LIM GUAN ENG v Pendakwa Raya (P-05-223-05/2024)

(i) the sale of PLK's bungalow situated at No. 25, Pinhorn Road, Penang, to LGE;

(v) payments made by EPMC to Betty Chew for services rendered;

(a) The Present Charges are barred by the Doctrine of Autrefois Acquit / Double Jeopardy [28] The Appellants contend that the charges in the Second Proceeding originate from the same investigation and the same factual matrix as the earlier prosecution commenced in 2016. They submit that the prosecution had already investigated all relevant matters and elected how to proceed. Having obtained a discharge and acquittal in the earlier proceedings, the Appellants argue that they cannot now be subjected to a second prosecution arising from substantially the same facts and transactions.

(b) The Principle of Double Jeopardy Must be Given a Wider Application [29] The Appellants argue that the prosecution has adopted an unduly narrow approach by insisting that double jeopardy only applies where the offences in the First and Second Proceeding are identical in law and fact. Relying on authorities concerning double jeopardy, issue estoppel and res judicata, the Appellants contend that the doctrine extends beyond a strict comparison of statutory ingredients and applies where the subsequent S/N M9zS3Fk1wkmp848wV7OZqg prosecution seeks to relitigate issues, facts or allegations that have already been determined or ought properly to have been included in the earlier proceedings.

(c) PP v Gan Boon Aun is Distinguishable [30] A central contention of the Appellants is that the prosecution's reliance on PP v Gan Boon Aun is misplaced. According to the Appellants, that case turned on its own unique facts and involved a materially different procedural context. They submit that Gan Boon Aun does not establish an inflexible rule that double jeopardy can only arise where the offences are legally and factually identical. Rather, the present appeal concerns a broader application of the doctrines of autrefois acquit, issue estoppel and abuse of process.

(d) The Earlier Acquittal was a Judicial Determination on the Merits [31] In their further submissions, the Appellants emphasise that the earlier discharge and acquittal ("DNA") was not a mere procedural order but a judicial determination made after consideration of the merits of the case. Consequently, the prosecution cannot circumvent the effect of that acquittal by preferring fresh charges founded upon the same underlying facts and evidence. S/N M9zS3Fk1wkmp848wV7OZqg

(e) The Present Charges are Unconstitutional and an Abuse of Process [32] The Appellants further argue that the renewed prosecution infringes the constitutional protection against double jeopardy and undermines the finality of judicial decisions. They submit that permitting the prosecution to repackage matters previously investigated and adjudicated would expose an accused person to repeated prosecutions arising from the same factual circumstances, contrary to established principles of fairness, legal certainty and the administration of justice. Summary of the Respondent/Prosecution's Submissions [33] The Respondent (Public Prosecutor) opposes the Appellants' application to strike out the Second Proceeding and argues that the High Court was correct in dismissing it. [34] The core of the Respondent's case is that the Second Proceeding concern different offences based on different facts, and therefore does not violate the rule against double jeopardy/autrefois acquit under Article 7(2) FC or s.302 CPC. The Respondent’s argument can be distilled under the following topics:

The Second Proceeding Does Not Constitute Double Jeopardy [35] The Respondent argues that the Appellants failed to satisfy the requirements of autrefois acquit/double jeopardy because the S/N M9zS3Fk1wkmp848wV7OZqg First Proceeding and the Second Proceeding are factually distinct. The charges arise from different conduct, different transactions, and different factual foundations. Therefore, the acquittal in the First Proceeding does not bar the Second Proceeding. [36] The Respondent highlights that the First Proceeding concerned rezoning approvals and the Pinhorn Road property transaction whilst the Second Proceeding concerns the alleged use of office to benefit MESB through the award of a workers' village project, allegedly benefiting Betty Chew through EPMC. Accordingly, the offences charged are different both in fact and in law.

Issue Estoppel and Res Judicata Do Not Apply [37] The Respondent submits that the doctrines of issue estoppel and res judicata cannot assist the Appellants because these doctrines only arise where the relevant issues and factual determinations are substantially the same. Since the charges and factual matrices in the two proceedings are different, there is no prior determination of the issues now raised in the Second Proceeding. Consequently, neither issue estoppel nor res judicata prevents the prosecution from proceeding.

