Agc Must Seriously Pursue Appeal Of Rosmah S Acquittal

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On Oct 4, 2018 many Malaysians were extremely delighted to hear and find out that Rosmah Mansor was finally charged in court.
She was then facing 12 charges of money laundering involving RM7,097,750 and five charges of failing to declare her income to the Inland Revenue Board (IRB). She was accused of committing the offences between Dec 4, 2013 and June 8, 2017.
However, when the Kuala Lumpur High Court discharged and acquitted her today, people seemed overly upset. The joyful feeling in 2018 has switched to sorrow.
The news of Rosmah’s acquittal came into the picture while many Malaysians have been receiving a slew of “devastating” reports such as the dismissal not amounting to an acquittal (DNAA) verdict granted to former prime minister Najib Abdul Razak and former treasury secretary-general Mohd Irwan Serigar Abdullah.
ADSThis was over their six criminal breach of trust (CBT) charges involving RM6.6 billion.
There was also the recent appointment of Musa Aman as the new Sabah governor.
My interest in the issue of Rosmah’s acquittal is only confined to the legal dimension of it.
Was judge K Muniandy right in granting an acquittal, having allowed Rosmah's application to have all charges against her quashed?
Since the prosecution intends to appeal against the decision it would be best to wait for an appellate ruling on such a "drastic" decision.
The court of appeal would either affirm or reverse the said verdict of a High Court judge.
Rosmah’s full acquittal came about when the court held that all the criminal charges against her were found to have failed to disclose the essential elements of the alleged offences despite the prosecution having already called two witnesses to testify.
Anyway, the court granted her application, filed in September 2023, to quash such defective charges.
Charge must be clear
In criminal law, a charge is essentially a notice to the accused person of the matter he is accused of.
It is also information to the court of the matters to which the evidence is to be directed. Be that as it may, the charge must be conveyed to the accused with sufficient clarity and certainty.
In Public Prosecutor v Teoh Choon Teck [1963], Hepworth J said: “If there be any one principle of criminal law and justice clearer and more obvious than all others, it is that the offence imputed must be positively and precisely stated, so that the accused may certainly know with what he is charged, and be prepared to answer the charge as best he may."
ADSDefective charge curable?
The question now is - is a defective charge curable under the law? There are two schools of thought on this issue.
One school tends to view that a defective charge would be curable under Section 422 of the Criminal Procedure Code (CPC) unless such a defective charge has occasioned a failure of justice.
This school also maintains that by virtue of Section 156 of the CPC, any error in the charge would not vitiate the trial unless the accused is misled by such an error.
The other school, on the contrary, is of the view that not all errors in the charge are curable under the law.
Another fascinating point in this case, which may be possibly canvassed by the prosecution in the appeal, would be - was the High Court judge erred in law in resorting to a drastic measure quashing the defective charge when the prosecution was not even given a chance to complete its case by calling all its witnesses?
As a general rule, the court normally gives the prosecution the opportunity to complete its case by adducing all the necessary evidence.
Assuming the High Court judge was right in holding that the charge against Rosmah was defective or groundless, would it be proper for him to grant her a complete discharge and acquittal instead of a DNAA?
Let us wait for the appellate ruling. - Mkini
MOHAMED HANIPA MAIDIN is a former deputy law minister.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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