KUALA LUMPUR (July 18): Former youth and sports minister Syed Saddiq Syed Abdul Rahman has failed in his bid to impeach star witness Rafiq Hakim Razali, Bersatu youth wing Angkatan Bersatu Anak Muda’s (Armada) former assistant treasurer, in his ongoing criminal trial.

In delivering his decision, Judicial Commissioner (JC) Datuk Azhar Abdul Hamid said on Monday (July 18) that Rafiq's witness statement — which was not tendered in court — cannot be used as a basis to impeach the prosecution witness' credibility.

"I agree with the submission advanced by the prosecution that the statement, which the defence sought to rely on, is not a witness statement defined under Section 402 of the Criminal Procedural Code (CPC).

"Therefore, it is my ruling that the statement cannot be used as a basis to impeach the credibility of the witness," he said.

Section 402(B) of the CPC states that a written statement by any person shall, with the consent of the parties to the proceedings, be admissible as evidence to the like extent as oral evidence by that person.

To impeach a witness is to discredit the accuracy or truth of their testimony.

This was a novel issue for the court to decide upon as Rafiq's written witness statement prepared for the trial was given to the defence but not tendered as evidence in court. The 32 year-old witness had given oral evidence when he took the stand.

Citing several portions of the aforementioned witness statement, the defence, however, had been constantly highlighting contradictions in Rafiq's statement and his testimony in court.  They were looking to impeach the credibility of the witness based on these contradictions.

Following the decision on Monday, lead defence counsel Gobind Singh Deo then made an application to access Rafiq's MACC statements, adding that the defence will now proceed with another application to impeach the witness based on his MACC statements recorded in 2020.

"We take note of your Lordship's ruling. That is why we wanted the ruling. It gives us clarity.

"Our position now will be to make an application for the MACC statements. It is on that we will proceed to make an application to impeach. I'm sure there is more than a hunch here," he said.

However, Deputy Public Prosecutor Datuk Wan Shaharuddin Wan Ladin countered that there was no reason for the defence to commence further impeachment application as Rafiq's testimony merely contained "minor discrepancies" to which the witness himself had conceded in court.

Furthermore, he added: "[The application] for [the MACC] statements is merely a fishing expedition to find out other contradictions."

JC Azhar will hear further submission and give his decision on the matter on Friday. 

During submissions on July 8, Deputy Public Prosecutor Datuk Wan Shaharuddin Wan Ladin argued that Rafiq cannot be impeached because his witness statement was actually not tendered in court, and hence does not carry legal force.

Gobind argued that the basis of Rafiq's witness statement — his oral statement given to the Malaysian Anti-Corruption Commission (MACC) during his detention in 2020 — is enough and should be admissible in court.

Syed Saddiq has been charged with abetting Rafiq in committing criminal breach of trust involving RM1 million of funds belonging to the party. The offence allegedly took place in March 2020, when Syed Saddiq was the chief of the youth wing.

If found guilty of the charge, which is framed under Section 406 of the Penal Code, Syed Saddiq could be jailed for up to 10 years, whipped and fined.

Syed Saddiq has also been charged under Section 403, with misusing RM120,000 in party contributions, raised through a Maybank Islamic Bhd account belonging to Armada Bumi Bersatu Enterprise between April 8 and 21, 2018. If convicted, he could be jailed up to five years,whipped and fined.

In addition, he faces two charges of engaging in money laundering activities involving two transactions of RM50,000 each — money that is believed to be proceeds of unlawful activities — via his Maybank Islamic account and his Amanah Saham Bumiputera account on June 16 and 19, 2018 respectively.

The latter two charges were framed under Section 4(1)(b) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001, which are punishable under Section 4(1) of the same Act, with a maximum jail term of 15 years, and a fine of not less than five times the amount involved. 

The trial continues on Tuesday.

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