The Charges Must Be Factually Identical for Autrefois Acquit to Apply [38] The Respondent rejects the Appellants' argument that exact identity of charges is unnecessary. According to the S/N M9zS3Fk1wkmp848wV7OZqg Respondent the decisive question is whether the Appellants are being tried again for the same offence based on the same facts. Here, the facts underpinning the Second Proceeding are distinct from those in the First Proceeding. The Respondent argues that merely because some investigation materials or documents overlap does not mean the offences are the same. The Respondent therefore maintains that the threshold for autrefois acquit is not met.

The 2016 Investigations Covered Different Subject Matters [39] As to the Appellants argument that the prosecution already knew about the Second Proceeding when the First Proceeding was commenced and should have charged everything together, it is the Respondent’s reply that although investigations were conducted around the same period, they concerned different subject matters. One part of the investigation formed the basis of the First Proceeding. Another separate part later formed the basis of the Second Proceeding. Thus, the later charges are not a relitigation of matters already adjudicated.

No Improper “Charges by Instalments” [40] The Respondent disputes the allegation that the prosecution unlawfully brought charges in stages. Its position is that the Second Proceeding does not form part of a series of offences of the same character as those in the First Proceeding. The offences are separate and distinct. Therefore, the later charges S/N M9zS3Fk1wkmp848wV7OZqg cannot be characterised as unlawful “charges by instalments” or an abuse of process.

Article 7(2) FC Is Not Breached [41] Article 7(2) FC protects a person from being tried again for the same offence after an acquittal or conviction. The Respondent submits that the key words are "acquitted or convicted" and "same offence". Since the Second Proceeding concerns different offences based on different facts, Article 7(2) FC is not engaged. The Respondent argues that the High Court correctly held that the Appellants' constitutional rights were not infringed.

Reliance on Gan Boon Aun [42] The Respondent relies on the Federal Court decision in Gan Boon Aun as authority for determining when double jeopardy applies. The Respondent argues that the Federal Court has already established the applicable test which requires identity of the offences/facts. The present case does not satisfy that test. Therefore, Gan Boon Aun supports, rather than undermines, the Respondent's position.

Further Investigations Produced Additional Evidence [43] The Respondent contends that the Second Proceeding is not merely based on evidence already used in the First Proceeding. It is argued that further investigations were conducted after the First Proceeding and that the present charges are based on a combination of previously available evidence and additional S/N M9zS3Fk1wkmp848wV7OZqg evidence obtained through those later investigations. This reinforces the argument that the Second Proceeding is a distinct prosecution.

Proper Challenge Is by Judicial Review [44] The Respondent supports the High Court's view that if the Appellants wish to challenge the Attorney General's or Public Prosecutor's decision to prosecute, the proper avenue is judicial review, rather than seeking to invoke autrefois acquit or double jeopardy within the criminal proceedings themselves. Our Analysis and Findings The Applicable Constitutional and Statutory Framework [45] The principal issue before this Court is whether the institution of the Second Proceeding is prohibited by Article 7(2) of the FC and section 302 of the CPC having regard to the Appellants' discharge and acquittal in the First Proceeding. Closely related to this issue are the common law doctrines of autrefois acquit, autrefois convict, issue estoppel and res judicata. [46] Article 7(2) of the Federal Constitution provides: "A person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court higher than that by which he was convicted or acquitted." S/N M9zS3Fk1wkmp848wV7OZqg [47] Similarly, section 302(1) CPC provides: "A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while the conviction or acquittal remains in force, not be liable to be tried again for the same offence..." [48] Both provisions embody the common law plea of autrefois acquit and autrefois convict and reflect the fundamental principle that no person should be vexed twice for the same offence. The constitutional and statutory protections serve the important public policy of finality in criminal litigation whilst balancing the public interest in the prosecution of criminal offences. [49] However, neither Article 7(2) FC nor section 302 CPC creates a blanket immunity from future prosecution merely because an accused person had previously faced criminal proceedings arising from the same investigation or from a broadly related factual background. The constitutional and statutory prohibition is directed against a second prosecution for the same offence. Whether the Present Case Falls Within Article 7(2) and Section 302 CPC [50] The first requirement under both Article 7(2) FC and section 302 CPC is not disputed. The accused persons in both proceedings are the same. S/N M9zS3Fk1wkmp848wV7OZqg [51] The critical question is whether the offences charged in the Second Proceeding are the same offences, either in law or in substance as those which formed the subject matter of the First Proceeding. [52] Having examined the charges in both proceedings, we agree with the learned Judicial Commissioner that the offences are materially different. [53] The First Proceeding concerned allegations relating principally to:

