Weak case, so charges dropped

This article first appeared in The Edge Financial Daily, on September 5, 2018.
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KUALA LUMPUR: The decision to drop the graft case against Finance Minister Lim Guan Eng is because evidence supporting the first charge was substantially weakened during cross examination of the prosecution witnesses, an official of the Attorney-General’s Chambers (AGC) said.

AGC’s Appellate and Trial Division head Datuk Mohamad Hanafiah Zakaria said he felt he would not be fulfilling his duties as deputy public prosecutor (DPP) to let the case continue knowing full well the case against Guan Eng and businesswoman Phang Li Koon would not succeed at the end of the prosecution case.

“Hence, I decided for the prosecution to enter nolle prosequi (where the public prosecutor proposes to not to proceed with the prosecution) against Guan Eng and Phang in accordance with Section 254 of the Criminal Procedure Code,” he said.

Stressing that Attorney-General Tommy Thomas had no hand in the decision to enter nolle prosequi on the charges against Guan Eng and Phang, Mohamad Hanafiah said he made the decision “without any influence from any quarters”.

His comments follow expressions of shock by the Malaysian Anti-Corruption Commission (MACC) which investigated the case and brought the charges against Guan Eng and Phang, and Prime Minister Tun Dr Mahathir Mohamad as well as netizens when the Penang High Court acquitted the duo and dropped the charges.

Guan Eng had pleaded not guilty to the charges under Section 25 of the MACC Act 2009 and Section 165 of the Penal Code.

Under the first charge, Guan Eng was accused of using his position as Penang chief minister to gain gratification for himself and his wife, Betty Chew, by approving the application for conversion of agricultural land to a public housing zone in southwest Penang to Magnificient Emblem Sdn Bhd.

Phang had also pleaded not guilty to abetting Guan Eng in obtaining the bungalow at below market value.

The prosecution team was led by DPP Datuk Masri Mohd Daud. Guan Eng was represented by a team of lawyers led by Ramkarpal Singh, and Phang by Counsel Datuk V Sithambaram.

Mohamad Hanafiah said the AGC adopted the “fresh eye” technique when he was tasked to decide on the representations made by Guan Eng and Phang because he had not participated earlier in any way in the case.

He added that he communicated the decision to DPP Masri, the director of MACC’s Legal and Prosecution Division at 7.18am on Monday when he was in Penang for the case.

“Despite the prosecution’s request for the court to order a ‘discharge not amounting to an acquittal’, the court made an order for a discharge and an acquittal. This was done upon the application of the counsel for the accused, in accordance with Section 254(3) of the Criminal Procedure Code.”

Mohamad Hanafiah emphasised the decision of initiating prosecution or discontinuing is within the public prosecutor’s prerogative and powers.

“In this case, I kept confidential my decision until the very last minute and did not consult the investigative agency, fearing it might leak and cause unnecessary alarm. In fact, my decision was so confidential, I only informed Thomas personally at 9.44am yesterday (Monday).”

Mohamad Hanafiah added that he has responded to the legal firm representing the complainant in the case, who objected to the idea of withdrawing charges against the two.

“I have responded to the letter that I will decide the case based on available evidence and governing law, which I did, without fear or favour,” he said, adding that his “utmost priority is justice”.