Shashi Kumar A/L Shanmugam v Ketua Polis Negara, Malaysia (W-01(IM)-562-10/2023)

SHASHI KUMAR A/L SHANMUGAM (NRIC NO.:731011-14-5889) [PRESIDENT OF GLOBAL HUMAN RIGHTS FEDERATION (GHRF)]

NG KIM HO (NRIC NO.: 610404-13-5197) [PRESIDENT OF SARAWAK ASSOCIATION FOR PEOPLE'S ASPIRATION (SAPA)]

BOBBY ANAK WILLIAM (NRIC NO.: 670409-13-5019) [PRESIDENT OF PARTI BANSA DAYAK SARAWAK (PBDS)]

SRI RAMESH A/L V. KANNAN (NRIC NO.: 770328-10-5561) (PRESIDEN OF PERTUBUHAN MALAYSIA TAMILARR MUNNETRA KALAGAM) ... APPELLANTS

PEGUAM NEGARA MALAYSIA ... RESPONDENTS [In the matter of the High Court of Malaya at Kuala Lumpur Application for Judicial Review No: WA-25-502-09/2022 Between

Shashi Kumar A/L Shanmugam (NRIC No.: 731011-14-5889) [President of Global Human Rights Federation (GHRF)]

Ng Kim Ho (NRIC No.: 610404-13-5197) [President of Sarawak Association for People's Aspiration (SAPA)]

Bobby Anak William (NRIC No.: 670409-13-5019) [President of Parti Bansa Dayak Sarawak (PBDS)]

Chan Tuck Loong (NRIC No.: 610904-10-5891) (Vice-President of Persatuan Bekas Pelajar Berpendidikan Sekolah Cina Malaysia)

Sri Ramesh A/L V. Kannan (NRIC No.: 770328-10-5561) (President of Pertubuhan Malaysia Tamillar Munnetra Kalagam) ... Applicants And

Ketua Polis Negara Polis DiRaja Malaysia

Peguam Negara Malaysia ... Defendants] CORAM: HASHIM BIN HAMZAH, JCA WONG KIAN KHEONG, JCA WAN AHMAD FARID BIN WAN SALLEH, JCA

My learned brother, Wan Ahmad Farid bin Wan Salleh JCA, had forwarded a draft judgment (Draft) which proposed a dismissal of this appeal (This Appeal). A. Introduction

Hashim bin Hamzah JCA had agreed with the Draft (Majority Decision). Regrettably, I have had the misfortune to dissent from the Majority Decision. With respect, I am of the view that This Appeal should be allowed (Dissenting Opinion).

This judgment provides the reasons for my Dissenting Opinion. B. Ex parte application in the High Court

The appellants (Appellants) filed an ex parte application (Ex Parte Leave Application) for leave of the High Court to file a Judicial Review application (JRA) against the following two parties:

The cause papers for the Ex Parte Leave Application were served on the AG's Chambers (AGC) pursuant to O 53 r 3(3) of the Rules of Court 2012 (RC).

On behalf of the AGC, the learned Senior Federal Counsel objected to the Ex Parte Leave Application (AGC's Objection).

The High Court upheld the AGC's Objection and dismissed the Ex Parte Leave Application with no order as to costs (High Court's Decision).

The High Court's Decision is based on the following two reasons:

Dissatisfied with the High Court's Decision, the Appellants filed This Appeal. C. What is the test to decide an Ex Parte Leave Application [Test (Ex Parte Leave Application)]?

I am of the view that the Test (Ex Parte Leave Application) is fulfilled if an applicant can satisfy a low threshold, namely, the applicant can fulfil the following two requirements-

(a) there is justification for argument on the hearing of the substantive JRA - please refer to the Federal Court's judgment in Mohamed Nordin bin Johan v Attorney-General, Malaysia [1983] 1 MLJ 68, at 70; OR

(b) there is some substance to support the JRA - please refer to the judgment of the Supreme Court in Association of Bank Officers, Peninsular Malaysia v Malayan Commercial Banks Association [1990] 3 MLJ 228, at 229. The following judgments of our apex courts (in chronology) support the above "low threshold" Test (Ex Parte Leave Application) -

(a) in Mohamed Nordin, at p. 70, Raja Azlan Shah Ag LP (as His Majesty then was) decided as follows- "We allowed the appeal and granted the appellant leave to apply for an order of certiorari because we are of the view that the learned judge was wrong in refusing leave as the point taken was not frivolous to merit refusal of leave in limine and justified argument on a substantive motion for certiorari." (emphasis added). It is to be noted that when Mohamed Nordin was decided, our Parliament had abolished appeals to Privy Council for constitutional and criminal matters. In other words, when the Federal Court decided Mohamed Nordin, the Federal Court was our apex court for criminal matters at that time;

(b) in JP Berthelsen v Director General of Immigration Malaysia & Ors [1987] 1 MLJ 134, at 135, Eusoffe Abdoolcader SCJ delivered the following judgment of the Supreme Court (our then highest court) - "At the outset of the hearing of the appeal before us we were of the view ex facie that leave should in fact have been granted in the court below as the point taken by the appellant was not frivolous to merit refusal of leave in limine and justified argument on a substantive motion for certiorari. We accordingly applied and followed the procedure adopted by the Federal Court in Mohamed Nordin bin Johan v Attorney General Malaysia [1983] 1 MLJ 68 (at page 70) and allowed the appeal, and granted leave to the appellant to apply for an order of certiorari." (emphasis added);

