Fingers crossed, Bung

The Court of Appeal has unanimously allowed the prosecution’s appeal and, in turn, ordered Kinabatangan MP Bung Moktar Radin and his wife, Zizie Izette Abdul Samad, to enter their defence on three corruption charges involving RM2.8 million.

On Sept 18, 2023, the prosecution filed an appeal against the decision of High Court judge Azhar Abdul Hamid on Sept 7, 2023, to acquit the couple of the charges.

Before that, circa early September 2022, the learned Sessions Court judge ordered the duo to enter their defence, having satisfied that the prosecution had successfully established a prima facie case against both of them.

However, the decision was subsequently set aside by the High Court judge when they filed an application for revision pursuant to Section 323 of the Criminal Procedure Code (CPC).

Bung, who was then the non-executive chairperson of Felcra Berhad, was charged on May 3, 2019, with two charges of accepting bribes of RM2.2 million and RM262,500 as an inducement to obtain Felcra approval to invest RM150 million in Public Mutual unit trusts.

He was alleged to have accepted the bribes from Public Mutual Berhad’s investment agent Madhi Abdul Hamid through Zizie, 46, at Public Bank Taman Melawati Branch between 12.30pm and 5pm on June 12, 2015.

Zizie Izette Abdul Samad

Apart from the aforesaid charges, he was also charged with receiving RM337,500 in cash from Unit Amanah consultant Norhaili Ahmad Mokhtar, under the name of Zizie, for the same reason and place on June 19, 2015, while his wife was charged with three counts of abetting her husband over the matter at the same place, date and time.

Appeals court ruled wisely

To be fair, it was perfectly understandable for the duo’s lawyers to go to the High Court and ask the court to exercise its revisionary power under Section 323 of the CPC as the duo are legally prohibited from appealing against the decision of the learned Sessions Court judge, who decided that a prima facie case had been successfully established against them.

As rightly pointed out by the Court of Appeal, allowing an application for revision of a prima facie ruling disrupts a trial, creating an insufferable situation in which the trial court must accede to numerous requests for postponements to enable each party to appeal against an order made during the trial.

The court also ruled “This will frustrate the progress of trials, wasting precious judicial time and public expense, and must be stopped.”

At the High Court stage, the learned judge not only set aside the Sessions Court judgment, but he also invoked his power under Section 325 of the CPC to acquit and discharge the duo. He even characterised the Sessions Court’s decision as a miscarriage of justice.

Legally speaking, I find the decision by the learned High Court judge, with the greatest respect, startling.

After all, under the law, when the trial judge, ie, the Sessions Court judge held that the prosecution managed to establish a prima facie case against the duo, such a decision could only be arrived at after she had painstakingly undertaken a maximum evaluation of all the evidence presented by the prosecution.

Unlike the trial judge, the High Court did not have the opportunity to hear and see the evidence presented in the trial.

Be that as it may, in my view, he should have been very slow in disturbing the findings of the trial judge unless the errors by the trial judge were manifestly plain and obvious.

A strong case is likely

In layman’s terms when an accused person has been called for defence, it means the case against the accused is often viewed to be relatively strong.

Assuming the accused opts to remain silent, there is a strong likelihood that he would be found guilty as charged.

That is why people were extremely pissed off when the prosecution decided to discontinue prosecution against the Deputy Prime Minister cum Umno president Ahmad Zahid Hamidi when he was called for defence in respect of 47 criminal charges against him involving multiple counts of alleged criminal breach of trust, corruption, and money laundering related to the misuse of RM27 million of funds at Yayasan Akalbudi, a charity he established to eradicate poverty.

Anyway, as Bung and his wife are being represented by experienced and able lawyers, I believe they will advise their clients to give evidence on oath in their defence.

Let us wait and see what their defences are! Good luck, my friend! - Mkini

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MOHAMED HANIPA MAIDIN is a former deputy law minister.

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.