JUDGMENT

Mohd Nazlan Mohd Ghazali J:

Introduction

[1] This is an oral application by the Attorney General, as the Public Prosecutor to withdraw the certificates issued under s 418A of the Criminal Procedure Code ("the CPC") and s 60 of the Malaysian Anti-Corruption Act 2009 ("the MACC Act") that were previously issued by the Public Prosecutor to transfer to the High Court the charges against the accused that had been first filed in the Sessions Court.

[2] At the conclusion of the hearing, I allowed the application and exercised my discretion under s 417(2) of the CPC to order the transfer of the charges back to this High Court. This judgment sets out the full reasons for my decision.

Key Background Facts

[3] The prosecution had preferred seven criminal charges against the accused concerning offences under the Penal Code, the MACC Act and the Anti Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 ("the AMLATFA") which have been registered under three different suits. For the purposes of this judgment, it is sufficient for the subject-matter to be referred to collectively as the seven charges.

[4] The seven charges were registered on two different dates, about one month apart. Four charges for offences under the Penal Code and the Malaysian Anti-Corruption Commission Act 2009 were filed on 4 July 2018, and the remainder three charges, all for offences under the AMLATFA were filed subsequently on 8 August 2018, when all seven charges were ordered to be jointly tried. The accused pleaded not guilty to all the charges and asked to be tried. On 10 August 2018, this Court fixed the trial of the seven charges to commence on 12 February 2019 and to continue until 29 March 2019.

[5] On both dates of 4 July 2018 and 8 August 2018, the charges had been initially filed at the Sessions Court; but these were immediately transferred on the same respective dates to the High Court pursuant to the certificates issued by the Public Prosecutor under s 418A of the CPC and s 60 of the MACC Act.

[6] By a letter dated 14 January 2019 the prosecution, led by Solicitor General III, it informed the Court that it wished to make amendments to some of the existing seven charges. In another letter of 23 January 2019, the prosecution notified that it intended to prefer additional charges against the accused. On 28 January 2019, this Court allowed the amendments which were not objected to by the defence. Three new additional charges under AMLATFA were also read out to the accused who pleaded not guilty and asked to be tried.

[7] When the prosecution asked for these three new charges to be jointly tried with the existing seven charges, counsel for the accused asked this Court to allow the defence a few days to consider whether or not the defence had any objection to the joinder. I allowed the request, and fixed 7 February 2019, just after Chinese New Year holidays, to hear submissions of parties should there be any objection to the proposed joint trial.

[8] On 7 February 2019, the Attorney General, leading the prosecution however informed the Court that a ruling on the issue of joinder would not be necessary as he was proposing not to proceed on the three new charges and asked for an order that the accused be granted a discharge not amounting to an acquittal on these three charges, since the prosecution would file these charges before the Sessions Court instead. The defence did not object. I then ordered the DNAA of the accused on these three new charges.

[9] The Attorney General then raised another matter which immediately became contentious. The Attorney General wished to withdraw the transfer certificates that had been previously issued under s 418A of the CPC and s 60 of the MACC Act to transfer the seven charges to the High Court on 4 July 2018 and 8 August 2018.

[10] In essence, the withdrawal was stated by the Attorney General to be done out of abundance of caution in order to avoid any possible constitutional argument that the t