KUALA LUMPUR – The prosecution’s failure to rebut evidence that a sum of RM2 million received by Datuk Seri Tengku Adnan Tengku Mansor was a political donation may have led to the Court of Appeal overturning the former Federal Territories minister’s conviction, said senior lawyer Datuk Seri Rajan Navaratnam.
He said it was the prosecution’s duty to prove elements of the crime for which Tengku Adnan was charged – in this case, the offence was under Section 165 of the Penal Code.
“In this regard, the burden is on the prosecution to prove that the said RM2 million was obtained by the accused for himself without any consideration, or that it was received in connection with his official duties,” Rajan told The Vibes.
“It is pertinent to note that several prosecution witnesses testified that the sum of RM2 million was, in fact, a political donation, including the investigating officer and the payer himself.”
The payer is Tan Sri Chai Kin Kong, who funnelled the amount into Tadmansori Holdings Sdn Bhd, a company in which Tengku Adnan had an interest.
As Rajan pointed out, the judgment mentioned that the evidence, showing Chai confirming it was a political donation, was not challenged by the prosecution.
The lawyer said pursuant to Section 165, it is difficult to secure a conviction if a payer confirms that the payment was indeed a donation and provides documentary evidence that goes unrebutted.
“It is trite law that it’s for the prosecution to successfully discharge their burden of proving the ingredients of the offence under Section 165 of the Penal Code.
“It is not for the accused to prove that the said RM2 million was, in fact, for a political donation, or alternatively, for the accused to disprove the prosecution’s case that it wasn’t a political donation.
“It is also of importance to note that the prosecution’s case was fastened to the testimonies of their own witnesses confirming that the said RM2 million was a donation for political purposes.”
Prosecution fails to re-examine Chai on donation
The Court of Appeal earlier released the summary of its judgment that saw the Putrajaya MP’s conviction overturned.
According to the summary, the prosecution failed to re-examine Chai on the evidence he presented stating the money was meant as a donation to Umno and not Tengku Adnan, which is a “pivotal issue”.
This failure to re-examine amounts to the prosecution’s acceptance of Chai’s testimony, said the summary, and the high court failed to consider this when delivering its judgment.
“We find that such a failure on such a critical point/issue amounts to non-direction, which renders the conviction unsafe.”
Further, the appellate court said Chai presented a receipt by Umno at the high court.
Although the prosecution contended that the receipt was issued only in November 2018 – after Tengku Adnan’s arrest – and forged, the assertion remains unproven.
“In our judgment, the crediting of the RM2 million cheque into the account of Tadmansori did not lead to an irresistible conclusion that the appellant had committed the offence charged, and this per se, is insufficient to convict the appellant, as it is circumstantial evidence that does not point irresistibly to the guilt of the appellant,” said the judgment summary.
Tengku Adnan’s case was presided over by a three-judge bench chaired by Datuk Suraya Othman. Datuk Ahmad Nasfy Yasin sided with the lawmaker, while the dissenting judgment was issued by Datuk Abu Bakar Jais.
A blow to fight against money politics
The Centre to Combat Corruption and Cronyism (C4 Centre) said the judgment deals a blow to the country’s fight against money politics.
In a statement, it highlighted that if the RM2 million was indeed a donation for election costs, the sum far exceeds the amount that a candidate is allowed to spend on a campaign under the Election Offences Act 1954.
“In this case alone, Ku Nan himself shockingly told the court that it was not necessary to report the receipt of the RM2 million to (Datuk Seri) Najib Razak, his party leader at the time.
“C4 Centre is extremely concerned that this decision will embolden politicians to consolidate their links with businessmen and further cement the practice of political donations.”
It called for reforms so that the flow of money from businesses to politicians is controlled and transparent.
The organisation urged the prosecution in Tengku Adnan’s case to appeal against yesterday’s court decision and continue the battle against money politics.
Meanwhile, Transparency International Malaysia (TI-M) president Muhammad Mohan said he was startled by the Court of Appeal ruling, and believes the government will appeal.
“This decision may have an impact on Malaysia’s Corruption Perception Index, and TI-M is deeply concerned,” he said in a WhatsApp message to The Vibes.
On December 21 last year, the high court here handed down to Tengku Adnan a 12-month jail term and RM2 million fine. It allowed his application for a stay of execution on both penalties pending an appeal.
The former minister was also last year granted a discharge not amounting to an acquittal in a RM1 million corruption case.
The deputy public prosecutor who had worked the case since September 2018 cited new developments and instructions from higher-ups to seek a halt to the proceedings. – The Vibes July 17, 2021
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