Opportunity must be given to accused to review AG's discretion if law misapplied - Federal Court

Chief Justice Tun Tengku Maimun Tuan Mat, in her 55-page judgment said the consequences of being charged include the irretrievable loss of reputation, distress and disruption of work and family relations.

"The Attorney-General's decision to prosecute could have enormous consequences on the accused persons, the injured party and society at large," she said.

She said in an appropriate, rare and exceptional case, the Attorney-General's prosecutorial discretion is amenable to judicial review.

She said an accused person ought to be given the opportunity to have the Attorney-General's prosecutorial discretion reviewed by way of judicial review if the law has been misunderstood or misapplied by the Attorney-General, who is also a public prosecutor.

Justice Tengku Maimun said this in the court's judgment which ruled that the former director of the Asian International Arbitration Centre (AIAC) Datuk Prof Dr N. Sundra Rajoo, was entitled to immunity from prosecution for acts committed while in office.

In the court's judgment, Justice Tengku Maimun said the court has the responsibility to prevent the criminal justice system from being arbitrarily used against an individual and to prevent an innocent person from going through criminal proceedings if the Attorney-General had failed to exercise his discretion in accordance with the law to prosecute.

"To allow a matter without merit to be pursued through criminal court would have huge impact on the accused's life and career and would cause unnecessary expenditure of time and effort and would place extra costs on the public purse," she said.

She said in appropriate and exceptional cases, it would be better to quash the decision to prosecute before the criminal proceedings commence so that unnecessary suffering of the accused caused by improper prosecution can be minimised.

On April 30, this year, the seven-member Federal Court bench led by Justice Tengku Maimun had allowed Sundra Rajoo's appeal and granted him a declaration that he was immune from prosecution for acts done within his official capacity.

Sundra Rajoo, 65, who was the head of AIAC from 2010 until late 2018, won his case in the High Court but the Court of Appeal overturned the decision after allowing the appeal by the Foreign Ministry, the Malaysian Anti-Corruption Commission (MACC), the government and the Attorney General.

He subsequently obtained leave to appeal to the Federal Court.

On Jan 22, last year, Sessions Court judge Azura Alwi struck out the three criminal breach of trust charges involving AIAC funds amounting to more than RM1 million against Sundra Rajoo after ruling that she was bound by the High Court decision that he (Sundra Rajoo) was entitled to immunity from prosecution for acts done in his official capacity.