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2022 MarsdenLR 491
HIGH COURT MALAYA SHAH ALAM
FAZLI SUBOH – Appellant
Versus
PP – Respondent
[Judicial Review No: BA-25-42-05/2022]
Judicial review applications must demonstrate compelling prima facie evidence to challenge prosecutorial discretion, which is fundamentally protected under constitutional law.
Headnote:(A) Dangerous Drugs Act 1952 – Sections 6 and 12(2) – Judicial review proceedings – Applicant charged with possession of dangerous drugs – Court dismissed applicant's application for leave to commence proceedings, finding insufficient grounds to challenge prosecutorial decision – Prior case law examined for test of granting leave and scope of judicial review powers. (Paras 4, 9, 12, 15, 33)
(B) Judicial Review – Core tenet of rule of law linked to constitutional supremacy – Judicial review serves as a mechanism of check and balance on powers of government – Judicial power endowed solely in High Courts. (Paras 8, 29)
Facts of the case: Applicant faced charges under Dangerous Drugs Act following discovery of drugs in possession – Alleged misframing and lack of prosecution action against individual accused of trapping him. (Paras 3-4)
Findings of Court: Insufficient evidence to demonstrate that prosecution by Attorney General was improper – Applicant's claims were unsubstantiated and did not meet the threshold for leave to contest. (Paras 12, 33)
Issues: Whether grounds existed to challenge the prosecutor's decision and seek judicial review in the context of alleged wrongful prosecution. (Paras 5, 18)
Ratio Decidendi: The court ruled that the verification of claims made in police reports should occur in the context of the criminal trial – The applicant's claims did not provide a basis for judicial review of prosecutorial discretion under Article 145(3) of the Federal Constitution. (Paras 25, 30)
Result: Application for leave to file judicial review dismissed.
Introduction
[1] This is an application by the applicant, Fazli bin Suboh seeking leave to commence judicial review proceedings against the Public Prosecutor. The Attorney General objected to this application seeking leave.
[2] At the conclusion of this application seeking leave, this court dismissed the application seeking leave to commence judicial review proceedings. This is this court's grounds for this decision.
Factual Background
[3] The applicant was charged with three (3) charges under ss 6 and 12(2) of the Dangerous Drugs Act 1952 . Dangerous drugs suspected to be cannabis and methamphetamine were found in his possession on 8 April 2022 at about 7.00 pm ("Charges").
[4] The applicant filed this application seeking leave to commence judicial review proceedings based on the reasons below:
(i) a Police Report No SERI KEMBANGAN/003684/22 ("Police Resport") by the applicant's wife demonstrated that the applicant was framed when the dangerous drugs was found in the applicant's car, Toyota Alphard VGU 4352; and
(ii) the applicant alleged one Rahimah Binti Mokhtar ("Rahimah") as the person who framed and/or set a trap against the Applicant. However, there is no investigation, action and/or arrest made against Rahimah.
[5] It was alleged by the applicant that the respondent's action in continuing with the prosecution against him is a form of persecution/abuse.
[6] It was alleged by the applicant that the respondent, the Public Prosecutor had proceeded with the prosecution against the applicant despite a Letter of Representation dated 20 April 2022 sent to the respondent ("Representation Letter").
[7] Dissatisfied with the respondent's decision to proceed with the Charges against the applicant, the applicant filed this application seeking leave to commence judicial review proceedings.
Test For Granting Leave
[8] The law of judicial review has been elucidated particularly to its purpose and extent in the Federal court's decision in SIS Forum (Malaysia) v. Kerajaan Negeri Selangor; Majlis Agama Islam Selangor (Intervener), [2022] 2 MLJ 356 where Her Ladyship Tengku Maimun Tuan Mat CJ stated:
"Judicial review is a core tenet of the rule of law which is inextricably linked to the notion of constitutional supremacy in a democratic form of Government. This was because a core feature of the rule of law is the doctrine of separation of powers, a corollary to which is the concept of check and balance. Judicial review - whether constitutional review or statutory review - is a fundamental aspect of check and balance and is the vehicle through which the judicial branch of Government can perform its constitutional function visa-vis the other branches of Government. The judicial power of the Federation which includes judicial review (constitutional and statutory) is vested by constitutional design solely in the two High Courts."
[9] Pertaining to the test in granting leave for judicial review, the Federal court in WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Bhd , held that the test for leave to commence judicial review are as follows:
"[12]...Without the need to go into depth of the abundant authorities, suffice if we state that leave may be granted if the leave application is not thought of as frivolous, and if leave is granted, an arguable case in favour of granting the relief sought at the substantive hearing may be the resultant outcome. A rider must be attached to the application though ie unless the matter for judicial review is amenable to judicial review absolutely no success may be envisaged."
[Emphasis Added]
[10] In Bandar Utama Development Sdn Bhd & Anor v. Lembaga Lebuhraya & Anor, [1998] 1 MLJ 224 His Lordship Visu Sinnadurai J at p 225 held as follows:
"... The court, in exercising its discretion that an application for leave be granted must be convinced by the applicants that prima facie the application is genuine and that there is some substance in the grounds supporting the application.The test's threshold is very
