Zahid Hamidi's DNAA(Discharge Not Amounting To Acquittal) following the decision of the Public Prosecutor/Attorney General's decision to discontinue prosecution raises a fundamental issue with regard the interpretation of the law.
The QUESTION is when the Public Prosecutor declines to prosecute - What should the Judge do?
Should the Judge generally DISCHARGE, or ACQUIT? What is the exception that can be claimed if there are 'special circumstances' - ACQUITAL or DNAA? Should there not be NO Acquittal safe at close of prosecution case, or at the end of trial - both instances where the Judge considers all evidence adduced and decides.
Is there an ONUS(obligation) on the accused to prove WHY he should be also ACQUITTED, or is there a ONUS on the Prosecution to prove WHY he should be DISCHARGED and not acquitted?
Sadly, Malaysian Court judges, including the Federal Court judges seem to think that the burden of proof is on the prosecution to prove why an accused should not be acquitted - and just given given a DISCHARGE(i.e. a DNAA) only. Was this Parliament's intention.
The problem or confusion arises also because of the words used in Section 254(3) - they are NOT CLEAR, and as such Parliament needs to speedily clarify their intention, and do the needful amendments to make clear whether an accused must be acquitted as of right, or simply discharged(not acquitted)
Parliament enacted the law - section 254 Criminal Procedure Code, and later added section 254A
254 Public Prosecutor may decline to prosecute further at any stage(Criminal Procedure Code)
(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.
Then, via an amendment later, section 254A was added
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.
The main problem lies with the wording of section 254(3) - (3) Such discharge shall not amount to an acquittal unless the Court so directs.
In my opinion, section 254(3) was a clarification that the word 'DISCHARGED' used in section 254(1) and (2) - did not mean an acquittal.
It also gives the court the DISCRETION to ACQUIT if it so decides. This means that if the accused can convince the court as to why he/she should merely be discharged, but should also be acquitted - then, and then only will the court acquit.
However, a recent Federal Court decision see Judges taking differing views on 254(3)...
See below the relevant extract of a Federal Court Judgment in July 2022
...Section 254(3) goes on to provide for the effect of the discharge; it expressly states that "such discharge shall not amount to an acquittal unless the court so directs"; and it is the meaning and operation of s. 254(3) which lies at the heart of this appeal. In my view, the court has to specifically direct that the discharge does not amount to an acquittal. Otherwise, the default position is that the discharge amounts to an acquittal. This is the plain and clear meaning of s. 254(3), that the court has to so direct that the discharge does not amount to an acquittal, otherwise, the discharge amounts to an acquittal. And, it is the duty of the court to give the terms of the statute its plain and unambiguous meaning - see Federal Court in PP v. Sihabduin Hj Salleh & Anor [1981] CLJ 39; [1981] CLJ Rep 82; [1980] 2 MLJ 273; and Krishnadas Achutan Nair & Ors v. Maniyam Samykano [1997] 1 CLJ 636; [1997] 1 MLJ 94.[38] There are sound reasons for this provision and some indications were given in the case of PP v. Mat Zain [1948-49] MLJ Supp 142. There, an accused who had been previously charged with the offence of robbery and discharged not amounting to an acquittal after the charge was withdrawn, was rearrested four months later and charged for the same offence. After expressing dissatisfaction with the conduct and delay in the whole proceedings, Callow J made the following observation:
I do not know the reason for this or the nature of the charge preferred but a discharge amounting to an acquittal should be in exceptional circumstances. I presume the withdrawal was made by the prosecuting officer in accordance with s. 254 of the Criminal Procedure Code. This procedure may be caused by it becoming clear that the charge is not sustainable (Sohoni, 14th Edn. Page 651), or for reasons of expediency, the court should record the reason, and the discharge should amount to an acquittal unless good cause is otherwise shown; an accused person is entitled to trial and determination; only in exceptional circumstances should the charge be permitted to remain indefinitely held against him.
(emphasis added)
[39] I believe His Lordship meant that "a discharge not amounting to an acquittal should be in exceptional circumstances", consistent with the rest of his opinion that "only in exceptional circumstances should the charge be permitted to remain indefinitely held against him". This is also in line with my view that the phrase "unless the court so directs" means that the court must specifically direct that the discharge does not amount to an acquittal unless the court so directs. Otherwise, the default position is that the discharge amounts to an acquittal. This position is similar to where the Public Prosecutor withdraws the charge or enters a nolle prosequi, that the discharge amounts to an acquittal - see PP v. Ng Nam Onn [1964] 1 LNS 146; [1904] 1 MLJ 455:
Thereupon the magistrate made an order for discharge simpliciter and not acquittal. This clearly is wrong. When there is no acquittal an accused person is liable to be retried on the same charge. Accordingly, when the Deputy Public Prosecutor decided to enter a nolle prosequi, it is not fair to have a charge hanging over an accused person indefinitely. It has been the established practice to acquit in such cases. Therefore, acting in revision, under s. 323 of the Criminal Procedure Code, I direct that the order made be amended to one of acquittal.
[40] Consequently, the power in s. 254(3) to discharge an accused person without acquitting him "is a power which should be exercised sparingly and grudgingly and only where the court is satisfied for good cause shown that the public interest insistently demands that it be used", as per Ong Hock Sim J in Koh Teck Chai v. PP [1967] 1 LNS 72; [1968] 1 MLJ 166, adopting the earlier stance posited by Abbott J in Seet Ah Ann v. PP [1950] 1 LNS 81; [1950] MLJ 293. Citing Goh Oon Keow & Anor v. Rex [1948] 1 LNS 14; [1949] MLJ 35 and Tan Ah Chan v. Regina [1955] 1 LNS 155; [1955] MLJ 218, His Lordship added:
Our courts have consistently adopted the line that unless some very good ground is shown, it would not be right to leave an individual for an indefinite period with a charge hanging and lingering over him. As Mr Justice Spenser-Wilkinson said in Public Prosecutor v. Suppiah Pather reported in Editorial Note to Ariffin bin Cassim Jayne v. Public Prosecutor.
