Hearsay evidence is inadmissible in judicial review applications for mandamus, and the applicant must demonstrate a clear legal right and public duty for the relief sought.

JUDGMENT

Amarjeet Singh Serjit Singh J:

Introduction

[1] The applicant is a serving prisoner who had applied for a free pardon from His Majesty the Yang Di-Pertuan Agong ("His Majesty") after exhausting his legal rights at the Federal Court. The Federal Court had affirmed the conviction and sentence meted out to the applicant. The sentence was for a term of 12 years' imprisonment and a fine totalling RM210 million.

[2] The application for pardon was made pursuant to art 42 of the Federal Constitution . A meeting of the Pardons Board was convened and was presided by His Majesty. On 2 February 2024, it was announced by way of a media statement that after considering the views and advice of the Pardons Board, His Majesty had on 29 January 2024 granted the applicant a pardon by reducing the imprisonment term to 6 years and the fine to RM50 million. The order of His Majesty was produced as an exhibit by the applicant. The applicant refers to this order as the 'Main Order'.

[3] On 1 April 2024, the applicant filed the instant application for leave to commence judicial review under O 53 of the Rules of 2012, principally, for the following orders which are in the nature of mandamus to compel all or any of the respondents to do the following acts:

(1) to answer and/or confirm the existence of a supplementary order to the Main Order dated the same date (ie 29 January 2024) (which the applicant refers to as the 'Addendum Order') and which order provided that the applicant was to serve the reduced term of imprisonment under house arrest (prayer 1);

(2) to provide the applicant with a copy of the Main Order and the Addendum Order dated 29 January 2024.

[4] The remaining order is a consequential order to the effect that the applicant serve the remainder of his prison sentence under house arrest at his residence in Kuala Lumpur.

[5] The Attorney General appeared and opposed the application which was heard on 17 April 2024 on the ground that the prerequisites of mandamus were not met and that the test for leave was not satisfied. The application was heard in chambers as required by O 53 r 3(2) of the Rules of 2012.

Events Following The Hearing On 17 April 2024

[6] On the date of hearing of the leave application, as required by O 53 r 3(2) of the Rules of 2012, the following affidavits said to have verified the facts relied on in the O 53 statement were before me: Affidavit No1 (encl 3) and Affidavit No 2 (encl 9) affirmed by the applicant; and Affidavit No 3 (encl 13) affirmed by Ahmad Zahid bin Hamidi ("Ahmad Zahid"), the President of UMNO and the Deputy Prime Minister of Malaysia.

[7] After hearing the submissions of both parties, this Court adjourned the application to 5 June 2024 for a decision. In the meantime, parties were allowed to file further written submissions on the following issue: whether an affidavit verifying the facts relied on in the O 53 statement could contain hearsay material to verify the facts relied on in the O 53 statement. The written submissions were to be filed in this Court by the middle of May 2024.

[8] Instead of filing the written submissions, the applicant filed two further affidavits to verify the facts relied on: Affidavit No 4 (encl 26) affirmed by Wan Rosdy bin Wan Ismail, a Vice President of UMNO and also the Menteri Besar of Pahang ("Wan Rosdy") and Affidavit No 5 (encl 28) affirmed by the applicant. Both these affidavits were dated 21 May 2024 and 25 May 2024 respectively. The affidavits were followed by an application dated 25 May 2024 (encl 29) for this Court to accept and consider both the said affidavits for the purposes of the leave application. The application was opposed by the Attorney General. Suffice it to say that on 5 June 2024, I allowed the application and heard submissions by the parties. These developments resulted in the decision for leave being adjourned to 3 July 2024 for decision.

[9] One other event took place. It was this. On 25 April 2024, this Court received a letter from the solicitors