in deciding whether a prima facie case has been established against the appellant (Mohd Isa). Is it one of reward, or is it one of inducement.
"The prosecution cannot change the goal post midstream. They must keep to the particulars stated in the charges as they stand. The charges were amended once but the reason for the gratification stated in the original charges remained the same in the amended charges, and it was as a reward for the appellant in assisting to get the approval for the purchase of the building and not the perceived fear that the appellant would throw a spanner in the works,” he said.
He further said that it was trite law that the appellant must have sufficient notice of the matter with which he is charged as otherwise he will be seriously prejudiced in his defence.
"Further, when two conflicting versions of the prosecution's case are adduced pertaining to the exact purpose of the gratification, the arising ambiguity must be resolved in favour of the appellant," said the judge.
The judge also contended that there was no credible evidence showing the appellant instructing his former special political aide, namely Muhammad Zahid Md Arip to make any monetary demand from former property developer Gegasan Abadi Properties Sdn Bhd board of director Ikhwan Zaidel as gratification for the assistance that the appellant was to render to obtain Felda Investment Corporation Sdn Bhd's (FICSB) approval for the purchase of MPHS.
"Now, the decision to buy MPHS at the price of RM160 million was made in the 10th FICSB Board of Directors meeting on April 29, 2014. However, according to Muhammad Zahid the demand for gratification by the appellant came sometime after that.
"If that was so than it cannot be said that the gratification was for the assistance rendered to obtain the approval of FICSB, as that event has already happened and the appellant's assistance would not be required any further," said the judge.
"We find the trial judge Datuk Mohd Nazlan Mohd Ghazali (now the Court of Appeal judge) had misdirected himself when ruling that a prima facie case had been established based on the evidence of Ikhwan, that his apprehension and fear of the appellant's influence as chairman in the contract completion was the reason why he gave the gratification as satisfying the element of the charges under Section16(a)(A) MACC Act 2009 when the charges themselves stipulate that the gratification was paid as reward for his assistance in obtaining the approval of FICSB for the purchase of MPHS," he said.
"Thus, we find that in the overall, the conviction on all nine charges are not safe. We find that there are merits in the appeal and appellate intervention is warranted. Hence, the appeal against conviction and sentence in respect of all charges is allowed and the order of the High Court is set aside. The appellant is acquitted and discharged," said the judge.
The other judges on the bench were Datuk Ahmad Zaidi Ibrahim and Datuk S.M.Komathy Suppiah.
Isa Samad was charged in 2018 with nine counts of dishonestly receiving gratification for himself, in cash totalling RM3,090,000 from Ikhwan Zaidel, who is a board member of Gegasan Abadi Properties Sdn Bhd (GAPSB), through his former special political officer Muhammad Zahid Md Arip, as gratification for helping to approve the purchase of the hotel by Felda Investment Corporation Sdn Bhd (FICSB) for RM160 million.
The offence was committed on the 49th floor of Menara Felda, Platinum Park, No. 11 Persiaran KLCC, Kuala Lumpur between July 21, 2014 and Dec 11, 2015 under Section 16(a)(A) of the Malaysian Anti-Corruption Commission (MACC) Act 2009, punishable under Section 24(1) of the same law, which provides a jail term of not exceeding 20 years and a fine of at least five times the bribe amount, or RM10,000, whichever is higher, upon conviction. - BERNAMA
