Lawyers unconvinced by Azam Baki, Abu Zahar’s explanation

KUALA LUMPUR – Legal experts have questioned the veracity of Malaysian Anti-Corruption Commission (MACC) chief commissioner Tan Sri Azam Baki’s claim when he told the press that he had done nothing wrong when he allowed his brother to purchase shares using his trading account.

Speaking to The Vibes, the senior counsels even expressed doubts towards the legitimacy of statements made during the entire press conference held on Wednesday at the MACC headquarters that prominently featured Azam and the Anti-Corruption Advisory Board (LPPR) chairman Tan Sri Abu Zahar Ujang.

Lawyer Rafique Rashid Ali told The Vibes that he found it baffling that the LPPR, which functions solely as an advisory body to MACC, had absolved Azam from any wrongdoing.

“Azam’s own press conference must now be subject of investigation by the Securities Commission (SC). The SC must open investigations.

“The timing of the advisory council and Azam’s press conference raises more questions and concerns regarding MACC’s integrity, more so when rumours have been swirling around for quite a bit.

“In short, Azam’s explanation is untenable,” Rafique said when contacted.

Senior criminal lawyer Fahri Azzat also weighed in, pointing out how Azam’s explanation given during Wednesday’s press conference that the purchased shares were meant for his brother was far from concrete.

“I think his excuse that it is his brother’s (shares) is predictably lame,” he told The Vibes.

When explaining guiding judgements from past cases prosecuted under Section 25 of the Securities Industry (Central Depositories) (Sicda) Act 1991, Fahri said that judges have in the past ruled that a trading account is presumed as the property and responsibility of the person it is registered under.

Section 25 of the Sicda contains six provisions that cover regulations surrounding securities account ownership and trading, with provisions under Section 25(4) stating clearly that “every securities account opened with a central depository shall be in the name of the beneficial owner of the deposited securities or in the name of an authorised nominee”.

Fahri pointed out provisions under Section 25 of the Sicda would have to presume the trading account belongs to Azam, who would then also be liable for the manner it is used in, simply by the fact that it is registered under his name.

Once he opens in his name, it all must be his, unless he’s opened an authorised nominee account. Even if he says it’s his brother’s and all that, then both of you (sic) (them) would be committing offences because he has to trade under his own account and that is why Azam has to open it.

“So if he appoints someone, then that is pretty clear, that person is his authorised nominee and can therefore buy. And I think we can infer that it wasn’t done, because his name was there.

“If our own officials are seen to breach the very law they are meant to enforce then give a lame excuse which has no basis in law, then something is very wrong in and with our country,” he said.

Fahri added that enforcing Section 25 should remain unaffected by a person’s stature, social standing, or title.

“There should be no difference if the person who breached the provision is a senior government official, a billionaire or a high-ranking politician or official. There cannot be (any difference),” he added.

Section 25 breached?

Detailing Sicda’s Section 25, Fahri said it clearly requires the trading account to be opened in the name of the beneficial owner.

This means that regardless of whether the account holder is an ordinary member of the public, or even the prime minister, the same rules apply.

“If that person is an authorised nominee, then they have to declare that.

Section 25(1) of the Sicda also provides that no one can deal with deposited securities without first having a securities account. So, the prerequisite for trading shares is to do so in your own account or your authorised nominee’s.

Sicda, otherwise known as Act 453, also stipulates that anyone found guilty of an offence under Section 25 of the act can be punished with a maximum fine of RM3 million, or imprisonment of up to 10 years.

“So, in other words, it’s a serious offence,” Fahri added.

On the topic of investigations that could potentially take place should a breach be identified, senior lawyer Kitson Foong told The Vibes that three potential scenarios could arise.

He said the first outcome could see the SC, after conducting a thorough investigation, find that no offence took place and thereafter recommend that no further action be taken.

“Secondly, they could exercise their discretion and offer the offence for compounding. 

Thirdly, they could recommend to the attorney-general that charges be proffered in court.

“All of the above are the sole prerogative of the SC,” he pointed out.

During Wednesday’s press conference, Abu Zahar had asserted how the LPPR conducted a meeting with Azam on November 24 last year to seek explanation on the allegations that have since plagued the anti-graft body.

Abu Zahar had said the LPPR was satisfied by the explanation given by Azam and found no criminal elements involving him or conflict of interest.

Azam, meanwhile, insisted he as the chief commissioner is only answerable to the LPPR.

Azam also claimed the allegations of conflict of interest brought against him were created by certain parties looking to take advantage and attack MACC and ruin the commission’s image and his personal reputation.

Yesterday, the SC announced they would be seeking an explanation from all parties involved over the entire saga MACC currently finds themselves in. – The Vibes, January 7, 2022