Was the ACQUITAL of Musa Aman wise? Should not the proceedings just be discontinued - with OPTION to charge again preserved?

Should the Judge ordered an ACQUITTAL (permanently safe from the safe charge in the future), or a Discharge Not Amounting to An Acquittal(DNAA) - which means, that at a later date there remains the POSSIBILITY that he may be charged again for the same criminal offence.

The AG may today discontinue proceedings, and prosecution today may have the no intention of charging again ...BUT in the future, evidence may emerge and, if an ACQUITTAL, we cannot charge Musa Aman again for the same offence - JUST? 

INDEPENDENCE OF JUDGES AND PROSECUTORS IN QUESTION? 

There is growing concerned about the independence of the Public Prosecutor and other prosecutors, in the light of recent discontinuation of proceedings that happen in cases involving UMNO-BN personalities and/or their family members. First, we heard the discontinuation of proceedings in cases involving Riza Aziz, the stepson of former premier Najib Razak, and recently the case involving the former Chief Minister of Sabah, Musa Aman.

In the case of Riza Aziz, the discontinuation resulted in a Discharge Not Amounting to An Acquittal(DNAA) - which means, that at a later date there remains the POSSIBILITY that he may be charged again for the same criminal offence.

Lately, the cases against Musa Aman resulted in the High Court ACQUITING him - the problem with an acquittal is that he can never again in the future be charged for the same offence, even if there suddenly arises strong evidence that he is guilty of the said criminal offence. 

The Attorney General(also the Public Prosecutor) is vested with the power to ' ...' but any exercise of this power must be reasonable, and it could be challenged by way of a Judicial REVIEW.

In both these cases, this DNAA and ACQUITTAL happens before the trial is over - when a Judge would have had the opportunity to evaluate all evidence before deciding. The trial also seem to have not started - a trial starts when the first witness is called and tenders evidence. 

Hence, both decisions seem to be pre-trial decisions...

A DNAA is reasonably the best, and should reasonably be the ONLY just order when any 'criminal proceedings' is discontinued before trial starts, or mid-trial before the prosecution closes their case.

A DNAA places the accussed at the same position as every other Malaysians - who live with the 'sword of Damocles' hanging over their head - i.e. with the RISK that they can at any time be charged in court if they broke any law. 

On the other hand, an ACQUITTAL puts the former accused person in a MUCH BETTER position than the rest of us BECAUSE he cannot again be charged for the same offence....Article 7(2) of the Federal Constitution states that, ‘(2) A person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was acquitted or convicted.’

The criminal Procedure Code  Section 302(1) goes further , ‘A person who has been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of that offence shall, while the conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made ...'. Does this mean, that he who is Acquitted, cannot even be charged for a different offence too if it is based on the same facts? 

But, then one may argue that the Criminal Procedure Code provision is talking about 'a person who has been tried...' - In this case, both Riza and Musa have not been tried > so, maybe the possibility is there that they may in the future be charged with a different offence based on the same facts >>> but is there any similar offence that Musa can be charged.

The Judge is HUMAN - and how can he be so sure to ACQUIT - how does he even know that Musa Aman is innocent. No one knows what the future will bring - what happens if new evidence emerges that could prove he was most likely  guilty. This ACQUITAL will keep him safe from being charged again anytime in the future...

The AG or the prosecution only has the power to discontinue proceedings - and this will result in a DNAA....UNLESS the Judge decides to ACQUIT.

So, it is the Judge that bears the responsibility for the ACQUITAL  - and that is the reason, why PROSECUTION MUST APPEAL, giving the opportunity for the Appellate court the opportunity to correct this wrong ...and grant Musa Aman just a DNAA.

Even if there is legal precedence for Acquittal - well, Courts can make mistakes too, and many a legal precedent gets overturned in time...Is the High Court bound by decisions of the Court of Appeal and/or the Federal Court? 

