CHEY AH KOW v Jabatan Peguam Negara (BA-25-145-12/2024)

Perlembagaan Persekutuan; Dan Dalam perkara Seksyen 302 Kanun Prosedur Jenayah; Dan Dalam perkara Seksyen 25 (2) Akta Mahkamah Kehakiman 1964 dibaca bersama Jadual 1 kepadanya; Dan Dalam perkara Aturan 53 Kaedah-Kaedah Mahkamah 2012 BETWEEN CHEY AH KOW (NRIC NO.: 550308-01-5521) APPLICANT AND

NG TZE SHEN (NRIC NO.: 920420-10-5485) RESPONDENTS

The applicant filed an application for leave to commence judicial review pursuant to Order 53 Rule 3(1) of the Rules of Court 2012 on 22 December 2024.

The Honourable Attorney General objected to this application for leave.

This court dismissed this application by the applicants for leave to commence judicial review proceedings. This is the grounds of this court in dismissing the applicants’ application for leave to commence judicial review proceedings.

The applicant sought the following reliefs in Enclosure 1 as reproduced below: “1. Bahawa Pemohon diberikan kebenaran untuk memohon suatu perintah Certiorari untuk membawa ke Mahkamah yang mulia ini bagi tujuan ia dibatalkan, dan untuk membatalkan keputusan Responden Pertama pada 02/10//2024 untuk mendakwa Responden Kedua di bawah Seksyen 43 (1) Akta Pengangkutan Jalan Raya 1987 dan bukannya (instead of) Seksyen 41 (1) Akta Pengangkutan Jalan Raya 1987 dalam No. Kes Jenayah: BH-83- 977-10/2024: Pendakwaraya lwn

Bahawa Pemohon diberikan kebenaran untuk memohon suatu perintah deklarasi bahawa keputusan Responden Pertama pada 02/10//2024 untuk mendakwa Responden Kedua di bawah Seksyen 43 (1) Akta Pengangkutan Jalan Raya 1987 dan bukannya (instead of) Seksyen 41 (1) Akta Pengangkutan Jalan Raya 1987 dalam No. Kes Jenayah: BH-83-977- 10/2024: Pendakwaraya lwn Ng Tze Shen adalah batal dan tidak sah dan/atau dibuat melebihi bidang kuasa dan/atau kuasa-kuasa yang diberikan kepada Responden Pertama menurut Artikel 145(3) Perlembagaan

Bahawa Pemohon diberikan kebenaran untuk memohon suatu deklarasi bahawa keputusan Responden Pertama pada 02/10//2024 untuk mendakwa Responden Kedua di bawah Seksyen 43 (1) Akta Pengangkutan Jalan Raya 1987 dan bukannya (instead of) Seksyen 41 (1) Akta Pengangkutan Jalan Raya 1987 dalam No. Kes Jenayah: BH-83-977-10/2024: Pendakwaraya lwn Ng Tze Shen adalah batal dan tidak sah dan/atau tidak munasabah dalam ertikata Wednesbury dan tercemar dengan tidak rasional;

Bahawa Pemohon diberikan kebenaran untuk memohon suatu perintah Mandamus untuk mengarahkan Responden Pertama bertindak mengikut undang-undang dan, jika Responden Pertama menganggap sesuai dan wajar, untuk mendakwa Responden Kedua di bawah Seksyen 41 (1) Akta Pengangkutan Jalan Raya 1987 di Mahkamah yang mulia; Dan sebagai tambahan atau alternatif kepada Permohonan-permohonan (1) hingga (4) di atas:-

Bahawa Pemohon diberikan kebenaran untuk memohon suatu perintah Mandamus untuk mengarahkan Responden Pertama untuk membekalkan Pemohon dengan segala maklumat, dokumentasi, sebab, asas dan butirbutir yang mana Responden Pertama bergantung kepada dalam mencapai keputusan Responden Pertama pada 02/10/2024 untuk mendakwa Responden Kedua di bawah Seksyen 43 (1) Akta Pengangkutan Jalan Raya 1987 dan bukannya (instead of) Seksyen 41

Akta Pengangkutan Jalan Raya 1987 dalam No. Kes Jenayah: BH-83-977-10/2024: Pendakwaraya lwn Ng Tze Shen;

