A prosecutor with the Attorney-General's Chambers said today that the case against Finance Minister Lim Guan Eng and businessperson Phang Li Koon would not have succeeded due to "weakened" evidence.

AGC's appellate and trial division head Mohamad Hanafiah Zakaria, who was responsible for reviewing the graft charges against Lim and Phang, said the cross-examination of prosecution witnesses had weakened the case.

"The AGC had adopted the 'fresh eye' technique, and I was tasked to decide on the representation made by both Lim and Phang as I had not participated in any way with the case earlier.

"Accordingly, I was able to consider the matter with a fresh perspective... I have perused the evidence that has been investigated by MACC and the evidence that has been adduced and tested under cross-examination thus far," he said in a statement.

"I concluded that as a result of the cross-examination of the prosecution witnesses who have testified... the evidence supporting the first charge under Section 23 of the MACC Act 2009 and under Section 165 of the Penal Code was substantially weakened. 

"This conclusion was arrived at in light of fresh evidence that arose during the cross-examination of prosecution witnesses."

This led Hanafiah, who is also a deputy public prosecutor, to believe that the case against Lim and Phang would not have succeeded.

"Having made the above findings, I opined that I would not be fulfilling my duties as deputy public prosecutor to let the case continue, knowing full well that the case against both Lim and Phang would not succeed at the end of the prosecution case.

"Hence, I decided for the prosecution to enter nolle prosequi (cease further prosecution) against both Lim and Phang in accordance with Section 254 of the Criminal Procedure Code," he said.

Among the witnesses the prosecution had called was blogger Muhsin Latheef, better known by his pen name "Mamu Parpu", who had lodged the police and MACC reports against Lim for allegedly purchasing his bungalow below market value.

However, during cross-examination, Muhsin said he had lodged the report based on a video but was unsure of the authenticity of the claim.

'Prosecution didn't seek full acquittal'

Hanafiah said he had conveyed his decision to Masti Mohd Daud, who is the MACC’s legal and prosecution division director and was leading the prosecution against Lim.

Hanafiah also stressed that what the prosecution had sought was a discharge not amounting to an acquittal.

However, he noted that the judge, after considering the defence's justification, decided to grant a discharge and acquittal.

“I wish to reiterate that the practice to enter nolle prosequi is not something out of the ordinary.

“This practice has been exercised in many other cases upon representation by counsel and upon discovery of fresh evidence or that the evidence has weakened under cross-examination.

“Similarly, in the case against Lim and Phang, there was fresh evidence that has not been previously considered," he said.

Hanafiah said he had kept his decision confidential, and had not even consulted the investigating agency, to avoid the possibility of a leak and causing “unnecessary alarm”.

The MACC had expressed "shock" in response to the court's decision to discharge and acquit Lim.