Ex-spy chief Hasanah temporarily discharged from RM50.4m CBT trial, prosecution to continue proceedings in future

Former Malaysian External Intelligence Organization (MEIO) director -general Datuk Hasanah Ab Hamid leaving the Kuala Lumpur Court Complex, April 7, 2021. — Bernama pic
Former Malaysian External Intelligence Organization (MEIO) director -general Datuk Hasanah Ab Hamid leaving the Kuala Lumpur Court Complex, April 7, 2021. — Bernama pic

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KUALA LUMPUR, April 12 — The High Court today granted a discharge not amounting to acquittal to Datuk Hasanah Abdul Hamid, the former director-general of the Malaysian External Intelligence Organisation (MEIO), in her criminal breach of trust trial involving RM50.4 million funds.

High Court judge Ahmad Shahrir Mohd Salleh said he had granted the DNAA order, as the prosecution had said it would not continue the trial proceedings against Hasanah at this point in time.

The judge also noted the prosecution’s plans to prosecute Hasanah in the future over the matter.

“In the present case, the learned DPP, in applying not to further prosecute the accused, indicates that the accused will be made to face the charge at a later date. The learned DPP also explains about the new development which was discovered.

“In the circumstances, I find that the prosecution has provided good and valid grounds in exercising his powers under the law to not further prosecute the accused. I also find that the new development as explained by the learned DPP is a temporary impediment because the learned DPP confirms that the accused will be made to face the charge in the future.

“Therefore, I hereby order the accused to be given a discharge not amounting to acquittal (DNAA),” the judge said.

In criminal cases before the court, there are several outcomes possible: such as a conviction and sentencing of an accused; or an acquittal of an accused; or a discharge not amounting to acquittal (DNAA) of an accused which effectively means release from the charges but with the possibility for the accused to face trial for the same charges in the future if the prosecution decides to reinstate charges.

In other words, a DNAA means that an accused has not been acquitted of the charges, but is merely discharged of the charges.

Among other things, the High Court judge today also noted the attorney-general’s powers under the Federal Constitution’s Article 145(3) to initiate, conduct or discontinue any proceedings for an offence, and with the exercise of such powers under the attorney-general’s discretion.

The judge also noted the Criminal Procedure Code’s (CPC) Section 376(1) which states that the attorney-general shall be the public prosecutor and shall have the control and direction of all criminal prosecutions, further noting that the public prosecutor can appoint deputy public prosecutors to exercise his powers except for those which are to be exercised personally by the public prosecutor.

The judge also noted that when the deputy public prosecutor exercises his powers under the CPC’s Section 254(1) to not further prosecute the accused, it would be the duty of the court under the CPC’s Section 254(3) to consider whether to grant a DNAA or an outright acquittal.

“This is a discretion which must be judicially exercised. On the other hand, the court cannot compel the prosecution to proceed with the case against the accused if the prosecution decided to withdraw the charge. This is the position of the law,” the judge said in explaining the law related to situations when the prosecution chooses not to continue prosecuting an accused.

Having considered the matter including new developments as cited by the prosecution and deciding that the prosecution had given good grounds to discontinue the case, the judge had then granted the DNAA order in Hasanah’s case.

Deputy public prosecutor Muhamad Iskandar Ahmad led the prosecution in Hasanah’s case, while Hasanah’s defence team was led by Datuk Suhaimi Ibrahim.

On October 25, 2018, Hasanah pleaded not guilty when charged with committing criminal breach of trust over US$12.1 million (RM50.4 million) of funds belonging to the Malaysian government.

She was accused of having committed the offence under Section 409 of the Penal Code in her capacity as a civil servant in the Research Division of the Prime Minister’s Department in Putrajaya between April 30, 2018 and May 9, 2018.

Under Section 409 of the Penal Code, the offence of criminal breach of trust by a public servant is punishable with a jail term of between two to 20 years, and with whipping and also fining upon conviction.

Her trial had started in October 2020, with the eighth prosecution witness testifying last week.

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