PP V Nurazril LNS - 2009 - 1 - 680 - BC02432

IN THE HIGH COURT IN MALAYA IN SHAH ALAM
(CRIMINAL DIVISION) (PETALING JAYA)
[CRIMINAL REVISION NO: 43-46-2009]
PUBLIC PROSECUTOR
v.
MOHD AZRIL NURRASYID B MOHAMED JOMALI
CRIMINAL PROCEDURE: Revision - Application for - Statutory rape
- Complainant not keen to proceed with case - Trial judge granting
accused discharge not amounting to acquittal - Trial judge disallowing
prosecution’s application for postponement - Whether trial judge erred
in allowing the complainant and complainant's father to dictate
outcome of prosecution - Whether decision of trial judge incorrect and
improper under s. 323, Criminal Procedure Code
Held (allowing the application of Public Prosecutor and setting

aside the decision of the trial Judge in granting the discharge not
1
amounting to an acquittal and ordering the case be sent back to
the Sessions Court for mention and for appropriate consequential
action to be taken.)
Case(s) referred to:

Public Prosecutor v. Hettiarachigae LS Perera [1977] 1 MLJ 12 (foll)
Public Prosecutor v. Zainuddin & Anor [1986] 2 MLJ 100 (foll)
Legislation referred to:
Criminal Procedure Code, ss. 254, 323, 325,327, 376

Federal Constitution, Article 145(3)
Penal Code, s. 376
JUDGMENT
This is an application of the Public Prosecutor for revision under

s. 323 of the Criminal Procedure Code (“the CPC”) regarding the decision of
the learned Sessions Court Judge, Ampang (“the trial Judge”) made on
9.9.2009.
Brief facts
Briefly, the background facts are as follows:
Mohd. Azril Nurrasyid Bin Mohamed Jomali (“the Accused”) was

charged in the Sessions Court, Ampang for the offence of rape under s. 376
of the Penal Code on 14.9.2005. The case had previously been
postponed several times for various reasons.
2
The case was fixed for hearing for the last time on 9.9.2009. On that
day, the Prosecution was ready to proceed with the hearing since 6 of its
witnesses were present in Court. However, the complainant informed the
trial Judge that she was no longer interested in carrying on with the case.
The complainant’s father als o informed the trial Judge that he did not want
the case to be proceeded with. The Prosecution then applied to the trial
Judge for another date in order to take instructions from the Ketua Unit
Pendakwaan (“KUP”), Selangor or the Head of the Prosecution Unit in
Selangor. The learned Defence Counsel objected to such application on
the ground that the case was fixed for the last time for hearing and taking
instructions by the DPP from the KUP, Selangor would take a long time.
The trial judge decided not to give another date to the Prosecution
since the case was fixed for hearing for the last time and the case was an
old 2005 case. The trial Judge then granted the Accused a discharge not
amounting to an acquittal (“DNAA”).
Evaluation and Decision
After hearing the application on 29.10.2009, I totally agree with the

submission of the learned Deputy Public Prosecutor (“the DPP”) that the
trial Judge had erred in fact and law in her decision.
Under Article 145(3) of the Federal Constitution, it is only the Attorney

General who shall have power, exercisable at his discretion, to institute,
conduct or discontinue any proceedings for an offence, other than
proceedings in a Syariah Court, a native court or a court martial.
3
The power of the Attorney-General as the Pub lic Prosecutor is
restated and amplified in s. 376 of the CPC.
In addition, s. 254 of the CPC provides as follows:
“254. Public Prosecutor may decline to prosecute further at any

stage.
(1) At any stage of any trial, before the delivery of judgment,

the Public Prosecutor may, if he thinks fit, inform the Court that he
will not further prosecute the accused upon the charge and
thereupon all proceedings on the charge against the accused
shall be stayed and the accused shall be discharged of and from
the same.
(2) At any stage of any trial before a Sessions Court or a

Magistrate’s Court before the delivery of judgment, the officer
conducting the prosecution may, if he thinks fit, inform the Court
that he does not propose further to prosecute the accused upon
the charge, and thereupon all proceedings on the charge against
the accused may be stayed by leave of the Court and, if so stayed,
the accused shall be discharged of and from the same.
(3) Such discharge shall not amount to an acquittal unless

the Court so directs.”.
4
In Public Prosecutor v. Hettiarachigae L. S. Perera [1977] 1 MLJ
12, Harun J. (as he then was) held:
“according to article 145 of the Federal Constitution only the Attorney-

General has the power to institute, conduct or discontinue any proceed ings
for an offence. Until he makes up his mind the courts have to wait.
Magistrates therefore have no business to usurp the functions of the
Attorney-General. ”.
In Public Prosecutor v. Zainuddin & Anor [1986] 2 MLJ 100 the

Supreme Court held:
‘Section 376 (of the CPC) empowers the Attorney-General who is

also the Public Prosecutor to control and give direction over and in respect
of all criminal prosecutions and proceedings, whilst Article 145(3) declares
that “the Attorney-General shall have power, exercisable at his discretion,
to institute, conduct or discontinue any proceedings for an offence ....”.
Since the Attorney-General has this power exercisable at his

discretion, it is not for the Court to say when the prosecution has to close
its case or has come to an end .....’ (words in brackets added).
In a situation such as the one in the present case, where the

