Tuesday, November 30, 2021

Guan Eng graft trial: Defence argues deceased witness' statement ‘fabricated’ - Can a dead man talk?

Guan Eng graft trial: Defence argues deceased witness' statement ‘fabricated’

The MACC statement purportedly given by the late Ewe Swee Kheng in relation to Lim Guan Eng’s Penang Undersea Tunnel corruption case is “fabricated”, the Kuala Lumpur Sessions Court heard today.

The former Penang chief minister’s defence counsel Gobind Singh Deo contended that this is because the MACC’s recorded statement dated Aug 14 this year, did not comply with Section 30 (8) of the MACC Act.

The lawyer said this is because Section 30 (8) requires every part of the statement recorded by the MACC officer from Ewe to be in writing.

Referring to the part of the statement purportedly recorded from Ewe by MACC at the graft buster’s Penang state headquarters, Gobind questioned why certain parts of the statement were in handwriting and other parts in a computerised format.

The lawyer questioned the suspicious circumstances surrounding the matter, whereby the first three statements separately recorded by MACC from Ewe last year seemed to “exonerate” Lim, but the fourth one recorded this year however seemed to implicate the accused.

“The only implication here is it (statement purportedly recorded by MACC from Ewe) is a fabrication,” Gobind said, applying for the court to not allow all four statements to be admitted as evidence.

The prosecution today is seeking to tender as evidence the statement that the MACC purportedly recorded from Ewe in order to bolster its case in former finance minister Lim’s graft case linked to the Penang Undersea Tunnel project.

It was reported that Ewe, the founder of Ewein Berhad and one of the prosecution’s key witnesses, passed away following a fall from a high-end condominium at Jalan Kelawai, Penang, in the early hours of Oct 5.

During proceedings before judge Azura Alwi today, deputy public prosecutor Wan Shaharuddin Wan Ladin argued that the MACC statements are legally admissible as evidence.

The DPP contended that this is because the defence failed to challenge the portion of the MACC recorded statements that state Ewe was not compelled to give the statements.

“My learned friend (Gobind) failed to challenge page five (of the MACC recorded statement) that the late witness (Ewe) was not forced (to give the statements) and was telling the truth to the MACC,” Wan Shaharuddin told the court.

Azura then fixed Dec 13 for a decision on the prosecution’s application to tender the MACC statements.

The ongoing trial before the lower court is in relation to the four graft charges against Lim.

One charge, framed under Section 16(A)(a) and Section 23 of the MACC Act, accuses him of using his position as then Penang chief minister for the gratification of RM3.3 million as inducement for helping a company belonging to Zarul Ahmad Mohd Zulkifli to secure the island state’s RM6.3 billion undersea tunnel project.

Zarul is a senior executive director of Consortium Zenith Construction Sdn Bhd, the main contractor for the undersea tunnel project.

The offence was allegedly perpetrated at the Penang Chief Minister's Office, 28th Floor, Komtar, George Town, Penang, between January 2011 and August 2017.

Under Section 23(1) of the MACC Act, the offence is punishable with imprisonment of up to 20 years and a fine of not less than five times the value of the gratification, or RM10,000, whichever is higher.

The second charge, also under Section 16(A)(a), accused Lim, in his capacity as the then Penang chief minister, to have solicited from Zarul bribes amounting to 10 percent of the profits to be earned by the company as gratification for helping secure the project.

The offence was allegedly committed near The Gardens Hotel, Lingkaran Syed Putra, Mid Valley City, Kuala Lumpur, between 12.30am and 2am in March 2011.

The charge, framed under Section 16 of the MACC Act, provides for imprisonment for up to 20 years and a fine of not less than five times the value of the gratification, or RM10,000, whichever is higher.

The Bagan MP also faces two counts of causing two plots of land, worth RM208.8 million and belonging to the Penang government, to be disposed of to two companies allegedly linked to the undersea tunnel project.

The two charges, framed under Section 403 of the Penal Code, carry imprisonment of up to five years, whipping and a fine.

The offences were allegedly committed at the Penang Land and Mines Office, Level 21, Komtar, between Feb 17, 2015, and March 22, 2017.

1 comment:

  1. Common Law principles will heavily discount witness statements if the witness declines to testify in court or cannot be found or has died.
    It is in line with the principle that justice must be done in the open.
    The witness Must be available for cross examination, else the evidence that is Witness-dependent
    must be treated with much less weight.
    Otherwise we end up with anybody can say anything against another person.

    Exceptions are if the evidence is purely based on objective records that speak for themselves e.g. official transaction records