OCTOBER 9 — In January 2023, the former Goldman Sachs banker Roger Ng was given a discharge not amounting to an acquittal by the High Court. A DNAA simply means that Ng can be prosecuted again for the same charge.

Ng was charged under the Capital Markets and Services Act 2007 (CMSA) for abetting Goldman Sachs. He was charged under S370(c) of the CMSA, which carries a punishment of up to 10 years imprisonment and a fine of at least RM1 million, upon conviction.

When a crime is transcended at national borders, the accused will find themselves being tried in the nation where the offence was committed. In such cases, the accused may have also violated the laws of another state, and now he may be subject to multiple prosecutions.

Under international law, it requires the sovereign states to have an extradition treaty with the contracting state in order for the requesting state to request the extradition of fugitive criminals from the requested state.

The Extradition Act 1992 was signed between Malaysia and the United States of America and was enforced in 1997.

Before the requesting country can extradite the fugitive criminal, there are two fundamental requirements for extradition, which are the existence of an extradition treaty and the offence must be an extraditable offence.

Section 6 of the Extradition Act 1992, defines extraditable offence as an offence punishable by the law of the requesting state as well as by the laws of Malaysia with imprisonment of not less than one year or with death provided that in case of extraterritorial offence, it is also punishable under the laws of Malaysia if it took place outside of Malaysia.

As such, Malaysia adopts the principle of double criminality. This was established in the case of PP v Lin Chie Pang (1993) 2MLJ 34, where the court held that the right to claim an individual from a state may not be acceptable if its legislation does not consider the event as a punishment in their domestic law.

Hence, when the United States, the requesting state extradited Ng from Malaysia to the United States to face charges in relation to conspiring to launder billions of dollars embezzled from 1Malaysia Development Berhad (1MDB), the limb on dual criminality was fulfilled. This was because Malaysia have a similar domestic law. He was then subsequently found guilty in which he is now facing 10 years of imprisonment after being convicted under the Foreign Corrupt Practice Act (FCPA).

Article 13 of the Act, states that if extradition is sought of a person being prosecuted or serving a sentence in the requesting state, the requested state may postpone the extraction proceeding until the prosecution has been concluded or until any sentence imposed has been served. Alternatively, the States may temporarily surrender the person to the requesting state for the purpose of prosecution. A person who is temporarily surrendered is to be kept in custody by the requesting state and returned to the requested state after the conclusion of the proceedings.

But on that note, an extradition is denied, against successive prosecution for the same offence. This is known as "non-bis in idem” or double jeopardy.

The new model limits the exemption to fugitives who have been convicted or acquitted of the same offence and specifically denies the exemption where an initial prosecution has simply been abandoned.

It was reported that Ng’s return was to assist the local investigation related to 1MDB, while deferring his sentences.

*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.