KUALA LUMPUR (March 23): The defence and prosecution of Lim Guan Eng’s undersea tunnel graft trial on Thursday (March 23) were once again at loggerheads over the accused’s application to obtain a forensic report on WhatsApp exchanges between businessman G Gnanaraja and Consortium Zenith Construction Sdn Bhd (CZCSB) director Datuk Zarul Ahmad Mohd Zulkifli.

Submitting before the Sessions Court here, the defence claimed that the prosecution is concealing evidence in the forensic report, while the prosecution alleged that the former already has the report and the application is therefore frivolous and a mere “fishing and roving exercise”.

Defence lawyer Gobind Singh Deo claimed that the prosecution used the same evidence and witnesses (including Zarul) in businessman Gnanaraja’s trial in Shah Alam over four years ago, but alleged that their testimonies and use of evidence in Lim’s trial had been “fixed-up” or framed.

Referencing Gnanaraja’s charge sheet, the defence lawyer said one of the charges he faced pertains to deceiving Zarul of RM2 million at the Eastin Hotel in August 2017. He added that Zarul was named the complainant on the charge sheet and that Gnanaraja was allegedly paid the money to help stop a Malaysian Anti-Corruption Commission (MACC) probe.

However, Gobind continued that Zarul testified against Lim in the undersea tunnel trial that Gnanaraja and he (Zarul) worked together to deliver the RM2 million to the then Penang chief minister (Lim) in two cash-filled bags.

Gobind also asserted that when the prosecution examined Zarul, the prosecution did not refer to WhatsApp messages but instead asked a specific question when Zarul testified that he and Gnanaraja referred to Lim and the RM2 million as “Bigboss” and "Chocolate” respectively when conversing over WhatsApp.

Gobind contended that the WhatsApp messages in the forensic report will establish that “Bigboss” never referred to Lim, but instead refers to who was the then-prime minister in 2017. Malaysia’s prime minister at the time was Datuk Seri Najib Razak, who held the post from 2009 to 2018.

The defence lawyer called the prosecution’s denial of their knowledge of Gnanaraja’s Shah Alam trial as concealment of evidence, as a deputy public prosecutor (DPP) who prosecuted in the trial is also sitting on the prosecution in Lim’s undersea tunnel graft case at the Kuala Lumpur Sessions Court.

“The prosecution denies knowledge of the prosecution in Shah Alam. But the prosecution is the same, the charge is the same, the money was the same, [the] witnesses are the same, [and] the cheque is the same,” Gobind added.  

The defence’s application is made under Section 51 of the Criminal Procedural Code, which stipulates that whenever any court considers the production of any document necessary or desirable for the purposes of any trial, such court may issue a written order for it to be produced.

Stressing on the desirability or necessity of the piece of evidence, the threshold of relevance for the application, DPP Datuk Wan Shaharuddin Wan Ladin said that the defence has failed to cross this threshold and explain how they plan to use the forensic report, and that the defence already has the report.

Wan Shaharuddin stressed that the defence’s line of questioning during the cross-examination of MACC forensic officer Wan Mohd Firdaus Wan Yusof was so “specific or precise” that it is as if the forensic report is already in the defence’s hands. Wan Shaharuddin also noted that the report is classified as a “dokumen rahsia” (secret document).

Gobind interjected that the relevance of the forensic report is that it will be utilised for cross-examination of witnesses. He pointed out that when previously cross-examined, Zarul answered certain questions regarding the WhatsApp messages, saying that he (Zarul) does not remember.

DPP Mohd Akram Gharib countered that if the defence wishes to use it for cross-examination, they already have a copy of the WhatsApp messages which can be used.

“They already have it; they do not deny [it]; so this made the application frivolous and an abuse of court process,” Akram added.

Sessions Court judge Azura Alwi has fixed April 5 for the decision on the forensic report application.

Last week, things also got heated between the defence and prosecution after Azura dismissed the latter’s preliminary objection to the application to obtain the forensic report over the WhatsApp messages.

The long-winded clash over the WhatsApp messages between Gnanaraja and Zarul kicked off in August last year, when the defence requested Zarul’s old mobile phone data to retrieve WhatsApp messages between the pair of alleged conspirators.

After it was known that the MACC was unable to retrieve Zarul’s mobile phone data, the defence’s sights turned to the anti-graft body’s forensic report on the WhatsApp messages used in Gnanaraja’s trial in Shah Alan.

Over the past seven months, the defence has gone to great lengths towards obtaining the forensic report on the WhatsApp messages between Zarul and Gnanaraja. 

Lim, 62, who is the member of Parliament for Bagan, is accused of using his position as then Penang chief minister to solicit a 10% cut in the RM6.3 billion undersea tunnel project’s profits from Zarul, in return for aiding the businessman (Zarul)’s company to secure the project. Lim is accused of accepting RM3.3 million in kickbacks from Zarul.

The DAP chairman also faces two counts of dishonest misappropriation of property in releasing two plots of state-owned land, cumulatively worth RM208.75 million, to Ewein Zenith Sdn Bhd and Zenith Urban Development Sdn Bhd — two property companies linked to the controversial undersea tunnel project.

Meanwhile, Gnanaraja was charged at the Shah Alam Sessions Court in 2019 with deceiving Zarul for RM19 million in relation to the Penang undersea tunnel project. Gnanaraja is alleged to have deceived the director sometime between July and August 2017.

In October last year, it was revealed that Gnanaraja’s case in Shah Alam had been classified as no further action.

According to the MACC’s website, Gnanaraja was instead found guilty by the Sessions Court under the Companies Act 2016 and fined RM230,000 for using a company’s property with a value of RM11.42 million, to obtain direct profit for himself without seeking approval at a company’s shareholder meeting.