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Nolle prosequi: A growing discussion on the role of the prosecution on the withdrawal of charges

The Principle of nolle prosequi

Nolle prosequi is legal latin meaning “the unwillingness to pursue”. The expression is normally used for prosecutors’ declarations that they are voluntarily ending a criminal case before trial or before a verdict is rendered. In Malaysia, the Public Prosecutor has the prerogative to cease prosecution proceedings. As pursuant to Section 254 of the Criminal Procedure Code, the Public Prosecutor is empowered to decline further prosecution at any stage of the trial. The power of entering the nolle prosequi principle is known to be rarely used. In actual fact however it is still widely utilized. Its considered rampant usage is evident from various Malaysian cases which often questions the degree of power held by the public authority which opposes that of public interest.

The application of nolle prosequi was highlighted when charges were dropped against Riza Aziz, Malaysian filmmaker and stepson of former prime minister Datuk Seri Najib Razak, despite facing serious charges of money-laundering. The application of nolle prosequi was evidenced in other high-profile Malaysian cases, a prime example being Musa Aman, who was fully acquitted of his 46 criminal charges of corruption and money-laundering which involved a total of RM400 million, the corruption charges against Malaysia’s Finance Minister Lim Guan Eng and businesswoman Phang Li Koon as well as Siti Aisyah’s involvement in the assasination of Kim Jong Nam. As such, the question remains whether nolle prosequi would be sufficient for a termination of proceedings?

Nolle prosequi and the dismissal of charges

It is notable that the entry of nolle prosequi is an indefinite adjournment of a trial as there is still a discretion for indictment in the future. As witnessed in the case of Riza Aziz, the Public Prosecutor granted a decision to apply for an order of discharge not amounting to acquittal (“DNAA”), which meant that even though he is discharged, he could be indicted on a later stage. This contrasts to a full acquittal as a person cannot be charged for the same offence if new evidence were to appear, in accordance to Article 7(2) of the Malaysian Federal Constitution and Section 302(1) of the Criminal Procedure Code.

Application and legal effect of nolle prosequi in English Law

Under English common law, the public prosecutor would have an unfettered power to enter nolle prosequi. Section 6(2) of the Prosecution of Offences Act 1985 confers upon the deputy public prosecutor (“DPP”) a power to take over the prosecution for the purpose of discontinuing it. While Section 23 and 23A of the 1985 Act gives prosecutors the power to discontinue proceedings prior to a conviction without the need to obtain the leave of the court. Similarly to Malaysian law, on the basis of public interest, only the Attorney General or the Public Prosecutor could make an entry of nolle prosequi. Instead of the judiciary, the Attorney General is solely answerable to the Parliament on its position, authority and power.

Initially, the evidence criteria was based on whether there was no case for the defendant to answer. If the DPP concludes that on the basis of the evidence there was no case to answer, then the prosecution would be discontinued. However, under the Code for Crown Prosecutors, the DPP has now been required to consider 'whether there is sufficient evidence to provide a realistic prospect of conviction’, or in other words a 'reasonable prospect' test which serves as an evidential threshold for any related prosecution.

Other jurisdictions on the application of nolle prosequi

In contrast, although India has a history of entry of nolle prosequi, it withholds the prosecutorial power and authority from the Attorney General which is considered to be a non-political entity with a constitutional role and position. Governed under Section 321 Criminal Procedure Code 1973, the Public Prosecutor in India has the power to withdraw from prosecution only after written permission from the state and consent of the court at any stage before the judgment is pronounced. The withdrawal of charges would be motivated by the Public Prosecutor’s rationale that it would lead to larger public interest.

Under Hong Kong’s Magistrates Ordinance (Cap. 227), the commencement of a criminal prosecution may be done by anyone. However, section 14(1) provides that the Secretary for Justice may intervene and take over the conduct of such a case without restrictions of their power. Specifically, section 15 of the Magistrates Ordinance states that the Secretary of Justice may withdraw any prosecution by entering into a nolle prosequi. This can be done by informing the magistrate through writing that the Hong Kong Special Administrative Region (“HKSAR”) shall not continue proceedings and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered. These provisions are considered to be similar to that applied in the English law.

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