PETALING JAYA: A heavier burden is now placed on government prosecutors to prove their case against former Umno leader Khairuddin Abu Hassan and his lawyer Matthias Chang for allegedly sabotaging the nation’s banking and financial services, lawyers said.
They said prosecutors could find it more difficult as they could not rely on the procedural law under the Security Offences (Special Measures) Act 2012 (Sosma) during trial scheduled for next week.
The lawyers, however, do not rule out the possibility of the attorney-general withdrawing the charge against them as he has such discretion under the Federal Constitution.
The trial of Khairuddin and Chang will be heard in the Kuala Lumpur Sessions Court, where prosecutors can only utilise the procedures in the Evidence Act and the Criminal Procedure Code, as the court does not consider it a security offence.
Last week the Federal Court allowed Khairuddin and Chang’s applications to strike out the government’s appeal against the decision of the Court of Appeal last year that it was not a security offence.
The reason is that the government lawyers did not serve a copy of the notice of appeal to both applicants after filing it in the Federal Court registry.
Justice Hasan Lah said it was mandatory for the notice of appeal to be served as provided for under the Federal Court Rules 1995.
On Nov 18, 2015, High Court judge Mohd Azman Husin found that the sabotage charge was not a security offence and Sosma procedures did not apply.
He then offered the duo bail at RM10,000 each in a single surety pending the outcome of their trial in the Sessions Court.
On Dec 13, the Court of Appeal upheld Azman’s ruling but the government took the matter to the Federal Court.
Khairuddin and Chang were jointly charged under Section 124L of the Penal Code following reports made against 1Malaysia Development Berhad (1MDB) with authorities in France, Hong Kong, Singapore, the United Kingdom and Switzerland.
The offence carries a jail term of up to 15 years.
Lawyer Eric Paulsen said the government would very likely have to produce overseas witnesses to prove a prima facie case against the duo since the incident took place outside Malaysia.
“The witnesses will be subject to cross-examination by lawyers for the accused persons,” said Eric, who is also the executive director of Lawyers For Liberty.
He said the prosecution could opt for evidence of prosecution witnesses to be given without disclosing their identity if the trial were to be held in the High Court.
“This includes the taking of evidence in the absence of the accused or their lawyers,” he said, adding that such allowance to the government would have put the duo at a disadvantage .
Eric said there was also the chance of more information about 1MDB being unearthed during cross examination as it would be relevant to the charge.
Lawyer Salim Bashir said the prosecution could proceed with the trial by relying on normal procedures in the Sessions Court and the accused would enjoy a fair trial.
“However, nothing stops the prosecutors from applying to drop the case or discontinue with the trial as the attorney-general has such powers under Article 145 (3),” he said.
Salim said another option was for the two to plead guilty to the offence but this was too remote as both had repeatedly declared that the charge was politically motivated.
He said they would be on bail until they or the government exhausted their final appeal in the Court of Appeal.
Khairuddin and Chang would be remand prisoners during trial and could be detained further even if the High Court acquitted them of the charge.
This is because Sosma allows the government to continue holding those charged pending the outcome by the final court of appeal.