Transcript of Day 5 of Rosli Dahlan’s Trial: 6th January 2010
The transcript of Rosli’s trial runs into almost 30 pages. I initially thought of cutting it down but it is so interesting and makes the MACC look like complete fools, and blatant liars on top of that, I thought maybe I should leave it in its entirety for your reading pleasure. Have fun!
NO HOLDS BARRED
Raja Petra Kamarudin
Continuation of Cross Examination of Anthony Kevin Morais (PW2) by Dato’ K Kumaraendran
1. Yesterday, you disputed that Messrs Nordin Adenan acted for BC in the S&P of the Phileo property. Are you aware that Encik Adenan gave evidence in DRY’s trial?
K: Yes.
2. Are you aware that En Adenan said that he is the solicitor for BC in the Phileo transaction and that he got instructions from DRY?
K: Tidak tahu.
3. In fact, he was never impeached in his evidence?
K: Tidak tahu.
4. Okay, let us move to another topic. Kevin, you told us yesterday to the Learned Judge, that you had looked at the cheque butts of Shuttle Eight before issuing the notice?
K: Saya tak katakan bagitu. Apa yang saya katakan ialah saya hanya merujuk kepada cheque butts……….. cheque butts adalah di antara DRY dan RD.
[Public at gallery, lawyers including Bar Counsel Representative Mr Ragu gave various exclamations. RD appeared upset. Various remarks and murmurs. A big stir. Public heard to say –“ We heard him clearly…”. DPP raised objections. Scene became chaotic.]
5. Only yesterday, you said in no uncertain terms that you had looked at the cheque butts of Shuttle Eight to see whether the sum of RM25k was paid or not to DRY.
K: Saya tak kata bagitu. Saya kata saya merujuk kepada penyata bank MSC.
6. You are changing your story again! In my cross on this part, I was referring to the alleged payment of RM25k paid monthly by Shuttle Eight. In other words, you never looked at the cheque butts?
K: Tidak.
7. Can I refresh your memory, I asked you, ‘where is it in the bank statement stated that it was cash cheques’, and you said you looked at the cheque butts.
K: (quiet, mumbled, pouted his lips and kept rummaging his hair and pinching his lips).
DPP: Saya bantah. Soalan2 yang menghina saksi tidak boleh dibenarkan, as per s152 Evidence Act. Here he is misusing the privilege, because the lawyer is insulting the witness.
8. You deny saying this? You said, correct me if I’m wrong, ‘Semua cheque itu ialah cash cheque’. I then asked you, ‘Where does the account say it was a cheque cash?’ Did I not ask you that?
K: Yes you asked that question.
9. Your answer was – It wasn’t from the accounts, but you looked at the cheque butts. Did you say that or not?
K: Saya tidak boleh jawab. I don’t know if I said it in that context or not. I only said cheque butts, I did not say it was Shuttle Eight’s cheque butts…
Dato’ K: What is he saying? (Frustrated). Let me remind you, though you may be a DPP, you can be cited for Perjury!
DPP: Bantah. Peguam menghina saksi.
Dato’ K: I am reminding this witness that if my client lodges a report, he can be cited for perjury.
Judge: Stand down
Break at 11.10am
10. I asked you yesterday, about the cheque butts….
DPP: The witness should be given time to answer.
Dato’ K: Do not interrupt me in my cross…..
[From hereon, DPP objected to practically every other question posed by Dato’ K. This became very disruptive]
11. When saying bout cheque butts, who’s cheque butts are you referring to?
K: Bayaran kepada RD dan DRY. Payments made by DRY to RD and butts from BC to AG. Also, BC kepada RD.
12.Can you remember what you said yesterday?
K: Yes.
13 You said you can produce the cheque butts of Shuttle Eight, did I ask you that question yesterday?
K: I can’t remember if I was asked that question.
14. Your answer was that you can produce the cheque butts if directed to. That was why I reserved questioning further on that for you to produce the cheque butts.
DPP: The ruling has been made, Dato’ should stop questioning about the cheque butts.
15. So, now you are saying you never saw the cheque butts of Shuttle Eight?
K: Tidak Yang Arif.
16. When you said cash cheque, where did you get the info?
DPP: Bantahan. Enough la. He should move on to Danga Bay, enough about cheque butts.
17. So now, I put it to you: You are lying, you are fabricating a lie to the hilt, when you said you never saw the cheque butts.
K: I said saya tak nampak cheque butts untuk Shuttle Eight.
18. So, Kevin, am I correct that you now say you only issued the Notice, right, based on MSC’s statement?
K: And the bank statements.
19. Kevin, do you remember you also told the court yesterday that RD was also the solicitor for the purchase of Danga Bay from BC
K: If I had said it that way, I accept it.
20. Do you have the SPA of between Danga Bay and BC?
K: Yes I do have.
21. The SPA?
K: Yes.
22. This is the SPA. Who are the solicitors?
K: Messrs Yap & Yong.
23. They are Solicitors for BC?
K: Solicitors for the S&P agreement.
DPP: Are they the same agreement? Is Dato’ referring to the same agreement that Kevin is holding?
Dato’ K: What’s wrong with you? I got this agreement from the Prosecution. You tell me if it is the same agreement.
[Laughter from the public gallery as well as the Judge]
DPP: I was just making sure it is the same agreement.
24. Who is the solicitor?
K: Messrs Yap & Yong.
