A. Introduction

The Court of Appeal, on Friday, acquitted the former Federal Territories Minister, Datuk Seri Tengku Adnan Tengku Mansor (“Datuk Seri Tengku Adnan”). The Court of Appeal, with a 2-1 majority, reversed the decision of the High Court, which convicted him with a sentence of 12 months imprisonment and a fine of RM2 million.

B. Salient Facts

Datuk Seri Tenkgu Adnan was charged with accepting RM2,000,000 for himself from Aset Kayamas Sdn Bhd (“Aset Kayamas”), through Tan Sri Datuk Chai Kin Kong (“Tan Sri Chai”). The cheque for this amount was deposited into the bank account of Tadmansori Holding Sdn Bhd (“Tadmansori”). However, this charge arose as Datuk Seri Tengku Adnan had taken the money, without taking into consideration the fact that the company that gave him such sum was one that he had dealings with in his official capacity. He claimed that the money was in fact a political donation and not one for his benefit. The question in fact here was whether the money was utilised for his own benefit, or was indeed a political donation.

Although initially charged in the Sessions Court, pursuant to Section 417 of the Criminal Procedure Code, the case was transferred to the High Court. The charge was brought under Section 165 of the Penal Code which reads:

Whoever, being a public servant, accepts or obtains, or agrees to accept or attempts to obtain, for himself or for any other person, any valuable thing, without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted, or about to be transacted, by such public servant, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.”

C. Decision of the Courts

 High Court

Justice Mohamed Zaini Mazlan referred to Section 165 of the Penal Code and the Federal Court case of Mohd Khir Toyo v PP [2015] 8 CLJ 769, and held that there are four main elements the prosecution would need to satisfy beyond reasonable doubt. These elements are as follows:

  1. The accused, as the Minister of for the Federal Territories, was a public servant;
  2. He had received RM2,000,000.00 from Tan Sri Chai for himself;
  3. There was no consideration given for the RM2,000,000.00; and
  4. He knew that Tan Sri Chai had connections with his official functions.

Looking into the first element, the learned Judge found this element satisfied as Datuk Seri Tengku Adnan was paid a monthly salary by the government to perform his public duties as the Minister for the Federal Territories. As such, he is then a public servant.

On the second element, the learned Judge scrutinised the UMNO receipt which was produced as evidence that the money was a political donation. In doing so, the High Court found that the receipt, although issued 4 year ago and kept in the wallet of Tan Sri Chai, was crisp and new. Further, the receipt was issued by UMNO to Aset Kayamas, although the cheque was made out to Tadmansori. The learned Judge stated that it was common practice for receipts to be issued by the one who received the proceeds, which in this case was Tadmansori. Hence, the learned Judge held that the receipt should be treated with absolute suspicion and should not have any weight attached to it. In fulfilling the second element, the learned Judge held that as a high-ranking politician, Datuk Seri Tengku Adnan should have known that it was only right that the contribution be made to UMNO directly. Hence, the learned Judge held that there was no “conceivable reason for the monies to be paid to a distinct entity that had no relationship to UMNO”.1 This then signified that the monies was for the accused himself and not as a political donation.

The learned Judge found that the third element had also been successfully established as the money trail ended with Tadmansori’s bank account. As the beneficiary here was Datuk Seri Tengku Adnan, the learned judge held that Datuk Seri Tengku Adnan had to give some consideration for the monies received, and yet there was none here.

Finally, on the fourth element, the burden to satisfy here was merely that Datuk Seri Tengku Adnan knew that Aset Kayamas had connection with his official function as the Federal Territories Minister, and not that he had used his position to help Aset Kayamas in its dealings with his ministry or DBKL. The learned judge concluded that Datuk Seri Tengku Adnan clearly knew that Tan Sri Chai had connections with his official function as the Minister for the Federal Territories, hence fulfilling this element.

Ultimately, the learned Judge followed the sentencing precedence of Mohd Khir Toyo v PP [2015] 8 CLJ 769 and sentenced Datuk Seri Tengku Adnan to 12 months imprisonment and a fine of RM2,000,000.00, in default of which, six months imprisonment.

