KUALA LUMPUR, Sept 14 — The High Court judge presiding over Datuk Ahmad Zahid Hamidi’s trial today raised a question many Malaysians want to know, but had no chance to ask — why were the purported donations worth millions of ringgit from Yayasan Albukhary to Yayasan Akalbudi not made through cheques, but in cold hard cash stuffed into bags and passed to a moneychanger first and then converted into cheques?

In this trial, Ahmad Zahid ― who is a former deputy prime 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.

Today, Ahmad Zahid’s lead defence lawyer Hisyam Teh Poh Teik was arguing on why the 27th money-laundering charge against his client must fall.

Under the 27th money-laundering charge, Ahmad Zahid was accused of having instructed money changer Omar Ali Abdullah to convert RM7,511,250.20 (RM7.5 million) — said to be proceeds of an unlawful activity or illegal funds — into 35 cheques.

Omar Ali, who was the 81th prosecution witness in this trial, had previously testified that multiple unknown individuals that Ahmad Zahid had told him were from Yayasan Al Bukhary had handed him cash at a shopping mall and hotel lobbies, with the first involving a piece of luggage which he recalled had cash possibly in the range of RM1.5 million.

Omar Ali had subsequently converted the cash amounting to RM7.5 million — which were said to be meant as donations for Yayasan Akalbudi — into cheques that were made out to the law firm Lewis & Co.

Ahmad Zahid’s lawyers have throughout the trial argued that Lewis & Co is a trustee that holds money on trust for Yayasan Akalbudi, a foundation where Ahmad Zahid is a trustee.

High Court judge Datuk Collin Lawrence Sequerah today sought for clarification from Ahmad Zahid’s lawyer on matters relating to the 27th money-laundering charge.

“If it’s donations from Albukhary to Akalbudi, wouldn’t it have been easier to just write a cheque? Why bring a bagful of cash?” the judge asked.

Ahmad Zahid’s lawyer Teh told the judge that the answer is unknown as the investigators did not carry out a probe on this.

“That’s our complaint, the prosecution did not investigate. The answer can only come from Albukhary.

“We asked the investigating officer, the investigating officer never investigated. Because there’s no investigation, we cannot say this is proceeds from unlawful activity. Unless and until they investigate, unless and until they call a witness from Albukhary before My Lord and give evidence,” he replied.

Hisyam noted that the prosecution’s written submission had argued that there was a money-laundering scheme orchestrated by Ahmad Zahid with Omar Ali as the “agent”, and that the prosecution was arguing that the money received by Omar Ali was in doubt as the investigation had never revealed Yayasan Albukhary as having donated in the manner testified by Omar Ali.

Hisyam however shot back by challenging the prosecution to show that there was investigation done to confirm the money was not donated by Yayasan Albukhary, saying that the prosecution’s arguments were “totally baseless, not supported by evidence, none at all”.

Hisyam confirmed to the judge that Yayasan Albukhary was not related to Ahmad Zahid or his younger brother Datuk Seri Mohamad Nasaee Ahmad Tarmizi.

Hisyam said the law is very clear and the investigating officer must investigate all corners, but went on to confirm to the judge that no one from Yayasan Albukhary was called in to testify in this trial over the RM7.5 million amount.

“No investigation whatsoever, because there’s no investigation, cannot say these are illegal proceeds, the charge falls. To conclude, we challenge and invite the prosecution to show us evidence that Yayasan Albukhary never donated,” he said.

He also questioned the prosecution’s written submissions which argued that all the RM7.5 million were illegal proceeds and not from Yayasan Albukhary as there were no proper documentation, asking what is the basis and evidence for such an argument as he suggested that the prosecution had failed to “grab the opportunity” to prove their argument.

Teh highlighted that Omar Ali previously agreed in court that his act of converting cash into cheques was his own initiative and not an instruction from Ahmad Zahid, which conflicted with his other testimony that Ahmad Zahid had given such instructions.

For example, Omar Ali previously said he obtained such cheques by getting friends to issue cheques to repay cash loans he had given them, or in return for foreign currency exchanges.

Asked by the judge how else Omar Ali could have converted the cash into cheques if it was his own doing, Teh said that the point was that the prosecution must prove their case that Ahmad Zahid had given instructions to Omar Ali to convert the cash into cheques.

“So they must prove this ingredient, they could have framed the charge in another way, but because of evidence produced by the SP81 [Omar Ali], there is now a conflict of evidence and it is beyond repair,” he said, having maintained throughout the trial that any conflicting evidence by witnesses should be resolved in Ahmad Zahid’s favour as the defence.

Arguing that Omar Ali is not credible on the point of whether Ahmad Zahid had given such instructions, Teh said the court should reject this part of his evidence.

The judge also asked how Omar Ali would benefit from carrying out the conversion of cash into cheques.

“I think I posed the question before. How did Omar Ali recoup his money, because he seems to be taking the cash, he is giving out the cash, in return for cheques made out to Lewis & Co. What is the benefit to him?” the judge asked.

Teh said the answers to this question must come from Omar Ali himself, confirming to the judge that the prosecution did not ask Omar Ali about this.

“No questions were asked by the prosecution, it’s their duty to clear out doubts,” he said, reiterating his point that the two versions of testimony given by Omar Ali was a “material contradiction” on the crucial part of the charge and that this meant there is no prima facie case for this money laundering charge.

Teh argued that the prosecution should not attack its own witness Omar Ali as having allegedly committed offences after he has left the witness box, saying that the prosecution did not declare him as a hostile witness or impeach him.

Teh said the offences that the prosecution said Omar Ali had committed included an offence under Section 5 of the Moneylenders Act for carrying out a moneylending business without a licence, but argued that moneylending is defined under this law as lending money at interest and argued that the borrower K. Rajan Gunaretnam did not say he had returned the money borrowed together with interest.

“So where is the basis to say Omar Ali has committed an activity that is illegal?” Teh asked, and told the judge there was no evidence that Gunaretnam had paid interest.

As for another offence under Section 4A of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act that the prosecution said Omar Ali had committed, Teh said this was unfair as this was not asked to Omar Ali in court and that the investigating officers in this trial did not say Omar Ali had committed such an offence. Teh said there was no basis for this argument by the prosecution.

As for several other offences under the Money Services Business Act that the prosecution were accusing Omar Ali of having committed, Teh said these offences are not those that come under the anti-money laundering law’s schedule and which could then form the basis of money laundering charges.

“So My Lord, the entire submission of prosecution to show Omar Ali has committed these various offences, cannot stand in law So there’s no illegality as far as Omar Ali is concerned,” he said, before going on to say that Ahmad Zahid should be acquitted of this money laundering charge along with 26 other money laundering charges.

The trial ended earlier today at slightly before 11am, to enable Ahmad Zahid to be present as an MP at the Dewan Rakyat for a vote on the new Dewan Rakyat deputy speaker.

The trial will resume tomorrow morning.