Zahid loses final bid to consolidate 12 CBT charges into three

PUTRAJAYA, April 5 — Datuk Seri Ahmad Zahid Hamidi has exhausted his legal options to consolidate his dozen criminal breach of trust (CBT) charges related to his family’s Yayasan Akalbudi charity into three after the Federal Court dismissed his application today.

The matter today was Zahid’s appeal against the High Court’s dismissal of his application, which was previously rejected at the Court of Appeal.

A three-man bench led by Chief Judge of Malaya Tan Sri Azahar Mohamed said the former deputy prime minister failed to prove his claim that prosecution drew up the charges against him in bad faith.

The bench that included Datuk Seri Mohd Zawawi Salleh and Datuk Seri Hasnah Mohamed Hashim also dismissed as premature Zahid’s assertion that failure to consolidate the charges would lead to unfair sentencing.

“Sentencing is generally a matter subjected to judicial discussion and for the court to consider based on established principles of sentencing, after taking into account all the relevant factors including mitigating factors advanced by the accused person for the court to take into account.

“In our judgment, at this stage, it is not relevant for us to consider the question of sentencing.

“Based on these grounds, we find there is no merit in this appeal. We dismiss it and we affirm the judgment of the Court of Appeal,” said Azahar when reading out the judgement.

Zahid has no further recourse in this matter as the Federal Court is at the apex of the Malaysian judicial system.

Earlier in the proceedings, Ahmad Zahid’s lead counsel Hisyam Teh Poh Teik argued that provisions within Section 153(2) of the Criminal Procedure Code (CPC) is sufficient to compel the prosecution to consolidate the dozen charges against his client into three.

The lawyer said Section 153(2) of the CPC is a mandatory provision that compels the prosecution to condense CBT offences that occurred within a year into a single charge sheet, suggesting this could be done by separating each illegality with annexes.

“It is our respectful submission that the non-compliance of Section 153(2) of the CPC is both unfair and unjust to the appellant.

“The injustice is obvious; in the event of convictions of all the 12 charges, the appellant will be punished separately for these 12 charges as compared to three. The imprisonment terms will probably be consecutive as they do not form part of the same transaction,” Hisyam argued.

Deputy Public Prosecutor Raja Rozela Raja Toran countered, insisting that the prosecution had complied fully with Section 153(2) of the CPC, and rejected Hisyam’s assertion of it being a mandatory provision.

Raja Rozela said the 12 charges being disputed already contained subdivisions of the alleged offences, similar to Hisyam’s annexe suggestion, and revealed there could have been more charges face by Ahmad Zahid if the prosecution had decided on separating each transaction as one single charge.

“We have fully complied with the CPC where these 12 charges specify when the offence allegedly happened.

“If we had taken into account each of the alleged offences, the accused could be looking at more than 12 charges; we play fair and by the book,” she said.

Azahar agreed with the prosecution that Section 153(2) of the CPC was not mandatory and acts as an enabling provision.

“There is no contravention of Section 153 of the CPC and there is nothing illegal about it,” said Azahar.

Azahar also dismissed Hisyam’s additional argument of the 12 charges being prejudicial and unfair to Ahmad Zahid, saying the complaint was unsustainable.

The judges also shot down Hisyam’s assertion that the charges would create an adverse perception of Ahmad Zahid because of any possible ambiguity in criminal law.

Azahar said the argument of adverse perception carries no merit, adding that any punishment meted out by the courts is based on evidence and not perception.

“Adverse perception is not a factor to be taken into consideration by the court, and adverse publicity will not affect the appellant’s right to a fair trial,” Azahar said before dismissing the appeal.

Hisyam told reporters outside the courtroom later that today’s judgment would have little to no effect on the defence’s strategy for Ahmad Zahid should it be called.

“No, it will not affect our strategy at all, we are preparing a defence for the existing charges as read out in the High Court,” he said. 

The prosecution had last month concluded their case against Ahmad Zahid at the Kuala Lumpur High Court where the former home-minister and sitting Umno president is facing 47 charges, namely the 12 CBT charges in relation Yayasan Akalbudi’s funds, 27 counts of money laundering, and eight counts of bribery charges.