DATIN SERI ROSMAH BINTI MANSOR v Peguam Negara / Pendakwa Raya Malaysia (W-01(IM)-684-09/2022)

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1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. W-01(IM)-684-09/2022 ANTARA DATIN SERI ROSMAH BINTI MANSOR … PERAYU (NO. KP: 511210-05-5558)

Schedule

Jadual Akta Mahkamah Kehakiman 1964; Dan Dalam perkara Seksyen 41 dan 44 Akta Spesifik Relif 1950; dan Dalam perkara Seksyen 2, 18 dan 61 Akta Tafsiran 1948 dan 1967; dan Dalam perkara Akta Profession Undang-Undang 1976 dan Akta Profession Undang-Undang Kaedah-Kaedah (Amalan dan Kesantunan) 1978; Dan Dalam perkara Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993; dan Dalam perkara Aturan 53 & 92 Kaedah-Kaedah Mahkamah 2012; Dan Dalam perkara Seksyen 126 Akta Keterangan 1950; Dan Dalam perkara Dato’ Seri Mohd Najib bin Tun Hj Abdul Razak v Attorney General & ORs [2020] 3 MLJ 114 (Mahkamah Rayuan); Dan Dalam perkara Ranjit Kaur S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629 (Mahkamah Persekutuan); Dan Dalam perkara AMZ Corporation Sdn Bhd v Sye Ah Chai [1981] 1 MLJ 238 (Mahkamah Tinggi); Dan Dalam perkara Repco Holdings Bhd v Public Prosecutor [1997] 4 CLJ 740 (Mahkamah Tinggi); Ah Kok Enterprise Sdn Bhd v Public Prosecutor [2000] 6 MLJ 184 (Mahkamah Tinggi]; Asean Securities Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance Malaysia Bhd [2008] 6 CLJ 1; Ahmad Zubair Hj Murshid v PP [2014] 9 CLJ 289 (Mahkamah Persekutuan); Jack-In-Pile (M) Sdn Bhd v Bauer (Malaysia) Sdn Bhd & Another Appeal [2020] 1 CLJ 299 (Mahkamah Persekutuan); Dan Dalam perkara Dato’ Seri Mohd Najib Bin Hj Abdul Razak v Pendakwa Raya [Mahkamah Persekutuan Rayuan Jenayah No. 05(L)-12705/2019 (W)] Mahkamah Persekutuan); Dato’ Sri Mohd Najib Bin Hj Abdul Razak v Public Prosecutor [2019] 5 MLJ 623 (Mahkamah Rayuan Malaysia); Mohd Najib Hj Abd Razak v PP [2019] 4 CLJ 514 (Mahkamah Tinggi); Dan Dalam perkara PP v Dato’ Sri Mohd Najib Hj Abdul Razak [2019] 8 CLJ 313 (Mahkamah Persekutuan); Dato’ Sri Mohd Najib Hj Abdul Razak v PP [2019] 5 CLJ 165 (Mahkamah Rayuan); Dato’ Sri Mohd Najib Hj Abdul Razak v PP [2019] 5 CLJ 217 (Mahkamah Tinggi); Dan Dalam perkara bidangkuasa inheren dan sedia ada Mahkamah yang Mulia ini. Antara Datin Seri Rosmah Binti Mansor … Pemohon (KP:511210-05-5558) Dan 1. Peguam Negara Malaysia 2. Kerajaan Malaysia … 3. Responden- Datuk Seri Gopal Sri Ram Responden] CORAM HANIPAH BINTI FARIKULLAH, JCA CHE MOHD RUZIMA BIN GHAZALI, JCA SEE MEE CHUN, JCA JUDGMENT OF THE COURT Introduction [1] On 24-6-2022, the Appellant as the Applicant had filed an ex parte application for leave for judicial review (JR) seeking a total of 25 reliefs. The JR application can be found in encl. 3/109-125, the statement pursuant to O.53 r.3(2) Rules of Court 2012 (RC 2012) can be found in encl. 3/126-172 and the affidavit in support affirmed on 24-6-2022 can be found in encl. 4/88-150. [2] In the main, the reliefs sought were for a declaration that the appointment of the 3rd Respondent (Gopal Sri Ram, GSR) as Senior Deputy Prosecutor (Senior DPP) in Arrest Cases No. WA-45-9-03/2019 and WA-45-19-07/2019 (the Solar case) vide 3 fiats is ultra vires, illegal, irregular and defective; an order of certiorari to quash the appointment of GSR as Senior DPP, a declaration that the Solar case proceedings from 15-11-2018 to the close of the prosecution case and to date is null and void and a mistrial and a declaration that the Applicant be acquitted and discharged from all charges under section 16(a)A of the Malaysian Anti-Corruption Act 2009 in the Solar case. [3] The fiats in question are fiat dated 8-7-2020 (1st fiat, encl. 13/168- 169), oral fiat as averred in the affidavit in reply (No 2) affirmed by Tommy Thomas dated 11-5-2021 (2nd fiat, encl. 13/170-177) and fiat dated 21-5- 2021 given by the 1st Respondent (3rd fiat, encl. 13/178). [4] The High Court had dismissed the application for leave on the preliminary objection (PO) of non-compliance with O.53 r.3(6) RC 2012. The appeal [5] Before us, the Appellant argued the appeal principally on the core issue of whether the Appellant had filed the application within the