WHEN an accused is hauled to court to face a criminal proceedings, he has no obligation to say anything. He is presumed to be innocent until he is proven guilty beyond reasonable doubt in a fair trial in open court.
But, once the prosecution team has proven a prima facie against him and the trial Judge has called for his defence, he must put up his defence, failing which he will be convicted.
At the end, the trial judge will consider whether the accused has raised a reasonable doubt in the prosecution's case. If he can do that, he is entitled to be acquitted and discharged, but if he fails, the prima facie case will become a conviction. It looks like Ku Nan (Tengku Adnan Tengku Mansor) fell in the latter category. Let us find out why.
He was charged as a civil servant under Section 165 of the Penal Code with receiving kickbacks totalling RM2 million from Aset Kayamas Sdn Bhd (AKSB) managing director Tan Sri Chai Kin Kong, an offence which carries a maximum two years' jail, or a fine, or both, upon conviction.
The kickback (an AKSB cheque), was deposited into a CIMB account owned by Tadmansori Holdings Sdn Bhd (THSB), of which Ku Nan has an interest. The offence was committed at the CIMB Bank Bhd, Pusat Bandar Damansara, Kuala Lumpur on June 14, 2016.
The prosecution's case is that on Jan 27, 2015, Chai handed over a letter of proposal to the accused regarding a proposed housing project in Bandar Tun Razak, which the accused then approved. In return, the accused had asked Chai to contribute to Umno's political campaign for two pending by-elections.
In his defence, he said that the charge against him was a political conspiracy. He admitted receiving the cheque from Chai as a political donation to meet the campaign expenses for the two by-elections on June 18. He also told the court that the RM2 million given by Chai was like "pocket money" to him.
On the issue of conspiracy, High Court judge Mohamed Zaini Mazlan said the accused "is not the first politician charged with a criminal offence that has complained of a political conspiracy". Previously, it was former Selangor menteri besar, Datuk Haron Idris.
On the issue of political donation, the trial judge said: "If Aset Kayamas had issued the RM2 million as a political donation, it would have been necessary for the company to have a copy of the receipt for auditing and recording purposes."
The judge added: "I find it highly questionable that this was not done particularly if Chai had indeed received the Umno receipt from the accused two days after he had given the cheque."
The judge also found it incredible that Chai did not think it was crucial to inform the MACC officers of the existence of the Umno receipt, when he appeared before them several times to have his statements taken. The trial Judge had examined the Umno receipt and found it to be "crisp and new". The receipt was signed by the accused.
He found it "alarming" that the date of the Umno receipt is not in sequence to the receipts issued before and after it. It was "glaringly the only one out of sequence", the judge added.
Treating the Umno receipt "with absolute suspicion", the judge said he will not attach any weight to it. The receipt should have been issued by Tadmansori (the company receiving the cheque) and not Umno.
The judge added: "It makes no sense for Umno to issue the receipt when the cheque was not banked into its account… any auditor auditing Umno's accounts would question the Umno receipt, as there was no RM2 million payment made into the party account."
He concluded that "the fact the accused specifically instructed Chai to make the cheque payable to Tadmansori and not Umno could only mean that he (the minister) intended to benefit himself from the inception".
The judge said that he had conducted "a maximum evaluation of all the evidence by the accused and the prosecution at the end of the trial" and found that the proseuction had proven its case beyond a reasonable doubt against the accused.
He concluded: "The accused has failed to raise any reasonable doubt in the prosecution's case. I therefore find the accused guilty and convict him of the charge against him."
In considering sentence, the trial judge said that he is "inclined to follow precedents which indicate that a jail sentence is an appropriate punishment".
Emphasising that the accused should not be allowed to profit from the wrong that he had committed, the Judge sentenced him to 12 months of imprisonment and a fine of RM2 million, or in default six months' imprisonment. Ku Nan has since filed an appeal against his conviction to the Court of Appeal.
* The writer, a former federal counsel at the Attorney-General's Chambers, is deputy chairman of the Kuala Lumpur Foundation to Criminalise War.