Bahawa Pemohon diberikan kebenaran untuk memohon suatu perintah Mandamus untuk mengarahkan Responden Pertama untuk memberikan kepada Pemohon (bila dan pada masa dipohon oleh Pemohon), dengan segala maklumat, dokumentasi, sebab, asas dan butir-butir yang berkaitan dengan status siasatan yang telah dijalankan dan/atau yang sedang dijalankan dan/atau yang akan dijalankan oleh Responden Pertama terhadap, antara lain, Responden Kedua, dan pihak-pihak lain yang menjadi sebahagian daripada sebab Responden Pertama membuat keputusan pada 02/10/2024 untuk mendakwa Responden Kedua di bawah Seksyen 43 (1) Akta Pengangkutan Jalan Raya 1987 dan bukannya (instead of) Seksyen 41 (1) Akta Pengangkutan Jalan Raya 1987 dalam No. Kes Jenayah: BH-83- 977-10/2024: Pendakwaraya lwn Ng Tze Shen, termasuk memberitahu Pemohon akan sebarang keputusan Responden Pertama untuk mendakwa Responden Kedua di bawah Seksyen 41 (1) Akta Pengangkutan Jalan Raya 1987 di Mahkamah yang mulia;

Bahawa Mahkamah yang mulia ini membenarkan relif selanjutnya dan/atau yang lain dan/atau perintah-perintah yang dianggap sesuai dan adil; dan

Bahawa tiada perintah terhadap kos.”

The facts of this case are garnered from documents filed before this court.

On 14 April 2024 at approximately 7:30 a.m., an individual named Chey Yushen (NRIC No: 930111-14-6581) [“the deceased”] was driving a car with Registration No: WC 8366 N [“the deceased's vehicle”] on Jalan Sungai Long in the District of Hulu Langat, Selangor. At that time, the Second Respondent was also driving a vehicle, a Jeep with Registration No: VLM 6693 [“the Second Respondent’s vehicle”], on that same road, exceeding the speed limit of 35 km/h set for the road.

The Second Respondent was driving recklessly and in a dangerous manner and collided with the deceased's vehicle, causing both the deceased’s vehicle and the Second Respondent’s vehicle to be thrown and overturned onto the road divider. The accident resulted in the death of the deceased. The deceased’s vehicle was deemed irreparable (total loss).

The type of road involved was neither a highway nor a standard public road, but a residential area road. The road is also busy, with vehicles frequently entering and exiting along that stretch. The authorities had also installed speed bumps along that road, and due to the mentioned factors, the speed limit set by the authorities for that road was only 35 km/h.

The Second Respondent's vehicle was driven above the stipulated speed limit, ultimately causing the death of the deceased.

Furthermore, the Second Respondent’s driving license had been suspended by the Court on 01 November 2023 for a period of 2 years due to a previous offence, under Criminal Case No: BBB-83-2957-10/2023; Public Prosecutor v. Ng Tze Shen.

According to the Applicant, the Second Respondent should have been charged in Court under Subsection 41(1) of the Road Transport Act 1987. However, on 02/10/2024, the First Respondent made the decision to charge the Second Respondent in the Kajang Magistrates’ Court under Subsection 43(1) of the Road Transport Act 1987 in Criminal Case No: BH- 83-977-10/2024: Public Prosecutor v. Ng Tze Shen [“the said Decision”].

With regard to the law applicable for leave to commence judicial review, there are numerous authorities on this point. The Federal Court in WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Bhd [2012] 4 CLJ 478 expounded the test for leave to commence judicial review as reproduced below: “[12] …Without the need to go into depth of the abundant authorities, suffice if we state that leave may be granted if the leave application is not thought of as frivolous, and if leave is granted, an arguable case in favour of granting the relief sought at the substantive hearing may be the resultant outcome. A rider must be attached to the application though ie unless the matter for judicial review is amenable to judicial review absolutely no success may be envisaged.”

The test laid down for leave to commence a judicial review in WRP Asia Pacific Sdn Bhd (supra) are as follows:

whether the subject matter is amenable to judicial review; and if so,

(ii) from the materials available, whether the application is frivolous and if not thought as frivolous and if leave is granted, consider that the applicant has an arguable case which lean towards him obtaining the relief sought at the end of substantive hearing.

The principles governing applications for leave to commence judicial review proceedings have also been set out in Tang Kwor Ham & Ors v. Pengurusan Danaharta Nasional Bhd & Ors [2006] 1 MLRH 507; [2006] 1 CLJ 927; [2006] 5 MLJ 60 at 69 where Gopal Sri Ram JCA (as His Lordship then was) held: “[10] …. the High Court should not go into the merits of the case at the leave stage. Its role is only to see if the application for leave is frivolous…. So too will the court be entitled to refuse leave if it is a case where the subject matter of the review is one which by settled law (either written law or the common law) is non-justiciable.”

