Former AG Gani Patail ha no evidence to prosecute Musa Aman,and neither
did his successor Tommy Thomas ,despite trying to locate the evidence for more
than a year and a half
The acquittal of Musa Aman has raised a stink despite the fact that there was no evidence. The Star, quoting Attorney General Idris Harun reported:
“Documentary evidence from companies and banks which were expected could not be obtained through Mutual Legal Assistance in Criminal Matters from Hong Kong.
“The Department of Justice Hong Kong advised that companies and banks in Hong Kong are only required to keep records for seven years and it is highly unlikely that neither the banks nor the companies would still have the records,” he said, adding that some witnesses for the prosecution have passed away, suffered serious medical ailments or are not in Malaysia anymore.
That there was no evidence raises the question as to why the case was revived by the AGC under AG Tommy Thomas after it had been discontinued by the AGC under AG Ghani Paail. As former AG Ghani swore in his affidavit which was relied on by current AG Idris Harun:
“This decision is strengthened by a letter dated Dec 22,2011 from the Independent Commission Against Corruption (ICAC) Hong Kong stating that their investigation against Musa Aman is complete and on the basis of known facts no further investigative action will be pursued."
Given the earlier lack of evidence the AGC under AG Tommy Thomas could have only revived the prosecution against Musa Aman if fresh evidence had been obtained. He could have only done so pursuant to powers granted the Attorney General pursuant to Article 145(3) of the Malaysian Constitution.
The 145(3) discretion allows the AG to look at matters anew, and make a fresh decision to prosecute based on novel evidence. He does not actually "re-open" an old case.This limitation on the AG arises from the fact that the Article 145 excludes any review of an AG's decision to prosecute or discontinue a prosecution.
The question then should be this: why did the AGC "re-open" the old case against Musa Aman when there was no fresh evidence?
Readers are reminded that in the October 2019 hearing of the matters against Musa Aman DPP Datuk Umar Saifuddin Jaafar told the court that there was “still pending evidence over the remaining charges.” That was after Musa was acquitted of five charges for lack of evidence.
As with Riza Aziz ask why there was no evidence; and ask who ought to be held responsible.
TO BE READ WITH
TO BE READ WITH
Sunday, May 17, 2020
Public exchanges between AG Idris Harun & predecessor Tommy Thomas raise even more questions about Malaysia's 1MDB investigation and prosecution of Najib Razak: Crucial evidence of the paper trail seems to have been ignored, and nothing done to investigate and recover 1MDB funds
by Ganesh Sahathevan
Why were Riza Aziz's offer of a plea bargain even considered? Why has not more been done to recover all and any assets he might have that can be traced back to 1MDB money
In the latest chapter of the public debate between Malaysia's current Attorney General Idris Harun and his predecessor Tommy Thomas, Thomas has said in a second press release issued on 18 May 2020:
I took into account the benefits of the AMLA Act 2001 when I decided
The above suggests that there is something very wrong at the Attorney General's Chambers, and this was evident as early as 31 January 2020 while Thomas was still AG. Despite the stated objective of seeking a custodial sentence with significant penalties against Riza, Deputy Public Prosecutor Norzilati Izhani Zainal informed Sessions Court judge Rozina Ayob on that date that the AGC was considering Riza's representation's submitted to the AGC on 18 November 2019. From what we now know of the representation, the AGC ought to have rejected it without further consideration. Thomas has said as much in his latest press release.
Are we to believe DPP Norzilati Izhani Zainal was off on a frolic of
her own?
In the latest chapter of the public debate between Malaysia's current Attorney General Idris Harun and his predecessor Tommy Thomas, Thomas has said in a second press release issued on 18 May 2020:
I took into account the benefits of the AMLA Act 2001 when I decided
to charge Riza Aziz in July 2019 with 5 money laundering offences punishable under Section 4(1) of that Act for receiving proceeds of unlawful activities, between April 2011 and November 2012, totalling USD248 million of monies belonging to 1MDB. I was satisfied that the prosecution had a very strong case to establish the ingredients of the offences. The documentary trail was substantial and highly credible.
