CASE SUMMARY: TENGKU ADNAN BIN TENGKU MANSOR V PUBLIC PROSECUTOR [2021]

 

Material Facts

The appellant was a Minister in the Federal Cabinet and the secretary-general of UMNO. He was also the controlling shareholder of Tadmansori Holding Sdn Bhd. 

In 2013, project "Perumahan Mampu Milik Wilayah Persekutuan" was launched and the appellant requested Tan Sri Chai Kim Kong (SP19), director of Aset Kayamas Sdn Bhd to participate in the project. During the course of the project, the appellant had requested a political donation from SP19 around RM 5 Million to RM 6 Million to be used for 2 upcoming elections.

However, SP19 had contributed the political donation to Tadmansori around RM 2 Million, instead of UMNO upon request by the appellant. 

Tengku Adnan was then charged under section 165 of the Penal Code 

The High Court Decision

Tengku Adnan was sentenced to 12 months' jail and fined RM 2 Million after he was found guilty. The High Court held that all 4 elements under section 165 of the Penal Code have been proved by prosecution beyond reasonable doubt. The four elements are:

    

1. The appellant being the minister for Federal Territories was a public servant;
2. The appellant obtained a valuable thing for himself which was the cheque of RM 2 Million from Aset Kayamas through Tadmansori;
3. There was no consideration for the valuable thing he obtained as there were no business dealings between Aset Kayamas and Tadmansori; and
4. The appellant knew SP19 had a connection with his official functions as the appellant was the one who requested SP19 to participate in the project. 

The High Court also found that the accused had not raised a reasonable doubt on the prosecution's case. Dissatisfied with the decision, Tengku Adnan appealed against the conviction and sentence. 

Court of Appeal Decision

The Court of Appeal, by a majority of 2-1 allowing the appeal and set aside the conviction and sentence. The appellant is acquitted and discharged. 

Ahmad Nasfy JCA delivered the majority judgment. 

Abu Bakar Jais JCA delivered the dissenting judgment. 

Majority Judgment 

Ahmad Nasfy JCA held that: -

The learned trial judge had erred when he found that the second element under section 165 has been proved beyond reasonable doubt by the prosecution.

1. Learned trial judge had failed to consider the failure of the prosecution to re-examine SP19, wherein his evidence in cross-examination, he stated that the sum of RM 2 million was a political donation to UMNO. 
2. The prosecution did not contradict or disprove the evidence of SP19 in re-examination where he stated that he received the official receipt on 16 or 17 June 2016 which was before the trial and not issued after the appellant was arrested. 
3. Although there was doubt whether the appellant had accepted the money by himself, it was a trite that when there are 2 possible conclusions that should be made from a set of facts, an inference favourable to the accused should be made.

Minority Judgment

Abu Bakar Jais JCA upheld the decision by the High Court. 

The RM 2 million given by SP19 was not a political donation. 

1. The appellant failed to show credible evidence that the amount of RM2 million was used for the two elections. 
2. The appellant has no or little responsibility to raise funds for the by-elections in Selangor and Perak as he was not the liason chairman of these states. 
3. The appellant failed to show the source of cash he gave to Datuk Rizalman and Datuk Zakaria which he contended to be used for the elections.

Commentary 

This recent decision is interesting as we can see that there is a loophole in the scope of political donation in our country. As for now, there is no law regulating political donation. It is difficult to differentiate a political donation from bribery which causes many politicians to abuse their power to receive gratification. To strive for better governance, we need a law to regulate and categorise these political donations.