Mohammad Najib Bin Tun Haji Abdul Razak v Thomas Thomas @ Mohan a/l K. Thomas (W-01(IM)(NCvC)-907-12/2022)

Thomas Thomas @ Mohan a/l K. Thomas 2. The Government of Malaysia … Defendants] 12/03/2026 14:58:20 W-01(IM)(NCvC)-907-12/2022 Kand. 94 CORAM: RAVINTHRAN PARAMAGURU, JCA. WONG KIAN KHEONG, JCA. NADZARIN BIN WOK NORDIN, JCA. JUDGMENT Introduction [1] This is an appeal against the decision of the High Court to strike out the claim of the appellant summarily under Order 18 rule 19(1) of the Rules of Court 2012. Background facts [2] Before I turn to the legal issues arising in this appeal, it is convenient to first set out briefly the background facts relevant to the appellant’s claim. They are as follows. [3] The appellant is a former Prime Minister of Malaysia, having ceased to hold office following the 14th General Election in May 2018. The respondent, on the other hand, was appointed Attorney General of Malaysia on 4 June 2018, shortly after that election. He held office until 28 February 2020. Under article 145 of the Federal Constitution, the Attorney General is also the Public Prosecutor. Thus, in this judgment, any reference to the office of the Attorney General is to be understood as a reference to his capacity as the Public Prosecutor. [4] Upon his appointment as Attorney General, the respondent authorised the prosecution of the appellant for various offences arising from the affairs of the company known as 1Malaysia Development Berhad (“1MDB”) and its subsidiary, SRC International Sdn Bhd (“SRC”). [5] In the instant civil suit, the appellant has sued the respondent with respect to the 35 charges preferred against him in four criminal cases. The Government of Malaysia was initially named as the second defendant but the case against it was subsequently withdrawn, leaving the respondent as the sole defendant. The said four criminal cases are set out in paragraph 2 of the statement of claim as follows:

(a) Misfeasance in public office (paragraph C(I)) of the statement of claim);

(b) Malicious process (paragraph C(I) of the Statement of Claim);

(c) Negligence ((paragraph C(II) of the Statement of Claim). [8] In addition, the appellant pleaded that the respondent had breached article 8 of the Federal Constitution by discriminating against him, in that individuals in other cases were allegedly accorded different treatment. [9] The alleged factual basis for the torts pleaded against the respondent is set out in paragraphs [8] to [31] of the Statement of Claim, and may be summarised as follows. Long before his appointment as Attorney General, and as early as 2012, the respondent is said to have formed the personal view that there was criminal conduct in relation to the affairs of 1MDB, and that “a massive fraud had been perpetrated”. In 2015, he allegedly discussed the purported wrongdoing in connection with 1MDB with Tun Mahathir bin Mohamed, who would later return to office as Prime Minister after the 14th General Election. In 2016, he accused the appellant of misappropriating funds from 1MDB in an article written for Malaysiakini. [10] On his first day in office as the Attorney General, the respondent had said that he would study the 1MDB matter and prosecute the relevant persons. In paragraph 18, the appellant pleaded that the respondent decided to prosecute him although the then MACC director told him they found no wrongdoings. [11] In paragraphs [24] to [29], the appellant pleaded that the respondent had been prejudiced against him before his appointment as Attorney General, during his time in office and after he left office. This is seen from the disparaging remarks he had made against the appellant from time to time. [12] With respect to the plea of breach of article 8 of the Federal Constitution, the appellant alleged that the respondent had prosecuted him with passion, in contrast to the alleged failure to direct further investigations into the case concerning the death of a fireman, Muhammad Adib bin Muhammad Kassim, the withdrawal of charges against twelve individuals for terrorist activities involving the Liberation Tigers of Tamil Eelam (LTTE), and the withdrawal of charges against Lim Guan Eng, who was then the Secretary-General of the Democratic Action Party. Striking out application [13] The respondent applied to strike out the suit upon service of the writ under all the limbs of Order 18 rule 19 of the Rules of Court

