PUTRAJAYA: The Court of Appeal has dismissed an appeal by former Penang chief minister Lim Guan Eng, his wife Betty Chew and businesswoman Phang Li Koon to strike out their corruption charges involving a foreign workers' hostel project worth RM11.6mil.
The dismissal meant that the trio will have to stand trial on the charges against them.
The unanimous decision by a three-judge panel chaired by Justice Azman Abdullah opined that double jeopardy did not occur in the present case.
Other judges on the panel were Justices Noorin Badaruddin and Mohd Radzi Abdul Hamid.
Justice Noorin, who read the decision, said the panel were satisfied that the second proceedings against the three did not amount to a second prosecution of the same offence within the meaning of Article 7(2) of the Federal Constitution or Section 302 of the Criminal Procedure Code.
Article 7(2) touches on the protection of individuals from double jeopardy.
Section 302 is also tied to the same principle, stating that a person once convicted or acquitted must not be tried again for the same offence.
"As we have explained, the offences in the present proceedings are distinct in law and in fact from those before the subject matter of the earlier prosecution.
"Accordingly, the plea of autrefois acquit, autrefois convict, and estoppel cannot succeed," she said.
The judge added that the court must also give due recognition to the wide prosecutorial discretion vested in the public prosecutor under Article 145 (3) of the Federal Constitution.
"While there may be some overlap in the surrounding investigations conducted by the Malaysian Anti-Corruption Commission (MACC) in 2016, overlap of investigations does not equate to identity of offences.
"The Constitutional prohibition is directed against a second trial of the same offence, not against a second trial arising from the same investigation," she said.
The court found that although Lim had been acquitted and discharged after the prosecution withdrew the earlier charges, there had been no judicial determination on issues relating to the workers' hostel project.
There had also been no determination on payments allegedly made through Excel Property Management & Consultancy Sdn Bhd or monies allegedly received by Chew.
The appellate court however acknowledged concerns raised by the appellants regarding fairness as Lim had undergone a lengthy criminal trial involving 25 witnesses before facing fresh charges arising from the same MACC investigation.
“The appellant's complaint is neither frivolous nor devoid of substance.
“The factual material underlying the present charges appeared to have been substantially available to investigators and prosecutors during the earlier proceedings," Justice Noorin said.
Lim, Chew and Phang filed an application on May 26, 2023 to strike out the corruption and money laundering charges.
They argued that the prosecution used evidence from a previous case involving the purchase of a bungalow by Lim on Jalan Pinhorn, even though he was acquitted and discharged in 2018.
On May 3, 2024, the Penang High Court dismissed their application to strike out charges, stating that the doctrine of autrefois acquit or the rule against double jeopardy argued by the defence did not apply as it did not meet the requirement.
According to the charges, Lim, as a public officer holding the position of Penang Chief Minister and chairman of the Penang Development Corporation tender board, was alleged to have used his position to receive a bribe of RM372,009 for his wife through Excel Property Management & Consultancy Sdn Bhd.
He is accused of committing the offence by acting to ensure Magnificent Emblem Sdn Bhd was awarded the Invitation to Propose a Workers' Settlement on Lot 631, Mukim 13, Juru, Seberang Perai Tengah and part of Lot 282, Mukim 13, Batu Kawan, Seberang Perai Selatan in Penang, valued at RM11,610,000, in which Chew had an indirect interest.
Lim, who is the Bagan Member of Parliament, allegedly committed the offence between Aug 19, 2013 and March 3, 2016 at the Chief Minister's Office, Level 28, Komtar in George Town, Penang.
He was charged under Section 23(1) of the MACC Act 2009, which carries a maximum prison sentence of 20 years and a fine of not less than five times the value of the gratification or RM10,000, whichever is higher, upon conviction.
Phang was charged with allegedly conspiring to commit the offence with Lim at the same place and date.
Meanwhile, Chew is facing three money laundering charges for allegedly receiving RM372,009 from Excel Property Management & Consultancy Sdn Bhd, which was credited into her Public Bank Bhd account.
She is accused of committing the offences between Oct 7, 2013 and Aug 4, 2014; between Sept 3, 2014 and Aug 11, 2015; and between Sept 4, 2015 and March 3, 2016 at Public Bank Bhd, Taman Melaka Raya Branch, Melaka.
The charges were framed under Section 4(1)(a) of the Anti-Money Laundering and Anti-Terrorism Financing Act 2001, which is punishable by a fine not exceeding RM5mil or imprisonment of up to five years, or both, upon conviction.