Prosecution was all ready to proceed with the case since 5 witnesses,
excluding the complainant, were also present in Court but the complainant
was no longer keen to proceed with the case, then Article 145(3) of the
Federal Constitution and s. 376 and 254 of the CPC should apply strictly.
5
Based on these provisions, it is very clear that the decision not to further
prosecute the Accused on the charge, or to withdraw the charge lies with
the Public Prosecutor, and not with the complainant or the complainant’s
father. The trial Judge should not grant a DNAA. Instead, the trial Judge,
notwithstanding the fact that the case is an old 2005 case and fixed for
hearing for the last time, should allow the Prosecution’s application for a
postponement and then fix a mention date to allow the DPP to take
instructions from the KUP, Selangor on the matter. The offence of rape is a
very serious offence, more so when it involves statutory .rape as in this
case. Taking public interest into consideration, such offence should not be
treated lightly.
The trial Judge erred in allowing the complainant and the

complainant’s father to dictate the outcome of the prosecution of the
Accused on the charge. The powers of the Public Prosecutor should not
be interfered with or usurped by subjective variables such as the wishes,
personal reasons, or whims and fancies of the complainant, her father, or
family. It must be borne in mind that in the first place, the prosecution of
the Accused was initiated and instituted by the Public Prosecutor. It is for
the Public Prosecutor to decide whether the prosecution of the Accused on
the charge should continue or be discontinued. There is some possibility
that if the DPP was given another mention date and given the opportunity
to refer the matter to the KUP, Selangor, the proceedings may be
discontinued under s. 254 of the CPC. Alternatively, the Accused can also
make a representation directly to the Public Prosecutor for the charge to be
withdrawn.
6
The trial Judge should be patient and not pre-empt the whole matter
by granting the DNAA. She should give the DPP sufficient time to take
instructions from the KUP, Selangor, who in turn may have to refer the
matter to the Public Prosecutor for instructions on whether to prosecute
further or to withdraw the charge against the Accused. In the long run, the
outcome would be better because it brings certainty and finality to the
whole situation, namely, either the Public Prosecutor decides to withdraw
the charge which means a discharge amounting to an acquittal may be
granted to the Accused by the Court, or to proceed with the prosecution
until the conclusion of the case. This would be a more practical approach
and it would be more advantageous to the Accused than a DNAA which
leaves the matter open-ended, where at any time the Accused may be
re-arrested and re-charged for the same offence.
For the above reasons, I find that the decision of the trial Judge was
incorrect and improper under s. 323 of the CPC.
In exercise of the powers of the Judge on revision under s. 325 and

327 of the CPC, I allowed the application of the Public Prosecutor and set
aside the decision of the trial Judge in granting the DNAA to the Accused.
I ordered that the case be sent back to the Sessions Court, for
mention on 6.11.2009, for appropriate consequential action to be taken.
7
Dated: 10 November 2009
DATIN YEOH WEE SIAM

Judicial Commissioner
High Court (Criminal Division) Shah Alam
(Petaling Jaya)
For the applicant - Isa Haji Hassim, Deputy Prosecutor
Accused absent, and also unrepresented

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IN THE HIGH COURT IN MALAYA IN SHAH ALAM

(CRIMINAL DIVISION) (PETALING JAYA)

[CRIMINAL REVISION NO: 43-46-2009]

MOHD AZRIL NURRASYID B MOHAMED JOMALI

CRIMINAL PROCEDURE: Revision - Application for - Statutory rape

- Complainant not keen to proceed with case - Trial judge granting

accused discharge not amounting to acquittal - Trial judge disallowing

prosecution’s application for postponement - Whether trial judge erred

in allowing the complainant and complainant's father to dictate

outcome of prosecution - Whether decision of trial judge incorrect and

improper under s. 323, Criminal Procedure Code

Held (allowing the application of Public Prosecutor and setting

Case(s) referred to:

Public Prosecutor v. Zainuddin & Anor [1986] 2 MLJ 100 (foll)

Legislation referred to:

Criminal Procedure Code, ss. 254, 323, 325,327, 376

Penal Code, s. 376

This is an application of the Public Prosecutor for revision under

Briefly, the background facts are as follows:

Mohd. Azril Nurrasyid Bin Mohamed Jomali (“the Accused”) was

Evaluation and Decision

After hearing the application on 29.10.2009, I totally agree with the

Under Article 145(3) of the Federal Constitution, it is only the Attorney

In addition, s. 254 of the CPC provides as follows:

“254. Public Prosecutor may decline to prosecute further at any

(1) At any stage of any trial, before the delivery of judgment,

(2) At any stage of any trial before a Sessions Court or a

(3) Such discharge shall not amount to an acquittal unless

“according to article 145 of the Federal Constitution only the Attorney-

In Public Prosecutor v. Zainuddin & Anor [1986] 2 MLJ 100 the

‘Section 376 (of the CPC) empowers the Attorney-General who is

Since the Attorney-General has this power exercisable at his

In a situation such as the one in the present case, where the

The trial Judge erred in allowing the complainant and the

In exercise of the powers of the Judge on revision under s. 325 and

DATIN YEOH WEE SIAM

For the applicant - Isa Haji Hassim, Deputy Prosecutor

Accused absent, and also unrepresented

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