Malaysians Against Death Penalty and Torture (Madpet) is shocked that Judicial Commissioner Roz Mawar Rozain at the Kuala Lumpur High Court decided to give former spy chief Hasanah Abdul Hamid a full acquittal in a US$12.1m (RM50.4m) criminal breach of trust case.
This overturned the 12 April decision by High Court judge Ahmad Shahrir Mohd Salleh, who only granted a discharge not amounting to an acquittal as the prosecution had said that there are new developments and indicated she would be made to face her charge at a later date. According to media reports, the investigation was still ongoing.
The courts must stop acquitting accused persons at the beginning of trials or mid-trial just because the public prosecutor elects to discontinue the case. A discharge not amounting to an acquittal is the appropriate order, as it places the accused in the same position as everyone else, being no longer an accused in court.
An acquittal must be reserved generally for cases after full trial, when the court evaluates the evidence and determines that a person is not guilty – or really that the prosecution failed to prove guilt beyond reasonable doubt.
A mid-trial discontinuation by the prosecution happens because a possible loss of evidence or a re-evaluation of existing evidence [shows that the evidence] is deemed to be insufficient to secure a conviction. Thus, reasonably they must discontinue prosecution, so that they may try to find enough evidence … to be able to prove the accused guilty beyond reasonable doubt.
If such evidence emerges, then the prosecution should be able to re-charge the accused again. On the other hand, if [there is] still insufficient evidence, the accused may never be charged again.
In certain cases, where an investigation reveals the wrong person has been charged for crimes like murder or rape, because the real perpetrator of the crime has been identified, an acquittal in such cases is acceptable. This certainly does not apply in this case, as in April the reason for discontinuance given was “new development as explained by the DPP is a temporary impediment because the DPP confirmed that the accused will be made to face the charge in the future”.
What possible new development? Maybe a key witness had ‘turned’ or maybe some new evidence relevant to the case had suddenly come to light, and so time was needed for more investigation. Mind you, it is unjust for the prosecution to simply postpone cases while they continue investigations to try to find better evidence. Thus, reasonably the prosecution will discontinue proceedings for the time being, with the option of being able to charge later if so needed.
The effect of the acquittal is great. Now, even if new evidence emerges that is most convincing, then the prosecution cannot charge the now acquitted for the same charge.
Section 302(1) of the Criminal Procedure Code states, among others, that an acquitted shall “not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 166 or for which he might have been convicted under Section 167”.
An acquittal can be said to be a ‘gift’ – a total protection to a person possibly guilty. Remember that at the commencement or mid-trial, when the court acquits, the judge is doing so without even evaluating all the evidence of the prosecution. A judge should not ‘acquit’ until satisfied beyond reasonable doubt that a person is not guilty. Hence , acquittal generally should be reserved after the close of the prosecution’s case or after full trial.
In this case, the prosecution also said that they may re-charge again in April when the court gave a discharge not amounting to an acquittal. Hasanah, if dissatisfied, ought to have appealed to the Court of Appeal. So the question arises as to why the application was again made at the High Court. Can even a different judge overturn a decision of a fellow High Court judge?
It must be noted that different prosecutors may have a different view. The public prosecutor then, Apandi Ali, was of the opinion that Najib did not commit any crime, but the later public prosecutor had a different view – which has today been proven by the conviction by the High Court and the affirmation by the Court of Appeal. The 1MDB trial is also still ongoing.
Hence, whether the prosecutor says that there is no intention of re-charging later on should really never be a reason for an acquittal by the court. Noting that the prosecutor can only discontinue, and it is the judge alone [who has] to decide on the ordinary discharge not amounting to an acquittal or to grant the extraordinary acquittal.
The possibility of securing sufficient evidence later to successfully prosecute a person must not be forgotten. This possibility must never be closed by reason the judge acquitted [the person].
In this case, it was reported on 28 July that the Malaysian Anti-Corruption Commission (MACC) was still investigating the case of this Malaysian former spy. The MACC said that it was also investigating one of its officers in connection with missing evidence in Hasanah’s case, being possibly one of the reasons for the delay or even the earlier discontinuance in April last year. Did some person in the MACC destroy the evidence?
Now, the acquittal by the High Court makes all the efforts of the MACC and other investigating bodies worthless, as it seems that they were almost ready to recharge Hasanah – this is wrong. We are also talking here about public funds – money of the Malaysian people. Now, sadly, we the victims are denied justice unless the acquittal is overturned by the Court of Appeal.
Madpet calls for the public prosecutor to appeal this acquittal, thus restoring the discharge not amounting to an acquittal the High Court ordered in April 2021.
Madpet urges judges not to acquit accused persons mid-trial without even a total evaluation of evidence, unless it is proven that the accused person was wrongly accused as the real perpetrator was later identified.
A discharge not amounting to an acquittal places the accused at the same position as every other person in Malaysia, all of whom face the possibility of being charged for any crime in Malaysia – having the sword of Damocles hanging over them. An acquittal, not after a full trial, on the other hand is a ‘gift’ and the possibility that a breaker of Malaysian laws may simply avoid justice due for the crimes committed is appalling.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)