KUALA LUMPUR (July 22): The High Court will decide on July 25 if leave will be granted for former youth and sports minister Syed Saddiq Syed Abdul Rahman's defence team to commence impeachment proceedings against the prosecution's star witness, Rafiq Hakim Razali, who is Parti Pribumi Bersatu Malaysia (Bersatu) youth wing's former ex-assistant treasurer.

Judicial Commissioner Datuk Azhar Abdul Hamid said this on Friday (July 22) following submissions by both parties on the matter.

The defence is looking to impeach Rafiq based on his contradictory testimony given in court. The prosecution's 13th witness had also admitted to the contradictions when it was pointed out during cross-examination earlier this month.

Part of the application will include the prosecution providing Rafiq's Malaysian Anti-Corruption Commission (MACC) statement recorded during his detention in 2020 to court.

MACC statements are privileged documents.

Lead defence counsel Gobind Singh Deo on Friday argued that there is more than a "hunch" for the defence to make such an application.

"This is not the submission about the contradictions. This submission is based on [the fact] that we have a hunch which is sufficient for the court to be given the statement to see if the contradictions exist.

"[The prosecution] proves my case [that there are] contradictions. It is not just a hunch but an admission. I don't understand the fear. If we are interested in justice, let us see if the witness has contradicted himself," he said.

In arguing for the application to be dismissed, Deputy Public Prosecutor (DPP) Datuk Wan Shaharuddin Wan Ladin said Rafiq himself had already admitted to the contradictions which were established during cross-examination and there is no reason for impeachment proceedings.

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

Similar to judicial reviews, leave (permission) has to be granted before impeachment proceedings can commence.

Rafiq is a central witness to the Muar member of Parliament (MP)'s charges of criminal breach of trust (CBT) and misappropriation of the RM1.12 million of funds belonging to the party.

For the first count, Syed Saddiq has been charged with abetting Rafiq in committing CBT involving RM1 million of funds belonging to the party in March 2020.

During his testimony, the witness said Syed Saddiq had asked him to withdraw the fund during a meeting at his home. But in his statement, he said the instructions to withdraw the money were given through a WhatsApp call.

Earlier during submissions on Friday, Gobind elaborated that the inconsistencies in Rafiq's statements were not "minor" but central to the two charges of CBT and misappropriation Syed Saddiq faces in this trial.

"The theory advanced by the prosecution [is that Syed Saddiq] contended that the monies in the account are his hard earned-money (hasil titik peluh). That is their contention and is it because of that, at that point in time, [that Syed Saddiq] had given instructions to withdraw the RM1 million.

"This is where the witnesses say we don't have a choice. We were given instructions. It was directed from [Syed Saddiq]. That theory lies on what he said to them on that day to withdraw the money," he said.

He added that the defence disputes this, claiming that there was a meeting of the youth wing's central leadership after which Syed Saddiq merely asked to check how much funds were in the account as it will be needed for Covid-related programmes.

"In that regard, there would not have been direction to compel them to withdraw the funds," he said, adding that the decision was made by the youth wing's central leadership.

As for the second charge, the MP has been charged under Section 403 of the Penal Code with misusing RM120,000 in party contributions, raised through a Maybank Islamic Bhd account belonging to Armada Bumi Bersatu Enterprise in April 2018.

Gobind argued that this charge came down to a singular issue: if the sum belonged to Syed Saddiq personally or if it was party funds.

"This witness says it is [party funds]. But in his statement he says very clearly that it is Syed Saddiq's money...

"That strikes at the heart of the charge, if it is Syed Saddiq's money that is the end of the second charge," he said.

Wan Shaharuddin argued that the contradictions are based on two paragraphs which the witness himself had admitted to the contradictions, thus the defence's application was an abuse of court process.

"Were there instructions [to withdraw]? There were instructions. Did [Syed Saddiq] ask for the balance? Yes, he asked for the balance. The only difference is [how] and where," he argued.

"Their goal to discredit has already been achieved during cross-examination," said the DPP, adding that there was no need to request for Rafiq's MACC statement.

"They are on a fishing expedition; they are casting a hook and seeing if they can catch anything," he said.

Earlier on Monday, the court ruled against the defence's application to impeach Rafiq based on contradictions between his oral testimony and his prepared written statement.

Although his witness statement was given to the defence, it was not used in court during his testimony. The 32-year-old gave oral evidence instead.

Azhar ruled that the witness could not be impeached based on the written statement because it was never tendered in court and therefore didn't meet the criteria of a witness statement defined under the Criminal Procedural Code.

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

As for the misappropriation charge, 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 Monday (July 25).

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