Tan Sri Tommy Thomas (The Edge filepix by Patrick Goh)

KUALA LUMPUR (July 3): Former attorney general (AG) Tan Sri Tommy Thomas' application to strike out Tan Sri Shahrir Abdul Samad's malicious prosecution suit against him and three others has been dismissed.

Judicial Commissioner (JC) Roz Mawar Rozain delivered her decision in chambers on Wednesday.

Datuk Firoz Hussein Ahmad Jamaluddin, who is part of Shahrir's team of lawyers, and Mervyn Lai, who is part of Thomas' team of lawyers, confirmed the matter when contacted.

In delivering her decision, Roz Mawar said that Shahrir’s claim was not an abuse of process and ought to be ventilated in a trial.

Citing the apex court’s landmark decision in Asian International Arbitration Centre (AIAC)’s director Datuk N Sundra Rajoo’s case, she said that no one was above the law, including the AG, and echoed that the prosecutorial discretion was not unfettered.

In Sundra’s case, the Federal Court had ruled that Sundra had the privilege of immunity from criminal proceedings and that the AG did not have absolute and unfettered discretion to institute a case.

Summing up her decision on Wednesday, Roz Mawar said: “The evidence reveals unsettling suggestions of hasty and selective prosecution without basis.

“Public confidence in the administration of justice would be undermined if such serious averments are shut out, without being ventilated [...]”.

Thomas had applied to strike out the suit on the grounds that, among others, it was an abuse of process, since Article 145(3) of the Federal Constitution states that the AG has the discretion to institute, conduct or discontinue any proceeding for an offence.

He also said that the public prosecutor has no control over the investigation process, which is independently conducted by enforcement agencies.

Shahrir, a former Federal Land Development Authority (Felda) chairman, had initiated the suit against Thomas, former Malaysian Anti-Corruption Commission (MACC) chief Latheefa Koya, the graft busters (the MACC), and the government for alleged malicious prosecution, malicious investigation and wrongful arrest.

The former minister claimed, among others, that Thomas had failed to order for the probe of the case to be completed before deciding to grant permission to prosecute him.

This was with regard to the former Johor Bahru Member of Parliament's criminal trial for failing to declare RM1 million, which he received from jailed former prime minister Datuk Seri Najib Razak, to the Inland Revenue Board (IRB).

In January last year, Shahrir was granted a full acquittal after the prosecution informed the court that they did not intend to continue the case, per instructions from their superiors.

Shahrir was charged in early 2020. The trial began in July 2022. More than 20 witnesses were called, before the prosecution dropped the case.

Shahrir has maintained that the sum was a reimbursement and he did not need to declare it as income.

It was reported that a prosecution witness, MACC investigating officer Nurzahidah Yacop, testified that she received an instruction from the prosecution, with permission given by Thomas in January 2020, to charge Shahrir even when the investigation papers on the case were still incomplete.

Shahrir was charged with money laundering by not stating his real income in the income tax return form for assessment year 2013, which would be a violation of Section 113(1)(a) of the Income Tax Act 1967, over the RM1 million, believed to be from unlawful activities, which he received from Najib through a cheque.

The charge, framed under Section 4(1)(a) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLA), provided a maximum fine of RM5 million, or an imprisonment of up to five years, or both, if found guilty.