time as prescribed by O.53 r.3(6) RC 2012. Background facts [6] We find it pertinent to set down the background facts pertaining to applications made by the Appellant in the course of the criminal proceedings in the Solar case which will be relevant for the consideration of the appeal. [7] These background facts and the dates in question are not disputed. i. Application to produce GSR’s letter of appointment [8] On 8-7-2020, the Appellant had filed an application in Criminal Application No: MTJ (2)-44-132-07/2020 for the production of GSR’s letter of appointment to conduct the criminal prosecution for the Solar case. The application was dismissed on 19-8-2020 whereby an appeal was filed. [9] On 8-4-2021, by consent in the Court of Appeal, a copy of the 1st fiat was given to the Appellant. ii. Applications on the validity of GSR’s appointment [10] On 6-5-2021, the Appellant filed 2 Notices of Motion which were WA-114-05/2021 and WA-117-05/2021. These applications were pivoted on the 1st fiat and by and by were to seek declarations that GSR’s appointment as Senior DPP under the 1st fiat was illegal, irregular and defective; that GSR’s appointment could not be made retrospectively; that the 1st fiat was invalid as it was signed by the current Attorney General and not the previous Attorney General; and that the proceedings were null and void and a mistrial. [11] The applications were dismissed by the High Court on 24-9-2021 which were thereupon appealed against. [12] At the Court of Appeal, a PO was raised as to whether the High Court exercising its criminal jurisdiction has the power to grant the declaratory reliefs sought by the Appellant. [13] On 6-12-2021, the Court of Appeal found merit in the PO and dismissed the appeals on the jurisdictional issue and further stated it was not expressing any opinion on the legality or propriety of the orders appealed against. [14] The Appellant appealed to the Federal Court. On 27-5-2022, the Federal Court dismissed the appeal. The order (encl. 13/69-70) inter alia stated: “… bahawa rayuan Perayu adalah ditolak maka keputusan oleh Mahkamah Rayuan yang membenarkan Bantahan Awal Responden bahawa Mahkamah Jenayah tiada bidangkuasa untuk memberi relif-relif bagi perintah-perintah deklarasi … adalah disahkan.” Our decision i. Preliminaries [15] We had inquired from parties on the position of GSR, who has since regrettably passed on. Parties were in consensus that the appeal could still proceed. We agree that the appeal can still proceed despite GSR’s demise and in particular with the Senior Federal Counsel (SFC) that this matter still being at the leave stage, that the Attorney General’s Chambers could represent GSR who was its senior DPP. [16] SFC then attempted to raise the issue of whether, with GSR’s demise, the appeal had been rendered academic. We take the position that the thrust of the application on the legality of the fiats and the proceedings in the Solar case would not render the appeal academic as these are live issues. ii. Whether there has been compliance with O.53 r.3(6) [17] O.53 r.3(6) RC 2012 provides as follows: “An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant.” [18] The Grounds of Judgment of the High Court (GOJ) can be found in encl. 13/23-59. In paragraph 40 (page 45), the High Court Judge (HCJ) stated as follows: “40. Taking “when the grounds of the application first arose” in Order 53 rule 3(6) of the ROC, it is my considered view that the grounds of the application first arose on 15.11.2018 when the Applicant was charged in the Sessions Court and/or where there is no production of the fiat at all or on 8.4.2021 when the prosecution consented and produced a copy of the letter of appointment for the Applicant’s perusal, where it was revealed that Datuk Gopal Sri Ram’s fiat was only for 1MDB related cases.” [19] In considering when the grounds of the JR application first arose, the HCJ took the dates to be 15-11-2018 which is the date when the Appellant was charged in the Sessions Court or 8-4-2021 when a copy of GSR’s letter of appointment was produced. Taking either date and since the JR application was only filed on 24-6-2022, it