AG has full power to discontinue prosecution, appeals court says in setting aside High Court order

PUTRAJAYA: The Attorney General has the discretion to discontinue any criminal proceeding, the Court of Appeal ruled on Thursday (March 30), setting aside a High Court order that compelled the prosecution to proceed with its appeal in a criminal case.

The prosecution's appeal was allowed by a three-member bench of the Court of Appeal comprising Justices Datuk Hanipah Farikullah, Datuk Hadhariah Syed Ismail and Datuk Hashim Hamzah.

In delivering the court's unanimous decision, Justice Hanipah said under Article 145(3) of the Federal Constitution, the Attorney General has the discretion to discontinue any criminal proceeding in criminal cases.

Therefore, she said the notice of discontinuance filed by the prosecution to drop its appeal in Ahmad Syameer Ahmad Taufek's case must be given effect by the court.

Article 145(3) of the Constitution states that the AG shall have the power, exercisable at his discretion, to institute, conduct, discontinue any proceedings for an offence.

Justice Hanipah said the provisions under Sections 310 and 313 of the Criminal Procedure Code (CPC) did not apply to Ahmad Syameer's case.

Ahmad Syameer, 32, was charged with retaining stolen property but was acquitted by the Magistrate’s Court in Kuantan on Feb 1, 2021. The prosecution filed a notice of appeal to the High Court in Kuantan on Feb 8 the same year but did not file any written submission thereafter.

On Oct 13, 2021, the prosecution filed a notice of discontinuance of its appeal. At the same time, Ahmad Syameer's lawyer filed a notice of motion on Nov 1 the same year seeking the High Court to proceed with the appeal.

On Feb 28, 2022, the High Court allowed Ahmad Syameer's application for the appeal to proceed and rejected the notice of discontinuance of the appeal filed by the prosecution. This prompted the prosecution to appeal to the Court of Appeal.

Earlier, Deputy Public Prosecutor Datuk Dusuki Mokhtar argued that the provisions in the CPC that the High Court judge relied on could not override the AG's discretion in criminal cases conferred by the constitution.

He said the AG's power to institute, conduct or discontinue any proceedings for a criminal offence is consistent with a long line of case law authorities.

Meanwhile, Ahmad Syameer's lawyer Asiah Abd Jalil argued that Sections 310 and 313 of the CPC give the power to the court to proceed with the appeal.

In his judgment, High Court judge Datuk Zainal Azman Ab Aziz held that the High Court still has the power to proceed with the appeal although the prosecution had filed the notice of discontinuance of its appeal.

He relied on Sections 310, 313 and 316 of the CPC to continue to hear the appeal although the prosecution expressed that it did not intend to pursue the matter. - Bernama

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