Rather UNUSUAL for Prosecution to discontinue Zahid Hamidi's criminal trial at this stage of trial - after the court had asked Zahid to enter his Defence.
Normally, it is done early during the prosecution's case - Not after prosecution had already successfully proved every ingredient of the 47 charges against the accused.
case commenced in November 2019 and 77 days of trial had been held while 114 witnesses were called to testify.
At the close of prosecution's case, the Court will see if the prosecution has made out a 'prima facie' case for each and every charge faced by Zahid. And, the court said YES for all 47 charges. Remember, then if Zahid cannot raise a 'reasonable doubt', he will be convicted and sentenced.
180 Procedure after conclusion of case for prosecution
(1) When the case for the prosecution is concluded, the Court shall consider whether the prosecution has made out a prima facie case against the accused...
(4) For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.
What does prima facie mean? a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.
145 Attorney General(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.
Criminal Procedure Code Sec.254 says '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.
(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.
(2) At any stage of any trial before a Sessions Court or a Magistrates Court before the delivery of judgment, the officer conducting the prosecution may, if he thinks fit, inform the Court that he does not propose further to prosecute the accused upon the charge, and thereupon all proceedings on the charge against the accused may be stayed by leave of the Court and, if so stayed, the accused shall be discharged of and from the same.
(3) Such discharge shall not amount to an acquittal unless the Court so directs.
254A Reinstatement of trial after discharge
(1) Subject to subsection (2), where an accused has been given a discharge by the Court and he is recharged for the same offence, his trial shall be reinstated and be continued as if there had been no such order given.
(2) Subsection (1) shall only apply where witnesses have been called to give evidence at the trial before the order for a discharge has been given by the Court.
Today still, the Attorney General is also the Public Prosecutor see An Independent PUBLIC PROSECUTOR different from the Attorney General.
Remember, prosecution can only DISCONTINUE - When this happens, automatically the accused is granted a DISCHARGE NOT AMOUNTING AN ACQUITTAL(DNAA).
The accused person can apply to court for an acquittal - and the court decides.
I personally believe a DNAA is just, as it puts the accused back at the same situation as if he has not been charged.
However, a judge has the discretion to acquit. The High Court Judge decided on DNAA, and not Acquittal - but will on appeal by the accused result in a different outcome - ACQUITTAL???
Problem still is that the Prime Minister has power with regard to appointment and elevation of Judges > Many have asked for the removal of the Prime Minister with regard the appointment or elevation of the Judge - but still no moves on the part of government.
Amend Federal Constitution and Judicial Appointments Commission Act 2009 to remove Prime Minister’s role in appointment and elevation of judges in Malaysia. PM must disclose whether recent appointments is as per recommendation of the Judicial Appointments Commission or not. (MADPET)
An ACQUITTAL is dangerous because it allows a GUILTY to walk free and never be charged again for the same offence - and ignores the fact that evidence make later come to light, and there is nothing that can be done to ensure the criminal be made to pay for his/her crimes. We recall that one past Attorney General/Public Prosecutor decided that Najib had not broken the law, but then a subsequent Attorney General/Public Prosecutor decided otherwise > and after TRIAL and appeals, it has been proven that the later Attorney General/Public Prosecutor was right. YES - a future prosecutor may elect to prosecute >>> hence, it is reasonable that NO ACQUITTAL for mid-trial discontinuance by prosecution, ONLY at the end of the Trial after the judge has considered all available evidence
Hence, Prosecution must rightly never push for an acquittal after deciding not to proceed with a case, unless they are 100% certain that the accused is innocent.
Likewise, a Judge best give a DNAA, and not an acquittal simply because prosecution decided to discontinue proceedings in a criminal trial ...
In Zahid Hamidi's case, which have been reported widely in the media > people are aware of the facts and evidence tendered...
Generally, it is interesting that some politicians claim that monies received by them were really 'political donations' or 'for charity'.
If monies are meant for charity, then why was the money not directly given to charity?
If monies were meant for political donations, why were these monies deposited in the party's accounts, be it the main or the branch accounts?
All MPs/ADUNs should have their own constituency bank accounts, so money will flow to where it was intended - not to personal accounts. {If they were not caught, would they even make such claims - or will they simply use these 'dirty money', I wonder??) POLITICAL FUNDING LAW need to be enacted now, for this will clarify further matters.
