When ‘Zahid’ met ‘Rosmah’

 

From Ibrahim M Ahmad

The judgment handed down in Ahmad Zahid Hamidi’s corruption trial on Aug 23 sparked an unusual public exchange between two lawyers unconnected with the case.

The debate centred on references made by High Court judge Yazid Mustafa, who heard Zahid’s case, to another recently concluded trial in which Rosmah Mansor was convicted, also on corruption charges.

Those references were made because Rosmah’s case also involved payment of large sums in cash. Two deliveries took place, one involving RM5 million and the other for RM2.5 million.

Rosmah’s lawyer, Akberdin Abdul Kader, said Yazid’s comments were premature as the findings of fact made by the judge in Rosmah’s trial will be re-evaluated when her appeal is heard, as the evidence is being challlenged.

However, Gopal Sri Ram, the ad hoc prosecutor in that case, took a different view, saying the High Court judgment was final despite her pending appeal.

Unless reversed by an appellate court, Rosmah’s case was “capable of being used as precedent,” he said.

Sri Ram’s statement is sound law, but was Yazid correct in his approach?

The doctrine of judicial precedent requires legal principles established by a superior court to be followed in similar cases by courts beneath it in the hierarchy. These are known as binding precedents.

In Malaysia, a Federal Court ruling must be followed by all courts below it, namely the Court of Appeal, all high courts, and all sessions and magistrates’ courts.

However, because they exist on the same tier, a decision of one High Court does not bind another. Instead, it is merely considered “persuasive authority”. This means that a High Court judge may, but is not obliged to, follow legal principles set out by another High Court judge. Rosmah’s case falls into this category.

Thus, Yazid was not obliged to follow any legal principle set out in Rosmah’s case. Anyway, the judge did not cite Rosmah’s case for any legal principle. The question as to whether Yazid was entitled from the standpoint of judicial precedent to cite Rosmah’s case did not arise.

Yazid used Rosmah’s case for a different purpose, namely, as a benchmark to gauge whether the facts adduced by the prosecution were sufficient to make out a prima facie case against Zahid. That comparison focused on two points.

The first was in relation to whether the sum of S$600,000 in cash could fit into an envelope. Yazid wrote:

“…… Again, (each alleged monthly payment was) placed in an envelope. In comparison to the facts in PP v. Rosmah binti Mansor, in that case the first delivery of RM5 million in cash on 20.12.2016 was split into two bags of RM2.5 million each. For the second delivery of RM1.5 million, the monies were put into two knapsacks. In the present case, the prosecution did not produce any sample envelope. No evidence was led to show the size of the envelope used. I simply cannot imagine what envelope in what size could fit the S$600,000 in cash which was equivalent to around RM1.6 million at the material time.”

That paragraph invites different interpretations as to what the judge may have meant.

Did Yazid simply mean that, unlike in Rosmah’s case, no evidence was led to establish how the cash was packed for delivery to Zahid?

Or, did he mean that, taking into account the evidence in Rosmah’s case which showed that cash of RM5 million was packed into two bags while RM1.5 million was put into two knapsacks, it was improbable that S$600,000 could fit into an envelope?

Also, why was there a need for Yazid to specify that S$600,000 was equivalent to RM1.6 million since payment was made in Singapore dollars? In doing so, did Yazid conclude that even two knapsacks would not be able to contain the S$600,000 payment?

Is it likely that Yazid’s decision was wrongly influenced by matters which existed outside the parameters of the trial he was hearing?

Akberdin says that Rosmah is challenging Zaini’s findings of fact in her appeal. Would the reversal by an appellate court of some of the findings of fact made in Rosmah’s case affect the outcome of Zahid’s case?

Yazid’s second point of comparison was in relation to whether there was “independent evidence to support the contention that the monies were in fact paid to (Zahid).”

Noting that no independent witnesses were called (e.g., driver, guard, policeman) and no documentary evidence was tendered in evidence (e.g., CCTV footage, Touch ‘n Go transaction slips, phone call logs and messages), Yazid went on to say:

“In comparison, in Rosmah’s case for the first payment of RM5 million, Saidi’s friend Razak who accompanied Saidi to Maybank Medan Tuanku branch was called as witness. The cheque dated Dec 20, 2016 was produced. Low Ai Lin, the assistant manager and Azimah Aziz, the chief cashier where Saidi cashed out the monies were all called as witnesses. Dato’ Ahmed Farriq Zainul Abidin, Rizal’s friend who subsequently followed Rizal with the two bags of cash to Lawrence’s office in Pavilion, was also called as witness. When Rizal met the accused i.e., Rosmah, Rosmah asked him how much to which Rizal replied “Lima (Five)”. (This) circumstantial evidence as highlighted in Rosmah’s case were all absent in the present case. In the present case, those witnesses involved or had knowledge on the source of funds i.e., Nicole, two money changers, were questioned and their statements were recorded but not called as witnesses to support the prosecution’s case. Likewise, in Rosmah’s case, witnesses were brought to Rosmah’s residence and shown the living room where the two knapsacks were placed and where Rosmah, Saidi and Rayyan were seated. Photographs were taken and a sketch plan was made, but not in the present case.”

Here, it appears that Yazid’s intention was to contrast the abundance of evidence led in Rosmah’s case with the lack of any corroborative evidence adduced by the prosecution in Zahid’s case.

In this instance, the prosecution will do well to direct the appellate court’s gaze away from the facts in Rosmah’s case and back to the evidence proved in the case before it.

It will be most interesting to see how the appellate courts deal with the interaction between Rosmah and Zahid’s cases when Zahid’s appeal comes up for hearing. - FMT 

Ibrahim M Ahmad is an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.