PRELUDE
The recent case of the former Chief Minister of Sabah, Tan Sri Musa Aman (“Musa Aman”), who was shockingly acquitted from 46 criminal charges, had left the general public raising doubts over the legality of the order of the acquittal. It is pertinent to highlight that the High Court's decision was made after the Deputy Public Prosecutor (“DPP”) amenable for the case, Datuk Azhar Abdul Hamid, had chosen to withdraw all charges in both corruption and money-laundering cases against the accused.
This raises questions as to whom may fault be attributed to, The DPP who dropped all 46 charges on the day or the High Court Judge, who had decided to acquit Musa Aman before the trial was even heard?
The following article provides an overview of the power of the Public Prosecutor, as well as the Deputy Public Prosecutor, and the legality of the High Court Judge’s decision to discharge Musa Aman amounting to an acquittal and its effect.
OVERVIEW: WHAT WAS MUSA AMAN CHARGED WITH?
On 5 November 2018, Musa Aman was charged with 35 charges under Section 11(a) of the Anti-Corruption Act 1997 for corruptly obtaining gratification of approximately US$ 44 million in relation to timber concession contracts in Sabah between August 2004 and March 2008. (It is noted that 5 charges were later withdrawn on 18 October 2019)
On 5 March 2019, Musa Aman was charged with 16 charges under Section 4(1)(a) of the Anti-Money Laundering and Anti-Terrorism Financing Act 2001 (AMLATFA 2001), for laundering money of approximately US$ 40 million between June 2006 and May 2008.
On 6 May 2019, the prosecution applied for both cases to be transferred to the High Court of Kuala Lumpur for trial. The trial dates for all the 46 charges were fixed on 14-18 September 2020, 24, 26 October 2020 and 10-27 November 2020.
On 13 February 2020, Musa Aman filed two Notices of Motion as follows:
To set aside and quash the charges as groundless; and
To refer a constitutional question to the Federal Court (question regarding a Certificate by a Diplomatic Officer under section 82(2) AMLATFAPUA 2001).
The High Court fixed the date of 9 June 2020 as the date for case management for both applications.
On 9 June 2020, the DPP made an application to withdraw all the charges against Musa Aman, with the reasons vide the Media Release by the Attorney General’s Chambers (“AGC”) on the same day:
On 13 May 2020, Musa Aman sent a representation to the AGC seeking the case against him to be withdrawn and all charges to be withdrawn.
On 5 June 2020, the AGC received an affidavit which was filed in the High Court by Musa Aman, affirmed by the former AG, Tan Sri Datuk Seri Panglima Abdul Gani Patail (“the former AG”) supporting the application by Musa Aman to quash all of the charges against him.
The former AG defended the decision taken in 2012 to take no further action against Musa Aman as investigation revealed the monies involved were political funding.
The former AG also stated that the decision was made collectively, by high level individuals being Datuk Tun Abdul Majid Tun Hamzah (the former Head of Prosecution Division), Tan Sri Abu Kassim Mohamad (the former Chief Commissioner of MACC) and Datuk Seri Mustafar Ali (the former Director of Investigation Division MACC). After studying and perusing the Investigation Paper from a legal standpoint, the former AG in exercise of his discretion decided not to proceed with prosecution.
Documentary evidence from companies and banks which were expected could not be obtained through the Mutual Legal Assistance in Criminal Matters Act 2002 from Hong Kong. The Department of Justice Hong Kong advised that companies and banks in Hong Kong are only required to keep records for 7 years and it is highly unlikely that neither the banks nor the companies would still have the records.
There were also witnesses for the prosecution who had already passed away, suffered from serious medical ailments, or are no longer residing in Malaysia.
A letter dated 22 December 2011 from the Independent Commission Against Corruption Hong Kong stated that their investigation against Musa Aman is complete and on the ground of known facts no further investigative action will be pursued.
THE POWER OF THE PUBLIC PROSECUTOR
The power of the public prosecutor (“PP”) are widely construed under the Federal Constitution (“FC”) as well as the Criminal Procedure Code (“CPC)”. The PP is empowered solely and exclusively to institute, conduct or discontinue any criminal proceedings. According to Article 145(3) of the FC:
(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.
Pursuant to Section 376(1) of the CPC, the Attorney General (“AG”) shall be the PP and shall have the control and direction of all criminal prosecutions and proceedings under the CPC.
