Claims against a public prosecutor for misfeasance, malicious process, and negligence cannot proceed due to their absolute discretion under constitutional law.

A. Introduction

[1] The Plaintiff had filed a civil claim against Thomas Thomas also known as Tommy Thomas, formally appointed as the Attorney General/ Public Prosecutor ("AG/PP") of Malaysia as the First Defendant and the Government of Malaysia as the Second Defendant. However, the claim against the Government of Malaysia was eventually dropped with Tommy Thomas remained as the sole Defendant.

[2] According to the Plaintiff, this suit is premised solely on the conducts and actions of the Defendant/Tommy Thomas which essentially alleged that Tommy Thomas as the former AG/PP did not exercise his power for the authorized purpose but for his own agenda. He had allegedly interfered in the investigation and attempted to prejudice and suppress the Plaintiff. That conducts/actions of Tommy Thomas have given rise to the following causes of action upon which the Plaintiff had filed the suit for, as follows:

(a) Tommy Thomas has committed misfeasance in public office;

(b) Tommy Thomas has maliciously used the legal process against Najib Razak to further political aims (Malicious abuse of process or malicious process);

(c) Tommy Thomas was negligent and reckless in his duties as Attorney General.

[3]Vide Enclosure (6), the Defendant had made an application to move this Court to strike out this suit/claims under O 18 r 19(1)(a), (b) and (d) of the Rules of 2012.

[4] After hearing submissions by parties, this Court had on 25 November 2022 allowed the Defendant's application for striking out.

[5] Dissatisfied, the Plaintiff had filed a Notice of Appeal to the Court of Appeal.

[6] Herewith are the full grounds of this Court's decision as earlier this Court had given broad grounds of judgment only.

B. Facts Of The Case

[7] The facts of the case as submitted by the Plaintiff and also gleaned from the Pleadings/Statements of Claims and Submissions are as follows:

[8] The Defendant was appointed as the Attorney General (AG) cum Public Prosecutor (PP) on 4 June 2018 by the Government of Pakatan Harapan under Tun Dr Mahathir Mohamed. (He resigned on 28 February 2020).

[9] As a Public Prosecutor, using his discretionary powers under art 145(3) of the Federal Constitution, he had charged Najib Razak for 35 offences (under 4 cases) following the outcome of investigations conducted by the Investigating Agencies ie the Police/MACC. They are:

(a) The IMalaysia Development Berhad ("1MDB") case.

(b) The International Petroleum Investment Company ("IPIC") case.

(c) The alleged abuse of power under the Malaysian Anti-Corruption Commission Act 2009 ("MACC Act 2009") case.

(d) The alleged money laundering under the Anti-Money Laundering, Anti- Terrorism Financing and Proceeds of Unlawful Activities Act 2001 ("AMLATFPUAA 2001") case.

[10] It is the Plaintiff's case that the conducts/actions of Tommy Thomas in so doing had triggered the 3 causes of action/torts raised against Tommy Thomas as mentioned earlier, as the ensuing paragraphs would show.

[11] The Plaintiff also pleaded and argued that Tommy Thomas (TT) had personally targeted or form an opinion against the Plaintiff even before he became the AG/PP, as early as in 2012. All these can be found in his Memoirs/ Book: "My Story: Justice in the Wilderness" (Memoirs) that was published in January 2021. He said the following in his "Memoirs" at p 198:

"It was only a matter of time before I got myself entangled in litigation pertaining to the dishonest and fraudulent actions of 1MDB. I first heard the name Jho Low through my connection as lawyer for the Terengganu State Government. This would have been around 2008. Najib Razak became the sixth Prime Minister of Malaysia in April 2009. But he had become Finance Minist