Further, receiving monies intended for a particular charity - and then an MP/ADUN/Politician giving part or all of these monies to charity giving the impression that he is generous > is that not WRONG?
Is that not an advantage gained by the said MP/ADUN/Politician? Remember, it could also be linked to 'corruption' - why did the giver of monies not directly give the monies to the intended charity or political party?
In Zahid Hamidi's case, there was also a change of Lead Prosecutor >
If DPP Raja Rozela Raja Toran continues to prosecute, Zahid Hamidi will likely be convicted and sentenced? Come back and prosecute to the end..
In Zahid Hamidi's case, one wonders why the Prosecution just not seek a long adjournment - to study Zahid's references, etc, rather than electing to not further prosecute the accused upon the charge, which now resulted in a DNAA - which is at risk of being overturned by Appellate Courts which can make it a TOTAL ACQUITTAL?
The public are concerned about the INDEPENDENCE of law enforcement, prosecution and even the courts. Zahid Hamidi, after all is the head of UMNO/BN, who without BN, Pakatan Harapan would not have been able to be government and Anwar, the Prime Minister?
Ensure the INDEPENDENCE of Prosecution and the Courts > there must be NO political or government pressure....
I have not had a chance yet to consider the 11 reasons and comment about. Personally, I see no relevance that there may be a Royal Commission of Inquiry(RCI) on Tommy Thomas's book > all such concerns could have been raised in trial - Yes, Tommy Thomas could have been called as a witness. Further, the findings of the RCI really will not bind the courts ...
See some relevant earlier posts:-
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)
Was the ACQUITAL of Musa Aman wise? Should not the proceedings just be discontinued - with OPTION to charge again preserved?
DPP fumbles, while lawyer acts justly in asking for DNAA - results in judge ordering Acquittal, not DNAA?
LTTE related case - DISCHARGE not amounting to acquittal(DNAA) and not ACQUITTAL is just?
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Justice Datuk Collin Lawrence Sequerah made the ruling after allowing Deputy Public Prosecutor Datuk Mohd Dusuki Mokhtar’s application to DNAA Ahmad Zahid after the prosecution decided to halt the case as they wanted to investigate the case more in depth.
KUALA LUMPUR: The High Court here today discharged not amounting to an acquittal (DNAA) Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi from all 47 charges of criminal breach of trust, corruption and money laundering in relation to Yayasan Akalbudi funds.
Justice Datuk Collin Lawrence Sequerah made the ruling after allowing Deputy Public Prosecutor Datuk Mohd Dusuki Mokhtar’s application to DNAA Ahmad Zahid after the prosecution decided to halt the case as they wanted to investigate the case more in depth.
“This court makes an order of a discharge not amounting to an acquittal. Before I adjourned, I wish to place on record that although the powers of the Attorney General, under Article 145 (3) of the Federal Constitution and Section 254 of the Criminal Procedure Code (CPC) to institute and withdraw charges at any time, before judgment is passed is unquestioned.
“Should the prosecution decide in the near future that they will not proceed any further with the charges, that much precious judicial time would have been wasted and a great amount of tax payers money will also have been wasted, with that this court stands adjourned,” the judge said.
Ahmad Zahid had sent the 200-page letter of representation to AGC as a basis for consideration for the charges against him to be dropped.
The first letter of representation was submitted in January while the latest, with facts and new evidence, was sent to the AGC in February.
Justice Sequerah said the prosecution, exercising its powers under Article 145 (3) of the Federal Constitution and Section 254 of the CPC, decided to withdraw the 47 charges against the accused person.
“The prosecution, however, asked for DNAA, they have been several reasons for this, but is not limited to the need to further investigate on the charges preferred and that the royal commission of inquiry will be instituted in respect of the contents of the former Attorney-General’s (Tan Sri Tommy Thomas) book.
“The defence, however, objected to the DNAA and instead asked the court to make an order of a discharge amounting to an acquittal (DAA),” he said.
Justice Sequerah said the DNAA is in view of the royal commission of inquiry formed to look into claims in Thomas’ controversial memoir, particularly on alleged selective prosecution.
“The representations are about 200 pages and it is justified for further examination to be conducted,” he said.
He further said that the case commenced in November 2019 and 77 days of trial had been held while 114 witnesses were called to testify.
“As such, I make an order of discharge not amounting to an acquittal,” he said.
