Tan Sri Datuk Seri Panglima Musa bin Haji Aman (Tan Sri Musa Aman), through his lawyers, had filed two applications in the High Court of Kuala Lumpur.

One of the applications was to strike out all the charges against the client (Kuala Lumpur High Court Criminal Application No.: WA-44-46-02/2020), whereas the other application was to refer constitutional questions to the Federal Court (Kuala Lumpur High Court Criminal Application No.: WA-44-47-02/2020).

The striking out application was filed on 12 February 2020, supported by an Affidavit in Support.

Both applications were initially scheduled to be heard on 23 and 24 April 2020. However, due to the Movement Control Order, the hearing of both applications was postponed. The case was called again today.

Striking out application

This application filed in Court was a process under law. To support the application, we presented the facts in detail in Tan Sri Musa Aman’s Affidavit in Support. Important and relevant documents, including those from the Hong Kong Independent Commission Against Corruption (ICAC), were enclosed in the affidavit.

In addition, we filed an Affidavit made by the former Attorney General Tan Sri Datuk Seri Panglima Abdul Gani bin Patail (Tan Sri Abdul Gani).

The facts supporting the application are summarised here for convenience.

Abuse of legal process

Tan Sri Musa Aman was previously investigated by ICAC dan the Malaysian Anti-Corruption Commission (MACC) between 2008 and 2011. Throughout the investigations, ICAC and MACC cooperated with each other and conducted their respective investigations professionally.

After a thorough investigation, MACC found that there were no elements of corruption and that the monies investigated were political donations. This was verified by the former MACC Investigation Division Director Datuk Mustafar Ali and informed to ICAC by letter on 9 September 2011.

After their own investigation, ICAC issued a letter dated 22 December 2011 to our client, stating that the investigation against our client had been completed and no further action would be taken against him.

The results of the investigation by ICAC clearly showed that our client was not involved in any corrupt activities. To date, there have been no further investigations by ICAC against our client.

In respect of the investigation by the MACC, the result of the investigation was rigorously examined by the Attorney General Chambers (AGC) in 2012. The AGC found that our client was not involved in any corruption or money laundering offences.

The investigation results as well as the decision to not proceed, or to not take any further action against our client, were deliberated on by the former Attorney General, Tan Sri Abdul Gani; former Prosecution Division Head, Dato’ Sri Tun Abd Majid bin Dato’ Haji Tun Hamzah; former MACC Chief Commissioner, Tan Sri Abu Kassim Mohammad; and former MACC Investigation Division Director, Datuk Mustafar Ali, among others.

The outcome was also accepted by MACC’s Anti-Corruption Advisory Board. This clearly showed that the decision was carefully considered and had gone through existing legal channels.

In addition, this issue was raised in Parliament where Dato’ Seri Nazri Aziz explained the AGC’s findings that the elements of corruption had not been made out against our client. The donations received were donations to Sabah UMNO and were not for the personal use of Tan Sri Musa Aman.

Was the prosecution in November 2018 a political persecution?

After the 14th General Election on 9 May 2018, Tan Sri Musa Aman was properly appointed the Sabah Chief Minister. However, 48 hours later, Tuan Yang Terutama Yang di-Pertua Negeri Sabah (TYT) subsequently appointed another person to become the Sabah Chief Minister to replace Tan Sri Musa Aman.

TYT’s action and the appointment of the second Chief Minister have been disputed as invalid, and Tan Sri Musa Aman’s on-going civil case is now at the Federal Court.

In the early stages of the civil case, the High Court of Kota Kinabalu had fixed 7 November 2018 to deliver a decision (Civil Case Decision).

ICAC and MACC had already found that Tan Sri Musa Aman did not commit any corruption offences after lengthy investigations. However, the authorities, for reasons known only to them, made the decision to arrest and prosecute Tan Sri Musa Aman two days before the Civil Case Decision.

This action directly or indirectly provided a political advantage to Tan Sri Musa Aman’s political foes. Does this not indicate that the prosecution against Tan Sri Musa Aman was mala fide and a form of political persecution?

Suspicion also arose considering that the prosecution in November 2018 was based on the same evidence and facts as the thorough corruption investigations completed by two independent investigating bodies, ICAC and MACC.

These events raised a key question: What was the actual motive to prosecute Tan Sri Musa Aman in November 2018?

Political persecution and mala fide prosecution were raised in the striking out application because this incident revealed the possibility of an abuse of the legal process.

If the case were to continue, it would expose the government to a suit for malicious prosecution by Tan Sri Musa Aman.

This fact was reinforced on 5 March 2019 when the Deputy Public Prosecutor through the statement of facts favourable to the defence under section 51(A)(1)(c) of the Criminal Procedure Code, confirmed the decision made by Tan Sri Abdul Gani.

It must be stressed that from a legal perspective, a decision made by the Attorney General as the Public Prosecutor has a certain weight that cannot be taken lightly or changed arbitrarily in the absence of strong grounds.

This is because every decision made by the Public Prosecutor will impact individuals who may be subjected to investigations or prosecutions. I refer to the Court of Appeal’s statement in Harun Abdullah v PP [2009] 4 CLJ 717: “It will be a dark day if a Public Prosecutor’s words have no finality and may be ‘broken’ without any compunction.”

A professional Public Prosecutor must be consistent and should defend previous decisions that had been made following due process. This applies even more so where the prosecution in November 2018 was not based on new facts, but on the same facts that had already been investigated and decided on by ICAC and MACC. Both found no elements of corruption.

It is important to reflect on the integrity and professionalism of not only the office of the Public Prosecutor, but also the AGC as a whole. The decision by the current Attorney General Tan Sri Idrus bin Harun (Tan Sri Idrus Harun) is fair and correct in law.

Charges against our client were groundless because the relevant monies were political donations and funds

Regarding the monies which were the subject of the prosecution, they were explained at the previous investigations. The monies were political donations given by political party supporters, donors, members of the public, and central Barisan Nasional/UMNO for general and by-elections, activities, and other expenditures of Sabah’s Barisan Nasional/UMNO. All the relevant and related documents were handed to MACC.

At all material times, the political donations were not related to the award of any Sabah state projects or to timber concessions, nor were they given on a quid pro quo basis.

The giving or receiving of political donations is not an offence in Malaysia. This was confirmed by MACC in a statement made by the then MACC Deputy Commissioner (Operations) Datuk Seri Azam Baki. He confirmed that the giving and receiving of political donations were not offences and that MACC had no jurisdiction over political donations in Malaysia, as reported in the New Straits Times on 7 October 2017.

Based on the reasons above, we believe that the Attorney General Tan Sri Idrus Harun and the line of Deputy Public Prosecutors who handled this case reviewed and considered objectively our application that had been filed in the Court, taking into account all areas of the law and aspects of justice.

The prosecution had professionally informed the High Court on 9 June 2020 that they were withdrawing all charges against Tan Sri Musa Aman pursuant to section 254 of the Criminal Procedure Code.

The learned High Court Judge Dato’ Muhammad Jamil bin Hussin, after hearing the defence submissions on the background of the case and settled legal provisions, exercised his discretion to order that Tan Sri Musa Aman be discharged and acquitted of all the charges.

The defence then withdrew the striking out application due to the Judge’s order.