25. They are the solicitors for BC?
K: There is no solicitor for BC mentioned in this agreement. There is just a signature for BC, and another signature. It doesn’t say they are the solicitors for BC.
26. How do you say that RD is the lawyer for BC?
K: I referred to the letter dated 2nd May, yang dikepilkan bersama-sama. Based on this letter, firm of A&G where RD is a partner, adalah terlibat dalam transaksi tersebut.
27. Read the letter.
(Kevin reads the letter dated 2nd May) “In view of your instructions above, we return herewith the original SPA dated 1 June 2000 made between Danga Bay and BC for your safekeeping.”
28 Does it say A&G is acting for BC. Does the letter state it?
K: No it doesn’t state it.
29. Do you know what the meaning of the ‘facility’ is?
K: The OD facility in respect of the property Danga Bay.
30. Did it proceed?
K: It did not.
31. Yesterday, I showed you the SPA between Phileo (PA) and BC.
Court: Mark this agreement.
Dato’/Court : Would this SPA be marked separately, (the Danga Bay S&P) is marked D23. The letter is marked D24.
32. Look at D19, the loan agreement. Remember I referred it to you, you said that virtue of the name A&G there, you said A&G acted for BC.
K: Yes, looking at the other documents as well.
33. Taking your approach yesterday, do you now say Messrs Yap & Yong acted for BC?
K: I think Y&Y drew up this agreement.
34. Do you think A&G acted for BC in this loan agreement? Yes or no?
K: No.
35. Did you take a statement from Y&Y?
K: No.
36. If you had taken a statement from Y&Y, you would know who they were acting for?
DPP: Bantahan!
37. Would you agree with me, that had you taken a statement from Y&Y, you would know who would have acted for BC?
DPP: This is a speculative questions and it can’t be asked.
Dato’ K: I’m saying that this question is important.
Court: He says he didn’t take a statement, so biarkanlah.
38. From your answers Y&Y drew up the agreement?
K: Yes.
39. They would be in the best position to say who they are acting for?
K: Tidak semestinya.
Dato’ K: This is a joke! You are being evasively difficult. Ok, we can go that route .
41. Now, these cheque butts, did you have a view of them, the cheque butts, can you mark it? Cheque Butt 471853, let’s look at it. Did you have a view of these butts?
K: There were in the IP. Yes, I had sight of them.
42. Did you have a look at the corresponding cheques?
K: Only for cheque No. 471900.
43. Did you see the cheque for 471853?
K: I can’t remember.
Dato’ K : Now you can’t remember. Look here, you are here, Mr Kevin, as a witness. You should come prepared. You are here to give evidence.
DPP: Bantahan Saksi dah jawab. Ini menghina saksi
Judge: Teruskan.
44. Did you see the butts?
K: I can’t remember, whether he showed these cheques to me. The IO would be in the best position to answer.
45. Cheque No .471866?
K: That too, I’m not sure.
46. The first cheque was in 1999 and 2nd one is 2000. Can you remember if they were addressed to AG?
K: I can’t remember.
48. Cheque No. 471900, when was it dated?
K: 12th March 2002.
49. You never saw the cheque?
K: That one I saw.
50. You didn’t know what this payment was for?
K: No.
Court: Are you going to mark it?
Dato’ K: Yes.
Court: D25 (a-c) cheques marked.
51. You didn’t know what payments they are for at the time when you sent the notice?
K: No.
52. Are you aware that the agreement between Danga Bay and Bonus Circle was revoked?
K: Yes, based on a letter dated 23 May 2002. The letter marked P24. When it was brought to me, it was attached to the agreement.
53. Do you have the document with you?
K: No, I don’t have the document.
54. How do you know it was revoked?
K : Based on the letter, P24.
55. Do you know who acted for revocation?
K: No.
56. You were aware of P24. Doesn’t it seem fit for you, as a learned DPP to find out who acted for revocation?
K: Tidak Yang Ariff.
DPP: Bantahan, saksi dah jawab.
57. Do you agree with me the date of revocation was 20 March 2003?
K: Yes.
DPP: I object. If the witness has not seen the document, then this is hearsay.
Dato: I think the forgetfulness of the witness has rubbed off on the DPP. This document was given to me by the DPP!
[Tsunami of laughter from the public gallery. Judge also laughed. DPP looked embarrassed]
DPP: Saya cuma nak pastikan dokumen ini betul. Tanayalah dulu ada namapak ini dokumen….
Dato’ K: Do not tech me how to cross-examine!
Judge: Teruskan .
58. Have you seen this document?
DPP: Bantah, saksi dah kata dia tak tahu.
Dato K: The learned DPP is giving cues to the witness. As a matter of courtesy, I would want him to sit down and don’t disturb me in my cross-examination. Yang Arif tolong nasihatkan dia.
DPP: I’m not giving cues, tapi….…
Judge: Teruskan.
59. You said by P24, the agreement was revoked.
K: Yes.
60. Is this the Deed of revocation?
K: Yes.
61. Of the same property?
K: Yes.
62. Same property as Danga Bay?
K: (rummaging) That I can’t say. What I can see is the date of the principal agreement, as P23, but I’m sorry, I can’t find the particulars of the property.
63. What is wrong with you? The properties are the same in the SPA as well as the revocation agreement?
DPP: Bantah. Peguam mengasak saksi. Hormat sikit saksi
Dato’ K: Ok, you want to take long route, we can take long route.
