Appellate and trial chief says Tommy Thomas not reason for Guan Eng’s acquittal

Kenneth Tee
Datuk Mohamad Hanafiah Zakaria said that he made the decision to stop the case involving both Lim Guan Eng (pic) and businesswoman Phang Li Koon as he knew it would not succeed at the end of the prosecution’s case. — Picture by Shafwan Zaidon

PETALING JAYA, Sept 4 — Attorney General Tommy Thomas had nothing to do with the prosecution’s withdrawal of corruption charges against Finance Minister Lim Guan Eng, Datuk Mohamad Hanafiah Zakaria from the Attorney General’s Chambers (AGC) said today.

The head of the AGC’s appellate and trial division said he had been tasked by Solicitor-General Datuk Engku Nor Faizah Engku Atek and the then Solicitor-General II Datin Paduka Zauyah Be T. Loth Khan to handle the matter after Thomas recused himself from leading the prosecution.

He explained that he made the decision to stop the case involving both Lim and businesswoman Phang Li Koon as he knew it would not succeed at the end of the prosecution’s case.

“Hence, I decided for the prosecution to enter nolle prosequi against both Lim Guan Eng and Phang Li Koon in accordance with Section 254 of the Criminal Procedure Code (CPC).

“Similarly, in the case against Lim Guan Eng and Phang Li Koon, there was fresh evidence that has not been previously considered,” he said in a media statement.

Mohamad Hanafiah said the evidence supporting the first charge under Section 23 of the Malaysian Anti-Corruption Commission Act and under Section 165 of the Penal Code has been substantially weakened following cross-examination of prosecution witnesses.

“In spite of the prosecution request for the court to order a ‘discharge not amounting to acquittal’, the court made an order for a discharge and acquittal.

“This was upon the application of the counsel for the accused and was in accordance to section 254(3) of the CPC,” he said.

Lim’s corruption trial had been earlier postponed due to the May 9 general election, which saw Pakatan Harapan elected into government, and again delayed to September 3 after his legal team submitted new representations to the prosecution.

Yesterday, Lim and businesswoman Phang were acquitted by the High Court in Penang of corruption charges over the purchase of a double-storey standalone house below market value when Lim was Penang chief minister.

Mohamad Hanafiah reiterated today that the practice to enter nolle prosequi ― where the public prosecutor does not propose further to prosecute the accused ― was not something out of the ordinary and has been exercised in many other cases upon representation by counsel and upon discovery of fresh evidence or that the evidence has weakened under cross-examination.

“I wish to emphasise that the decision in respect of initiating prosecution or discontinuing is a matter within the prerogative and powers of the public prosecutor.

“There was even a letter from a legal firm representing the complainant objecting to any idea of withdrawing the charges against the accused to which I have responded by making my decision based on available evidence and governing law,” he said.

He added that he was able to consider the matter with a fresh perspective after the AGC adopted the ‘fresh eye’ technique.

Mohamad Hanafiah said he kept his decision until the eleventh hour and did not consult MCC, fearing it might leak and cause unnecessary alarm.

“My decision was so confidential that I only informed the AG personally at 9.44am yesterday.

“I wish to stress that I have decided the representations without any influence from any quarters and my utmost priority is justice,” he said.

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