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2024 MarsdenLR 1394
HIGH COURT MALAYA SHAH ALAM
PP – Appellant
Versus
ARVIND HARICHANDARAN & ANOR AND ANOTHER CASE – Respondent
[Criminal Division Cases: BA-42LB-10-09-2023 & BA-42LB-11-09-2023]
A subordinate court cannot acquit an accused before the prosecution has closed its case, and an order of DNAA is not appealable as it is not a final order.
Headnote:(A) Dangerous Drugs Act 1952 - Section 39A(2) - Federal Constitution - Article 145(3) - Criminal Procedure Code - Sections 254 and 173 - Appeal against acquittal and discharge of accused - The Sessions Court's acquittal was substituted with a discharge not amounting to acquittal (DNAA) due to the prosecution's inability to present a material witness. (Paras 1, 22)
(B) Powers of Subordinate Courts - The court held that subordinate courts cannot acquit an accused before the prosecution has closed its case, emphasizing the Attorney-General's discretion in criminal prosecutions. (Paras 8, 12)
Facts of the case:
The Public Prosecutor appealed against the Sessions Court's decision to acquit the respondents, as a key witness was unavailable. The prosecution sought a DNAA instead of an acquittal. (Para 1)
Findings of Court:
The Sessions Court's acquittal was incorrect; the prosecution still intended to proceed with the case. (Para 22)
Issues: Whether a subordinate court can acquit before the prosecution's case is fully presented. (Para 1)
Ratio Decidendi: Subordinate courts must hear all evidence before acquitting; the Attorney-General has discretion over prosecution decisions. (Paras 8, 12)
Result: The appeal was allowed, and the acquittal was replaced with a DNAA.
JUDGMENT
[1] This is an appeal by the Public Prosecutor against the decision of the Sessions Court in acquitting and discharging the respondents for four charges under s 39A(2) of the Dangerous Drugs Act 1952 before the close of the prosecution's case. The prosecution had applied for a discharge not amounting to an acquittal as one material witness who was the girlfriend of the 2nd respondent could not be located and was believed to be working in Singapore. After hearing the parties, I allowed the appeal by the Public Prosecutor and substituted the order of acquittal made by the Sessions Court with an order of discharge not amounting to an acquittal or DNAA as it is commonly known. The respondents being dissatisfied have filed an appeal to the Court of Appeal. The issue that arises is whether a subordinate Court can order an acquittal of an accused person before the close of the prosecution's case and if so under what circumstances can it do so? Let me now discuss this issue.
[2] Article 145(3) of the Federal Constitution states:
"The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah Court, a native Court or a Court-martial."
[3] In the Federal Court case of Long Samat & Ors v. Public Prosecutor, the Court held:
"On independence the Federal Constitution came into force, and cl (3) of its art 145 (as amended) provides:
"The Attorney-General shall have power exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Muslim [sic erat scriptum] Court, a native Court or a Court-martial."
In our view, this clause from the supreme law clearly gives the Attorney- General very wide discretion over the control and direction of all criminal prosecutions. Not only may he institute and conduct any proceedings for an offence, he may also discontinue criminal proceedings that he has instituted, and the courts cannot compel him to institute any criminal proceedings which he does not wish to institute or to go on with any criminal proceedings which he has decided to discontinue. (For the position in England, please see Viscount Dilhorne's speech at pp 32-33 in Smedleys Ltd v. Breed [1974] 2 All ER 21). Still less than would the Court have power to compel him to enhance a charge when he is content to go on with a charge of a less serious nature.
Anyone who is dissatisfied with the Attorney-General's decision not to prosecute, or not to go on with a prosecution or his decision to prefer a charge for a less serious offence when there is evidence of a more serious offence which should be tried in a higher Court, should seek his remedy elsewhere, but not in the courts."
[4] In Public Prosecutor v. Datuk Harun Idris & Ors, , Abdoolcader J opined:
"Powers of the Public Prosecutor in criminal prosecutions.
Article 145(3) of the Constitution reads:
"The Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence...."
Section 376(i) of the Code provides:
"The Attorney-General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions and proceedings under this Code."
This section must certainly be circumscribed by and read subject to and in the light of the provisions of art 145(3) of the Constitution which in effect only restate and are declaratory of the existing powers and duties of the Attorney- General in relation to criminal prosecutions and proceedings at the date the Constitution was promulgated.
The Solicitor-General lays considerable stress on the wide powers of the Attorney-General in England in their historical context, stating he is a master to himself, and submits the same applies to the Attorney-General of Malaysia. It must be remembered however that the constitutional rights, powers and duties of our Attorney-General are sp
