Subsection
(3) Such discharge shall not amount to an acquittal unless the Court so directs.” (emphasis added) [12] The learned DPP submitted that the trial judge has no power to acquit and discharge the respondent pursuant to the above section 254. Instead, the trial judge should only DNAA the case as requested by the DPP handling the trial. The DPP relied heavily on the power of the Public Prosecutor under Article 145 of the Federal Constitution and section 376 of the CPC where the handling of criminal prosecutions is vested with the Public Prosecutor and not the Court. The Federal Court case of PP v Zainuddin & Anor (supra) was cited to support his contention on this issue. Whether the Court can acquit and discharge an accused person pursuant to section 254(3) of the CPC [13] The initial pertinent issue here is whether the court has the power to acquit an accused person pursuant to section 254(3) which provides: “(3) Such discharge shall not amount to an acquittal unless the Courts so directs” 11 [14] The phrase “unless the Courts so directs” in section 254(3) is plain and clear which should be given its literal meaning. It clearly means that although the discharge shall not amount to an acquittal but the Courts is also given the discretionary power to direct for discharge amounting to an acquittal. [15] On the interpretation of the statute which is plain and unambiguous, it is instructive to make reference to the Federal Court case of Public Prosecutor v Sihabduin & Anor [1980] 2 MLJ 273, where Suffian LP (when he then was) said this: “the words of Lord Diplock in an authority cited by my Lord President, Duport Steels Ltd. V Sirs seems to me to be particularly apt, for “the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral.” (emphasis added) [16] Further, Parliament does not act in vain by inserting the phrase “unless the Courts so directs” if its intention in enacting section 254(3) was not to give the discretion to the courts to discharge an accused 12 person amounting to an acquittal. The phrase will then be otiosed or redundant. [17] The Federal Court in Krishnadas Achutan Nair & Ors v Maniyam Samykano [1997] 1 CLJ 636; [1997] 1 MLJ 94, had addressed the same issue in the following words: “The function of a Court when construing an Act of Parliament is to interpret the statute in order to ascertain legislative intent primarily by reference to the words appearing in the particular enactment. Prima facie, every word appearing in an Act must bear some meaning. For Parliament does not legislate in vain by the use of meaningless words or phrases. A judicial interpreter is therefore not entitled to disregard words used in a statute or subsidiary legislation or to treat them as superfluous or insignificant. It must borne in mind that: As a general rule a Court will adopt the construction of a statute which will give some effect to all of the words which it contains. (Per Gibbs J in Beckwith v R [1976] 12 ALR 333, at pa.337)” [18] Further, the meaning of the phrase “unless the court so directs” had been dealt with by the Singapore High Court in the case of Goh Cheng Chuan v Public Prosecutor [1990] 3 MLJ 401. The provision of section 184(2) of the Singapore’s CPC has the similarity with section 254(3) of our CPC and Thean J in that case explained and opined as follows: 13 “I now turn to s 184(2) of the Criminal Procedure Code and, in particular the construction of the words, ‘unless the court so directs’. The learned district judge took the view that these words do not confer on the court an unfettered discretion and that the exercise of such discretion is limited or restricted to broadly two categories; first, where the prosecution specifically withdraws the charge or has signified its consent to the acquittal of the accused on the charge and, secondly, those instances as provided in section 180 (then s 179) of the Criminal Procedure Code where the court finds that no case has been made out against the accused: s 180(f); or that the charge against the accused is groundless; s 180(g); or that the charge has not been proved: s 180(n)(i)..” …… The learned district judge therefore gave to the words, ‘unless the court so directs’ a limited and narrow construction: in his view, having regard to the role of public prosecutor under the Criminal Procedure Code, the exercise of the discretion as conferred by those words is confined to the specific instances indicated by him... …… I now revert to s 184(2) of the Criminal Procedure Code. With respect, I am unable to agree with the learned district judge on the limited and narrow construction he placed on the words, ‘unless the court so directs’, in s 184(2). The words are unambiguous and clear, and effect must be given to them: they give to the court an unfettered discretion to direct in appropriate circumstances, that the discharge shall amount to an acquittal. Section 184 subsist independently on its own, its scope or operation is not limited by s 180 or other provision of the Criminal Procedure Code or other provision of the Criminal Procedure Code. There is no justification for holding that the court can only exercise such discretion in the instances enumerated in s 180 of the Criminal Procedure Code or when the prosecution informs the court that it will not further prosecute the accused and, in addition, signified its consent to an acquittal of the accused. 14 Where the prosecution has instituted against an accused on a charge, the decision whether or not to prosecute further the accused on the charge is one for the prosecution to make. Once he has made the decision not to prosecute the accused further, he ought in conformity to that section to inform the court of his decision and s 184(1) comes into operation. For the purpose of s 184(2) he ought further to inform the court of all relevant matters, for example, as in this case, the difficulty of tracing a material witness and his intention as to the likelihood of future prosecution of the accused on the charge. It is then for the court to decide whether it should direct that the discharge shall amount to an acquittal. The court is vested with the discretion is, in my opinion, unfettered; but, of course, it must be exercised judicially, taking into consideration all the relevant facts and factors placed before it, including the intention of the public prosecutor as to the future prosecution of the accused on the charge. That, in substance, is how the section operates. I am in complete agreement with what Lai Kew Chai J said in Abdul Rasheed at p 195: Subsection [184(2)] begins with the proposition of law that such discharge shall not amount to an acquittal, followed by the crucial words ‘unless the court so directs...’ I need not refer to cases coming within s 176 of the Code as they are irrelevant for present purposes. These crucial words plainly confer on the court the discretionary power to direct an acquittal and the power arises the moment the prosecution informs the court that it is not going on with the prosecution of the defendant upon the charge, whether or not the prosecution has decided forever to withdraw the charge.” (emphasis added) 15 [19] The discretionary power to direct an acquittal pursuant to section 254(3) is also recognized by this court in the case of Mohamed Kanathi Meerah Mydeen v PP [2019] 2 CLJ 28 where it states: “[39] We observed that even though the learned trial judge had a discretionary power to direct an acquittal under sub-s 254(3) of the CPC, nevertheless he did not exercise his discretionary power in the instant case…. There is ample persuasive authority for the proposition that unless some good grounds are shown, it would not be right to leave PW1 saddled with a charge hanging over his head for an indeterminate period. However, PW1 himself did not apply for a discharge amounting to an acquittal. (K Abdul Rasheed v PP [1985] 1 LNS 54; [1985] 1 MLJ 193)” [20] Therefore, based on the interpretation of section 254(3) and the authorities cited above, it is also our view that the court is vested with the discretionary power to direct an acquittal of an accused person pursuant to section 254(3) of the CPC and certainly this discretion is to be exercise judiciously. Whether the trial judge in the present case was correct in exercising his discretion to direct an acquittal against the respondent from the charge proffered against her. [21] In relation to this issue, the crucial fact is the contents of the letter dated 16.4.2019 from the Attorney General Chambers to the respondent’s counsel in response to the representation made by the 16 respondent. The letter clearly states that the prosecution against the respondent will not be proceeded pursuant to section 254 of the CPC. The letter also indicated that the representation for the charges against the respondent to be dropped was accepted. The relevant parts of the said letter are as follows: “…. Setelah menyemak dan mengkaji secara teliti dan dilihat dari sudut keterangan dan undang-undang, representasi pihak Tuan adalah dibenarkan. Pendakwaan terhadap anak guam Tuan tidak akan diteruskan dibawah seksyen 254 Kanun Prosedur Jenayah.” (emphasis added) [22] The decision not to proceed with the prosecution of the respondent was made two days before the decision by the trial judge to acquit the respondent on the 18.4.2019. On this ground alone, the exercise of the trial judge’s discretionary power to order an acquittal against the respondent is justified. There is no valid reason for the prosecution to apply for the case to be DNAA when it has been decided that the charges against the respondent are to be dropped. [23] It is also a trite principle of law that the prosecution must show good grounds in order to obtain a discharge not amounting to an acquittal pursuant to section 254(3) of the CPC. (see Mohamed Kanathy (supra); PP v Mat Zain [1948-49] MLJ Supp 142; Tan Ah Chan v Regina [ 1955] 21 MLJ 218; Koh Teck Chai v Public Prosecutor [1968] 1 MLJ 166) 17 [24] Further, in Public Prosecutor v Syed Abdul Bahari Shahabuddin [1976] 1 MLJ 87, Abdoolcader J said this: “.. Sub-section (iii) of section 254 specifically enacts that a discharge under that section shall not amount to an acquittal unless the court so directs. It is settled law that unless there are good grounds to the contrary, a discharge under this provision should amount to an acquittal. Good grounds for a discharge not amounting to an acquittal would arise where the prosecution is unable to proceed for the time being but can satisfy the court that the temporary impediment is not unsurmountable and that it will proceed within a reasonable time. This seems to be the raison d’etre for the scheme providing for a discharge not amounting to an acquittal.” (emphasis added) [25] In the instant case, the prosecution had decided not to proceed with the prosecution against the respondent and this decision was conveyed to the respondent’s counsel by the letter dated 16.4.2019. There is no issue of the prosecution having temporary impediment to proceed with the prosecution of the case. In fact, the prosecution had agreed for the charge against the respondent to be dropped. As such, there is no good grounds available for the prosecution to ask for the case to be DNAA. [26] The decision in the Supreme Court case of PP v Zainuddin (supra) cited by the appellant can be distinguished on its facts. In that case, the prosecution had not indicated or decided not to proceed with the 18 prosecution against the accused person. The accused was acquitted by the Magistrate as the trial had been postponed for several times. Further, the prosecution intended to proceed with the prosecution of the accused and had made an application for a review against the decision of the Magistrate in acquitting the accused. Clearly the facts in PP v Zainuddin are poles apart from the present case. [27] We have to state here that we acknowledged the Public Prosecutor’s power in the control of all prosecutions as envisages under Article 145 of the Federal Constitution and section 376 of the CPC. However, the issue here is with regard to the discretionary power of the court either to direct a discharge not amounting to an acquittal or a discharge amounting to an acquittal pursuant to the power confers under section 254(3) of the CPC. The exercise of this discretionary power must not be seen as infringing or whittling down the power and authority of the Public Prosecutor. [28] In conclusion, we find, the decision of the trial judge in acquitting the respondent was correct and he had exercised his discretionary power in accordance with the law. Therefore, the appeal by the appellant is dismissed and the decision of the High Court judge is affirmed. 19 Dated this day, 8 December 2020. (DATO’ NORDIN BIN HASSAN) Judge Court of Appeal Malaysia Putrajaya. For the Appellant : Anbathan a/l Yathiraju (Tetuan Anba & Associates Advocate and Solicitor) For the Respondent : Dato’ Dasuki bin Mokhtar dan Puan Nurshafini binti Mustafha Deputy Public Prosecutor (Attorney General’s Chambers) 20