Bung, wife acquitted as order to enter defence unjust, says High Court judge

The prosecution is appealing the High Court’s exercise of its revisionary powers to acquit Kinabatangan MP Bung Moktar Radin and his wife, Zizie Izette Abdul Samad, of corruption charges. (Bernama pic)

PETALING JAYA: A High Court judge said he exercised his revisionary power to acquit Kinabatangan MP Bung Moktar Radin and wife, Zizie Izette Abdul Samad, of corruption charges over a RM150 million Felcra investment as there was no basis for the trial judge to order the couple to enter defence.

Justice Azhar Abdul Hamid said he was of the opinion that the sessions court judge’s finding of a prime facie case was “incorrect” and “perverse”, and had caused “great injustice” to both the accused.

“It is my view that this is a fit and proper case for this court to exercise its revisionary power.

“Both the applications are, therefore, allowed and the session court’s decision is set aside and substituted with an order of acquittal and discharge without calling for them to enter their defence,” he said in a written judgment released last week.

On Sept 7 last year, the session court ruled that the prosecution had proved all the ingredients of the charges against the duo and that the presumption of corruption under Section 50 of the Malaysian Anti-Corruption Commission (MACC) Act 2009 had been triggered.

In his 10-page judgment, Azhar said the trial judge’s decision ran contrary to the evidence tendered in court by the prosecution.

“Both material witnesses for the prosecution, namely SP24 (Norhaili Mokhtar) SP25 (Madhi Abdul Hamid) clearly stated in their oral evidence in court that no element of gratification exists in this case,” he said.

He said that under cross-examination, Norhaili had denied that what was stated in her written statements given during investigations had actually transpired.

“She also denied that the RM2.8 million paid to Zizie at Public Bank Taman Melawati was meant for Bung,” he said.

Azhar said Madhi had, in his evidence in court, also confirmed that there was neither any element of gratification nor request from either accused.

“He (Madhi) went on to confirm that the money (RM2.8 million) paid to Zizie was an introduction fee,” he said.

In the face of this evidence, Azhar said, the trial judge was wrong to accept the previous statements which the two witnesses gave to the Malaysian Anti-Corruption Commission in the course of its investigation.

“The trial judge determined that the oral evidence of these two witnesses do not give effect to the charges against both the accused,” he said, adding that such contradictory evidence made such testimonies completely untrustworthy.

Azhar said the High Court decision in the case of Lim Hung Wang v. PP (2011) empowered him to use his revisionary powers under Section 323 of the Criminal Procedure Code to review the decision of the sessions court.

The prosecution is expected to file its petition of appeal this week after having received the appeal records, which included the judgment, on April 23. The petition is intended to state where the High Court had erred in law and facts.

The Court of Appeal has set July 29 to hear the prosecution’s appeal against the acquittal.