Appeal allowed, Tengku Adnan freed of graft conviction

PUTRAJAYA: Former Federal Territories Minister Datuk Seri Tengku Adnan Tengku Mansor walked out a free man today after the Court of Appeal here allowed his appeal to set aside his conviction and sentence of 12-month jail and RM2 million fine on a graft charge.

Justice Datuk Suraya Othman, who read the 2-1 majority decision held that the RM2 million cheque that Tengku Adnan received from businessman Tan Sri Chai Kin Kong was a political donation to UMNO.

"We agree with the appellant's counsel that it is trite that the prosecution is bound by the evidence of its own witness.

"It is our considered view that the evidence of Muhammad Saad Bordani, who was the investigating officer, is significant in that it revealed that the RM2 million cheque was a political donation to UMNO for the expenses of the Sg Besar and Kuala Kangsar by-elections in 2016," she said.

Justice Datuk Ahmad Nasfy Yasin concurred with Justice Suraya, while Justice Datuk Abu Bakar Jais dissented.

Reading out the majority judgment, Justice Suraya said the court found nowhere in the grounds of judgment of the High Court judge that he considered the evidence of Chai, who was the 19th prosecution witness, and of the sixth prosecution witness, Datuk Mohd Hasbi Jaafar, who is Tadmansori Holdings Sdn Bhd (THSB) chief operating officer, that the RM2 million cheque was spent for the by-elections.

"Another crucial point, or issue, which the trial judge also failed to consider was the failure of the prosecution to re-examine the prosecution's star witness, Tan Sri Chai, on his evidence that the sum of RM2 million was a political donation for UMNO.

"We find that such a failure on such a critical point or issue amounted to a non-direction which rendered the conviction unsafe," said Justice Suraya.

On Dec 21 last year, Kuala Lumpur High Court Judge Mohamed Zaini Mazlan sentenced Tengku Adnan, known as Ku Nan, to 12-month jail and fine of RM2 million after finding him guilty.

Tengku Adnan, 70, was charged in his capacity as a public servant, namely Minister of Federal Territories, with having received for himself a total of RM2 million from Aset Kayamas Sdn Bhd (AKSB) director Tan Sri Chai Kin Kong via a cheque deposited into a bank account owned by Tadmansori Holdings Sdn Bhd (THSB), in which Tengku Adnan has an interest in and is known to AKSB as being related to his official duties.

Tengku Adnan, who is currently UMNO treasurer-general, was accused of committing the offence at CIMB Bank Berhad, Damansara Town Centre branch here on June 14, 2016, under Section 165 of the Penal Code which provides an imprisonment of up to two years or a fine or both.

Justice Suraya further said it was undisputed that Chai was a star witness of the prosecution and the entire version of the prosecution's case was built largely upon his testimony.

"It is trite that the failure of the prosecution to re-examine Chai on this pivotal issue amounts to an acceptance of his testimony. In a similar vein, no suggestion was made by the prosecution that Chai was dishonest or untruthful. No attempts were made by the prosecution to impeach Chai or treat him as a hostile witness.

"Further, in his grounds of judgment, the learned High Court judge had not directed his mind on the failure of the prosecution to at least, re-examine Chai on his evidence in cross-examination that the RM2 million was a political donation to UMNO," she said.

The judge said in respect of the official receipt of the RM2 million, Chai reiterated that he received the receipt on June 16, 2016, or June 17, 2016.

"From the records of appeal, we found this direct evidence was neither contradicted nor disproved and thus remain unchallenged by the prosecution. Thus, the prosecution's contention, that the receipt was only issued in Nov 2018, after the appellant was arrested, and that it was a forged document, remain unproved," she said.

Justice Suraya said the trial judge had decided to disregard the evidence of Chai on the receipt and the court was not persuaded by the trial judge's reasoning.

She said based on these facts, the judge should have adopted an inference in favour of the defence.

"With respect, we are of the view, that the failure on the part of the learned trial judge to consider the foregoing direct, unchallenged evidence especially Chai, amounts to a serious misdirection which warrants appellate intervention," she added.

Regarding the receipt book, Justice Suraya said the 20th prosecution witness, Nik Muhamad Faiez Idris, who was a Malaysian Anti-Corruption Commission (MACC) officer, and Muhammad Saad had given evidence that there were two missing receipts from the receipt book.

She said this was contrary to the findings of the High Court judge where he held that the duplicate of the UMNO receipt was the only duplicate copy missing from the receipt book and that he said this had raised a red flag.

Justice Suraya said the court found the submissions by the prosecution that the RM2 million was paid to the appellant for himself as the cheque was credited into the account of Tadmansori and there was no corresponding payment from UMNO to Tadmansori, as well as the whole of Tengku Adnan's defence was a mere invention, were untenable.

"In our judgment, with crediting the RM2 million cheque into Tadmansori did not lead to an irresistible conclusion that the appellant had committed the offence charged and this, per se, is insufficient to convict the appellant, as it is circumstantial evidence which does not point irresistibly to the guilt of the appellant.

"Upon full scrutiny of the prosecution's evidence, we are of the view the defence's contention on the purpose which the money was utilised was not a mere invention of the appellant. In short, I and Justice Ahmad Nasfy, are of the view that there is clearly a non-direction and misdirection by the learned trial judge on the law and evidence.

"The appellant should have been discharged and acquitted by the learned trial judge. Accordingly, in circumstances, we must intervene and thus allow this appeal and set aside the conviction and sentence imposed on the appellant by the High Court. The appellant is therefore acquitted and discharged," she said.

Meanwhile, Justice Abu Bakar, in his dissenting judgment said he agreed with the trial judge's finding that Tengku Adnan had received the cheque for himself and it was not a political donation for UMNO as he had asserted.

"The cheque was not issued to UMNO but it was issued to Tadmansori. After the cheque went into the bank account of Tadmansori, there is no evidence that Tadmansori, in turn, paid the amount to UMNO. The cheque was meant for the benefit of the accused himself, not for UMNO.

"I would say that there is no reason to disturb the sentence that was imposed by the trial judge. The trial judge had correctly taken into account among others, the service to the nation by the accused. The trial judge had also rightly considered the gravity of the offence committed.

"Hence, I would dismiss the appeal and affirm the conviction and sentence against the accused," said Justice Abu Bakar.

Meanwhile, Deputy Public Prosecutor Asmah Musa told reporters that the prosecution would file an appeal against today's appeal decision to the Federal Court.

After the proceedings, Tengku Adnan, represented by counsel Datuk Tan Hock Chuan, left immediately without speaking to the press.

Clad in red baju Melayu, Tengku Adnan, together with his family and supporters were seen reciting prayers outside of the court complex.

-- BERNAMA