(a) the acquisition of the Pinhorn Road bungalow by LGE from PLK;

(b) the alleged abuse of office connected to rezoning approvals involving MESB; and

(c) offences charged under section 23 of the MACC Act 2009, section 165 Penal Code and section 109 Penal Code. [54] By contrast, the Second Proceeding concerns allegations relating to:

(a) the Workers' Village Project;

(b) payments allegedly made through EPMC; S/N M9zS3Fk1wkmp848wV7OZqg

(c) benefits allegedly received by Betty Chew;

(d) different acts of gratification;

(e) different dates and circumstances; and

(f) distinct factual allegations requiring proof of different factual elements. [55] While there may be some overlap in the surrounding investigation conducted by the MACC in 2016, overlap of investigation does not equate to identity of offences. A single investigation may uncover numerous discrete criminal acts capable of constituting separate offences. The relevant inquiry is not whether the investigation was the same, but whether the offences charged are the same. [56] In our judgment, the offences in the Second Proceeding are neither identical in law nor identical in fact to those in the First Proceeding. Accordingly, Article 7(2) FC and section 302 CPC are not engaged. The Doctrine of Autrefois Acquit and Autrefois Convict [57] Malaysian law has consistently adopted the orthodox formulation of the pleas of autrefois acquit and autrefois convict. S/N M9zS3Fk1wkmp848wV7OZqg [58] The governing authority remains the decision of the Federal Court in Gan Boon Aun. [59] In Gan Boon Aun, the Federal Court emphasised that the plea of autrefois acquit is available only where the subsequent prosecution concerns the same offence in fact and in law. The Court reaffirmed that the protection against double jeopardy does not extend merely because the two prosecutions arise from related events or a common factual background. [60] The rationale is straightforward. Criminal liability attaches to specific offences created by statute. The question is not whether the surrounding circumstances are related but whether the accused is being prosecuted again for the same offence for which he has already been acquitted or convicted. [61] Applying that principle to the present appeals, we are unable to conclude that the Second Proceeding involves the same offences as those which formed the subject matter of the First Proceeding. The statutory ingredients differ. The factual allegations differ. The alleged acts constituting gratification differ. The transactions relied upon are different. Consequently, the pleas of autrefois acquit and autrefois convict cannot succeed. [62] The Appellants submits that Gan Boon Aun is distinguishable and therefore should not govern the present appeals. S/N M9zS3Fk1wkmp848wV7OZqg [63] We accept that the factual circumstances in Gan Boon Aun are not identical to the present case. The nature of the offences and procedural history are plainly different. However, the significance of Gan Boon Aun lies not in its facts but in the legal principle articulated by the Federal Court. The Federal Court authoritatively held that the constitutional and statutory protection against double jeopardy is concerned with identity of offences. The Court rejected any broader proposition that every subsequent prosecution arising from a related factual matrix is automatically prohibited. Therefore, whilst Gan Boon Aun may be distinguishable on its facts, it remains binding authority on the applicable legal test. Applying that test, the present case falls outside the ambit of Article 7(2) FC and section 302 CPC because the offences in the Second Proceeding are not the same offences in law and fact as those involved in the First Proceeding. Issue Estoppel and Res Judicata [64] The Appellants further seek to invoke the doctrines of issue estoppel and res judicata. [65] These doctrines rest upon a different juridical basis from autrefois acquit. Whereas double jeopardy focuses upon identity of offences, issue estoppel concerns the relitigation of specific factual issues that have already been finally determined by a court of competent jurisdiction. S/N M9zS3Fk1wkmp848wV7OZqg [66] The difficulty confronting the Appellants is that the First Proceeding did not culminate in any judicial findings regarding the factual matters now relied upon in the Second Proceeding. The record shows that the prosecution withdrew the charges before the close of its case. The resulting discharge and acquittal arose from that withdrawal. Although the order was undoubtedly an acquittal in law, there was no adjudication by the trial court on the Workers' Village Project, EPMC, payments to Betty Chew or the factual issues now raised in the Second Proceeding. [67] Issue estoppel requires that the precise issue relied upon must have been distinctly raised and necessarily determined in the earlier proceeding. No such determination occurred here. [68] Similarly, the doctrine of res judicata has only limited application in criminal proceedings and cannot operate in the absence of a prior adjudication of the same issue. Accordingly, we agree with the learned Judicial Commissioner that neither issue estoppel nor res judicata arises on the facts of the present case. The Hanafiah Statement [69] Considerable reliance was placed upon statements attributed to the former Deputy Public Prosecutor, Datuk Hanafiah Zakaria, explaining the withdrawal of the earlier prosecution. [70] In the Press Release issued by Dato' Mohamad Hanafiah Bin S/N M9zS3Fk1wkmp848wV7OZqg Zakaria, head of Appellate & Trial Division/ Deputy Public Prosecution on behalf of the Attorney General's Chambers ("AGC") on 4/9/2018, the followings were stated: "3.... I have perused the evidence that has been investigated by MAGG 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 has testified so far, the evidence supporting the first charge under Section 23 of the MAGG Act and under Section 165 of the Penal Code has been substantially weakened. This conclusion was arrived in light of fresh evidence that have arisen during cross-examination of prosecution witnesses.