Earlier, Mohd Dusuki said he had instructions from the Attorney General to discontinue the proceeding.
He requested that the case be classified as a DNAA as the Malaysian-Anti Corruption Commission (MACC) is still investigating the matter and that the prosecution would need to review the outcome of the probe.
Moreover, he said the defence had also called 15 witnesses so far.
Meanwhile, Ahmad Zahid’s counsel Datuk Hisyam Teh Poh Teik applied to the court to acquit and discharge his client under Section 254 of the CPC.
“The case is at the defence stage and a total of 15 witnesses have testified so far, and now the AGC decided to review and conduct further investigations in this case. This case has been hanging over my client’s head since 2018.
“The AGC itself does not want to continue the case, thus, my client must be given full acquittal,” said Hisyam, adding that it would be unfair and unjust if Ahmad Zahid was not given full acquittal.
For the CBT charges, Ahmad Zahid was alleged to have used the funds to make six payments for his personal credit cards usage, insurance policy and licence for his personal vehicles, remittances to a law firm and contributions to the Royal Malaysia Police Football Association.
The offences were allegedly committed at Affin Bank Berhad branch in Jalan Bunus off Jalan Masjid India, here, between Jan 13, 2014, and Dec 23, 2016.
The charges, under Section 409 of the Penal Code, provide for a jail term of between two and 20 years, and with whipping, and fine, upon conviction.
Ahmad Zahid was also charged with eight counts of bribery, where he was alleged to have accepted bribes from three companies, namely Mastoro Kenny IT Consultant & Services, Data Sonic Group Bhd and Profound Radiance Sdn Bhd as an inducement for him, in his capacity as Home Minister then, to help the companies to obtain MyEG projects, supply passport chips and to be appointed the operator of the migrant visa one-stop centres in Pakistan and Nepal, respectively.
He was charged with committing the offences, framed under Section 16(a)(B) of the Malaysian Anti-Corruption Commission (MACC) Act 2009, at the Maybank branch at Dataran Maybank in Jalan Maarof, Bangsar, here, between July 15, 2016, and March 15, 2018.
Ahmad Zahid, who is Umno president, also faced 27 charges of money laundering by engaging in direct transactions involving income from illegal activities between March 29, 2016, and April 11, 2018.
All the offences were allegedly committed at Malayan Banking Berhad, Dataran Maybank branch, Level 1, Tower A, No. 1 Jalan Maarof, Bangsar and Marhaba Enterprise Sdn Bhd, LG 1.15, Fahrenheit88, 179 Jalan Bukit Bintang, here, between March 29, 2016, and April 11, 2018.- Bernama, Sun Daily, 4/9/2023
11 reasons for Zahid's DNAA in Yayasan Akal Budi case - DPP
THERE were 11 reasons on Datuk Seri Dr Ahmad Zahid Hamidi's discharge not amounting to acquittal (DNAA) in Yayasan Akal Budi case, according to Deputy Public Prosecutor Datuk Ahmad Dusuki Mokhtar.
1. The defence called 15 witnesses including Zahid himself. The prosecution believes that the testimonies of these witnesses need to be examined by both the prosecution and the investigators.
2. Zahid submitted two representation letters to the Attorney General's Chambers (AGC) dated Dec 8, 2022, and Jan 25, 2023, respectively.
3. Following the letters, the Malaysian Anti-Corruption Commission (MACC) informed the AGC on Jan 20, 2023, that it is crucial to conduct a further detailed, comprehensive, and in-depth investigation.
4. Zahid once again, on Feb 28, 2023, and March 7, 2023, sent four more representation letters to raise new issues and evidence, which undoubtedly required MACC to investigate.
5. The letters also addressed the issue of the investigation into the accused before, during, and after being charged in court, which was alleged to have been rushed, careless, premature, and incomplete.
6. This matter undoubtedly has the potential to tarnish the reputation and credibility of AGC as the prosecuting party and the MACC as the investigating body. It may appear that these institutions have been manipulated or exploited by certain parties for their own agenda.
7. To ensure that Zahid's rights are not denied and to prevent any miscarriage of justice. We believe that all charges against Zahid should be temporarily halted at this time, but only with the effect of a DNAA until a more thorough and comprehensive investigation is completed.