Court of Appeal

In leading the three-man bench, Justice Suraya Othman, set aside the conviction and sentence of the High Court. The Court of Appeal found that the monies was provided by Tan Sri Chai for two by-elections, namely the ones in Kuala Kangsar and Sungai Besar. The Court of Appeal also found that the prosecution has accepted the testimony of Tan Sri Chai due to the prosecution’s failure to re-examine Tan Sri Chai’s testimony.

In departing from the decision of the High Court, Justice Suraya held that:

the learned High Court judge had not directed his mind to the failure of the prosecution to at least re-examine Chai on his evidence that the RM2mil was a political donation to UMNO. We find that such a failure on such a critical point or issue amounted to a non-direction which rendered the conviction unsafe.” 2

To this end, the prosecution team highlighted that the cheque was credited to Tadmansori and that was the end of the money-trail with no payment made to UMNO. However, the Court of Appeal found that it did not lead to a conclusion beyond all reasonable doubt that Datuk Seri Tengku Adnan had committed the offence. This is because the evidence is circumstantial at best, which cannot irresistibly conclude that Datuk Seri Tengku Adnan was guilty. Justice Ahmad Nasfy Yasin concurred with Justice Suraya Othman.

Justice Abu Bakar Jais dissented. Delivering the dissenting opinion, the learned Judge agreed with the learned High Court Judge that the cheque for the monies was received by Tan Sri Tengku Adnan was indeed not a political donation. This was due to the fact that Tan Sri Tengku Adnan has a 99.99% stake in Tadmansori, making the receipt of such monies self-serving in nature.

D. Conclusion

On one hand, one might think that the prosecution should have at least challenged Tan Sri Chai’s testimony on the political donation issue. Contrastingly, one might perceive it to be unnecessary as there was no evidence demonstrating that the sum of RM2 million went into UMNO’s account. The decision now lies in the hands of the apex court of Malaysia, if the prosecution chooses to appeal Datuk Seri Tengku Adnan’s acquittal. The prosecution has 14-day, beginning last Friday, to make this decision. Ultimately, only time will tell.

Footnotes :

  1. Public Prosecutor v Tengku Adnan v Tengku Mansor, Criminal Trial No. WA-41-1-01/2019, [110].
  2. Nurbaiti Hamdan, ‘Ku Nan acquitted, prosecution to appeal’, The Star, (17 July 2021),<https://www.thestar.com.my/news/nation/2021/07/17/ku-nan-acquitted-prosecution-to-appeal>.

One response to “Ku Nan’s Acquittal: The Value of Chai”

  1. Simon avatar

    Thanks Saradha. It sounds that the CA imposes a duty to re-examine on the prosecution, and that a failure to do so renders them accepting that the money is a political donation. This seems to overly simplify the many important principles and rules contained in the Evidence Act and elsewhere. It is the duty of the prosecution to prove all elements and discount any defences beyond reasonable doubt. The evidence of the prosecution witnesses is in-chief, and subject to any cross-examination and documents produced by the witnesses. It is then the duty of the fact-finder to examine all such evidence and determine where the facts lie. Re-examination is not compulsory, and there is no recognised principle that a failure to re-examine means acquiescence to what was said in cross-examination. Re-examination is merely to clarify any matters from cross-examination. Further, the re-examiner is limited to only asking non-leading questions of the witness, in contrast to the advantage of the cross-examiner in this regard. Hence, it is not possible for a re-examiner to challenge cross-examine answers according to this rule, unless an application is made to treat the witness as hostile. Such applications are not always allowed, and questioning along such lines is risky.

    It appears that if a witness say “it was a political donation” then the prosecution case is wobbly. This would be a disappointing legal situation that most Malaysians would abhor. Perhaps an amendment to the law would be necessary?

    Describing the flows of money as “circumstantial at best” also seems to impose a very high burden on prosecution. People don’t note money flows in such situations clearly as “bribes” in their conversations or written communications. Nudges, winks and non-verbal communication is the norm, with clear avoidance of describing a spade as it is.

    As former defence counsel I always wish defendants all the best in legal proceedings, and in this case hopefully with clarification on these issues in the Federal Court.

    Liked by 1 person

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