KUALA LUMPUR, Oct 11 — Datuk Seri Ahmad Zahid Hamidi was the “boss” in the charitable foundation Yayasan Akalbudi, and had control over its funds as a trustee and which enabled him to commit criminal breach of trust, the prosecution argued in the High Court today.
The prosecution was presenting arguments to the High Court to say that it had successfully proven 12 criminal breaches of trust charges against former deputy prime minister Ahmad Zahid in relation to Yayasan Akalbudi’s funds, based on documentary evidence and prosecution witnesses’ testimonies in court.
Lead prosecutor Datuk Raja Rozela Raja Toran said that the prosecution’s case is that Ahmad Zahid had allegedly misappropriated money totalling RM31,082,732.57 or more than RM31 million belonging to Yayasan Akalbudi — a foundation aimed at eradicating poverty — that was then used for various matters such as his credit card bills, vehicle insurance and road tax for his personal vehicles, a football club, a political consultancy firm.
In the same brief summary of the criminal breach of trust charges against Ahmad Zahid, Raja Rozela also said he had also allegedly “made a conscious decision” to have RM17.9 million withdrawn from Yayasan Akalbudi and caused it to be transferred to a law firm without any authorisation. These funds were later given to the law firm to be placed in fixed deposits.
Noting that Ahmad Zahid was at all material times the trustee of Yayasan Akalbudi, Raja Rozela said he should have known that the money in the foundation could not be used for his own purposes.
“As such, the accused would have been well aware that the funds were to be administered for the benefit and welfare of the fund.
“And the accused, My Lord, ought to have known also he was not legally entitled to use the property, be it for himself, or for a purpose which was in the objects of Akalbudi.
“So by making use of the funds for his own purpose, knowing that he was not entitled to do so, the accused had acted with a dishonest intention to deprive Akalbudi of the use of its property, and at the same time to secure the use of the funds for his own gain,” she said.
In order to prove the 12 criminal breach of trust charges against Ahmad Zahid, Raja Rozela said that all the prosecution had to prove was three key elements or three main facts.
She said the prosecution had succeeded in establishing and proving all these three key ingredients of the 12 charges, namely that Ahmad Zahid was entrusted with dominion over Yayasan Akalbudi’s property, that the dominion over property had been entrusted to Ahmad Zahid in his capacity as an agent of Yayasan Akalbudi, and that he had committed criminal breach of trust when he dishonestly misappropriated the property.
For the element of Ahmad Zahid’s role, Raja Rozela said there was ample evidence to prove his position as a trustee and director of Yayasan Akalbudi, and noted that his lawyers had not disputed his role as an agent of the foundation.
She three documents from the records of the Companies Commission of Malaysia — where Yayasan Akalbudi is registered — confirming Ahmad Zahid to be a trustee of the foundation. Ahmad Zahid was appointed along with Mohd Samsuri Tun and Zulkifli Senteri as the trustees of Yayasan Akalbudi on March 18, 1997.
As for the second element of CBT charges relating to the entrustment of property, Raja Rozela argued that Ahmad Zahid was entrusted with control over Yayasan Akalbudi’s funds due to his position as a member of the charitable foundation’s board of trustees.
She cited Yayasan Akalbudi’s Articles of Association or company constitution as requiring the board of trustees to open a bank account for the foundation and for at least two trustees to sign cheques, noting that a trustees’ circular resolution and a bank document showed that Ahmad Zahid and the original two trustees Samsuri and Zulkifi were authorised signatories for the foundation’s cheques.
As for whether Ahmad Zahid was in a position to exercise control over Yayasan Akalbudi’s funds, Raja Rozela said there was no need to show sole or exclusive control of the funds.
Raja Rozela said that the best evidence to show Ahmad Zahid had control or dominion over Yayasan Akalbudi’s funds was through a trustees’ circular resolution signed on April 4, 2012, which made Ahmad Zahid the sole authorised signatory for Yayasan Akalbudi’s cheques (unlike the previous situation when there were three authorised signatories including Ahmad Zahid).
This resolution to make Ahmad Zahid the only one who could sign Yayasan Akalbudi’s cheques came into effect on June 20, 2013, as reflected by an update on signatures to the bank.
“It is patently clear therefore that with the passing of the circular resolution, the accused has total control, access and control over Akalbudi bank accounts and therefore it places him in the position of exercising dominion over property,” she said, adding that Ahmad Zahid’s lawyers had not disputed this.
Raja Rozela also listed evidence from former Yayasan Akalbudi trustees to show that Ahmad Zahid was in full control of the foundation and its board of trustees, including his alleged directions to a former trustee to pre-sign blank cheques for the foundation and his alleged directions that saw a trustee knowingly sign a statutory declaration with false contents.
Raja Rozela also noted how two trustees in Yayasan Akalbudi were later replaced by two other trustees who had held positions in Umno’s Bagan Datuk division. One of the new trustees was also a special officer to Ahmad Zahid in his capacity as the Bagan Datuk MP.