Additionally, the Supreme Court in Association of Bank Officers, Peninsular Malaysia v. Malayan Commercial Banks Association [1990] 1 CLJ Rep 33 (SC) stated the requirement for the application to challenge an Industrial Court Award to show, prima facie, that it is not frivolous or vexatious and there is substance in the proposed challenge. The Supreme Court stated: “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… 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.”

It is trite that the applicant will have to satisfy the tests propounded in the abovementioned cases in order to secure leave to commence the judicial review proceedings. At this stage, the court need not go into the merits of the case, but only to determine if the subject matter is amenable to judicial review or whether the application for leave is frivolous or vexatious.

This application for leave was objected to by the Honourable Attorney General. The Honourable Attorney General submitted that the application for leave should be dismissed on the following grounds:

locus standi; and

(ii) Article 145 of the Federal Constitution Locus Standi

Learned Federal Counsel for the Honourable Attorney General argued that the Applicant is not a party affected by the First Respondent’s decision to charge the Second Respondent under subsection 43(1) of the Road Transport Act 1976. The Applicant has not demonstrated to this court how the Applicant is affected by the First Respondent’s decision to charge the Second Respondent under Subsection 43(1) of the Road Transport Act 1976.

The person affected by the First Respondent’s decision is the Second Respondent. Upon conclusion of the trial in Court, if convicted under Subsection 43(1) of the Road Transport Act 1976, it is the Second Respondent who will be subject to punishment by the Court, namely imprisonment and a fine.

Therefore, learned Federal Counsel argued that the Applicant has no standing to file this judicial review application as the Applicant is not an affected party under Order 53 Rule 2(4) of the Rules of Court 2012.

In this regard, this court made reference to the Order 53 Rule 2(4) of the Rules of Court 2012 which provides: “Any person who is adversely affected by the decision, action or omission in relation to the exercise of the public duty or function shall be entitled to make the application.”

Thus, the issue is whether the Applicant is a person affected by the decision of the First Respondent. It is not denied and not in contention that the Applicant is the father of the deceased. It is the Applicant’s son which died as a result of the accident involving the Second Respondent.

The only fact before this court is that the Applicant is the father of the deceased. There is naught before this court to indicate or demonstrate how the Applicant is an aggrieved person within the meaning of Order 53 Rule 2(4) of the Rules of Court 2012.

As it is unclear how the Applicant is aggrieved by the decision of the First Respondent, this court is of the considered view the Applicant does not have locus standi to be an Applicant in this judicial review. In this regard, this court agrees with the objection by the learned Federal Counsel.

Learned Federal Counsel for the Honourable Attorney General submitted that this Court cannot compel the Attorney General/ Public Prosecutor to initiate or conduct any criminal proceedings that the Attorney General/ Public Prosecutor does not intend to pursue. In support of this contention, learned Federal Counsel cited Article 145 (3) of the Federal Constitution which reads as reproduced below: “(3) The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.”

This provision in the supreme law clearly grants the Attorney General/ Public Prosecutor broad discretion in the control and management of all criminal prosecutions. The Attorney General/ Public Prosecutor not only has the authority to initiate and conduct proceedings for any offence, but also to discontinue proceedings that have already been initiated. Furthermore, the Courts have no power to compel the Attorney General/ Public Prosecutor to initiate criminal proceedings he chooses not to pursue, or to continue with proceedings he has decided to terminate. [See: Long Samat & Ors v. PP [1974] 1 LNS 80; [1974] 2 MLJ 152 FC; Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50 and Ramalingam Ravinthran v Attorney General [2012] 2 SLR 49.

Pertaining to the power and discretion of the Attorney General/ Public Prosecutor to prosecute criminal cases or otherwise, the Federal Court in Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 5 MLJ 209 decided that the Attorney General’s/ Public Prosecutor’s discretion under Article 145(3) of the Federal Constitution is subject to a higher and stricter level of scrutiny.

