SEPTEMBER 6 — One can only empathise with Court of Appeal Judge Collin Lawrence Sequerah for having had to deal with the vexed issue whether to order a discharge amounting to an acquittal (DAA) or discharge not amounting to an acquittal (DNAA) under Section 254 of the Criminal Procedure Code (CPC).
That the learned judge has had to deal with the issue sitting alone as a trial judge and not with two other brethren judges on an appellate bench adds to the empathy.
Whether to order DNAA or discharge amounting to an acquittal (DAA) has indeed far-reaching implications. Even so, Federal Court judges do not seem to agree on the full purport of Section 254 of the Criminal Procedure Code (CPC), as can be seen in the apex court decision in the case of Vigny Alfred Raj a/l Vicetor Amratha Raja v Public Prosecutor delivered on July 7 last year.
A three-member panel of the Federal Court, albeit concurring and coming to the same ultimate decision, differed in the interpretation of clause (3). Section 254 CPC reads as follows:
Public Prosecutor may decline to prosecute further at any stage
(1) At any stage of any trial, before 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.
(2) At any stage of any trial before a sessions court or a magistrate’s 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) Such discharge shall not amount to an acquittal unless the Court so directs.
The section deals specifically with the situation where the Public Prosecutor (PP) or the prosecuting officer (PO) declines to prosecute any further with the trial which is already ongoing in court. It operates at any stage of a trial, and it is invoked by the PP.
Although the heading of the section — some call it shoulder or marginal note — states that the ‘Public Prosecutor may decline to prosecute further at any stage’, the substantive provisions in the section provide that it is at any stage of trial so long as it is before judgment is delivered.
According to Federal Court Judge Mary Lim, the section requires a conscious or deliberate invocation by the prosecution, that he will not further prosecute the accused in respect of the charge for which trial has already commenced.
Her Ladyship further explained the section as follows:
“Where the Public Prosecutor or the prosecuting officer declines to prosecute any further with the trial which is already ongoing in court, Section 254 specifically provides for its consequence(s). Implicit in Section 254 is the power of the Public Prosecutor under Article 145 of the Federal Constitution to discontinue any criminal prosecution .... Where the Attorney General as PP has made up his mind, the law has provided in Section 254 the consequences or orders that the court may make in response to such a decision.”
The section envisages two scenarios where a trial may come to a premature end because the PP has made up his mind in declining ‘to prosecute further’. First, under subsection (1) where the prosecution is by the PP; second, under subsection (2) where the prosecution is by a PO and such prosecution is before either the sessions or magistrates court.
Broadly, where the PP informs the court of that decision, the trial is stayed and the accused is discharged from the charge. Where the decision is made by the PP, the stay of the trial is mandatory whilst in the case of a trial before the lower courts, stay is discretionary. This is readily discerned from the use of the term “may” in subsection (2) as opposed to “shall” in subsection (1).
The more contentious issue, however, is the effect of a discharge under either instance and what orders or directions the court should make when the PP indicates that he will not further prosecute. Subsection (3) specifically states that “such discharge shall not amount to an acquittal unless the court so directs”.
In Mary Lim FCJ’s view, by subsection (3) “the court has to specifically direct that the discharge does not amount to an acquittal. Otherwise, the default position is that the discharge amounts to an acquittal. This is the plain and clear meaning of s 254(3).” (Emphasis added)
Federal Court Judge Zabariah Yusof, however, disagreed with the above view. In Her Ladyship’s view, “a plain and literal reading of Section 254(3) of the CPC means that any discharge granted by the court under the Section is a discharge not amounting to an acquittal. But for a discharge amounting to an acquittal, it must be specifically directed by the court. The opening wordings of the section are clear and unambiguous; hence the court must give effect to its plain and literal meaning.”
The third Federal Court judge, Mohd Zawawi Salleh FCJ agreed with Zabariah Mohd Yusof FCJ.
It is trite though that Section 254 is invoked by the PP. As said by Mary Lim FCJ, it requires a conscious or deliberate invocation by the PP, that he will not further prosecute the accused in respect of the charge for which trial has already commenced.
If only the PP had not invoked the section on Tuesday in the trial of 47 corruption charges against Deputy Prime Minister Ahmad Zahid Hamidi.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
