KUALA LUMPUR (June 14): Former 1Malaysia Development Bhd (1MDB) president and chief executive officer Arul Kanda Kandasamy's lawyer Datuk N Sivananthan clarified on Tuesday that his client's position has always been that he should have never been charged in the ongoing 1MDB audit report tapering trial.
In a brief media statement on Tuesday, the counsel said some statements he made in court on Tuesday (June 14) were taken out of context.
"In particular, a number of media headlines sought to imply that my client, who is currently a co-accused in the trial, is 'happily' turning prosecution witness against his co-accused, [Datuk Seri] Najib Razak," he said.
He was referring to court proceedings earlier on Tuesday before High Court judge Justice Mohamed Zaini Mazlan. The court heard the prosecution's application to call upon Arul Kanda as a witness to testify against Najib.
When asked by Justice Zaini if his client was objecting or assenting to the application, Sivananthan said Arul Kanda will stand by his statements issued to the Malaysian Anti-Corruption Commission (MACC).
"My client has given his testimony to the MACC. His position has always been that he will stand by those statements. If that is what the prosecution is asking him to do, then he will do it," the lawyer said.
"In English, he says yes [to taking the stand]," responded Justice Zaini, drawing laughter from the court.
Arul Kanda and former prime minister Datuk Seri Najib Razak are the two accused in this trial.
In his statement, Sivananthan said that his client remains a co-accused and even though Arul Kanda may be called as a witness, he is still being compelled to give evidence under Section 63 of the MACC Act.
Furthermore, he said when MACC's investigations first commenced, Arul Kanda voluntarily cooperated and provided investigators with all information available to him.
"His position then and now is that he should never have been charged and in that context, should the learned judge decide that he is to become a prosecution witness under Section 63 of the MACC Act (ie whilst still being a co-accused), then, in that situation, he is prepared to give evidence consistent with the statements he has previously given to the MACC," he said.
On May 20, the prosecution made a formal application to call Arul Kanda as a witness to testify against Najib. Lead public prosecutor Datuk Seri Gopal Sri Ram said the application, which was made under Section 63 of the MACC Act 2009, was sanctioned by Attorney General Tan Sri Idrus Harun.
Section 63 states that whenever two or more persons are charged with an offence, the court may, on an application in writing by the public prosecutor, require one or more of them to give evidence as a witness or witnesses for the prosecution.
In court on Tuesday, Sivananthan pointed out several practical considerations for all parties to consider. Among them, he asked what Arul Kanda's status would be if he was called as a witness.
"Is he given a discharge not amounting to acquittal? He cannot leave the dock without an order from the court," he said, adding that these were questions that were not clear in the Section and would be something for all to ponder.
"Lots of precedents would be set if my lord allows the application," Sivananthan said, and Justice Zaini concurred.
Justice Zaini set June 24 to deliver his decision.
In the trial, Najib is charged with abuse of power as a public officer in his capacity as prime minister and finance minister in altering the 1MDB audit report which was to be tabled to the Public Accounts Committee in 2018. This was so that no action could be taken against him by parliament. Arul Kanda is charged with abetting Najib.