KUALA LUMPUR, June 9 — Attorney-General (AG) Tan Sri Idrus Harun today said he decided to have the prosecution withdraw 46 corruption and money-laundering charges against Tan Sri Musa Aman, as the unavailability of documents from Hong Kong-based banks and the unavailability of some witnesses meant that proceeding with a trial would be untenable.

Among other things, Idrus also cited former AG Tan Sri Abdul Gani Patail’s past decision regarding Musa’s case to justify the decision to drop the charges against the former Sabah chief minister.

"Having studied the whole available evidence and upon discussion being held with the prosecution and investigation team, I decided to withdraw all the charges against Tan Sri Musa Aman,” Idrus said in a three-page statement today regarding the former Sabah Umno chief’s case.

"In cases of this nature, documentary evidence is vital to prove a case. Documentary evidence from companies and banks which were expected could not be obtained through Mutual Legal Assistance in Criminal Matters from Hong Kong. 

"The Department of Justice Hong Kong advised that companies and banks in Hong Kong are only required to keep records for seven (7) years and it is highly unlikely that neither the banks nor the companies would still have the records. 

"Apart from that, there are witnesses for the prosecution who have passed away, suffered serious medical ailments or are not in Malaysia anymore,” he added.

Earlier in the statement, Idrus noted that Abdul Gani had as the AG then in 2012 decided not to charge Musa over the funds that were allegedly corruptly received, based on investigations that showed the funds to have been "political funding”.

What the ex-AG said and why the current AG reviewed Musa’s charges

Idrus said that Musa had on February 13 filed an application in court, asking for the court to strike out and quash the 46 charges for being groundless.

Idrus also explained that the Attorney-General’s Chambers (AGC) had decided to review the case, after Musa on May 13 sent a representation to the AGC to seek for the case against him to be withdrawn and all charges to be quashed. 

(Typically, representations to the AGC would see an accused writing in to ask the prosecution to review charges such as by dropping the charges.)

Idrus said that the AGC had on June 5 received an affidavit filed by Musa in the High Court to support his February striking out application.

This affidavit-in-support or sworn court document was affirmed by ex-AG Abdul Gani in support of Musa’s application to quash the charges against him, Idrus noted.

"The former Attorney General defended the decision taken in 2012 to take no further action against Tan Sri Musa Aman as investigation revealed the monies involved were political funding,” Idrus said.

Idrus said Abdul Gani had stated in the affidavit that the 2012 decision was made "collectively” by high-level individuals, namely Datuk Tun Abdul Majid Tun Hamzah who was the head of the AGC’s prosecution division then, then Malaysian Anti-Corruption Commission (MACC) chief commissioner Tan Sri Abu Kassim Mohamed, then MACC investigation division director Datuk Seri Mustafar Ali.

"After studying and perusing the Investigation Paper from a legal stand point, the former Attorney General in exercise of his discretion decided not to proceed with prosecution,” Idrus said regarding Abdul Gani’s affidavit explaining the 2012 decision to not press charges against Musa.

"In light of the representation and the recent development in the form of the Affidavit by the former Attorney General, it is the responsibility of this Department to review the whole evidence for this case,” Idrus said when explaining why he had gone on to evaluate the available evidence in the form of witnesses and documents for Musa’s case.

Looking at the situation where he said certain witnesses and documents would not be available for use as evidence in a trial against Musa, Idrus then added that it would not be sustainable to continue with a trial.

"This recent development including the aforesaid Affidavit in Support that was filed has caused a situation wherein it is no longer tenable to continue with the prosecution of Tan Sri Musa Aman. 

"This decision is strengthened by a letter dated 22 December 2011 from the Independent Commission Against Corruption Hong Kong stating that their investigation against Tan Sri Musa Aman is complete and on the basis of known facts no further investigative action will be pursued,” Idrus said.

Idrus then concluded by saying that his decision to drop all charges against Musa is in line with his discretionary powers under Article 145(3) of the Federal Constitution.

Under Article 145(3), the attorney general has the powers exercisable at his discretion to initiate, conduct or discontinue any criminal proceedings in the civil courts.

Musa’s corruption and money-laundering trial had not started, with the High Court having previously scheduled September 14 for the start of the trial.

Today was initially scheduled for case management for Musa’s two separate applications for the striking out of charges and on a constitutional matter respectively, but the prosecution today informed the High Court that it was dropping all charges against Musa, which then resulted in the High Court acquitting him of all charges involving millions of US dollars.

Of the 46 charges that Musa was facing and acquitted of this morning, the 30 counts of corruption related to his alleged receiving of US$50.1 million (RM213.5 million) from eight logging concessionaires as inducement to give timber concessions to 16 companies, while the 16 money-laundering charges related to his alleged receiving of proceeds from illegal activities amounting to US$37,845,491.60 and S$2.5 million.

After the acquittal, Musa’s lawyer Amer Hamzah Arshad today highlighted his client’s stand that the charges were allegedly politically motivated as it is not a crime in Malaysia to receive political donations, and as local and international corruption investigators had in the past cleared his client of wrongdoings. Musa himself said he has been vindicated.

This is the second high-profile discharge of personalities linked to the previous Barisan Nasional administration from criminal charges, since the new Perikatan Nasional government was installed in March.

On May 14, Riza Shahriz Abdul Aziz — the stepson of former prime minister Datuk Seri Najib Razak — was conditionally discharged of laundering over US$248 million (or equivalent to over RM1.075 billion based on the currency exchange rate on that day) in funds linked to the 1MDB scandal. 

Idrus had previously also cited former attorney general Tan Sri Tommy Thomas when explaining the prosecution’s decision to ask the court to grant Riza the conditional discharge, although Thomas has since then disputed some of the statements made by Idrus.