Tan Sri Idrus states that “Malaysia is expected to recover approximately USD108 million”. With the greatest of respect, this is a red herring. By personal diplomacy, we established strong relations with DOJ after I took office. They have returned billions of ringgit, and more monies may be released in future by DOJ. The purpose of prosecuting Riza was not to strengthen our chances of securing monies from DOJ. DOJ would have rettourned(sic) these monies in any event because it belongs to Malaysia and was stolen from Malaysia. Riza is not offering to pay any new money or monies from any source other than DOJ seized assets. The USD108 million, would in any event be returned by DOJ to Malaysia. Thus, Riza is unnecessarily getting credit for returning monies that are not his. Hence, it is a sweetheart deal for Riza but terrible for Malaysia.
Readers are reminded that the paper trail with regards Riza Aziz begins in Malaysia and from 1MDB. The paper trial can be deconstructed into two or three separate phases, the first phase being the initial theft from 1MDB for which Najib Razak has been charged and is being tried.
Tan Sri Idrus states that “Malaysia is expected to recover approximately USD108 million”. With the greatest of respect, this is a red herring. By personal diplomacy, we established strong relations with DOJ after I took office. They have returned billions of ringgit, and more monies may be released in future by DOJ. The purpose of prosecuting Riza was not to strengthen our chances of securing monies from DOJ. DOJ would have rettourned(sic) these monies in any event because it belongs to Malaysia and was stolen from Malaysia. Riza is not offering to pay any new money or monies from any source other than DOJ seized assets. The USD108 million, would in any event be returned by DOJ to Malaysia. Thus, Riza is unnecessarily getting credit for returning monies that are not his. Hence, it is a sweetheart deal for Riza but terrible for Malaysia.
Readers are reminded that the paper trail with regards Riza Aziz begins in Malaysia and from 1MDB. The paper trial can be deconstructed into two or three separate phases, the first phase being the initial theft from 1MDB for which Najib Razak has been charged and is being tried.
However, the prosecution in the Najib Razak SRC and 1MDB trials have never made any reference to a clear paper trail, relying instead on a galaxy of witnesses to prove their point.
Despite the fact that the DOJ had done much of the work in establishing the paper trail and seizing the assets DOJ officers were never called as witnesses, and their investigation papers never entered into evidence.
If the prosecution had a very strong case against Riza, then the case against Najib should be by definition and in relative terms, open ans shut, concluded a long time ago.This has clearly not been the case and instead the public has been kept entertained by defense counsel Shafee Abdullah's playing the trial judges for fools, almost literally like performing dogs.
It was not his fault that he did so but that of the prosecution who seemed unable to present a precise, clear line of attack.
Additionally, it does appear from Thomas's press statement that the Malaysian Government seemed uninterested in pursuing any investigation of its own, happy instead to rely on the DOJ's work. This is curious, for the best evidence was always going to be in Malaysia, and out of the DOJ's reach. As this writer pointed out last year:
PM Mahathir need only look to AMMB and ANZ in his quest to recovers all monies stolen by Jho Low-More on what else Malaysia should do, but is not ....
Are we to believe DPP Norzilati Izhani Zainal was off on a frolic of
her own?
END
TO BE READ WITH
Press Release Dated 18 May 2020 Issued By Former Attorney General Tommy Thomas
1. As I have been mentioned on numerous occasions in the media release issued yesterday by my successor, Tan Sri Idrus bin Harun, I have to put the record straight a second time.
