Media Statement – 9/8/2022
High Court’s Acquittal of former spy chief, overturning the DNAA ordered by another High Court undermines Justice and raises questions
MACC was still gathering evidence, but now cannot re-charge because of the Acquittal
MADPET (Malaysians Against Death Penalty and Torture) is shocked that Judicial Commissioner Roz Mawar Rozain at the Kuala Lumpur High Court decided to acquit former spy chief Hasanah Abdul Hamid a full acquittal in a US$12.1 million (RM50.4 million) criminal breach of trust (CBT) case, hence overturning the decision of High Court judge Datuk Ahmad Shahrir Mohd Salleh on 12/4/2021 who only granted a Discharge Not Amounting To An Acquittal(DNAA) as that Prosecution had said that there are new developments, and also indicated that she will be made to face her charge at a later date. According to media reports, the investigation is still ongoing. (NST, 12/4/2021)
Courts must stop acquitting the accused persons at the beginning of trials or mid-trial just because the Public Prosecutor elects to discontinue the case. A Discharge Not Amounting To An Acquittal(DNAA) is the appropriate order, as it places the accused in the same position as everyone else, being no longer an accused in court.
An acquittal must be reserved generally for cases after full trial, when the court evaluates the evidence and determines that a person is not guilty – or really that Prosecution failed to prove guilt beyond reasonable doubts.
A mid-trial discontinuation by prosecution happens because a possible loss of evidence, or a re-evaluation of existing evidence is deemed to be insufficient to secure conviction. Thus, reasonably they must discontinue prosecution, so that they may try to find ENOUGH evidence of ‘lost’ to be able to prove the accused guilty beyond reasonable doubt. If such evidence emerges, then the prosecution should be able to re-charge the accused again. On the other hand, if still insufficient evidence, the accused may never be charged again.
In certain cases, where investigation reveals the wrong person have been charged for crimes like murder or rape, because the real perpetrator of the crime has been identified, an acquittal in such cases are acceptable. This certainly does not apply in this case, as in April the reason for discontinuance given was ‘…new development as explained by the DPP is a temporary impediment because the DPP confirmed that the accused will be made to face the charge in the future….’
What possible new development? Maybe a key witness had ‘turned’, or maybe some new evidence relevant to the case had suddenly come to light, and so time was needed for more investigation. Mind you, it is unjust for the prosecution to simply postpone cases whilst they continue investigation, in view of trying to find better evidence – thus, reasonably the prosecution will discontinue proceedings for the time being, with the option of being able to charge later if so needed.
The effect of the acquittal is great. Now, even if new evidence emerges that is most convincing, then the prosecution cannot charge the now acquitted for the same charge. Section 302(1) Criminal Procedure Code states, amongst others, that an acquitted shall ‘….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…’
An acquittal can be said to be a ‘GIFT’ – a total protection to a person possibly guilty. Remember that at the commencement or mid-trial, when the court acquits the Judge is doing so without even evaluating all the evidence the prosecution. A judge should not ‘acquit’ until satisfied beyond reasonable doubt that a person is not guilty – hence, acquittal generally should be reserved after the close of prosecution case or after full trial.
In this case, prosecution also said that they may re-charge again in April when the court gave a DNAA. Hasanah, if dissatisfied Hasanah ought to have appealed to the Court of Appeal, so the question arises as to why the application was again made at the High Court. Can even a different judge overturn a decision of a fellow High Court judge?
It must be noted that different prosecutors may have a different view. The Public Prosecutor then, Mohamed Apandi Ali, was of the opinion that Najib did not commit any crime, but the later Public Prosecutor had a different view – which has today been proven by the conviction by High Court, and the affirmation by the Court of Appeal. The 1MDB trial is also still ongoing.
Hence, whether the prosecutor says that there is no intention of re-charging later on should really never be a reason for an acquittal by the court. Noting that prosecutor can only discontinue, and it is the Judge alone to decide on the ordinary DNAA, or grant the extraordinary acquittal. The possibility of securing sufficient evidence later to successfully prosecute a person must not be forgotten. This possibility must never be closed by reason the Judge acquitted.
In this case, it was reported on 28/7/2022 that the Malaysian Anti-Corruption Commission (MACC) was still investigating the case of this Malaysian former spy. The MACC said that it was also investigating one of its officers in connection to missing evidence, being possibly one of the reasons for delay or even the earlier discontinuance in April last year. (Berita Harian, 28/7/2022).
