Public Prosecutor v Tan Hoo Eng

Appellant(s): Pendakwa Raya

Respondent(s): Tan Hoo Eng

• YA Dato' Collin Lawrence Sequerah
• YA Datuk Noorin binti Badaruddin
• YA Datuk Mohd Radzi Bin Abdul Hamid

• The respondent, a director and equal shareholder of a company, faced multiple sets of criminal breach of trust and Anti-Money Laundering Act charges following a police report lodged against her by her co-director, with the sums involved in the charges being progressively reduced across four successive prosecutions.
• The respondent alleged that the investigation against her was unfair, tainted and biased, that there was inordinate delay violating her right to a fair trial under Article 5(1) of the Federal Constitution, and that the prosecution amounted to mala fide, oppression and abuse of process.
• The High Court allowed the respondent's application to strike out all criminal charges against her in the Sessions Court, relying substantially on the Notes of Proceedings from a separate civil suit and on findings that the investigation had been unconstitutional; the Public Prosecutor appealed against this decision.

• Whether an earlier Court of Appeal decision dismissing an appeal on the striking out issue as non-appealable (with certain observations on the merits) constituted a binding ratio decidendi on the allegations of bias and constitutional violations.
• Whether the High Court could properly rely on Notes of Evidence given by the investigating officer in a separate civil suit, in light of sections 33 and 43 of the Evidence Act 1950.
• Whether a defect, omission or failure by the police to investigate can, as a matter of law, constitute a valid ground for the High Court to exercise its inherent jurisdiction to strike out criminal charges, particularly after the trial has commenced.

• The Court held that the earlier Court of Appeal decision was confined to a preliminary objection on appealability, and any observations on the merits of the bias and constitutional allegations were obiter and not binding.
• The Court found that section 43 of the Evidence Act was irrelevant (as it concerns judgments, not notes of proceedings), and that section 33 did not apply because the civil suit involved different parties, no opportunity for the prosecution to cross-examine, and different issues from the criminal case; accordingly, the High Court erred in relying on those notes of evidence to strike out the charges.
• Surveying Malaysian, Indian, Australian and English authorities, the Court held that defective, incomplete or even biased investigation does not per se justify striking out charges or acquittal, that such allegations must be tested through examination of witnesses at a full trial rather than by summary affidavit application, and that since trial had already commenced, the High Court ought to have allowed it to proceed to conclusion; the appeal was accordingly allowed unanimously.