A raised eyebrow about a remark purportedly made by the Judge of the trial of Mirza Mohammad Taiyab

I read the report of the acquittal of Encik Mirza Mohammad Taiyab in Malaysiakini yesterday and its contents were the usual: (i) declarations of vindication (ii) experience of humiliation (iii) it was unfair (iv) he was set up. In short, business as usual. Then I read the Star report today (Saturday) and it basically covered the same things as Malaysiakini.

However there was one very slight but significant difference. The Star has this paragraph:

“The question of mens rea is important for all criminal cases,” he noted.

Mirza, 51, appeared expressionless upon hearing the verdict in the packed courtroom although there was loud clapping and cheering from the public gallery, causing Zainal to admonish them.

“It is a gift from the court. Please let Datuk Mirza cherish this moment,” he said as Mirza nodded and smiled.

Upon hearing the judgment, Mirza immediately rushed to hug and thank his lawyers.

Then I compared this with the New Straits Times which reported that bit too in this way:

Zainal in his ruling said the prosecution had failed to pro-ve a prima facie case against Mirza.

At this point, the public gallery, which was packed with Mirza’s family members and friends, cheered causing Zainal to remind them to be silent.

“It’s a gift from the court. Please let Datuk Mirza cherish the moment.”

Mirza, who was wearing a maroon baju Melayu, looked calm and expressionless when the judge made his ruling. His wife and several family members cried.

Hmmm. Honestly, I thought what they reported is what Malaysiakini would have caught. First, was that even necessary in the report unless its supposed to convey an impression. And secondly, if the Judge did say it, I don’t think judges should be saying such things. My left eyebrow certainly leaped in surprise. However, after reading the report, it should not worry to much because the Attorney General’s Chambers (AGC) and the Malaysian Anti-Corruption Commission (MACC) certainly bungled this case themselves.

They lost because they did not call the original complainant to court i.e. the guy who wrote the report, an MACC officer.

The judge also commented that the prosecution’s failure in calling the actual complainant Mohd Zamri Zainul Abidin, who is with the Malaysian Anti-Corruption Commission, had been fatal to the case.

“Zamri was the person who had gone to the clinic and was the complainant. Hence, his evidence on the investigations should have been important on what had actually transpired with the accused,” he said.

Damn right it is. This is basic law here. The complainant is one of the most fundamental witnesses in a trial, an important link in the chain of evidence. In most cases if a complaint is not proved then there is no evidence of a complaint. Case gets thrown out before the defence even begins to sweat. Why couldn’t he be there? Why bother going on with the case if they couldn’t secure him as a witness? This is a clear case of sheer incompetence on the part of both the AGC and MACC. They’ve also wasted our tax money and the witnesses, the defence counsel and the DPP’s precious time and effort on dead cases like these.

This is real.

My friends and I have been there before. There was a case where three Bangladeshi men stood accused of sodomy in the Ampang Sessions Court. I had the good fortune to do the case with two other terribly learned friends. The charge was that the complainant, an Indonesian man, had been sodomized by those three men in prison whilst they were serving time in Sungai Buloh. We had taken a few dates for the case whilst the DPP verified whether they could get the complainant. Finally, the Judge forbade anymore adjournments and insisted the prosecution proceed. So they did so with the photographer who took a few measly photographs of the alleged prison room. It was a modest size square box, dingy and depressing. The case then came to a grinding halt because the complainant wasn’t there. He was naturally the next witness in the chronology of the facts. A few dates were taken until the prosecution finally confirmed the complainant had left. This was disclosed in open court to which we requested that the case be withdrawn. As the DPP said he had no instructions to do so, he requested another date to obtain instructions. The Judge allowed the adjournment.

On the next date, he confirmed his instructions to proceed. Apparently, his instructions were since he had started the case with one witness, he now had to finish it. Understandably he was not happy either. We all knew by then the prosecution’s case was all but over. The DPP knew it. We knew it. The Judge knew it. But we just went right through the motions, because the AGC didn’t want to withdraw the case. We went through the Investigating Officer (IO), the Medical Officer (MO), and perhaps one other witness, and this still took up about 2-3 days (not full days to be fair, half days, but still!) of our, the Judge’s, the prosecution’s, the witnesses which included the MO and IO. We were all labouring to the end to which we all knew the ending. The Judge of course dismissed the case against them immediately after submissions closed. The Judge was an excellent one who even took one day off from his leave to hear the case because he was so appalled and even angry I think with the prosecution for continuing with the case and wasting his time when they knew they would surely lose. I mean, how on earth are you going to have a hope in hell of winning if the victim of the sodomy isn’t there?! No ass, no case!

That is one of my personal experiences with how the AGC exercises its discretion – with absolutely no regard to how tax payer’s money is spent, the opportunity cost of that entire wasted affair not to mention making the AGC look bad. There are many more I’m afraid. Don’t get me wrong. I want the AGC to be better, more resilient and have a better hit rate. I know how tough it is to be the prosecution – the burden of proof and the role of prosecutor is an onerous one. It bothers me that our criminal defenders are so good at their work that they can get a fair bit of those guys off even before defence is called. This is because though the cops catch the criminals (in theory–lah), the AGC is the one that puts them behind bars, legally. If the AGC fails in these very basic ways in such small cases (RM 13,860.00), how are they supposed to catch the smart, bigger, nastier, highly influential fish? Seriously. The truth is they need to get better, fast.

