An opposing party has no legitimate expectation to view the letter of appointment of a prosecutor in an adversarial system without adequate legal grounds for such a demand.

JUDGMENT

Mohamed Zaini Mazlan J:

Introduction

[1] The applicant seeks for an order, to compel the respondent to produce a copy of the respondent's fiat in relation to the appointment of Datuk Seri Gopal Sri Ram ('GSR') as the Senior Deputy Prosecutor or lead prosecutor within three days from the date of the order. The applicant is also seeking for an order that GSR be disqualified from continuing to act as the Senior Deputy Prosecutor or lead prosecutor in her case, should the respondent fail to comply with the order for production, if the court so grants it.

Background Facts

[2] The applicant is currently facing three charges under s 16(a)(A) of the Malaysia Anti-Corruption Commission Act 2009 in Criminal Trial No: WA-45-9-03-2019 [PP v. Rosmah Mansor, [2020] 7 MLJ 364] and WA-45-19-07-2019 at the Kuala Lumpur High court. She is charged for soliciting and accepting gratification for herself, pertaining to the Education Ministry's RM1.25 billion contract for the Sarawak schools' solar hybrid power system.

[3] The trial had already commenced on 6 February 2020. The trial had been proceeding seamlessly, save for the hiatus due to the 'Movement Control Order' imposed by the Government under the Control of the Spread of Infectious Diseases Act 1988 and the Police Act 1967. Nineteen days of trial had passed at the time this application was heard on the 5 August 2020.

[4] The prosecution's team was from the onset led by GSR, who is now an advocate and solicitor, after serving in the judiciary and retiring as a judge of the Federal court. The applicant's complaint is that the respondent had never produced to the court the fiat pertaining to GSR's appointment to lead the prosecution's team under ss 376(3), 376(3A) and 379 of the Criminal Procedure Code (' CPC '). The applicant's solicitors, Messrs Jagjit Singh & Co, had through their letter to the Attorney General's chambers dated 6 July 2020, requested that the fiat be produced to them by 10 July 2020. Their request was not met, which led to this application filed.

[5] The applicant contended that the letter of appointment is crucial to determine the legality of GSR leading the prosecution against her. The applicant exhorted that his appointment is in doubt until and unless this letter is produced, as s 377 of the CPC states that an advocate may only conduct a criminal prosecution if he was so authorised in writing. The section reads as follows:

377. Conduct of prosecutions in

Every criminal prosecution before any court and every inquiry before a Magistrate shall, subject to the following sections, be conducted-

(a) by the Public Prosecutor, a Senior Public Prosecutor, a Deputy Public Prosecutor or an Assistant Public Prosecutor;

(b) subject to the control and direction of the Public Prosecutor, by the following persons who are authorised in writing by the Public Prosecutor:

(1) an advocate;

...

[Emphasis Added]

[6] The applicant argued that it is incumbent upon the respondent to furnish the written authorisation to her, and relied on the unreported Federal court's decision in the case of Dato' Sri Mohd Najib Hj Abdul Razak lwn. Pendakwa Raya (Rayuan Jenayah No: 05(L)-127-05-2019 (W)). The applicant produced a copy of the Federal court's order dated 7 August 2019. The relevant portion of the order relied by the applicant is as follows:

"...

SELANJUTNYA ADALAH DIPERINTAHKAN BAHAWA permohonan Perayu di daiam Notis Usul bertarikh 21 Disember 2018 adalah dibenarkan bagi perenggan 1 dan perenggan 2 SAHAJA sebagaimana berikut:

1. "Satu perintah bahawa responden dengan tidak melebihi tiga hari daripada tarikh Perintah ini, mengemukakan surat perlantikan yang telah diberikan oleh responden berkaitan dengan perlantikan Datuk Gopal Seri Gopal Sri Ram sebagai Ketua Timbalan Pendakwa Raya di bawah s 376(3) Kanun Tatacara Jenayah;

2. Satu perintah bahawa responden pada masa yang sama membekalkan kepada Pemohon sesalinan dokumen yang dikemukakan berikutan dengan Perenggan 1 di atas.

..."

[7] From a reading of t