Facts of the Guan Eng Acquittal

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Everyone wanted to know the why behind the dropping of corruption charge against Lim Guan Eng, and Appellate and Trial Division/Deputy Public Prosecutor head Mohamad Hanafiah Zakaria provided the answer today.

  • Tommy Thomas not involved in decision to drop the case
  • DPP Hanafiah Zakaria made the decision
  • Fresh evidence during cross-examination of prosecution witnesses weakened the case
  • DPP knew the case against the accused would not succeed
  • It was the court that made an order for acquittal
  • DPP said he kept confidential his decision until very last minute fearing it might leak and cause unnecessary alarm
  • Informed MACC of his decision at 7.18am yesterday
  • Personally informed the A-G at 9.44am yesterday

Hanafiah said it was he who decided to drop the charge after being tasked with deciding on representations made by both accused.

Prior to this, he did not participate in the case in any way.

“I wish to stress that I have 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 have responded to the letter that I will decide the case based on available evidence and governing law, which I did, without fear or favour. My utmost priority is justice,” he said in a statement today.

Hanafiah’s statement in full:

Decision to nolle prosequi charges against Lim Guan Eng and Phang Li Koon

1. I would like to clarify that the Hon Attorney-General had no hand in the decision to enter nolle prosequi (where Public Prosecutor does not propose further to prosecute the accused) on the charges against Lim Guan Eng and Phang Li Koon. This is clearly stated in the joint press release dated 2nd August 2018 by the Solicitor-General Datuk Engku Nor Faizah binti Engku Atek and the then Solicitor-General II Datin Paduka Zauyah Be binti T Loth Khan that the Hon Attorney General has recused himself in all deliberations regarding the above-said case, and will not be involved in any decision the AGC will decide in the above-said case.

2. AGC has adopted the “fresh eye” technique, and I was tasked to decide on the representations made by both Lim Guan Eng and Phang Li Koon’s case as I had not participated in any way with the case earlier. Accordingly, I was able to consider the matter with a fresh perspective.

3. Having given the said task, I have perused the evidence that has been investigated by MACC 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 have testified so far, the evidence supporting the first charge under Section 23 of the MACC Act and under Section 165 of the Penal Code has been substantially weakened. This conclusion was arrived at in light of fresh evidence that have arisen during the cross-examination of prosecution witnesses.

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

5. Yesterday at 7.18am, I communicated my decision to Dato’ Masri Mohd Daud, who is the Director of Legal and Prosecution Division of MACC and a Deputy Public Prosecutor, who was at that time in Penang. 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 was in accordance to section 254(3) of the CPC.

6. I wish to reiterate that the practice to enter 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 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.

7. 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. 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 9.44am yesterday.

8. I wish to stress that I have decided 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 have responded to the letter that I will decide the case based on available evidence and governing law, which I did, without fear or favour.

9. My utmost priority is justice.

Mohamad Hanafiah Zakaria

Head of Appellate & Trial Division/Deputy Public Prosecutor

Attorney General’s Chambers

Sept 4, 2018

Why the shocked overreaction:

  • It’s been said the perception is Lim must go through the trial, even if there isn’t sufficient and compelling evidence, and be found guilty
  • And he must be sent to prison to prove that the new PH government practises accountability
  • He cannot be acquitted because to do so would be seen as a cover-up, no matter how innocent he is
  • And with Lim’s downfall, the Finance Minister portfolio can be snatched and claimed by another component party in the PH coalition
  • MACC playing politics – cherry-picking and choosing to be shocked at Lim’s acquittal over RM2.8 million bungalow but not shocked when the accused in the RM250 million Cowgate scandal were acquitted

The joint trial of Lim and Phang was in connection to the conversion of land from agriculture to residential status, and the purchase of a plot of land and a bungalow at below market value.

The deputy public prosecutor asked the court to consider a discharge not amounting to acquittal for the two. However, Judge Hadhariah Syed Ismail decided to discharge and acquit the duo, after agreeing with the defence counsel that it was not right for the public prosecutor to leave a cloud hanging over their heads as they might be charged again in the future.