If the prosecution are not ready to proceed with their case after reasonable adjournments have been granted, an accused person should not be allowed to suffer from the dilatoriness of the prosecution by being left with a charge hanging over his head indefinitely.
Where the prosecution are unable to proceed for the time being owing to the difficulty of obtaining a witness or for some other cause and are unable to satisfy the court that they will proceed with the prosecution within a reasonable time, then there would be good grounds for a discharge not amounting to an acquittal. In this case, however, although counsel apparently only asked for a discharge not amounting to an acquittal I think the proper order would have been a discharge amounting to an acquittal.
[41]Tan Ah Chan v. Regina was also decided by Mr Justice Spenser Wilkinson where His Lordship referred to his own earlier dicta in Public Prosecutor v. Suppiah Pather and several other cases, to remind of "the numerous decisions of the courts in this country to the effect that unless good cause is otherwise shown a discharge under this section should amount to an acquittal."
[42] In Koh Teck Chai, the learned Magistrate ordered the accused be discharged such discharge not amounting to an acquittal on the application of the prosecuting officer. This was strongly opposed, that no grounds had been given in support of such an application in which case the discharge should amount to an acquittal. After a short adjournment, the prosecuting officer returned citing subpoena could not be served as a civilian witness could not be traced, that departmental action probably may be taken against the accused. The DNAA was then ordered by the Magistrate on ground that he "had no power under the Criminal Procedure Code to discharge the accused, amounting to an acquittal without a trial".
[43] This was corrected by Hock Sim Ong J, that there was a misconstruction of the ruling in Kuppusamy v. PP [1941] 1 LNS 31; [1948] 1 MLJ 25, that an order of acquittal in summary trials can only be made under paras. (f), (g) and (m) of s. 173 of the Criminal Procedure Code (FMS Cap 6)." According to His Lordship, a summary trial nevertheless could avail itself to the application of s. 254, that the learned Magistrate had power under s. 254 to order a discharge amounting to an acquittal:
It in no way was meant to rule out the application of s. 254(ii) of the FMS Code as Mr Justice Murray-Aynsley as he then was in that case said:
Section 254(ii) provides such discharge shall not amount to an acquittal unless the court so directs, except in cases coming under s. 171. Such discharge means, however, discharge under s. 254. Therefore for a discharge to amount to an acquittal without a special order of the magistrate it must fall within the provisions of s. 254 as well as of s. 171.
Section 187(1) of the SS Code is identical with s. 254(ii) and the application was made under that section so that it is clear that the learned magistrate has power to order an acquittal.
[44] After examining the reasons put forth by the prosecuting officer, Hock Sim Ong J varied the order of the Magistrate and directed that the discharge should amount to an acquittal. His Lordship however, cautioned that the power under s. 254 "should be exercised sparingly and grudgingly and only where the court is satisfied for good cause shown that the public interest insistently demands that it be used".
[45] The requirement for satisfactory, good and cogent reasons for the sparing exercise of this exceptional power is a necessary corollary to the unerodable basic principle in criminal justice, that there is a presumption of innocence until due process has found otherwise. It is thus the duty of the court to be vigilant to ensure that there is no oppression or dilatoriness, blindly acceding to the powers of the prosecutor when there is no call to do so - see Goh Oon Keow (supra), remarks made in the context of summary trials but no less applicable in any context.
[46] Unfortunately, in Tan Chow Cheang v. PP [2018] 6 CLJ 452; [2018] 5 MLJ 411, the Court of Appeal viewed an order of DNAA as not a final order in light of the introduction of s. 254A in 2010. Under a DNAA, an accused can be recharged and the case be continued from where it stopped. Consequently, it was "premature at this stage for the order made be appealed against". The scope and meaning of s. 254(3) were thus not examined, with the Court of Appeal indicating that the decisions of Koh Teck Chai and Syed Abdul Bahari Shahabuddin were all pre-2010 decisions which now have to be re-looked in view of s. 254A.
[47] I disagree. Section 254A reads:
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 discharge has been given by the court.
[48]Sections 254 and 254A are entirely separate provisions catering for different conditions. The position of s. 254 is as I have discussed whilst s. 254A operates only where the discharge does not amount to an acquittal and where the accused is indeed recharged for the same offence. In such a situation, the trial is reinstated and then continued "as if there had been no such order given". The fact that there is provision for a reinstatement of the trial prior to the DNAA does not mean that the DNAA is not a final order. The propriety of the direction ordered stands to be challenged.
[49] Recently, the Court of Appeal in PP v. Ambika M A Shanmugam [2021] 2 CLJ 522; [2021] 2 MLJ 723 had occasion to examine the meaning of the words "unless the courts so directs" in s. 254(3), opining that the phrase is "plain and clear" and should be given its literal meaning; that "it clearly means that although the discharge shall not amount to an acquittal but the court is also given the discretionary power to direct for discharge amounting to an acquittal".
[50] While I agree that the phrase "unless the court so directs" confers discretion on the court to give suitable and appropriate directions on the effect of the discharge, I disagree with the Court of Appeal in Ambika that the discretion lay in whether to direct that the discharge amounts to an acquittal. As pointed out, it is the contrary that is the correct position in law. The court must specifically direct that the discharge in s. 254(1) does not amount to an acquittal, otherwise the discharge amounts to an acquittal. The discretion is in considering why the court should direct that the discharge shall not amount to an acquittal.
[51]Section 254(3) must be read in its entirety, that the latter phrase "unless the court so directs" refers to the earlier phrase "such discharge shall not amount to an acquittal"; otherwise, that latter phrase of "so direct" has no meaning or purpose at all. There would be nothing for the court to direct if the earlier phrase connotes the meaning given by the Court of Appeal in Ambika and by the courts below in this appeal.
[52] To suggest that the words "unless the court so directs" is to confer discretion to direct that the discharge amounts to an acquittal is to read into s. 254(3) words and an intent which are plainly not there, a course which the court must always avoid. Such a construction in effect calls for the incorporation of the word "otherwise" in place of the word "so", changing the phrase and the provision to now read as "unless the court otherwise directs". Such an exercise would amount to judicial legislating, a task which would offends the doctrine of separation of powers.