Now, the acquittal by the High Court makes all the efforts of MACC and other investigating bodies worthless, as it seems that they were almost ready to re-charge Hasanah – this is wrong. We are also talking here about public funds, being monies of the Malaysian people. Now, sadly, we the victims are denied justice unless the acquittal is overturned by the Court of Appeal.
MADPET calls for the Public Prosecutor to appeal this acquittal, thus restoring the Discharge Not Amounting To An Acquittal (DNAA) the High Court ordered in April 2021;
MADPET urges judges not to acquit accused persons mid-trial without even a total evaluation of evidence, unless it is proven that the accused person was wrongly accused as the real perpetrator was later identified;
A Discharge Not Amounting To An Acquittal (DNAA) places the accused at the same position as every other person in Malaysia, all of whom faced the possibility of being charged for any crime in Malaysia – having "the sword of Damocles" hanging over them. An Acquittal, not after a full trial, on the other hand is a ‘GIFT” and the possibility that a breaker of Malaysian laws may simply avoid justice due for the crimes committed is appalling.
Charles Hector
For and on behalf of MADPET (Malaysians Against Death Penalty and Torture)
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SPRM masih siasat kes bekas ketua perisik
KUALA LUMPUR: Suruhanjaya Pencegahan Rasuah Malaysia (SPRM) masih menjalankan siasatan terhadap bekas Ketua Pengarah Organisasi Perisikan Luar Malaysia (MEIO), Datuk Hasanah Ab Hamid berkaitan dakwaan pecah amanah.
Menteri di Jabatan Perdana Menteri (Parlimen dan Undang-Undang), Datuk Seri Dr Wan Junaidi Tuanku Jaafar, berkata Jabatan Peguam Negara (AGC) sudah menerima kertas siasatan mengenai kes Hasanah pada 4 Oktober tahun lalu.
Namun, katanya, siasatan itu masih berterusan dan mengalami kelewatan kerana SPRM turut menjalankan siasatan terhadap seorang pegawai serbuannya mengenai kehilangan barang kes yang berkait dengan kes Hasanah.
"Siasatan lanjut terhadap Hasanah masih berterusan berikutan siasatan yang sedang dijalankan oleh SPRM terhadap seorang pegawai serbuannya mengenai kehilangan barang kes yang berkaitan dengan kes Hasanah.
"Perkara ini telah menyebabkan kelewatan dalam siasatan lanjut terhadap kes Hasanah dan setakat ini, tiada apa-apa syor dikemukakan oleh SPRM berhubung kes ini," katanya dalam jawapan bertulis di Dewan Rakyat.
Beliau menjawab soalan R Sivarasa yang bertanyakan mengapa siasatan kes Hasanah mengambil masa lebih setahun sejak April tahun lalu, selepas beliau dilepas tanpa dibebaskan oleh Mahkamah Tinggi.
Pada 12 April lalu, Mahkamah Tinggi Kuala Lumpir melepas tanpa membebaskan Hasanah daripada pertuduhan melakukan pecah amanah AS$12.1 juta (RM50.4 juta) milik kerajaan Malaysia, tiga tahun lalu.
Hakim Datuk Ahmad Shahrir Mohd Salleh membuat keputusan itu selepas Timbalan Pendakwa Raya, Muhammad Iskandar Ahmad memaklumkan kepada mahkamah bahawa pihaknya memohon untuk tidak meneruskan kes terhadap Hasanah.
Ketika itu, pihak pendakwaan memaklumkan Hasanah akan dihadapkan semula dengan pertuduhan baharu selepas mendapati 'kewujudan penemuan-penemuan baharu'.
Pada 25 Oktober 2018, Hasanah, 65, mengaku tidak bersalah atas pertuduhan sebagai seorang penjawat awam, iaitu Ketua Pengarah Penyelidikan Jabatan Perdana Menteri (JPM), melakukan pecah amanah wang berjumlah AS$12.1 juta (RM50.4 juta) milik kerajaan Malaysia.
Dia dituduh melakukan kesalahan itu di pejabat Ketua Pengarah, Bahagian Penyelidikan JPM di Kompleks JPM, Pusat Pentadbiran Kerajaan Persekutuan di Putrajaya, antara 30 April hingga 9 Mei 2018.