2. I took into account the benefits of the AMLA Act 2001 when I decided to charge Riza Aziz in July 2019 with 5 money laundering offences punishable under Section 4(1) of that Act for receiving proceeds of unlawful activities, between April 2011 and November 2012, totalling USD248 million of monies belonging to 1MDB. I was satisfied that the prosecution had a very strong case to establish the ingredients of the offences. The documentary trail was substantial and highly credible. Upon conviction, the prosecution would have invited the trial judge to impose a sentence commensurate with the severity of the offences, the maximum being 15 years for each charge. But more significantly, the criminal court is given power by Parliament to additionally impose a penalty up to 5 times the amount involved in the unlawful activities, that is 5 times USD248 million, which would work out to some USD1.2 billion. We would have sought this sum upon his conviction.
3. As Public Prosecutor, I personally decided to prosecute about 25 cases. In each of these cases, I was briefed by MACC or the police and DPPs. I probed deeply. My decision-making process took time. From my trial experience, evidence gathering continues from initiation of proceedings until completion of trial. Only when I was satisfied that the prosecution could secure a conviction, did I make the decision to prosecute. It was always a deliberate and properly analysed decision. That same rigour was brought to the decision to prosecute Riza. In none of these 25 odd cases, did I consider favourably a request by any accused to settle on such terribly poor terms to the prosecution. That would have called into question the wisdom and integrity of my decision to prosecute in the first place.
4. In paragraph 2 of Tan Sri Idrus’s media release, reference is made to a minute I made on 19 November 2019 to Datuk Seri Gopal Sri Ram on the letter dated 18 November 2019 from Riza’s solicitors. That indeed was my style. After having read that letter, I wrote a couple of words or sentences to him. I have no access to the original letter with my handwriting. Because of this handicap, I cannot comment on it.
5. What is abundantly clear is that I did not make any decision in relation to Riza’s representation up to the date of my resignation, 28 February 2020. A decision of this importance involving billions of ringgit and significant public interest would be made by me in writing. I did not, and none exist.
6. With regard to communications with the 2 major actors, my successor and Datuk Seri Gopal Sri Ram, the position is as follows. I have not communicated with Tan Sri Idrus since 28 February 2020. This is not unusual. I did not communicate with my predecessor during my tenure. I spoke on a couple of occasions with Datuk Seri Gopal Sri Ram over the telephone between 28 February and 14 May 2020, but this subject was never raised by him. Hence after my resignation, I was kept in the dark on this and all other matters.
7. In Paragraph 3 of the media release, Tan Sri Idrus states that “Malaysia is expected to recover approximately USD108 million”. With the greatest of respect, this is a red herring. By personal diplomacy, we established strong relations with DOJ after I took office. They have returned billions of ringgit, and more monies may be released in future by DOJ. The purpose of prosecuting Riza was not to strengthen our chances of securing monies from DOJ. DOJ would have returned these monies in any event because it belongs to Malaysia and was stolen from Malaysia. Riza is not offering to pay any new money or monies from any source other than DOJ seized assets. The USD108 million, would in any event be returned by DOJ to Malaysia. Thus, Riza is unnecessarily getting credit for returning monies that are not his. Hence, it is a sweetheart deal for Riza but terrible for Malaysia.
8. Finally, even the timing of Riza’s DNAA is bizarre. In both civil and criminal proceedings which proceed to trial, a plaintiff or the prosecution loses substantial leverage over the adverse party if it withdraws court proceeding before the terms of settlement are completely performed. This is elementary. Hence, one needs to question why Riza has been given a DNAA so prematurely.
9. Since Tan Sri Idrus is at pains to emphasize the weight he gave to my so called ‘agreement in principle’ (which itself is a fiction), let me state publicly that I would have never sanctioned this deal. I would have lost all credibility in the eyes of the people of Malaysia whom I endeavoured to serve as public prosecutor to the best of my ability, honestly and professionally if I had approved it. I would have betrayed the trust the Prime Minister and the PH government had reposed in me.