[53] I am of the view that the intention of s. 254(3) is to confer discretion on the court to direct that the discharge does not amount to an acquittal. In other words, the court must specifically direct that the discharge shall not amount to an acquittal. In the absence of a direction by the court, the discharge in the circumstances under s. 254(1) amounts to an acquittal. The word "so" is in reference to the state or terms of order in the earlier phrase in s. 254(3) that the court has to direct.
[54] Perhaps and without running contrary to what I have just said is to move the word "so" to the end of the sentence to now read as "Such discharge shall not amount to an acquittal unless the court directs so". I make this suggestion as this is really the colloquial way of speaking but in proper grammarian drafting language, the terms are "unless the court so directs". It must also not be forgotten that our CPC takes its roots in the CPC of the Federated Malay States [FMS Cap 6] of 1935 and s. 254(3) has remained in the language and terms as originally enacted. Hence, frequently the court pronounces terms of an order and conclude with the words "so ordered" or "so direct".
[55] Implicit in s. 254(3) is the recognition by Parliament of the fundamental principle of a presumption of innocence until proven guilty, that a charge cannot hang over any person for an indeterminate or indefinite period. That would be most harsh, inhumane and illegal. Any person accused of a crime is entitled to due process, must be accorded access to justice and is entitled to the equal protection of the law - see arts. 5 and 8 of the Federal Constitution. In any case, if there is any ambiguity in s. 254(3), Suffian LP had categorically opined in PP v. Sihabduin & Anor (supra) that ".... in criminal law because of the cardinal principle that an accused person is presumed innocent and that it is the duty of the prosecution to prove his guilt, any ambiguity in a statute must be resolved in favour of the liberty of the subject". So, where the AG/PP has made up his mind not to continue with the prosecution and has in fact declined to prosecute further, the accused must be discharged and must stand acquitted of the charge. It must only be in exceptional circumstances and for sound cogent reasons that the court is to exercise its discretion under s. 254(3) and direct that the discharge shall not amount to an acquittal, paving way for the AG/PP to recharge the person at a later date for the same offence.
[56] In Ambika, the Court of Appeal had relied on Goh Cheng Chuan v. PP [1990] 1 LNS 85; [1990] 3 MLJ 401, a decision of the High Court of Singapore, to support its conclusion that s. 254(3) conferred discretion on the court as to whether the discharge should amount to an acquittal; otherwise the discharge does not amount to an acquittal.
[57] Once again, Goh Cheng Chuan was also a summary trial under s. 180 of the then Criminal Procedure Code and the court declined to order a DAA under s. 184. I understand that CPC (Cap 68, 1985 Rev Ed) has since been repealed and replaced with the Criminal Procedure Code 2010 (Act 15 of 2010) with effect from 2 January 2011. Section 180 which deals with summary trials is now governed by s. 230 of CPC 2010. The old s. 184 which was under consideration in Goh Cheng Chuan now appears as s. 232 in CPC 2010 reads as follows:
(1) At any stage of any summary trial before judgment has been delivered, the Public Prosecutor may, if he thinks fit, inform the court that he will not further prosecute the defendant upon the charge and thereupon all proceedings on the charge against the defendant shall be stayed and he shall be discharged from and of the same.
(2) Such discharge shall not amount to an acquittal unless the court so directs except in cases coming under s. 147.
[58] Aside from my earlier observations on summary trials which apply with equal force here, the trial in Goh Cheng Chuan had been postponed several times at the behest of the prosecution, principally due to its difficulty in tracing a material witness. On the mention date fixed after an adjournment sought by the prosecution had been allowed, the DPP applied to discharge the accused, the discharge not to amount to an acquittal for two reasons - the prosecution still could not locate the material witness and, it had every intention of proceeding with the charge once the witness was traced and found. The district judge granted the order despite the strong objections of the accused, reasoning that the DNAA was a "course that cannot be countermanded" due to the role of the public prosecutor under s. 336(1) of the Criminal Procedure Code 2010 and art. 35(8) of the Constitution of the Republic of Singapore, a position not unlike our art. 145 of the Federal Constitution. The district judge also declined to follow Lai Kew Chai J's decision in K Abdul Rasheed v. PP; Ah Chak Arnold v. PP [1985] 1 LNS 54; [1985] 1 MLJ 193, finding that it was decided per incuriam in not having taken into consideration the role and responsibility of the AG, as PP, on the institution, conduct and continuance or otherwise of all criminal prosecutions.
[59] On appeal, Thean J made several observations.
[60] First, on the lower court's reliance on s. 336(1) of the CPC 2010 and art. 35(3) of Singapore's constitution, Thean J held that he did "not see the relevance of these provisions on the operation of s. 184 of the Criminal Procedure Code 2010 and on the nature and effect of an order of discharge made under that section." Next, His Lordship found the district judge in error when holding that "where the public prosecutor has informed the court that he will not 'further prosecute' the accused and further makes it clear that he intends eventually to proceed with his prosecution of the accused on the charge, it becomes not only abundantly clear that the order discharging the accused shall not amount to an order of acquittal as well but a course that cannot be countermanded".
[61] According to Thean J, the information of the prosecution as to its future prosecution of the charge "forms part of the material for the court to consider whether it should, pursuant to s. 184(2), exercise its discretion and order that the discharge shall amount to an acquittal". Once the prosecution had informed the court that it will not further prosecute, s. 184 comes into operation:
... Upon the prosecution informing the court that it will not further prosecute the accused on the charge, the section comes into operation, and by virtue of its express terms all the proceedings on the charge against the accused are stayed and the accused is discharged and such discharge shall not amount to an acquittal unless the court so directs or except in cases coming under s. 177 (this section is irrelevant for the purpose of this appeal). Therefore, in an ordinary case, the order of discharge under s 184 does not amount to an acquittal. That this is the nature of the order is dictated by the express terms of the section and not by what the prosecution told the court as regards its intention on the future prosecution of the accused on the charge.
