.JPG "Datuk Seri Zahid Hamidi arrives at the Kuala Lumpur High Court October 13, 2020. u00e2u20acu201d Picture by Miera Zulyana")
KUALA LUMPUR, Oct 13 — Datuk Seri Ahmad Zahid Hamidi today succeeded in having the conclusions of an investigating officer — on RM2 million cheques received by him previously — removed as evidence in his ongoing corruption and criminal breach of trust trial.
In deciding on Zahid’s application to strike out eight paragraphs —- paragraphs 20, 27, 29, 33, 34, 35, 36, 37 — of Malaysian Anti-Corruption Commission (MACC) investigator Fairul Rafiq Hamirudin’s written witness statement, High Court judge Collin Lawrence Sequerah said the prosecution would have to make changes to remove the investigating officer’s conclusions.
“After hearing and considering submissions of the parties, the findings of this court, is that the portion of paragraphs objected in the witness statement which contains conclusions of the investigating officer are to be excluded.
“These conclusions are for the court alone to draw based on the evidence adduced,” the judge said in reading his decision.
The judge also acknowledged the defence’s argument that the portion of the investigating officer’s evidence that was objected to would also tend to result in “prejudice” to the accused in this trial.
“The prosecution is hereby to amend or rephrase the witness statement to exclude the offending statements,” he added.
The judge went on to explain that the factual parts of the paragraphs objected to by Zahid’s lawyers can remain, with only parts of the objected paragraphs in the investigating officer’s witness statement to be removed if it amounts to an opinion or conclusion on his investigation findings.
The judge said his decision also applied to the written witness statements of seven other investigating officers who will be due to testify in Zahid’s trial after Fairul Rafiq completes his testimony.
“And the references in part of the paragraphs — which only relate to the facts and not otherwise. Anything that has opinions or conclusions to be excluded. And this ruling to also apply to the future witness statements of other witnesses,” the judge said.
Fairul Rafiq is the 89th prosecution witness in Zahid’s trial, and had previously on August 24 testified through his written witness statement about the results of his investigation into RM2 million worth of cheques that a businessman had given then deputy prime minister Zahid in 2017 and 2018.
But before the prosecution could continue examining Fairul Rafiq on that day, Zahid’s lawyers had objected to certain paragraphs in the investigator’s witness statement due to the claim that these were prejudicial to Zahid.
What both the defence and prosecution had argued
Earlier today, Zahid’s lead defence lawyer Hisyam Teh Poh Teik argued that the eight paragraphs in Fairul Rafiq’s written witness statement amounted to the investigator making his own opinions on issues that should be decided by the courts instead and also allegedly stepping into the court’s role.
Hisyam also complained that the eight paragraphs are unfair, based on the 38th prosecution witness — Profound Radiance Sdn Bhd’s director Azlan Shah Jaffril — previously saying in court that there was no element of corruption in his giving of RM2 million worth of cheques to Zahid.
“So there’s no basis for these paragraphs to remain in the witness statement. Unless and until the 89th prosecution witness expunges these paragraphs, his evidence cannot be accepted by this court,” Hisyam argued.
“If these paragraphs are to be read by the investigating officer — the 89th prosecution witness — number one, they are prejudicial, they are harmful.
“And these will be carried by both the social media and the mainstream media when there’s no evidence to support, which means the reputation of Datuk Seri (Zahid), the reputation of the accused person will be damaged by the unwarranted paragraphs of this witness.
“So we are asking the prosecution and My Lord to order the prosecution to strike out these paragraphs and to produce a new witness statement for the benefit of My Lord and the defence team,” he said.
Deputy public prosecutor Gan Peng Kun however argued that investigating officer Fairul Rafiq’s witness statement is based on the recording of other witness statements and documents, arguing the investigating officer is entitled to form opinions based on evidence he discovered during the investigation.
Gan argued that the investigating officer’s conclusion on his investigation findings is admissible as long as it is based on factual investigations, and that it would still be up to the court whether to accept or evaluate the testimony given by the investigating officer in court.
Gan also argued that the 38th prosecution witness Azlan Shah’s testimony in court on the lack of corruption element in the RM2 million cheques is similarly an opinion, and that the court too would have to make a finding whether to accept or reject Azlan Shah’s opinion on this point.
“The accused, we submit, is not in any way prejudiced by the statement because the defence is at liberty to challenge the witness by way of cross-examination,” he said.
As for Hisyam’s argument that the media would report on the objected parts in Fairul Rafiq’s witness statement and do damage to Zahid’s reputation, Gan highlighted that there are other avenues available to prevent such news reports such as by imposing a gag order.
Deputy public prosecutor Ahmad Sazilee Abdul Khairi meanwhile argued that investigators’ role are akin to piecing the pieces in a jigsaw puzzle to present their investigation findings in court, saying that investigating officers should not be barred from informing the court of their findings and that the court can subsequently choose whether to accept such evidence.
“Therefore the investigating officer should be allowed to deliver the results, the fruits of his investigation to the court. And then after all the process, after being cross-examined by the defence, the court can formulate its own findings. My Lord, at this stage, the evidence of the investigating officer should be allowed,” he argued.
At this point, the judge had suggested that the prosecution would not lose out as the conclusions by the investigating officer would also be issues that the prosecution would address in its submissions subsequently, noting that the prosecution would at the end of the day make its submissions based on the investigating officer’s testimony.
Among other things, deputy public prosecutor Datuk Raja Rozela Raja Toran argued that the investigating officer’s conclusion on his investigation findings should not be considered as an “opinion” and should be admissible as evidence in court, as he is merely “connecting the dots” and making an appraisal of the evidence he has collected and the witnesses he had interviewed in the course of his investigations.
In this trial, Zahid ― who is a former home minister and currently the Umno president ― is facing 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.
