KUALA LUMPUR: Attorney-General (AG) Tommy Thomas had no hand in the decision to drop the graft case against Lim Guan Eng and Phang Li Koon, the Attorney-General’s Chambers (AGC) said today in response to criticism by various groups and individuals.
The head of the Appellate and Trial Division at the AGC, deputy public prosecutor (DPP) Mohamad Hanafiah Zakaria, also said he had made the decision to enter nolle prosequi (where the public prosecutor does not propose to further prosecute an accused) in light of new evidence and knowing that the case would not succeed.
He said he informed Malaysian Anti-Corruption Commission (MACC) director of the Legal and Prosecution Division and DPP Masri Mohd Daud, who was at that time in Penang, of his decision at 7.18am yesterday. He only informed Thomas at 9.44am.
MACC had expressed shock over the decision to free Lim and Phang yesterday, saying the call was made by the AG’s office, not the agency.
However, Mohamad Hanafiah said the AGC had clearly stated in a joint press release on Aug 2, signed by solicitor-general Engku Nor Faizah Engku Atek and then-solicitor-general II Zauyah Be T Loth Khan, that Thomas had recused himself from all deliberations regarding the case and that he would not be involved in any decision the AGC would make in the matter.
He said the AGC, wanting a fresh view of the case, had tasked him with making the decision as he had not participated in the case earlier.
“Accordingly, I was able to consider the matter from a fresh perspective,” he said, adding that he went through the evidence from the MACC investigations and the evidence that had been adduced and tested under cross-examination in court so 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 had been substantially weakened.
“This conclusion was made in light of fresh evidence that had arisen during the cross-examination of prosecution witnesses.”
Knowing that the case against the two would not succeed at the end of the prosecution case, Mohamad Hanafiah said he decided to enter nolle prosequi against them in accordance with Section 254 of the Criminal Procedure Code (CPC).
“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 in accordance with Section 254(3) of the CPC.
“I wish to reiterate that the practice of entering nolle prosequi is not something out of the ordinary. This practice has been exercised in many other cases upon representation by counsel and upon discovery of fresh evidence or that the evidence had weakened under cross-examination.
“Similarly, in the case against Lim Guan Eng and Phang Li Koon, there was fresh evidence that was not previously considered.”
He reiterated that the decision to initiate or discontinue any prosecution lay with 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.
“I wish to stress that I decided on the representations without any influence from any quarters.
“In fact, there was a letter from a legal firm representing the complainant in the above said case objecting to any idea of withdrawing the charges against Lim Guan Eng and Phang Li Koon. I responded to the letter saying that I would decide the case based on the available evidence and governing law, which I did, without fear or favour. My utmost priority is justice,” Mohamad Hanafiah said.
Lim was charged with using his public office to obtain gratification for himself and his wife by approving an application by Magnificent Emblem to convert agricultural land for residential purposes during a state executive council meeting on July 18, 2014.
He was also charged with using his position to obtain gratification by purchasing a bungalow from Phang at below its market value. Phang was charged with abetting him.
The decision to drop the charges against Lim and Phang has been blasted by various groups, including Umno.
Some said it reflected badly on the AGC and the Pakatan Harapan government. Others questioned the decision based on the fact that Thomas had previously represented Lim in the case, with a few even calling for his resignation.