[62] However, on the facts, the prosecution had failed to properly indicate its invocation of s. 184. This was not favourably regarded with the learned judge observing as follows:
However, it is to be observed that the deputy public prosecutor in invoking this section never uttered a word to the effect that she would 'not further prosecute' the accused. On the contrary, in applying for 'an order of discharge not amounting to an acquittal' she said, among other things, that 'the prosecution [had] every intention to proceed against the two accused' once the material witness was found. This ingenious move, it seems to me, was adopted to obviate the difficulty which was considered to be faced by the prosecution in Abdul Rasheed [1985] 1 LNS 54; [1985] 1 MLJ 193. Such a move is undesirable, as it is unclear and confusing. If that section is invoked, it can only operate on the basis that the prosecution 'will not further prosecute' the accused. The decision whether to prosecute or not rests entirely with the prosecution: it is for the prosecution to decide whether or not it will further prosecute the accused on the charge in question; if it so decides not to do so, it ought to inform the court in clear terms.
[63] I would, likewise advocate for such proper practice and conduct from the prosecution, particularly having regard to what we have to said about the operation of our s. 254. I note that Thean J had also held that the district judge was in no position to invoke the per incuriam rule, under the principle of stare decisis. His Lordship held that in any event, the decision in K Abdul Rasheed was not made per incuriam, as Lai Kew Chai J was "clearly aware of the role played by the public prosecutor and also the provision of s. 180 of the Criminal Procedure Code" but was of the opinion that the discretion under s. 184(2) was unfettered and that s. 180 was irrelevant for the purpose of his exercise of discretion.
[64] However, in the matter of the interpretation of s. 184(2), Thean J held that this provision gave the court "an unfettered discretion to direct in appropriate circumstances, that the discharge shall amount to an acquittal". In this regard, I disagree.
[65] As I have pointed out, albeit in the context of summary trials, s. 184(2) of the then CPC of Singapore which is similar to our s. 254(3) actually confers discretion on the court to direct, in appropriate circumstances, that the discharge shall not amount to an acquittal. The burden remains with the prosecution to satisfy the court why, having initiated criminal proceedings against an offender, then having decided to not further prosecute the offender upon the charge and having informed the court of such intent, the prosecution still insists that the discharge which must follow shall or must not amount to an acquittal. That being so, it must be for the prosecution to apply for the direction under s. 254(3) that the discharge shall not amount to an acquittal, to prevent the operation and natural effect and outcome of a discharge under s. 254(1) or (2). The Court of Appeal in Ambika was thus in error in relying on Goh Cheng Chuan.
[66] For completeness, I will deal with K Abdul Rasheed v. PP;Ah Chak Arnold v. PP [1985] 1 LNS 54; [1985] 1 MLJ 193, cited in Goh Cheng Chuan and recently by the Court of Appeal in Mohamed Kanathi Meerah Mydin v. PP [2019] 2 CLJ 28; [2019] 2 MLJ 194. I do so to illustrate the care that must be taken when referring and relying on any authority, particularly where the provisions of law differ.
[67] There were actually two appeals in K Abdul Rasheed before Lai Kew Chai J from two separate orders of the Magistrate ordering the respective accused, Ah Chak Arnold and K Abdul Rasheed, be discharged not amounting to an acquittal. In Ah Chak Arnold, the DPP had informed the district court that the prosecution was unable to proceed because of the unavailability of witnesses. While in K Abdul Rasheed, the DPP merely applied for an order for a DNAA without offering any reasons why it was not going on with the prosecution. Counsel for Ah Chak Arnold applied for a DAA under s. 183(2) but the court declined, holding that where the DPP has not informed the court that it will not further prosecute the accused upon the charge(s), "there was nothing in the provisions of the CPC which would empower me to discharge the accused amounting to an acquittal". As for K Abdul Rasheed, his counsel objected to the prosecution's request and had asked for a DAA to which the court declined and instead granted a DNAA.
[68] Lai Kew Chai J was of the view that the meaning of the phrase "he (the Public Prosecutor) will not further prosecute the defendant upon the charge" under Singapore's s. 183 of the Criminal Procedure Code (which in substance is similar to our s. 254 ) was capable of two possible meanings. The first is where the PP informs the court that for some reason, such as unavailability of a prosecution witness, the PP will not at that stage when the case comes up for hearing, "go on with the prosecution of the defendant upon the charge... that he has decided that he will not take the prosecution beyond what has gone on up to that stage". The second is where the PP informs the court that "he will not ever prosecute the defendant on the charge".
[69] In respect of Ah Chak's appeal, Lai Kew Chai J disagreed with the district court who, in His Lordship's opinion had "fallen into error" when taking the second meaning, that it was giving s. 183(2) a "narrow and restrictive scope". His Lordship further held that s. 183(2) plainly conferred discretion on the court to direct an acquittal and that the discretionary power arises the moment the prosecution informed the court that it is not going on with the prosecution of the defendant on the charge, regardless of whether prosecution has decided to forever withdraw the charge, or only at that stage:
... Section 183(2) begins with the propositions of law that such discharge shall not amount to an acquittal, followed by the crucial words "unless the court.". I need not refer to the cases coming within s. 176 of the Code as they are irrelevant for present purpose. These crucial words plainly confer on the court the discretionary power to direct an acquittal and the power arises the moment the prosecution informs the court that it is not going on with the prosecution of the defendant upon the charge, whether or not the prosecution has decided forever to withdraw the charge.
