The Malaysian Bar refers to the recent prosecution of Penang Chief Minister YAB Lim Guan Eng and Phang Li Koon.
YAB Lim Guan Eng was arrested by the Malaysian Anti–Corruption Commission (“MACC”) on 28 June 2016 and detained overnight before being charged on 30 June 2016 under Section 23 of the Malaysian Anti–Corruption Commission Act 2009 (offence of using office or position for gratification) and under Section 165 of the Penal Code (public servant obtaining any valuable thing, without consideration, from person concerned in any proceeding or business transacted by such public servant).
Phang Li Koon was also charged under Section 109 of the Penal Code, read together with Section 165, for purportedly abetting YAB Lim Guan Eng in the commission of the alleged offences.
MACC began its investigation into allegations of corruption against YAB Lim Guan Eng in March 2016. YAB Lim Guan Eng has been apparently fully cooperative in the investigation. It was reported that he voluntarily presented himself for questioning by the MACC on 6 May 2016 and on 7 May 2016 for 9 hours and 10 hours, respectively. He attended questioning again on 22 May 2016, and acceded to MACC’s request to inspect his home.
As YAB Lim Guan Eng had been cooperating willingly in the MACC’s investigation, there appears to have been no basis for MACC to have arrested and detained him overnight on 29 June 2016. Enforcement agencies should never resort to the power to arrest and detain, to intimidate, harass or victimise an accused person. This would be plainly a blatant misuse of power by any enforcement agency.
YAB Lim Guan Eng’s bail set at RM1 million was extraordinarily high and thus punitive. The purpose of bail is to secure the attendance of the accused person in court for the trial. In this instance, there seems to be nothing to suggest that YAB Lim Guan Eng posed a flight risk. Excessive bail would be perceived as punishing or penalising an accused person prior to the trial, and would be manifestly unfair to the accused person.
The Malaysian Bar is aware that there have been calls for YAB Lim Guan Eng to take a leave of absence, or to resign, from his position as the Chief Minister of Penang pending the conclusion of the prosecution against him. There is no strict legal requirement for him to do so. However, there appears to be instances where a public official facing prosecution for an alleged criminal offence has vacated office (temporarily or permanently), if there is a real or apparent risk of direct or indirect interference by the official in investigatory and/or prosecutorial decisions.
As the prosecution of YAB Lim Guan Eng has already commenced, the investigation would presumably have been completed. There should no longer be any possibility of interference with the investigation.
With regard to the prosecution, the risk of interference would depend on the evidence that is to be adduced by the prosecution in support of the charges. On the face of the charges, the evidence is uncertain and it would be premature at this stage to decisively conclude whether YAB Lim Guan Eng should still remain in office. For example, if the prosecution intends to rely on formal documents (e.g. minutes of state committee meetings) that only require identification by relevant witnesses to confirm their authenticity, the risk of interference in the prosecution’s case can be disregarded. These documents should already be in the possession of the prosecution and their contents should be self–explanatory. However, the risk cannot be ignored if there is a need for oral witness evidence — independently or in addition to the evidence contained in the formal documents — and the relevant witnesses are his subordinates.
The Malaysian Bar reiterates that all accused persons must enjoy the presumption of innocence and, pending the determination of a case by the court, no accused person should be treated as if he or she is guilty of a criminal offence.
11 July 2016
 “MACC to open investigation paper on Lim Guan Eng over bungalow
”, Astro Awani, 18 March 2016.
 “MACC’s overnight lockup of Guan Eng unnecessary, lawyer says (VIDEO)”, Yahoo News, 30 June 2016.
 “After nine hours yesterday, MACC to resume quizzing Guan Eng”, Malaysiakini, 7 May 2016.
 “MACC wraps up probe on Guan Eng after 10–hour grilling”, Malaysiakini, 7 May 2016.
 “MACC visit to Guan Eng's home not a raid, says Gobind”, Malaysiakini, 22 May 2016.