Use discretion when deciding on a prosecution, Federal Court tells AG

 

N Sundra Rajoo (left) and lawyers Abdul Shukor Ahmad, K Shanmuga and Baljit Singh Sidhu at the High Court in Kuala Lumpur at an earlier hearing.

PUTRAJAYA: The Federal Court has cautioned the attorney-general (AG) to exercise his prosecutorial discretion sparingly to charge a person with a criminal offence as it will have a wide impact on his life and livelihood.

Chief Justice Tengku Maimun Tuan Mat said such a decision would also have enormous consequences on the injured party and society at large.

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

Her remarks were contained in a 55-page judgment which declared that former director of the Asian International Arbitration Centre (AIAC) N Sundra Rajoo enjoyed immunity from prosecution for acts done in that capacity.

A seven-member bench had delivered its oral ruling on April 30 to allow Sundra’s appeal against a Court of Appeal decision.

Tengku Maimun said if the law had been misunderstood by the AG, who is also the public prosecutor, Sundra ought to be given an opportunity to have such discretion reviewed by way of judicial review.

Further, she 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 AG had failed to exercise his discretion in accordance with the law.

“To allow a matter without merit to be pursued through criminal court would have a huge impact on the accused’s life and career.

“It would cause unnecessary expenditure of time and effort and will place extra costs on the public purse,” she said.

Tengku Maimun said in appropriate and exceptional cases, it would be better to quash the decision to prosecute before the criminal proceeding commenced so that the unnecessary suffering of the accused can be minimised.

She said Sundra had successfully established in fact and law that his immunity status extended to criminal proceedings, as provided under the International Organisations (Privileges and Immunities) Act 1992.

Sundra’s functional immunity, she said, included immunity from criminal proceedings and he acted in his capacity to safeguard the interests of AIAC and Asian-African Legal Consultative Organisation (AALCO), the parent body of AIAC.

Sundra was charged in the Kuala Lumpur sessions court on March 16, 2019, with three counts of criminal breach of trust (CBT) amounting to RM1.1 million, allegedly committed at the AIAC premises on Jalan Sultan Hishamuddin here between Aug 17 and Dec 8 in 2018.

He filed a judicial review application in the High Court the same month.

In December 2019, judge Mariana Yahya quashed the CBT charges on the grounds that he had immunity which could not be arbitrarily waived.

Mariana said that removing Sundra’s immunity would be against the 2013 host country agreement signed between Putrajaya and AALCO.

She said it was revealed that Wisma Putra had written to AALCO to waive Sundra’s immunity, but this was rejected by the secretary-general.

On Jan 22 last year, sessions judge Azura Alwi struck out the three CBT charges against Sundra as she was bound by Mariana’s ruling.

Following an appeal by the government, judge Hanipah Farikullah, who chaired a three-member Court of Appeal panel last year, held that the right forum to determine Sundra’s immunity was the criminal court and not the civil court. - FMT