PUTRAJAYA (April 8): DAP adviser Lim Guan Eng, his wife Betty Chew and businesswoman Phang Li Koon are seeking to dismiss their graft and money laundering charges, citing similar charges in an earlier case where Lim and Phang were acquitted.

Phang’s lawyer Datuk V Sithambaram told the Court of Appeal bench on Wednesday that this amounted to double jeopardy or autrefois acquit as it is intertwined with the doctrine of estoppel and res judicata, because Lim and Phang were acquitted in the first trial.

Sithambaram told the bench led by Datuk Azman Abdullah that after the documents were handed to the defence based on the Section 53 of the Criminal Procedure Code in the second trial, the defence noticed the prosecution’s use of the same documents in the second trial that were used in the first trial, where Phang and Lim were acquitted.

He added that in the first case, the prosecution dropped the charges against Lim and Phang after 25 witnesses testified. Although the prosecution sought a discharge not amounting to acquittal, the High Court ruled for an acquittal.

“The prosecution did not appeal the acquittal. Hence, the prosecution (can’t) charge Lim and Phang based on the similar facts as it would amount to double jeopardy. If the investigations on them allegedly found five or seven offences and they (are) only charged (for) two of them, they cannot now come and charge them again based on the three or other remaining charges.

“The prosecution cannot be done in stages after the first matter. The charges against them are unconstitutional and violate Section 302 of the Criminal Procedure Code — where a person once convicted or acquitted may not be tried again for the same offence,” the senior lawyer said.

Double jeopardy is a legal principle in which the accused may not be tried for the same alleged offence.

Sithambaram added there must be a finality in the criminal litigation and it should not be done in stages following an acquittal. Furthermore, he added there was no appeal by the prosecution over the previous acquittal.

RSN Rayer for Lim and Chew also said if the appellate court decides that the charges cannot stand against Lim or Phang, then the charge against Chew should also fall as they are related.

Deputy public prosecutor Mohd Ashrof Adrin Kamarul told the bench, which also consisted of Datuk Noorin Badaruddin and Datuk Mohd Radzi Abdul Hamid, that the charges on Lim and Phang have distinct element facts from the first and second proceedings.

Therefore they do not not fulfil the requirements of the principle of double jeopardy.

Ashrof added that the crux of the defence’s argument is that their rights under the Federal Constitution are in breach due to the purported similar documents and facts.

“It is our submission that the second proceeding against both Lim and Pang is not in breach of their constitutional rights under Article 5 of the FC.

“The prosecution also submits that the investigations that were further conducted for the second proceeding in the year 2016 together with the first proceeding were for two different subject matters. The criminal charges preferred for the second proceedings do not form part of a series of the same offence or of a similar character as the offences that formed the first proceeding,” the DPP added.

Azman, along with Noorin, and Mohd Radzi said they need time to consider the double jeopardy claims and set April 27 for case management to schedule when they will deliver their decision.

On May 3, 2024, then Judicial Commissioner Rofiah Mohamad ruled that the principles of double jeopardy, as argued by the defence, could not be used in Lim and Phang’s case as there were differences between the first and second proceedings in terms of offence, position held by the accused when the offence was allegedly committed, and the alleged bribe received.

"The actions allegedly committed by the accused and the type of offences are different. It is clear in the first proceedings where 25 witnesses had been called (before the case was dropped) that there was no finding of fact made by the court based on the witnesses in the duration of that trial.

"There was no judicial determination by that court based on evidence before it on whether the accused is guilty or otherwise on their previous charges. The discharge and acquittal given in the first proceeding to stop prosecuting them and withdrawing their charges was at the trial stage.

"The acquittal was not upon a judicial adjudication by the court on the available evidence in the first trial. Hence, the doctrine of double jeopardy does not apply, and the accused are required to stand trial," Rofiah said.

The second trial on Lim and Phang has yet to proceed in this case pending the outcome of this appeal.

In the second proceeding, Lim, Chew, and Phang face new charges under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 and the Malaysian Anti-Corruption Commission Act 2009 involving a dormitory project awarded to Phang when Lim was the Penang chief minister.

Lim is alleged to have received gratification worth RM372,009 via Chew, to ensure that Magnificent Emblem Sdn Bhd was awarded the project at Juru and Batu Kawan.

Chew is alleged to have received the sum from Excel Property Management and Consultancy Sdn Bhd controlled by Phang, between Aug 19, 2013, and March 3, 2016, during which Lim was also tender board chairman of the Penang Development Corp.

Phang is charged with abetting Lim.

Chew is facing three charges of money laundering of the RM372,009 which was made in three tranches from a bank account registered at Taman Melaka Raya between Oct 7, 2013, and March 3, 2016.

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Double jeopardy does not apply, Penang court rules in dismissing Guan Eng, wife and Phang's challenge on graft charge