An appeal in the Musa Aman case to the Court of Appeal, and maybe even to the Federal Court if need be gives the HIGHER Courts the opportunity to re-visit this question and the opportunity to come out with a more just decision - which I hope, is only DNAA never an acquittal, unless it be a decision made after trial, be it after the close of prosecution's case or at the end of the trial when the Judge has the opportunity of considering all evidence. 

Never an ACQUITTAL when discontinuation happens before a trial starts, or mid-stream before the close of the prosecution's case.

Note, there have been other cases, during the PH government rule, that also granted an ACQUITAL when it really should have been just a DNAA.

The independence of the Public Prosecutor and prosecutors are also being questioned? Would this have happened under the PH rule? Now, it is happening under the rule of PN - which also brought back into power the UMNO-BN..

We remember that AG Apandi Ali chose not to prosecute Najib, but AG Tommy Thomas did...now, new AG selected by PM Muhyiddin and appointed by the King discontinues criminal proceedings...In the future, some other AG may be of the opinion that there is sufficient evidence to charge Musa Aman for the same offence - and he would not be able to do so simply because of this ACQUITAL?

Media Statement – 9/6/2020

Prosecution Must Appeal High Court Judge’s decision

to Acquit Musa Aman of all charges

-The Perception of the Administration of Justice in Malaysia Is at Risk -

MADPET (Malaysians Against Death Penalty and Torture) is appalled to hear that the former Sabah chief minister Tan Sri Musa Aman has been acquitted, and not given a DNAA(Discharge Not Amounting To Acquittal) of all 46 criminal charges against him involving corruption and money laundering relating to timbers concessions, all of which involving a total of about RM4OO million.

High Court judge Justice Muhammad Jamil Hussin acquitted after Deputy Public Prosecutor Datuk Azhar Abdul Hamid told the court that the prosecution intended to withdraw all the charges during case management here on Tuesday (June 9)(Star, 9/6/2020)

An acquittal means that Musa Aman cannot again be charged for the same offence, even if new evidence surface later proving that he was guilty beyond reasonable doubt. That is the reason, why in a criminal trial, it is unwise to acquit and usually only a DNAA is given.

Once Acquitted – Cannot Ever Be Charged for the Same Offence even if strong evidence emerges

Article 7(2) of the Federal Constitution states that, ‘(2) A person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was acquitted or convicted.’

Section 302(1) of the Criminal Procedure Code states that, ‘A person who has been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of that offence shall, while the conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 166 or for which he might have been convicted under section 167.’

Whilst the Public Prosecutor do have the power to discontinue proceedings in a criminal trial, this will justly follow with the granting of a Discharge Not Amounting To An Acquittal (DNAA), which means that the accused may or may not be charged again at a later date.

If later there emerges new evidence, sufficient in the mind of the prosecution for them to succeed in proving the charges beyond reasonable doubt, the prosecution do have the ability to charge again the person who had been Discharged Not Amounting To An Acquittal(DNAA). Not the case, if a person have previously been acquitted for the same offence.

Justice demands the maintenance of this right and ability for prosecution to charge again, if need be, in the future, for no one wants the prosecution to be denied this choice anymore. This will mean criminals can escape justice.

An acquittal, on the other hand, means that the alleged perpetrator can never again be charged for the SAME offence, even if very strong evidence emerges later proving that he/she is most likely guilty. This is absurd.

If discontinued mid-stream, before end of trial, only DNAA not acquital

Thus, justly, in most criminal cases, if discontinued midway, the courts ought only order a DNAA – never an acquittal.

An acquittal is usually granted after the prosecution has closed its case, or at the end of the trial after the Judge had the full opportunity to consider all evidence submitted during trial. In this Musa Aman case, the trial is yet to even begin with the calling of the first witness.

It must be pointed out that even if an application to strike out the charge in a criminal trial is successful, the court should never grant an acquittal. Such applications usually in based on technicalities, not really on evidence as to guilt or innocence.

In the Musa Aman’s case now, the trial is yet to even begin, and we are still at the stage of case management. The judge is yet to hear or receive any evidence from any witness, and as such the Acquittal for not just one, but all the 46 different charges, is simply wrong.

