As such, the High Court should have given effect to a notice of discontinuance filed by the prosecution in a case in Kuantan last year, the Court of Appeal ruled today.

“Under Article 145(3) of the constitution, the AG has been given discretion in the conduct of criminal proceedings,” Justice Hanipah Farikullah said in her ruling.

That provision states that the AG can exercise his discretion to institute, conduct or discontinue any proceedings for an offence in criminal courts.

Sitting with Hanipah were Justices Hadhariah Syed Ismail and Hashim Hamzah.

The three-member appeals court panel was hearing an appeal brought by the prosecution from a decision by the High Court compelling the prosecution to proceed with an appeal.

Ahmad Syameer Ahmad Taufek, 32, was tried and, on Feb 1, 2021, acquitted by the magistrates’ court of a charge of receiving stolen property.

On Feb 8, 2021, the prosecution filed its notice of appeal from that acquittal. However, on Oct 13, 2021, it filed a notice to discontinue the appeal.

On Nov 1, 2021, Syameer filed a motion in the High Court seeking to have the appeal heard despite the notice of discontinuance.

The motion was allowed by the High Court on Feb 28 last year.

Justice Zainal Azman Ab Aziz said the appeal must proceed as Syameer, facing similar charges in other parts of the country, was hoping to use the judgment as a precedent in several other magistrates’ courts.

Zainal said the court retained the power to hear the appeal despite the prosecution’s intention to withdraw it.

He said his ruling was based on the cases of PP v Datuk Harun Idris & Others (1976) and Sundra Rajoo Nadarajah v the foreign ministry (2021).

“This court is also relying on Sections 310, 312(2) and 316 of the Criminal Procedure Code (CPC) to continue hearing the appeal, although the prosecution has expressed that it no longer wants to pursue the matter,” he had said in a 16-page judgment.

At the outset of today’s proceeding, Hanipah noted that the question before the Court of Appeal was whether a court could proceed to hear a criminal appeal despite the prosecution’s intention to discontinue it.

Syameer’s lawyer, Asiah Abdul Jalil, answered in the affirmative.

Deputy public prosecutor Dusuki Mokhtar, however, said the CPC provisions relied on by Zainal could not override the AG’s discretion in criminal cases, which is conferred by the constitution.

“The AG’s power as public prosecutor under Article 145(3) is consistent with a long line of authorities,” said Dusuki, who was assisted by Parveen Hameedah Natchiar.

In today’s ruling, Hanipah also said Syameer should have challenged the notice of discontinuance through a judicial review, not by way of a notice of motion.

She said a seven-member Federal Court bench had in 2021 held that the AG’s discretion under Article 145(3) was not absolute or unfettered.

Chief Justice Tengku Maimun Tuan Mat, who delivered the apex court judgment, said the AG’s discretion was amenable to judicial review in appropriate, rare and exceptional cases.

In that case, the Federal Court allowed Sundra Rajoo’s judicial review on the ground that he enjoyed immunity from prosecution for acts done in his capacity as director of the Asian International Arbitration Centre.