In the affidavit in support, the respondent denied all the material factual averments. He averred that the Attorney General’s discretion to prosecute under article 145(3) of the Federal Constitution is non-justiciable. With respect to interference in investigations, the respondent denied the allegation. He also denied authorising prosecution without first studying the case or that he had acted maliciously or in bad faith. Decision of High Court [14] The learned High Court Judge held that the respondent is immune from proceedings against him by virtue of the discretionary power under article 145(3) of the Federal Constitution. Under this article, the Attorney General who is also the Public Prosecutor is conferred with the discretionary power to institute, conduct or discontinue any proceeding for criminal offences. This is the main reason the learned High Court Judge found that there was no reasonable cause of action. The learned High Court Judge also opined that the exercise of the power under article 145(3) is non-justiciable and cannot be challenged by way of civil action. [15] The learned High Court Judge also held that for the tort of misfeasance and malicious process to exist, the respondent must have conducted the criminal proceedings or be involved in it. However, when the instant case was instituted, the trial of the four cases had not even commenced and there was no final determination. Therefore, His Lordship opined that the instant suit is a collateral attack on the 35 criminal charges in the said four cases. He also held that there was a “check and balance” mechanism in that it is the courts that will determine whether the appellant is guilty and not the respondent. Issues in the appeal [16] Counsel for the appellant argued that he is not challenging the discretionary power of the respondent to prosecute his client in the criminal court. He further submitted that the instant civil suit is not a collateral attack on the criminal cases. Therefore, the reasoning of the High Court based on the constitutional discretionary power to prosecute and the non-justiciability of the exercise of that power is erroneous. [17] However, he argued that quite apart from taking out an application in a criminal proceeding to strike out or quash a criminal charge, an Attorney General can be sued personally in a civil case which is what his client had done. He further argued that contrary to the finding of the High Court, sufficient material facts had been pleaded to support the tort of malicious process. [18] On the other hand, the main issues argued by counsel for the respondent were the non-justiciability of the exercise of the Attorney General’s discretionary powers under article 145(3) of the Federal Constitution, the non-existence of the tort of malicious process, and the insufficiency of the pleadings, or alternatively, the inapplicability and unsustainability of the other torts alleged. I shall address the main issues that arise from arguments of the parties below. Immunity from civil action [19] From my reading of the written grounds of judgment, the learned High Court Judge was of the view that the Attorney General has legal immunity when he exercises his powers under article 145(3) and his act of prosecuting the appellant is non-justiciable. Thus, the learned High Court Judge said that there was no chance of success. This is the main reason, apart from other reasons, that he found there was no reasonable cause of action. In paragraph [41] of the judgment, His Lordship said as follows: The most recent development in respect of the justiciability of art. 145(3) is the Federal Court’s decision in Sundra Rajoo. However, this court agreed with the defendant that Sundra Rajoo’s decision did not alter the position of the unfettered discretion of the Attorney General, more so the issue is different in that whether Sundra Rajoo as a high officer of the KLRCA has immunity from prosecution or otherwise, as a suspect. Here it is very clear that the Attorney General/Tommy Thomas has the immunity from being sued by virtue of the discretion granted to him by art. 145(3) of the Federal Constitution. The decision in Sundra Rajoo however, only opened the avenue of judicial review. Even so, the Federal Court held that it is only in rare and exceptional cases that the decision may be judicially reviewed. (emphasis ours). [20] In paragraph 44, His Lordship said there is no reasonable cause of action because of the immunity of the Attorney General when he exercises his power under article 145(3). I reproduce below the said paragraph: [44] Similarly in Malaysia, in a case of a Magistrate being sued for anything done in the course of the proceedings, he can apply to strike out the claim because of the protection accorded to him under s. 107 of the Subordinate Courts Act 1948 as there was no cause of action. Likewise in the present case, as Tommy Thomas is protected and is immune from any proceedings by virtue of the discretionary powers accorded to him, the plaintiff’s claim should be struck out as there was no reasonable cause of action, to begin with. (emphasis ours) [21] In paragraph [42], His Lordship held that in the light of previous decisions of the superior courts establishing the principle that the exercise of the Attorney General’s discretion under article 145(3) is non-justiciable, the tortious claims of misfeasance in public office, malicious process and infringement of article 8 ought to be struck out, as they disclose no reasonable cause of action and are therefore plainly unsustainable. [22] In coming to his conclusion, the learned High Court Judge had regard to the several notable decisions of the apex court in the past such as Long Samat & Ors [1974] 2 MLJ 152, Johnson Tan Han Seng & Other Appeals v PP [1977] 1 LNS 38, Karpal Singh & Anor v PP [1991] 2 CLJ 1458, Dato’ Sri Anwar Ibrahim v PP [2002] 3 CLJ 457. His Lordship distinguished