Vigny Alfred Raj a/o Vicetor Amratha Raja v Pendakwa Raya (B-05-473-09/2018)

Content

1 IN THE COURT OF APPEAL MALAYSIA AT PUTRAJAYA CRIMINAL APPEAL NO.B-05-473-09/2018 BETWEEN VIGNY ALFRED RAJ A/L VICETOR AMRATHA RAJA - APPELLANT AND PUBLIC PROSECUTOR - RESPONDENT CORUM : YAACOB BIN HAJI MD. SAM, JCA RODZARIAH BINTI BUJANG, JCA HADHARIAH BT SYED ISMAIL, JCA GROUNDS OF JUDGMENT Introduction The appellant was charged under section 130V (1) of the Penal Code. A plea of not guilty was recorded from the appellant. Before any evidence was tendered, the prosecution informed the court that they did not wish to proceed with the case and asked for a discharge not amounting to an acquittal (DNAA). Counsel for the appellant asked the court to grant a discharge amounting to an acquittal. The High Court Judge granted an order for DNAA. This is the appellant’s appeal against the order for DNAA. 2 In granting the order for DNAA, the learned High Court judge gave his reasonings as follows: i) A High Court does not have the power or jurisdiction to acquit and discharge the appellant without hearing any evidence; and ii) A High Court does not have the power or jurisdiction to infringe on the absolute powers of the Attorney General to institute and conduct proceedings pursuant to Article 145 (3) of the Federal Constitution. Section 254 of the Criminal Procedure Code (CPC) states :

Subsection

(1) At any stage of any trial, before the delivery of judgment, the Public Prosecutor may, if he thinks fit, inform the Court that he will not further prosecute the accused upon the charge and thereupon all proceedings on the charge against the accused shall be stayed and the accused shall be discharged of and from the same.

Subsection

(2) At any stage of any trial before a Sessions Court or a Magistrates Court before the delivery of judgment, the officer conducting the prosecution may, if he thinks fit, inform the Court that he does not propose further to prosecute the accused upon the charge, and thereupon all proceedings on the charge against the accused may be stayed by leave of the Court and, if so stayed,the accused shall be discharged of and from the same. 3

Subsection

(3) Such discharge shall not amount to an acquittal unless the Court so directs. Before us, learned counsel for the appellant submitted that trial begins when a charge is read to an accused and he enters a plea thereto. In support, counsel referred this Court to the case of Perumal v Public Prosecutor [1970] 2 MLJ 265 wherein the Federal Court held that the point of time for the institution of prosecution within the meaning of section 26 of the Prevention of Corruption Act 1961 is the moment at which the court asks the accused to plead to the charge. With the greatest of respect, we find the case cited by counsel is not applicable here because that case does not deal with section 254 CPC. He further submitted that the court has power to order a discharge amounting to an acquittal under section 254 if no good reason is given. He relied on PP v Mat Zain [1948- 49] ML J Supp 142 wherein the Supreme Court held that the discharge should amount to an acquittal unless good cause is otherwise shown. In reply, the learned DPP submitted that this appeal is pre-mature considering the order of DNAA was not a final order as the prosecution’s case can be reinstated and continued for trial. The reason why the DPP had asked for DNAA was because the investigation into the case was ongoing. The prosecution had no intention to drop or withdraw the charge against the appellant. Finally, it was submitted that the High Court did not err in making the order for DNAA. Reliance was placed on the case of Public Prosecutor v Syed Abdul Bahari Shahabuddin [1975] 1 MLJ 87 where the High Court held : 4 “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.” Our decision We disagree with learned counsel for the appellant’s submission. The trial of the case has not started. The prosecution has asked for DNAA because they cannot proceed for the time being as the investigation was still ongoing and that they would proceed with the trial when they are ready. This is a good grounds for granting DNAA. The learned High Court judge was right in refusing acquittal in the absence of any evidence before the court. Given the circumstances of the case, we find there was no appealable error for us to disturb the order made by the High Court. Accordingly, we dismissed the appeal. Dated 27 February 2020 Hadhariah bt Syed Ismail Judge 5 Court of Appeal For the Appellant : En Kamarul Hisham bin Kamarudin (Tiara Katrina Fuad & Syafiqah Sofian with him); The Chambers of Kamarul Hisham & Hasnal Rezua For the Respondent : En Nik Habri bin Muhamad; Deputy Public Prosecutor; Attorney General Chambers