Choy Joon Hau v Pendaftar Mahkamah Rayuan Malaysia (WA-25-143-04/2026)

On 25.4.2026, the Applicant received an email from the Deputy Registrar of the Court of Appeal, Puan Aznee Salmie binti Ahmad notifying him that the matter has been referred to the Panel of Judges for further directions, as the prescribed filing date in the EFS system has purportedly expired. During the hearing of this application on 30.4.2026 before this court, the Applicant himself had informed and confirmed that the appeal before the Court of Appeal had been adjudicated on 29.4.2026. C. FINDINGS OF THE COURT [5] Under Order 53 rule 3 of the ROC 2012, at the leave stage, the involvement of the Attorney General (hereinafter referred to as ‘the AG’) is expressly recognised. “ (3) The applicant must give notice of the application for leave not later than three days before the hearing date to the Attorney General’s Chambers and must at the same time lodge in those Chambers copies of the statement and affidavits”.

Upon being served the cause papers, the AG can choose to appear or not to appear at the leave stage. If the AG appears, the Court has no jurisdiction not to hear him. In Kanawagi a/l Seperumaniam v Dato’Abdul Hamid bin Mohamad [2004] 5MLJ 495, it was held: S/N XckFFpiICkCKq5g1Zwkhug **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 “ [4] There is a good reason why the applicant is required to serve the cause papers on the AG. The rule is based on the principle that judicial review is a principle tool of ‘public’ applicable to ‘public’ bodies in claims brought before a specialized administrative court. In Malaysia, this administrative court is the High Court in its originating jurisdiction. As public bodies impliedly attract public interest and the guardian of public interest is the AG, this provision makes the AG a nominal party in all judicial review applications. The intention of this rule was to ensure that the AG vets all judicial review applications in order to ascertain if his participation is warranted. Whether the AG elects to appear or not is solely at his discretion. An if the AG does elect to appear by himself or his representative then the court is bound to give a hearing and thereafter decide the matter. The court has no jurisdiction not to hear the AG……”. This Court agrees with the learned SFC’s submission, the role and presence of the AG at the leave stage is to assist the court in sieving out frivolous applications by addressing the court of any particular features of the application that may not warrant the leave to be given, S/N XckFFpiICkCKq5g1Zwkhug **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 D. TEST OF GRANTING LEAVE [7] The test applicable in determining the grant or otherwise of the leave for judicial review was laid down in WRP Asia Pacific Sdn Bhd v Tenaga Nasional Bhd [2012] 4 MLJ 296 at p.303 where the Federal Court held: “….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 the 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.

Returning to the mainstream, the appeal before us relates to the first stage ie the leave application. With both the High Court and the Court of Appeal having rejected the leave application, we now begin by resolving certain preliminary matters, namely whether the appellant has the necessary locus standi, whether it has complied with the time factor, and whether the facts and circumstances before us are amendable to judicial review.”

The threshold for a leave application is a court hearing a judicial review application must determine whether ‘prima facie there is a S/N XckFFpiICkCKq5g1Zwkhug **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 genuine case for review’. (see : Dato’ Seri Mohd Najib bin Tun Hj Abdul Razak v Attorney General & Ors [2020] 3 MLJ 114 at p. 129 COA). The threshold requirement is low, but leave should be refused if the application is frivolous and vexatious, misconceived, applicant had no arguable case, the subject matter is not amenable to judicial review and the subject matter is non-justiciable.

The AG’s ground of objection is the subject matter under challenge in this application is academic and the application as framed by the Applicant is frivolous and vexatious.

The Applicant vide Enclosure 1 prayed for the following reliefs: i. to compel the Respondent to transmit four (4) physical sets of the Applicant’s Bundle of Authorities and Certificate of urgency (Enclosure 3) to the Honourable Panel of Judges; ii. to direct the Respondent to disclose the name of panel of judges of the Court of Appeal scheduled to preside over the hearing on 29.4.2026; and iii. to quash the Respondent’s email dated 26.4.2026

The above reliefs sought by the Applicant had no effect and had become academic since the Honourable Panel of Judges of the S/N XckFFpiICkCKq5g1Zwkhug **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 Court of Appeal scheduled to sit on 29.4.2026 had commenced with the hearing involving the Applicant. The statutory duty to transmit four (4) sets of the Applicant’s Bundle of Authorities and the Certificate of Urgency has been duly discharged; if not the hearing scheduled on 29.4.2026 would not have proceeded due to no records put forward to the Honourable Panel of Judges of the Court of Appeal.

