A discharge not amounting to an acquittal is appropriate where the prosecution indicates future intent to recharge, respecting the discretionary powers of the Public Prosecutor.

[1] This is my judgment in respect of an oral application made by the prosecution seeking a discharge not amounting to an acquittal (DNAA) of the preferred charge against the accused.

[2] Dato' Gee Siew Yee (the accused) was charged at the Sessions Court in Kuala Lumpur on 20 April 2018 for an offence under s 3(1) of the Computer Crimes Act 1997. The relevant charge against the accused reads as follows:

"Bahawa kamu pada tarikh 29 September 2015 di antara jam 0800 pagi sehingga 0500 petang bertempat di Kelab Taman Perdana Di Raja Kuala Lumpur, di dalam Daerah Dang Wangi, Wilayah Persekutuan Kuala Lumpur, di dapati telah melakukan capaian tanpa kuasa ke atas komputer milik Brian Periera (No KP: 860827-66-5087) dengan niat untuk melaksanakan fungsi untuk mendapatkan capaian 3 file mesyuarat Kelab Taman Perdana Di Raja. Oleh itu demikian, kamu telah melakukan kesalahan di bawah s 3(1) Akta Jenayah Komputer 1997 dan boleh di hukum di bawah s 3(3) Akta yang sama".

[3] The above matter was fixed for hearing on 3 December 2018. At the outset, it is best to state that this date was the first hearing date. On the date of hearing the learned Deputy Public Prosecutor (DPP) informed this Honourable Court that the prosecution applies for a DNAA under s 254 of the Criminal Procedure Code ( CPC ) for the matter to be recharged at the Selangor Courts. This Honourable Court was informed that the application was made for want of jurisdiction as according to the learned DPP the matter was under the jurisdiction of the Prosecution Unit of the Selangor State Legal Advisor's Chambers.

[4] Mr Manjit Singh who was appearing for the accused submitted that given the circumstances of the case, the right order should be a discharge amounting to an acquittal.

[5] He pointed out that this Court can make the appropriate and the correct order in the circumstances. He argued that the charge indicates an event that occurred on 29 September 2015, which was three years ago. Since then there was no intimation, or indication by the prosecution in any manner to amend the charge. In the circumstances, learned counsel argued that there is no merit in the request by the learned DPP for a DNAA at this stage. Mr Manjit belabored the point that the correct measure to be taken in this situation is to review s 122 of the CPC to consider jurisdiction and then make the appropriate application in Court. Learned counsel further highlighted that s 254 of the vests the Court with the power to order a discharge amounting to an acquital of the accused person. Learned counsel pointed out that on the facts as stated in the charge sheet, the right order would be an order amounting to discharge to bring this proceeding to an end.

[6] After hearing the submissions of both sides of the divide, I allowed the prosecution's application for a DNAA of the prefered charge against the accused. I now give my grounds for doing so.

Findings

[7] Before I embark upon the task of considering the merits or otherwise of this application, it is opportune for me to state the approach to be adopted in considering an application by the prosecution for a discharge under s 254 of the CPC .

[8] The starting point would be the powers of the Public Prosecutor itself. In this regard, it has been reiterated time and time by our superior courts that the discretionary powers of the Public Prosecutor to institute, conduct or discontinue any criminal proceedings is based on art 145 of the Federal Constitution as well as s 376 of the CPC . Article 145 of the Federal Constitution, read together with s 376 and 254 of the endows the prosecution with wide discretion in respect of all criminal prosecutions and proceedings. Under s 254 of the , at any stage of the tr