the more recent Federal Court case of Sundra Rajoo Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 6 CLJ 199 where it was held that discretionary power under article 145(3) is amenable to judicial review in appropriate circumstances. [23] I have read the above-mentioned eminent authorities which the High Court applied in the instant case with respect to the issues of immunity and non-justiciability vis-a-vis the discretion of the Attorney General under article 145(3) of the Federal Constitution. [24] With respect, I am of the view that those cases have been misapplied to the instant civil suit. It must be noted that all of said cases were criminal proceedings unlike the instant case which is a civil action. In each of the said cases, the accused sought to challenge the exercise of the Attorney General’s discretion in the following contexts: the decision to proceed with a prosecution after inordinate delay (see Karpal Singh & Anor v PP (supra); the choice of charge preferred (see Long Samat & Ors (supra); alleged discriminatory treatment in charging persons found in possession of firearms (see Johnson Tan Han Seng & Other Appeals v PP supra); and the decision to prosecute under a law annulled by the Dewan Rakyat but not annulled yet by the Dewan Negara (see Dato’ Sri Anwar Ibrahim v PP (supra). [25] It was in those factual contexts in the said criminal proceedings and in the course of addressing attempts to impugn the Attorney General’s discretion to institute criminal proceedings, that the courts observed that such discretion is unfettered. I do not disagree with said eminent authorities. However, I do not find in any of those judgments a pronouncement that the Attorney General enjoys immunity from civil liability for wrongs committed in the exercise of his prosecutorial discretion under article 145(3) of the Federal Constitution. [26] I also note that although article 145(3) grants the Attorney General the power to prosecute at his discretion, no provision in the said article or elsewhere in the Federal Constitution or other written law grants him immunity from civil actions like the statutory immunity granted to Judges, Judicial Officers, Sessions Court Judges and Magistrates. The protection is given in Section 14(1) of the Courts of Judicature Act 1964 (Revised 1972) and section 107(1) of the Subordinate Courts Act 1948 (Revised 1972). The similarly worded provisions enact they shall not be liable to be sued in any civil court for any act done in the discharge of their official duty. [27] Indeed, if it were the law that the Attorney General could not be sued even when he maliciously and in bad faith exercises his prosecutorial powers, the long-recognised tort of malicious prosecution in this country would cease to apply against him and deputy public prosecutors. The tort would then operate only against private individuals who set the criminal law in motion, such as those who lodge police reports, give false statements, or institute private prosecutions. This issue has been considered in a number of High Court decisions, to which I shall turn below. [28] However, before proceeding further and without undue digression, it is appropriate to consider the nature and elements of the tort of malicious prosecution. These were authoritatively set out by the Federal Court in the leading decision of Rawther v Abdul Kareem [1966] 2 MLJ 201, where Thomson LP stated as follows: In any such action the plaintiff must prove at least five things and unless he does so he cannot succeed. He must prove that the defendant set the criminal law in motion against him. He must prove that the criminal proceedings against him terminated in his favour, that the defendant had no “reasonable and probable cause” for setting the law in motion against him and that the plaintiff was actuated by malice in the sense that he had a motive other than only to carry the law into effect. And for historical reasons (the action was originally in case) he must prove damage. [29] No reported case in which such an action has succeeded against the Attorney General was cited to us. It would, in any event, be a rare case in which such a claim succeeds, given the heavy burden on a plaintiff to establish malice and bad faith on the part of the Attorney General, who is entrusted with the administration of the criminal law and whose functions necessarily includes prosecution of wrongdoers, as opposed to a private individual. [30] Nevertheless, in several reported decisions, our courts have grappled with the question whether the Attorney General or deputy public prosecutors may be sued for this tort. I am mindful that in the instant case, the tort of malicious prosecution was not pleaded. I shall nonetheless examine the malicious prosecution cases against the Attorney General or deputy public prosecutors for the purpose of considering the argument of counsel for the respondent that the exercise of prosecutorial discretion is non-justiciable in the sense that it cannot give rise to any civil liability even if it is abused. [31] Perhaps, this issue arose for the first time in the High Court case of Rosli bin Dahlan v Tan Sri Abdul