DPP: Bantah….
Dato’ K: Apa semua you mahu bantah, saya boleh bantu saksi.
64. Now look carefully at the 1st schedule. I am just assisting the witness. The Schedule refers to the S&P Agreement?
K: Yes.
64 The revocation was in respect of the same property in the SPA, between BC and DB ?
K: Benar.
65. Have you seen this agreement?
K: No.
66. Can this letter be marked as IDD27. Cheque butts would be marked as IDD(a,b,c)
67. Would you confirm with me Kevin, in the documents by Y&Y, in the SPA in respect of the Danga Bay property, as well as the revocation, A&G’s name doesn’t appear at all on these 2 documents?
K: No.
68. The only document in which A&G’s name appears is in IDD24, the OD in respect of the property?
K: Yes.
69 Did you find out in your investigations which bank were they acting for?
K: No.
70. Do you agree with me that the letter says they do not act for BC?
K: No, it doesn’t say here on the letter.
Dato’ K: Let’s move to another topic.
71. Lets come to reference with DRY proceedings in Shariah court. Would you agree that RD acted as a solicitor for DRY?
K: So, I was informed.
72. Can you look as s.2 of the Act? The definition of ‘associate’. Would you agree that a friend or someone with a longstanding relationship doesn’t fall within of associate within s.2 of the act?
K: What relationship is it?
73. Does the definition of “friend” appear in s2?
K: No.
74. Does “long standing” appear in s2?
K: No.
75. Would you agree with me that long standing friendship or relationship doesn’t appear in s2?
K: Benar Yang Arif.
76. Would you agree with me that just because RD knows DRY since IIU days, it doesn’t make RD an associate?
K: Saya setuju.
77. Just because RD has known DRY and they have known each other from IIU, it doesn’t make him an associate?
K: Yes.
78. Would you agree Kevin that the proceeding that RD represented DRY in the Syariah Court was in respect of divorce proceeding?
K: I was informed.
79. Would you agree divorce is personal in nature?
K: Yes.
80. Would you agree in such a situation, it is only natural for someone to appoint someone known to the client?
K: Yes, benar.
81. Kevin, you said in your evidence that there was an interview with the company secretary (Co-Sec). Did you interview the Co-Sec of BC?
K: No.
82. Any of your officers or IO interviewed BC’s Co-Sec?
K: I am not sure.
83. You do not know whether the Co-Sec was interviewed?
K: No, I didn’t know if she was interviewed.
84. Now, did you make a search of A&G?
K: No.
85. You had sent a notice to RD whose, tell me if you agree with me, name appears in A&G?
K: Yes.
86. You didn’t investigate what position he was in?
K: Saya tidak, tapi ada pengawai penyisat telah buat.
87. At the time you issued the notice, you didn’t know his position?
K: Maklumat ada mengenai dia.
88. What was his position there?
K: From info received, he was a partner
89. Did you investigate the firm?
K: No.
90. Did you know the firm carries on a company secretarial practice?
K: Maklumat telah mengatakan demikian.
91. The company secretarial practice is separate from the legal practice. Are you aware of that?
K: Yes.
92. Did you find out which are the lawyers in charge of the company secretarial practice?
K: No.
92. Did you know RD was never in charge of the company secretarial practice?
K: Saya tidak tahu.
93. Do yu know that the persons in charge was one Rebecca Lai and later it was Ooi Bee Hong. Are you aware?
K: Tidak tahu.
94. Did you or your IOs take any statement under the Act, any witness statements from any partners in A&G?
K: Saya tidak begitu ingat jika ia ada diambil.
95. I put it to you, at the time of issuing the notice, that no statement was taken from A&G?
K: Saya tidak tahu.
DPP: Saksi dah jawab tak tahu, jadi dia tak tahu sebelum atau sesudah .
Mr Ragu (holding a watching brief for the Bar Council): From my observation, every time the DPP objects, he also provides an answer. I find the DPP is leading the witness to a particular answer.
DPP: Watching brief tak boleh campur…
Judge: Teruskan.
96. So, I already put it to you, that the statement was recorded after RD was charged?
K: Saya tidak tahu.
97. Would you agree with me, had a statement been recorded from A&G, you would be in a better position to say who was in charge of the secretarial work?
K: Tidak semestinya.
DPP: Bantah, saksi dah jawab dia tak tahu.
98. So you would not know since the statement wasn’t recorded, whether RD was ever involved in the Co-Sec work?
K: Saya tidak tahu.
Dato’ K : Yes, tidak tahu.
99. Are you aware that A&G provides company secretarial services to almost 600 companies?
DPP: Bantah, saksi dah kata tak tahu, jadi juga tak tahu jumlah syarikat.
Dato’ K: Boleh jawab?
K: I don’t know the number of companies involved.
100. Look at s.2 Akta again. The word “relative” is also defined under the Act?
K: Yes.
101. And, under s32(1)b the words “relative” and “associate” is in connection to a suspect referred to in s.32(1)(a) ?
K: Yes, benar.
102 In this particular case, the suspect is DRY
K: Yes.
103. If you look again at s.32, the word ‘or any other person’. This is a 3rd category, do you agree?
K: “Any other person”, yes.
104. Now can I show you the exhibits, you issued a notice to RD on the 17 July 2007, I think it is P5. And when was it served?
K: From the back page here, it was on the 19th of July. It says RD ‘tidak mahu terima’.
