JUDGMENT
A. Introduction
[1] This is the unanimous judgment of this Court in the appeal by the Malaysian Bar against the High Court's dismissal of its application for leave for judicial review of the Attorney General's decision to discontinue prosecution and apply for a discharge not amounting to acquittal ("DNAA") of all the charges against the 2nd respondent.
[2] This appeal raises an issue of constitutional and public importance concerning the leave threshold for judicial review, where the Attorney General's prosecutorial discretion under art 145(3) of the Federal Constitution is challenged. It arises from the High Court's refusal to grant the Appellant, the Malaysian Bar, leave to commence judicial review to challenge the Attorney General's decision - acting through the Deputy Public Prosecutor ("DPP") - to seek a DNAA in relation to 47 criminal charges against the 2nd respondent. The High Court dismissed the leave application on 27 June 2024. The Appellant now appeals against that decision.
[3] The proposed judicial review seeks to challenge the Attorney General's decision of 4 September 2023 to seek a DNAA under art 145(3) of the Federal Constitution and s 254(1) of the Criminal Procedure Code ("CPC") in respect of all 47 charges ("the impugned decision"). The Appellant says the decision is reviewable and that the leave threshold is met. The Respondents contend the High Court was right to refuse leave because the application does not satisfy the high threshold for challenging prosecutorial discretion.
[4] Beyond the immediate dispute, this appeal concerns how the High Court should approach the leave stage when judicial review is sought of the Attorney General's exercise of prosecutorial discretion under art 145(3) of the Federal Constitution and s 254(1) of the CPC. In particular, these questions arise: