Bar Malaysia 1. ) PEGUAM NEGARA MALAYSIA 2. ) AHMAD ZAHID BIN HAMIDI

Bar Malaysia 1. ) PEGUAM NEGARA MALAYSIA 2. ) AHMAD ZAHID BIN HAMIDI

Order 53 prescribes a single leave test: the applicant must show an arguable, non-frivolous case; where Article 145(3) prosecutorial discretion is challenged the ordinary leave test applies but must be applied with heightened discipline, caution and restraint given the presumption of legality and separation of powers; the appellant satisfied that threshold on the facts and the High Court erred in applying an unduly exacting test requiring 'compelling and prima facie proof'; appeal allowed and leave granted.

Citation
W-01(IM)-488-07/2024 (Mahkamah Rayuan)
Parties
Appellant: BAR MALAYSIA; 1st Respondent: PEGUAM NEGARA MALAYSIA; 2nd Respondent: AHMAD ZAHID BIN HAMIDI
Court
IM
Jurisdiction
Malaysia
Judgment Date
7 May 2026
Case Number
W-01(IM)-488-07/2024 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal Against Refusal of Leave for Judicial Review / Court of Appeal Judgment Granting Leave and Remitting to High Court for Substantive Hearing
Outcome
Appeal allowed; High Court order dated 27 June 2024 set aside; leave granted to commence judicial review; remitted to High Court for substantive hearing; no order as to costs.
Legal Topics
Prosecutorial Discretion, Leave Threshold for Judicial Review, Discontinuance of Prosecution, Discharge Not Amounting to Acquittal (dnaa), Separation of Powers, Presumption of Legality
Source Language
Malay/English
Constitutional Law Administrative Law Criminal Procedure Judicial Review Public Law Prosecutorial Discretion Leave Threshold for Judicial Review Discontinuance of Prosecution +3 more

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Parties

BAR MALAYSIA

Appellant

PEGUAM NEGARA MALAYSIA

1st Respondent

AHMAD ZAHID BIN HAMIDI

2nd Respondent

Procedural Posture

Civil Appeal Against Refusal of Leave for Judicial Review / Court of Appeal Judgment Granting Leave and Remitting to High Court for Substantive Hearing

Legal Issues

  1. 1 Whether a distinct leave threshold applies for challenges to prosecutorial discretion under Article 145(3)
  2. 2 Whether the Federal Court in Sundra Rajoo created a separate two-step leave test binding at leave stage
  3. 3 Whether the appellant met the requisite leave threshold to challenge the Attorney General's decision to seek a DNAA

Ratio Decidendi

Order 53 prescribes a single leave test: the applicant must show an arguable, non-frivolous case; where Article 145(3) prosecutorial discretion is challenged the ordinary leave test applies but must be applied with heightened discipline, caution and restraint given the presumption of legality and separation of powers; the appellant satisfied that threshold on the facts and the High Court erred in applying an unduly exacting test requiring 'compelling and prima facie proof'; appeal allowed and leave granted.

Court Disposition

Appeal allowed; High Court order dated 27 June 2024 set aside; leave granted to commence judicial review; remitted to High Court for substantive hearing; no order as to costs.

Orders

  • Appeal allowed
  • Order of the High Court dated 27 June 2024 set aside