KUALA LUMPUR – Putrajaya might be receiving brickbats over the prosecution’s decision to discharge Datuk Seri Ahmad Zahid Hamidi from 47 money laundering charges. Still, the deputy prime minister should not breathe a sigh of relief just yet.
Lawyers remind that an accused person who has received a discharge not amounting to an acquittal (DNAA) is not entirely off the hook just yet.
Former Malaysian Bar president Salim Bashir said the law allows charges to be reinstated against an accused person in the future when the prosecution is ready.
“Under the new Section 254A of the Criminal Procedure Code, (the law) spells out that the trial against the accused can be reinstated and continued as if there had been no order of discharge.
“The trial can continue without a need to recall witnesses,” Salim told Scoop.
However, it is not always the case that the court grants a DNAA when the prosecution exercises its powers to refrain from further prosecuting a case.
Salim pointed towards cases where courts granted an acquittal to an accused, as an individual cannot be placed under a continuous threat of prosecution, and a mere DNAA may be against constitutional guarantees.
DNAA as a means for prosecutors to clear hiccups
While the public contemplates whether the decision to discontinue proceedings against Zahid was a result of political interference, administrative and constitutional lawyer Kuhan Manokaran pointed out that there are various reasons for prosecutors to request a DNAA in a criminal trial.
Pointing towards the Federal Court case of Vigny Alfred Raj v PP, Kuhan is of the view that a DNAA could mean that there are “temporary reasons” in the case which can be remedied by the prosecution within a reasonable time.
“So the purpose is to allow the prosecution to remedy this impediment.
“Then, they can either continue with the charge or acquit,” Kuhan said when contacted.
Meanwhile, with regard to situations where an accused receives a DNAA after a prima facie case has been proven, Kuhan suggested that this is a cause for worry for the enforcement agencies involved.
Given that a prima facie situation means that the prosecution has proven elements of a crime sufficient to warrant conviction should the accused choose to stay silent, pulling out suddenly may raise questions with regard to the investigations done.
“If a case is discharged after or during prima facie, it means something is wrong.
“It could, among other things, mean that investigators have fallen short,” Kuhan added.
Similarly, lawyer Mahajoth Singh suggests that whenever the prosecution seeks an order for a DNAA, they must put forth cogent and meritable grounds and not reasons such as “I need to get further instructions from my superiors.”
He said that situations such as the 11 reasons cited by the Attorney-General’s Chambers (AGC) with regard to Zahid’s case are not always a guarantee in non-high profile cases.
“It must be remembered, a beggar on the street and the king are all equal before the law,” Mahajoth said.
Furthermore, the lawyer mentioned that prosecutors seeking DNAAs in criminal trials should provide a time frame for their next cause of action.
“In some situations, prosecutors tend to ask the accused to write to the AGC or the state prosecution director’s office for updates after a DNAA.
“That is bad practice as the burden should not rest on the accused, especially when the request (for a DNAA) is made by the prosecution themselves,” he added.
On September 4, Zahid was granted a DNAA on all 47 of his corruption, criminal breach of trust, and money laundering charges involving his foundation, Yayasan Akalbudi.
He was also charged with accepting bribes when he was home minister between 2013 and 2018.
High court judge Datuk Collin Lawrence Sequerah made the decision after listening to 11 reasons put forward by deputy public prosecutor Datuk Mohd Dusuki Mokhtar to stop the case proceedings.
Zahid had earlier sent a 200-page representation to the AGC for consideration to drop the charges.
The first letter of representation was submitted in January, while the latest one with full data and new evidence was sent to prosecutors in February.
The decision to discharge Zahid drew widespread criticism from various quarters, with the Malaysian Bar asserting that the AGC had tarnished its own reputation and credibility when it applied for the discharge at such a late juncture after a prima facie case had already been established.
Meanwhile, Muda president and Muar MP Syed Saddiq Syed Abdul Rahman switched to the opposition, citing the AG’s failure to provide cogent reasons for Zahid’s discharge. – September 18, 2023