Dato K: I did not yet ask you to read the whole thing, just answer the question.
DPP: That is his answer, let him answer. Jangan potong cakap saksi…
Dato’ K: I am getting a bit irritated with your interjections. Do not teach me how to cross-examine. At this stage I am in charge not you
DPP: The court is in charge, not you!
Judge: We will take a quick break now for 10 minutes.
Break at 12.15pm. Resume at 12.25pm
107. Now, Kevin, would you agree with me, it is wrong to say he refused to accept the Notice. En Rosli accepted the notice but that he didn’t acknowledge receipt?
K: Yes he accepted it, but tidak mengakui terima.
108. Subsequently another notice was sent on 16 August 2007, marked P1. You sent the notice and it was received by him on the 21st of August.
K: Diserahkan kepadanya, yes.
109. Would you agree with me, the 2nd notice, was issued before the expiry of the 1st notice? The 1st notice was on 17july 2007 and had 30 days to comply with it. You then gave another notice on 16.8.2007.
K: It was issued on the day the 1st notice expired.
110. s.32 (1)(b) says about “relative or associate of the suspect, or any other person who is able to assist in the investigation”. But it doesn’t say of an “associate who is able to assist in the investigation”.
K: Yes, it’s the same
111. Don’t insult our intelligence. It is disjunctive. There is a comma there. Did you send the notice to “an associate” or to “a person who is able to assist in the investigation”?
K: I sent it to an “associate who can assist in the investigation”. I read it together.
112, And so according to your reading, you read it as “an associate whom the PP believe can assist in the investigation”?
K: Yes
113. I put it to you, you are wrong.
K: No.
DPP: Bantah, saksi dah jawab. Janganlah asak saksi.
Dato’ K: I can put whatever I want to this witness, you don’t tell me what I can or cannot do and do not interrupt!
114. I put it to you Kevin – the notice sent to RD is bad in law.
K: Saya tidak setuju.
115: Now, you also stated that RD acted as an Advocate & Solicitor (A&S) for DRY, and that is one of the reasons that you consider he is an “associate”
K: I read it with other factors.
116: Yes, another reason is RD acted as a solicitor for BC, and therefore he is an associate?
K: Yes, amongst the other factors.
117: Were you practicing as a lawyer before joining the service?
K: No.
118: Are you aware of A&S-client relationship?
K: Dari segi undang-undang ada.
119: Are you aware that, or do you appreciate that, RD could be in possession of certain privileged info?
K: We have provisions that deal with this matter.
120: Yes, but did you CONSIDER that RD could be in possession of privileged info?
K: Yes I considered that and also I considered s.27 of the Act.
121: Did you also consider that RD could be in possession of privileged info of other clients, other than DRY?
K: No.
122: You said you considered s.27 of the ACA Act.
K: Yes, and also something in the Evidence Act.
123: Do you agree with me that s.27 provides a specific method for securing privileged info, how to seek privileged info from A&S?
K: Yes.
124: To invoke it, you must make an application to a Judge of the High Court to secure the information from an Advocate?
DPP: Bantah Yang Arif, this is a question of law.
Dato’ K: I want to establish that there is mala fide from a group of people, which conspired to send bad notice to RD.
DPP: Tapi ini ada lah isu undang undang….
Court: Go on Dato’.
125: You could have gone to a judge to get the info?
K: Not necessarily. Only when a property is liable to be seized.
126: Do you know the rule of construction? Do you agree that they are two separate sections?
K: I don’t agree, in my interpretation….
Dato’ K: I am not interested in your interpretation.
DPP: Bantah, kita mesti tunjuk hormat pada saksi.
127: Alright, lets take your route. The RM 25k entered into DRY’s account, is it liable for seizure?
K: Eventually, if the court says so.
Dato’ K: Just answer the question, it specific Yes or No?
DPP: Bantah…
Judge: Teruskan.
129: Could you go under this section?
K: Not necessarily.
DPP: The fact that the notice is issued under s.32 and not s.27 is not relevant here. I object.
Judge: Maybe you can submit on it later on, let him continue.
130: I put it to you, you could have gone under this section?
K: Not necessarily.
Dato’ K: What is not necessary, either you can or you can’t. Please answer the question.
DPP: Bantah, this is not relevant.
Dato’ K : The issue of mala fide is relevant.
DPP: There is no evidence to show that there is mala fide. There is nothing to show it .
Dato’ K : He said he referred to s.27. He considered s27. I asked him about s27. You could have gone under that?
K: I considered both. I considered s.27 when I issued the notice.
131: My question is, you could have invoked s.27?
K: I considered s.27 to invoke the s.32 Notice, that is I read s.27 in conjunction with s.32.
132: You thought s. 27 wasn’t appropriate and so you went under s.32?
K: Yes.
133: I put it to you- the reason you didn’t move the court under s.27 is because you know couldn’t convince the court to go under s.27!
K: Tidak benar Yang Arif.
134: In fact you went under s.32 because you couldn’t satisfy 27.
DPP: Bantah, saksi dah jawab kenapa asak dan hina?
Dato’ K: Sila jawab.
K: Tidak benar.
135. I put it to you, the notice under s.32 is unlawful.
K: Saya tidak setuju Yang Arif.
136. When you gave evidence in EIC here in this court, you said RD was a potential witness who could assist in the investigation. You stand by it?
K: Yes.
