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2022 MarsdenLR 3041
HIGH COURT MALAYA KUALA LUMPUR
SIVAKUMAR SOCKALINGAM & ANOR – Appellant
Versus
YANG BERHORMAT PEGUAM NEGARA MALAYSIA – Respondent
[Judicial Review Application No: WA-25-264-07-2021]
The applicants did not demonstrate locus standi for the judicial review as they are not adversely affected by the Public Prosecutor's decision under the presumption of legality concerning prosecutorial discretion.
Headnote:(A) Penal Code – Sections 298 and 298A – Criminal Procedure Code – Section 133 – Judicial review application regarding decision of Public Prosecutor not to prosecute individuals alleged to have insulted non-Muslims – Applicants sought declaration that decision was null and void and relief of certiorari and mandamus – Court determined applicants did not have locus standi as they are not adversely affected – Judicial review decisions of the AG are cloaked with presumption of legality – Applicants failed to provide compelling evidence to rebut presumption. (Paras 32).
(B)
Public Interest Litigation – Applicants not busybodies, but demonstrated interest concerning allegations affecting society – Court recognized need for a flexible approach in determining locus standi in public interest cases. (Paras 20, 32).
(C)
Prosecutorial Discretion – Attorney General's discretion in prosecutorial matters is subject to review but requires a higher threshold to overturn – Applicants did not establish mala fide or compelling evidence against AG’s decision. (Paras 26, 30, 31).
[1] This is an application for leave for judicial review.
[2] The application is supported by the affidavits in support of the 1st applicant ("AIS-3") and the 2nd applicant ("AIS-4") in Encls 3 and 4, respectively.
[3] The factual matrix that leads to this application for judicial review can be summarised as follows. The applicants lodged separate police reports ("the applicants' police reports") against Firdaus Wong Wai Hung ("Firdaus Wong") and Muhammad Zamri Vinoth ("Zamri Vinoth") on 21 January 2018 and 26 April 2019, respectively, for allegedly insulting non-Muslims, especially Hindus, via Facebook postings and YouTube videos.
[4] The applicants alleged that despite numerous police reports lodged against Firdaus Wong and Zamri Vinoth, no prosecution was instituted against them under s 298 or s 298A of the Penal Code (" PC ").
[5] Under s 298 of the PC , it is an offence for a person who, with deliberate intention, to wound the religious feelings of any other person. It is also an offence under s 298A of the to cause disharmony, disunity, or feelings of enmity, hatred or ill-will on the grounds of religion.
[6] One Shashi Kumar a/l Shanmuga ("Shashi Kumar") initiated two private prosecution proceedings under s 133 of the Criminal Procedure Code (" CPC ") at the Shah Alam Magistrates Court against Zamri Vinoth (BA-89-24-01/2021) and Firdaus Wong (BA-89-25-01/2021) respectively ("Shah Alam proceedings"). Section 133 (1)(d) of the provides that when a Magistrate takes cognisance of an offence under a complaint, then he shall examine the complainant upon oath and the substance of the examination of the complainant shall be reduced to writing.
[7] At the Shah Alam proceedings, the Deputy Public Prosecutor ("DPP") informed the learned Magistrate that no criminal prosecution would be instituted against either Zamri Vinoth or Firdaus Wong. In para 23 of his AIS-3, the 1st applicant affirmed as follows:
Saya telah mendapat tahu bahawa pada 26 April 2021, Timbalan Pendakwa Raya, yang hadir bagi pihak dan mewakili Responden telah memaklumkan Majistret bahawa pihak Responden telah memutuskan untuk tidak memulakan apa-apa prosiding bagi kesalahan-kesalahan jenayah terhadap kedua-dua Zamri Vinoth dan Firdaus Wong Wai Hung.
[8] The 2nd applicant made the same assertion in para 23 of his AIS-4:
Alasan yang diberikan kepada Mahkamah Majistret bagi tidak memulakan prosiding jenayah tersebut adalah kerana pihak polis telah mengklasifikasikan laporan-laporan polis terhadap kedua-dua individu berkenaan sebagai "Tiada Tindakan Lanjut" atau "No Further Action" (NFA).
[9] Aggrieved at what they were informed as transpired at the Shah Alam proceedings, the applicants filed an application to seek leave for judicial review for the following reliefs:
(a) A declaration that the decision of the respondent qua Public Prosecutor recorded at the Shah Alam proceedings ("the impugned decision") that the no criminal proceedings in respect of the criminal offences would be instituted against Zamri Vinoth and Firdaus Wong was null and void.
(b) That leave be granted to the applicants under O 53 r 3 of the Rules of 2012 (" ROC ") to apply for an order of certiorari to quash the impugned decision.
(c) That leave be granted to the applicants to make an application for an order of mandamus to compel the respondent qua Public Prosecutor to institute criminal proceedings against Firdaus Wong and Zamri Vinoth.
[10] The Attorney General ("AG") objects to this application for leave.
The Attorney General's Objections
[11] The objections of the AG are premised on two main grounds:
(a) The applicants lack locus standi in that they are not adversely affected by the impugned decision within the meaning of O 53 r 2(4) of the ROC . In any event, the impugned decision is directly linked to Shashi Kumar's police reports No Sri Muda 10757 and No Sri Muda 1762/2018 on Zamri Vinoth and Firdaus Wong, respectively. The Shah Alam proceedings were based on
