KUALA LUMPUR (Sept 4): The decision to stop the graft case against Finance Minister Lim Guan Eng was because evidence supporting the first charge had been substantially weakened during cross examination of the prosecution witnesses, an Attorney-General's Chambers (AGC) official said today.
Datuk Mohamad Hanafiah Zakaria, the head of AGC's Appellate and Trial Division, said he felt he would not be fulfilling his duties as deputy public prosecutor (DPP) to let the case continue knowing full well that the case against Lim 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 proceed with the prosecution) against both Lim and Phang in accordance with Section 254 of the Criminal Procedure Code," he said in a statement.
Stressing that Attorney-General Tommy Thomas had no hand in the decision to enter nolle prosequi on the charges against Lim and Phang, Mohamad Hanafiah said he made the decision "without any influence from any quarters".
His comments followed expressions of shock by the Malaysian Anti-Corruption Commission (MACC), which investigated the case and brought the charges against Lim 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.
Lim had pleaded not guilty to charges under Section 25 of the MACC Act 2009 and Section 165 of the Penal Code.
Under the first charge, Lim was accused of using his position as the chief minister of Penang to gain gratification for himself and his wife, Betty Chew, by approving the application for conversion of agriculture land to a public housing zone in southwest Penang to Magnificient Emblem Sdn Bhd.
Phang had also pleaded not guilty to abetting Lim in obtaining the bungalow at an undervalued cost.
The prosecution team was led by DPP Datuk Masri Mohd Daud, while Lim was represented by a team of lawyer led by Ramkarpal Singh. Counsel Datuk V. Sithambaram appeared for Phang.
Mohamad Hanafiah said the AGC adopted the "fresh eye" technique, and he was tasked to decide on the representations made by Lim and Phang as he had not participated in any way with the case earlier.
He added that he communicated the decision to DPP Masri, who is the director of MACC's Legal and Prosecution Division at 7.18am yesterday when he was in Penang for the case.
"In spite of the prosecution's request for the court to order a 'discharge not amounting to acquittal', the court made an order for a discharge and acquittal. This was done upon the application of the counsel for the accused and was in accordance to Section 254(3) of the Criminal Procedure Code," he added.
Mohamad Hanafiah emphasised that the decision of initiating prosecution or discontinuing is within the prerogative and powers of the public prosecutor.
"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 that I only informed Thomas personally at 9.44am yesterday," he added.
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.