Former finance minister Lim Guan Eng has filed to transfer to the High Court in Kuala Lumpur his corruption case linked to the Penang undersea tunnel project.
However, the prosecution is set to object against the former Penang chief minister's bid to transfer the case, which is slated for full trial before the Kuala Lumpur Sessions Court beginning Tuesday next week.
Deputy public prosecutor Wan Shaharuddin Wan Ladin confirmed that the accused filed the transfer bid, adding that the prosecution would be raising its objection when the application comes up for hearing before the High Court on Monday next week.
According to a copy of the cause papers made available to the media today, Lim is seeking an order to stay the Sessions Court trial pending the disposal of his transfer application in the High Court.
The Bagan MP contended that his graft case needs to be heard by the High Court so that in the event of an appeal, certain legal issues in the case could be brought before the Federal Court.
Under Malaysia’s criminal justice system, a criminal case tried at the Sessions Court can only be appealed up to the Court of Appeal while an appeal for a criminal case heard by the High Court can be appealed all the way up to the Federal Court.
The Air Putih assemblyperson claimed that the High Court is the suitable venue for the graft case as it involves several legal issues, that in the event of an appeal, the matter would be suitable to be heard by the Federal Court.
Among them is the issue of whether an accused needed to disclose his statement of defence to the prosecution before the commencement of a trial, as per Section 62 of the MACC Act 2009.
Lim contended that this was because, in a previous separate appeal involving him, the Court of Appeal had ruled that Section 62 was invalid. The Federal Court later overturned this, ruling that the provision was constitutional.
He noted that the Federal Court gave no written grounds for its judgment on this decision delivered on Dec 14, 2017.
“I verily state that the issue of whether the Federal Court ruling’s consistency with Section 62 of the MACC Act 2009 is an important issue for the purpose of a fair trial of this case,” Lim contended.
He also claimed that the other pertinent legal issue in the case was whether a prosecution witness’ written testimony was a privileged document and whether the prosecution needed to share it with the defence team prior to or during a trial.
Lim was, among others, referring to the witness statement of prosecution witness Zarul Ahmad Mohd Zulkifli, who is a senior executive director of Consortium Zenith Construction Sdn Bhd, the main contractor for the undersea tunnel project.
“I verily state that for the preparation of my case, my lawyers have made an application for the witness statement and submitted that the witness statement is not a privileged document and thus could be applied for by the defence before and/or during trial for certain purposes,” he claimed.
Supreme Court precedent
Lim contended that this similar issue had already been raised in other Court of Appeal cases, such as the ones involving former prime minister Najib Abdul Razak and Indonesian Siti Aisyah.
He claimed that both cases had made reference to the legal precedent established by the 1980 Malaysian Supreme Court case of Husdi versus Public Prosecutor.
In the 1980 ruling, the Supreme Court (predecessor to the Federal Court) ruled that the accused had a common law right to inspect the first information report (FIR or police report) that arose from the duty of the police to inform the accused of the reason for his or her arrest, in order to enable the accused to explain his conduct as alleged in the FIR.
The High Court in Shah Alam had freed Siti Aisyah in 2019. She was one of the accused in the murder of Kim Jong Nam, North Korean leader Kim Jong Un’s estranged half-brother.
Lim faces four graft charges in the Kuala Lumpur Sessions Court.
One charge, framed under Section 16(A)(a) and Section 23 of the MACC Act, accuses him of using his position as then Penang chief minister for the gratification of RM3.3 million as inducement for helping a company belonging to Zarul Ahmad to secure the island state’s RM6.3 million undersea tunnel project.
The offence was allegedly perpetrated at the Penang Chief Minister's Office, 28th Floor, Komtar, George Town, Penang, between January 2011 and August 2017.
Under Section 23 (1) of the MACC Act, the offence is punishable with imprisonment of up to 20 years and a fine not less than five times the value of the gratification or RM10,000, whichever is higher, on conviction.
The second charge, also under Section 16(A)(a), accused Lim, in his capacity as the then Penang chief minister, to have solicited from Zarul bribes amounting to 10 percent of the profits to be earned by the company as gratification for helping secure the project.
The offence was allegedly committed near The Gardens Hotel, Lingkaran Syed Putra, Mid Valley City, Kuala Lumpur, between 12.30am and 2am in March 2011.
The charge, framed under Section 16 of the MACC Act, provides for imprisonment for up to 20 years and a fine of not less than five times the value of the gratification or RM10,000, whichever is higher, upon conviction.
Lim also faces two counts of causing two plots of land, worth RM208.8 million and belonging to the Penang government, to be disposed of to two companies allegedly linked to the undersea tunnel project.
The two charges, framed under Section 403 of the Penal Code, specify imprisonment of up to five years and whipping and a fine if found guilty.
The offences were allegedly committed at the Penang Land and Mines Office, Level 21, Komtar, between Feb 17, 2015, and March 22, 2017. - Mkini
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