Public Prosecutor v ASAT [2024] 2 MLJ 272

Court of Appeal (Putrajaya)

Discretion of the Attorney General cum Public Prosecutor to file against an acquittal

1. The Respondent was charged before the Magistrates’ Court with an offence under section 411 of the Penal Code for dishonestly receiving stolen property.  At the conclusion of the defence case, the Respondent was acquitted and discharged.  Dissatisfied with the acquittal, the Public Prosecutor filed an appeal to the High Court.
2. Subsequently, the Prosecution filed a notice to withdraw the appeal. Despite this, the Respondent applied to the High Court for the appeal to proceed.  The High Court allowed the Respondent’s application and ordered that the appeal hearing continue notwithstanding the prosecution’s withdrawal.
3. Aggrieved by the High Court’s decision, the Prosecution appealed.

1. Whether the Attorney General cum Public Prosecutor has the power to discontinue a criminal appeal filed against an acquittal.
2. Whether the High Court has the power to proceed with and hear a criminal appeal after the Public Prosecutor has decided to withdraw it.

Whether Attorney General cum Public Prosecutor has the power to discontinue a criminal appeal filed against an acquittal.

1. The Court of Appeal held that the Attorney General cum Public Prosecutor (“AG/PP”) has the constitutional and statutory authority to discontinue a criminal appeal filed against an acquittal. This power flows directly from Article 145(3) of the Federal Constitution which confers upon the Attorney General the discretion to institute, conduct or discontinue any proceedings for an offence.  The breadth of this discretion is reinforced by subsection 376(1) of the Criminal Procedure Code which vests in the AG/PP control and direction of all criminal prosecutions and proceedings.
2. The Court of Appeal emphasised that the discretion under Article 145(3) is wide and exclusive. Relying on Karpal Singh & Anor v Public Prosecutor [1991] 2 MLJ 544 and Long bin Samat & Ors v Public Prosecutor [1974] 2 MLJ 152, the Court of Appeal reiterated that the AG/PP’s prosecutorial discretion cannot be substituted or overridden by the judiciary.  Further, citing Bird Dominic Jude v Public Prosecutor [2014] 3 MLJ 745, the Court of Appeal affirmed that an appeal is a continuation of the criminal trial.  Accordingly, an appeal against acquittal forms part of the criminal proceedings contemplated under Article 145(3). The power to discontinue “any proceedings” necessarily includes the power to discontinue an appeal.
3. Although prosecutorial discretion is now recognised as reviewable in rare and exceptional cases following Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 5 MLJ 209, such review requires a formal judicial review challenge and satisfaction of a stringent two-step threshold.  In the present case, no such challenge was mounted.  Therefore, the AG/PP was entitled, in the exercise of his discretion, to withdraw the appeal against the Respondent’s acquittal.

Whether the High Court has the power to proceed with and hear a criminal appeal after the Public Prosecutor has decided to withdraw it.

1. The Court of Appeal held that the High Court has no jurisdiction to proceed with a criminal appeal once the AG/PP has decided to discontinue it.  The High Court had relied on sections 310, 313(2) and 316 of the Criminal Procedure Code (“CPC”) in asserting its power to continue the appeal.  However, the Court of Appeal found that none of these provisions confer authority on the High Court to override a prosecutorial decision to withdraw an appeal.
2. Section 310 of CPC concerns procedural irregularities in filing appeals, section 313 CPC regulates the order of hearing, and section 316 of CPC outlines the powers of the High Court when deciding an appeal. None of these provisions authorise the High Court to sustain or compel continuation of a criminal appeal in the absence of the prosecuting authority.  They operate within the framework of an existing appeal, not in defiance of a lawful discontinuance by the AG/PP.
3. The Court of Appeal stressed that allowing the High Court to proceed with the appeal would amount to an encroachment upon the constitutional powers of the AG/PP and would blur the separation of prosecutorial and judicial functions. In support of this principle, the Court referred to Repco Holdings Bhd v Public Prosecutor [1997] 3 MLJ 681 and Mohd Rafizi bin Ramli v Public Prosecutor [2014] 3 MLJ 114, which caution against judicial intrusion into prosecutorial decisions.
4. Accordingly, when the High Court allowed the Respondent’s application to continue the appeal despite the AG/PP’s notice of withdrawal, it acted beyond its jurisdiction and infringed the constitutional allocation of powers under Article 145(3).

The decision of the Court underscores that no prejudice arises to an accused person when the prosecution withdraws an appeal against acquittal. The acquittal remains valid, and the accused continues to enjoy protection under the rule against double jeopardy. The case therefore strengthens the constitutional position of prosecutorial discretion while maintaining judicial respect for the doctrine of separation of powers.