Having made the above findings, I opined that I would not be fulfilling duties as Deputy Public Prosecutor to Jet the case continue knowing full well that that the case against both Lim Guan Eng and Phang Li Koon would not succeed at the end of the prosecution case in accordance with Section 254 of the Criminal Procedure Code. ……

I wish to reiterate that the practise to enter no/le 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 Guan Eng and Phang Li Koon, there was fresh evidence that has not been previously considered. S/N M9zS3Fk1wkmp848wV7OZqg

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. .... " [71] In our view, those statements may provide context regarding the reasons why the prosecution elected to discontinue the First Proceeding. However, such statements do not constitute judicial findings. Nor can they enlarge the scope of Article 7(2) of the FC or section 302 CPC. At its highest, the statement may indicate that the prosecution reassessed the strength of the evidence available in relation to the charges then before the Court. It does not amount to a representation that no future prosecution could ever be brought in respect of different offences supported by different evidence. [72] We therefore do not regard the statement as creating any legal estoppel against the institution of the present charges. [73] Having found the above and before concluding, we consider it necessary to address a matter of fairness which featured prominently in the Appellants' submissions. [74] We readily acknowledge that the Appellants' complaint is neither frivolous nor devoid of substance. Having undergone a lengthy criminal trial in which some twenty-five witnesses were called, only to face fresh charges years later arising from the same broad investigative exercise conducted by the MACC, it is understandable that the Appellants perceive the subsequent S/N M9zS3Fk1wkmp848wV7OZqg prosecution as unfair and oppressive. Such circumstances inevitably generate a sense of grievance and raise legitimate concerns regarding finality in criminal litigation. [75] Nevertheless, the function of this Court is to determine whether that grievance translates into a legal prohibition. In our judgment, it does not. The language of Article 7(2) of the FC and section 302 CPC is clear and unambiguous. The constitutional and statutory protection is directed against a second prosecution for the same offence. As we have explained, the offences in the present proceedings are distinct in law and in fact from those which formed the subject matter of the earlier prosecution. Accordingly, the pleas of autrefois acquit, autrefois convict and issue estoppel cannot succeed. [76] Equally, the Court must give due recognition to the wide prosecutorial discretion vested in the Public Prosecutor under Article 145(3) of the FC. In the absence of any recognised legal bar, it is not for the Court to prevent the prosecution from proceeding with charges that are otherwise lawfully instituted. The present charges must therefore be determined on their merits in the ordinary course of the criminal process. [77] That said, a finding of legality should not be misunderstood as an endorsement of the manner in which prosecutorial discretion has been exercised in every respect. The Court cannot ignore the fact that the factual materials underlying the present charges appear to have been substantially available to the S/N M9zS3Fk1wkmp848wV7OZqg investigating and prosecuting authorities during the earlier proceedings. On the materials before us, the more satisfactory and equitable course may well have been for all charges arising from the same investigative