GEORGE TOWN: Why should it be up to Attorney-General (A-G) Tommy Thomas to decide whether to file an appeal against the acquittal of former Penang chief minister Lim Guan Eng and businesswoman Phang Li Koon?
This was the poser raised by senior lawyer Datuk Baljit Singh, who reiterated his call for the prosecution to appeal against the Penang High Court’s decision on Monday.
Datuk Baljit Singh
“Is it not the A-G who recused himself from deliberations on the case from the onset, as mentioned by the Attorney-General’s Chambers (A-GC) Appellate and Trial Division head Datuk Mohamad Hanafiah Zakaria yesterday (Tuesday)?
“So why is it that only he can appeal the case?
“Is he involved or not involved in the first place?” asked Baljit, who is Gerakan’s Legal and Human Rights Bureau head.
Baljit was responding to a New Straits Times’ front-page report yesterday quoting deputy public prosecutor Datuk Masri Mohd Daud as saying that it was up to Thomas to file an appeal.
Masri, who led the prosecution team on Monday, had said despite many views on the issue, it was the prerogative of Thomas to pursue the case.
On Monday, the High Court granted a discharge amounting to an acquittal to Lim and Phang over their corruption charges two years ago.
This followed Masri’s application to the court based on a representation sent by the defence to the A-G to withdraw the case, on July 6. Masri had applied for a discharge not amounting to an acquittal.
Lim’s lead counsel, Ramkarpal Singh, and Phang’s lead counsel, Datuk V. Sithambaram, had requested a full acquittal.
Judge Datuk Hadhariah Syed Ismail, in her judgment, had agreed with the counsel that the charges “cannot be hanging over the head of the accused indefinitely”. She said there must be “finality”.
Baljit questioned the so-called “fresh evidence” that had arisen during the cross-examination of prosecution witnesses, which led to Hanafiah concluding that the case against both accused would not succeed at the end of the prosecution’s case.
“I want to ask, ‘what is this evidence’? If there is fresh evidence, why wasn’t it handed to the Malaysian Anti-Corruption Commission (MACC) to investigate since it had been investigating the case from the beginning?
“Instead, MACC, too, was shocked over the acquittal. Obviously, something is not right here.”
Hanafiah, in a statement on Tuesday, had said that he concluded that as a result of the cross-examination of the prosecution witnesses who had testified, the evidence supporting the first charge under Section 23 of the MACC Act and Section 165 of the Penal Code had been substantially weakened.
He had said that he then decided for the prosecution to enter nolle prosequi against both Lim and Phang in accordance with Section 254 of the Criminal Procedure Code. Nolle prosequi is applied when the prosecutor does not propose to further prosecute the accused.
Hanafiah added that this was done upon representation by the counsel and upon discovery of fresh evidence or the evidence had been weakened under cross-examination.
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