Judge Hadhariah justified that so far the prosecution had called 25 witnesses to testify in the trial last March and now in September the prosecution had asked the case to be discharged not amounting to an acquittal (DNAA). She said: “Six months later, the prosecution may call for other witnesses. There is no such thing especially in a public interest case.”

So, what is so special about Lim’s acquittal that apparently shocked so many people?

Lim’s supporters will have you know that there was no case from the beginning.

It’s been said the perception is Lim must go through the trial, even if there isn’t sufficient and compelling evidence, and be found guilty. And he must be sent to prison to prove that the new Pakatan Harapan government practises accountability. He cannot be acquitted because that would be seen as a cover-up, no matter how innocent he is.

Lim must go through a trial, be found guilty and sent to prison because he is the leader of Chinese-based DAP. Not only will DAP lose its jewel Finance Minister post, the imprisonment of Lim will also weaken the incredibly strong party. Certain parties – regardless friends or foes – will benefit greatly with a weaker DAP in the coalition government.

So, what is happening within the “shocked” MACC? It appears there are different warlords or little Napoleons within the anti-corruption agency. Speculation has it that either there are pro-UMNO or pro-Najib corrupt officers within the commission trying to sabotage the new government, or the entire MACC is playing politics – hedging its bet over the possibility of a return of Najib or UMNO to the federal government.

Worse still, there could be MACC warlords who are aligned to a component party of the PH coalition tasked to cause the downfall of Lim Guan Eng, the Secretary-General of the DAP. If Lim is found guilty, he will most certainly lose his Finance Minister post, allowing another component party to snatch and claim the important portfolio.

It is curious that the MACC found it shocking that Lim was acquitted over his RM2.8 million bungalow while it did not raise a murmur when the husband of former UMNO Wanita Chief Shahrizat Abdul Jalil was acquitted of two charges of criminal breach of trust involving RM49.7 million after the prosecution informed the court that it did not wish to pursue the matter.

Why is the MACC so offended that the prosecutor did not wish to pursue Lim’s case but the same MACC was not offended at all that the prosecutor did not wish to pursue Shahrizat’s case in 2015? In fact, the infamous Cowgate scandal had much stronger evidence of convicting the accused.

In the Cowgate scandal, Shahrizat and her family members allegedly embezzled RM250 million of taxpayers’ money meant for National Feedlot Corporation (NFC). Shahrizat’s husband Mohamad Salleh Ismail and the couple’s children – Wan Shahinur Izmir, Wan Shahinur Izran and Wan Izzana Fatimah Zabedah – were made directors of NFC and enriched themselves with obscene salaries.

As NFCorp Chairman, Salleh paid himself RM100,000 monthly, 31-year-old son Izmir was paid RM45,000 monthly as executive director, another son Izran, 27, commanded RM35,000 a month as CEO, and their 25-year-old daughter was paid RM35,000 as a director. The family was paid a total sum of RM215,000 every month.

NFCorp admitted that nearly RM600,000 of its funds was used to pay for credit card expenses, mostly accumulated by Sharizat’s family. Salleh had also admitted to the purchase of two luxury condominiums in Bangsar costing RM6.9 million each. They had also purchased an RM500,000 Mercedes Benz CLS 350 CGI, two plots of land and holiday packages.

Shahrizat had even sent most of the beef produced by NFC to three luxury restaurants – Meatworks, Senor Santos and Brawns Steakhouse – owned by her family in Singapore. The family had also acquired two condominiums at Marina Bay Financial Center suites costing RM34.6 million. In total, Shahrizat’s family had bought RM62 million worth of condos.

When compared to Shahrizat’s RM250 million Cowgate scandal, why did MACC cherry-pick and choose to be shocked at Lim’s RM2.8 million bungalow instead?

The MACC’s job is to investigate and the AGC’s job is to prosecute.

After calling 25 witnesses and still without strong evidence, the DPP decided to drop the case.

The court decided to not only discharge but also to acquit Lim.

Lim did not acquit himself.

And those are the facts of the case.