IN the recent case of Public Prosecutor v Ahmad Zahid bin Hamidi (2022) the accused was charged under section 16(a)(B) of the Malaysian Anti-Corruption Commission (MACC) Act 2009 for 33 offences of corruptly receiving gratification from a company called Ultra Kinara Sdn Bhd (UKSB), with 33 alternative charges under section 165 of the penal code for 33 offences in the accused’s capacity as a public servant for receiving a valuable thing without consideration.

The accused was also charged with seven alternative charges under section 165 of the penal code. All offences were said to have been committed in two locations – that is, either the private residence of the accused or the accused official residence.

For the 33 main charges under section 16(a)(B) MACC Act, the accused was also charged with 33 alternative charges under section 165 of the penal code.

Based on the 33 main and alternative charges, the accused was alleged to have corruptly received various sums in from October 2014 until March 2018.

At the close of the prosecution case, the defence counsel first argued that the charges preferred against the accused were a result of selective prosecution wherein the public prosecutor failed to act fairly and had violated articles 5 and 8 of the Federal Constitution.

Secondly, the receipt of a political donation was not an offence. In this regard the defence counsel argued that the receipt of political donation is neither illegal nor wrong in law based on the three following cases cited by the defence counsel:

1. PP v Dato’ Saidin Thamby (2012) 4 CLJ 15;

2. PP v Zul bin Hassan dan Iain-Iain (2013) 5 MLJ 489; and

3. Tengku Adnan bin Tengku Mansor v PP (2021) MLJU 2200.

High Court Judge Justice Mohd Yazid Mustafa took time to scrutinise the three cases above, following which he said:

“It can be extracted from the cases cited that the receipt of political donation is only not an offence in law if the said amount received was used for political purposes only.

“From my understanding of the (cases), political donation is only a good defence provided that first, the money had been received as a political donation and secondly, the monies had been spent purely for political purposes with supporting evidence to that effect.

“For instance, in the Saidin Thamby case the prosecution witnesses confirmed that the money received was only for Umno Selangor building.

“Returning to the present case, it is my considered view the defence counsel had only met the first requirement by suggesting that the accused only received two political donations. The (accused) has however failed to lead evidence to suggest that the (two political donations) received were in fact spent for political purposes.

“Therefore, political donation is not a defence for the accused and not applicable in the context of the present case.”

On selective prosecution, the defence counsel contended that the evidence for the prosecution revealed that certain serving and former cabinet ministers as well as serving and retired government servants had received money from UKSB but they were not prosecuted in court.

Accordingly the defence counsel contended that the accused was selectively prosecuted. It also contended that the prosecution had failed to act fairly and violated the accused’s constitutional rights under articles 5 and 8 of the Federal Constitution.

The defence counsel cited at least four cases in support of his contention. The judge again took time to consider the contention and scrutinise the cases, and found no violation of the accused’s constitutional rights under articles 5 and 8 of the Federal Constitution.

The judge then said:

“In my considered view, Article 145 of the Federal Constitution is clear in that the learned public prosecutor is fully empowered to institute prosecution based on the outcome of an investigation carried out by an authority.

“In view of certain foreign authorities cited by the (defence counsel) i.e. the 14th Amendment of the US Constitution (which is similar to Article 8 of the Federal Constitution) and the cases of The State v Agan 384 S.E. 2d. 863 (Ga. 1989) and United States v Armstrong 517 U.S. 456 (1996) are irrelevant and inapplicable in the context of the present case.

“The ratio on equality before the law and fair trial of those foreign cases cannot override Article 145 of the Federal Constitution. I am of the further opinion that any issue of equality and fair trial as emphasised by the defence counsel herein must be considered in the context and guided by the clear and plain provisions of the Federal Constitution.

“Finally, it must be observed that the learned defence counsel focused primarily on the issues of fair trial and selective prosecution throughout the trial and during submissions, however based on the foregoing analysis undertaken by me, the issues of unfair trial and selective prosecution do not arise at all in the present case.

“Thus, I reject the arguments of unfair trial and selective prosecution as contended by the learned defence counsel as they are devoid of merit.”

Be that as it may, the accused was acquitted from all charges without calling for his defence as the prosecution had failed to make out a prima facie case at the end of the prosecution case. – February 22, 2023.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.