Hasanah didakwa mengikut Seksyen 409 Kanun Keseksaan yang
memperuntukkan hukuman penjara maksimum 20 tahun dan sebatan serta denda
jika sabit kesalahan.- Berita Harian, 28/7/2022
Judicial commissioner Roz Mawar Rozain delivered the decision in relation to Hasanah’s bid against the court's decision in April last year which granted her a discharge not amounting to an acquittal (DNAA).
Under the law, an accused granted a DNAA may still be charged for the same offence in future.
However, the judge ruled today that it was “not fair” to have the DNAA looming over Hasanah for over a year, adding that justice was not served that way.
The prosecution, which consisted of DPPs Mohd Fairuz Johari and Mohammed Fakhrurrazi Ahmad Salim, did not challenge Hasanah’s application for a full acquittal.
Hasanah was represented by a team of lawyers Suhaimi Ibrahim, Hamdan Hamzah, Muhammad Ashraff Mohd Diah, Izwan Ariff Ibrahim, Nurfaida Mohd Rashidee and Mona Anak Lubon.
On Oct 25, 2018, Hasanah, 63, claimed trial for one count of CBT amounting to US$12.1 million in government funds when she was serving as then director-general of the Prime Minister’s Department Research Division.
She was accused of committing the offence at the office of the Research Division in the Prime Minister’s Department in Putrajaya between April 30 and May 9, 2018.
Hasanah was charged under Section 409 of the Penal Code, which stipulated a maximum of 20 years jail, whipping and a fine.
In April last year, however, justice Ahmad Shahrir Mohd Salleh granted a DNAA due to the prosecution’s assertion about a new development in the case.
In her ruling today, Roz noted that Shahrir was legally right in granting the DNAA as there was a likelihood of recharging Hasanah based on the evidence at that point in time.
Following last year’s ruling, Hasanah went to MACC to reclaim cash that was seized by the commission in 2018 during its investigation against her but found RM25 million missing.
The case came to light when a blog called Edisi Siasat published an article claiming that police were afraid to act on Hasanah’s police report. It said that Hasanah went to retrieve her money but only found a portion of the cash was left, and the rest had been replaced with fake notes.
However, the police denied receiving a report on the matter.
On the same day, MACC issued a statement that the commission had detained three of its officers over the missing cash.
It was then reported in the same month (September 2021) that the MACC announced it had concluded the investigation into the missing RM25 million and handed the missing investigation paper (IP) to the Attorney-General’s Chambers for further action.
Berita Harian reported this July that the MACC was still investigating its probe into Hasanah for CBT, but it was experiencing some delays due to its separate investigation into the misappropriation of cash evidence linked to Hasanah’s case. - Malaysiakini, 9/7/2022
Ex-spy chief granted DNAA after prosecution decides to withdraw CBT charge
KUALA LUMPUR: After six days of trial, the prosecution in former Malaysian External Intelligence Organisation (MEIO) chief Datuk Hasanah Ab Hamid's RM50.4 million criminal breach of trust (CBT) case has decided not to prosecute her any further.
Following this, High Court judge Datuk Ahmad Shahrir Mohd Salleh granted a discharge not amounting to an acquittal (DNAA) to the 64-year-old accused.
The prosecution had from the onset of the resumption of the trial today made an application for an order of a DNAA.
In a brief decision, Shahrir said the prosecution had provided valid grounds in exercising its powers under the law to not further prosecute the accused.
He said the prosecution had also explained about a new development which was discovered in the case.
"I also find that the new development as explained by the DPP is a temporary impediment because the DPP confirmed that the accused will be made to face the charge in the future.
The judge added that the court could not compel the prosecution to proceed with the case against the accused if it decided to withdraw the charge.
"Therefore, I hereby order the accused to be given a DNAA," the judge said.
Deputy public prosecutor Muhammad Iskandar Ahmad conducted the prosecution while Hasanah was represented by counsel Datuk Suhaimi Ibrahim.
A total of 10 prosecution witnesses had been called to the stand to testify in the trial which started on Oct 6, last year.
On Oct 25, 2018, Hasanah claimed trial to CBT involving USD12 million (RM50.4 million).
Hasanah, in her capacity as the director-general of the Research Department, an outfit under the Prime Minister's Department, was accused of committing the offence while being entrusted with the money.
She was accused of committing the offence at the director-general's
office of the department in Putrajaya between Apr 30 and May 9, the same
year. - New Straits Times, 12/4/2021
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