was clearly beyond the 3 months period. When the grounds of JR application first arose [20] We will now consider what are the dates that can be taken as triggering when the grounds of the JR application first arose. Date of 15-11-2018 [21] We do not find that the grounds of the JR application could possibly have arisen on the date when the Appellant was charged on 15-11-2018. As of that date, the Appellant had yet to have sight of the 1st fiat and it was only on 8-4-2021 when by consent in the Court of Appeal, a copy of the 1st fiat was duly produced to the Appellant. Date of 8-4-2021 [22] We find that in fact it should be the date of 8-4-2021 when the Appellant having sighted the 1st fiat would have been aware that the fiat was in their own words invalid thereby rendering the appointment of GSR illegal, irregular and defective and the proceedings of the Solar case null and void and a mistrial. The grounds of application would have arisen on 8-4-2021. The Appellant would be out of time. Date of 21-5-2021 [23] Even if the date of the production of the 1st fiat on 8-4-2021 is not to be considered due to the existence of the 3rd fiat dated 21-5-2021 which was disclosed to the Appellant on that day and which according to the Appellant suffered the same infirmities, the Appellant would still be out of time. The Appellant is out of time [24] Taking either date of 8-4-2021 or 21-5-2021, the judicial review being mandated to be made within three months from that date, we find the Appellant to be out of time. [25] In Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145, the Federal Court had laid out the provisions of the then O.53 r.3 Rules of the High Court 1980 and prefaced it by observing the stringent conditions or rules imposed and then at page 155 as follows: “[17] Set against the conditions laid down above against the facts of this instant case, one will notice that the appellant is handicapped by limitation of time (among other things) in bringing an application under O 53 r 3(6) of the RHC for judicial review.” [26] At pages 154 and 155 the rationale for the stringent conditions, including that of time, was explained. [27] In Menteri Besar Negeri Pahang Darul Makmur v Seruan Gemilang Makmur Sdn Bhd [2010] 4 MLJ 360 (Court of Appeal), there was a majority view on time within the context of a JR application. This may be seen at page 367, paragraph 1, where Zaleha Zahari JCA (as she then was) stated she was not of the same view with the other two Court of Appeal judges on whether the applicant was within time. [28] The majority view on time was expressed by Jeffrey Tan JCA (as he then was) at pages 382, 383 and 385 as follows: “[58] To compound the error, the respondent had not complied with O. 53 r. 3(6) of the RHC, which reads as follows: An application for judicial review shall be made promptly and in any event within 40 days from the date when grounds for the application first arose or when the decision is first communicated to the applicant provided that the Court may, upon application and if it considers that there is a good reason for doing so, extend the period of 40 days. … [60] It is imperative that an application for judicial review is made within time (Ahmad Jefri Mohd Jahri v. Pengarah Kebudayaan & Kesenian Johor & Ors [2008] 6 CLJ 473). Three recent authorities illustrate how those prescribed 40 days had been calculated. … … [63] Given that there was no direction that payment was suspended, the duty to pay arose upon service of the s. 33 certificate, literally upon presentation thereof. On the facts, the grounds for the application first arose on 7 April 2008, when service of the s. 33 certificate was not met with payment. Filed more than six months later on 15 October 2008 without any extension of the said 40 days, the application for judicial review was way out of time. There was a patent failure to comply with rules of court, and the order of mandamus should have been there and then refused.” [29] In Wong Kin Hoong & Anor v Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 MLJ 161 the same was reiterated by the Federal Court at page 171, paragraph 30, “that the time