Gani bin Patail & Ors [2014] 11 MLJ 481. In that case, an advocate sued the Attorney General, deputy public prosecutors and other public officials for various torts, including malicious prosecution and misfeasance in public office. The defendants applied to strike out the action. In so far as the Attorney General and the deputy public prosecutors were concerned, one of the grounds relied upon was that no civil action could be maintained against them on the basis that they were protected by absolute prosecutorial immunity. [32] The High Court did not accept the above-mentioned ground of legal immunity to strike out the civil action under Order 19 rule 19(1) of the Rules of Court 2012. Vazeer Alam Mydin JC (now FCJ) was mindful that a long line of cases starting with the Long Samat case (supra) had established that the Attorney General’s exercise of prosecutorial discretion in respect of his discretion to prosecute, or not to prosecute, or to discontinue a prosecution or amend or prefer a lesser charge is not justiciable or subject to judicial oversight. His Lordship observed as follows in paragraph [76] of his judgment: A good starting point to determine this issue would be to look at constitutional principles. There is a separation of the prosecutorial and judicial function in the Federal Constitution and both are given equal status. As co-equals, it is generally accepted that one body may not interfere with the functions of the other, and in this regard the courts have consistently refused to subject the Attorney General’ exercise of prosecutorial discretion to judicial oversight, with the exception of the power of the court to prevent unconstitutional or unlawful exercise of prosecutorial power. [33] However, His Lordship noted, as I did earlier, that the said cases were criminal cases and did not deal with the question of Attorney General’s immunity with regard to civil actions. His Lordship also referred to the Singapore position stated in the Court of Appeal case of Law Society of Singapore v Tan Guan Neo Phyllis [2007] SGHC 207; [2008] 2 SLR 239. In that case, Chan Sek Keong CJ opined that the Attorney General’s power can be reviewed if he uses the power for an ulterior purpose or the power is abused. Article 35(8) of the Singapore Constitution that grants the power to prosecute to the Attorney General is similarly worded as our article 145(3). I would pause to observe that the above-mentioned view expressed in Law Society of Singapore v Tan Guan Neo Phyllis (supra) was later endorsed in the landmark Singapore Court of Appeal case of Ramalingam Ravinthran v Attorney-General [2012] SGCA 2. [34] After referring to the similar positions in two other commonwealth jurisdictions, namely Canada and England, Vazeer Alam Mydin JC rejected the notion of absolute prosecutorial immunity in the following passage: [93] Once again there is clear affirmation by the English Court of Appeal of the principle that the Public Prosecutor does not enjoy absolute prosecutorial immunity and a person "who is aggrieved by a prosecutor's decision, has in our system potentially extensive private law remedies for a deliberate abuse of power". And that would include a claim for malicious prosecution and misfeasance in public office. [35] In two recent well-argued High Court decisions, a not dissimilar position was adopted when grappling with the same issue, namely the scope of the Attorney General’s absolute prosecutorial discretion vis- à-vis the alleged existence of immunity from civil actions for its purported abuse. [36] In Sharil @ Shahrir bin Ab Samad v Tommy Thomas @ Mohan a/l K Thomas & Ors [2025] 1 CLJ 1003, the plaintiff received RM1 million from the then Prime Minister who incidentally is the appellant in this appeal. The plaintiff was charged with a money-laundering offence for failing to declare the receipt of the said sum. The charge was subsequently withdrawn and the court ordered an acquittal. The plaintiff then sued the defendants for malicious prosecution, wrongful arrest and misfeasance in public office. [37] The first defendant, who was the Attorney General at the time the charge was instituted and who is also the respondent in the instant appeal, applied under Order 18 rule 19(1) of the Rules of Court 2012 to strike out the plaintiff’s claim on the grounds that it disclosed no reasonable cause of action, was scandalous, frivolous or vexatious, constituted an abuse of the process of the court, or was otherwise unsustainable in law. [38] The main argument of the first defendant was that article 145(3) of the Federal Constitution immunized him from civil claims arising from the exercise of the prosecutorial power vested in the said article. Roz Mawar JC (now Judge) rejected that argument and preferred to follow the approach taken in Rosli bin Dahlan v Tan Sri Abdul Gani bin Patail & Ors (supra). Her Ladyship said as follows: [12] The first defendant's contention on absolute prosecutorial immunity drawn from the common law is also unpersuasive. Even under English common law, courts have recognised the feasibility of malicious prosecution claims notwithstanding such immunity (see Riches v. Director