Bar Malaysia v Peguam Negara Malaysia & Anor

Appellant(s): Bar Malaysia

Respondent(s):

• Peguam Negara Malaysia
• Ahmad Zahid Bin Hamidi

• YA Dato' Faizah Binti Jamaludin
• YA Datuk Dr Lim Hock Leng
• YA Dato' Nadzarin Bin Wok Nordin

• The second respondent was charged with 47 criminal offences, and the High Court had previously found a prima facie case against him and called for his defence.
• The first respondent subsequently decided to discontinue the prosecution and applied for a discharge not amounting to an acquittal (DNAA), which was granted by the trial court.
• The appellant sought leave for judicial review to challenge the first respondent’s decision to discontinue the prosecution, but the High Court dismissed the application, ruling that the appellant failed to meet the "two-step threshold" of providing "compelling and prima facie proof" as suggested in *Sundra Rajoo*.

• Whether there is a separate, more onerous leave threshold for judicial review challenges involving the Attorney General’s prosecutorial discretion under Article 145(3) of the Federal Constitution, distinct from the standard under Order 53 of the Rules of Court 2012.
• Whether the observations in *Sundra Rajoo* regarding a "two-step threshold" and "compelling and prima facie proof" constitute binding *ratio decidendi* at the leave stage.
• Whether the challenge to the decision to discontinue the prosecution constitutes an impermissible collateral attack on the criminal court’s DNAA order.

• The Court held that Order 53 prescribes a single leave threshold—whether the application is arguable and not frivolous—which must be applied with increased discipline, caution, and restraint when challenging prosecutorial discretion.
• The Court clarified that the "two-step threshold" and "compelling and prima facie proof" requirements mentioned in *Sundra Rajoo* were *obiter dicta* and not binding *ratio decidendi* for leave applications, as the Federal Court in that case was addressing the substantive merits.
• The Court allowed the appeal, set aside the High Court's decision, and granted leave for judicial review, finding that the challenge was directed at the antecedent executive decision and raised serious, arguable public law issues given the advanced stage of the criminal proceedings.