Introduction
[1] Recently, the Sessions Court in Kuala Lumpur acquitted and discharged an individual facing multiple charges of corruption and money laundering after a compound was paid. Although the prosecution had sought a discharge not amounting to an acquittal (“DNAA”), the court instead granted a full discharge and acquittal (“DAA”), effectively bringing the case to a close.
[2] This case reignited public debate over the legal and ethical implications of DNAA and DAA, two procedural outcomes that may appear similar but carry vastly different consequences.
[3] DNAA is governed by Section 254(3) of the Criminal Procedure Code (“CPC”). DNAA occurs when the prosecution withdraws charges but reserves the right to reinstate them. The accused is released but not formally acquitted and often used when investigations are incomplete or when new evidence may emerge.
[4] DAA on the other hand, granted at the court’s discretion, is a full release from the charges with no possibility of reinstatement. DAA typically granted when the court finds insufficient evidence or when the prosecution no longer intends to pursue the case.
The Law
[5] The power to prosecute is enshrined under Article 145 of the Federal Constitution (“FC”) and section 376 CPC.
Article 145(3) FC
- The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.
Section 376 (1) CPC
- (1) The Attorney General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions and proceedings under this Code.
[6] Article 145 FC vests the Attorney General (“AG”) with discretionary power to institute, conduct, or discontinue any criminal proceedings. This discretionary power is absolute and not subject to judicial review, if it is exercised within the bounds of the law[1]. While section 376 CPC grants the AG control and direction over all criminal prosecutions under the CPC.
[7] Nevertheless, the court has the discretion to discharge and acquit the accused under Section 254(3) CPC. Section 254 reads as follows: –
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 Magistrates 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.
[8] The default position is that the discharge is “not amounting to an acquittal” (DNAA), unless the court specifically orders an acquittal (DAA).
[9] If the discharge is not amounting to an acquittal (DNAA), the prosecution retains the right to recharge the accused for the same offence at a later date. This is because a DNAA is not a bar to subsequent prosecution for the same offence, and the accused may be recharged and tried again for the main charge[2].
[10] If, however, the court orders a discharge amounting to an acquittal (DAA), then the accused cannot be recharged for the same offence, as the acquittal operates as a bar to further prosecution for that offence[3].
[11] Section 254(3) CPC clearly grants the court the discretion to discharge and acquit the accused[4].
[12] When considering matters under Section 254(3) of the Criminal Procedure Code, the court must strike a balance between public interest and the rights of the accused, who should not be left with a charge hanging over them for an indefinite period.
[13] The court should not accept a situation where the prosecution suspends a charge against the accused with the intention of possibly reviewing and recharging them later, without providing a clear indication of whether the accused will be prosecuted again in the near future.
[14] In fact, it was trite principle of law that the prosecution must show good grounds in order to obtain a discharge not amounting to an acquittal pursuant to s 254(3) of the CPC[5].
Situations where DAA will be granted
[15] The prosecution had decided not to proceed with the prosecution against the accused[6].
[16] A material witness remains unavailable and untraceable. Five years have elapsed since the charge was first brought, and the alleged offence occurred approximately six and a half years ago[7].
[17] Despite the accused having been in remand for 20 months, the prosecution has been unable to locate a key witness. There is no evidence to suggest that the witness can be procured within a reasonable time[8].
[18] When the accused was charged for the third time for the same offence but due to the failure of the raiding officer to appear before the court as a witness, the magistrate ordered the accused to be discharged not amounting to acquittal (“DNAA”). The High Court granted DAA as the accused is stuck with the stigma that the public may perceive him of being guilty when he is charged over and over again with no prospect for him to present his defense[9].
[19] In a situation whereby the prosecution merely requested for a further postponement and there was no decision by the prosecution to not prosecute the accused. The High Court held that the lack of the prosecution’s readiness to prosecute arising from the repeated postponements implied that there was a lack of intention to prosecute the case diligently. The court also held that the court has the power to order an acquittal to prevent injustice and undue hardship to the accused[10].
