PETALING JAYA: A lawyer representing a prosecution witness claims that the Attorney-General’s Chambers’ (AGC) decision to cease prosecuting Lim Guan Eng and businesswoman Phang Li Koon in a graft trial was not made in good faith.
Gunamalar Joorindanjn, who is acting for complainant Muhsin Abdul Latheef, said Attorney-General (AG) Tommy Thomas had appeared for Lim in a different but related proceeding to set aside a leave application granted to former AG Mohamed Apandi Ali to initiate a contempt action against the finance minister.
Apandi resorted to the court action after Lim claimed in a press statement in late 2016 that the charges against him were part of a conspiracy to send him to jail.
Gunamalar said the declaration made by solicitor-generals Engku Nor Faizah Engku Atek and Zauyah Be T Loth Khan in a joint statement on Aug 2 was ineffectual at best as it did not guarantee non-interference by Thomas.
In a statement, she said Article 145 (1) of the Federal Constitution provides that the AG has the power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence.
Furthermore, she said, Section 376 (1) of the Criminal Procedure Code states that the AG shall be the public prosecutor and have control and direction of all criminal prosecutions and proceedings under the code.
She said Thomas was still the AG and public prosecutor at the time the decision was made by the AGC to discontinue the criminal trials.
“The solicitor-generals and all other deputy public prosecutors are merely his subordinates,” she added.
Yesterday, the head of the Appellate and Trial Division at the AGC, Mohamad Hanafiah Zakaria, said he alone had made the decision to discontinue the case in light of new evidence, adding that the prospect of securing a conviction was remote.
He said he told the lead prosecutor in the case, Masri Mohd Daud, of his decision at 7.18am on Monday and informed Thomas only later at 9.44am.
He added that since he had not participated in the case earlier, he was able to consider the matter from a fresh perspective, including evidence that had been adduced and tested under cross-examination in court.
According to him, the evidence supporting Lim’s first charge under Section 23 of the Malaysian Anti-Corruption Commission (MACC) Act and Section 165 of the Penal Code had been substantially weakened.
However, Gunamalar said Hanafiah’s conclusion that the prosecution’s case would be dismissed without defence being called was a lame excuse or an afterthought.
“It is the duty of the judge, not the AG, to subject the evidence led by the prosecution in its totality to a maximum evaluation to determine whether or not a prima facie case has been established.”
She added that the prosecution had not closed its case and there were several other key witnesses who had yet to undergo cross-examination.
She also noted that the trials were conducted by Masri, not Hanafiah.
“How is it even remotely possible for a man, no matter how learned he is, to attach any meaningful weight to the testimony of witnesses?”
Gunamalar called for an inquiry into the circumstances leading to the AGC’s acceptance of the letters of representation.
She also urged Thomas to file an appeal to review whether the High Court’s decision to order an acquittal was justified.
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.