frame in applying for judicial review prescribed by the Rules is fundamental”. [30] The Appellant is therefore out of time in filing the JR application where the time prescribed is fundamental. Contentions of the Appellant [31] We now go into the Appellants’ contention as to why it is without merit. [32] The Appellant had strenuously submitted that it was within time, taking the order of the Federal Court dated 27-5-2022 as the date within which the three months the JR application could be made. This was the date when the decision of the Federal Court was first communicated to the Appellant. [33] It was further submitted that the Appellant had to let the appeal process take its course until the Federal Court confirmed the Court of Appeal’s decision that the criminal court had no jurisdiction to make declaratory orders. This meant the Appellant had to turn to the civil court for its judicial review application which was filed within 28 days from the date of the Federal Court’s decision. The application was therefore within the prescribed time pursuant to O.53 r.3(6) RC 2012. [34] Reference was made to Menteri Besar Negeri Pahang Darul Makmur at held (2) by Zaleha Zahari JCA as she then was, where the respondent there only resorted to the judicial review application for mandamus to overcome the defendants’ recalcitrance to pay the judgment sum and the respondent only commenced the application after all appeals against the said judgment had been disposed of. There, the respondent was said to have acted promptly and within the timeline of the then O.53 r.3(6). [35] We had earlier referred to that case and noted that this was the minority view. We had set out the relevant paragraphs of the majority view. We reiterate the majority view was that the JR application filed more than six months later was way out of time (paragraph 63, page 385). In fact, at paragraph 60, page 383, it was said that “it is imperative that an application for judicial review is made within time”. [36] Taking the Appellant’s submission as it stands, this would mean that the Court of Appeal’s decision dated 6-12-2021 should be the date the decision was first communicated. This is because as of that date, the Appellant knew the challenge to GSR’s appointment premised on the legality of the fiats and all the other reliefs being sought, could not be granted by a criminal court. The Appellant need not have waited for the outcome of the appeal to the Federal Court. [37] This is because the law is clear by virtue of the decision of this Court in Dato Seri Mohd Najib bin Tun Hj Abdul Razak v Attorney General & Ors [2020] 3 MLJ 114 and confirmed by the Federal Court as follows at page 134: “[48] The nature and jurisdiction of the judicial review applications and the disqualification motions before the criminal court are clearly separate and distinct. The former is a public law remedy to challenge the legality of AG’s appointment of GSR. The latter is a private law remedy to seek GSR to be disqualified on grounds of conflict, bias and unfairness. The issue of multiplicity and duplicity does not arise as the remedies sought are different.” [38] We note that this case of Dato Seri Mohd Najib and the Federal Court order in question were in the Bundle of Authorities in the Court of Appeal case from which the decision of 6-12-2021 emanated from. This was confirmed by the Appellant’s counsel. [39] The Appellant should have proceeded by judicial review then and would not be precluded from the notion of duplicity and multiplicity of the criminal applications. [40] Therefore, the above demonstrates why the date of 27-5-2022 cannot possibly be the date within which the prescribed three months period starts. [41] Further, the decision of the Federal Court order dated 27-5-2022 cannot possibly be the date for the purpose of “when the decision was first communicated”. That decision is not the impugned decision as what is being challenged by the JR application is the legality of GSR’s appointment which the Appellant knew of, at the latest by 21-5-2021 insofar as the 3rd fiat is concerned. [42] In P Maradeveran a/l Periasamy v SPR & Anor [2019] 2 MLJ 