Commentary on Sundra Rajoo's Judicial Review Application

On 31st December 2019, former director of Asian International Arbitration Centre (AIAC), Datuk Prof Dr N. Sundra Rajoo (“Sundra Rajoo”) succeeded in his judicial review application against the decision of the Attorney General’s Chambers (“AGC”) to charge him with three counts of criminal breach of trust[1] involving over RM1 million belonging to AIAC.[2]

The effect of this decision, until and unless a stay of the High Court’s decision is obtained, is that inter alia the criminal breach of trust case against Sundra Rajoo in the Sessions Court has to come to an end. 

Leave to proceed with the judicial review application was initially refused by the High Court on the basis that “the decision of the Attorney General in exercising his discretion to prefer charges against the appellant is not amenable to judicial review.”[3]

On appeal, the Court of Appeal 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.”[4]

The case was then sent back to the High Court and heard on its merits. It was reported that Yang Arif Dato’ Seri Mariana Yahya held that the Attorney-General (“AG”)’s discretionary power under Article 145 (3) of the Federal Constitution to institute, conduct or discontinue any proceedings for a criminal offence is subject to judicial review.

With all due respect to Her Ladyship, and without the benefit of perusing her written grounds of judgement, Her Ladyship’s decision is inconsistent with established case law.

It is trite that the Attorney General’s discretion under Article 145(3) of the Federal Constitution, to “institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial,” is unfettered and is thereby not amenable to judicial review.

In Johnson Tan Han Seng v Public Prosecutor & Associated Appeals [1977] 2 MLJ 66, Suffian LP held:

“In Long bin Samat v Public Prosecutor [1974] 2 MLJ 152 we considered the question whether the Attorney-General may lawfully prefer a lesser charge when the evidence discloses a graver offence and we said that he can. There the evidence disclosed an offence of voluntarily causing grievous hurt by a dangerous weapon or means contrary to section 326 of the Penal Code, but the Attorney-General charged the accused with the lesser offence of voluntarily causing hurt by a dangerous weapon or means contrary to section 324 of the Penal Code, and we upheld his discretion. Indeed the Attorney-General could lawfully have charged the accused with even the much less serious offence of voluntarily causing hurt contrary to section 323. As we stated then, anybody who has a complaint against the Attorney-General for exercising his discretion in any particular way should direct it not to the courts but elsewhere.” (emphasis mine)[5]

In Karpal Singh & Anor v Public Prosecutor [1991] 2 MLJ 544, the Supreme Court held that:

"The discretion vested in the Attorney General [pursuant to Article 145(3) of the Federal Constitution] is unfettered and cannot be challenged and substituted by that of the court's. The reasoning and logic behind such contention is well illustrated in the cases of PP v Lee Tin Bau [1985] 1 MLJ 388, Long bin Samat & Ors v PP [1974] 2 MLJ 152, PP v Datuk Harun bin Haji Idris and Ors [1976] 2 MLJ 116 and Poh Cho Ching v PP [1982] 1 MLJ 86." (emphasis mine)[6]

More recently, in Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another appeal [2019] 4 CLJ 561, the Federal Court upheld the Court of Appeal’s decision and reasoning[7] inter alia that:

“... it cannot be disputed that the Attorney General has unfettered discretion in relation to prosecution of criminal offence based on 

Article 145 of the Federal Constitution. 

However, there is no such unfettered discretion in a non-criminal matter like in this instant appeal.”” (emphasis mine)[8]

Having said that, it is not disputed that the Sundra Rajoo has a strong case in favour of being covered with immunity, under the International Organisation (Privileges and Immunities) Act 1992 (“Act 485”), for acts done in his official capacity. However, in light of Article 145(3) of the Federal Constitution and cases decided by the highest court of our land, it is submitted that a judicial review application is not the correct mode of approaching the matter.

The preferred approach would have been for Sundra Rajoo’s counsels to have raised a preliminary objection,[9] at the Sessions Court, on the basis that Sundra Rajoo has immunity under Act 485 and therefore charges should not and cannot be brought against him. The preliminary objection would have been heard first and if Sundra Rajoo was successful, the Sessions Court would not be competent to hear the criminal charges.

Having gone down the judicial review route and succeeding at first instance, it is not the end of the matter as the High Court’s decision is left open to easy reversal by the Court of Appeal in the event the AGC decides to file an appeal.

Having said that, Sundra Rajoo’s case, if appealed all the way up to the Federal Court, could be a test case challenging the status quo that the AG’s discretion under Article 145(3) is not amenable to judicial review.

Editor's Note: This article was featured on Free Malaysia Today

[1] “Ex-AIAC director Sundra Rajoo entitled to immunity, High Court rules.” MalayMail.com. Malay Mail. Accessed December 31, 2019. https://www.malaymail.com/news/malaysia/2019/12/31/ex-aiac-director-sundra-rajoo-entitled-to-immunity-high-court-rules/1823577

[2] Khairah N. Karim, “Arbitrator claims trial to 3 counts of CBT.” NST.com.my. New Straits Times. Accessed December 31, 2019. https://www.nst.com.my/news/crime-courts/2019/03/473062/arbitrator-claims-trial-3-counts-cbt

[3] Sundra Rajoo a/l Nadarajah v Peguam Negara Malaysia [2019] MLJU 859, at paragraph 10

[4] Sundra Rajoo a/l Nadarajah v Peguam Negara Malaysia [2019] MLJU 859, at paragraph 32

[5] Johnson Tan Han Seng v Public Prosecutor & Associated Appeals [1977] 2 MLJ 66 at 70

[6] Karpal Singh & Anor v Public Prosecutor [1991] 2 MLJ 544 at 548

[7] Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another appeal [2019] 4 CLJ 561 at paragraph 77

[8] Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) [2019] 1 MLJ 307, at paragraph 26

[9] As was the case in Datuk Haji Wash Bin Mohd Said v Public Prosecutor [2010] MLJU 1518 although the Appellant was unsuccessful on appeal due to the facts of his case