Of Public Prosecutions [1973] 2 All ER 935 and Elguzouli-Daf v. The Commissioner Of Police Of The Metropolice & Anor [1995] 1 All ER 833). More pertinently, the High Court in several local cases like Rosli Dahlan v. Tan Sri Abdul Gani Patail & Ors [2014] 9 CLJ 225; [2014] 11 MLJ 481 and Dato' Pahlawan Ramli Yusuff v. Tan Sri Abdul Gani Patail & Ors [2014] 9 CLJ 489;[2015] 7 MLJ 763 has categorically held that the Attorney General enjoys no absolute immunity from suit for malicious prosecution. [13] The first defendant has not provided any cogent reason to depart from these authorities. On the contrary, this court finds the detailed reasoning in these judgments, drawing from developments in other Commonwealth jurisdictions, highly persuasive. Prosecutorial immunity cannot be absolute and must yield in exceptional cases where prosecutorial power has been abused for improper motives. To hold otherwise would place the Attorney General completely above the law. As such, this court holds that claims for malicious prosecution and misfeasance in public office can lie against the Attorney General in appropriate cases and it is not a legal position contrary to art. 145(3) of the FC. [39] This decision was subsequently followed in the High Court case of Ananda Kumar A/L S Maharajah v Peguam Negara Malaysia & Ors [2025] MLJU 4687. In that case, the Attorney General and a deputy public prosecutor were sued for malicious prosecution. [40] The plaintiff had earlier been charged with causing hurt. After a lapse of two years, the charge was withdrawn and the Magistrate ordered a discharge amounting to an acquittal. One of the central issues before the High Court was whether the civil action against the Attorney General could be sustained in light of the prosecutorial discretion conferred under article 145(3) of the Federal Constitution. [41] Elaine Yap Chin Gaik JC distinguished the old line of criminal cases that dealt with the non-justiciability of the Attorney General’s prosecutorial discretion under article 145(3) of the Federal Constitution on the basis that they did not concern civil liability. Although the plaintiff’s case was dismissed for other reasons, Her Ladyship adopted the view expressed in Rosli bin Dahlan v Tan Sri Abdul Gani bin Patail & Ors (supra) and Sharil @ Shahrir bin Ab Samad v Tommy Thomas @ Mohan a/l K Thomas & Ors (supra) that the Attorney General does not enjoy immunity from civil liability arising from the exercise of prosecutorial discretion. [42] The learned Judicial Commissioner in the above-mentioned case also drew support from the Court of Appeal decision in Khairuddin bin Abu Hassan v Wan Aedil bin Wan Abdullah & Ors and another [2025] 6 CLJ 1 although there was no direct discussion on the import of the prosecutorial discretion vested in article 145(3) of the Federal Constitution. [43] In that case, the plaintiff filed a suit against various individuals including police officers, the Inspector General of Police, the Attorney General and a deputy public prosecutor. The claim was for malicious prosecution and unlawful detention. The claim for unlawful detention was allowed by the High Court but the claim for malicious prosecution was dismissed. The Court of Appeal affirmed the decision to dismiss the malicious prosecution claim after examining it on its merits. It is important to note that the Court of Appeal did not dismiss the appeal on the ground that the prosecutorial discretion of the Attorney General is non-justiciable, nor on the ground that it confers immunity from civil actions when it is abused. This finding is implicit in the following statement of the Court of Appeal: With regard to the non-justiciability of the discretion to prosecute, this was not about the denial of prosecutorial authority but the abuse of such authority. [44] Around the same period, the only contrarian view on this issue was expressed by the learned High Court Judge in the instant case and by the same Judge in the case of Nik Mohd Suhaimi Ahmad Ghazali v Siti Fairuz Shamsuri & Ors [2024] 2 CLJ 591. [45] In Nik Mohd Suhaimi’s case, the plaintiff was investigated by the Malaysian Anti-Corruption Commission (MACC) and charged with forgery. He was acquitted without his defence being called. The appeal against this decision was later withdrawn. He sued the MACC and its officers for false imprisonment, wrongful arrest and harassment. He also sued the Attorney General and deputy public prosecutors for malicious prosecution. At the end of the full trial, the High Court found that that plaintiff had proved its claim for wrongful imprisonment, wrongful arrest and harassment against the MACC. However, the High Court disallowed the claim for malicious prosecution against the Attorney General on the ground that it is unsustainable because of the discretionary prosecutorial power under article 145(3) of the Federal Constitution. [46] I observe that even with respect to criminal proceedings as opposed to civil actions against the Attorney General that I discussed above, the recent Federal Court of Sundra Rajoo Nadarajah v Menteri Luar Negeri, Malaysia & Ors (supra) demonstrated that the discretion