Prosecution applies for DNAA against Zahid in Yayasan Akalbudi trial, defence demands acquittal

Malay Mail
Malay Mail

KUALA LUMPUR, Sept 4 — Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi might walk out of the fully packed courtroom here a free man today if the High Court agrees with his defence team’s argument for an acquittal in his Yayasan Akalbudi trial.

When hearing resumed this morning, deputy public prosecutor Datuk Mohd Dusuki Mokhtar applied for a discharge not amounting to an acquittal (DNAA) of Zahid’s 47 charges for the dishonest misappropriation of his charitable foundation Yayasan Akalbudi's RM31 million.

“In line with the provisions under Article 145 in the Federal Constitution and Section 254 in the Criminal Procedure Code, it is informed to this court that the prosecution wishes to stop proceedings on all charges against the accused, for the accused to be discharged not amounting to an acquittal (DNAA),” Dusuki said.

He stressed that the prosecution is only seeking a DNAA.

Dusuki told the court that the prosecution’s application for the DNAA on Zahid is based on 11 reasons, including to enable more comprehensive and complete investigations to be carried out on Zahid’s case.

A DNAA means an accused person can face trial for the same charges in the future if the prosecution decides to reinstate them.

Dusuki listed the 11 reasons as including the prosecution being of the view that it and investigators have to look at the court testimony given by the 15 defence witnesses including Zahid in this case, and due to two representation letters dated December 8, 2022 and January 25, 2023 which Zahid had given to the Attorney General’s Chambers (AGC).

Dusuki said the Malaysian Anti-Corruption Commission (MACC) had on January 20 told the AGC that it is important for “further investigations that are more detailed and comprehensive” to be carried out following Zahid’s representations, and said Zahid had on February 28 and March 7 gave four other representation letters which raised issues and evidence that requires MACC to investigate.

Dusuki said the fifth reason was that Zahid’s representation letters had touched on the issue of investigations — before and after Zahid was charged in court — that were alleged to have made in a “haste, careless, premature and incomplete (terburu-buru, cuai, pramatang dan tidak lengkap)”, and that the sixth reason was that this matter would certainly cause the reputations of the AGC as the prosecution and the MACC as investigators to be harmed as it would be perceived as if these two bodies are legal institutions that had been used (“diperalatkan”) by certain quarters.

The seventh reason given by Dusuki to temporarily discontinue the trial with a DNAA as being to not deny Zahid’s rights as the accused and to prevent “miscarriage of justice”, saying: “We believe the charges on the accused has to be stopped for now but only given the effect of DNAA on the accused until a more comprehensive and complete investigations are completed.”

Dusuki also noted that the Cabinet had announced that a Royal Commission of Inquiry (RCI) would be formed to investigate the matters in former attorney general Tan Sri Tommy Thomas’s memoir and his disclosures on charges on “certain individuals”.

As for the ninth reason, Dusuki said: “The accused also raised a very serious issue in his representation letters, namely the allegation that he is a victim of selective prosecution from the previous government regime. The attorney general is of the view that it is very important for the prosecution and the MACC to look into and also investigate this claim.”

Dusuki said this was also actually in line with the RCI’s purpose, among other things, to investigate allegations of breach of professional responsibilities.

The 11th reason cited by Dusuki was that there was an internal memo alleged to be issued by the AGC relating to Zahid’s case which had went viral in the social media, and said the AGC is now taking steps to verify the content of the alleged internal memo.

In addition, Dusuki said the prosecution believes that the decision to discontinue the trial on Zahid via a DNAA would save time and costs of the court and all parties involved in the case.

“This decision is also a more fair decision to all parties, where all charges wished to be presented in this case should be made only after MACC’s investigations are complete and more importantly after the RCI sits and arrives at a decision,” he said.

Dusuki also concluded by saying: “Lastly, the AGC feels it is very unfair for the court to postpone this trial to an indefinite date or indefinite postponement until the RCI reaches their decision, which we know may take months or years. If postponement after postponement is allowed to happen, this honourable court will also be tainted with negative perception and criticised by irresponsible quarters. With this, the prosecution moves to stop all charges on the accused but only with the effect of DNAA.”

Previously on January 11, Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said said that the Cabinet had agreed on that day with a special task force’s proposal to set up an RCI to look into allegations relating to Thomas’s book “My Story: Justice in the Wilderness”.

In a brief written parliamentary reply on May 22 in the Dewan Rakyat, Azalina again mentioned the government’s January 11 agreement to form the RCI and said the Legal Affairs Division in the Prime Minister’s Department was carrying out further actions before raising it to the Cabinet.

To date, there has been no news announcing that the RCI has been formed.

Zahid’s lawyers had in an August 24 statement urged Attorney General Tan Sri Idrus Harun to speed up his decision on Zahid’s application to have all 47 charges reviewed.

Idrus’s contract as AG ends tomorrow, with Solicitor General Datuk Ahmad Terrirudin Mohd Salleh to succeed him as AG this Wednesday.

On December 8, 2022 and January 25 this year, Zahid’s lawyers had sent representation letters along with documents numbering over 200 pages to the prosecution to ask the attorney general to review the 47 charges against him.

Hisyam listed several past court judgments in other cases to support his argument that Zahid should be acquitted of all 47 charges. — Picture by Shafwan Zaidon
Hisyam listed several past court judgments in other cases to support his argument that Zahid should be acquitted of all 47 charges. — Picture by Shafwan Zaidon

Hisyam listed several past court judgments in other cases to support his argument that Zahid should be acquitted of all 47 charges. — Picture by Shafwan Zaidon

Hisyam objected to the prosecution's application for Zahid to only be granted a DNAA, saying that his client should instead be freed permanently from all the charges as the prosecution is unable to give a definite timeline on when the further investigations in Zahid's case would be completed.

“It's most unfair and unjust for the Sword of Damocles to hang over the head of Datuk Seri,” he said, alluding to the prospects that Zahid could be charged again in the future if only a DNAA is granted.

Hisyam listed several past court judgments in other cases to support his argument that Zahid should be acquitted of all 47 charges.

“So under the circumstances, we urge Your Lordship to exercise My Lordship's discretion under Section 245(3) of Criminal Procedure Code and make an order that the discharge amounts to an acquittal,” he said.

The court is standing down while Judge Datuk Collin Lawrence Sequerah deliberates.

Zahid, who is also Umno president and Barisan Nasional chairman, is facing 47 charges in this case, namely, 12 counts of criminal breach of trust in relation to over RM31 million of Yayasan Akalbudi’s funds, 27 counts of money laundering, and eight counts of bribery charges of over RM21.25 million in alleged bribes.

Yayasan Akalbudi was founded with the purported objectives of receiving and administering funds for the eradication of poverty and enhancing the welfare of the poor.