AG must be careful in exercising prosecution power: Federal Court

 

The Federal Court has strongly advised the attorney-general (AG) to exercise the power of prosecution carefully as those slapped with criminal charges may have their livelihood jeopardised.

Through a written appeal judgment signed by Chief Justice Tengku Maimun Tuan Mat, the apex court ruled that the AG’s decision to prosecute, if done based on a misunderstanding of the law, can have enormous consequences for the accused person, the injured party, and society at large.

The judgment was in relation to former Asian International Arbitration Centre (AIAC) director N Sundra Rajoo’s successful appeal to the Federal Court, for a declaration that he enjoys legal immunity from prosecution for alleged acts committed while in office.

“For an accused in particular, the consequences of being charged include the irretrievable loss of reputation, distress and disruption of work and family relations.

“If the law has been misunderstood or misapplied by the AG/PP (public prosecutor), as apparent in the present appeal, the appellant ought to be given an opportunity to have such discretion reviewed by way of judicial review.

“Further, 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 AG/PP had failed to exercise his discretion in accordance with the law to prosecute," the Federal Court ruled.

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

“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,” the judgement read. 

On April 30 when the apex court allowed Sundra Rajoo’s appeal, it ruled that the appellant was immune from prosecution for acts done within his official capacity.

Former AIAC director N Sundra Rajoo

“In our view, the word 'legal process' employed in Part II of the Second Schedule of the International Organisation (Privileges and Immunities) Act 1992 includes criminal proceedings,” the Federal Court said.

The Federal Court noted that the words "immunity from suit or from other legal processes” in the Second Schedule of the International Organisation (Privileges and Immunities) Act 1992, includes criminal proceedings.

It also ruled that despite the AG having sole and exclusive discretion to commence, conduct or discontinue any criminal proceedings, the AG does not have absolute and unfettered discretion in appropriate, rare and exceptional cases. It pointed out that such discretion can be subjected to judicial review.

On June 25 last year, the Court of Appeal set aside a Kuala Lumpur High Court ruling that Sundra Rajoo was immune from prosecution for alleged acts perpetrated while in office. His appeal before the Federal Court was to quash this Court of Appeal decision.

On Dec 31, 2019, the Kuala Lumpur High Court had allowed Sundra Rajoo’s judicial review which sought to uphold his immunity from prosecution.

The High Court had granted him a declaration that he was immune as a former high ranking AIAC officer for acts purportedly done in his official capacity.

Sundra Rajoo headed AIAC from 2010 until late 2018.

He had filed the judicial review application at the Kuala Lumpur High Court in early March 2019, in order to uphold his immunity from possible arrest and prosecution.

However later that same month, he was charged at the Kuala Lumpur Sessions Court with three counts of criminal breach of trust (CBT) in relation to over RM1 million in AIAC funds.

Following the High Court ruling on Sundra Rajoo’s immunity, the Sessions Court struck out the three CBT charges on Jan 22 last year.

The lower court had ruled that it was bound by the High Court verdict that the accused was entitled to immunity from prosecution.

However, the four respondents targeted in Sundra Rajoo’s judicial review - the home minister (who is not named), the AG, the MACC, and the government - went to the Court of Appeal to quash the High Court decision. - Mkini