AG not involved in the decision not to pursue corruption charges

KUALA LUMPUR -- The Attorney-General (AG) has no hand in the decision not to pursue corruption charges against former Penang Chief Minister Lim Guan Eng and businesswoman Phang Li Koon, but instead, the decision was made by Datuk Mohamad Hanafiah Zakaria, Head of Appellate & Trial Division of Attorney-General’s Chambers (AGC).

Mohamad Hanafiah in a media statement today said that this was clearly stated in the joint press release dated Aug 2, 2018, issued by Solicitor-General Datuk Engku Nor Faizah Engku Atek and Solicitor-General II Datin Paduka Zauyah Be T. Loth Khan, that AG Tommy Thomas had recused himself in all deliberations regarding the case.

As such, Mohamad Hanafiah said he was tasked to decide on the representations made by both Lim and Phang as he had not participated in any way with the case earlier.

“Accordingly, I was able to consider the matter with a fresh perspective. Having given the said task, I have perused the evidence that has been investigated by the Malaysian Anti-Corruption Commission (MACC)  and the evidence that have been adduced and tested under cross examination thus far, I concluded that as a result of the cross-examination of the prosecution witnesses who had testified so far, the evidence supporting the first charge under Section 23 of the MACC Act and under Section 165 of the Penal Code has been substantially weakened.

“The conclusion was arrived in light of fresh evidence that have arisen during the cross- examination of prosecution witnesses.

“Having made the above findings, I opined that I would not be fulfilling my duties as Deputy Public Prosecutor to let the case continue knowing full well that the case against both Lim and Phang would not succeed at the end of the prosecution case.

“Hence, I decided for the prosecution to enter nolle prosequi  (where Public Prosecutor does not propose further to prosecute the accused) against both Lim and Phang in accordance with Section 254 of the Criminal Procedure Code (CPC),” he said.

Mohamad Hanafiah explained that at 7.18 am yesterday, he had communicated his decision with Datuk Masri Mohd Daud, who is the Director of Legal and Prosecution Division of MACC who led the prosecution team in the case. 

He said 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 upon the application by counsels for Lim and Phang, which was in accordance to section 254(3) of the CPC.

“I wish to reiterate that the practise to enter nolle prosequi is not something out of the ordinary. This practise 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.

"Similarly, in the case against Lim and Phang, there was fresh evidence that has not been previously considered. It ought to be emphasised that the decision in respect of initiating prosecution or discontinuing it is a matter 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 the AG personally at 9.44 am yesterday,” he said.

He said he wished to stress that he had decided on the representations without any influence from any quarters.

Mohamad Hanafiah further said that in fact, there was a letter from a legal firm representing the complainant in the case objecting to any idea of withdrawing the charges against Lim and Phang.

“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. My utmost priority is justice,” he said.

Yesterday,  Penang High Court Judge Datuk Hadhariah Syed Ismail discharged and acquitted Lim, 58, and Phang, 46, following an application by lawyer Ramkarpal Singh who was representing Lim  and Datuk V.Sithambaram and Hisyam Teh Poh Teik, who acted for Phang, for their clients to be fully acquitted on the charges.

Hadhariah had said she did not agree with the prosecution’s request  for the charges to be withdrawn and both the accused to be discharged not amounting to an acquittal as the charges could not be hanging over the head of the accused indefinitely and there must be a finality in the case.

On the first count, Lim was charged with using his position as a civil servant, namely, Chief Minister of Penang, to gain gratification for himself and his wife, Betty Chew Gek Cheng, by approving the application for conversion of agriculture land to a public housing zone in southwest Penang to a company, Magnificient Emblem Sdn Bhd.

He allegedly committed the offence while chairing the Penang State Planning Committee meeting at the operations room, Level 28, Komtar building here, on July 18, 2014.

The charge under Section 23 of the MACC Act 2009 provides an imprisonment of up to 20 years and a fine of up to five times the sum or value of the bribe, or RM10,000, whichever is higher, upon conviction.

Lim also faced a second charge of using his position to obtain for himself a plot of land and a bungalow, located at No 25, Jalan Pinhorn, George Town, on July 28, 2015, from Phang for RM2.8 million, a price which he allegedly knew did not commensurate with the property’s then market value of RM4.27 million.

The charge, under Section 165 of the Penal Code, provides for a jail term for up to two years, or a fine, or both, upon conviction.

Phang, on the other hand, pleaded not guilty to abetting Lim in obtaining the bungalow at an undervalued cost.

She allegedly committed the offence at the same place and date under Section 109 of the Penal Code, read together with Section 165 of the same law, which provides an imprisonment for up to two years, or a fine, or both, upon conviction.