1. ) SHASHI KUMAR A/L SHANMUGAM 2. ) NG KIM HO 3. ) BOBBY ANAK WILLIAM 4. ) CHAN TUCK LOONG 5. ) SRI RAMESH A/L V.KANNAN v 1. ) KETUA POLIS NEGARA, MALAYSIA 2. ) Peguam Negara Malaysia

w-01im-562-10-2023 Court of Appeal (Mahkamah Rayuan) 9 July 2025 • W-01(IM)-562-10/2023 • 13 min read

5 cases cited (1 SG, 4 foreign)

Catchwords

Judicial review - leave application - O 53 r 3 (2) of the Rules of Court 2012 - Article 145(3) of the Federal Constitution - service of statement and affidavit in support to AGC - s 376 of the Criminal Procedure Code - control and direction of criminal prosecutions and proceedings - appropriate, rare and exceptional cases - exercise of discretion of AG - amenable to judicial review - two-step threshold - presumption of legality – presence during ex parte hearing for leave - assist the court - not as a party - O 53 r 3(3) of the Rules of Court 2012 - role of AG at leave stage - compelling and prima facie proof - malice - mala fide - attempt to obstruct a transparent investigation - communication blatantly ignored - IGP was not decision maker – whether wrong party named - O 53 r 2(4) of the Rules of Court 2012

Practice Areas

Administrative Law Civil Procedure Constitutional Law Criminal Procedure

Judges (4)

Hashim bin Hamzah Coram Utama Wan Ahmad Farid bin Wan Salleh Delivered Wan Ahmad Farid bin Wan Salleh Delivered Wong Kian Kheong Delivered

Counsel (5)

Gunaseelan & Associates Firm Imtiyaz Wizni Aufa Othman Counsel Respondent Kumaradevan Counsel Appellant Nur Idayu Amir Counsel Respondent T. Gunaseelan Counsel Appellant

Parties (7)

KETUA POLIS NEGARA, MALAYSIA Respondent PEGUAM NEGARA MALAYSIA Respondent Bobby Anak William Appellant Chan Tuck Loong Appellant Ng Kim Ho Appellant Shashi Kumar a/l Shanmugam Appellant Sri Ramesh a/l V.kannan Appellant

Case Significance

Illustrates the high threshold for judicially reviewing prosecutorial discretion under Article 145(3) of the Federal Constitution, reviewable only in rare and exceptional cases on compelling prima facie proof of mala fide, and the Attorney General's assisting role at the leave stage under Order 53.

This Court of Appeal decision concerns the threshold for granting leave to apply for judicial review and the role of the Attorney General at the leave stage. The appellants, who were the presidents of several associations, had sought judicial review in the High Court challenging a decision of the police not to take action on police reports lodged against a named individual, and their leave application was refused. On appeal the court examined the two-step threshold governing leave under Order 53 rule 3(2) of the Rules of Court 2012, and the requirement to serve the statement and supporting affidavit on the Attorney General's Chambers. It addressed the constitutional position under Article 145(3) of the Federal Constitution and section 376 of the Criminal Procedure Code, which vest in the Attorney General, as Public Prosecutor, control and direction over criminal prosecutions and proceedings, a discretion amenable to judicial review only in appropriate, rare and exceptional cases and subject to a presumption of legality that the applicant must displace by compelling and prima facie proof of malice or mala fide. The court also clarified the role of the Attorney General under Order 53 rule 3(3), namely that his presence at an ex parte leave hearing is to assist the court and not as a party. On the facts, the court found that the Inspector-General of Police was not the relevant decision-maker in the manner alleged, that there was nothing more the police could have done, and that the appellants were not adversely affected within the meaning of Order 53 rule 2(4). Finding no appealable error in the High Court's refusal of leave, the court dismissed the appeal, making no order as to costs in view of the public interest element. The judgment is a useful illustration of the high threshold for reviewing prosecutorial discretion and of the Attorney General's assisting role at the leave stage.

Summary

Five NGO presidents sought judicial review of the Attorney General's decision not to prosecute Ustaz Mohd Syakir for alleged criminal offences, naming the Inspector General of Police and the AG as respondents. The Court of Appeal dismissed the appeal, holding that the appellants failed to cross the two-step threshold for judicial review of prosecutorial discretion, as there was no compelling prima facie evidence of mala fide on the part of the AG, and the IGP was wrongly named as he was not the decision maker.

Why did the Court of Appeal dismiss the appeal against the refusal of leave?

The court found no appealable error in the refusal of leave, holding that the Inspector-General of Police was not the decision-maker in the manner alleged, that the appellants were not adversely affected within Order 53 rule 2(4), and that prosecutorial discretion under Article 145(3) is reviewable only in rare and exceptional cases on compelling prima facie proof of mala fide, which was absent.

What is the Attorney General's role at the leave stage of a judicial review?

Under Order 53 rule 3(3) of the Rules of Court 2012, the Attorney General's presence at an ex parte leave hearing is to assist the court and not to appear as a party, the statement and affidavit having been served on his Chambers under the leave procedure.