(emphasis added)
[70] Although Lai Kew Chai J cited the earlier decisions of Goh Oon Keow & Anor v. Rex (supra); the dicta of Justice Spenser-Wilkinson in PP v. Suppiah Pather reported in Editorial Note to Ariffin Cassim Jayne v. Public Prosecutor and Tan Ah Chan v. Regina (supra) which was approved by Hock Sim Ong J in Koh Teck Chai v. PP (supra), His Lordship took the position that it was for the accused to invoke s. 183(2) and apply for a discharge amounting to an acquittal; and that it was for the accused to show "sufficient reasons to displace the principle that the discharge shall not amount to an acquittal". Having made these observations, Lai Kew Chai J then proceeded to examine the reasons put forth by the prosecution for a DNAA as well as the circumstances to date in Ah Chak's appeal before holding that "it would be unfair to subject him to any further agony and I directed that the discharge should amount to an acquittal". As for K Abdul Rasheed, His Lordship similarly ordered a discharge amounting to an acquittal after finding that the district court did not act judicially and had not considered both the public interest and any unfairness to the accused when ordering a DNAA. According to Lai Kew Chai J, "a consideration of one aspect without the consideration of the other was not a proper exercise of power of the court under sub-s. 183(2) of the Code ".
[71] The decision in K Abdul Rasheed was recently relied on by the Court of Appeal in Mohamed Kanathi Meerah Mydin v. PP (supra), to support the proposition that a trial judge has discretion to direct an acquittal under s. 254(3). However, that discretion is exercisable on application; and it appears to be on application by the accused.
[72] In Mohamed Kanathi, the charge under s. 39B of the Dangerous Drugs Act 1952 against the co-accused was withdrawn on the first day of trial. Following this, the court ordered a DNAA against the co-accused. The co-accused then testified against the appellant as PW1. Although it acknowledged that "unless some good grounds are shown, it would not be right to leave PW1 saddled with a charge hanging over his head for an indeterminate period", the Court of Appeal following K Abdul Rasheed held that PW1 himself did not apply for a discharge amounting to an acquittal; hence that option was not available. The Court of Appeal nevertheless proceeded to acquit and discharged the appellant for reasons unrelated to the exercise of discretion within s. 254(3) itself; that it was due to the erroneous admission of PW1's evidence which if now excluded meant the collapse of the prosecution's case against the appellant. The discharge amounting to an acquittal was not because of the first principle that a discharge amounts to an acquittal unless the court is invited to direct for a discharge not amounting to an acquittal under s. 254(3). This was despite the court acknowledging that there "was ample persuasive authority for the proposition that unless some good grounds are shown, it would not be right to leave PW1 saddled with a charge hanging over his head for an indeterminate period".
[73] Thus, as properly understood, s. 254(3) is not dependent on an application by the accused for the discharge to amount to an acquittal. On the contrary, it is for the prosecution to apply to the court for a direction that the discharge shall not amount to an acquittal. And, as repeatedly said, the court should only so direct sparingly, grudgingly and in exceptional circumstances after it is properly satisfied with the reasons proffered by the prosecution. Surely the same may not be said in the case for granting a discharge amounting to an acquittal.
[74] Further, the fact that the learned DPP invoked s. 254 and sought an order of a DNAA with the explanation that "the investigation (sic) still going on", tacitly acknowledges that it is incumbent on the prosecution to seek a direction under s. 254(3); that it is not for the accused to seek a DAA; and that it is for the prosecution to provide strong and satisfactory reasons for the trial court to exercise its discretion and direct a DNAA under s. 254(3). Faced with such an application, the court must ascertain from the prosecution whether the prosecution intends to proceed against the accused at a later stage, and the reasons for not proceeding presently - see Srimurugan Alagan in The Criminal Procedure Code: A Commentary with Appellate Practice & Procedure, p. 360 para. 254-8.
[75] It is a question of fact dependent on the circumstances presented, what may amount to good grounds for the exercise of the discretion in s. 254(3). Some guidance, however, may be gleaned from the decision of PP v. Syed Abdul Bahari Shahabuddin [1975] 1 LNS 137; [1976] 1 MLJ 87. That was yet another case called up on revision where Abdoolcader J (as His Lordship then was) held:
... when there is no reasonable prospect of a case proceeding as a result of the absence of one or more witnesses or for some other cogent reason, then the prosecution should act under the provisions of s. 254 of the Criminal Procedure Code. Subsection (iii) of s. 254 specifically enacts that a discharge under that section shall not amount to an acquittal unless the court so directs. It is settled law that unless there are good grounds to the contrary a discharge under this provision should amount to an acquittal. Good grounds for a discharge not amounting to an acquittal would arise where the prosecution is unable to proceed for the time being but can satisfy the court that the temporary impediment is not insurmountable and that it will proceed within a reasonable time. This seems to be the raison d'etre for the scheme providing for a discharge not amounting to an acquittal.
(emphasis added)
[76] On the proper judicial exercise of discretion under s. 254(3), Lai Kew Chai J's comments in K Abdul Rasheed on the need to balance between public interest and any unfairness to an accused although articulated in the context of summary trials, is also worthy of repetition. In considering whether discretion ought to be exercised to direct that the discharge shall not amount to an acquittal, a DNAA, the court must always balance public interest against the right of the accused to not have a charge hanging over his head worse than an albatross, undetermined for an indefinite period, lingering long after the AG/PP has clearly informed the court of his intent not to prosecute further.
[77] When the AG makes clear such intent, the duty is upon the court to order that the accused be discharged from the charge and for clarity and to put beyond doubt, the court ought to specify that the discharge amounts to an acquittal. It is only where the AG is minded to invite the court to exercise its discretion and direct that the discharge shall not amount to an acquittal that the court is to turn its attention to the factors for so directing. Otherwise, the discharge must amount to an acquittal.
[78] It may, in fact, be properly argued that s. 254(3) is enacted to safeguard and protect the rights of the accused under the Federal Constitution, especially arts. 5 and 8, by providing that a discharge shall not amount to an acquittal unless the court so directs. Any court, faced with such a request, must therefore only so direct that the discharge shall not amount to an acquittal after it is satisfied on proper and just grounds to give such a direction.
[79] In this appeal, the learned DPP had asked the High Court to grant an order of a DNAA after informing that the AG/PP had decided not to continue with the prosecution of the charge against the appellant as "the investigation [sic ] still going on". This explanation is both troubling and telling.
