WHILE reading Lim Wei Jiet’s recent statement titled “Serba Dinamik: AG’s reasons trigger more questions than answers”, I couldn’t help but wonder just how much has to be disclosed to the public about matters that should be entitled to a certain level of privilege and confidentiality.

Lim is a lawyer and should so be aware that there are a number of factors for the attorney-general to consider before taking a case to trial.

These factors include (but are not limited to) the strength of the case; the likelihood of conviction; the defendant’s previous convictions (is it a first-time offence); and public interest.

In the case of Serba Dinamik Holdings Bhd, while the AG’s statement did not divulge every last piece of evidence in his possession (nor should it), the AG stated that the evidence that was available was circumstantial.  

The AG had clearly weighed the evidence and found it wanting.  This is a consideration that cannot be ignored, and is a significant factor in determining the path to take on any matter.

For Lim to focus only on the other factors informing the AG’s decision – economical consequences, the ability of Serba Dinamik to rectify errors and effect immediate compliance with Bursa Malaysia and Securities Commission regulation – is rather short sighted.

Lim, being a lawyer, should understand that beyond a reasonable doubt is a legal standard of proof required to validate a criminal conviction in most adversarial legal systems. When the SC promises the AG the evidence to go to trial when the charges are laid and then is unable to produce it, what choice does the AG have?

Lim mentioned that, “looking at the timeline, the AG’s decision does not make sense”.  The timeline is not evidence, as he seems to believe.  You cannot rely on a timeline to secure a conviction in court.  If the evidence is insufficient to secure a conviction, in that it does not prove the charges, should the AG doggedly pursue the matter through the courts, tying up resources for months if not years on end, wasting taxpayer money until the charges are finally dismissed? Just because it will look better for some people who are “looking at the timeline”?

It is not only far better, but completely appropriate for the AG to take a “big picture” view of the matter and consider other options when the evidence isn’t strong enough to secure a conviction.  In weighing up the other options, of course the AG took into account the economical consequences and the ability of Serba to recover.

Given the importance of Serba to the Malaysian economy, should the sole goal be to destroy the company, or have it continue in compliance with the regulatory requirements?

Lim comments in his article that “It is one thing to say there are weaknesses in the prosecution’s case, it is quite another to dish compliments to the accused. With such an unqualified statement, the attorney-general is effectively closing the door on the investigation (into) and prosecution (of) any other regulatory wrongdoings by Serba Dinamik in the past — why do this?”

The answer is simple: Serba Dinamik has never been so much as accused of any breach of compliance obligations in the past. The AG’s statement is far from unqualified – who better to know if Serba Dinamik has been charged before than the AG himself?

The statement made by the AG is entirely appropriate – if you have met all compliance obligations in the past, is it not right to mention that, given that it is one of the considerations taken into account by the AG when deciding whether or not to pursue your case?

Lim believes that the AG should have proceeded with various trials and gone for the maximum penalty. He comes to that conclusion based merely on what he reads in the media.  He has not assessed the evidence, and as such is in no position to advise anyone on the merits of the case.  He also has not assessed the representations Serba Dinamik made to the AG.  Fortunately for Malaysia, the AG must consider the evidence, not what is portrayed by the media.

Lim makes the mistake of assuming guilt from the outset when he states, “When a public company provides false statements and sales figures…”.  As a lawyer, he of all people should not forget that the justice system is premised on the assumption of innocence until proven guilty.  He would rather assume that Serba Dinamik is guilty, no matter what the evidence actually shows, and proceed to trial to avoid “leniency”. Is it leniency if one is innocent?  It is justice?  Maybe he should just hang them all.

What must be understood is that the AG simply cannot publish in the media all aspects of the case, and go to print on every piece of evidence, or the lack thereof, merely to satisfy inquiring minds.  As Lim mentioned, the AG has released the statement in the interest of transparency, but it is another matter altogether to publish every little detail, and risk embarrassing the regulators should there be shortcomings in the evidence.

At the end of the day, there is no obligation for the AG to publish anything. It is important to properly understand what is being said and realise what it means, especially when one is legally trained – rather than publish articles criticising decisions without applying rational thought. – May 15, 2022.

* Syed Ali Mohamed reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.