[20] Waiting for the outcome of a civil suit is not a valid ground for DNAA. The High Court held that civil and criminal proceedings are independent and can run simultaneously. Therefore, the prosecution’s justification to wait for the outcome of a civil suit is not acceptable. The High Court judge found that this reason prejudices the accused, leaving him in unnecessary uncertainty[11].
[21] In cases involving multiple accused persons, the prosecution may withdraw charges and offer DNAA to some accused who are then called as prosecution witnesses. In such circumstances, it is appropriate for defence counsel to apply for a DAA, as it would be unjust to leave the accused burdened with a pending charge for an indeterminate period[12].
Comparative Analysis
[22] A structured comparison between DNAA and DAA as follows: –
|
Aspect
|
DNAA | DAA |
| Legal Finality | No. |
Yes.
|
|
Re-charge Possible
|
Yes. | No. |
| Public Perception | May fuel speculation. |
May trigger criticism if perceived as premature.
|
Conclusion
[23] As alluded to in the introduction, DNAA is often invoked when investigations are incomplete. However, this raises serious concerns about prosecutorial standards. If investigations are still ongoing, charges should not have been filed in the first place. The practice of “charge now, investigate later” undermines the integrity of the criminal justice system and risks turning prosecution into a procedural formality rather than a substantive pursuit of justice[13]. Courts must remain vigilant and avoid endorsing such practices, as they risk undermining public confidence in the rule of law and the foundational principle that justice must not only be done, but must also be seen to be done.
[24] A decision to prosecute necessitates the accused to incur time and legal expense to defend himself, but for which there is no provision that he can recover costs if he is acquitted. For this reason, and to ensure there can be no doubt the decision was to prosecute and not persecute, there is the responsibility for the public prosecutor to be satisfied that there is an offence according to law and that the investigation papers contain proof beyond reasonable doubt![14]
[1] Long bin Samat & Ors v. Public Prosecutor [1974] 2 MLJ 152, FC. In Sundra Rajoo v Menteri Luar Negeri [2021] 5 MLRA 1, the Federal Court held that judicial review is available in rare and exceptional cases, especially where international obligations and legal immunities are involved.
[2] See Abdul Razak bin Anwar Batcha & Anor v Public Prosecutor [2025] 11 MLJ 596, HC
[3] See Public Prosecutor v Lee Chan Sang [1989] 1 MLJ 224, Supreme Court
[4] See Vigny Alfred Raj a/l Vicetor Amratha Raja v Public Prosecutor [2022] 5 MLJ 639, FC at paragraph 7
[5] See Public Prosecutor v Ambika a/p MA Shanmugam [2021] 2 MLJ 723, COA at paragraph 23
[6] See Public Prosecutor v Ambika a/p MA Shanmugam [2021] 2 MLJ 723, COA at paragraph 22
[7] See Goh Cheng Chuan v Public Prosecutor [1990] 3 MLJ 401. HC (Singapore)
[8] See Public Prosecutor v Lau Ngiik Yin [2007] MLJU 668, HC.
[9] See Yussof Daniel bin Khairul Hisham v Public Prosecutor [2025] 8 MLJ 827, HC at paragraph 21
[10] See Nicholas a/l Mazivanan v Public Prosecutor [2024] 12 MLJ 326, HC at paragraph 32
[11] See Pendakwa Raya v Narendrakumar A/L Chunilal Rugnath WA-42K-10-03/2023, HC
[12] See Mohamed bin Kanathi Meerah Mydin v Public Prosecutor [2019] 2 MLJ 194, COA at paragraph 39
[13] See Vigny Alfred Raj a/l Vicetor Amratha Raja v Public Prosecutor [2022] 5 MLJ 639, FC at paragraph 92
[14] See Bunya ak Jalong v Public Prosecutor [2015] 5 MLJ 72, COA, COA at paragraph 11