[80] In PP v. Au Seh Chun (supra), Suriyadi J in discussing when an order for a DAA may be ordered by the court under s. 173(f) alluded to a hypothetical scenario where a request for an adjournment of an ongoing trial is sought on the basis that investigation is yet to be completed. His Lordship explained that it would be quite proper for the court to consider the charge as being groundless under s. 173(f) if it be a summary trial as "no self-respecting Deputy Public Prosecutor will charge a person unless the investigation is considered complete. It is only at the end of the investigation that the executive action is determined." By executive action, His Lordship was referring to the decision to charge.
[81] I agree with that view. There should not have been a charge in the first place if the investigations were "still going on" or incomplete. It would be an aberration and a travesty on the administration of criminal justice if the courts were seen to condone a practice of charge now, investigate later. The prosecution's reason for a direction of DNAA under s. 254(3) borders on abuse and oppression that cannot be endorsed by the court. In effect, had this been a summary trial, it would have shown that the prosecution had a groundless case and the accused must be acquitted and discharged.
[82] What is even more glaring is that at the hearing of this appeal, learned DPP had informed this court that the investigations into the offence for which the appellant is charged "are completed" and the Public Prosecutor has "decided not to proceed with the charge in this case against the appellant". Given these circumstances, the application for a DNAA by the prosecution ought to have been refused then; and with the prosecution now no longer pressing for a DNAA, the appellant must stand discharged and acquitted of the charge.
[83] Clearly, there was no good or sound let alone decent ground, whether then or now, for the High Court to grant the order of DNAA. It is obviously not in the public interest to grant such an order and encourage such abhorrent practice which serves only to undermine the administration of criminal justice in this country.
Conclusion
[84] For the reasons explained, it is patently clear that the circumstances for a direction of discharge amounting to an acquittal, a DAA, was fully warranted in this case. Contrary to the reasonings of the courts below, I do not find the power to direct an acquittal constrained by the absence of witness testimony before the court; that the reason offered by the prosecution for a no acquittal discharge or DNAA was not at all a good or satisfactory ground for the court to exercise its special power for such an order under s. 254(3) of the CPC; and that the order for a discharge amounting to an acquittal or a DAA does not infringe on the powers of the Attorney General as Public Prosecutor under art. 145 of the Federal Constitution.
[85] For all these reasons and as answered above, the appeal is allowed. The orders of the High Court and the Court of Appeal are set aside; the appellant is discharged and acquitted on the charge under s. 130V of the Penal Code.
Zabariah Mohd Yusuf (concurring):
[86] I have read the judgment of my learned sister, Mary Lim Thiam Suan, FCJ on the appeal herein. Essentially the appeal deals with the issue of when should an order for discharge amounting to an acquittal under s. 254 of the Criminal Procedure Code (CPC) be granted.
[87] I agree with the ultimate decision as stated in the said judgment that the facts in this case warranted for a direction of discharge amounting to an acquittal (DAA).
[88] However, I differ with my learned sister on the interpretation to be accorded to s. 254(3) of the CPC with specific reference to para. [37] of the judgment, which reads as follows:
[37] But, s. 254 does not stop there. Section 254(3) goes on to provide for the effect of the discharge; it expressly states that "such discharge shall not amount to an acquittal unless the court so directs"; and it is the meaning and operation of s. 254(3) which lies at the heart of this appeal. In my view, the court has to specifically direct that the discharge does not amount to an acquittal. Otherwise, the default position is that the discharge amounts to an acquittal. This is the plain and clear meaning of s. 254(3), that the court has to so direct that the discharge does not amount to an acquittal, otherwise, the discharge amounts to an acquittal.
(emphasis added)
[89] The same interpretation was also applied by Her Ladyship in paras. [39], [50] until [55] and [65] in the judgment.
[90] For ease of reference, I reproduced s. 254(3) of the CPC hereunder:
254 (1) At any stage of any trial, before 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 Magistrate's 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.
(emphasis added)
[91] It is my view that, a plain and literal reading of s. 254(3) of the CPC means that any discharge granted by the court under s. 254, is a discharge not amounting to an acquittal. But for a discharge amounting to an acquittal, it must be specifically directed by the court. The opening wordings of the section are clear and unambiguous, hence the court must give effect to its plain and literal meaning. In this regard the remarks by Suffian LP in PP v. Sihabduin Hj Salleh & Anor [1981] CLJ 39; [1981] CLJ (Rep) 82; [1980] 2 MLJ 273 are relevant when His Lordship said:
the words of Lord Diplock in an authority cited by my Lord President, Duport Steels Ltd v. Sirs seems to me to be particularly apt, for the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral.
(emphasis added)
[92] I have read and examined the authorities and cases referred to, in the judgment and found that, they never ruled on the interpretation to be accorded to s. 254(3) of the CPC to the effect that "the court has to specifically direct that the discharge does not amount to an acquittal. Otherwise, the default position is that the discharge amounts to an acquittal." In my view, what those cases held were that, the court is vested with the discretionary power to direct an acquittal of an accused person pursuant to s. 254(3) of the CPC and that such discretion is to be exercise judiciously. In other words, s. 254(3) of the CPC does not fetter the discretion of the court in directing that the discharge to amount to an acquittal, if circumstances warrant it. The following cases support this proposition:
(i) PP v. Ambika M A Shanmugam [2021] 2 CLJ 522; [2021] 2 MLJ 723;
(ii) Mohamed Kanathi Meerah Mydin v. PP [2019] 2 CLJ 28; [2019] 2 MLJ 194;
(iii) Goh Cheng Chuan v. PP [1990] 1 LNS 85; [1990] 3 MLJ 401;
(iv) Koh Teck Chai v. PP [1967] 1 LNS 72; [1968] 1 MLJ 166;
(v) Seet Ah Ann v. PP [1950] 1 LNS 81; [1950] MLJ 293;
(vi) Goh Oon Keow & Anor v. Rex [1948] 1 LNS 14; [1949] MLJ 35; and
(vii) Tan Ah Chan v. Regina [1955] 1 LNS 155; [1955] MLJ 218.
