Written by: Averroes
(1.0) Introduction
On 16th of July, I was startled by barrages of news notifications that Tengku Adnan Tengku Mansor (Ku Nan) had his criminal convictions set aside in the Court of Appeal. Last year in the High Court in Kuala Lumpur, he was sentenced to 12 months' jail and had to pay RM2 million fine.
I had to read the news and see what was going on. On my Whatsapp statuses, some of my contacts also posted several videos and satirical illustrations of the court decision outcome. So I read on and decided to attempt to write my concise personal view on this issue.
There were three judges, Justice Datuk Suraya Othman leading the bench with Datuk Ahmad Nasfy Yasin agreeing with her. However, Datuk Abu Bakar Jais dissented. I find it spectacular that this case had a dissenting. Cases with unanimous decisions lack the flavour or different ways to argue on a legal standpoint. This adds diversity and expands our legal horizons on certain legal aspects.
Though, currently now, the Deputy Public Prosecutor Asmah Musa commented that she would obtain instructions from the Attorney-General whether to appeal to the Federal Court or not. They have 14-days deadline to do so.
(1.1) Facts of the case
Ku Nan was charged as under section 165 of the Penal Code in his capacity as a public servant (the Minsiter of Federal Territories) which he received RM2 million from a businessman, by the name of Tan Sri Chai Kin Kong (Chai) director of Aset Kayamas Sdn Bhd (AKSB).
He received the money through Hong Leong Islamic Bank cheque belonging to the company, that was deposited into a CIMB account owned by Tadmansori Holdings Sdn Bhd (THSB), where Ku Nan had personal interest in.
It was alleged that he committed the offence at CIMB Bank Bhd, Pusat Bandar Damansara on 14th June 2016.
(1.2) Majority Decision
The majority clarifies that the star witness, Tan Sri Chai Kin Kong, Tadmansori Chief Operating Officer Hasbi Jaafar and the MACC investigating officer, Muhammad Saad Bordani (claiming the RM2 million were political donations to Ku Nan on behalf of UMNO) were not given observation or consideration to their evidence. The trio agreed that the monies were political donations.
The prosecution failed to re-examine Chai on the evidence during cross-examination. The court agrees that the evidence by Saad and Chai where the RM2 million were indeed political donations as the High Court judge did not consider such evidence.
The lead counsel for Ku Nan, Tan Hock Chuan, submitted that the RM2 million was for the Sungai Besar and Kuala Kangsar by-elections. It was not the first time he made such political contributions.
Also, the prosecution did not indicate that Chai was dishonest or untruthful. There were no attempts to impeach or frame him as a hostile witness. Also, the RM2 million receipt was not proven to be forged after his arrest in November 2018. Therefore, the court warrants appellate intervention.
(1.3) Dissenting decision
Justice Abu Bakar states that Ku Nan fulfilled all the four statutory elements as under section 165 of the Penal Code. Therefore, it was not for political donations to UMNO.
First element, Ku Nan was a public servant as Chai very much knew that he was the former Federal Territories Minister during the commission of the offence.
Second element, money is a valuable thing. It was deposited into Tadmansori where Ku Nan holds 99.9% of the shares. Therefore, he owns this company and that it was for himself personally and not for UMNO.
Even when Chai deposited into Tadmansori accounts, he was told that it was for UMNO, but in reality there is no proof that Ku Nan ever used it for UMNO activities or for the two by-elections mentioned.
Third element, the prosecution proved that there was no consideration given from the RM2 million. Therefore, there was no business dealing between Ku Nan and Chai, hence it is not a contract or business dealing.
Fourth element, the prosecution has to show the accused was aware that Chai and AKSB had connections with him in his capacity as the former Federal Territories Minister. It is not necessary to prove Ku Nan assisted AKSB within his official capacity.
Ku Nan knew AKSB was interested in the affordable housing project as they both met three times. Therefore, it is clear that they were aware of each other.
(2.0) Previous precedents
(2.1) Datuk Haji Harun case
One similar case was in the Federal Court of Datuk Haji Harun bin Haji Idris v Public Prosecutor [1977] 2 MLJ 155, where there was an appeal from the decision of Raja Azlan Shah FJ. The appellant was convicted on three charges of corruption in his capacity as Menteri Besar of Selangor.