It is also a shame that they do not bother to try and accommodate individuals with talent to the AGC. One such talent was a friend of mine who earlier in his career considered the possibility of joining the AGC to do prosecution work. Go after the bad guys sort of thing. He even went for the interview. But failed at the hurdle when they asked if he was okay about moving out of KL, to which he was not. AGC said it was not their policy to guarantee to be only located in KL to anybody. Now he has become their formidable opponent in many matters since. If the AGC had foresight, they should have made an exception and then chuck most of the difficult cases at him as quid pro quo for being the exception.

Not that I’m shedding any tears over it.

More mind-bogglingly why prosecute him for some really, really pathetic offence?:

Suspended Tourism Malaysia director-general Datuk Mirza Mohammad Taiyab was acquitted of accepting dental treatment worth RM13,860 paid by a company director, without consideration, four years ago.

I mean this is pathetic. Give or at least show the man some respect-lah. Charge him for some gazillion dollar thing or a massacre of orphans in epic proportions, anything else more nasty but not accepting dental treatment. Whatever it is worth. With his acquittal I think he should now sue them for defamation. “How dare you insult me by alleging that I cannot afford my own dental treatment and implying that my mouth is so terrible as to warrant RMr 13,860.00 worth of dental treatment! So you are trying to say I am so corrupt that my mouth is also-lah?!” I would bellow at them if I was in his shoes.

“You know how hard it is to get to be Director-General? There’s only one in every Ministry you know?! You know how bad my kids are going to be teased about this?!” I would be raving mad-like.

We see some Ministers/ADUNs i.e. Zakaria’s palace, Khir Toyo’s palatial houses packed with cars. Check what their children drive. Check where they all go for holidays. Check all the property they have under them. Then ask whether it all adds up. How do or did they afford that on their pay?

What we need in our laws is a provision like the one Hong Kong has in its Cap 201 Prevention of Bribery Ordinance. Two that I like and want to discuss today is firstly, section 10:

(1) Any person who, being or having been the Chief Executive or a prescribed officer – (Amended 14 of 2003 s. 17; 22 of 2008 s. 4)

(a) maintains a standard of living above that which is commensurate with his present or past official emoluments; or

(b) is in control of pecuniary resources or property disproportionate to his present or past official emoluments, shall, unless he gives a satisfactory explanation to the court as to how he was able to maintain such a standard of living or how such pecuniary resources or property came under his control, be guilty of an offence.

(1A) If the accused in any proceedings for an offence under subsection (1) is or has been the Chief Executive, the court, in determining whether the accused has given a satisfactory explanation as provided in that subsection, shall take into account assets that he declared to the Chief Justice pursuant to Paragraph 2, Article 47 of the Basic Law. (Added 22 of 2008 s. 4)

(1B) The Chief Justice shall disclose to a court information about assets declared to him pursuant to Paragraph 2, Article 47 of the Basic Law if the disclosure is required by an order made by the court for the purposes of subsection (1A). (Added 22 of 2008 s. 4)

(2) Where a court is satisfied in proceedings for an offence under subsection (1)(b) that, having regard to the closeness of his relationship to the accused and to other circumstances, there is reason to believe that any person was holding pecuniary resources or property in trust for or otherwise on behalf of the accused or acquired such resources or property as a gift from the accused, such resources or property shall, in the absence of evidence to the contrary, be presumed to have been in the control of the accused. (Added 9 of 1974 s. 3. Amended 48 of 1996 s. 3)

Subsections (3) and (4) have been repealed and (5) does not concern us. What this does is basically reverse the burden of proof on the accused in relation to their “unexplained property”. I think this to be an excellent provision that should be incorporated into our legislation. This would certainly make it easier for the prosecution to bring corrupt politicians to the book. I just wonder why it’s not there still. With this, all the prosecution would have to show is that there is a prima facie imbalance between their possessions and lifestyle compared to their remunerations (or as the Ordinance calls them “emoluments”) and then it is for the defence to provide an explanation. Surely this is correct because corruption is a crime of private complicity. All the actors of the crime remain silent. Unless one squeals, the prosecution has to prove the corruption by other evidence which is quite difficult if the entire deal were oral and there was a reasonable explanation for them to behave that way. That is the difficulty. What is more, how they accumulated the money is a fact only within their knowledge. The accused would be the person best to account for it than anybody else.

Finally, section 28:

Where a person is acquitted after trial before the High Court or the District Court for an offence under Part II, the court may award costs to that person, such costs to be taxed and paid out of the general revenue.

This provision provides that where a person is acquitted of the charge, the court has power to award costs to the accused, and that I think should be a matter of course unless there are circumstances mitigating that. This should be a general provision and also teach the Attorney-General to be more careful with their cases. Over here, an accused person has to handle his own legal fees with no hope of getting anything back except his liberty upon acquittal. This surely cannot be fair. If you (AGC) have charged me and failed miserably to prove it, why should I be put to cost and expense at your blunder? I think empowering the court to award costs in that manner would be a good check on the AGC and force them to be more circumspect in their cases. This way we will have a clearer economic indicator and maybe even a rough valuation as to how much the AGC’s incompetence is costing us.

Surely, as a member of the public we are entitled to know this.