Malaysians Against Death Penalty and Torture (Madpet) is appalled by the news that former deputy finance minister and Pontian MP Ahmad Maslan on 29 September was acquitted of charges of money laundering and giving a false statement against him after he agreed to pay a ‘compound’ of RM1.1m (Edge Market, 29 September 2021).
Ahmad Maslan has been an Umno MP since 2008 and was deputy finance minister (2013-2015) and deputy international trade and industry minister. He was appointed the secretary of Umno in March 2020 and was also the secretary general of Barisan Nasional since January 2021.
Madpet notes that Ahmad Maslan in Parliament allegedly admitted receipt of RM1.1m, not RM2m, and as such that was an admission of guilt (Malaysiakini, 30 September).
The compound offer and payment of RM1.1m as such is unjust. By paying the compound, he avoided conviction – hence avoided being disqualified as an MP and even being barred for period while in prison plus several more years after that from being able to contest to become an MP.
Compound is offered to a “person reasonably suspected of having committed the offence” (Section 92 of the anti-money laundering act), and such acceptance and payment are akin to an admission of guilt.
Now the applicable law, in this case the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001, states that a “compound sum must be such amount not exceeding fifty per centum of the amount of the maximum fine for that offence” (Section 92).
The tainted, ‘dirty’ or illegally obtained amount – as admitted by him – of RM1.1m ought to have been forfeited, and justly the compound offer, which is a ‘penalty’, should not include that ‘dirty money’ and should be at least half of the maximum fine, or roughly about RM4m. The maximum fine for the first offence is RM5m and the maximum fine for the second offence is RM3m.
Now, it seems in Ahmad Maslan’s case, it looks like there was no penalty – simply a return of the money he admitted he received in connection with the first charge. Was there even no compound offer with regard to the charge of lying? The public prosecutor and the government must provide clear a explanation.
Is the administration of criminal justice independent, free from political or economic interference?
The concern is about the independence and competence of law enforcers, prosecutors and judges in Malaysia. Can the government of the day influence or determine who gets investigated or not, who gets charged, who gets their cases discontinued, who gets acquitted or even pardoned?
If one is guilty and repents, one should plead guilty, and in sentencing, the court will takes into account mitigating factors like repentance, return of the money or the fruit of the crimes and other matters.
Compounds, on the other hand, are the decision of the administration, and it is best that when it comes to sentencing or even offers of compound, that decision is left to the independent judiciary. If it is left to law enforcers like the police and the Malaysian Anti-Corruption Commission or even prosecutors, these compound offers may not take into consideration just factors like income and the fact of return of the benefits of the crime. They may even take into account wrong issues, including whether one is a minister or MP.
Discontinuance and discharge – it should never be acquittal
The prosecution charges a person based on a belief that there exists sufficient evidence to prove a crime beyond reasonable doubt. New evidence or disappearing evidence when witnesses change their testimony makes it just to discontinue proceedings, until maybe later when stronger evidence is found, enabling the accused person to be charged again.
As such, the law provides a discontinuance, which results in the accused being discharged. The law clarifies that this discharge does not amount to an acquittal. However, current law retains the discretion for judges to order an acquittal, but really it ought to be used in most exceptional cases.
Acquittals in mid-trial, without a total evaluation of all relevant evidence, must end. Judges, being human and not infallible, can never ascertain innocence at that stage. It is unjust that even when strong proof of guilt later emerges, the person who was acquitted at mid-trial person cannot ever be charged again. As such, a criminal goes scot free simply because he was acquitted.
Acquittal means that never again can Ahmad Maslan be charged with “the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made” (Section 302 of the Criminal Procedure Code).
Guilt or innocence should only be determined after a full and fair trial, but now, with this discontinuance and acquittal, instead of just a discharge following the discontinuance, more so of a significant politician and MP from the same party as the current prime minister, doubts can arise whether the Malaysian judiciary is indeed Independent.
Madpet takes the position that when there is a mid-trial discontinuance, the accused must only be discharged and not acquitted. An acquittal should only be available at the end of a trial, after the judge has evaluated all evidence and determined that a person is not guilty.
Whether a prosecutor that discontinued proceedings has plans to re-charge in future should not be considered, reasonably
In this case, the media reported that the judge decided to acquit, amongst other reasons, because the prosecution “confirmed that Ahmad would not be made to face the same charges”.
The opinion or position of the prosecution today and tomorrow may vary. One must also not dispel the possibility of the emergence of compelling evidence at a later date. An acquittal gives total immunity to the accused, and no human person can be 100% sure whether a person is innocent or guilty after a full trial and a total evaluation of the facts.
We recall the case of Najib Razak, where one public prosecutor elected not to charge him, but then a subsequent public prosecutor did charge him, and the High Court, after a full trial, found him guilty.
Noting, the recent phenomena where we have seen a change in the public prosecutor when a new government comes to power, the judiciary ought to consider just a discharge and never an acquittal in cases of a mid-trial discontinuance of criminal cases. In most exceptional cases, where maybe like when another had admitted to murder or rape, then it may be reasonable that the current accused charged for the same crime may be acquitted.
Charges of making false statements and money laundering are serious
In the case of Ahmad Maslan, the first charge was money laundering by not declaring the RM2m he allegedly received from former Prime Minister Najib Razak when filing taxes for year 2013. He was charged in January 2020 under Section 4(1)(a) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act for the act, which was allegedly committed on 30 April 2014 at the Inland Revenue Board branch in Jalan Duta.
If that was an offence committed after August 2014, on conviction he would have been liable to a sentence of imprisonment for a term not exceeding 15 years and should also have been liable to a fine of not less than five times the sum or value of the proceeds of an unlawful activity or instrumentalities of an offence at the time the offence was committed or five million ringgit, whichever is the higher.
However, since the alleged offence was committed in April 2014, before the amended law came into force in August 2014, the one convicted is liable to a fine not exceeding five million ringgit or to imprisonment for a term not exceeding five years or to both. Note Parliament considers these crimes as very serious, noting the massive jump in the sentences that the amendment brought about.
For the second charge, he was accused of making false statements to Malaysian Anti-Corruption Commission officials. He was charged under Section 32(8)(c) under the same act, for the act allegedly committed in the media room in Parliament on 4 July 2019 and should on conviction have been liable to a fine not exceeding three million ringgit or to imprisonment for a term not exceeding five years or to both (The Star).
The fact that Parliament amended and increased the penalties is a clear indication of how serious we consider such crimes. This raises the question of whether the power to offer compounds should be removed and left to the court to ensure a just sentence.
It must be noted that the second offence is about lying to the authorities, more so law enforcers, which is a very serious offence, especially for a people’s representative, a member of Parliament.
- for the prosecution to apply to the court to ensure that Ahmad Maslan should not be acquitted, but only discharged
- on the public prosecutor to explain through a statement to the public what happened in the Ahmad Maslan case and to do so in subsequent cases when the prosecution decides on a discontinuance, especially involving political personalities and/or their family members
- for the abolition of acquittals generally (save for exceptional cases) when the prosecution decides to discontinue criminal proceedings mid-trial. Acquittals should only be allowed after the judge evaluates all relevant evidence at the end of the trial
- for the removal of power to compound for serious crimes like corruption and money laundering, and all accused should be charged and tried, and the judge has the power to order a just sentence
- for the enhancement of the perception of independence of law enforcers, including the Malaysian Anti-Corruption Commission, prosecutors and judges, so that they can all act independently and professionally without political or other influence or interference.
Charles Hector issued this statement on behalf Malaysians Against Death Penalty and Torture