137: He is an important witness as far as you are concerned?
K: Yes.
Judge: How long would you take to finish this cross Dato’?
Dato’ K : Insya allah, I should finish by today if the DPP doesn’t object.
Break for lunch. Resume at 2.55pm.
138. The last question before lunch, was did you consider RD as an important witness, and you said yes?
K: Yes.
139. Did you instruct IO to take statement from RD before issuing the notice?
K: No.
140. Having considered him as an important witness, you still didn’t record his statement? Can you read s.22 ACA? What does it say?
K: It is for power of ACA Officer to examine persons (Kevin reads s.22 aloud).
141. It goes on to show all the powers that the IO has to investigate witness?
K: Yes.
142. If the IO had taken a statement from RD, he would have got all the info he needed?
K: I cannot answer the question, I am not IO.
143. As a DPP, didn’t you think it was fit to ask the IO to take a statement from RD?
K: I didn’t think it was necessary.
DPP: Bantah. The fact in issue in this case, is whether RD had complied with the notice. All this is not necessary. If you want to put all the provisions here, it is not relevant. If you are going to use all this, you are abusing your privilege. You are abusing the witness.
[DPP went on a long submission of the law on relevancy]
Dato’ K: My point is this witness has taken a course of action to issue a notice under s.32. My submission is that he could have taken a course of action under s.22, to get the information. We are saying that by him invoking s.32, there is mala fide on his part. Therefore I want to ask him why he didn’t invoke the powers under s.22. That is the relevancy of this. All this while we are saying that it is mala fide. As my questioning goes along, it will unfold and will show that there is mala fide. My learned friend the DPP is curbing my intention to show the mala fide intention, and he cannot restrain me from asking all this.
As the witness admitted, he could have invoked s22. This section says he can get all the info in that manner from a witness. That is the normal thing to do. Investigate first. Why then did he go under s.32 which resulted in RD being charged? This is how we are going to show he has mala fide.
DPP: there is nothing in s.32 that says bona fide or mala fide. If there is mala fide or bona fide written in the section, then only it would be relevant. It only says that a notice should be issued, no question of bona fide or mala fide.
Secondly, Defense wants to talk about mala fide motive. He talks about conspiracy. But there isn’t one iota of evidence to show that there is a mala fide intention. There is no evidence to show that there has been a fight between RD, or business transaction gone badly or anything of that sort.
Dato’ K: My learned junior will address Yang Arif in Malay.
Chetan: Sekarang, kami ingin menujukan soalan kenapa saksi ini tidak menggunakan kuasa2 yang lain yang terdapat di bawah ACA. Dan sebelum ini, Yang Ariff sudah memberi keputusan bahawa isu mala fide dan kesahihan notis tersebut adalah satu isu untuk di bentangkan dalam perbicaraaan ini.
Jika kita lihat s.32, frasa “reasonable grounds to believe”, that phrase shows penilaian objektif kepada pembuat keputusan tersebut. Sesiapa yang membuat keputusan tersebut hendaklah membuat keputusan dengan ujian objektif tersebut.
Persoalan mala fide di disini ialah adakah seorang yang munasabah ( a reasonable DPP) akan mengeluarkan notis tersebut , faced with all the evidence in front of him. Oleh itu, adalah perlu saksi ini jawab mengapa kuasa2 lain yang sedia ada tidak digunakan iaitu kuasa yang kurang intrusive, atau less impactful as s.32.
Oleh yang demikian, memang relevant, dan saksi sepatutnya berikan jawapan. Pernyataan DPP bahawa tiada sebarang bukti mengenai mala fide, adalah tidak betul, kerana kita kini di tahap pendakwaaan, ini baru saksi kedua.
Bukti dari semalam sampai ke hari ini, soalan seperti adakah RD sekutu, sama ada dia sebagai seorang lawyer, semua ini terpaksa dibuat secara berperingkat.
DPP: What was the reason of Your Honor’s earlier ruling? It was about MSC. You never gave a ruling, to allow mala fide questions. You didn’t say specifically the ruling about mala fide questions were allowed.
Yes, it was relevant to ask about mala fide when MSC was in the picture, but now it is not.
Now, the other issue about Kevin being only the prosecution’s second witness. But this is the only STAR WITNESS that we have here, he issued all the notices, hence he is the Star here!
Chetan: What about the IO? Do you agree he is important?
DPP: Saya pohon Yang Arif, I bantah about any questions about ss.22 or 32 etc. Saya pohon ruling, yang semua question ini tidak relevant.
Judge : This is my ruling. DPP’s request to disallow the questions is not granted. Defence may proceed to ask.
144: At the point of issuing the notice, you only considered s.27 and s. 32, and you did not consider s.22?
K: Yes.
145. s22 is an integral part of the investigation process of an offence under the ACA, would you agree with me?
K: In my opinion, both 32 and 22 are important.
146. Now, s32 of the Act. Would you agree with me that before you issue the notice under s.32, the investigation should have been completed. If you look at s.32 clearly (reads aloud) would you agree with me, that investigation has to be completed before notice can be issued?
K: In respect of whom? Investigation for the principal offender, yes.
147. In respect of not only principal offender, but also any other person in that section, the investigation must be completed.
K: Let me explain…
Dato’ K: I did not ask for your explanation. Just answer my question – yes or no?
DPP: This is a question of interpretation. Let the witness reply.