8. The prosecution believes that this court should take note on the Cabinet's announcement to establish a Royal Commission of Inquiry (RCI) to investigate the former Attorney-General Tan Sri Tommy Thomas's memoir and the revelations he made regarding charges made against certain individuals.
9. Zahid raised a serious issue in his representation letters such as claiming that he is a victim of selective prosecution by the previous government. The AGC believe that it is crucial for the prosecution and the MACC to thoroughly examine and investigate this claim.
10. This is in line with the RCI's objectives, which, among other things, aims to investigate allegations related to professional misconduct by the highest officeholders in the country.
11. An internal memo purportedly issued by the AGC regarding the ongoing case has circulated on social media. The AGC is taking steps to verify the content of this internal memo and believes it is important as it directly addresses the issues raised by Zahid in his letters.- NST, 4/9/2023
Under fire over Zahid, AGC says ‘better ten guilty persons escape than one innocent suffer’
KUALA LUMPUR, Sept 8 — The Attorney General’s Chambers (AGC) told the Malaysian Bar today that it did not “withdraw” the charges against Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi but was acting in good faith over new representations made to it over his case.
It said it could not outright ignore Zahid’s representations alleging political persecution, citing among others the government’s plan to convene a royal commission of inquiry into allegations against former AG Tan Sri Tommy Thomas, under whom the charges against the Umno president had been initiated.
“We never used the word ‘withdraw’ in the case involving Zahid as the Malaysian Bar accused us of. According to Article 145(3) of the Federal Constitution the discretion lies with the attorney general to halt any criminal proceedings and if referred to subsection 254(1) of the criminal procedure code it states that in if the Public Prosecutor (or any other person recognized in law as being his alter ego) withdraws a charge, then subsection 254(1) shall apply. In this instance, the court must (‘shall’) order a stay of proceedings and discharge the accused.
“Despite there being a prima facie case already proven the law states the AG can still stop the case from proceeding. It’s also important to remember that this isn’t the first time this has happened where a case was stopped after a prima facie case was proven,” it said in a statement.
Yesterday, the Malaysian Bar said the AGC’s move to drop the charges against Zahid “rings hollow” or was insincere, as it did not explain the attorney general’s decision to withdraw all 47 charges but highlighted the court’s role instead.
Malaysian Bar president Karen Cheah Yee Lynn said it was the prosecution who withdrew all 47 charges against Zahid and that it was the prosecution who asked the High Court on Monday to grant a discharge not amounting to acquittal (DNAA) on Zahid, with the prosecution alluding to the need for the Malaysian Anti-Corruption Commission (MACC) to carry out further investigations.
Today, the AGC said it had previously set out 11 reasons for its decision that included, among others, being in the best decision to arrive at the conclusion based on the new evidence and representations that were presented in the case.
It also said it was also not the AGC’s role to judge a person or to secure a conviction at all costs.
“Instead, it is the department’s sworn duty to ensure the processes of law are upheld based on the Blackstone Ratio which states, ‘It is better that ten guilty persons escape than that one innocent suffer.’”
The AGC said the new information it was reviewing in Zahid included at least 200 pages per representation, which would take time to analyse.
Consequently, it said it was only proper to conditionally discharge Zahid until the new information could be completely digested.
The prosecution decided to discontinue and drop the Yayasan Akalbudi trial against Zahid — which resulted in the High Court granting a discharge not amounting to an acquittal (DNAA) on Zahid for all 47 charges he faced.
Trial judge Datuk Collin Lawrence Sequerah when delivering his decision in the High Court yesterday said that the prosecution had “given cogent reasons” it sought the DNAA.
This came after Deputy Public Prosecutor Datuk Mohd Dusuki Mokhtar explained that further investigations on Zahid’s case had to be carried out, following the representations from Zahid to the attorney general to ask for all 47 charges to be reviewed.
Zahid, who is also Umno president and Barisan Nasional chairman, faced 47 charges in this case, namely, 12 counts of criminal breach of trust in relation to over RM31 million of his charitable organisation Yayasan Akalbudi’s funds, 27 counts of money laundering, and eight counts of bribery charges of over RM21.25 million in alleged bribes.
Yayasan Akalbudi was founded with the purported objectives of receiving and administering funds for the eradication of poverty and enhancing the welfare of the poor.
The decision to drop the case despite the prosecution previously having shown a prima facie case, was panned by both sides of the political divide. - Malay Mail, 8/9/2023
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