In Section 376(2) of the CPC, the Solicitor-General shall be vested the powers of a DPP and shall act as PP in the scenario where the AG is absent or is unable to act.
Alternatively, pursuant to Section 376(3) of the CPC, the PP may appoint any fit and proper persons to be DPP who shall be under the general control and direction of the PP and may exercise all or any of the rights and powers vested in or exercisable by the PP by or under the CPC or any other written law except any rights or powers expressed to be exercisable by the PP personally.
With reference to the facts of Musa Aman, the DPP, Datuk Azhar Abdul Hamid is authorised to act on behalf of the PP to either institute, conduct or discontinue the criminal proceedings against Musa Aman. The next issue concerns the discretion exercised by the DPP. For the purposes of this article, we will mainly consider mainly on the power of the PP to withdraw charges against an accused person.
WITHDRAWAL OF CRIMINAL PROCEEDINGS
Article 145(3) of the FC confers the PP’s discretionary power to withdraw any criminal proceedings for an offence. Section 254 of the CPC also grants the PP's right to, if he thinks fit, withdraw any proceedings against the accused person at any stage of the trial. However, Section 254of the CPC is inapplicable as the trial itself has not commenced, following the case of Public Prosecutor v. Lee Chan Sang [1989] 1 MLJ 224.
As enunciated by Wan Yahya J in the case of Poh Cho Ching v. Public Prosecutor [1982] 1 MLJ 86 , the power of withdrawal whether under Article 145(3) of the FC or Section 254 of the CPC is totally vested on the PP, on the premise that he is expected to exercise extreme fairness and sagacity, but whether he does so or not, the court does not have powers to interfere. According to His Lordship:
“…This power undoubtedly confers upon the Attorney-General an unrestricted discretion in respect of which he is expected to exercise extreme fairness and sagacity. But whether he does so or not, it is not for the courts to decide. The exercise of such power by the Attorney-General is not subject to control by our courts but in most democratic governments is questionable elsewhere — perhaps in Parliament. It is not for the courts, therefore, to enquire into the manner or reasons for the exercise of nolle prosequi. In the absence of this information this court is unable to imply that mere withdrawal of a charge against a co-accused by the Public Prosecutor presupposes that the co-accused had taken part in the offence.”
On the facts, the DPP on behalf of the PP is constitutionally empowered to withdraw all charges before the commencement of the trial following Article 145(3) of the FC. The court is usually not in the position to assess whether the PP has exercised such power with due care and attention. Further, the PP is also not required under the law to explain the reasons of withdrawing all charges to the court or to the general public.
The media release by the AGC serves the purpose of engaging the public and safeguarding the confidence of the public with the AG, which seems to be poorly executed in the real case. However, the public usually have the negative perception that the pitiful judge is the one to be blamed for the whole cause, instead of the AG.
The next question arises as to whether the High Court judge can discharge or proceed Musa Aman’s case and the outcome of granting discharge amounting to an acquittal, also known as the DAA instead of granting discharge not amounting to an acquittal (“DNAA”).
THE HIGH COURT JUDGE’S POWER TO MAKE A DAA AND DNAA
Discharge Amounting to an Acquittal (“DAA”) means that the accused person cannot be charged again for the same offence following the principle of autrefois acquit, despite the possibility of the prosecution obtaining fresh evidence in the future, whereas Discharge Not Amounting to an Acquittal (“DNAA”) means that the accused person can be charged again for the same offence in the future despite being discharged at this moment.
Referring the CPC, there are no specific provisions governing the court’s discretionary power whether to grant the DAA or DNAA before the commencement of the trial. The case of Koh Teck Chai v. Public Prosecutor [1968] 1 MLJ 166 has explained that the power enabling the court to make an order of DAA or DNAA against the accused person shall be exercised sparingly and grudgingly and only where the court is satisfied that there is a good cause shown that the public interest insistently demands that it be used. The consistent jurisprudence regarding this matter shows the court's attitude in favouring making an order of DAA on the premise that, unless there is a good ground shown, it would not be right to leave an individual for an indefinite period with a charge hanging over him.
The case of Public Prosecutor v. Khoo Kay Jin [1973] 1 MLJ 259 has made it clear that Koh Teck Chai's case is only applicable to cases where the PP in his discretion informed the court that he would not proceed with the prosecution of the accused. It would be irrelevant where the prosecution wanted to carry on with the charge against the accused but for the moment was unable for some reason to do so.