So, the judge’s decision to acquit at this stage, without even having the opportunity of considering all the available evidence, that would have been submitted through witnesses during trial, is flawed. How can any judge decide to acquit without first hearing all the evidence, from witnesses and/or otherwise.

Only Judge can Acquit – not the Public Prosecutor.

It must be pointed out that all that the Attorney General(or Public Prosecutor) can do is to discontinue proceedings, and not acquit anyone.

Article 145(3) of the Federal Constitution provides that ‘(3) The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.’ 

The Attorney General (also the Public Prosecutor) clearly has no power to ACQUIT anyone – hence keeping anyone safe from the possibility of being charged again for the same offence in the future.

Section 254(1) of the Criminal Procedure Code states, ‘(1) At any stage of any trial, before the delivery of judgment, the Public Prosecutor may, if he thinks fit, inform the Court that he will not further prosecute the accused upon the charge and thereupon all proceedings on the charge against the accused shall be stayed and the accused shall be discharged of and from the same.’

Section 254(3) clarifies that ‘(3) Such discharge shall not amount to an acquittal unless the Court so directs.’

Hence, it is only the Judge who can order an acquittal, and as such MADPET is of the opinion that High Court judge Justice Muhammad Jamil Hussin erred in his decision to acquit Musa Aman, and the prosecution, rightly and justly, should immediately appeal this decision to the Court of Appeal.

Judge erred, and Prosecution Must Appeal

The failure of the prosecution to appeal would negatively impact the public perception of the administration of criminal justice in Malaysia. More so, when this case involves a politician, who is now seen to aligned with the government of the day, who was charged when the Pakatan Harapan government ruled.

People may now question the independence of the Public Prosecutor and/or prosecution. One may wonder whether their actions are determined by the government of the day or some other wrong reasons, when they really ought to act independently in upholding the cause of justice, even if means having to charge and try a sitting Prime Minister or Minister.

Like judges, the Public Prosecutor and prosecutors, must not just be independent but must also be seen to be independent.

The crimes alleged are very serious crimes concerning corruption and money laundering involving a former Chief Minister, allegedly done whilst he was in power. Public interest demands justice be done.

A DNAA, after all, puts the accused at the same position as any ordinary person, in that he can at any time be charged for any offence, if he breaks the law. There seems to be no justification for an outright acquittal in this case.

If Musa Aman, believes that the prosecution had wrongly charged him, he can also always commence a civil suit and claim damages. Prosecution must, after all, never charge anyone without first acquiring sufficient evidence, which they believe is sufficient to convince the court beyond reasonable doubt that the person accused is guilty. To do otherwise, would be wrong and may even be an abuse of power.

Justly no one ought to be acquitted before the end of a fair trial, let alone before even the trial has commenced. A DNAA should be the only thing granted before the completion of a trial, if and when the prosecution elects to discontinue proceedings. The prosecution must appeal, and hopefully the Court of Appeal will remedy the error, and grant Musa Aman a Discharge Not Amounting to an Acquittal (DNAA).

The option for Musa Aman ‘…to be tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him..’ must always justly be there.

Charles Hector

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

Former Sabah CM Musa Aman acquitted of all 46 charges of corruption, money laundering (updated)

Nation
Tuesday, 09 Jun 2020 10:12 AM MYT

By NURBAITI HAMDAN

KUALA LUMPUR: Former Sabah chief minister Tan Sri Musa Aman has been acquitted of all 46 criminal charges against him involving corruption and money laundering relating to timbers concessions.

High Court judge Justice Muhammad Jamil Hussin granted the order after Deputy Public Prosecutor Datuk Azhar Abdul Hamid told the court that the prosecution intended to withdraw all the charges during case management here on Tuesday (June 9).

Musa’s lawyer Francis Ng then asked for the court to grant a full acquittal to avoid the charges hanging over Musa’s head.