exercise to be considered and, where appropriate, preferred together at the earliest opportunity. [78] While the law permits separate prosecutions for distinct offences, the fragmentation of prosecutions arising from a common investigation should be approached with considerable caution. Successive prosecutions founded upon facts already known to the authorities carry the risk of creating a perception that an accused person is being subjected to repeated litigation arising from substantially the same controversy. Such perceptions, whether ultimately justified or not, have the potential to undermine public confidence in the fairness, efficiency and finality of the criminal justice process. [79] The administration of criminal justice depends not merely upon the lawful exercise of prosecutorial powers but also upon their prudent and responsible exercise. The Public Prosecutor occupies a constitutional office of the highest public trust. With that trust comes a corresponding obligation to ensure that prosecutorial decisions are guided not only by legal sufficiency but also by considerations of fairness, proportionality and the efficient administration of justice. S/N M9zS3Fk1wkmp848wV7OZqg [80] We therefore take this opportunity to emphasise that, although no legal impediment exists to the present prosecution, prosecuting authorities should remain vigilant against practices that may give rise to perceptions of piecemeal litigation or repeated attempts to prosecute matters arising from the same investigative foundation. The integrity of the criminal justice system is strengthened when prosecutorial decisions promote both fairness to the accused and finality in litigation. [81] For the reasons already stated, however, those concerns do not constitute a legal bar under Article 7(2) of the FC, section 302 of the CPC, or the doctrines of autrefois acquit, autrefois convict, issue estoppel and res judicata. Conclusion [82] Having considered the submissions of the parties, the constitutional provisions, the statutory framework and the authorities, we are satisfied that the Second Proceeding does not amount to a second prosecution for the same offence within the meaning of Article 7(2) FC or section 302 CPC. [83] We further find that the doctrines of autrefois acquit, autrefois convict, issue estoppel and res judicata are not applicable on the facts of the present case. The earlier discharge and acquittal did not involve any judicial determination of the factual issues which now arise in the Second Proceeding. The constitutional prohibition is directed against a second trial for S/N M9zS3Fk1wkmp848wV7OZqg the same offence, not against a second trial arising from the same investigation. [84] The learned Judicial Commissioner therefore committed no error in dismissing the Appellants' applications. [85] Accordingly, the appeals are dismissed and the orders of the High Court are affirmed. Dated: 24 June 2026 Sgd NOORIN BINTI BADARUDDIN Judge Court of Appeal Malaysia S/N M9zS3Fk1wkmp848wV7OZqg LIST OF COUNSELS: P-05-221-05/2024 Counsels for the Appellant:

Sithambaram A/L Vairavan; and

Ruebankumar A/L Asokan; [Sitham & Associates (Penang)] Counsels for the Respondent: 1. TPR Mohd Ashrof Adrin Bin Kamarul; and

TPR Shafiq Bin Hasim [Deputy Public Prosecutor Attorney General’s Chamber] P-05-223-05/2024 Counsels for the Appellant:

Sanisvara Nethaji Rayer A/L Rajaram @ Rajaji; and

Thandayuthabany Pillay A/L Ramachandran Pillay [R. Nethaji Rayer & Co. (Penang)] Counsels for the Respondent: 1. TPR Mohd Ashrof Adrin Bin

Kamarul; and TPR Shafiq Bin Hasim [Deputy Public Prosecutor Attorney General’s Chamber] S/N M9zS3Fk1wkmp848wV7OZqg