As for the names of the presiding judges of the Court of Appeal who sat on 29.4.2026 and presided over the Applicant’s matter is known to the parties any the anonymity of the Honourable Panel of Judges has been superseded by the event itself.

This court agrees with the submission put forward by the learned SFC that there is no live issue to be decided by this court since the reliefs sought by the Applicant vide prayer (1) and (2) has been fully realized and dealt with by the Court of Appeal on 29.4.2026. All the prayers in the Applicant’s application for leave had been rendered academic since they had been superseded by events i.e the said sitting of the Court of Appeal on 29.4.2026. This Court will not make a declaratory judgment when the question raised is purely academic and will become redundant since the issues raised by the Applicant S/N XckFFpiICkCKq5g1Zwkhug **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 in this application had taken place vide hearing of the Court of Appeal on 29.4.2026 that presided over the matter that the Applicant filed in the Court of Appeal.

In the Federal Court case of Bar Council Malaysia v Tun Dato’ Seri Ariffin bin Zakaria& Ors (Persatuan Peguam-Peguam Muslim Malaysia, pencelah) and anor case [2024] 4MLJ 773 where the Federal Court held: “[54] It bears repeating that the illegality alleged has been superseded by subsequent events. As such, the subject matter of the dispute the constitutionality of the judges holding their respective offices (second and third respondent) is no longer in existence. Their replacements have been made. What then is the dispute that needs to be resolved? ………….. [65] But as mentioned before both second and third respondent have since relinquished their post. And since matters have changed irrevocably by reason of their resignation, it is no longer tenable for the court to answer the question post because the factual substratum underlying the question posed no longer exits. Therefore the court would effectively be acting in a vacuum”. S/N XckFFpiICkCKq5g1Zwkhug **Note : Serial number will be used to verify the originality of this document via eFILING portal 10

There are no live issues to be adjudicated upon by this court for the basis behind the Applicant’s Judicial Review that was filed in this court had been dealt with by the Court of Appeal and for that matter the reliefs sought by the Applicant had become academic. C. WERE THE APPLICATION FOR JUDICIAL REVIEW FRIVOLOUS AND VEXATIOUS? [16] In essence, the Applicant in the said application filed against the Respondent among others seeks to :

obtain mandamus as to compel the Respondent to immediately perform their absolute duty under Order 53 rule 3(2) to transmit four (4) physical sets of the Applicant’s Bundle of Authorities and the Certificate of Urgency (Enclosure 3) directly to the Honourable Panel of Judges of the Court of Appeal for ex parte consideration; and

obtain mandamus as to direct the Respondent to immediately disclose the names of the Honourable Panel of Judges scheduled to preside over the hearing on 29.4.2026. [17] The court’s jurisdiction to grant an order of mandamus is provided for under Section 25(2) Courts of Judicature Act 1964 (Act 91) : S/N XckFFpiICkCKq5g1Zwkhug “(2) Without prejudice to the generality of subsection(1) of the High Court shall have the additional powers set out in the Schedule: Provided that all such powers shall be exercised in accordance with any written law or rules of court relating to the same”.

“Prerogative writs Power to issue any person or authority directions orders or writs of the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any others, for the enforcement of the rights conferred by Part II of the Constitution, or any of them . or for any purpose” Section 44(1) of the Specific Relief Act 1950 provides : “44. (1) A Judge may make an order requiring any specific act to be done or forborne, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or any court subordinate to the High Court: Provided that-

(a)………..;

such doing or forbearing is, under any law for the time being in force, clearly incumbent on the person or court in his or its public character, or on the corporation in its corporate character; S/N XckFFpiICkCKq5g1Zwkhug [18] The learned SFC in submitting the legal principles in granting the order of mandamus refers to the case of Peguam Negara Malaysia v Dr Michael Jeyakumar Devaraj [2012] 1 MLJ 179 where the Court of Appeal states as follows: “[29] In an application for an order of mandamus, these five conditions are cumulative. All of them must be satisfied. In Koon Hoi Chow, Sharma J enunciated the following principles:

An order under s.44 is in its nature an order of mandamus. It is a peremptory order of the court commanding somebody to do that which it was his clear legal duty to do. The applicant seeking such an order must have a legal right to the performance of such duty by the person against whom the order is sought;

The prerequisites essential to the issue of an order under s44 or of a mandamus are:

Whether the applicant in the High Court has a clear and specific legal right to the relief sought;

(ii) Whether there is a duty imposed by law on the public officer(s);

(iii) Whether such duty is of an imperative ministerial character involving no judgment or discretion on the part of the public officer(s); and S/N XckFFpiICkCKq5g1Zwkhug

(iv) Whether the applicant has any remedy, other than by way of mandamus for the enforcement of the right which has been denied to him.

