Senior federal counsel Ahmad Hanir Hambaly said the AG, who also serves as the public prosecutor, was empowered under Article 145(3) of the Federal Constitution and Section 254 of the Criminal Procedure Code to make the application.
He said the move was intended to allow the Malaysian Anti-Corruption Commission (MACC) to conduct further investigations into the case, following the receipt of six representations made on Zahid’s behalf.
“All accused persons have the right to send in representations, and it is the AG’s duty to accept them and act accordingly,” he submitted, opposing the Malaysian Bar’s appeal for leave to challenge the AG’s decision via judicial review.
Hanir said the AG, as public prosecutor, has unfettered discretion in the conduct of criminal cases and is even empowered by law to withdraw criminal charges at any time before judgment is delivered.
The AG was, therefore, entitled to seek a DNAA for Zahid, he added.
“As such, the public prosecutor’s decision (to pursue the DNAA application) was not irrational and unreasonable.”
Hanir, who is appearing for the AG, also argued that the Bar’s legal challenge was not amenable to judicial review, as the case did not involve rare and exceptional circumstances.
In a 2021 case involving the Asian International Arbitration Centre’s former director N Sundra Rajoo, a seven-member Federal Court bench ruled that the AG’s discretion to institute, conduct or discontinue criminal proceedings was not absolute, and could be challenged in rare and exceptional circumstances.
Lawyer Hisyam Teh Poh Teik, appearing for Zahid, agreed with and adopted Hanir’s submissions.
He said Justice Collin Lawrence Sequerah, who presided over the case, had given due consideration to the reasons advanced by the prosecution.
He said Sequerah had taken into account the prosecution’s need for additional time to review Zahid’s representations and interview witnesses, as well as other cogent reasons advanced in support of the DNAA application.
“These are the findings of the criminal court that have not been set aside by a higher court,” the lawyer said.
Hisyam said the law obliges the AG to conduct a fair trial and that Zahid had a legitimate expectation to one; otherwise, there would be a failure of justice.
Lawyer Steven Thiru, appearing for the Malaysian Bar, submitted that Zahid appears to have been accorded preferential treatment.
“Our application for leave for judicial review should be allowed as the DNAA obtained was irrational and unreasonable.”
Thiru said it was for the trial court to decide whether Zahid should be convicted or acquitted, adding that the AG should not be allowed to take an extra-judicial step such as classifying the case as “NFA” (requiring no further action), allegedly due to insufficient evidence.
The three-member bench, chaired by Justice Faizah Jamaludin and comprising Justices Lim Hock Leng and Nadzrin Wok Nordin, reserved judgment in the appeal.
On Sept 4, 2023, Sequerah granted Zahid a DNAA on 47 charges of corruption, money laundering, and criminal breach of trust, pending further investigations by MACC.
This was despite his earlier ruling that the prosecution had established a prima facie case against Zahid. At the time the DNAA was granted, the case had already reached the defence stage, with Zahid and 14 other defence witnesses having testified.
On June 27, 2024, the Kuala Lumpur High Court dismissed the Bar’s application for leave to commence judicial review proceedings to challenge that decision, giving rise to the present appeal.
In a statement on Jan 8, the AG’s Chambers said the prosecution found insufficient evidence to proceed with the charges following MACC’s probe.