A Prohibition Order under Section 98 of the Criminal Procedure Code cannot be collaterally challenged in a judicial review without first exhausting remedies available under Section 98(4).

JUDGMENT

Wan Ahmad Farid Wan Salleh J:

The Background Facts

[1] Sometimes in December 2021, it was widely reported by the media that a member of the Malaysian Anti-Corruption Commission Consultation and Corruption Prevention Panel ("the MACC Panel"), Edmund Terrence Gomez ("Gomez"), had resigned. According to the report, the reason for Encik Gomez's resignation was because of the purported inaction of the MACC Advisory Board to act on his complaints against the MACC Chief Commissioner, Tan Sri Azam bin Baki.

[2] The complaint against Tan Sri Azam was in respect of his alleged ownership of shares in a company.

[3] In a press conference made on 5 January 2022, Tan Sri Azam explained that his share account had been used by his brother to purchase stocks in the open market. On the same day, the Chairman of the MACC Advisory Board announced that the Board was satisfied with Tan Sri Azam's explanation that he had no beneficial interest in the shares.

[4] However, the announcement of the Chairman of the MACC Advisory Board was challenged by 6 other members of the Board. In a joint statement on 8 January 2022, the 6 members of the Advisory Board distanced themselves from the Chairman's statement.

[5] Despite the numerous statements made by various parties, including the Secretary of Dewan Rakyat, the Securities Commission and the Parliamentary Select Committee on Finance and Economy, there was no evidence that any investigation was commenced against Tan Sri Azam.

[6] Aggrieved, on 18 January 2022, a civil movement called "Tangkap Azam Baki" (Arrest Azam Baki) announced that it would be organising a peaceful assembly ("the Rally") to protest against the alleged inaction against Tan Sri Azam.

[7] On 20 January 2022, the putative 1st respondent, ACP Noor Dellhan Yahya, obtained an order prohibiting any person from having an assembly in three locations which were Dataran Merdeka, Sogo and Masjid Jamek. The order ("Prohibition Order") was issued by the Kuala Lumpur Magistrate's Court vide Criminal Application No: WA-89-84-01-2022. The Prohibition Order inter alia states as follows:

OLEH YANG DEMIKIAN perarakan dan perhimpunan dari Kompleks Sogo, Jalan Tuanku Abdul Rahman, Kuala Lumpur dan LRT Masjid Jamek, Kuala Lumpur dalam radius satu (1) kilometer serta perhimpunan di Dataran Merdeka, Kuala Lumpur pada 22 Januari 2022 #TangkapAzamBaki Rombak SPRM adalah dengan ini dilarang, dan semua orang awam diberi amaran tidak menyertai perarakan dan perhimpunan tersebut, tidak mengunjungi atau melawat tempat-tempat tersebut atau mengambil apa-apa bahagian dalam perhimpunan itu.

[8] However, subsequent to the issuance of the Prohibition Order, the organisers of the Rally announced that the Rally would be relocated outside the Bangsar LRT Station ("New Location").

[9] The 1st applicant sought to attend the rally. However, the 1st applicant contended that the respondents had unlawfully restrained her from exercising her fundamental rights. In para 16 of her affidavit in support of the application for leave in encl 3 ("AIS-3"), the 1st applicant affirmed as follows:

We sought to attend the Rally. However, the respondents by their actions - including unlawfully procuring a Magistrate's Prohibition Order (as defined below) - purporting to prevent any person from assembling at the original Rally locations, blocking roads, public transport access and pedestrian walking access in various parts of Kuala Lumpur -unlawfully restrained us from exercising our fundamental liberties to express ourselves and to gather in peaceful assembly with other Malaysians. Further, I contend that the Respondents abused or misinterpreted the Order to shut down effectively the whole of the centre of Kuala Lumpur which has had negative impact on the businesses in the area.

[10] Be that as it may, the 1st applicant eventually arrived at the Rally and participated in the same, although she had to make a detour resulting in her taking a longer route.

The Judicial Review

[11] Aggrieved, the applican