Wednesday, December 8, 2021

Appeals court dismisses bid by former Felda chairman, 31 others to challenge MACC compounds

A three-man bench says there is no merit to the appeals by Shahrir Abdul Samad, Pontian MP Ahmad Maslan and 30 others.

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The Court of Appeal today dismissed the appeals by 32 individuals including former Felda chairman Shahrir Abdul Samad and Pontian MP Ahmad Maslan to challenge the compound notices issued by the Malaysian Anti-Corruption Commission (MACC) over charges of receiving funds linked to 1MDB.

A three-member bench led by justice Suraya Othman unanimously dismissed their appeals on the grounds that there was no merit to them.

The 32 individuals had appealed against the decision of the High Court in denying them leave to commence a judicial review against MACC’s decision to issue them the compound notices.

Suraya said the appellants in challenging the offer to a compound made by MACC, were in effect challenging the discretion of the public prosecutor to consent and to authorise the issuance of the compound offer, thus directly challenging the public prosecutor’s authority under Article 145(3) of the Federal Constitution and Section 376 of the Criminal Procedure Code.

“The issuance of the offer to the compound was made under Section 92(1) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act (AMLATFPUAA) and under that section, before an offer for a compound can be made, the consent of the public prosecutor must be obtained.

“The appellants, after receipt of the offer to compound, can decide either to accept the compound offer or to reject it. If the appellants accept the compound offer under Section 92(4) of AMLATFPUAA, no prosecution can be initiated against them by the public prosecutor.

“If they reject the offer, then under Section 92(3) of AMLATFPUAA, the public prosecutor may institute prosecution which will result in charges being presented against them in the criminal court,” Suraya said at the virtual proceedings today.

The other two judges were Darryl Goon Siew Chye and Mariana Yahya.

Suraya further said it was trite that the power of the public prosecutor to charge any person could be exercised by him at any time.

“In our present appeals, no charges have been preferred against any of the appellants. At this juncture, we are of the view that it is premature on the part of the appellants to challenge the power of the public prosecutor in the exercise of his discretion to authorise the respondents (MACC and the MACC chief commissioner) to issue the offer to compound the offence under AMLATFPUAA.

“Based on the above reasons, the appeals are hereby dismissed with no order as to costs and the decision of the High Court, dated Feb 26, 2020, is affirmed,” she said.

Lawyers Mohamed Shahrul Fazli Kamarulzaman, Mohamed Baharudeen Mohamed Ariff and Mohd Shahril Madisa represented the appellants, while senior federal counsel Ahmad Hanir Hambaly acted on behalf of MACC.

On Feb 26, 2020, the High Court dismissed an application by the 32 individuals to obtain leave for a judicial review after the Attorney-General’s Chambers raised a preliminary objection on the basis that the applications were devoid of any prima facie, arguable case, were frivolous, vexatious and an abuse of court process.

Shahrir and Ahmad, as well as the 30 other individuals, filed the judicial review applications separately in November and December 2019.

In the applications, all 32 sought to declare the decision and action of the two respondents in compounding them via the offer to compound offence, dated Oct 7, 2019, as ultra vires, invalid, cancelled and unable to be enforced.

The applicants also sought to cancel the decision and action of the second respondent in compounding them apart from applying for an order to prevent MACC from enforcing the compound or continuing the prosecution against them.

They also sought a declaration that the statement of the first respondent (the MACC chief commissioner) during a media conference on the decision to issue the compound notice against three of the applicants was to recover 1MDB funds said to belong to the people as premature, wrongly conceived and an abuse of the civil service.

On Oct 7, 2019, then MACC chief commissioner Latheefa Koya, in a media conference, said MACC had issued compound notices to 80 individuals and entities for receiving RM420 million believed to be from 1MDB.

Latheefa said nine individuals and 71 entities, comprising 23 companies, 43 political organisations and five foundations received cheques involving the personal account of former prime minister Najib Razak.

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