Najib's DNAA appropriate in circumstances of the case — Hafiz Hassan
JUNE 29 — In the case of Vigny Alfred Raja v PP [2022], the accused was charged in the High Court for being a member of an organised criminal group, an offence under Section 130V of the Penal Code. He pleaded not guilty to the charge.
On the day of his trial and before any evidence was led, the deputy public prosecutor (DPP) informed the court that he would not be continuing with the prosecution of the accused as investigations were still ongoing.
The DPP requested the court to order a discharge not amounting to acquittal (DNAA) of the accused under Section 254 of the Criminal Procedure Code (CPC).
The accused's counsel objected and said the proper order should be a discharge amounting to an acquittal (DAA).
The High Court granted a DNAA on the grounds that: (a) the court had no power to order a DAA without hearing any evidence; and (b) under Article 145 of the Federal Constitution, the power to prosecute or discontinue prosecution was vested in the Attorney General/Public Prosecutor (AG/PP).
The accused appealed to the Court of Appeal (COA), which affirmed the High Court's decision. The COA ruled that the prosecution had good grounds for asking the court to grant a DNAA as: (i) the trial of the case had not started as no witnesses had been called to testify; (ii) the prosecution could not proceed for the time being as the investigation was still ongoing and they would proceed with the trial when they were ready! and (iii) the High Court was right to refuse an acquittal in the absence of any evidence before the court.
The accused further appealed to the Federal Court. At the hearing of the appeal, the DPP informed the apex court that the investigations into the offence with which the accused was charged had been completed and the PP had decided not to proceed with the charge against the accused. The DPP left it to the Court to make what orders it deemed fit in the circumstances of the case.
Pursuant to Section 254(1) and (2) of the CPC, if at any stage of any trial — but before delivery of judgment — the prosecution informed the court that it would not further prosecute the accused upon the charge the accused should be discharged of the charge.
Section 254(3) of the CPC provides that such discharge 'shall not amount to an acquittal unless the court so directs'.
The Federal Court unanimously allowed the appeal. It set aside the decisions of the courts below, granting a DAA to the accused.
The apex court was, however, divided on the interpretation to be accorded to Section 254(3) of the CPC.
Federal Court Judge Zabariah Yusof, who delivered a concurring judgment, ruled that a plain and literal reading of Section 254(3) of the CPC means that any discharge granted by the court under Section 254 is a DNAA.
In order for a DAA, it has to be specifically directed by the court. The opening wordings in the section are clear and unambiguous; hence the court must give effect to their plain and literal meaning.
The court is vested with the discretionary power to direct a DAA of an accused person pursuant to Section 254(3) of the CPC and that such discretion is to be exercised judiciously.
In other words, Section 254(3) does not fetter the discretion of the court in directing a DAA if the circumstances warrant it. (Emphasis added)
The facts and circumstances of the case — the prosecution having informed the court that the investigations had been completed and the PP had decided not to proceed with the charge against the accused — warranted and justified that an order of DAA be granted to the accused.
Lawyer Tan Sri Muhammad Shafee Abdullah speaks to reporters at the Kuala Lumpur High Court Complex on June 20,2025. — Picture by Yusof Mat Isa
Now, compare the above with the order of DNAA of former prime minister Najib Razak in his final SRC International case involving RM27 million.
It must first be said that the circumstances before High Court judge K. Muniandy were different.
The DNAA was the most appropriate order given the circumstances of the case.
It must be recalled that the prosecution had previously sought the court to grant a further extension to allow for the compilation of voluminous trial documents after indicating it was prepared to proceed with trial, following the Attorney General's Chambers (AGC) rejection of a representation submitted by Najib two years ago.
The trial had stalled since 2019.
Given the circumstances, the learned judge said the rule of law was applicable to prevent such a detrimental situation whereby an accused person was saddled with criminal charges with no outcome for an indefinite and indeterminate period.
'The prolonged wait for trial has become a long haul for the accused person, denying him of a timely resolution,' he said.
'This court is also mindful of the prevailing fact that the preferred charges against the accused date back to the offence being committed in the year 2014, now it is 2025, and the case has not taken off for trial.
'By the virtue of these factors, the most appropriate order is for this court to discharge the accused person without acquitting him so he's not saddled with the charges preferred against him,' he added.
More so as unlike in the case of Vigny Alfred Ray, Najib's lawyer Muhammad Shafee Abdullah had suggested to the court to grant his client a DNAA in the interest of justice.
The order of DNAA was accordingly appropriate — it did not prejudice the prosecution as they would be free to re-charge Najib when ready to proceed with the case while the accused would not be saddled with criminal charges with no outcome for an indefinite and indeterminate period.
So why the criticisms against Najib's DNAA?
Understand the circumstances of a case. Every case turns on its facts and circumstances. Only then can an order be appropriate or otherwise.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
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