Firstly, he solicited the sum of $250,000 for UMNO as an inducement to obtain the approval of the Executive Council for application for a piece of State land
Secondly, as a member of a public body, he accepted $25,000 for UMNO as inducement to obtain such approval
Thirdly, he accepted money for UMNO the sum of $225,000 as inducement to obtain such approval.
Calculating all of these amounted to $500,000.
However, the accused explained that the donation of $500,000 was of donations from Mr. Lim Chooi Seng to UMNO was voluntary and honest. This is because, if not, then how could the accused and one Encik Ahmad Razali given Mr. Lim Chooi Seng an official receipt.
If they did not give him the bank receipt of $225,00, then it was dishonest and was indeed connected with the application for the State land. It was on the accused side that the donations received were done on UMNO's behalf.
The court dismissed the appeal however that the 'political donations' exception or defence is not applied. When the accused received the money in a black tin box kept for him in the bank, he did not give an official UMNO receipt.
If the money was a straightforward political donation, with no string attached, he should have received it openly. As as a lawyer and Menteri Besar, he should have known that an old and established bank would prefer having a cheque.
Instead, the bank was forced to give cash rather than cheque and strangely enough in two payments. In ordinary circumstances, a donation is presented by way of cheque or otherwise, preceded by formalities such as a representative of the donor firm, whom would personally issue it to the donee at a proper place and in the presence of a witness, not some back alley.
Therefore, it was done in a corrupt mind as the money solicited was done demandingly. Corrupt in that decision referred to the case of Lim Kheng Kooi v Reg [1957] MLJ 199, which means "doing an act knowing that the act done is wrong, doing so with evil feelings and evil intentions."
(2.2) Dato' Saidin bin Thamby case
In Public Prosecutor v Dato' Saidin bin Thamby [2012] 3 MLJ 476, the respondent was convicted by the sessions court for an offence under section 3(a)(i) of the Prevention of Corruption Act 1961 (repealed now) and sentenced to a year in jail and fined RM10,000. He was also ordered to pay RM1 million to the Federal Government.
This was because, he was found guilty yo to corruptly receive from a director (SP1) of a company, RM1 million as gratification for himself as remuneration to help Nusantara company obtain approval of the Selangor State Executive Council for application of a piece of State land for development.
The court held that, not only the director (SP1) said that it was a political donation, but other prosecution witnesses, SP3, SP4, SP6, SP8 and Bill Chin testified that the RM1 million was a political donation to UMNO Selayang's building fund. They were not gratification nor bribe money as under the charge.
Also, it was also said to be a contract in trade or business. It was legal for him to receive commission as he promised to help Nusantara get the land application to be approved. That is consideration as stated under section 2(2) of the Contracts Act 1950.
(3.0) Conclusion
Nowadays, people tend to joke about corruption here and there. All we have to say to get away with it is by saying, 'they're political donations'. It may be crude humour for some, but in reality this is what is happening in our courts.
We can rebut the exception by stating that, it had no consideration or it was not a contract, and there were corrupted intentions behind it. That can be proven through witness testimony and the conduct or behaviour of the person in soliciting for the money or valuable object.
Reverting to Raja Azlan Shah in the Court of Appeal decision of Datuk Haji Harun, he enunciated these very words which sounds very grandiose and literary. Religiously in language so to say;
"It has given horrible illustrations of Lord Acton's aphorism "power tends to corrupt, and absolute power corrupts absolutely", and has focused concern on the need of some avowed limitations upon political authority."
"Even those who differ from you in politics look upon you as a man of high ideals. You had every chance to reach the greatest height of human achievement. But half-way along the road, you allowed avarice to corrupt you. It is incomprehensible how a man in your position could not in your own conscience, recognise corruption for what it is."
"In so doing, you have not only betrayed your party cause, for which you have spoken so eloquently, but also the oath of office which you have taken and subscribed before your Sovereign Ruler, and above all the law of which you are its servant."
(4.0) References;
L. Loheswar (July, 2021) Court of Appeal overturns Tengku Adnan’s RM2m corruption conviction in split decision. Retrieved from, https://www.malaymail.com/news/malaysia/2021/07/16/appeals-court-overturns-tengku-adnans-rm2m-corruption-conviction/1990340
V. Anbalagan (July, 2021) Ku Nan wins appeal in RM2mil corruption case. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2021/07/16/ku-nan-wins-appeal-in-rm2mil-corruption-case/
Rahmat Khairulrijal (July, 2021) https://www.nst.com.my/news/crime-courts/2021/07/708805/ku-nan-freed-corruption-conviction
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