[93] The case of Goh Cheng Chuan v. PP (a Singapore case) and PP v. Ambika Shanmugam are two cases which dealt specifically with the phrase "unless the court so directs" which appears in s. 254(3) of the CPC which is in pari materia with s. 184(2) of the Singapore Criminal Procedure Code. PP v. Ambika relied on Goh Cheng Chuan v. PP, which agreed with the decision of Lai Kew Chai J in K Abdul Rasheed v. PP; Ah Chak Arnold v. PP [1985] 1 LNS 54; [1985] 1 MLJ 193, at p. 195 (MLJ) which states:
Subsection [184(2)] begins with the proposition of law that such discharge shall not amount to an acquittal, followed by the crucial words "unless the court so directs..."... These crucial words plainly confer on the court the discretionary power to direct an acquittal and the power arises the moment the prosecution informs the court that it is not going on with the prosecution of the defendant upon the charge, whether or not the prosecution has decided forever to withdraw the charge.
If an accused applies for a discharge amounting to an acquittal, a court must bear in mind that the legislature has in the opening words of sub-s. [184(2)] set down the principle that the discharge 'shall not' amount to an acquittal. There must be circumstances in the proceedings so far on record or the accused must show sufficient reasons to displace the principle that the discharge shall not amount to an acquittal. In exercising its power under sub-s. [184(2)] of the Code, a court must bear in mind and give due regard to the right of the prosecution to proceed at a later stage; Seet Ah Ann v. PP [1950] 1 LNS 81; [1950] MLJ 293. On the other hand, there is ample persuasive authority for the proposition that unless some good ground is shown it would not be right to leave an individual saddled with a charge in which proceedings are stayed for an indefinite period: Goh Oon Keow v. Rex [1948] 1 LNS 14; [1949] MLJ 35, the dicta of Mr Justice Spencer-Wilkinson in PP v. Suppiah Pather reported in the Editorial Note to Ariffin bin Cassim Jayne v. PP [1953] 1 LNS 3; [1953] MLJ 126 which were approved in Koh Teck Chai v. PP [1967] 1 LNS 72; [1968] 1 MLJ 166, 167, by Ong Hock Sim J (as he then was). It is not desirable to set down any principle which a court must follow when acting under sub-s. [184(2)] of the Code as if it is writ in stone and thereby fetter the discretion of the court which has to be judicially exercised. Circumstances do vary from case to case. Each case has to be dealt with on its merits, with the court bearing in mind the public interest and the right of the individual to which I have alluded.
(emphasis added)
[94] In addition, a perusal of the written submissions by the appellant's counsel never alluded to the proposition that s. 254(3) of the CPC means that "the court has to specifically direct that the discharge does not amount to an acquittal. Otherwise, the default position is that the discharge amounts to an acquittal." It is limited to the concern that the court has the discretion/power/jurisdiction to order a discharge amounting to an acquittal to an accused person when the facts warrant it under s. 254 of the CPC.
[95] Save as aforesaid, I agreed that in the present appeal, the facts and circumstances herein justified for an order of a discharge amounting to an acquittal. The appeal was allowed. The orders of the High Court and the Court of Appeal were set aside.
[96] My learned brother Mohd Zawawi Salleh, FCJ has read this judgment in draft and agreed with its contents.
-
VIGNY ALFRED RAJ VICETOR AMRATHA RAJA v. PP, FEDERAL COURT, PUTRAJAYA,MOHD ZAWAWI SALLEH FCJ; ZABARIAH MOHD YUSOF FCJ; MARY LIM FCJ
[CRIMINAL APPEAL NO: 05(L)-23-02-2020(B)] 7 JULY 2022 [2022] 8 CLJ 1
The confusion was in the wordings, and in this case the Judges had 2 views as to the meaning of s. 254(3)
FCJ Mary Lim - I am of the view that the intention of s. 254(3) is to confer discretion on the court to direct that the discharge does not amount to an acquittal. In other words, the court must specifically direct that the discharge shall not amount to an acquittal. In the absence of a direction by the court, the discharge in the circumstances under s. 254(1) amounts to an acquittal.
Zabariah Mohd Yusuf ( and Mohd Zawawi Salleh, FCJ)
It is my view that, a plain and literal reading of s. 254(3) of the CPC means that any discharge granted by the court under s. 254, is a discharge not amounting to an acquittal. But for a discharge amounting to an acquittal, it must be specifically directed by the court....
A suggestion by Mary Lim, FCJ
To suggest that the words "unless the court so directs" is to confer discretion to direct that the discharge amounts to an acquittal is to read into s. 254(3) words and an intent which are plainly not there, a course which the court must always avoid. Such a construction in effect calls for the incorporation of the word "otherwise" in place of the word "so", changing the phrase and the provision to now read as "unless the court otherwise directs".
So, maybe Parliament could clarify matters - by amending s.254(3) from '(3) Such discharge shall not amount to an acquittal unless the Court so directs' to (3) Such discharge shall not amount to an acquittal unless the Court OTHERWISE directs.
There are other concerns -
a) When the prosecution discontinues a criminal case, what happens is that the accused is DISCHARGED - meaning he is no more facing any criminal charges. 'The prefix 'dis' in the word 'discharge' connotes the opposite meaning to the root word 'charge'; meaning that there is no longer a charge.' Mary Lim, FCJ
This means that there is NO MORE CHARGE - no more charge hanging over his head. He/she returns to STATUS QUO like every other person in Malaysia, who reasonably do face the risk of being charged in the future if he/she commits a criminal offence.
Hence, the argument used often to justify an application for acquittal, that is ' it is not fair to have a charge hanging over an accused person indefinitely' is nonsense - as after a DISCHARGE, there is no more any charge hanging over the head of that person.
Remember, an acquittal is a GIFT - it means that the said accused cannot ever be charged and tried again in the future for the same offence or any other offence relying on the same facts'. "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…’ (Sec. 3012(1) Criminal Procedure Code).
Now, when prosecution stops mid-trial a criminal case, the Judge makes his decision not after evaluating all the evidence before court - which happens 2 times in a normal criminal trial, that is when the prosecution closes its case, and when the trial comes to an end.
