A discharge under s 254(3) of the Criminal Procedure Code must amount to an acquittal unless expressly directed otherwise by the Court.

Mary Lim Thiam Suan FCJ:

[1] This appeal deals with an issue which frequently vexes the Court in the exercise of its criminal jurisdiction, that is, when should an order for discharge amounting to an acquittal under s 254 of the Criminal Procedure Code [ CPC ] be granted. As is obvious, such an order or a refusal to grant this order has far-reaching implications. I am compelled to explain my views on the issue so that there is clear and proper guidance from this Court.

[2] At the hearing of this appeal, the learned Deputy Public Prosecutor [DPP] rose to inform the Court that the investigations into the offence for which the appellant is charged "are completed" and the Public Prosecutor has "decided not to proceed with the charge in this case against the appellant". As to the appropriate orders that the Court should make in such event, the learned DPP did not file any written submissions to this appeal, and offered no oral submissions except to say that the prosecution has decided to leave the answer to the issue "to the wisdom of the Court". This is most unfortunate as I found no written submissions filed by the learned DPP in the Courts below either; but that, thankfully, had not deterred both the High Court and the Court of Appeal in providing reasoned grounds for their respective decisions.

[3] While I did not have the benefit of wise counsel from the learned DPP, I was substantially and most ably assisted by both lead and junior counsel for the appellant. For this, I record my appreciation.

Undisputed Facts

[4] On 6 September 2018, the appellant was charged under s 130V of the Penal Code, a charge to which he entered a plea of not guilty after the charge was read to him:

"Bahawa kamu di antara 1 Januari 2015 hingga 7 Februari 2017, di alamat MV Empayar Sdn Bhd, No 1-B, Jalan Perniagaan Masria 1, Pusat Perniagaan Masria, Batu 9, Cheras, di daerah Hulu Langat, di dalam Negeri Selangor Darul Ehsan, telah didapati menjadi ahli kumpulan jenayah terancang "Geng 360 Devan", dan oleh yang demikian kamu telah melakukan satu kesalahan di bawah s 130V(1) Kanun Keseksaan dan boleh dihukum di bawah peruntukan yang sama."

[5] Section 130V of the Penal Code is housed in Chapter VIB offences on organised crime. It provides that it is an offence to be a member of an organised criminal group:

130V. (1) Whoever is a member of an organized criminal group shall be punished with imprisonment for a term *of not less than five years and not more than twenty years.

(2) Until the contrary is proved, a person shall be presumed to be a member of an organized criminal group where:

(a) such person can be identified as belonging to an organized criminal group; or

(b) such person is found with a scheduled weapon as specified under the Corrosive and Explosive Substances and Offensive Weapons Act 1958 [Act 357].

*NOTE-Previously "which may extend to five years" - see s 7 of Penal Code (Amendment) Act 2014 [Act A1471].

[6] On the day of trial, before any evidence was led, the learned DPP informed the Court that after examining the charge, the Prosecution decided not to continue with the prosecution of the charge against the appellant. In these circumstances, the learned DPP sought an order that the appellant be discharged not amounting to an acquittal [DNAA]. The application was made pursuant to s 254(1) of the Criminal Procedure Code [ CPC ]. According to the learned DPP, the Court ought to grant an order of DNAA as "the investigation (sic) still going on".

[7] That order for a DNAA was vehemently opposed. Learned counsel for the appellant argued that the proper order to be entered is that the appellant be discharged forthwith and that the discharge amounts to an acquittal [DAA].

[8] After hearing submissions, the High Court granted an order of DNAA on the following grounds:

i. according to settled law as found in Public Prosecutor v. Hettiarachigae LS Perera , 1976 MarsdenLR 261 and PP v. Zainuddin Sulaiman & Ors; 1986 MarsdenLR 704 ; [1986] CLJ (Rep) 232