KUALA LUMPUR (Sept 11): Former attorney general (AG) Tan Sri Tommy Thomas’ bid to recuse a High Court judge presiding over Tan Sri Shahrir Abdul Samad’s malicious prosecution suit against him will be heard on Nov 6 this year.
The hearing date to recuse Judicial Commissioner Roz Mawar Rozain was set during case management for the matter on Wednesday.
Both Haikaldin Mahyidin who appeared for Thomas, and Syahrul Syazwan Salehin who appeared for the former Federal Land Development Authority (Felda) chairman (Shahrir), confirmed the matter when contacted.
Thomas filed the recusal application last month, following Roz Mawar’s decision in July, dismissing his bid to strike out Shahrir’s entire case against him.
Roz Mawar ruled that Shahrir’s legal action was not an abuse of process and his claims ought to be ventilated in a trial.
This decision is the grounds for Thomas’ recusal application, where he claimed that Roz Mawar had allegedly misinterpreted portions of his book, My Story: Justice in the Wilderness, regarding how he pursued certain high-level cases.
Among others, Thomas claimed that Roz Mawar had “ventured beyond” Shahrir’s pleaded case in making the determination that his book contained statements about pressuring the Malaysian Anti-Corruption Commission (MACC) to investigate Shahrir’s role in Felda and the Federal Land Consolidation and Rehabilitation Authority (Felcra), even when there was no evidence of a scandal.
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 had initiated the suit against Thomas, former MACC chief Latheefa Koya, the graftbuster (the MACC), and the government for alleged malicious prosecution, malicious investigation and wrongful arrest.
The former domestic trade and consumer affairs minister had 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 Shahrir’s criminal trial for failing to declare to the Inland Revenue Board (IRB), the RM1 million which he received from jailed former prime minister Datuk Seri Najib Razak.
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 has maintained that the sum was a reimbursement and that 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.