of the Attorney General to prosecute is amenable to judicial review in rare and exceptional circumstances. [47] In the above-mentioned case, the appellant was the former director of the Asian International Arbitration Centre which was established under the auspices of the Asian-African Legal Consultative Organization (AALCO). He was charged for criminal breach of trust in the Sessions Court. The charges stated that the offences were committed by the appellant in his capacity as “the Director of the AIAC”. [48] To cut a long story short, the issue that arose in the appeal was with respect to the immunity of the appellant as a “High Officer” under the International Organizations (Privileges and Immunities) Act 1992 (Act 484) and the prosecutorial discretion of the Attorney General. The appellant claimed he had legal immunity from criminal proceedings by virtue of being a “High Officer”. It was not disputed that the Secretary General of AALCO declined to waive the immunity of the appellant. The appellant took out judicial review proceedings to challenge the decision of the Attorney General to prosecute him. [49] The High Court found in favour of the appellant after making a finding that the immunity covered criminal proceedings. The Court of Appeal the reversed the decision on three grounds. The first ground was that the immunity was not complete immunity. The second ground was that the appropriate forum to determine the immunity status was the criminal court. The third ground was that the decision of the Attorney General was premised on unfettered discretion and therefore such decision is not amenable to judicial review. [50] The Federal Court disagreed with all the findings of the Court of Appeal. It held that immunity from “legal process” under the said International Organizations (Privileges and Immunities) Act 1992 (Act 484) included criminal proceedings. As for the judicial review procedure, the Federal Court held that where the allegation is that the charge is a nullity, the proper forum is the High Court acting within its supervisory jurisdiction. With respect to the prosecutorial discretion of the Attorney General, the Federal Court held it was not absolute and unfettered and that in rare and exceptional cases, such as in that case where the appellant had legal immunity, the discretion is subject to judicial review. [51] I have referred to Sundra Rajoo Nadarajah v Menteri Luar Negeri, Malaysia & Ors (supra) by way comparison only as in that case the prosecutorial discretion was directly challenged. In the instant case, as in the cases of Rosli bin Dahlan v Tan Sri Abdul Gani bin Patail & Ors (supra) and Sharil @ Shahrir bin Ab Samad v Tommy Thomas @ Mohan a/l K Thomas & Ors (supra) and Ananda Kumar A/L S Maharajah v Peguam Negara Malaysia & Ors (supra) (the trio of cases), there is no challenge to the prosecutorial discretion of the Attorney General under article 145(3) of the Federal Constitution. What is questioned in this case and in the said trio of cases is the consequence of the abuse of that discretion and whether it can give rise to an actionable tort such as malicious prosecution against the Attorney General. [52] For my part, I agree with the views expressed in the trio of cases that I discussed above. At the risk of repetition, I note that whilst article 145(3) of the Federal Constitution grants prosecutorial discretion to the Attorney General, it does not immunize the wrongful exercise of it from civil actions. Neither does any other written law provide such protection to the Attorney General. Furthermore, in all the cases in the law reports where the Attorney General or deputy public prosecutors have been sued for malicious prosecution, save in the instant case in the court below and in the Nik Suhaimi case that was decided by the same High Court Judge, no court has said that said tort cannot be availed in a civil action because the prosecutorial discretion under article 145(3) will operate to extinguish it at the outset. For the above reasons, I am of the view that the exercise of prosecutorial discretion of the Attorney General under article 145(3) is not immunized from civil actions if it is abused and exercised in bad faith. [53] I am also of the view that the High Court erred when it said that the instant civil suit is a collateral attack on the four criminal cases. The remedy sought in the statement of claim is not the quashing of the charges but only damages for the alleged torts. In fact, counsel for the appellant had placed on record that his client is not challenging the criminal charges via this suit. [54] I shall now consider the sufficiency and the sustainability of the pleaded causes of action. Misfeasance [55] The particulars of this tort are pleaded in paragraph 34 (d)(i-iv) which I have summarized when setting out the background facts. They are:

(i) Prejudging Najib Razak’s case before deciding to prosecute him.

(i) an abuse of public power or authority;

By virtue of his powers pleaded above, Tommy Thomas has obligations and duties to all citizens. In particular to persons whom are being investigated for criminal offences, such as Najib Razak.

