Court allows businessman to obtain statements favourable to him from MACC in Home Ministry-linked graft trial

KUALA LUMPUR (March 21): The High Court has allowed an application by businessman Datuk Seri Sim Choo Thiam to obtain written statements from the Malaysian Anti-Corruption Commission (MACC) in the four graft charges against him involving the solicitation and receipt of gratification worth RM15 million.

In his decision on the application to obtain these documents, High Court judge K Muniandy ruled that the written statement of facts in favour of the defence does not at all affect the discretion of the public prosecutor, nor does it prohibit the MACC's powers of investigation.

He also added that the MACC’s powers of investigation are not limited until the trial is over, as there may be unforeseen circumstances that require and warrant additional investigation.

He said that the application made by the accused is justified in law, pursuant to section 51A(1)(c) of the Criminal Procedure Code (CPC), adding that the Sessions Court had erred and was incorrect in law.

“The impugned decision of the Sessions Court judge is incorrect in law as the intent and purpose of section 51A(1)(c) of the CPC, which favours the accused (Sim) on all four counts, is not fully appreciated and applied,” said Muniandy.

“The circumstance of the case of the accused, pursuant to the charges preferred, was also not fully considered before disallowing the application by the accused. Moreover, the judgment was without reason, thus it lacks basis,” he said of the Sessions Court’s decision to quash Sim’s earlier application.

“On that score, the accused has suffered injustice in the eyes of the law, which ought to be corrected by this court exercising its supervisory jurisdiction, which is to observe and ensure that the law as in section 51A (1)(c) of the CPC is correctly applied,” he said.

Sim, through his lawyer Datuk Hisyam Teh Poh Teik, had earlier argued that one of the statements that favoured him was the statement of then home minister Datuk Seri Hamzah Zainudin, recorded by the MACC on the evening of May 10, 2023, after Sim was charged on the same day.

Hisyam said statements the MACC had taken from Sim on Feb 16 and 28, 2023, contained various exculpatory statements which did not support any ingredient of the offence as alleged in each and every corruption charge preferred against Sim.

The public prosecutor was represented by deputy public prosecutor Nor Asma Ahmad.

On September 27 last year, the Sessions Court dismissed an application by Sim to set aside the four graft charges against him involving the solicitation and receipt of gratification worth RM15 million.

Sessions Court judge Rozina Ayob ruled that the charges would not prejudice Sim and that deficiencies, if any, could be curable during trial.

Rozina also dismissed Sim’s application under Section 51A(1)(c) to have any statement or evidence favourable towards him be produced by the prosecution, with the prosecution denying the existence of such evidence. Rozina did not provide any reason for dismissing the second application.

Sim, 53, had been charged in May last year, with soliciting a RM15 million bribe from Asia Coding Centre Sdn Bhd managing director Hep Kim Hong as inducement for then home minister Datuk Seri Hamzah Zainuddin to assist Asia Coding to secure projects from agencies under the ministry.

According to the charge, Sim had asked Hep for the amount through another person, Syed Abu Zafran Syed Ahmad. The offence was alleged to have occurred at Solaris Dutamas, Kuala Lumpur, in June 2021.

The other three charges are related to the receipt of RM3.5 million, RM5.5 million, and RM6 million from Hep, as inducement for Hamzah to assist Asia Coding in securing projects from agencies under the ministry. The offences are alleged to have also occurred at Solaris Dutamas, Kuala Lumpur, on three occasions between July 19 and 30, 2021.

ll charges were framed under Section 16(a)(B) of the Malaysian Anti-Corruption Commission (MACC) Act 2009, and carry up to 20 years' jail and a fine of not less than five times the amount of the bribe or RM10,000 — whichever is higher — upon conviction.