September 5, 2018
WHILE Finance Minister Lim Guan Eng has been freed of his corruption charges, the jury in the court of public opinion however have yet to agree that he is innocent.
The argument by his detractors is that his acquittal was peculiar, given how the court basically one-upped the already sweet deal that the Attorney-General’s Chambers (AGC) had tried to strike.
Lim’s acquittal was a result of the Penang High Court rejecting the AGC’s request to withdraw the charges – imposed in 2016– and for Lim to be discharged not amounting to an acquittal (DNAA).
The need for a finality, remarked Judge Datuk Hadhariah Syed Ismail, was the main reason why she decided to give Lim, who was accused of abusing his position to buy an undervalued bungalow in Penang, a full acquittal.
“The charges cannot be hanging over the head of the accused indefinitely. There must be finality in this case. There must be a stop, no comma, especially in criminal cases. After studying the case as a whole and the very long time to get a decision, I order that both the accused be discharged and acquitted,” she said.
Basically, the court freed Lim and the other accused, businesswoman Phang Li Koon, who allegedly abetted him because the case had gone on for too long.
But those who closely followed the case would have realised that since Lim and Phang were charged on June 30, 2016, the duo have had the court postponed their trial – which was supposed to begin on March 27, 2017 – on three occasions by initiating a convoluted legal bid to annul a section of a law that had implicated them.
And after that bid failed, the duo still managed to postpone their trial after it began on last March 26, with Lim arguing that he needed to prepare for the May 9 general elections, for which the date had yet to be announced.
Even after Pakatan Harapan’s shock victory at the polls, Lim had on May 21 managed to have his trial postponed for one last time, saying that he was waiting for the new attorney-general to review his charges. By the way the new AG Tommy Thomas was a lawyer for Lim.
It was thus a tad ironic that the court had freed the very individuals who were responsible for dragging the case for the past three years for the simple reason that it needed finality after all the time taken.
Below is the complete chronology of the case for Lim and Phang:
June 30, 2016: Lim and Phang charged, with the court granting them bail of RM1 million and RM200,000 respectively.
September 30, 2016: Penang High Court sets Lim’s case management for December 6, 2016. The original date was September 22 but was postponed after Phang appointed new lawyers.
December 6, 2016: High Court set 34 days from March 27, 2017, to hear the case.
January 6, 2017: Lim filed a motion to declare Section 62 of the Malaysian Anti-Corruption Commission Act as unconstitutional. Phang filed a similar motion on January 4.
(Section 62 deals with the delivery of the defence’s statement. It states that the defence’s statement and documents to be tendered as evidence must be delivered before the commencement of the trial.)
Lim and Phang wanted Section 62 to be declared unconstitutional, claiming it is against the tenet of innocent unless proven guilty.
Judge Hadhariah Syed Ismail fixed February 7, 2017, to hear the two motions.
February 7, 2017: High Court set March 7 for a decision on Lim and Phang’s bid.
March 7, 2017: High Court dismissed Lim and Phang’s motions.
March 20, 2017 (First postponement): Lim and Phang’s trial which was supposed to begin on March 27 postponed because the duo had filed an appeal over High Court’s dismissal of their motions. Court allowed it and set April 25, 2017, for case management.
Lim’s lawyer Gobind Singh Deo said that should the Court of Appeal allow the appeal, it will affect any defence during the trial. “In this situation, it’s better to have the Court of Appeal hear and decide on the issue before this (corruption) case takes place.”
April 25, 2017 (Second postponement): High Court postpones the trial pending a hearing by the Court of Appeal to decide if Section 62 of the MACC Act should be declared unconstitutional. Hearing of the appeal fixed for April 27.
July 26, 2017 (Third postponement): High Court postpones case management to November 14, 2017. The reason? Because the Court of Appeal had set the trial of Lim and Phang’s bid for August 7, 2017.
Lim’s lawyer, R.S.N. Rayer, requested the postponement as there could be a further appeal by the prosecution or defence.
August 7, 2017: The Court of Appeal rules that Section 62 of the MACC Act is unconstitutional.
The panel held that Section 62 is ultra vires when read against Article 5(1) and 8(1) of the federal Constitution. Section 62 requires accused persons to disclose their defence statements to the prosecution before the beginning of the trial.
However, Article 5(1) states that no person shall be deprived of his life and personal liberty save in accordance with law, while 8(1) states for equal protection under the law.
November 14, 2017 (Fourth postponement): Lim and Phang’s trial postponed to March 15, 2018, because the High Court cannot proceed with the case, which was supposed to start today, until the Federal Court decides on an appeal of a Court of Appeal decision that the duo need not file their defence.
December 14, 2017: Five-man bench of the Federal Court overturns Court of Appeal’s ruling over the constitutionality of the Section 62 of the MACC Act.
January 10, 2018: High Court sets aside 23 days from March 26 to hear the case against Lim and Phang. Hadariah made the order following the Federal Court’s decision.
March 26: The trial finally begins. Both pleaded not guilty.
April 9 (Fifth postponement): High Court postponed Lim and Phang’s trial following a defence application that he needed to prepare for GE14.
Hadhariah allowed the postponement following an application by Lim’s lead counsel Gobind Singh Deo to adjourn the trial.
Deputy Public Prosecutor Datuk Masri Mohd. Daud said while he understood Gobind’s request he felt that the case could still proceed since the Election Commission had yet to fix the date for the elections.
Hadhariah fixed May 10 for case management but it was postponed following Pakatan Harapan’s victory at the May 9 polls. News reports stated that the trial was supposed to resume on May 21.
May 21 (Sixth postponement): Trial postponed to July 30 for mention pending a review of the charges.
July 30: High Court fixed September 3, 2018 for the prosecution to decide if they will withdraw (or proceed with) corruption charges against Lim and Phang.
This is after the prosecution, led by Deputy Public Prosecutor Datuk Abdul Rashid Daud, requested a month’s time to deliberate the letter of representations submitted by the accused to review the charges.
It was disclosed at the proceedings that Lim’s lawyer had submitted a representation to request for a review of the charges to the AGC on July 6.
August 28: AG Tommy Thomas recuses himself from Lim and Phang’s case because of conflict of interest since he had previously represented Lim and is also a friend of Lim’s.
September 3: Lim and Phang acquitted by the High Court. Hadhariah said she did not agree with the prosecution’s request for the charges to be withdrawn and both accused to be given DNAA.