Sundra Rajoo a/l Nadarajah v Attorney General [2020] 3 MLJ 788

Court of Appeal (Putrajaya)

The Application for Leave to File Judicial Review

1.    The Appellant was a former director of the Asian International Arbitration Centre (‘AIAC’) which was located in Malaysia since 1978 pursuant to agreements between the Government of Malaysia and the Asian-African Legal Consultative Committee (‘AALCO’).

2.    Officers from the Malaysian Anti-Corruption Commission (‘the MACC’) arrested the Appellant on suspicion of committing certain criminal offences.

3.    However, an application to remand the Appellant pending investigations was refused by the Magistrate.

4.    The Appellant contended that the Director of the AIAC was a ‘High Officer’ under the International Organisations (Privileges and Immunities) Act 1992 enjoying the same privileges as a ‘diplomatic agent’ within the meaning of the Diplomatic Privileges (Vienna Convention) Act 1966 and was immune from any legal suit or process in respect of things done in that official capacity.

5.    Aware that various relevant agencies of government were attempting to obtain a waiver of his aforesaid immunity, particularly from the Secretary General of the AALCO, in order to charge him in court for various offences, the Appellant applied to the High Court for leave to file judicial review proceedings against the Attorney General of Malaysia (‘the AG’), the Minister of Foreign Affairs, the MACC and the Malaysian Government (‘the Respondents’) for orders of certiorari and prohibition.

6.    The High Court dismissed the leave application on finding that the Appellant had not raised a prima facie arguable case for judicial review and that the leave application was frivolous and vexatious mainly because it sought to review the AG’s ‘unfettered’ prosecutorial discretion under Article 145(3) of the Federal Constitution.

7.    The High Court ruled that there was no material to show the AG had abused his prosecutorial power or that the decision to charge the Appellant contravened any constitutional protection or rights.

8.    In the instant appeal, the Appellant contended that the High Court should have allowed his leave application because he had satisfied the low threshold of showing that he had a prima facie arguable case which was not frivolous or vexatious and that he faced the prospect of being unlawfully prosecuted by the Respondents.

1.    Whether the learned trial judge was right in ruling that there is no prima facie arguable case for judicial review, and that the leave application was frivolous and vexatious.

Ratios

1.    The Application for Leave to File Judicial Review

(a)   The learned judge’s view was that the decision of the Attorney General in exercising his discretion to prefer charges against the Appellant is not amenable to judicial review.

(b)   For this proposition, the learned judge relied on the following observation by the Federal Court in Peguam Negara v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another appeal [2019] 3 MLJ 443; [2019] 4 CLJ 561 at para 18-

“The AG then appealed to the Court of Appeal against the decision of the High Court, but the same was dismissed. The Court of Appeal held that:

We fully agree with learned counsel for the respondent on this issue. In Gouriet, there was a proposed temporary union ban on communications to and from South Africa, which would have been criminal, and yet the attorney general had refused to sue or lend his name to a relator action, Gouriet, was concerned with the enforcement of the criminal law by way of an injunction in a civil suit. This is not the case with the instant appeal. The respondent herein did not file a suit to enforce the criminal law. His application was for a judicial review on the refusal of the attorney general to grant him consent to file a civil proceeding. Granted, it cannot be disputed that the attorney general has unfettered discretion in relation to prosecution of criminal based on art 145 of the Federal Constitution. However, there is no such unfettered discretion in a non-criminal matter like in the instant appeal.”

(c)   The observation was made en passant but the view that the learned judge took was that it was an acknowledgment by the Federal Court of the unfettered discretion of the Attorney General in relation to the prosecution of criminal offences by virtue of Article 145(3) of the Federal Constitution.

(d)   The learned judge also referred to the Federal Court case of Long bin Samat & Ors v Public Prosecutor [1974] 2 MLJ 152 where Suffian LP in his judgment held as follows at p 158:

On independence the Federal Constitution came into force, and cl (3) of its art 145 (as amended) provides:

The attorney general shall have power exercised at his discretion to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Muslim court, a native court or a court-martial.

(e)   According to the Court, this clause from the supreme law clearly gives the Attorney General very wide discretion over the control and direction of all criminal prosecutions.