By ACQUITTING, the judge inadvertently may be setting free a CRIMINAL, and also preventing any future trial for the same offence or another offence based on the same facts. Is this NOT an obstruction of justice, or maybe even a 'GROSS miscarriage of justice' for the victims of the crime and all Malaysians.
Remember, when the prosecution charges anyone in court, they believe that they have sufficient evidence to prove beyond reasonable doubt to the court that the said accused has committed the crime alleged.
But, then sometimes, after the trial began - crucial evidence is LOST - in the case of the former spy, evidence was 'stolen' from the evidence lockers, maybe a KEY witness/es disappeared - or changed his testimony, ... result Prosecution no more confident that it can prove guilt. It needs time to find OTHER evidence, or find a potential witness...Hence, prosecution can apply for an adjournment, or use the power to 'STOP' the criminal trial at the moment. If sufficient evidence then is found, prosecution may charge again, and the trial continues where it stopped. OR the Prosecution may never charge again.
Former Spy Case - MACC officer stole monies from evidence, and replaced with counterfites - jail 3 years only?
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)
However, in the Zahid Hamidi's case, it was ODD as the prosecution had adduced sufficient evidence(and despite the accused's challenge of the evidence in cross-examination), the Judge found that the prosecution had SUCCESSFULLY proved a prima facie case, that means that the prosecution had successfully proved all the elements of 47 charges - and if the accused during the Defence case fails to raise a 'reasonable doubt' - he will be convicted and sentenced.
Public Prosecutor Idrus Harun - Will he discontinue the criminal case and the other appeal against Deputy PM Zahid Hamidi?
Power of PM(Government) to influence police, prosecutors and Judges? Why ask PM to intervene in cases, when he has no such power?
Zahid Hamidi’s Acquittal by High Court Must be Appealed to the Court of Appeal, and Prosecution Failures Must be Investigated - Reforms Needed to Ensure Independence of Deputy Public Prosecutors
29 Bribery Charges - mid-trial discontinuance and acquittal - Time to Abolish ACQUITAL safe for after trial/close of prosecution case?
Zahid Hamidi should not have met 'alleged donors'- 'interference with on-going investigation'?
The RCI on Tommy Thomas is irrelevant, and the findings have nothing to do with the case - mind you, already succeded in proving prima facie case. Numerous letters of representation from the accussed need to be investigated - well, the accussed can raise it in court. What defence witnesses said need to be investigated - this happens in all criminal trials, and prosecution does not stop prosecuting - investigation can happen as the trial continues. Anywhere, the evidence of defence witnesses is b4 the cour, and the Judge will evaluate it.
Assertion of 'selective prosecution' - well, this is not a defence > what the court is concerned is the crimes in the charges against the accused in court. Selective prosecution means Zahid was charged and tried, but some others were not prosecuted > it is easy to remedy, because all the others can at anytime be charged and tried. If the Public Prosecutor or the MACC(or the Police) broke any law during investigations and prosecutions - well, maybe criminal prosecution will be commenced against them - nothing really to do with Zahid Hamidi's case.
Zahid Hamidi could also commence legal action against Tommy Thomas, MACC, Police or any officers... The AG/Public Prosecutor could take criminal or even civil action - to date none yet???
All in all, in my opinion the reasons for the Public Prosecutor stoping to prosecute is LAME...
By so doing, the JUDGE(court) was 'robbed' of the right to decide on the GUILT or the failure of the prosecution to prove guilt beyond reasonable doubt. The court does not decide whether an accussed is INNOCENT - and thus many who may have committed the crime maybe acquitted as the standard of proof of guilt is rightly VERY HIGH.
Added to this suddenly the LEAD prosecuting officer 'changes', and the Public Prosecutor makes his decision days before he ends his term - and then, he is suddenly appointed Chairman of Amanah Raya Bhd, which falls under the Finance Minister, Anwar Ibrahim.
If DPP Raja Rozela Raja Toran continues to prosecute, Zahid Hamidi will likely be convicted and sentenced? Come back and prosecute to the end..
When AG who discontinued Zahid's case gets appointed Chairman of a GLC - A question of public perception?
To date, the Public Prosecutor is yet to CHARGE Zahid Hamidi - so the trial can continue. Why the delay? Problem is that the Attorney General/Public Prosecutor is appointed on the advice of Prime Minister Anwar Ibrahim - (1) The Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation.(Art 145 Federal Constitution)
Zahid Hamidi's can always be charged again, the trial reinstated and continued - section 254A CPC? Explaining and concerns?
Given that Zahid Hamidi is the Deputy Prime Minister, and Anwar's Pakatan Harapan needed to form a coalition with Zahid's Barisan Nasional/UMNO to form the Unity Government - Malaysians were concerned about possible abuse of powers???
Anyway, the issue was refered to the Parliamentary Select Committee to look into the Zahid Hamidi's DNAA - and we are still waiting.
This Parliamentary Committee must look into the issue raised - about Section 254 and 254A > what was the Parliament's intention. The Courts are 'confused' and Parliament must clarify - and make needed amendments.
Live Broadcast/Hansard for all Parliamentary Select Committee (Zahid's DNAA) - A media statement
What happened to Zahid's DNAA Parliamentary Committee? Separation of AG from Public Prosecutor important but the DNAA?
It is my humble opinion, that no one ought to be ACQUITTED save at the close of the prosecution's case, or at the end of the TRIAL.
When Public Prosecutor discontinues a criminal trial - a DISCHARGE is sufficient (now commonly known as DNAA).
Even when the AG/PP stops a criminal trial - if the Judge wants to ACQUIT, he must consider the evidence. Eg - a person charged with kidnapping/murder/robbery/rape/other crime but suddenly the "real perpetrator' was found, or maybe the VICTIM lied about the identity of the perpetrator. OK with simple crimes, but for crimes like CBT, Abuse of Power, Corruption, etc - best to discharge. No one wants such 'criminals' to escape ....without a Fair Trial.
See also:-
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?
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)
29 Bribery Charges - mid-trial discontinuance and acquittal - Time to Abolish ACQUITAL safe for after trial/close of prosecution case?
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
Posts
No comments:
Post a Comment