PUTRAJAYA (June 24): Former Penang chief minister Lim Guan Eng, his wife Betty Chew and businesswoman Phang Li Koon will have to stand trial in a graft case involving a worker’s dormitory project.
A three-member Court of Appeal bench upheld a High Court's decision that held the second prosecution against Lim and Phang are distinct from the first prosecution. The matter will now be sent back to the Penang High Court on July 3.
Judicial Commissioner Rofiah Mohamad had not erred in her decision to dismiss the defence argument of double jeopardy, res judicata to stand by things decided and estoppel, judge Datuk Noorin Badaruddin said in her oral judgement.
“The appeal by the defence is dismissed and the orders of the High Court are affirmed,” she said on Wednesday.
She sat with Datuk Azman Abdullah, who led the bench with Datuk Mohd Radzi Abdul Hamid as the third judge.
In setting the grounds for their decision, Noorin said the purported offences are not the same in law and fact even as they were the result of the same investigations, and separate offences could be found with the overlap in the process.
“This current case involving a hostel project concerns different acts of gratification and different elements that the prosecution has to prove,” she said. “In our judgement, we rule that the present offences which they are charged with are not identical in law and in fact.”
The bench ruled that the new charges did not violate the appellant’s right under Article 7(2) of the Federal Constitution or Section 302 of the Criminal Procedure Code complained by the defence.
Article 7(2) guarantees protection against double jeopardy, meaning that a person who has been acquitted or convicted of a specific criminal offence cannot be tried or punished again for the same offence.
Section 302, meanwhile, offers protection to a person acquitted or convicted of an offence from being tried again for the same offence while the verdict is still in force.
The charges
Lim, 65, is charged under Section 23(1) of the Malaysian Anti-Corruption Commission Act that carries a maximum prison term of 20 years and a fine of not less than five times the value of the gratification.
Phang, meanwhile, is facing a charge of conspiring with Lim to commit the offence while Chew is facing three-money laundering charges involving the RM372,009 sum allegedly received from Excel Property Management & Consultancy Sdn Bhd.
Prosecutors allege that Excel Property is owned by Phang and the money was credited into Chew's Public Bank account between 2013 and 2016.
The offence falls under Section 4(1)(a) of the Anti-Money Laundering and Anti-Terrorism Financing Act. If found guilty, she faces a jail term of up to five years, a fine of up to RM5 million, or both.
Lim and Phang were charged in an earlier case involving a Penang bungalow purchase where 25 prosecution witnesses testified before the prosecution dropped its case and they were granted an acquittal.
'Piecemeal' prosecution
Nevertheless, Noorin criticised the prosecution for bringing the charges in tranches as Lim and Phang were charged in the bungalow case in 2016 and the hostel case in 2020.
The judge said the court took note of the defence argument that the new charges are unfair, oppressive and caused a sense of grievance to the accused even though there is no legal barrier to such a move that also comes under the attorney general’s discretion.
“A finding of legality should not be misunderstood as an endorsement of the manner in which prosecutorial discretion has been exercised in every respect,” Noorin said. “This court cannot ignore the fact that the factual material underlying the present charges appears to have been substantially available to the investigating and prosecuting authorities during the earlier proceedings.”
While the law allows separate prosecutions for distinct offences, breaking up the prosecutions into fragments from the same investigations “should be approached with considerable caution”, she stressed.
Successive prosecutions based on facts already known to the authorities carry the risk of carrying a perception that an accused is being subjected to repeated litigation from the same controversy, she said.
“Such perceptions, whether ultimately justified or not, have the potential to undermine public confidence in the fairness, efficiency and legality of the criminal justice process,” Noorin said.
She reminded the prosecution that the administration of criminal justice depends not merely upon the lawful exercise of prosecutorial power but also upon its appropriate and responsible exercise.
“The public prosecutor occupies a constitutional office of the highest public trust, and that trust comes with the corresponding obligation to ensure that prosecutorial decisions are guided not only by legal sufficiency but also by considerations of fairness, proportionality and the efficiency of administration of justice.
“We therefore take this opportunity to emphasise that although no legal impediment exists to the authorities, it should remain vigilant against practices that may give rise to perceptions of piecemeal litigation or repeated attacks to prosecution matters arising from these investigative operations. The integrity of the criminal justice system is strengthened when prosecutorial decisions promote full fairness on the accused,” the appellate judge said.
Defence to appeal
Deputy public prosecutors Mohd Ashrof Adrin Kamarul and Shafie Hashim appeared for the prosecution while RSN Rayer was the counsel for both Lim and Chew.
Datuk V Sithambaram, who appeared for Phang, said they have received instructions to file an appeal to the Federal Court on the matter.
The defence has 14 days to file an appeal following Wednesday’s decision.