Will the charge against Guan Eng stick?

Malaysiakini:

Will the charge against Guan Eng stick?

by P Gunasegaram



COMMENT | The issue had been smouldering for weeks and then it caught fire as the rumours swirled about the imminent arrest of former finance minister, former Penang chief minister and DAP supremo Lim Guan Eng.

The public waited with bated breath for the charges to be read out this morning after Lim was arrested by the MACC last night and detained overnight over alleged corruption involving the controversial RM6.3 billion Penang undersea tunnel project associated with the equally if not more controversial RM46 billion Penang Transport Master Plan project.

But it was an anti-climax when the charge against Lim was laid out before Kuala Lumpur Sessions Court judge Azura Alwi, not least because no figures were given beyond a 10 percent share of profit which appears to be verbally agreed.

The charge read as follows: "That you, on March 2011, at a location near the Gardens Hotel, Syed Putra Circle, Mid Valley City, in the Federal Territory of Kuala Lumpur, during your tenure as chief minister of Penang, have solicited a bribe, namely a reward in the form of 10 percent of the profits that will be obtained later from Zarul Ahmad Bin Mohd Zulkifli, as a fee to help the company owned by Zarul Ahmad to be appointed to carry out construction of the main roads and tunnels in the Penang undersea tunnel project.

"Therefore you have committed an offence under Section 16 (a) (A) of the MACC Act 2009 which is punishable under Section 24 (1) of the same Act.

"Any person who commits an offence under Section 16 of the MACC Act 2009 may upon conviction be subject to - a) imprisonment for a term not exceeding 20 years and b) fined not less than five times the amount or value of the bribe which is the subject of the offence if the bribe can be assessed in the form of money or RM10,000 as the case may be."

The important point to note about the charge is that the alleged offence took place in March 2011, more than nine years ago. The offence was only for soliciting a bribe, not actually receiving it and it mentioned 10 percent in profits. So far the project has not been implemented and therefore there are no profits.



Presumably, if there was no profit from the project, then Lim will get nothing.

It may be too early to say so with total confidence, but preliminary analysis indicates that it is going to be very difficult to prove what has been alleged.

For the prosecution to prove the charges beyond doubt it will be necessary to show that there was a clear attempt to solicit the bribe. Would there be written evidence or a recording or it is going to be one man’s word against the other which won’t be strong enough to convict?

Punishment for the offence is serious - up to 20 years in prison and fines of up to five times the value of the bribe and it is unlikely that a court will convict based merely on one man’s word against another’s unless there is other evidence.

Earlier settlements

The backdrop to Lim’s charge was laid by a number of cases and settlements earlier of which perhaps the most stunning was the withdrawal of 46 money- laundering charges against former Sabah chief minister Musa Aman related to timber concessions and his acquittal.

Musa subsequently, at the end of July, attempted to overthrow the Sabah government led by Shafie Apdal who upstaged him by successfully having the state assembly dissolved.

Earlier, in May, in a surprising turn of events, a settlement was reached by the prosecution in the case involving Najib Abdul Razak’s stepson Riza Shahriz Abdul Aziz, on US$248 million in money laundering charges. This rotten deal saw Riza getting away scot-free for merely relinquishing any claims he has on the US Department of Justice seizure of assets he bought with money stolen from 1MDB. He was facing fines of some RM5.5 billion and 75 years of jail.



And then there was Najib’s case itself where he was found guilty of all seven charges involving RM42 million and sentenced to 12 years jail and RM210 million in fines after many had felt that he would somehow be found not guilty. Najib subsequently broadcast a video defence on Facebook alleging the judge had erred in law.

One more notable mention is the controversial settlement the government reached with Goldman Sachs over the latter’s part in theft from 1MDB from US$6.5 billion in bonds it arranged for 1MDB. The current finance minister was criticised for agreeing to a US$3.9 billion settlement of which cash involved was just US$2.5 billion. This was hotly debated in Parliament yesterday.

Lim faces further charges in Penang with the MACC saying he will be charged under Section 23 of the MACC Act on Aug 10 and 11. Section 23 says any officer of a public body who uses his office or position for any gratification, whether for himself, his relative or associate, commits an offence. Punishment is similar - up to 20 years in prison and fines up to five times the amount involved.

It will be interesting to see what kind of evidence the prosecution will produce to convict Lim. If the evidence is weak, then it will strengthen public opinion that recent court cases and outcomes have been politically motivated even if Najib has been found guilty.