KUALA LUMPUR, June 24 — The High Court today decided to allow the prosecution to have former 1Malaysia Development Berhad (1MDB) CEO Arul Kanda Kandasamy testify as a prosecution witness against his fellow accused person Datuk Seri Najib Razak in a trial today.
Najib is accused of abusing his power to instruct for amendments to the auditor-general’s audit report on 1MDB, while Arul Kanda was accused of abetting Najib.
High Court judge Mohamed Zaini Mazlan today ruled that Arul Kanda could testify, based on a provision where the prosecution can apply for an accused person to testify against the other accused persons in a trial.
“The prosecution’s application to call Mr Arul Kanda to give evidence as its witness under Section 63 is therefore allowed,” the judge said.
Arul Kanda was then immediately called to the stand as a witness.
On May 20, the prosecution presented to the court its written application dated April 14 under Section 63 of the Malaysian Anti-Corruption Commission (MACC) Act 2009 to call Arul Kanda in as a witness.
Today, judge Zaini explained why he was allowing Arul Kanda to be called in as a prosecution witness in this trial, by deciding on various objections that Najib’s lawyer had made previously.
Najib’s lead defence lawyer Tan Sri Muhammad Shafee Abdullah had previously insisted that the application had to be done through the format of a notice of motion together with an affidavit explaining the reasons for the application.
But the judge today pointed out that Section 63 did not specify that the application must be made through a notice of motion, while also pointing out that the prosecution did not necessarily need to provide its reasons in an affidavit and noting that the prosecution had already given its reasons in another form through written and oral submissions.
“More importantly, the defence has not been prejudiced, as they were able to consider the grounds for the application and state their respective position to the court,” the judge said, noting that the reasons provided by the prosecution had given notice to Najib and would enable the court to exercise its discretion on whether to allow Arul Kanda to testify.
Ultimately, the judge said he was satisfied that the prosecution’s application to call Arul Kanda as a witness was done correctly in the proper manner.
The judge also said he was satisfied with the reasons given by the prosecution for the application, having noted the prosecution’s argument that Arul Kanda would be a relevant witness for the prosecution as he was privy to the communications with Najib about the charge against the latter.
“The fact that Mr Arul Kanda was the CEO of 1MDB at the material time and had attended the meetings on February 24 and February 25, 2016 is relevant to the charge against Datuk Seri Najib,” the judge said.
As for Shafee’s previous objection which had questioned whether Section 63 is constitutional, the judge today said Section 63 only grants the court a “discretionary power” by clearly stating that the court “may” grant the prosecution’s application and that it does not dictate or compel the court to allow the application.
The judge, therefore, agreed with the prosecution that Section 63 does not go against the doctrine of separation of powers — between the legislature, judiciary and executive arms of the government.
The judge also considered the consequences of Arul Kanda testifying as a prosecution witness, by examining the effect of Section 63(3).
Under Section 63(3), any accused person who are required to give evidence for the prosecution, “shall be entitled to receive a certificate of indemnity” which shall be a bar to all legal proceedings against him in relation to all such things — which the court finds he has made a “true and full discovery” of.
The judge explained that the test in deciding whether Arul Kanda has made a “true and full discovery” would be whether he has told the full truth throughout his entire time as a prosecution witness in this trial.
“I must emphasise that the requirement for him to give a ‘true and full discovery’ applies throughout his tenure on the witness’s stand, whether under examination-in-chief, cross-examination or re-examination.
“The word ‘full’ also needs to be given emphasis. He must speak the truth, and nothing but the whole truth, for in the words of Benjamin Franklin: ‘Half a truth is often a great lie’.
“If the court opines that Mr Arul Kanda has made a true and full discovery, he is entitled to the certificate of indemnity,” he said.
The judge stressed that it does not matter whether Arul Kanda’s testimony favours the prosecution or Najib, as the only requirement is for Arul Kanda to tell the whole truth.
“There should not be any danger of him testifying to minimise his role, as his fear would be directed towards ensuring that he tells the truth. Otherwise, he loses the privilege of getting a certificate of indemnity,” the judge said.
The judge also ruled that he would only decide whether Arul Kanda has told the whole truth in court after the latter has finished testifying as a prosecution witness, as well as after all the prosecution’s witnesses have finished testifying.
This was because the judge would look at all the other documentary evidence and what all the other prosecution witnesses have said in deciding whether Arul Kanda had been truthful and whether he could then receive a certificate of indemnity.
“Whether Mr Arul Kanda has given a true and full discovery cannot be determined in isolation. The court must consider the testimonies of all the prosecution witnesses vis-a-vis Mr Arul Kanda’s testimony and the documents that have been tendered as exhibits to determine his testimony’s veracity,” he said.
The prosecution confirmed today that it would only be calling the investigation officer for this case as its final prosecution witness, once Arul Kanda completes his testimony.
As for whether Arul Kanda can resume being the accused person in this trial if the court is of the opinion that he has failed to provide a true and full discovery, the judge today agreed with the approach suggested by another judge in the case of Datuk Chang Hwee Min & Nasrah bin Alit v PP, noting that Arul Kanda in that situation “cannot be tried in this case by this court”.
“The prejudice against him will outweigh the need for expediency,” Zaini said in supporting the approach where Arul Kanda has to be an accused person on trial before another judge instead if he is not found to have told the full truth as a witness.
In the Datuk Chang Hwee Min case, judge Lee had said that once the court disbelieves an accused person who was called as a witness, this person should be rejected entirely and should not be given the certificate of indemnity and that this person once rejected cannot resume as an accused person in the same trial but must be dealt separately in a different case before a different judge.
Previously, lead prosecutor Datuk Seri Gopal Sri Ram had in answering hypothetical questions suggested that a granting of the certificate of indemnity would result in the court giving an acquittal to Arul Kanda, and that it would be safest to charge Arul Kanda in a separate trial in another court if no certificate of indemnity is granted to avoid complaints of unfair trial by Arul Kanda.
With Arul Kanda called to testify as the prosecution witness, his lawyer Datuk N. Sivananthan then informed the court that he would be holding a watching brief for him instead of acting as his defence counsel.
Sivananthan also confirmed that he would not be cross-examining any more prosecution witnesses now that Arul Kanda is testifying.
Throughout this trial, Arul Kanda had sat in the accused’s dock together with Najib, but will be in the witness stand while testifying as the prosecution witness.
Sivananthan today also asked where Arul Kanda would go to once he has completed his testimony as a prosecution witness and before the court decides on his status: “But just for some clarity, where does Arul Kanda go, I don’t think he should go to the docks, he has to be in court after he gives evidence, perhaps he sits in the public gallery, until My Lord makes a final ruling.”
Zaini then said “I should think so, isn’t it”, while Sri Ram said this would be a mere formality.
Shafee himself did not object to Arul Kanda sitting in the public gallery, saying: “In view of the fact he has been listening to all the evidence so far, there’s no harm he continues to hear, because he’s here.”
Following Arul Kanda’s testimony today, the High Court will continue to hear this trial on July 4, where Shafee is expected to further cross-examine Arul Kanda.