Dato’ K: He can explain in your re-examination re-later. Now I am cross-examining. Please answer.
K: In my opinion, the principal offender is the suspect. The investigation has been completed to show an offence has been committed.
149. Thank you for your interpretation, but I’m not interested in that. Would you agree an investigation must be completed?
K: The relationship , there must be evidence that there is a relationship between the suspect and the associate/relative or anyone else.
150. Let me the put it this way. Would you send a notice to the “associate” if the investigation is not completed?
DPP: Could Dato’ please let Kevin explain the meaning of being completed first. Let him finish explaining what is an investigation being completed. Don’t stop him.
Dato K: This is very strange. Why is the DPP speaking on behalf of the witness? If the witness is not sure, he is intelligent enough to ask me to explain!
Judge: Please rephrase and ask the question again.
151. Would you send a notice when investigation is still on-going as to ascertain whether a person is an associate or a relative of the suspect?
K: If the evidence is there, if the core is there, if it is just a question of tying up the loose ends, if the core is there, yes we can issue a notice.
152. If the investigation is incomplete, there is a possibility that what you say is the core of the evidence may not be true, right?
K: (no answer).
153. Is the investigation complete when you sent the notice?
K: The core evidence was there, but we had to tie up the loose ends to complete the investigations.
154. Good! So to tie up the loose ends of the evidence means the investigation is not complete?
K: Core evidence is there, to tie loose ends up, to complete it.
155. Hence it is not complete!
K: Yes, not complete.
156. Let me put it this way to you, when you issue a notice under s.32, against the principal offender, and against the associate, does the investigation need to be completed?
K: It needs to be completed, it is completed when the core evidence must be there to show the relationship.
157. At the time of sending of the notices to RD and to the DRY, I put it to you, the investigation was not complete.
K: Tidak benar Yang Arif.
158. Can we show exhibit P6. Right, read the letter loudly
K: The whole thing? (reads aloud). “para 2: First and foremost I take this opportunity to thank you…. Please be assured that that I am as interested to resolve this matter as quickly as I believe you too must be.”
159. Would I be correct in saying, RD has written to you a very polite letter, thanking you for the extension of time, and assured you he is interested to solve this matter?
K: Yes.
160. Would you agree he is co-operative?
K: From the letter, yes (continuing to read the letter).
“para 3 : Towards that end, I request you to please inform me of the following:
(d) what are the facts on which you deem that I am his associate?;
(e) in what capacity did you deem me to be his associate (bearing in mind that s.2 has several categories of persons defined as “associate”.
161: Can you hold that for a while. Can you agree with me paragraph D and E is RD crying to you to tell him what are the facts that you find him, what is his capacity as an associate?
K: I don’t think it is crying out Yang Arif.
Dato’ K: Figuratively speaking, let’s not split hairs there
[Kevin continues to read aloud] “para 4. In addition to the above, I would respectfully ask you to clarify whether the statement which I am required to furnish extends to my own property which has nothing to do with DRY or only to those which he is alleged to have some interest (as stated in s. 32(1)(b) of the Act
Para 7. While we are on the subject, please permit me to present my grave concerns that there are what I believe to be breaches of s. 21(4) of the Act. Needles to say, I am alarmed at the disclosures in the press about this case.”
162. Yes, now stop at that. What is s.21(4) of the Act?
K: Disclosure (reads out s.21(4) of the Act).
DPP: If I may, based on this letter…
Judge: Put it in your submission.
163. Was there a prompt reply from you?
K: I can’t remember.
164. You replied 21days later, betul?
K: Kalau ikut surat, memang bagitu.
165. Tengok P7, he wrote to you again on 4th Sept which is 10 days later asking you for a reply for his letter dated 24th August. Can you read the 2nd para?
K: (reads aloud) “Para 2: In respect of my request for you to investigate the breach of s. 21(4) of the Act, please advise what has been done to date.”
166. 10 days later he sent you a reminder. When did you reply? On the 14th of September.
K: Yes, 14th of September.
167. That was 3 weeks later, was that a prompt reply?
K: To me yes, I replied it promptly.
Dato’ K: So that is how the MACC works!
167. Please read out your reply letter to RD.
K: (reads out his letter) “Para 2: I am not at liberty to respond to certain requests of yours in the said letters as they concern issues that are currently being investigated.”
Dato K: Would I be correct to say that at that point, the investigation was not complete?
DPP: Complete as to what?
Dato’ K: I don’t know. This is your letter!
168. Do you agree, from your own letter, that investigation wasn’t complete?
K: Incomplete against whom?
169. Look, this is your letter, you should know. You tell me what you mean by investigation not completed.
K: It is a response to Para 3 of 1st letter of RD dated 24 Aug 2007.
170. Investigation is not completed. Okay. So you said you were not prepared to respond to matters as they are under investigation. My next question is, you never said you can’t reply because it was confidential, you only said it was still under investigation?
K: Yes .
171. Without you replying to the queries RD has raised, would you agree that he would be hampered in replying to you?
K: Not necessarily.
172. Do you agree with me, he needs to know all these factors as a basis to reply to the notice you issued to him?
K: Tidak semestinya.
173. Mr. Kevin, you could have replied because it was your Notice addressed to him and he wrote to you to ask you.
K: I could not have replied it, because I am divulging info of investigation.
174. You can’t reply to your own witness?
K: I would be divulging information.
175. So you now say you couldn’t divulge this info because it is confidential?
K: To an extent, yes.
176. In RD’s letter, he asked you in what capacity was he considered an “associate”, bearing in mind s.2 has several categories of “associate”. Is even this confidential? You could have answered him what category he is in?
K: It is not necessary to tell him that.
177. Kevin, here you have deemed him to be a “witness”. He wants to assist you in investigation against DRY. Now you have sent him a notice asking certain info, he has asked you in what capacity. There are 3 categories, alright 4. My question is, is the question he asked, confidential or not?
K: It would be to a certain extent.
178. To say he is a relative, is that confidential?
K: The notice will say in itself.
Dato’ K: My question is, to inform him that he is a relative, is it confidential or not?! (Frustrated)
K: (adamant look).
Dato’ K: The public has a very negative perception of MACC. It is because of officers like you. You are a disgrace to the MACC. You behaved in a cavalier manner to so many things. You call him a witness, yet you never interviewed him. You don’t bother to reply to him and when you do, it is late and evasive. You arrest him and run off for a holiday. You charge him and you come to court without documents. It is no wonder the public is so repulsed with MACC. It is not my perception. It is the public’s!
DPP: Bantah!!!
Judge: Okay, don’t go there. Please proceed.
Dato’ K: I apologise Yang Arif, but the DPP should also advise his witness and not encourage him to be disrespectful to this Court.
179. Could you have mentioned to him what category he was in?
K: I don’t think it was necessary.
180. In your letter, would I be correct in saying, the queries he asked you, you never addressed your mind to his queries. You never answered the questions?
K: I answered to para 7.
181. Para 3 and 4, you didn’t answer?
K: Yes.
182. Now, I put it to you, the notice which you sent under s.32(1)b is a reproduction of s.32(1)(b). Almost word for word?
K: In pari materia, yes, it’s a format .
183. So you just followed the format of s.32(1)(b)
K: To an extent, yes I read and follow the format.
184. He also wrote to you, after you served on him, the first notice.
K: Is that the letter of 24th August?
185. No, it’s the letter dated 10th August. You served the 1st notice. After receiving the first notice on 17th July, he wrote to you. You received the letter?
K: Yes.
186.Could this be marked (P28)? He was travelling overseas and would like an extension of time. Did you reply to that letter?
K: I didn’t reply the letter, but I granted an extension of time.
187. Hang on, you didn’t reply the letter, but issued another notice to extend time?
K: Yes.
188. Now, in the letter dated 24th Aug (P6), he sought clarification on specific issues?
K: Yes.
189. In that letter of the 24th August, he also asked you to clarify whether what he is required to furnish, whether it extends to his own property or not. You didn’t reply to him did you?
K: I did.
Dato’ K: You see Kevin, he asked for specific information as per…
DPP: That is his answer!
Dato’ K: That was not an answer
190. My question was, he asked you to clarify whether does it extend to his property or property that DRY had an interest in. You didn’t reply to him?
K: My reply was to refer him to the notice of the 17th July.
191. But not to the notice of dated of 16th August. It doesn’t refer to the 2nd notice?
K: No.
192. You didn’t specifically reply to his letter?
K: No, not in that way.
193. I’m sorry to put this to you. Your attitude, in not replying to the witness’s letter, showed your arrogant and cavalier attitude.
K: Tidak benar.
194. Had you specifically replied to his queries in his letter, he would have conformed with your Notice?
DPP: Bantah! This is speculative.
195. You agree with me what he posed to you is the subject matter of the charge.
K: The subject matter of the charge is the Notice and failure to comply.
196. The info that he required from you is …
K: The info that he is seeking here is actually what is required from him from the notice. It is all in the notice.
197. Its part of the notice?
K: Yes part of the notice.
198. Look at his the statement, RD’s Statement Under Oath, look at the last paragraph. Can you read the last paragraph?
K (reads aloud). Para 10: I verily believe that I have, to the best of my ability and obligations as required by law, met all the requirements of the Notices and I am ready, able and willing to provide such further details as are in my possession if lawfully required to do so.
199. He has told you again, that he has complied with the notice to the best of his ability. Did you write to him and tell him that he has not fully complied with it?
K: No.
200. And as far as in the said Statement under Oath, can you read paragraph 4 onwards?
K: (reads aloud).
201. The complaint was made public, look at the newspaper clips of the RM 27 million Cop and quoted ACA sources. He is concerned that all subject matter be kept confidential? Therefore, it is clear that an ACA officer has leaked it out?
K: (no answer).
201. Read para 7
K: (reads aloud) “I wish to categorically state that I have never been an associate, and I am complying to the notice under protest. My compliance to the notice should not be seen as an acceptance…
Dato’ K: Could this be marked as D4 (RD’s Statement Under Oath).
202. Eventually, were you shown the cautioned statement of RD?
K: I was not responsible after that.
203. Do you know, RD gave a cautioned statement?
K: I was not aware.
204. Both the notices, can you tell the court, the period in which he supposed to disclose?
K: 2000-2007.
205. When was the alleged payment by MSC to DRY. Was in 1999. Correct?
K: Yes.
206. The Notice doesn’t cover the period right?
K: Yes. The notice is general. Only for the stated properties, they are for a period of 2000-2007
207. I put it to you that the notice sent to RD is too vague and too broad.
K: Tidak benar.
208. I put it to you that it is impossible for him to comply with the terms of the notice as drafted by you.
K: Tidak benar.
209. I also put it to you that there is no willful default by RD in not complying with the notice.
K: Saya tidak setuju.
210. Would you agree, matters complained to the ACA as per s.21 are confidential?
K: It’s the report, the report is confidential.
211. Are you saying that the report is confidential, and everything else is not confidential?
K: s.24(1) only speaks of the report. Yes, things that from part of the report is confidential.
212. If the reports were confidential, how can they be reported to the press?
K: (keeps quiet)
213. Can the ACA release it to press? You are the DPP there you know.
K: I don’t know, it’s not in my area.
DPP: Bantah. This is not. Whether it is confidential is not relevant
Chetan: The accused wrote to the DPP that there has been breach of confidentiality. One of the questions that was asked is that if I give you this info, how do I know that it will remain confidential? He was concerned about leakages to the Press which was already happening even as he wrote to you and he gave you ample examples of the newspapers. All this is necessary to show mala fide, and hence all these questions are relevant.
Dato’ K: He is a DPP and the Head of the Prosecution there. He has access to the IP. Just to round it up, would you agree with me that one of the letters that he wrote to you, he was concerned in the letter, that certain info of the investigation has been leaked to the press?
DPP: The ruling has been made, you are not to ask these questions.
215. I am reiterating what my learned friend has written in the letter. I am not going against the ruling. It has already been tendered.
K: Yes, he did mention it, about concern for confidentiality.
216. And he also sent you a lot of newspaper cuttings. Can I show D4/ID4, can I just confirm, there is a letter dated 24th August 2007 is together attached with D4. Also attached letter 14th Sept and also attached were newspaper cuttings and the last one, ; “The ACA Probes Cop With RM27Million Assets”; all these were not released to the press by your department?
K: In possible breach of s.21(4), I have done my investigation and make a finding, there is no breach (fumbles around).I do not speak for the ACA, my concern was whether there was a breach to s. 21(4). In my view, there was none.
217. Kevin, when you were talking about MSC, you didn’t investigate this part about his delay coming forward to give a statement to the ACA?
K: No, I did not investigate that.
218. No reasons given for the delay?
K: No.
219. You did not consider the delay?
K : No, I did not.
220. This Danga Bay documents, when did you first have sight of it?
K : When the report was brought to me, when I was briefed. As to when I saw them, I can’t remember.
221. Was it before the notice?
K: I can’t remember.
222. You told us, before you issued the notice, you relied on Danga Bay and Phileo Allied , and you saw the papers. Could I safely say you had seen the documents before the notice was sent?
K: I am not sure, I can’t exactly remember the date I saw it.
223. Did you say in Chief and in Cross that you saw the documents before you issued the notice?
K: I may have seen the documents.
224. I am asking you, did you say in this trial, that you saw these 2 docs before you sent the notice to RD?
K: If in evidence it is recorded that I said it, then I said it. It may have been.
225. Could you have sent the notice before seeing at the S&P Agreement of Danga Bay and Phileo?
K: I did see documents, and there was information.
226. My question is, which documents did you see before sending the notice?
K: May I look at the documents.
Dato’ K: You are very quick now, you are thinking twice .
227. SPA with BC, loan documents with DB. Look at SPA between PA and BC.
K: IDD18 I saw, yes the SPA between PA and BC.
228. You saw this document before sending the notice?
K: If I remember, yes I saw documents.
229. What about Hock Hua Bank docs?
K: If I remember, I saw this too.
230. The HHB letter, D20?
K: If I remember, I saw this too.
231. The Danga Bay one?
K: If I remember, I saw the agreement together with this letter. If I remember, I saw this document.
Dato’ K: You saw all this documents before you issued the notice?
232. I put it to you, the 2 notices, did not put a time frame of the properties to be declared.
K: The only reference to period of time was properties that left the country between 2000-2007.
233. The notice by you only refers to present assets?
K: Could you repeat the question?
234. The notice only refers to present assets?
K: Paragraph 1 talks about present assets. Paragraph 4 talks about assets that have been disposed.
235. Yes assets that have been disposed, which he has replied. Look at para 4 of your notice (reads it), it talks about present assets doesn’t it?
K: Yes, present assets, but….
Dato’ K: Doesn’t matter, we’ll submit on that.
236. You have been sued by RD in a civil suit, together with 14 others for conspiracy?
K: Yes.
237. You have yet to file your defence?
K: I have filed it already.
238. Would you confirm, from the time I have crossed you, these factors that you considered to be reasonable factors, I questioned you on that line, would you agree?
K: Yes.
239. When you were cross-examined in DRY’s trial, the issue of MSC was only raised in cross-examination?
K : I can’t remember.
240. Would you also remember, whilst you were on the stand, initially the prosecution refused to disclose MSC’s statement in the DRY trial?
K: I don’t think so Yang Arif.
241. Would you agree with me, it was only in cross-examination that the issue of transfer of funds came about?
K: Yes.
242. Would you agree with me that your answers in the examination in chief in this trial was a product of the cross examination in DRY’s trial?
K: No.
DPP: there has been a lot of confrontation in this case, which has resulted in me not being able to record down. Hence, I cannot re-examine the witness until I have received the notes of evidence from Yang Arif.
Dato’ K: Can we call other witnesses then? To not delay the process of the trial, I have taken down Mr Gunalan’s Note of evidence from the DRY trial.