Applying to Musa Aman’s case, it seems apparent that the court was adopting the usual approach, which is to grant a DAA. The DPP had provided several grounds for the application to withdraw charges, for instance, the lack of material documentary evidence, witnesses are either untraceable, dead or incapable of providing testimony, of which becomes clear that the charge is unsustainable at the present.
Despite criticisms that may be raised by the general public, it seems that the court's hands are tied when it comes to the withdrawal power exercised by the PP. The court cannot insist to proceed the case to trial. Retired Court of Appeal judge, Datuk Seri Shaik Daud Ismail, suggested that this matter is probably best left to be dealt with by Parliament due to the massive number of charges dropped by the DPP. Furthermore, the public is more likely to be concerned on the legality and the fairness of the court's decision where the high-profiled individuals are involved.
In fact, it does seems like a norm that the PP withdrew frequent number of proceedings, particularly after the victory of Pakatan Harapan Government on the 14th General Election. Some high-profile cases include:
DNAA of Riza Shahriz Abdul Aziz, the stepson of the former Prime Minister, Datuk Seri Najib Razak, on 5 money-laundering charges involving US$248mil (RM 1.2 billion) linked to 1MDB, on May 14 2020. The Sessions Court Judge granted the DNAA to the accused after lead prosecutor Datuk Seri Gopal Sri Ram informed the court that the prosecution had decided to accept the accused’s representation after carefully studying the matter vide the Media Release by the AGC which stated that the then AG Tan Sri Tommy Thomas had agreed to the deal, although this had been repeatedly denied by Tommy Thomas later on;
DAA of former Penang Chief Minister Lim Guan Eng involving the conversion of land status and purchase of a bungalow below market price on September 2018. This followed an application made by the DPP based on a representation sent by the defence to the AG to withdraw the case on 6 July 2018. The court also took into account that the prosecution has not proceeded with the matter since March 2018; and
The dropping of 34 charges against 12 people (including two DAP politicians – Gadek assemblyman G. Saminathan and Seremban Jaya assemblyman P. Gunasekaran – allegedly involved with Sri Lanka’s Liberation Tigers of Tamil Eelam (LTTE), on the grounds that there is no realistic prospects of conviction against any of them on any of the charges brought against them, in February this year.
This may convey a message to the public that the AG acts politically rather than apolitically. The then AG Tommy Thomas also cited in a news portal upon his resignation as saying:
“My position as the AG was that of a political appointee made by Tun Dr Mahathir Mohamad.”
In fact, pursuant to Article 145(1) of the FC, the AG is appointed by the Yang di-Pertuan Agong, on the advice of the Prime Minister, provided he must be qualified to be a judge of the Federal Court. This means that the appointment of the AG is under the influence of the Prime Minister, who plays the role under legislative and executive sector in Malaysia. Transparency International Malaysia (2016) commented that this kind of appointment has made it easier for unchecked and inappropriate decisions to be made in relation to cases involving high profile individuals.
The AG acts as the principal advisor to the government of Malaysia, the Yang di-Pertuan Agong, as well as the Parliament for the civil matters. If the AG shall be the PP and exercise the power under Article 145(3) of the FC to institute, conduct or discontinue any criminal proceedings, this may leave the public a perception of biasness towards the government in that a miscarriage of justice had occurred, particularly in cases involving high-profiled politicians.
CONCLUSION
In conclusion, the PP and the court have exercised their respective powers in accordance to the law, but the outcome of the decision seems to raise the alarming questions regarding the independence of PP. In fact, both roles of the AG and the PP are playing in different nature with the aim of upholding the rule of law in Malaysia.The separation of powers between the AG and the PP is indeed necessary for the purposes of acting impartially and transparently in the AG's decision on deciding whether to prosecute or not regardless of whether high profile cases are involved. Naturally, this will also boost the public confidence in the AG Chambers and the Malaysian judiciary. If we have a non-political legal provision governing the appointment of the AG as well as the separation of powers between the AG and the PP in the criminal proceedings, the result and the outcome today would be different.
Disclaimer: This article was written for the purposes of contributing to the author’s viewpoints on the powers of the Public Prosecutor in the withdrawal of charges and is treated as a practice attempt to hone the author’s legal writing skills and as preparation for the Certificate in Legal Practice examination. All information within this article is solely the views of the author for the better understanding regarding the discretion of the PP to withdraw charges, and necessarily, any mistakes, errors, or omissions belong solely to the author.
Comments