(f)     However, the Singapore courts seem to take a different view. In Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR 239 this is what the High Court said through Chan Sek Keong CJ-

“The discretionary power to prosecute under the Constitution is not absolute. It must be exercised in good faith for the purpose it is intended, ie, to convict and punish offenders, and not for an extraneous purpose. As the Court of Appeal said in Chng Suan Tze v Minister of Home Affairs [1988] SLR 132 at 156, [86], all legal powers, even a constitutional power, have legal limits. The notion of a subjective or unfettered discretion is contrary to the rule of law. In our view, the exercise of the prosecutorial discretion is subject to judicial review in two situations: first, where the prosecutorial power is abused, ie, where it is exercised in bad faith for an extraneous purpose, and second, where its exercise contravenes constitutional protections and rights (for example, a discriminatory prosecution which results in an accused being deprived of his right to equality under the law and the equal protection of the law under Art 12 of the Constitution.”

(g)   In dealing with this decision, the learned judge said that even if the Singapore position were to be followed, there was no material before him to show abuse by the attorney general of his prosecutorial power or that his decision to charge the applicant contravened any constitutional protection and rights.

(h)   In addition, the Courts in England have consistently held that private individuals may seek judicial review of decisions of the public prosecutor not only in matters of initiation or failure to take court proceedings or to discontinue police investigations, but additionally of decisions whether to take over or discontinue ongoing private investigations which is followed in the case of R v DPP, Ex parte Duckenfield [2000] 1 WLR 55.

(i)     In the instant case, the Court was referred by the learned counsel to the International Organisations (Privileges and Immunities) Act 1992 (Act 485) which confers on the Appellant the status of ‘High Officer’.

(j)     It was submitted that as High Officer, the Appellant enjoyed the same privileges as a ‘diplomatic agent’ within the meaning of the Diplomatic Privileges (Vienna Convention) Act 1966 (Act 636).

(k)    It was further submitted that as former High Officer, the Appellant is conferred by law ‘immunity from suit and other form of legal process in respect of acts and things done in his capacity as such officer’.

(l)     There is therefore an international law dimension to the issues raised by the Appellant in his application for leave and not just the domestic law question of whether the Attorney General has absolute and unfettered prosecutorial powers under Article 145(3) of the Constitution.

(m) However, the Court was not referred to any authority by either side on the interplay between domestic law and international law such as Act 485 and Act 636 in their application to the Appellant as former ‘High Officer’.

(n)   In Association of Bank Officers, Peninsular Malaysia v Malayan Commercial Banks Association [1990] 3 MLJ 228; [1990]1 CLJ Rep 33 the Supreme Court stated that when considering leave to apply for judicial review, the court should not go ‘further than the leave stage and embarked on substantial issues of merit.’

(o)   The Supreme Court made it clear that this is ‘not the right approach’ at the leave stage, and that the guiding principle ought to be that the Applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application.

(p)   The principle was applied by Ramly Ali J (as he then was) in YAM Tunku Dato’ Seri Nadzaruddin Ibni Tuanku Ja’afar v Datuk Bandar Kuala Lumpur [2003] 5 MLJ 128 and the approach was taken by the learned judge in the present case.

(q)   Accordingly, the Court agreed with the learned counsel for the Appellant that leave ought to have been granted because of the importance of the issues raised in the judicial review application.

(r)     According to the Court, the law is settled that the threshold for leave in a judicial review application is low and the Privy Council case of Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 was referred by the same court where Lord Diplock in his speech said-

“The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief.”

(s)    Applying the principle to the facts and circumstances of the present case, the Court was of the view that the issues raised by the Appellant might on further consideration turn out to be an arguable case in favour of granting the reliefs sought for by the Appellant.

1.    The application for judicial review involves two stages which are, the application for leave under Order 53 Rule 1 of the Rules of Court 2012 and then once leave is granted the application of relief, the relief shall be decided by the court as provided in Order 53, Rule 2(3) of the Rules of Court 2012.

2.    It must also be noted that judicial review shall not be exercised without applying for leave as the court will then not have the jurisdiction to review.

3.    To conclude, in considering an applicant’s leave, the court will consider factors such as-

(a)  Whether the decision is susceptible to judicial review;

(b)  Whether the claimant possesses locus standi against the decision made by the public authority; and

(c)  Whether the material produced by the claimant before the court discloses a prima facie case of reasonable suspicion to allow the court to grant relief.