70, the issue was on when time started to run for the purpose of O.53 r.3(6), whether it was from the date of the gazette notification or when the decision was communicated on the alteration of the constituency boundaries. It was held that it had to be the latter date, as that was the date when the decision was first communicated. The gazette notification was not the communication of the decision when in the first place, there was no mention of the locality alteration exercise. The following was said at page 80: “[29] We found merit in the argument. Since the decision by the election commission to alter the constituency boundaries was only conveyed to the appellants through the respondents’ letters dated 3 August 2016, time must begin to run from this date and not from the date of the gazette notification. This has to be so because this was the date when the decision was ‘first communicated’ to the appellants. The three month limitation period therefore began to run from 3 August 2016. [30] The notification in the gazette was not ‘communication’ of the decision to the appellants within the meaning of O 53 r 3(6) of the Rules. In the first place, there was no mention of the locality alteration exercise at all in the gazette. What was not in the gazette could not have been ‘communicated’ to the appellants at any point of time.” [43] Similar to our appeal, it bears emphasis that the “decision first communicated” cannot possibly be the Federal Court’s Order dated 27-5- 2022 as that is not being challenged at all, but the legality of GSR’s appointment which again points back to when the Appellant knew, at the very latest of the 3rd fiat, by 21-5-2021. Extension of time [44] Arising from the above finding that the Appellant is out of time, we now consider whether there can be an extension of time granted. O.53 r.3(7) RC 2012 provides as follows: “The Court may, upon an application, extend the time specified in rule 3(6) if it considers there is a good reason for doing so.” [45] We note that the Appellant has sought an extension of time in paragraph 23 of its JR application. [46] The good reason advanced by the Appellant was the awaiting of the outcome of the Federal Court decision. We find this not to be a good reason for the same reasons on why the date of 27-5-2022 cannot be the date when the decision by which the Appellant is aggrieved, was communicated to her. [47] As stated in Wong Kin Hoong at page 168: “[18] A common factor in the above provisions is that an application for leave for judicial review must be made promptly but the court may upon application, and if it considers that there is good reason for doing so, extend it. Thus, whether an extension of time ought to be granted or otherwise is an exercise of judicial discretion. And it is a well-settled principle that an appellate court will rarely interfere with the court exercise of judicial discretion unless it is clearly satisfied that the discretion had been exercised on a wrong principle...” [48] There is thus no material before this Court and the Court below for the exercise of discretion to grant any extension of time. Conclusion [49] For the reasons given above, we find no merit in the appeal. The appeal is dismissed with costs of RM10,000.00 to the 1st and 2nd Respondents. (SEE MEE CHUN) Judge Court of Appeal Malaysia Dated: 4-8-2023 For the Appellant: Datuk Jagjit Singh (Datuk Haji Akberdin bin Haji Abdul Kader, Haji Azrul Zulkifli Stork, Meor Hafiz bin Salehan, Puteri Ummi Kartini Abd Latiff and Ardy Suffian bin Datuk Akberdin with him) Messrs Akberdin & Co Shah Alam, Selangor For the Respondents: Shamsul bin Bolhassan (Liew Horng Bin with him) Jabatan Peguam Negara, Putrajaya Cases referred to: Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145 Menteri Besar Negeri Pahang Darul Makmur v Seruan Gemilang Makmur Sdn Bhd [2010] 4 MLJ 360 Wong Kin Hoong & Anor v Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 MLJ 161 Dato Seri Mohd Najib bin Tun Hj Abdul Razak v Attorney General & Ors [2020] 3 MLJ 114 P Maradeveran a/l Periasamy v SPR & Anor [2019] 2 MLJ 70 Legislation referred to: Rules of Court 2012, O.53 r.3(6) and (7)