CHEY AH KOW v 1. ) Jabatan Peguam Negara 2. ) NG TZE SHEN

Case Significance

Confirms that the Attorney General's charging discretion under Article 145(3) of the Federal Constitution is presumed lawful and only exceptionally reviewable, and that an applicant must present compelling prima facie evidence even to obtain leave to challenge such a decision by judicial review.

This High Court decision concerns an application for leave to commence judicial review of a decision of the Public Prosecutor about which offence to charge, and the reviewability of prosecutorial discretion under the Federal Constitution. The applicant sought leave under Order 53 of the Rules of Court 2012 to challenge the decision of the Attorney General to prosecute the second respondent under section 43(1) of the Road Transport Act 1987, rather than under the more serious section 41(1), in a pending criminal case. The applicant sought certiorari to quash that charging decision and declarations that it was null and void, made in excess of jurisdiction, or unreasonable, contending that a more serious charge ought to have been preferred. The Attorney General objected to the grant of leave. The court examined the constitutional position of the prosecuting authority under Article 145(3) of the Federal Constitution, which vests in the Attorney General the discretion to institute, conduct and discontinue criminal proceedings. It held that decisions made by the Attorney General or Public Prosecutor under Article 145(3) are presumed to be lawful, and that a party challenging such a decision bears the heavy burden of presenting compelling prima facie evidence to overcome that strong presumption of legality and to bring the challenge within the established grounds for judicial review. On the material before it, the court was satisfied that the applicant had failed to discharge that evidential burden and had not met the threshold for the grant of leave. It accordingly dismissed the application for leave to commence judicial review, with no order as to costs. The judgment is a useful illustration of the narrow scope for judicial review of the Attorney General's charging discretion, and of the demanding threshold an applicant must meet even to obtain leave to bring such a challenge.