Breaking his silence over the acquittal of S Ambika, former solicitor-general III Mohamad Hanafiah Zakaria said there was insufficient evidence to secure a murder conviction.
There was an uproar after the housewife walked free over the charge of killing her Indonesian domestic worker Adelina Lisao.
However, Hanafiah (above), who is now in private practice, said the evidence gathered would have been inadequate to even convict her for the lesser offence of causing death by negligence.
He told Malaysiakini that the then Penang state prosecution director and deputy public prosecutors (DPPs) from the Penang state prosecution director’s office first proposed not to proceed with the murder charge.
Hanafiah recalled that the state DPPs presented their recommendation to lower the charge to Section 304A of the Penal Code for causing death by negligence (a murder charge is framed under Section 302).
He explained that the state DPPs made the proposal after Ambika’s legal team sent a letter of representation to the Attorney-General’s Chambers (AGC).
A letter of representation is to seek alternate ways to resolve a court matter such as a proposal for dropping a criminal charge or for a lesser charge to be levelled against the accused.
‘Adelina told doctor she was not beaten’
Hanafiah said the doctor, who treated Adelina when she was first brought to the Bukit Mertajam Hospital in February 2018, found that the wounds on her arm and leg were due to burns.
He added that the doctor was unable to determine the cause of the burns and found that the injuries were not grievous but rather were left untreated.
He claimed the doctor had interviewed Adelina, who also suffered from anaemia, and that the deceased had denied her employer assaulted her.
Adelina, he claimed, told the doctor that acid spilt on her when she was using it to clean the washroom some three weeks earlier whereas the other bruises were sustained from a fall while working.
Hanafiah said no evidence showed Ambika’s actions directly led to Adelina’s death, which was due to septicaemia secondary to cellulitis from injuries related to infected skin lesions arising from untreated burns.
He claimed there was a lack of evidence to link the injuries that caused the death to the accused.
“From the facts, they (Penang DPPs) presented to me in their write-up that there was nothing to link the injuries to the accused.
“So based on that, even if we (prosecution) reduced the charge to Section 304A, it would still not be fair,” he said, adding that the deceased’s actual employer was one of Ambika’s children who lived in the same house.
“It is not fair to fault the mother. So based on that, I disagreed with the state DPPs’ suggestion for the charge to be reduced to Section 304A due to there being no evidence to show the accused caused the death of the victim negligently,” he said.
“If there is not even evidence that she (Ambika) caused the death of Adelina, then how to implicate Ambika with causing death by a negligent act under Section 304A?
“I remember telling them ‘no’ and to apply for DNAA (discharge not amounting to an acquittal) and then consider other charges that may be levelled against the accused’s family member,” he added.
On April 18, 2019, the Penang High Court acquitted Ambika of the murder charge although the prosecution sought for the accused to be granted a DNAA.
Malaysiakini reported that then attorney-general (AG) Tommy Thomas decided to appeal as he was not consulted over the proposal to seek a DNAA.
Under the law, an accused released on a DNAA could still be charged for the same offence in future if the prosecution decides to do so.
However, a full acquittal - discharge amounting to an acquittal (DAA) - closes the option for the prosecution to recharge the accused of the same offence.
In 2020, the Court of Appeal dismissed the prosecution’s appeal to substitute Ambika’s full acquittal with a DNAA and the Federal Court last week upheld the lower courts’ rulings.
‘Ex-AG unhappy over backlash from embassy’
On the allegation that Thomas was kept in the dark over the DNAA proposal, Hanafiah said the then AG was unhappy with the outcome due to backlash from the Indonesian embassy.
“As far as I am concerned, the decision was within the powers - and to be specific the power to review cases - given to me as solicitor-general III under the Attorney-General Directives and Public Prosecutor Directives,” he added.
He said following the decision to appeal against the acquittal, he had “lost control” and lost track as other prosecutors did not consult him about the case.
“I had hoped for the AG to defend my decision but he did not. My dilemma is when you have a (letter of) representation like this and after studying the case, you have to decide whether to proceed or not.
“The easy way out was just to allow the court to decide on the case (full trial). But one thing that needs to be understood is that the accused was under remand (in 2018 before being charged that same year) and was aged 60,” he said.
“She was under custody. Do we want to wait until the court makes its decision whilst she languishes in jail?
“How do we answer this before God? When you have a way to do justice but you failed to do it.
“I was taught by (previous AG Abdul) Gani Patail to be brave in making decisions. When one sees injustice, one has to correct it,” he added.
Contacted by Malaysiakini, Thomas declined to comment on Hanafiah’s remarks. - Mkini
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