Aziah Ali J

[1]The applicant is a Member of Parliament for the Permatang Pauh constituency and is the opposition leader in Parliament. The applicant is charged under s 377Bs 51A(1)(c)

[2]Pursuant to s 51A(1)(c) of the CPC, the first respondent, who is a deputy public prosecutor at the attorney general's chambers, signed an undated copy of a written statement of facts favourable to the defence of the applicant (Kenyataan Bertulis Mengenai Fakta-Fakta Yang Memihak Kepada Pembelaan) which was served on the applicant's solicitors on 24 June 2009. The written statement states 'TIADA' (exh DSAI 7). The applicant says that this may mean that there were no favourable facts, or it may also mean that there are favourable facts which are being withheld pursuant to the public interest immunity provision in s 51A(2) of the CPC. Either way, the applicant says that it is judicially reviewable.

[3]The applicant filed this application for leave for judicial review pursuant to O 53 of the Rules of the High Court 1980 ('the RHC'). The reliefs the applicant is seeking in the judicial review application are as follows:

(a)in respect of the first, second and third respondents:

(i)the declaratory order that the undated written statement of favourable facts which was served to the applicant on 24 June 2009 in the matter of the High Court of Malaya in Kuala Lumpur, Criminal Case No MTJ3–45–9 of 2009 did not comply with s 51A(1)(c) of the CPC, is null and void; and

(ii)an order of certiorari to nullify and set aside the undated written statement of favourable facts which was served to the applicant on 24 June 2009 in the matter of the High Court of Malaya in Kuala Lumpur, Criminal Case No MTJ3–45–9 of 2009;

(b)in respect of the first and second respondents:

(i)a prohibition order to prohibit the first and second respondents from conducting or continuing the prosecution and/or any proceedings against the applicant until all facts favourable to defence in the form of a written statement of facts favourable to the defence of the accused pursuant to s 51A(1)(c) of the CPC given to the applicant in the matter of High Court of Malaya in Kuala Lumpur, Criminal Case No MTB 45–9 of 2009;

(ii)an injunction against the first and second respondents from conducting or continuing the prosecution and/or any proceedings against the applicant until all facts favourable to defence in the form of a written statement of facts favourable to the defence of the accused pursuant to s 51A(1)(c) of the CPC given to the applicant in the matter of High Court of Malaya in Kuala Lumpur, Criminal Case No MTB-4S-9 of 2009; and

(iii)an order to stay all actions and/or continuing the prosecution and/or any proceedings by the first and second respondents against the applicant until the disposal of the judicial review application;

(c)in respect of the second respondent:

(i)order of mandamus to supply to the applicant all facts favourable to defence in the form of a written statement of facts favourable to the defence of the accused pursuant to s 51A(1)(c) of the CPC in the matter of High Court of Malaya in Kuala Lumpur, Criminal Case No MTJ3–45–9 of 2009; and

(d)the applicant is also seeking damages, costs and other consequential reliefs.

SUBMISSIONS FOR THE APPLICANTA good arguable case

[4]Counsel for the applicant submits that leave should be granted if the applicant can demonstrate an arguable case which merits further investigation on an inter partes basis, and that prima facie, the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application (Association of Bank Officers, Peninsular Malaysia v Malayan Commercial Banks Association Clear Water Sanctuary Golf Management Bhd v Ketua Pengarah Perhubungan Perusahaan & Anor Tuan Hj Sarip Hamid & Anor v Patco Malaysia Bhd YAM Tunku Dato' Seri Nadzaruddin Ibni Tuanku Ja'afar v Datuk Bandar Kuala Lumpur & Anor

Locus standi

[5]It is submitted that the applicant has been adversely affected by the unlawful