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2021 MarsdenLR 2843
COURT OF APPEAL PUTRAJAYA
TEO CHEE KONG – Appellant
Versus
PP – Respondent
[Criminal Appeal No: S-06A-13-04/2018]
Prosecutorial discretion is generally immune to challenge unless misused or exercised in bad faith, requiring substantial proof of any allegations against the prosecutor.
Headnote:(A) Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 – Section 4(1)(a) and (b) – Appeal against dismissal of Notice of Motion to quash 146 charges for alleged prosecutorial abuse – The court held that the Public Prosecutor’s discretion in bringing charges is not subject to judicial review unless it is exercised in bad faith or against constitutional protections – The appellant’s claims of mala fides and estoppel were dismissed. (Paras 12, 20, 21, 36)
(B) Prosecutorial Discretion – The Prosecutor's power is constitutionally enshrined and is generally immune from challenge unless unlawful or based on irrelevant considerations. (Paras 18, 20)
(C) Abuse of Process – Allegations must be substantiated with evidence of bad faith, mere claims without supporting evidence are not sufficient to quash proceedings. (Paras 21, 36)
Facts of the case: The appellant, a former Deputy Director, faced 146 charges after civil forfeiture actions were initiated against him. He claimed these charges were oppressive and constituted an abuse of process due to prior representations made by the prosecutors.
Findings of Court: The court upheld the prosecutor's discretion, emphasizing that allegations of mala fides must be substantiated, and found no evidence that the charges were brought in bad faith.
Issues: The case addressed whether the Public Prosecutor's decisions to charge were justifiable and whether claims of mala fides and procedural abuse were substantiated.
Ratio Decidendi: The court affirmed that prosecutorial discretion must be respected unless there is clear evidence of misuse or contravention of rights, and allegations of bad faith require substantial proof.
Result: Appeal dismissed.
JUDGMENT
Introduction
[1] This is an appeal against the decision of the learned High Court Judge which was delivered on 26 March 2018 in dismissing the Appellant's Notice of Motion dated 6 February 2018 to quash all the 146 charges which are pending against the Appellant in the Sessions Court.
[2] The order the Appellant was seeking in the Notice of Motion (NOM) before the learned High Court Judge was that:
1. (a) The conduct of the Public Prosecutor by initiating two (2) Forfeiture Proceedings, one (1) Prohibitory Proceeding in High Court and one (1) Forfeiture Proceeding in the Sessions Court and after obtaining judgments in the High Court on 13 December 2017 had subsequently thereafter on 13 December 2017 instituted 146 charges against the Applicant/ Accused in the Sessions Court (hereinafter referred to as "said 146 charged") amount to multiplicity of criminal proceedings, is mala fide, oppressive and an abuse of the process of the Court;
(b) If the answer to issue abovementioned is in the affirmative, then the said 146 charges in the Sessions Court should be dismissed and / or quashed under the inherent power and / or general supervisory jurisdiction of the High Court;
(c) If the answer to issue abovementioned is in the negative, all affidavits evidence adduced by the Applicant / Accused in the two (2) Forfeiture Proceedings, one (Prohibitory Proceeding in the High Court and one (1) Forfeiture Proceeding in the Sessions Court should be excluded from the trial of the said 146 charges in Sessions Court Criminal Cases No BKI-61R-1/12-2017 and BKI-61R-59/12-2017.
[3] On 26 March 2018, the learned High Court Judge dismissed the Appellant's NOM and ordered the trial in the Sessions Court to proceed expeditiously. Hence this appeal before us which we dismissed for the following reasons.
Brief facts
[4] On 4 October 2016, the Appellant who was the former Deputy Director of the Sabah Water Department (JANS) together with Awang Mohd Tahir Mohd Talib and Lim Lam Beng @ Lim Chee Hong were arrested by the Malaysian Anti-Corruption Commissions ("MACC"). Fauziah Ag Piut who was Awang Mohd Tahir's wife, was also arrested on the same day.
[5] On 29 December 2016, Awang Mohd Tahir Mohd Talib the former Director of JANS, was charged with 12 charges under s 4(1)(a) and 4(1)(b) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of unlawful Activities Act 2001 ("the Act"), involving RM 45 million. His wife Fauziah Ag Piut was charged with 19 charges under s 4(1) (b) of the same act. The couple was also jointly charged with 2 charges under s 4(1)(b) of the Act.
[6] Lim Lam Beng, the former Deputy Director of JANS was also charged on the same day with 4 charges under s 4(1)(b) of the Act. However, no charge was preferred against the Appellant on that date. Instead, the following civil proceedings were filed against the Appellant:
a) Notice of Motion dated 7 August 2017 in Criminal Application No BKI-44(A)-30/8-2017 against the Appellant's 65 landed properties in Sabah ("FOP Land") under s 56 the Act;
b) Notice of Motion dated 11 July 2017 in Criminal Application No BKI- 44(A)-16/7-2017 against the Appellant's monies in 67 bank accounts and the Appellant's son, Joseph Teo Kok Wei's monies in 4 bank accounts ("FOP Bank") under s 56 the Act;
c) Notice of Motion dated 27 July 2017 in Criminal Application No BKI- 44(A)-29/7-2017 to prohibit the Appellant from dealing with his properties in Singapore ("PP Singapore") under s 53 the Act; and
d) Notice of Motion dated 13 July 2017 in the Sessions Court in Criminal Application No BKI-64-4/7-2017 against the Appellant's cash monies in Malaysian and foreign currencies ("FOP Cash") under s 41 Malaysian Anti-Corruption Act. ("MACA")
[7] On 13 December 2017, the learned HCJ allowed the FOP Land, FOP Bank and PP Singapore (collectively referred to as "the said decision of FOP in HC"). With regard to the FOP Cash, the learned Sessions Judge dismissed it on 30 January 2018.
[8] On 1