“It might seem unremarkable, they may be trustees, they were trustees just like the accused, but reality check here, My Lord, he is still the boss. The accused is the boss,” Raja Rozela said, referring to Ahmad Zahid as the accused in this trial.
“And it’s not an exaggeration on my part to suggest that what the boss wants, the boss gets.
“Perhaps Your Lordship would recall the 15th prosecution witness (Datuk Khairuddin Tarmizi), statutory declaration which he signed, he gave evidence to the effect that he signed that statutory declaration even though he knew the contents were untrue. No questions asked,” Raja Rozela said.
“Whether that is commendable loyalty or blind faith, I don’t know, but either way, it shows that the accused is the one who calls the shots. In Akalbudi, he decides, the accused decides who stays and who goes,” she said.
Raja Rozela was referring to former trustee Samsuri, who as the fourth prosecution witness had told the court that he had pre-signed blank Yayasan Akalbudi’s cheques as a trustee as instructed by Ahmad Zahid, but without knowing and without being informed what the cheques would be used for. Samsuri had also said he was never shown any bank account statements for the foundation, and that he did not know the foundation had millions in ringgit in funds.
Among other things, Raja Rozela highlighted Samsuri as not knowing what is the source of Yayasan Akalbudi funds, and never being involved in any Yayasan Akalbudi activities and never asking Ahmad Zahid about the foundation’s activities or expenditures, and without any board meetings held throughout his tenure as trustee.
“That shows he was directed by the accused person to only sign cheques and nothing else, he also once described the accused as the boss He says Zahid is my boss, so whatever his instructions are, I follow,” she noted regarding Samsuri’s previous court testimony.
As for another former trustee Zulkifli who was the seventh prosecution witness in this trial, Raja Rozela argued that he was made to resign from Yayasan Akalbudi for no apparent reason or without good reason.
She said Zulkifli had testified to having signed the resignation letter that was pre-prepared and delivered to him at his house by Ahmad Zahid’s driver, and that he had signed and returned it to the driver.
Arguing that Zulkifli was “left completely out of the loop” as a trustee in Yayasan Akalbudi, Raja Rozela highlighted his court testimony where he said he had no direct involvement or knowledge in the foundation’s activities.
With Samsuri and Zulkifli resigning on April 4, 2012, Raja Rozela said Ahmad Zahid had “brought his men from Bagan Datuk” in as replacements to be the two new trustees of Yayasan Akalbudi.
The two new trustees, Muhammad Nabil Salleh (eighth prosecution witness) and Datuk Khairuddin Tarmizi (15th prosecution witness), were also the same individuals who had signed the April 4, 2012 resolution that had made Ahmad Zahid the sole authorised person who could sign Yayasan Akalbudi’s cheques.
Raja Rozela noted that Nabil had previously served as special assistant to Ahmad Zahid as the Bagan Datuk MP and had also previously taken on the position as Bagan Datuk Umno secretary, while Khairuddin had started participating in Umno’s Bagan Datuk division since 1998, with various positions held including as the division’s youth secretary from 2004 to 2013 and as the division’s deputy chief since 2013.
Previously, Khairuddin had admitted in court to having signed an April 20, 2017 statutory declaration that contained inaccurate and factually untrue information, including parts where he had claimed to had believed he could use Yayasan Akalbudi funds to settle Ahmad Zahid’s credit card bills and where he claimed to have asked Ahmad Zahid to refund the funds used to settle the bills and that these funds were refunded as requested.
Prior to his admission to having signed untrue information in the statutory declaration, Section 132 of the Evidence Act was invoked in court to grant protection to Khairuddin as a witness from arrest and prosecution over any answers given in court as long as the answer was given truthfully.
In further illustrating Ahmad Zahid’s alleged control over the foundation and its board of trustees, Raja Rozela said that all these four individuals who had been trustees of Yayasan Akalbudi were “left in the dark” about the foundation’s activities.
“They don’t know anything about Akalbudi’s activities, there have been no board meetings held, and all four consistently testified they never attended any board meetings throughout their tenure. Even the company secretary at that time, the 28th prosecution witness Mahinder Kaur, she confirms there are no records of any board meetings being held,” she said.
She noted that Ahmad Zahid’s lawyers had pressed these four individuals to say they had not objected to the list of purported projects that Yayasan Akalbudi was allegedly carrying out, including for mosques and religious schools.
“They did not object to it. How to object, My Lord, when there have been no meetings held? Projects aside, what is wanting here, is their participation as trustees in Akalbudi’s affairs.
“That is the purpose of board meetings, that is to hold discussions about new places or projects to be carried out for the foundation. Now without any benefit of board meetings, none of the four trustees at any one time had the opportunity to speak up as a trustee,” she said.
In this trial, Ahmad Zahid ― who is also 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.
The trial before High Court judge Datuk Collin Lawrence Sequerah resumes tomorrow.
Raja Rozela is expected to present further arguments tomorrow to show why Ahmad Zahid should be called to enter his defence over the 12 criminal breach of trust charges.