Tun Daim is expected to be charged Monday under Section 36 (2) of the MACC Act for failing to comply with the request by MACC to declare his assets within and without the country after the stipulated time and given ample time including 5 extensions.
Earlier last week, his wife Toh Puan Naimah Mohd Khalid was charged under the same law for not declaring her assets which include the RM2.7 billion Ilham Tower, 5 plots of Bukit Tunku (Federal Hill) land, vehicles and properties in Taman Tun Dr Ismail and Penang.
There were exchange of words beween Naimah and MACC Chief Commissioner Tan Sri Azam Baki which ended with Daim to be charged tomorrow. It will not be from his hospital bed in which he warded himself upon knowing MACC was to interrogate him.
Initially Daim trid to draw sympathy on his illness and by getting hospitalised. However he turned combative to challenged MACC to charge him on his hospital bed.
Daim rather battle it out in court than conform to the law to declare his assets. Presumably it is to divert investigation from further probing and unraveling his expansive wealth allegedly made from ill-gotten gains.
Mirzan and Mokhzani are also requested to do the same. Failing which, the same charge will be made against both of them.
Before the weekend, Daim and Naimah announced two of their lawyers dismissed. Words are they will be using the services of Francis Ng Aik Guan, a criminal lawyer renown within the legal circle. He is the author of the law book on Criminal Procedure for CLP.
Francis was Musa Aman’s lawyer who managed to free him from 46 charges in 2020. Daim’s list of undeclared assets is said to be 71.
Daim’s defense is likely to be technical and to challenge the legality and perhaps, constitutionality of Section 36 of the MACC Act. It will be argued that Section 36 (2) is inconsistent with the Criminal Procedure Code (CPC) which forms the guiding law for police’s criminal investigation.
One counter argument is that CPC is a law and not part of the constitution, while MACC Act is a specific law to govern MACC and their conduct in the investigation of corruption cases.
Will Daim and his wife manage to escape by playing on technicality? Will it redeem the diam man long lost reputation? Where money is said to speak louder than calls for truth and justice behind the corridor lawyers and judges roam, will the decades of alleged corruption to obvious to ignore finally come to bare?
What is the implication should a judgement be made against them? Will they face imprisonment or get way with one lakh of peanuts? Can the government and rakyat recoup the allegedly loss or stolen assets?
Section 36 of the MACC Act is reproduced below:
Powers to obtain information
36. (1) Notwithstanding any written law or rule of law to the contrary, an officer of the Commission of the rank of Commissioner and above, if he has reasonable ground to believe, based on the investigation carried out by an officer of the Commission, that Malaysian Anti-Corruption Commission 41 any property is held or acquired by any person as a result of or in connection with an offence under this Act, may by written notice—
(a) require that person to furnish a statement in writing on oath or affirmation—
(ii) identifying every property sent out of Malaysia by him during such period as may be specified in the notice;
(iii) setting out the estimated value and location of each of the properties identified under subparagraphs (i) and (ii), and if any of such properties cannot be located, the reason therefor;
(iv) stating in respect of each of the properties identified under subparagraphs (i) and (ii) whether the property is held by him or by any other person on his behalf, whether the property has been transferred, sold to, or kept with any person, whether the property has been diminished in value since its acquisition by him, and whether the property has been commingled with other property which cannot be separated or divided without difficulty;
(v) setting out all other information relating to his properties, business, travel, or other activities as may be specified in the notice; and
(vi) setting out all his sources of income, earnings or assets;
(b) require any relative or associate of the person referred to in paragraph (1)(a), or any other person whom the officer of the Commission of the rank of Commissioner and above has reasonable grounds to believe is able to assist in the investigation, to furnish a statement in writing on oath or affirmation—
(i) identifying every property, whether movable or immovable, whether within or outside Malaysia, belonging to him or in his possession, or in which such person has any interest, whether legal or equitable, and specifying the date on which each of the properties identified was acquired and the manner in which the property was acquired, whether by way of any dealing, bequest, devise, inheritance, or any other manner;
(ii) identifying every property sent out of Malaysia by him during such period as may be specified in the notice;
(iii) setting out the estimated value and location of each of the properties identified under subparagraphs (i) and (ii), and if any of such properties cannot be located, the reason therefor;
(iv) stating in respect of each of the properties identified under subparagraphs (i) and (ii) whether the property is held by him or by any other person on his behalf, whether the property has been transferred, sold to, or kept with any person, whether the property has been diminished in value since its acquisition by him, and whether the property has been commingled with other property which cannot be separated or divided without difficulty;
(v) setting out all other information relating to each of the properties identified under subparagraphs (i) and (ii), and the business, travel, or other activities of such person; and
(vi) setting out all the sources of income, earnings or assets of such person; and
(c) require any officer of any financial institution, or any person who is in any manner or to any extent responsible for the management and control of the affairs of any financial institution, to furnish copies of any or all accounts, documents and records relating to any person to whom a notice may be issued under paragraph (a) or (b).
(2) Every person to whom a notice is sent by the officer of the Commission of the rank of Commissioner and above under subsection (1) shall, notwithstanding any written law or rule of law to the contrary, comply with the terms of the notice within such time as may be specified therein, and any person who willfully neglects or fails to comply with the terms of the notice commits an offence and shall on conviction be liable to imprisonment for a term not exceeding five years and to a fine not exceeding one hundred thousand ringgit.
(3) Where the officer of the Commission of the rank of Commissioner and above has reasonable grounds to believe that any person who has been served with the written notice referred to in subsection (1) owns, possesses, controls or holds any interest in any property which is excessive, having regard to his present and past emoluments and all other relevant circumstances, such officer of the Commission may by written direction require him to furnish a statement on oath or affirmation explaining how he was able to own, possess, control or hold such excess and if he fails to explain satisfactorily such excess, he commits an offence and shall on conviction be liable to—
(a) imprisonment for a term not exceeding twenty years; and
(b) a fine which is not less than five times the value of the excess, if the excess is capable of being valued, or ten thousand ringgit, whichever is the higher.
(4) Every person to whom a direction is sent by such officer of the Commission of the rank of Commissioner and above under subsection (3) shall, notwithstanding any written law or rule of law to the contrary, comply with the terms of the direction within such time as may be specified in the direction, and if such person willfully neglects or fails to comply with such direction, he commits an offence and shall on conviction be liable to—
(a) imprisonment for a term not exceeding twenty years; and
(b) a fine which is not less than five times the value of the excess, if the excess is capable of being valued, or ten thousand ringgit, whichever is the higher.
(5) Every person to whom a notice or direction is sent by an officer of the Commission of the rank of Commissioner and above under this section shall be legally bound to state the truth and shall disclose all information which is within his knowledge, or which is available to him, or which is capable of being obtained by him.
(6) Where any person discloses an information or produces any accounts, documents or records, in response to a notice under subsection (1), such person, his agent or employee, or any other person acting on his behalf or under his direction, shall not, by reason only of such disclosure or production, be liable to prosecution for any offence under or by virtue of any law, or to any proceeding or claim by any person under or by virtue of any law or under or by virtue of any contract, agreement or arrangement, or otherwise.
(7) Subsection (6) shall not bar, prevent or prohibit the institution of any prosecution for any offence— (a) as provided by this section; (b) of giving false evidence in relation to any statement on oath or affirmation furnished to an officer of the Commission of the rank of Commissioner and above pursuant to this section; or (c) provided for in section 27.
Source : Thick Brick Blogspot
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