Phang Li Koon & Anor v Public Prosecutor

Appellant(s): Phang Li Koon

Respondent(s): Pendakwa Raya

• YA Dato' Paduka Azman Bin Abdullah
• YA Datuk Noorin binti Badaruddin
• YA Datuk Mohd Radzi Bin Abdul Hamid

• The two appellants were charged in 2016 (First Proceeding) with offences under the MACC Act 2009 and Penal Code arising from the purchase of a bungalow and rezoning approvals involving a related company; after 25 prosecution witnesses testified, the prosecution withdrew the charges and the appellants were discharged and acquitted.
• Years later, fresh charges were preferred (Second Proceeding) alleging that the appellants had used their positions to benefit the same related company through the award of a Workers' Village Project, with payments channelled through a consultancy company to the first appellant's wife.
• The appellants applied to strike out the Second Proceeding on grounds of autrefois acquit, double jeopardy, issue estoppel and res judicata, but the High Court dismissed the applications; the appellants appealed to the Court of Appeal.

• Whether the Second Proceeding constituted a prosecution for the "same offence" within the meaning of Article 7(2) of the Federal Constitution and section 302(1) of the Criminal Procedure Code, so as to engage the constitutional and statutory bar against double jeopardy.
• Whether the doctrines of issue estoppel and res judicata could bar the Second Proceeding, given that the earlier discharge and acquittal arose from the prosecution's withdrawal of charges rather than a judicial determination on the merits.
• Whether the Federal Court's ruling in PP v Gan Boon Aun — requiring identity of offences both in fact and in law for autrefois acquit to apply — was distinguishable or should be applied to the present appeals.

• The Court dismissed both appeals, holding that the offences in the Second Proceeding were materially different from those in the First Proceeding in terms of the acts alleged, the transactions involved, the dates, the nature of the gratification, and the statutory provisions charged; accordingly, Article 7(2) FC and section 302 CPC were not engaged.
• The Court held that issue estoppel and res judicata could not assist the appellants because the earlier acquittal resulted from the prosecution's withdrawal — not a judicial adjudication on the merits — and no findings were made on the factual issues now raised in the Second Proceeding.
• While affirming the legality of the Second Proceeding, the Court issued an obiter caution that prosecutorial authorities should exercise their discretion prudently and avoid fragmentation of prosecutions arising from a common investigation, as piecemeal litigation risks undermining public confidence in the fairness and finality of the criminal justice system.