High Court rejects Malaysian Bar’s bid to challenge AG’s DNAA for Zahid Hamidi in Yayasan Akalbudi case
Lawyer Hisham Tek Poh Teik and his team are seen outside the courtroom at the Kuala Lumpur High Court June 27, 2024. ― Picture by Sayuti Zainudin
Thursday, 27 Jun 2024 10:33 AM MYT
KUALA LUMPUR, June 27 — The Malaysian Bar today failed in its legal bid to challenge the decision by the Attorney General's Chambers (AGC) to ask for a discharge not amounting to an acquittal (DNAA) in Datuk Seri Ahmad Zahid Hamidi’s Yayasan Akalbudi case.
Today's decision was delivered by High Court judge Datuk Amarjeet Singh Serjit Singh.
Amarjeet held that the Bar did not fulfil the threshold requirement under Section 96 of the Courts of Judicature Act (CJA) and so, leave could not be granted to them.
In his broad grounds which were read out in court, Amarjeet said the Federal Court had recognised the Attorney General's discretion and exercise of their power under Article 145(3) of the Federal Constitution is cloaked with the presumption of legality.
He cited the case of Sundra Rajoo a/l Nadarajah v Foreign Minister, Malaysia and Others as precedent.
Article 145(3) provides that the AG shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Shariah court, a native court or a court-martial.
“I have considered the cause papers and hold that the applicant has not met the threshold required, the application is therefore dismissed,” Amarjeet added.
In the same hearing, Amarjeet also dismissed the Bar's application, filed under Article 128(2) of the Federal Constitution, read with Section 84 of the CJA, to refer three constitutional questions to the apex court for determination.
“I have considered the questions carefully and am satisfied the basic requirements needed for a referral to be made under Section 84 are not met.
“The questions were therefore not suitable questions to be referred to the Federal Court. The application is accordingly dismissed,” he said.
The three questions posed hinges on the issue of the applicant’s burden of proof when challenging a decision to apply for a DNAA; the constitutionality of a decision to apply for a DNAA for an undefined time and whether the Sundra Rajoo principle that requires an applicant to adduce “compelling and prima facie proof” of its case at the leave stage in a challenge against the AG’s decision under Article 145(3) applies to a challenge against the AG’s decision to seek a DNAA under Section 254 of the Criminal Procedure Code.
Amarjeet ordered the Malaysian Bar to pay RM10,000 in costs to the AG.
Senior federal counsels Ahmad Hanir Hambaly and Shamsul Bolhassan appeared for the AGC while Datuk Hisyam Teh Poh Teik, Hamidi Mohd Noh and Guok Ngek Seong appeared for Ahmad Zahid.
Steven Thiru and Abhilaash Subramaniam appeared for the Malaysian Bar.
On September 4, 2023, the prosecution decided to discontinue the Yayasan Akalbudi trial, which resulted in the High Court granting Ahmad Zahid a DNAA for all 47 corruption charges he faced.
Ahmad Zahid was accused of 12 counts of criminal breach of trust in relation to over RM31 million of his charitable organisation Yayasan Akalbudi’s funds, 27 counts of money laundering, and eight counts of bribery charges of over RM21.25 million in alleged bribes.
At that time, prosecutors said further investigations on Ahmad Zahid’s case had to be carried out, following the representations from the accused to the AG to ask for all 47 charges to be reviewed.
Trial judge Datuk Collin Lawrence Sequerah said that the prosecution had “given cogent reasons” for seeking the DNAA.
Up until Ahmad Zahid’s DNAA, the prosecution had called a total of 99 witnesses while the defence called 15 of its own witnesses.
Thursday, 27 Jun 2024 10:33 AM MYT
KUALA LUMPUR, June 27 — The Malaysian Bar today failed in its legal bid to challenge the decision by the Attorney General's Chambers (AGC) to ask for a discharge not amounting to an acquittal (DNAA) in Datuk Seri Ahmad Zahid Hamidi’s Yayasan Akalbudi case.
Today's decision was delivered by High Court judge Datuk Amarjeet Singh Serjit Singh.
Amarjeet held that the Bar did not fulfil the threshold requirement under Section 96 of the Courts of Judicature Act (CJA) and so, leave could not be granted to them.
In his broad grounds which were read out in court, Amarjeet said the Federal Court had recognised the Attorney General's discretion and exercise of their power under Article 145(3) of the Federal Constitution is cloaked with the presumption of legality.
He cited the case of Sundra Rajoo a/l Nadarajah v Foreign Minister, Malaysia and Others as precedent.
Article 145(3) provides that the AG shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Shariah court, a native court or a court-martial.
“I have considered the cause papers and hold that the applicant has not met the threshold required, the application is therefore dismissed,” Amarjeet added.
In the same hearing, Amarjeet also dismissed the Bar's application, filed under Article 128(2) of the Federal Constitution, read with Section 84 of the CJA, to refer three constitutional questions to the apex court for determination.
“I have considered the questions carefully and am satisfied the basic requirements needed for a referral to be made under Section 84 are not met.
“The questions were therefore not suitable questions to be referred to the Federal Court. The application is accordingly dismissed,” he said.
The three questions posed hinges on the issue of the applicant’s burden of proof when challenging a decision to apply for a DNAA; the constitutionality of a decision to apply for a DNAA for an undefined time and whether the Sundra Rajoo principle that requires an applicant to adduce “compelling and prima facie proof” of its case at the leave stage in a challenge against the AG’s decision under Article 145(3) applies to a challenge against the AG’s decision to seek a DNAA under Section 254 of the Criminal Procedure Code.
Amarjeet ordered the Malaysian Bar to pay RM10,000 in costs to the AG.
Senior federal counsels Ahmad Hanir Hambaly and Shamsul Bolhassan appeared for the AGC while Datuk Hisyam Teh Poh Teik, Hamidi Mohd Noh and Guok Ngek Seong appeared for Ahmad Zahid.
Steven Thiru and Abhilaash Subramaniam appeared for the Malaysian Bar.
On September 4, 2023, the prosecution decided to discontinue the Yayasan Akalbudi trial, which resulted in the High Court granting Ahmad Zahid a DNAA for all 47 corruption charges he faced.
Ahmad Zahid was accused of 12 counts of criminal breach of trust in relation to over RM31 million of his charitable organisation Yayasan Akalbudi’s funds, 27 counts of money laundering, and eight counts of bribery charges of over RM21.25 million in alleged bribes.
At that time, prosecutors said further investigations on Ahmad Zahid’s case had to be carried out, following the representations from the accused to the AG to ask for all 47 charges to be reviewed.
Trial judge Datuk Collin Lawrence Sequerah said that the prosecution had “given cogent reasons” for seeking the DNAA.
Up until Ahmad Zahid’s DNAA, the prosecution had called a total of 99 witnesses while the defence called 15 of its own witnesses.
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