Appellate court agrees there are grounds to support the withdrawal of charges UPDATED

Lawyers acting for National Feedlot Corporation (NFCorp) chairman Datuk Dr Mohamad Salleh Ismail today clarified that their client was only required to answer the CBT charges if the prosecution has proven a prima facie case and the ingredients of the charges. However, this is not the case, they said.FW403946_KL13_030715_MAHKAMAH-lpr This clarification follows an erroneous report that was widely carried on Friday and Saturday from a syndicated news wire.

In a statement, lawyer Al Firdaus Shahrul Naing said, “The prosecution has not concluded and proven a prima facie case and the ingredients of the charges. Therefore, it is factually and legally incorrect to say the court of appeal had directed our client to answer the CBT charges. In fact, this was not what was said by the court of appeal.”

“In fact in view of what was said by the Court of Appeal Friday, in particular that our client has a good defence, it is therefore unlikely that the prosecution would be able to prove a prima facie case for our client to be called to answer the charges.

“It is important to stress that at this particular stage, not even the Court of Appeal can make such a direction when the prosecution has not concluded its case,” added Al Firdaus.

On Friday lead counsel Tan Sri Muhammad Shafee Abdullah had in his submission before the Court of Appeal articulated, “Based on the undisputed documents, the impugned transactions have been expressly ratified and approved by the Board of Directors and Shareholders of NFCorp in 2010. Thus, there was no CBT to begin with.

”The purpose of the impugned transactions was to allow a related company Natioanl Meat and Livestock Corporation (NMLC) to execute the contract farming phase of the National Feedlot Project while the purchase of the properties was to generate income to service the government loan in view of the suspension of the entire project in May 2009.

”Furthermore, the properties were not purchased under our client’s name but under NMLC, a related company of NFCorp recognised under the Companies Act, 1965.”

Tan Sri Shafee further argued, ”The Respondent has failed to raise a sufficent rebuttal to the Appellant’s application as the material contents of the Respondent’s affidavits are affirmed by a deponent (Investigating Officer Mohd Rizal Mohd Jaafar) who has no personal knowledge of the matter. In other words, the affidavits contained inadmissible hearsay evidence.”

Under the provisions of the Criminal Procedure Code, the court does not have the power to strike out the charges at this stage even if there is a good defence in view that the trial had started with the first witness been called. Therefore, the Court of Appeal held that they had no other alternative but to direct the trial at the Sessions Court be resumed.

In adjudicating the undisputed documents supplied by the prosecution to the Appellant, the Court of Appeal had opined that NFCorp chairman Datuk Dr Salleh has a good defence with the proper ratification in place.

President of the Court of Appeal Tan Sri Md Raus Sharif together with Datuk Abdul Aziz Abd Rahim and Datuk Lim Yee Lan further opined that Datuk Dr Salleh should write to the Attorney General for the CBT charges against him to be withdrawn.

On 12 March 2012, Datuk Dr Salleh, in his capacity as NFCorp chairman, was charged with CBT of advancing RM40mil into the account of related company National Meat & Livestock Corporation (NMLC). He was also charged for advancing RM9.7mil to fund NMLC’s purchase of two units of condominiums in Bangsar.

Datuk Dr Mohamad Salleh Ismail who was represented by his counsels Tan Sri Dr Muhammad Shafee Abdullah, Al Firdaus Shahrul Naing, Syed Ismat Syed Muhammad and Farhah Mustaffa proposes to write to the Attorney General for the charges to be withdrawn by early next week.

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