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2024 MarsdenLR 2866

HIGH COURT MALAYA SHAH ALAM
SHAHNAZ SULAIMAN, J
MOHD AMAR MOHAMED – Appellant
Versus
PEGUAM NEGARA MALAYSIA & ANOR – Respondent


Petitioner Advocates:Pavendeep Singh Gurbachan Singh ,Respondent Advocate: Nur Irmawatie Daud

Judgement Key Points

Certainly. Here are the key points derived from the provided legal document:

  • The Public Prosecutor’s discretion under Article 145(3) of the Federal Constitution is presumed to be lawful, requiring strong evidence to challenge or review such decisions (!) (!) (!) .

  • An application for judicial review of the Public Prosecutor’s decision must meet a two-step threshold: first, establish a legal basis for the challenge; second, present compelling prima facie evidence that the decision falls within the grounds for review (!) (!) (!) (!) (!) (!) (!) .

  • The burden of proof lies with the applicant to demonstrate that there is a legal basis and sufficient evidence to rebut the presumption of legality (!) (!) (!) .

  • Evidence such as police reports or social media postings alone are insufficient to overcome the strong presumption of legality; more concrete, compelling evidence is required, especially evidence indicating mala fide conduct or unlawful exercise of discretion (!) (!) (!) (!) .

  • To succeed in a judicial review challenge, the applicant must show that the decision was made unlawfully, irrationally, or in breach of procedural fairness, with clear and convincing evidence supporting such claims (!) (!) .

  • The courts exercise caution and respect the separation of powers, recognizing that the Public Prosecutor’s decisions are generally protected by a presumption of legality, and any challenge must therefore be substantively justified with compelling evidence (!) (!) (!) .

  • At the leave stage, the applicant does not need to conclusively prove the unlawfulness but must demonstrate an arguable case supported by prima facie evidence that the challenge is legitimate and warrants further examination (!) (!) .

  • If the applicant fails to produce sufficient evidence to meet these thresholds, the application for judicial review will be dismissed (!) (!) .

  • The decision to seek an acquittal and discharge by the Public Prosecutor is within their lawful discretion, and the applicant must provide strong evidence to contest this exercise of power (!) (!) .

  • Overall, the legal framework emphasizes the importance of evidence-based challenges, the high threshold for judicial review of prosecutorial discretion, and the need to respect the presumption of legality unless clear, compelling proof of unlawful or irrational conduct is presented.


JUDGMENT

Shahnaz Sulaiman J:

[1] This application for leave to commence judicial review proceedings pursuant to O 53 r 3(1) of the Rules of 2012 pertains to the decision of the first respondent dated 21 September 2023. The first respondent on 21 September 2023 applied for a "Discharge Amounting to an Acquittal" of the second respondent in Criminal Case No: BA-62JSK-8-01/2023: Public Prosecutor v. Syed Tahir Syed Mohamed (the "Criminal Case") pursuant to art 145(3) of the Federal Constitution (" FC ") and s 254 of the Criminal Procedure Code (" CPC ") (the "said Impugned Decision").

[2] The Honourable Attorney General has objected to this application for leave to commence judicial review.

Relief Soughts

[3] The applicant sought the following reliefs in this application as reproduced below:

"(1) bahawa pemohon diberikan kebenaran untuk memohon suatu perintah certiorari untuk membawa ke mahkamah yang mulia ini bagi tujuan ia dibatalkan, dan untuk membatalkan, keputusan responden pertama pada 21 September 2023 untuk memohon suatu "Pelepasan Yang Terjumlah Kepada Pembebasan" terhadap responden kedua dalam No Kes: BA-62JSK-8-01/2023: Pendakwa Raya lwn. Syed Tahir Syed Mohamed;

(2) bahawa pe

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