Daniel Annamalai
Legal Associate

If you’ve been following the news, #ZahidHamidi was granted a discharge not amounting to an acquittal for his charges on #corruption, #criminalbreachoftrust and #money laundering. This is after the prosecution stated that it wishes to stop prosecuting further, for the time being at least. Reason: the prosecution would like to study the facts and evidence led by the defence – after 15 defence witnesses took the stand, including Zahid Hamidi himself. 

So, does that mean he’s a free man now?

It is the kind of question where lawyers love to answer “yes and no”. I try not to use it. But, it is what it is, for this article: 

Yes, because he does not need to stand trial, for now. So, the notion of innocent until proven guilty, applies. 

No, because the charges will be hanging over his head for an undetermined period; like the “sword of Damocles”.

Here’s why:

The prosecution may inform the court to not prosecute further at any stage of the trial before a judgement is given. In practice, the prosecution will ask for a discharge. Usually, the prosecution would request for a discharge not amounting to an acquittal or fashionably called as “DNAA”. Whereas, the defence will ask for a discharge amounting to an acquittal or an “A&D”.

There are various reasons why a prosecution may want to stop prosecuting further: difficulty to trace witnesses, further investigation to be conducted in light of new evidence or insufficient evidence. 

Or the prosecution has no interest to proceed with the charges at all. 

DNAA and A&D: What does it mean?

DNAA, in simple terms, means an accused person is left off the hook for the time being and he/she may be recharged again at any point in time. In Malaysia, there is no time limitation for a DNAA. This means that an accused person can be recharged anytime. And, proceedings will continue from where it was left off previously. So, remember “sword of Damocles” over his head? 

Whereas, for an A&D, a person can no longer be recharged. He stands as a free man. (There you have my answer to the topic). 

So, what is the determining factor for court to grant a DNAA or A&D?

There are various factors but I’ll summarise it: unless the prosecution indicates that he/she can prosecute the case in the near future, the court will grant an A&D. In other words, there must be some grounds for court to stop the proceedings, for now, and continue it later when the prosecution is ready.

This is exactly what happened in Zahid Hamidi’s case. The prosecution stated that it would like to review the evidence led by the defence witnesses. And, investigate further. This is further in light of the establishment of a Royal Commission of Inquiry (“RCI”) into the book “My Story:Justice in The Wilderness”. Though there is no timeline when the RCI would make a finding. 

So, can Zahid Hamidi appeal this order?

No he can’t. An order for DNAA is not appealable. This is because it is not a final order from the court because the court only stayed (or put a hold on) his charges for the time being. 

In conclusion, only time will tell if the charges will be reinstated. Otherwise, the charges will forever be etched to his name.