High Court rejects Zahid's bid to postpone grilling by prosecution, says no denial of fair trial

·10-min read
Malay Mail
Malay Mail

KUALA LUMPUR, July 4 — The High Court today rejected former deputy prime minister Datuk Seri Ahmad Zahid Hamidi’s application to postpone the prosecution’s cross-examination of him in his corruption and money laundering trial, concluding that he would not be denied a fair trial if his trial was to proceed at this stage.

Ahmad Zahid had asked for the High Court to stay or pause the prosecution’s cross-examination of him until the Court of Appeal decides on his bid to get the statements that 11 witnesses had given to the Malaysian Anti-Corruption Commission (MACC), but the High Court disagreed with his application.

In delivering his judgment, High Court judge Datuk Collin Lawrence Sequerah gave a list of reasons for his decision, which he said was non-exhaustive.

“After hearing submissions of both parties, this court is of the view that the accused will not be prejudiced during the cross-examination, because he has the liberty to interview the offered witnesses, some of whom are family members and acquaintances.

“The prosecution has also committed to assisting him in this endeavour, therefore there is no denial of a fair trial under Article 5 of the Federal Constitution,” the judge said.

The judge also noted that the principles in the Federal Court’s decision — in a similar case involving former prime minister Datuk Seri Najib Razak’s application to stay his own criminal trial — would be binding on trials in the High Court as well, before going on to cite one of the paragraphs in the Federal Court decision.

“I do not discern any special circumstances in this application that would warrant a stay of proceedings.

“Following the determinative principles in the Datuk Seri Najib Razak case in the Federal Court which of course binds this court, I find the applicant has failed to meet the required thresholds. On the premises, the application is dismissed, the trial process and the cross-examination of the accused is to continue,” the judge said.

Following the judge’s decision close to 12.30pm after having heard arguments from both the prosecution and defence this morning, Ahmad Zahid’s trial was then set to resume this afternoon with the prosecution’s continued cross-examination of him

Trial not proceeding this afternoon due to Covid-19 concerns .

But the court proceedings will not go on this afternoon, as two members of Ahmad Zahid’s legal team having fallen ill and displaying symptoms.

Ahmad Zahid’s lead defence lawyer Hisyam Teh Poh Teik applied for the trial to continue tomorrow instead to enable Covid-19 testing to be done first, as one of the defence lawyers has diarrhoea while another had symptoms of sore throat.

“So under the circumstances, can I suggest we all go back and do our respective tests today to be on the safe side, and come back tomorrow morning 9.30am to inform My Lord as regards the results of the tests because we are in a closed environment,” he said.

Lead prosecutor Datuk Raja Rozela then said: “My Lord, to be on the safe side, I would have to agree with my learned friend.” The judge then said it would be safer to do the tests and to come back tomorrow.

Later when contacted by Malay Mail, Hisyam confirmed that the tests he had mentioned in court was for Covid-19.

Earlier this morning, Ahmad Zahid’s lawyer Hamidi Mohd Noh informed the High Court that one of the defence lawyers was coughing very badly and had a high temperature and that she was present in court earlier, and that he had asked her to leave and undergo testing immediately.

In this trial, Ahmad Zahid ― who is currently an Umno president and a former home minister― faces 47 charges, namely 12 counts of criminal breach of trust in relation to charitable foundation Yayasan Akalbudi’s funds, 27 counts of money laundering, and eight counts of bribery charges.

For the month of July, this trial is scheduled to be heard from today until this Thursday.

Prosecution claims Zahid attempting last-minute 'delay tactic', defence insists fair trial needed

Earlier, Ahmad Zahid's lawyer Hisyam said the appeal's next case management date is on July 26, and that they could write to the Court of Appeal to request an earlier hearing date for the appeal due to the urgency of the matter.

In summing up why Ahmad Zahid was applying to have his cross-examination postponed until the Court of Appeal decides on his appeal to get the 11 witnesses' statements to investigators, Hisyam said this was because Ahmad Zahid as the accused person wants to give a "complete defence" before he is cross-examined.

Hisyam also explained that Ahmad Zahid would be able to find corroboration from the statements of these 11 witnesses and that it would amount to a deprivation of his fair trial if he was unable to see their statements, further arguing that these evidence will have a critical impact on Ahmad Zahid's defence.

Hisyam also argued that Ahmad Zahid's application was made in good faith and that his application to stay the cross-examination has met the required threshold.

He also argued that Najib's case was different as he had applied to stay the trial before it started while Ahmad Zahid had applied to stay only his cross-examination after he had already started testifying in court.

