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2014 MarsdenLR 737
HIGH COURT MALAYA KUALA LUMPUR
ROSLI DAHLAN – Appellant
Versus
TAN SRI ABDUL GANI PATAIL & ORS – Respondent
[Civil Suit No: 21NCVC-84-11/2013]
Legal officials may be held liable for misconduct if actions are taken with malice or in bad faith, allowing claims for conspiracy, malicious prosecution, and misfeasance to proceed.
Headnote:(A) Federal Constitution - Article 145 - Police Act, 1967 - Anti-Corruption Act, 2001 and amendments - Claims for conspiracy, misfeasance in public office, malicious prosecution, and abuse of power against various public officials - Court finds sufficient pleadings for trial as the alleged wrongful acts were linked to the defendants' public duties and acted in bad faith and malice towards the plaintiff - Public authorities must exercise their powers fairly and justly; otherwise, immunity is not absolute. The pleading sufficiently justifies the claims against the defendants. (Paras 1-113)
(B) Public Authorities Protection Act, 1948 - Whether claims are statute-barred - Court recognizes continuing tort principle, ruling that claims were within statutory limit as wrongful acts continued until resolution; thus, the action is timely. (Paras 57-73)
(C) Prosecutorial Immunity - No absolute immunity for public prosecutors if actions are taken with malice, bad faith, or improper purpose - The plaintiff can bring civil action against the public officials if misconduct is proven. (Paras 74-106)
(D) Misjoinder - Court finds misjoinder irrelevant if claims can be amended to bring proper parties to court. (Paras 106-112) (E) Costs - Defendants' motion to strike out dismissed with costs.
[1] The Plaintiff pleads in his Statement of Claim that he is an advocate and solicitor and a partner in the law firm of M/s Lee Hishammuddin Allen & Gledhill. The Plaintiff has been in active practice as an advocate and solicitor since May 1988.
[2] The Plaintiff in paras 2.1 to 2.12 of the Statement of Claim identifies the Defendants and attributes the following facts to them either jointly or severally.
[3] The 1st Defendant, Tan Sri Abdul Gani Patail, was and is the Attorney General ("AG") of Malaysia appointed under art 145 of the Federal Constitution. The 1st Defendant is also the Public Prosecutor of Malaysia and has the discretion to institute, conduct or discontinue any legal proceedings. The AG has control over all officers of the Attorney Generals Chamber ("AGC") who act on his authority.
[4] The 2nd Defendant, Tan Sri Musa Hassan, was at the material time the Inspector General of Police ("IGP") appointed under the provisions of the Police Act, 1967. The PDRM and its members come under the direct command and control of the 2nd Defendant and acted on his authority.
[5] The 3rd Defendant, Tan Sri Abu Kassim Mohamed, was the former Director General of the Anti-Corruption Agency (" ACA ") which was re-established as the Malaysian Anti-Corruption Commission ("MACC"). He is now the Chief Commissioner of the MACC vested with the control and direction of the MACC and all other persons appointed or engaged for MACC duties.
[6] The 4th Defendant, Dato Nordin Bin Hassan, was at the material time the Head of Prosecutions of the Anti-Corruption Agency (" ACA ") and acted under the control, directions and authority of the 1st and 3rd Defendants. The 4th Defendant was the immediate superior of the 6th and 8th Defendants.
[7] The 5th Defendant, Dato Abdul Razak Bin Musa, succeeded the 4th Defendant as the Director of Prosecutions of the MACC and acted under the control, directions and authority of the 1st and 3rd Defendants.
[8] The 6th Defendant, Kevin Anthony Morais, was at the material time a Deputy Public Prosecutor with the AGC and was seconded as the Deputy Director of Prosecution of the ACA and reported directly to the 4th and subsequently to the 5th Defendant and acted on the authority of the Attorney General.
[9] The 7th Defendant, Chew Kam Soon, was at the material time a police officer holding the rank of Deputy Superintendent of Police serving in the Internal Disciplinary Unit of PDRM. The Plaintiff avers that the 2nd Defendant had direct control and authority over the 7th Defendant.
[10] The 8th Defendant, Saiful Ezral Bin Ariffin, was at the material time an investigating officer of the ACA . The Plaintiff avers that the 8th Defendant is subject to the control, supervision and direction of the Director General of the .
[11] The 9th Defendant, Polis DiRaja Malaysia, is a statutory body set up under the Police Act, 1967. The Plaintiff avers that the PDRM is the institution responsible for maintenance of law and order, the preservation of peace and security of Malaysia, the prevention and detection of crime, the apprehension and prosecution of offenders and the collection of security intelligence. The Plaintiff further avers that the PDRM is vicariously liable for the actions and omissions of its members who participated in the matters complained of in this action.
[12] The 10th Defendant, the Malaysian Anti Corruption Commission ("MACC"), formerly known as the ACA , was re-established as the national agency for the prevention of corruption and is the successor to the . The Plaintiff avers that the MACC is vicariously liable for any act or omission of its officers in the exercise of their powers, functions and discharge of their duties when exercised or performed in bad faith.
[13] The Plaintiff avers that the 11th Defendant, the Government of Malaysia, is vicariously liable/responsible for the actions and omissions of all members of the PDRM, the AGC and officers of the ACA or the MACC (as the case may be) who had accordi
