KUALA LUMPUR: A freeze order issued by the Malaysian Anti-Corruption Commission (MACC) on the assets and properties owned by former finance minister Tun Daim Zainuddin and his family is not amenable to a judicial review, the High Court was told on Tuesday (Jan 16).
Senior Federal Counsel Shamsul Bolhassan submitted that the issuance of a freezing order, like the rest of the discretionary powers afforded to law enforcement agencies, was part and parcel of a criminal investigation process.
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He said the courts had upheld time and time again that such exercises of function or power were not amenable to judicial review and there were many law authorities on this matter.
Daim's application for leave for judicial review, if allowed, would hamper the investigation process, SFC Shamsul said.
"For every investigation, a judicial review would be filed, hence the investigation would not be completed.
"We submit that investigative powers cannot be reviewed by this court," he said here on Tuesday.
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SFC Shamsul was making his submission in an application by Daim and family for leave to commence judicial review against a probe by the MACC.
The prosecution further submitted that if Daim's judicial review was allowed, it would open the floodgate to challenge every other exercise of such functions in relation to criminal investigations, leading to chaos and public disorder.
"Therefore, leave for judicial review ought to be refused by this honourable court," SFC Shamsul said.
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Meanwhile, SFC Liew Horng Bin submitted that Daim was conducting a "fishing expedition" even before he was charged in court.
He said if the court allowed leave for Daim to proceed with the judicial review, the MACC would have no option but to disclose their reasonable cause for investigating the business tycoon.
"In a judicial review, there would be an application for discovery. This is a fishing expedition by application for evidence before he is even charged in court," SFC Liew said.
In the event that the investigation against Daim leads nowhere, or No Further Action (NFA) as it is called, Liew said Daim could seek legal remedies in the form of civil courts if he still feels aggrieved.
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Meanwhile, Daim's lawyer Tan Sri Tommy Thomas submitted that the MACC only took Daim's statement one and a half years after the release of the Pandora Papers.
"It was only in June 2023, close to two years after the Pandora Papers were released, that the MACC started 'ramping up' its actions against Daim and freezing his family's assets," he said.
According to Thomas, the MACC had unlawfully kept his clients' accounts frozen since June 7, 2023; raided and seized the 60-storey Ilham Tower on Dec 18, 2023; raided Daim's previous residence and froze 11 vehicles on Jan 3.
He said until today, Daim and his family have not been made aware as to what the factual allegations against them were despite many requests by the lawyers.
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"The MACC merely responded stating that they were empowered to investigate, not required to disclose the allegations and that they did not have to explain what the allegations are," he added.
On Dec 30, 2023, the MACC issued a statement in reply to a public statement by Daim regarding the probe against him.
The MACC stated that the investigations were opened in February 2023 pursuant to the Pandora Papers and in respect of offences under Section 23 of the MACC Act and Section 4(1) of the Anti-Money Laundering Act.
"The Pandora Papers did not disclose the commission by Daim of any offence under the laws of Malaysia.
"In any event, despite investigating Daim for 11 months, interviewing numerous witnesses, issuing a substantial number of notices, and collecting an incredible number of records, files and documents, the MACC has still not made a case establishing the commission of any offence under the MACC Act," Thomas said.
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After hearing the submissions, High Court judge Justice Wan Ahmad Farid Wan Salleh fixed March 4 to deliver his decision in Daim's leave application.
On Jan 10, Daim and his family filed the application for leave to commence judicial review against MACC's probe on them.
In the application, Daim and his wife Toh Puan Na'imah Abdul Khalid named the MACC and the public prosecutor as the first and second respondents respectively.
Apart from Daim and Na'imah, other applicants were their four children - Asnida, Md Wira Dani, Muhammed Amir Zainuddin, Muhammed Amin Zainuddin, as well as Ilham Tower.
They want a court declaration that MACC's actions were unlawful, unconstitutional and void, among others.
According to the notice of application, they are seeking a declaration that the MACC and its officers have no reasonable cause for the investigation, which would lead to a prosecution for any offence under the MACC Act 2009 or the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001.
They sought a declaration that even if any charges were to be instituted against them, such charges would be unconstitutional and void because they would not receive a fair trial.
The family also wants an order of certiorari against the MACC and its officers to quash all investigations as well as an order of prohibition to cease all further investigations.
Daim and his family also sought for their properties, assets and monies that were seized to be returned to them.