Tan Sri Tommy Thomas
18 May 2020
2. I took into account the benefits of the AMLA Act 2001 when I decided to charge Riza Aziz in July 2019 with 5 money laundering offences punishable under Section 4(1) of that Act for receiving proceeds of unlawful activities, between April 2011 and November 2012, totalling USD248 million of monies belonging to 1MDB. I was satisfied that the prosecution had a very strong case to establish the ingredients of the offences. The documentary trail was substantial and highly credible. Upon conviction, the prosecution would have invited the trial judge to impose a sentence commensurate with the severity of the offences, the maximum being 15 years for each charge. But more significantly, the criminal court is given power by Parliament to additionally impose a penalty up to 5 times the amount involved in the unlawful activities, that is 5 times USD248 million, which would work out to some USD1.2 billion. We would have sought this sum upon his conviction.
3. As Public Prosecutor, I personally decided to prosecute about 25 cases. In each of these cases, I was briefed by MACC or the police and DPPs. I probed deeply. My decision-making process took time. From my trial experience, evidence gathering continues from initiation of proceedings until completion of trial. Only when I was satisfied that the prosecution could secure a conviction, did I make the decision to prosecute. It was always a deliberate and properly analysed decision. That same rigour was brought to the decision to prosecute Riza. In none of these 25 odd cases, did I consider favourably a request by any accused to settle on such terribly poor terms to the prosecution. That would have called into question the wisdom and integrity of my decision to prosecute in the first place.
4. In paragraph 2 of Tan Sri Idrus’s media release, reference is made to a minute I made on 19 November 2019 to Datuk Seri Gopal Sri Ram on the letter dated 18 November 2019 from Riza’s solicitors. That indeed was my style. After having read that letter, I wrote a couple of words or sentences to him. I have no access to the original letter with my handwriting. Because of this handicap, I cannot comment on it.
5. What is abundantly clear is that I did not make any decision in relation to Riza’s representation up to the date of my resignation, 28 February 2020. A decision of this importance involving billions of ringgit and significant public interest would be made by me in writing. I did not, and none exist.
6. With regard to communications with the 2 major actors, my successor and Datuk Seri Gopal Sri Ram, the position is as follows. I have not communicated with Tan Sri Idrus since 28 February 2020. This is not unusual. I did not communicate with my predecessor during my tenure. I spoke on a couple of occasions with Datuk Seri Gopal Sri Ram over the telephone between 28 February and 14 May 2020, but this subject was never raised by him. Hence after my resignation, I was kept in the dark on this and all other matters.
7. In Paragraph 3 of the media release, Tan Sri Idrus states that “Malaysia is expected to recover approximately USD108 million”. With the greatest of respect, this is a red herring. By personal diplomacy, we established strong relations with DOJ after I took office. They have returned billions of ringgit, and more monies may be released in future by DOJ. The purpose of prosecuting Riza was not to strengthen our chances of securing monies from DOJ. DOJ would have returned these monies in any event because it belongs to Malaysia and was stolen from Malaysia. Riza is not offering to pay any new money or monies from any source other than DOJ seized assets. The USD108 million, would in any event be returned by DOJ to Malaysia. Thus, Riza is unnecessarily getting credit for returning monies that are not his. Hence, it is a sweetheart deal for Riza but terrible for Malaysia.
8. Finally, even the timing of Riza’s DNAA is bizarre. In both civil and criminal proceedings which proceed to trial, a plaintiff or the prosecution loses substantial leverage over the adverse party if it withdraws court proceeding before the terms of settlement are completely performed. This is elementary. Hence, one needs to question why Riza has been given a DNAA so prematurely.
9. Since Tan Sri Idrus is at pains to emphasize the weight he gave to my so called ‘agreement in principle’ (which itself is a fiction), let me state publicly that I would have never sanctioned this deal. I would have lost all credibility in the eyes of the people of Malaysia whom I endeavoured to serve as public prosecutor to the best of my ability, honestly and professionally if I had approved it. I would have betrayed the trust the Prime Minister and the PH government had reposed in me.
Tan Sri Tommy Thomas
18 May 2020
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