After 24 witnesses, prosecution discontinue and court acquit former FELDA Director of 29 Bribery Charges....And it was done by a Sessions Court Judge, that comes not under the Judiciary.
Of course, prosecution has the right to discontinue cases at any point - usually, this is because at that point in time, prosecution on re-evaluation of evidence available finds that it has insufficient evidence to prove the crime beyond reasonable doubt(a high standard of proof for the court to find someone guilty).
Now, when the prosecution mid-stream decides to discontinue the case or withdraw the charges, then it is up to the Court(the Judge) to give one of 2 different orders - a Discharge Not Amounting To An Acquittal(DNAA) or an Acquittal. The right/just decision before evaluating evidence must be DNAA.
Section 254(1) of the Criminal Procedure Code states, ‘(1) At any stage of any trial, before the delivery of judgment, the Public Prosecutor may, if he thinks fit, inform the Court that he will not further prosecute the accused upon the charge and thereupon all proceedings on the charge against the accused shall be stayed and the accused shall be discharged of and from the same.’
Section 254(3) clarifies that ‘(3) Such discharge shall not amount to an acquittal unless the Court so directs.’
If DNAA - then the prosecution can if later they find sufficient evidence to charge again for the same or similar offences. A DNAA puts the accussed back in the same position as everyone as everyone can be charged for a crime at anytime if there is sufficient evidence to proof the Guilt.
On the other hand, An ACQUITTAL is a GIFT - for the person acquitted cannot ever again be charged for the same offence, or similar offences.
IT IS JUST THAT THE COURTS ONLY GIVES A DNAA - AND NOT AN ACQUITTAL.
So, the question, we must ask is why did the Session Court judge not simply DISCHARGE - but when further to ACQUIT - which means, even if later solid evidence come to light, we cannot again charge him for the 29 BRIBERY CHARGES? As pointed above, the norm is a DISCHARGE - it is only in exceptional cases, where an ACQUITTAL was given.
Acquittal should be given in rarest of circumstances maybe when the prosecution discovers that the accused was not the murderer or the rapist. In other cases, like corruption, only DNAA.
Acquittal can be abused to protect the CRIMINAL especially when prosecution suddenly decides to discontinue or withdraw charges midstream. It is just that ACQUITTAL is never granted unless after the Courts(judge) has evaluated all available evidence - which happens at the close of prosecution case, or at the end of the trial. No judge can ever be sure on guilt or innocence without considering all the evidence.
So, let us look at this case where a person was charged with 29 BRIBERY charges - and mid-stream, the prosecution decided to withdraw ALL charges. If they did for one or several, it may be justified.
This case started in August 2019 and 24 witnessees had already given evidence...so, why suddenly were ALL the charges withdrawn. WORSE, why did the Sessions Court judge Suzana Hussin acquit, rather than ordering a DNAA?Is the Judge confident that this were all FALSE Charges or that the accused is certainly not guilty as charged ???
The court
hearing started in August 2019 and 24 prosecution witnesses including
bank officers and Companies Commission of Malaysia officials gave
evidence.
The court hearing started in August 2019 and 24 prosecution witnesses including bank officers and Companies Commission of Malaysia officials gave evidence.
Something seems very wrong - or is it a gross failure(or abuse of power or wrongdoing) by the MACC and the prosecution.
It is wrong to simply charge an innocent - this is the reason why MACC and the prosecution must never simply charge someone... Will the government pay damages and compensation to the victim, Datuk Noor Ehsanuddin Mohd Harun
Narrashi? After all, he had to suffer much by reason of these 'wrong charges' and legal fees?
ALL 29 Charges withdrawn - well, will the Prosecution Appeal? As mentioned earlier, if ACQUITTED cannot ever again be charged even if NEW strong evidence come to light. Rightfully, it should be a DNAA.
Another problem is SESSION COURT JUDGE - well, they are civil servants that is not under the JUDICIARY - unlike JUDGES of the High Court, Court of Appeal and/or Federal Court whose independence is safeguarded by our Constitution. A Session Court judge can tomorrow be a Deputy Public Prosecutor or a Federal Counsel acting for the government
The Malaysian Bar fully supports Chief Justice Tun Ahmad Fairuz
Sheikh Abdul Halim’s recent statement that the judiciary must be
completely independent of the executive, and his call for Sessions Court
judges and magistrates will come directly under the Chief Justice. This
call which also included a doing away of the Judicial and Legal
Services Commission was reported in all mainstream media. (see “Break
for justice” (NST 22/8/2006),” CJ: Revamp needed for a fully independent
judiciary” (Sun), “Independent judiciary proposed” (Star).) - see more .MALAYSIAN JUDICIARY WANTS COMPLETE INDEPENDENCE FROM THE EXECUTIVE
see related posts:-
Was the ACQUITAL of Musa Aman wise? Should not the proceedings just be discontinued - with OPTION to charge again preserved?
Separation of Judicial & Legal Services Resolution (25/3/2000)
Cases withdrawn, former FELDA board member acquitted and discharged of 29 bribery charges
Cases withdrawn, former FELDA BOD member acquitted and discharged of 29 bribery charges
KUALA LUMPUR (Sept 1): Former Federal Land Development Authority (Felda) board of directors member, Datuk Noor Ehsanuddin Mohd Harun Narrashi was today acquitted and discharged of 29 bribery charges after the prosecution withdrew all the charges against him.
His counsel Datuk Hasnal Rezua Merican, when contacted, said the prosecution had informed the court on the withdrawal of the 29 charges during the case proceeding before Sessions Court judge Suzana Hussin last May 21.
"Actually, the date (May 21) was set for continuation of the case hearing but the prosecution informed the court on withdrawing all the charges against the accused.