Justice Jamil allowed the application and ordered for a discharge amounting to an acquittal on all charges.

In a statement Tuesday, Musa thanked the prosecution and the judiciary for its objectivity, professionalism, impartiality and conduct without prejudice in evaluating the facts of the case since two years ago.

“The application to strike out the prosecution was filed early this year and was done in a meticulous manner and supported with statements and documents that were clear and undeniable proofs, ” he said.

Musa said what has happened to him was due to “political differences” and took it as a test from God for him and his family.

Musa was first charged in November, 2018, with 35 counts of under Section 11(a) of the Malaysian Anti-Corruption Commission (MACC) Act 2009 for accepting gratification by an agent where he allegedly received a total of US$63mil (around RM243mil) in Hong Kong and Singapore as an inducement for offering timber concessions in Sabah.

In March 2019, Musa was brought to court for the second time to face 16 charges of money laundering involving US$37.8mil and S$2.5mil, amounting to about RM160mil in total.

In October 2019, the prosecution dropped five out of the 35 charges of graft against Musa and made amendments to the existing 30 charges then relating to the dates, transactions and names of contractors.- Star, 9/6/2020

Prosecution drops all charges against Musa Aman; judge grants acquittals


Ahmad Naqib Idris / theedgemarkets.com
June 09, 2020 11:47 am +08

KUALA LUMPUR (June 9): The prosecution has withdrawn the 46 corruption and money laundering charges levelled against former Sabah chief minister Tan Sri Musa Aman, with High Court Justice Datuk Muhammad Jamil Hussin granting theacquittals on all charges.

The proceedings today were supposed to be for case management, but defence lawyer Francis Ng Aik Guan told the court that the prosecution intended to make an application amid some "recent developments".

"Following instructions from the AGC (Attorney-General's Chambers), the prosecution intends to withdraw all charges made against the accused," said deputy public prosecutor (DPP) Datuk Azhar Abdul Hamid.

The judge then ordered for the accused to be discharged and acquitted of all 46 charges.

Subsequently, Ng told the court that Musa's striking out applications for the two cases were therefore dismissed, given that the prosecution had decided to drop its charges.

"We are happy. We feel that it is a fair and correct decision — long overdue," Ng said to the media, while walking out of the courtroom.

Lawyer Amer Hamzah Arshad highlighted the fact that his client was already cleared of these allegations in 2012 by two independent bodies, namely the Malaysian Anti-Corruption Commission and the Independent Commission Against Corruption of Hong Kong.

He said the revival of these charges against Musa was a mala fide prosecution and a political persecution, and had the trial gone forward with Musa succeeding against the charges made against him, the government would have faced a potential malicious prosecution civil suit from the former chief minister.

"The current AG being a former Court of Appeal, Federal Court judge has considered our [striking out] application and in his proper objective judgement has instructed the prosecution team today to inform the court they are withdrawing the entire charges against Tan Sri Musa Aman," he said.

Meanwhile, DPP Azhar only told the media that the prosecution was withdrawing all of the charges made against Musa and declined to comment further.

"You wait for the statement from the AGC later," he said.

Musa faced 30 charges of corruption and 16 charges of money laundering.

The corruption charges alleged that Musa in his capacity as Sabah chief minister and chairman of the Board of Trustees of the Sabah Foundation had received US$50.1 million from eight logging concessionaires as an inducement to approve logging concessions for 16 companies.

He was alleged to have committed the offences at eight banks and financial institutions in Hong Kong, China and Singapore between Dec 20, 2004 and Nov 6, 2008.

In reference to the money laundering charges, Musa allegedly instructed Richard Christopher Barnes, 67, to open an account at UBS AG Bank in the latter's name, with the intention of receiving proceeds of illegal activities through the account.

The former chief minister allegedly received US$37.84 million and another sum of S$2.5 million in proceeds from illegal activities from several individuals through the account under Barnes' name.

Musa was also alleged to have concealed the proceeds of illegal activities. - Edge Markets, 9/6/2020