The duties may be distilled as follows: a. A duty to act fairly and independently in regard to criminal investigations and prosecutions. b. A duty to act in accordance with the provisions of the Federal Constitution in regard to criminal investigations and prosecutions. c. A duty to act within the boundaries of the law and due process. [80] This is a vague pleading as there is no specific averment with respect to the breach of the duty of care or the breach of the law. [81] In paragraph [40], it is pleaded that the respondent made statements against the appellant respondent after leaving the office of the Attorney General. The paragraph reads as follows: [40] And, further, as seen in the paragraphs above, after Tommy Thomas left office, he used his inside knowledge of the prosecutions against Najib Razak to make disparaging and prejudicial remarks against Najib Razak. This was despite the fact that the criminal charges against Najib Razak were ongoing in the courts. This is a breach of Tommy Thomas’s duty, as a former Attorney General, not to make sub judice commence that will influence and impact ongoing criminal trials. He was negligent and oppressive. [82] The appellant pleaded that this had prejudiced and impacted the criminal trials by reason of the alleged sub-judice statements. I wholly agree with the view of the High Court that there is plainly no duty of care owed to the appellant by the respondent in his capacity as a private citizen. In my view, if the statements were defamatory of the appellant and made without justification, the appellant’s remedy quite obviously lies in a defamation action rather than in negligence. I therefore agree with the High Court that the plea of negligence is plainly unsustainable. Breach of Article 8 [83] Article 8 was pleaded in the statement of claim on the basis that other accused persons allegedly received more favourable treatment from the respondent when he was the Attorney General. In my view, this is plainly a frivolous plea. Those other cases bear no connection to the appellant’s case. Whatever discretion was exercised by the respondent as Attorney General in those cases was exercised within the said criminal proceedings, as permitted by article 145(3) of the Federal Constitution and recognised in the case of Johnson Tan Han Seng & Other Appeals v PP (supra). I fail to see how such exercises of prosecutorial discretion could give rise to a civil cause of action in relation to the prosecution of the appellant. This plea should be struck out at the outset for being wholly unmeritorious and frivolous. Conclusion [84] As I said at the outset, the appellant sued the respondent for only three torts, i.e. misfeasance, malicious process and negligence. I found that on the pleaded facts, the plea of misfeasance was premature when the action was filed. It has been pointed out that by now some of the criminal charges have been dropped. However, I find that to be irrelevant as the cause of action had not accrued when the action was filed. With respect to the plea of malicious process, even if it is recognized in our law, it only applies to a legal process that is incapable of terminating in favour of a plaintiff (the appellant herein). In the instant case, as the matters in question are criminal charges, it is plain to us that the tort of malicious process or abuse of process (even if it was pleaded) cannot apply. [85] I cannot help but draw the inference that the purpose of these pleas was to avoid waiting for the criminal trials to conclude in favour of the appellant which is an essential ingredient of the tort of malicious prosecution. In the cases of Sharil @ Shahrir bin Ab Samad v Tommy Thomas @ Mohan a/l K Thomas & Ors (supra) and Ananda Kumar A/L S Maharajah v Peguam Negara Malaysia & Ors (supra) that I discussed earlier, it must be noted that the respective plaintiffs waited for criminal proceedings to terminate in their favour before mounting a civil action for malicious prosecution. [86] With respect to the plea of negligence, I found that it is plainly unsustainable as no duty of care is owed by the respondent to the appellant and no particulars of breach has been pleaded either. As for the invocation of article 8 of the Federal Constitution, I found that it was irrelevant and frivolous. [87] Although I have disagreed with the learned High Court Judge on the issue of the immunity of the Attorney General with respect to civil actions, for the other reasons given above, the appeal is unanimously dismissed with costs of RM12,000.00 subject to payment of allocatur. [88] My learned brothers have read this judgment in draft and have expressed their agreement with it. However, Justice Wong Kian Kheong has also written a supporting judgment to which Justice Nadzarin bin Wok Nordin and I have indicated our agreement. Dated: 13th January 2026 SGD (RAVINTHRAN PARAMAGURU) Judge Court of Appeal Parties Appearing: For the Appellant : Dato’ Firoz Hussein bin Ahmad Jamaluddin Yudistra Darma Dorai Melody Tham Cheng Yee Daniel Annamalai Woo J Enn Harel Niryan Dheveendra Krishna Kumar [Messrs Raj, Ong & Yudistra] For The Respondent : Alan Adrian Gomez Mervyn Lai Wei Shiung Haikaldin Mahyidin [Messrs Tommy Thomas]