SUNDRA RAJOO NADARAJAH v. MENTERI LUAR NEGERI, MALAYSIA & ORS

[2021] 5 MLRA 1

SUNDRA RAJOO NADARAJAH v. MENTERI LUAR NEGERI, MALAYSIA & ORS
Federal Court, Putrajaya
Tengku Maimun Tuan Mat CJ, Rohana Yusuf PCA, Mohd Zawawi Salleh, Zaleha Yusof, Zabariah Mohd Yusuf, Harmindar Singh Dhaliwal, Rhodzariah Bujang FCJJ
[Civil Appeal No: 01(f)-38-12-2020(W)]
9 June 2021

JUDGMENT

Tengku Maimun Tuan Mat CJ:

Introduction

[1] The appellant is the former director of the Asian International Arbitration Centre ('AIAC') or as it was formerly known, the Kuala Lumpur Regional Centre for Arbitration or 'KLRCA'. AIAC was established under the auspices of the Asian-African Legal Consultative Organization ('AALCO').

[2] The 1st respondent is the Minister of Foreign Affairs, the 2nd respondent is the Attorney General of Malaysia ('AG'), the 3rd respondent is the Malaysian Anti-Corruption Commission ('MACC') and the 4th respondent is the Government of Malaysia.

[3] This appeal primarily concerned the question of legal immunity. On the one hand, the appellant claimed statutory legal immunity from 'legal processes' which he construed to include criminal proceedings. On the other hand, the respondents, particularly the 2nd respondent acting in the capacity of Public Prosecutor ('PP') claimed immunity from judicial scrutiny against his decision to prosecute the appellant.

[4] Upon hearing parties and upon careful reflection, we were constrained to allow the appeal. We now provide the grounds for our decision.

The Salient Facts

[5] The facts of the appeal, which are largely uncontentious, were adequately set out in the submissions of parties and the documents in the appeal record. We respectfully adopt and restate them as follows, subject to some modifications.

[6] The present appeal arose from three charges preferred against the appellant before the Sessions Court Kuala Lumpur. The charges were in relation to allegations of criminal breach of trust under s 409 of the Penal Code. Of note, the charges expressly alleged that the offences were committed by the appellant in his capacity as 'the Director of AIAC'.

[7] The appellant had authored a treatise entitled 'Law, Practice and Procedure of Arbitration' (2nd edition, LexisNexis, 2016). The alleged offences were in respect of the appellant having had dominion over AIAC funds and having used them to purchase copies of his books for AIAC.

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