These are the questions, but only some of the questions, which are necessary to be answered in every application for mandamus. The applicant must show not only that he has a legal right to have the act performed but that the right is so clear and well defined as to be free from any reasonable controversy. The order cannot issue when the right is doubtful or is a qualified one or where it depends upon an issue of fact to be determined by the public officer(s)”. [19] The Applicant failed to show there is a legal duty under any written law imposed upon the Respondent to disclose the names of the panel of judges of the Court of Appeal scheduled to preside over the hearing. This Court is in full agreement with the learned SFC he submits that the composition of the panel is a matter of administrative prerogative and internal judicial management. It is a longstanding policy that the composition of panel of judges scheduled to preside over matters in the Court of Appeal is confidential and the coram will only be known on the day of the hearing. S/N XckFFpiICkCKq5g1Zwkhug Therefore, the prayer for mandamus as prayed for by the Applicant is flawed since the disclosure of the names of the composition of panel of judges presiding over matters in the Court of Appeal prior to the hearing day is not written in any written law and the Respondent is duty bound to do so. [20] As per the decision in Dr Michael Jeyakumar Devaraj (supra), the applicant in seeking such an order i.e mandamus must have a legal right to the performance of such duty by the person against whom the order is sought and it is a peremptory order of the court commanding somebody to do that which was his clear legal duty to do. In the case before this court, there is no clear legal duty of the Respondent to disclose the names of the panel of judges of the Court of Appeal scheduled to preside over the hearing. An administrative prerogative and internal judicial management of the administration of the Court of Appeal cannot be interpreted as a legal duty imposed upon the Respondent. This administrative prerogative and internal judicial management are not a written law, it is just a policy of the Court of Appeal to maintain the confidentiality of the coram until the hearing day. S/N XckFFpiICkCKq5g1Zwkhug [21] The Applicant’s right was not compromised by him not knowing who is in the panel of judges of the Court of Appeal presiding over his matter because on the day of the hearing the names of the judges sitting in the said panel is made known to him and the public at large when parties appear before the Honourable Panel of Judges on the hearing day. In conclusion there is no legal right to begin with imposed on the Respondent to disclose the names of the Panel of Judges of the Court of Appeal to the Applicant prior to the scheduled sitting. The leave application that the Applicant is seeking is not only frivolous and vexatious but an abuse of court process for at the time the leave application is heard there is no live issue that needs to be adjudicated by this Court since the Applicant’s matter in the Court of Appeal has been heard on the 29.4.2026. It is impossible for the Honourable Panel of Judges to proceed with the hearing if the respective records, as claimed by the Applicant, were not before the Panel. ENCLOSURE 13 [22] The Applicant also filed another application i.e to amend the Notice of Application of Judicial Review (Enclosure 1) and the Statement (Enclosure 2). Under the purported amendment, the Applicant is S/N XckFFpiICkCKq5g1Zwkhug adding “Pendaftar Mahkamah Tinggi Shah Alam (u.p Puan Nur Farzana binti Yaacob)" as the 2nd Respondent. The AGC objected against this amendment application for adding of Pendaftar Mahkamah Tinggi Shah Alam to these proceedings is flawed and wrong. [23] The basis of the Applicant’s challenge in Enclosure 1 is basically the administrative proceedings in the Court of Appeal and the adding of Pendaftar Mahkamah Tinggi Shah Alam had no bearing or legal standing in this proceeding and clearly an abuse of process of the court. E. CONCLUSION [24] Therefore, based on the reasons above, Enclosure 1 and 13 is dismissed with cost of RM 3000. Dated: 25.5.2026 tt Norliza binti Othman High Court Judge BKK 1 S/N XckFFpiICkCKq5g1Zwkhug Solicitors for the Applicant : - Solicitors for the Respondent : Zulkiefli Sulaiman