Serba Dinamik: the truth
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 this means, especially when legally trained – rather than publishing articles criticising decisions without any rational thought applied.
Syed Ali Mohamed
In reading Lim Wei Jiet’s recent article titled “Serba Dinamik: AG’s reasons trigger more questions than answers” in the Malay Mail, I can’t help but wonder just how much has to be fully disclosed to the public to satisfy people in what should be matters subject to a certain level of privilege and confidentiality.
The author of the article is a lawyer, so should be aware that there are a number of factors that an Attorney General must consider when proceeding to trial with any case.
These factors include (but are not limited to) the following:
• The strength of the case;
• The likelihood of conviction;
• Previous convictions (is it a first time offence); and
• Public interest / Wider impact.
In the matter of Serba Dinamik, while the AG’s statement did not divulge every last piece of evidence in the matter (nor should he), the AG stated that the evidence was circumstantial.
As such, the AG has clearly weighed the evidence and found it wanting. This is a consideration that cannot be ignored, and is a significant factor determining the path to take on any matter.
For Lim Wei Jiet to focus only on the other factors stated by the AG in forming his decision, being the economical consequences, the ability for Serba Dinamik to rectify errors and effect immediate compliance with regulations of Bursa Malaysia and the SC, is rather short sighted.
Lim Wei Jiet, being a lawyer, should understand that the burden of proof is beyond all reasonable doubt with respect to the charges before the Court. Where the SC promised the AG the evidence to go to trial when the charges were laid, then could not produce it, what choice should the AG have made?
Lim Wei Jiet mentioned that, “looking at the timeline, the AG’s decision does not make sense”. The timeline is not evidence, as Lim Wei Jiet 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? Because it would look better for some people that 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 where the evidence isn’t strong enough to secure convictions. In weighing up the other options, of course the AG took into account the economical consequences and the ability for Serba to recover.
Given the importance of Serba to the Malaysian economy, should the sole goal of everyone be to destroy the company, or have it continue in compliance with the regulatory requirements?
A further comment in Lim Wei Jiet’s article was that “It is one thing to say there are weaknesses in the prosecution’s case, it is quite another to dish complements to the accused. With such an unqualified statement, the Attorney General is effectively closing the door to the investigation or prosecution of any other regulatory wrongdoings by Serba Dinamik in the past — why do this?”
The answer is simple – the statement is not unqualified – 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 had been charged before that 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 yet another of the considerations taken into account by the AG when deciding whether or not to pursue a matter?
Where Lim Wei Jiet believes that the AG should have decided to proceed with the various trials and go 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, or whether there is sufficient grounds to proceed with the trials. He also has not assessed the representations made by Serba to the AG. Fortunately for Malaysia, the AG must consider the evidence, not what is portrayed in the media.
Lim Wei Jiet makes the mistake of assuming guilt from the outset, when he states, “When a public company provides false statements & 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 is guilty no matter what the evidence can actually prove, and therefore proceed to trial to avoid “leniency”. Is it leniency if innocent? Or 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 mentioned by Lim Wei Jiet, the AG has released the statement in the interests of transparency, but it is another matter altogether to publish every little detail, and risk potential embarrassment for regulators where there are shortcomings in the evidence secured.
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 this means, especially when legally trained – rather than publishing articles criticising decisions without any rational thought applied.