It is instructive to reproduced the relevant paragraphs from Sundra Rajoo (supra) for purposes of this application: “[109] That said, we accept that at stake in all review cases is the notion that the courts must be cautious not to run awry of the fine dividing line of the doctrine of separation of powers. In this regard, while the AG/PP's powers are reviewable, the AG/PP's discretion under art. 145(3) of the FC, as a matter of policy, remains subject to a higher threshold of scrutiny. … [112] Article 145(3) of the FC provides the AG/PP with a wide discretion to institute, conduct or discontinue any proceeding for a criminal offence. This wide discretion means the AG/PP has sole and exclusive discretion in that only he/she can exercise such power. However, the AG/PP does not have absolute or unfettered discretion under art. 145(3). As alluded to in the preceding discussion and following from it, it is our judgment that in appropriate, rare and exceptional cases, such discretion is amenable to judicial review. [113] In all challenges against the decisions of the AG/PP exercising his powers under art. 145(3) of the FC, the position is that his decisions are cloaked with the presumption of legality. The onerous burden lies on the challenging party to overcome the strong presumption of legality with compelling prima facie evidence of grounds to review the AG/PP's decision within the recognised reasons for judicial review. [114] Based on the foregoing authorities, it can be surmised that any challenge must therefore pass a two-step threshold which must be satisfied at the leave stage of any application for judicial review. [115] Firstly, the burden of proof lies on the applicant. The applicant will have to show that he has a legal basis to challenge the decision of the AG/PP. This refers to the traditional grounds of judicial review and other bases implicitly recognised by the earlier judgments on this subject, including but not limited to:

illegality;

(ii) procedural impropriety (eg, breach of the rules of natural justice);

(iii) irrationality (considering irrelevant considerations or ignoring relevant and material considerations); and

(iv) mala fides. [116] Once the above legal grounds or any of them are clearly set out, the applicant will then have to adduce compelling and prima facie proof that the decision or omission of the AG/PP falls within those grounds or any one of them. In other words, the courts are to presume, having regard to the doctrine of separation of powers, that all or any of the grounds were not made out unless the evidence singularly leads to the inevitable conclusion that they have been made. It is only after that threshold is crossed that the AG/PP bears the burden to justify his actions or inactions to the court…”

Founded on the aforementioned paragraphs, the Applicant is required to satisfy the requirements of the two-step threshold test at this leave stage. Firstly, the Applicant must demonstrate to the Court that there is a legal basis to challenge the decision of the First Respondent. Secondly the Applicant must present strong, credible, and prima facie evidence that the decision of the First Respondent is unlawful, procedurally improper, irrational, and made in bad faith.

Based on the documents before this court, the Applicant contends that the Second Respondent was unfit to drive due to a suspended licence and drove recklessly in a residential area, causing a fatal accident and total loss of the deceased's vehicle. It was argued that despite these factors, the First Respondent decided to charge the Second Respondent under the lesser offence in subsection 43(1) Road Transport Act 1987 instead of subsection 41(1) of the Road Transport Act 1987. The Applicant contends this decision was ultra vires, irrational, and beyond the First Respondent's jurisdiction, especially as it failed to consider key facts and did not communicate adequately with the deceased’s family.

These factors put forth by the Applicant, in the view of this court does not fulfil the two step threshold test as per Sundra Rajooo (supra). This is because the factors and/or allegations made by the Applicant before this court is not substantiated by prima facie evidence that the decision of the First Respondent to charge the Second Respondent under subsection 43(1) of the Road Transport Act 1976 is illegal.

Based on the Applicant's Supporting Affidavit and the attached Exhibits, the Applicant has failed to identify a valid ground for judicial review and has failed to present strong, concrete, and convincing prima facie evidence that the First Respondent’s decision to charge the Second Respondent under subsection 43(1) of the Road Transport Act 1976 is unlawful.

Moreover, this court is satisfied that First Respondent had exercised the First Respondent’s discretion correctly and legally. The discretion of the First Respondent to initiate, conduct, or discontinue any proceedings for an offence is clearly provided for under Article 145(3) of the Federal Constitution.

In all challenges to the decisions made by the Attorney General/Public Prosecutor under Article 145(3) of the Federal Constitution, the decisions are presumed to be lawful. The party challenging these decisions bears the heavy burden of presenting compelling prima facie evidence to overcome this strong presumption of legality, demonstrating valid grounds for judicial review within the established criteria. In this application for leave to commence judicial review, this court is satisfied the Applicant had failed to discharge this evidential burden.

For the aforementioned reasons, this court is satisfied the Applicant had not met the threshold for leave to commence judicial review proceedings. Therefore, this application for leave to commence judicial review proceedings (Enclosure 1) is hereby dismissed with no order as to costs. Dated: 14th August 2025 SHAHNAZ BINTI SULAIMAN JUDGE HIGH COURT OF MALAYA, SHAH ALAM Counsel: For the Applicant: Ganaesh Rau a/l B.A. Ramarau Messrs The Chambers of Ganaesh Rau Advocates & Solicitors No. 33, Jalan Mutiara 6/5, Taman Selayang Mutiara 68100 Batu Caves Selangor For the Respondent: FC Nur Aifaa binti Che Abdullah Unit Guaman Penasihat Undang-Undang Negeri Selangor Darul Ehsan Tingkat 4, Podium Utara,