PUTRAJAYA (Oct 16): Former Felda chairman Tan Sri Mohd Isa Samad’s defence team on Monday questioned the credibility of prosecution witness Zahid Md Arip’s testimony in regard to his handover of the RM3.09 million in graft money given by Gegasan Abadi Properties Sdn Bhd (GAPSB) to Isa for the sale of Merdeka Palace Hotel and Suites. 

The defence claims that this doubtful testimony was grounds to set aside Isa’s corruption conviction and sentence.

Defence lawyer Datuk Salehuddin Saidin told the Court of Appeal (COA) that Zahid, Isa’s former aide and a former senator, is a person who could not be trusted, as he had earlier been arrested by the Malaysian Anti-Corruption Commission prior to Isa’s charging, and that he had vested interests in putting the blame on Isa.

“If Zahid’s testimony is accepted, that is, if the court accepts Zahid’s testimony as it is despite doubts on it, it shows how easy it is to implicate someone when there is no evidence to corroborate it (the alleged crime),” he said.

The defence lawyer added that testimonies by Isa’s former secretary and security did not corroborate Zahid’s testimony that he had left a bag containing the cash in the former Felda chairman’s office [each time a payment was made].

Isa, 74, is appealing his six-year jail sentence and RM15.45 million fine, after the High Court on Feb 2, 2021, found him guilty of nine counts of graft in receiving RM3.09 million from GAPSB director Ikhwan Zaidel.

The former Felda chairman was found guilty under Section 16 A(a) of the MACC Act, with receiving the sum from Ikhwan at his office through Zahid, to facilitate Felda Investment Corp Sdn Bhd (FIC), a Felda subsidiary, where Isa was a director, to buy the Merdeka Palace Hotel from GAPSB for RM160 million.

Isa allegedly received the sum in nine tranches of payment between July 21, 2014 and Dec 11, 2015.

Salehuddin also told the three-member appellate bench, led by Datuk Vazeer Alam Mydin Meera, that trial judge Datuk Mohd Nazlan Mohd Ghazali (now a COA judge) had committed an error in law by calling Isa to enter his defence, when Nazlan had acquitted Isa of the criminal breach of trust (CBT) charge.

“The High Court found that the element of dishonest intention in the CBT charge had not been proven. Hence, the element of CBT was not proven. The prosecution themselves accepted the fact in withdrawing their cross-appeal, [thus] the conviction on graft cannot stand,” he said.

Salehuddin, who appeared with lawyer Siti Sarah Khalil, added that Nazlan had also erred in law in finding Isa guilty by shifting the goal post, when, despite acquitting Isa of CBT, in his written grounds Nazlan had found the purported gratification given to Isa by GAPSB was to prevent him from cancelling the deal, or delaying FIC’s RM160 million payment for the hotel.

“If this is so, the charges should have been amended. The court had erred in allegedly shifting the goal post, as he [Isa] was initially charged with going against the Felda board to approve the acquisition of the hotel, as any acquisition in excess of RM100 million required the board’s approval,” Salehuddin added.

“Hence, due to the doubts on the purported handover by Zahid to Isa in the latter’s [Isa’s] office on the 49th floor, this court should give the benefit of the doubt to Isa.”

Salehuddin said that the High Court’s decision to convict Isa amounted to a non-direction and misappreciation of the law, as there had been no amendment to the charge. The judge had erred in arriving at the decision to convict Isa by looking at another issue which was not in the charge.

“When someone is charged before the court, he must know what is the case that he has to answer for,” the defence lawyer said, adding that for these reasons, coupled with doubts (regarding Zahid’s testimony), the appellate court should allow Isa’s appeal to set-aside the conviction and sentence.

Meanwhile, deputy public prosecutor Afzainizam Abdul Aziz replied that the High Court had made the right decision as the CBT charge was different from the graft charge.

The gratification, Afzainizam said, was paid for fear that Isa might use his influence to cancel or delay payment of the acquisition, and the first payment of gratification was made when the deposit was paid by FIC, where Ikhwan testified that he had to withdraw his savings first to pay the sum.

The DPP further told the court that Zahid had testified that Isa had called him to his (Isa’s) office and asked whether there was any development in Sarawak (referring to the acquisition and purported bribe) and his aide said there was none.

“Following that, Isa said to Zahid to send his salam (send his greetings) to GAPSB, denoting that he was expecting a kickback (in bribes). Zahid had relayed the matter to Ikhwan, and the payment was made,” Afzainizam said.

The DPP said there were testimonies that RM3 million was adequate to help Isa to finance his political activities, and after the amount was reached, it (the bribe payments) stopped.

Furthermore, there were testimonies from prosecution witnesses, including from Ikhwan, that sums of money were withdrawn and given to Zahid to be given to Isa on this.

The prosecution said the fact that Zahid had left the bag with cash, despite Isa’s secretary denying seeing them, does not weaken the prosecution’s case, as she also testified that Zahid had access to Isa’s office.

The bench that also consists of judges Datuk Ahmad Zaidi Ibrahim and Datuk SM Komathy Suppiah deferred in delivering their decision to another date, as the hearing ended this afternoon.

Also read: 
High Court sentences Isa Samad to six years in jail, slaps RM15.45m fine
‘Salam’ was the secret code of Isa’s ex-aide for bribe