“This came about after the Malaysian Anti-Corruption Commission (MACC) had investigated the defence’s statement under Section 62 of the MACC Act and was satisfied that all the transactions made as stated in the charges were advances that had been fully repaid.
"Therefore, the prosecution withdrew the charges against my client (Noor Ehsanuddin) and the court then acquitted and discharged him of all 29 charges,” said the lawyer.
The court hearing started in August 2019 and 24 prosecution witnesses including bank officers and Companies Commission of Malaysia officials gave evidence.
In the Sessions Court here, Noor Ehsanuddin, 58, was facing 14 charges of accepting a bribe of RM23,540.68 in instalment payments for a BMW 3 Series car, from a printing company, Karya Hidayah Sdn Bhd in 2014 and 2015.
In the Johor Bahru court, he faced 10 charges including receiving a bribe of RM50,000 and a piece of land from the same company in 2013 and 2014.
He was also charged in the Shah Alam Sessions Court with five counts of accepting the maintenance of two vehicles and the legal fee payment of RM12,707.60 for the purchase of a piece of land.
The cases in Johor Bahru and Shah Alam were heard together with the case in the Sessions Court here - Edge Markets, 1/9/2021
Former Felda BOD member acquitted, discharged of 29 bribery charges
Wednesday, 1 September 2021
KUALA LUMPUR (Bernama): Former Federal Land Development Authority
(Felda) board of directors member, Datuk Noor Ehsanuddin Mohd Harun
Narrashi, has been acquitted and discharged of 29 bribery charges after
the prosecution withdrew all the charges against him.
His counsel
Datuk Hasnal Rezua Merican, when contacted, said the prosecution had
informed the court on the withdrawal of the 29 charges during the case
proceeding before Sessions Court judge Suzana Hussin last May 21.
"This came about after the Malaysian Anti-Corruption Commission (MACC) had investigated the defence’s statement under Section 62 of the MACC Act and was satisfied that all the transactions made as stated in the charges were advances that had been fully repaid.
The court hearing started in August 2019 and 24 prosecution witnesses including bank officers and Companies Commission of Malaysia officials gave evidence.
In the Sessions Court here, Noor Ehsanuddin, 58, was facing 14 charges of accepting a bribe of RM23,540.68 in instalment payments for a BMW 3 Series car, from a printing company, Karya Hidayah Sdn Bhd in 2014 and 2015.
In the Johor Baru court, he faced 10 charges including receiving a bribe of RM50,000 and a piece of land from the same company in 2013 and 2014.
He was also charged in the Shah Alam Sessions Court with five counts of accepting the maintenance of two vehicles and the legal fee payment of RM12,707.60 for the purchase of a piece of land.
The cases in Johor Baru and Shah Alam were heard together with the case in the Sessions Court here. - Bernama- Star, 1/9/2021
Separation of Judicial & Legal Services Resolution (25/3/2000)
The 54th AGM of the Malaysian Bar held at the Renaissance Hotel, Kuala Lumpur - Saturday, 25 March 2000
Motion 4:
Whereas:-
1.
Today, for more than 90% of the criminal cases, the Magistrate’s Court
and the Sessions Court are the courts of first instance. With regard to
civil and commercial matters, the lower courts have the jurisdiction to
hear disputes where the sum disputed or the value of the subject matter
is not exceeding RM250,000.00.
2. The mechanisms provided in the
Federal Constitution to ensure the independence of the Judiciary (i.e.
judges of the High Court, Court of Appeal and Federal Court, the Chief
Justice, and President of the Court of Appeal and the Chief Judges of
the High Courts) does not extend to Magistrates and Sessions Court
Judges.
3. For example, Magistrates are being remunerated at the
scale similar to those of other civil servants with equal education
qualification and length of service.
4. All members of the
Judicial Services, which includes Magistrates and Sessions Court Judges,
and the Legal Services come under the jurisdiction of the Judicial and
Legal Service Commission (ref. Art. 138 Federal Constitution), whereby
the Attorney General is a member of the said Commission. Thus, the
“prosecutors” and “judges”, especially when it comes to criminal
matters, come under the jurisdiction of the same Commission and this
does not augur well, for “justice must not only be done but also be seen
to be done”.
5. Some Magistrates have been appointed as Deputy
Public Prosecutors (DPP), and some DPPs have also been appointed as
Sessions Court Judges.
6. Many Magistrates appointed are fresh
law graduates. The only pre-requisite for the appointment as a
Magistrate or a Sessions Court Judge is that he/she must be a member of
the Judicial and Legal Services (see sec. 60 & 78A of the
Subordinate Courts Act 1948). There is no other qualifications
requirements akin to those provided for in Article 123 of the Federal
Constitution when it comes to the appointment of the judiciary.
7.
As officers of the Court, lawyers have a duty to be proactive in making
constructive suggestions for the improvement of the administration of
justice in Malaysia.
It is hereby resolved:-
A. That the Malaysian Bar expresses concern about the lack of
mechanisms and safeguards to ensure the independence of Magistrates and
Sessions Court Judges in the lower courts.
B. That the Bar Council be proactive and work towards bringing about
reforms in the administration of justice in the lower courts in
Malaysia, having special regard to the :-
(a) qualification of Magistrates and Sessions Court Judges;
(b) introduction of Mechanisms or Safeguards to ensure greater
independence of Magistrates, Sessions Court Judges and other judicial
officers; and
(c) the necessity of separating the Judicial Services and the Legal Services.
Proposer: Mr Charles Hector
Seconders: En. Amin Hafiz
Ms Mary Manickam
Resolution:
The Motion was unanimously carried.
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