Hisyam argued that when balancing between the two competing public interest requirements for an expeditious trial and for a fair trial, it should be the fair trial that takes precedence due to the right to fair trial under Article 5.

Without mincing her words, lead prosecutor Raja Rozela described Ahmad Zahid's application to stay his cross-examination as a "delay tactic".

"For the application itself, what is obvious is this, that this application is an attempt to stall the proceedings, to delay an early completion of the trial," she said, arguing that any attempt to impede the trial such as this application should be rejected.

Insisting that the prosecution was ambushed with Ahmad Zahid's application which was filed on June 23 and emailed to the prosecution on June 25 when the trial was set to resume on June 27, Raja Rozela questioned why the "last minute" application was made when it could have been filed as early as soon after May 9 when the High Court rejected Ahmad Zahid's bid to get the witnesses' statements that were recorded by investigators.

"So that is actually my bone of contention, is that they waited to the last minute, they waited to the 11th hour to do so. We have already set dates and dates are very precious commodities and this case has taken since 2019, almost three years and we are still at this stage of the case. So I ask Your Lordship to take that factor and to also consider the fact that this is a serious offence we are dealing with, the charges against the accused is serious, and if the court were to allow for the stay of proceedings, when will this case ever end My Lord?" she asked.

Raja Rozela also argued that Ahmad Zahid had failed to show how the statements recorded by investigators from the 11 witnesses would be crucial to Ahmad Zahid's defence, pointing out that most — if not all — of these witnesses are known to Ahmad Zahid, either by blood relation or are his close acquaintances or friends.

She said there is nothing to prevent Ahmad Zahid or his lawyers from meeting these 11 potential witnesses to prepare for his defence, noting for example that Datuk Seri Mohamad Nasaee Ahmad Tarmizi and Datuk Nurulhidayah Ahmad Zahid are his brother and his daughter respectively while Datuk Rosiah Osman is his former secretary.

"So why must he insist that they must grab hold of the statements first before they can prepare their defence? It is as simple as that, logic tells us if you are familiar with the witnesses and you want to call them, have them interviewed. During the hearing of the application to get the statement, I do recall Your Lordship asking whether the prosecution is ready and willing to make these witnesses available for interview and my answer was yes. It has been the practice since time immemorial that when the prosecution offers witnesses and it is taken up by the defence, we would ensure that these witnesses are made available as soon as possible," she said.

Raja Rozela argued there was nothing to stop Ahmad Zahid from putting up his defence fairly and that he had ample time to prepare his defence, as they could have made preparations by talking to the prospective witnesses months ago. It was on January 24 that the High Court ordered Ahmad Zahid to enter his defence, which meant he would have to bring in his own defence witnesses to testify on his behalf.

Noting that Ahmad Zahid is a former deputy prime minister charged with serious offences and his case is of public and national importance and that it had generated much public interest both locally and internationally, Raja Rozela said his application to have the trial dates — which had been scheduled much earlier on — vacated can only be seen as in bad faith on his part and as a "delay tactic".

Arguing there was no special circumstances that would justify a stay of his trial, Raja Rozela in urging for the application to be dismissed said "it would not do any good to the trial that is currently in progress if we were to have this trial stayed or postponed for any longer".

Hisyam then responded by arguing that a breach of Article 5 would amount to special circumstances and argued that even a public figure is entitled to a fair trial as all persons are equal before the law and entitled to a fair trial, arguing: "We are asking My Lord to do this, to protect the rights of the accused person under Article 5. We say there would be unfairness, injustice if stay is not allowed."

In arguing that the defence has not acted in a way to delay the trial, Hisyam highlighted that Ahmad Zahid appeared in court and was cross-examined by the prosecution last Thursday even though he was on a two-day medical leave certified by the doctor, and that the trial being ongoing for the past three years was also due to the movement control orders during the Covid-19 pandemic which resulted in the trial being unable to proceed and that the defence could not be faulted for this.

Hisyam also said the application to stay the cross-examination was not made immediately after the May 9 decision by the High Court as Ahmad Zahid's lawyers wanted the trial to proceed and did not want to be accused of delaying the trial.

Hisyam stressed that there would clearly be prejudice if the stay application is denied as Ahmad Zahid needs to corroborate his evidence and be able to tell his complete defence to the court before he is cross-examined or questioned by the prosecution, and argued that justice must not be sacrificed for the sake of having a speedy trial.

Hisyam also said that the application for stay is only to pause cross-examination on Ahmad Zahid and that the defence team is ready to proceed with other defence witnesses if the High Court wants.

After hearing both sides, the High Court then stood down for about half an hour before deciding to reject Ahmad Zahid's application to stay his cross-examination.

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