(c) according to Ajaib Singh SCJ in Association of Bank Officers, Peninsular Malaysia, at p.229- "At the outset of the hearing of the appeal before us we indicated to the parties that we would hear submissions on the issue of leave only. After giving due consideration to the evidence in this case and the submissions advanced by the parties we were of the view that leave to apply for an order of certiorari ought to have been given. In his grounds of judgment the learned Judicial Commissioner had gone further than the leave stage and embarked on substantial issues on merit. We did not think that this was the right approach when the application for leave to apply for an order of certiorari is made. The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application. On the evidence in this case we found that the appellants had prima facie an arguable case for the granting of the relief they were seeking. Their application was not frivolous or vexatious. There were grounds to consider the allegations made by the appellants and which could only be properly heard and determined on the substantive application for an order of certiorari after leave has been granted." (emphasis added);

(d) in Members of the Commission of Enquiry on the Video Clip Recording of Images of A Person Purported to be an Advocate and Solicitor Speaking on Telephone on Matters of Appointment of Judges v Tun Dato' Seri Ahmad Fairuz bin Dato' Sheikh Abdul Halim [2011] 6 MLJ 490, at [20], the following judgment of the Federal Court was delivered by Raus Sharif FCJ (as he then was) - [20] It is clear from the above that a person who is adversely affected by the decision of a public authority can make an application for a judicial review of that decision. But the person must first obtain leave before his substantive motion can be heard. At the leave stage without the need to go into depth of the abundance of authorities, suffice for us to state that the threshold for the granting of such leave is very low. Leave is normally granted if the application is neither frivolous nor vexatious and it justifies further argument on a substantive motion (see Association of Bank Officers, Peninsular Malaysia v Malaysian Commercial Bank Association [1990] 3 MLJ 228, Bandar Utama Development Sdn Bhd & Anor v Lembaga Lebuhraya Malaysia & Anor [1998] 1 MLJ 224, Mohamed Nordin bin Johan v Attorney-General Malaysia [1983] 1 MLJ 68 and JP Berthelsen v Director General of Immigration, Malaysia & Ors [1987] 1 MLJ 134).” (emphasis added); and

(e) in the Federal Court case of Ramli bin Ghani v Kementerian Kesihatan Malaysia & Anor [2022] 3 MLJ 674, at [52], Mohd. Zawawi Salleh FCJ decided as follows- [52] It is a well-settled principle that, at the leave stage, which is the threshold stage, the court will not go into substantial issues on merits. All the applicant has to do is to follow the threshold requirement by showing a prima facie case and that the application is not vexatious or frivolous. There must be some substance in the grounds supporting the application. It is also important to note that the application for leave is procedural and not substantive and is merely to obtain permission to bring proceedings for a substantive hearing (see: Iki Putra bin Mubarrak v Kerajaan Negeri Selangor [2020] 4 MLJ 213 at para 32; Association of Bank Officers, Peninsular Malaysia v Malayan Commercial Banks Association [1990] 3 MLJ 228 at p 229; Kamaruzaman bin Khalid v YB Menteri Sumber Manusia [1997] MLJU 96 at para 2; Clear Water Sanctuary Golf Management Bhd v Ketua Pengarah Perhubungan Perusahaan & Anor [2007] 6 MLJ 446 at p 457).” (emphasis added).

The "low threshold" Test (Ex Parte Leave Application) is to enable the High Court to sieve JRAs and ensure that frivolous, vexatious or baseless JRAs have not been filed - please refer to the Court of Appeal's judgment in Nor Hazliza bt Ismail & Anor v Mohamed Yusoff bin Shaik Madar [2024] 4 MLJ 770, at [67(a)].

With respect, in this case, the learned High Court Judge had failed to apply the "low threshold" Test (Ex Parte Leave Application).

I have perused the statement filed by the Appellants (Statement) pursuant to O 53 r 3(2) RC and the affidavit which verified the contents of the Statement under O 53 r 3(2) RC (Affidavit In Support). I am satisfied that the "low threshold" Test (Ex Parte Leave Application) had been fulfilled by the Statement and the Affidavit In Support as follows:

(a) there was justification for argument on the hearing of the substantive JRA; AND/OR

(b) there was some substance to support the JRA. D. Whether the High Court had correctly relied on Sundra Rajoo

I am of the respectful view that the High Court had erroneously relied on the Federal Court's judgment in Sundra Rajoo. This is because in Sundra Rajoo, the Federal Court had decided the JRA on its merits after leave for JRA was previously granted by the Court of Appeal (which reversed the High Court's refusal to allow the Ex Parte Leave Application). Reproduced below is the relevant passage of the Federal Court's judgment in Sundra Rajoo, at [15]: [15] In any case, the appellant's application for leave to commence judicial review proceedings against the three charges was eventually dismissed. On appeal, the Court of Appeal held that the appellant had met the threshold for leave. The Court of Appeal reversed the High Court and the matter was remitted to the High Court for hearing of the substantive application before a different judge. The substantive judicial review application was heard and decided on 31 December 2019 pending which the criminal proceedings in the sessions court were stayed. The application for judicial review was allowed by the High Court. Aggrieved, the respondents appealed to the Court of Appeal. The appeal was allowed." (emphasis added). E. Should the IGP be cited as a putative co-respondent in this JRA?

With regard to the learned High Court Judge's ground that the IGP should not have been made a putative co-respondent in the JRA, I am of the following view:

Premised on the above grounds, I will allow This Appeal with the following order: