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2022 MarsdenLR 2510
HIGH COURT MALAYA KUALA LUMPUR
TAN KOK PIN – Appellant
Versus
LOH CHUN HOO & ORS – Respondent
[Civil Suit No: WA-22NCvC-100/02/2021]
A claim can be struck out if it discloses no reasonable cause of action, particularly when essential elements are inadequately pleaded.
Headnote:(A) Rules of Court 2012 – Order 18 Rule 19 – Striking out application – Defendants’ application to strike out Plaintiff's claim for conspiracy, extortion, and slander was allowed as the statement of claim disclosed no reasonable cause of action. The court emphasized that a mere bare allegation without necessary particulars is insufficient. (Paras 13, 36, 39)
(B) Conspiracy – Plaintiff failed to plead essential elements for conspiracy, rendering the claim unsustainable. The lack of particulars about the alleged agreement amongst the defendants was noted. (Paras 20-25)
(C) Extortion – Court held it lacked jurisdiction to entertain claims related to extortion as it constitutes a criminal offense under the Penal Code, and civil damages cannot be claimed as there was no provision for such. (Paras 26-29)
(D) Slander – The Plaintiff did not plead essential elements of slander, specifically that the words used were defamatory, leading to the claim being struck out. (Paras 30-35)
Facts of the case: The Plaintiff alleged conspiracy, extortion, and slander against the Defendants related to investment losses in the Click Subscription Plan. (Paras 2-5)
Findings of Court: Court found that the Plaintiff's claims were frivolous, vexatious, and an abuse of the court process, hence allowing the Defendants' striking out application. (Paras 36, 39)
Issues: Primarily, whether the Plaintiff’s statement of claim disclosed a reasonable cause of action regarding claims of conspiracy, extortion, and slander. (Paras 36, 39)
Ratio Decidendi: The Court emphasized the necessity of pleading essential elements in claims; failing which, claims can be struck out if they disclose no cause of action. The Plaintiff’s statement of claim did not meet the requirements to proceed. (Paras 13, 36)
Result: Plaintiff's claims are dismissed with costs.
Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!)
Question 1?
What is the test for striking out under Order 18 Rule 19(1)(a) ROC 2012 as applied to a claim disclosing no reasonable cause of action?
Question 2?
What constitutes the essential elements of conspiracy, and are bare or inadequately pleaded allegations sufficient to sustain a claim?
Question 3?
Can a civil court entertain extortion or slander claims when extortion is a criminal offense and precise pleading requirements for defamation are not met?
JUDGMENT
(Enclosure 20 - 3rd, 4th, 6th, 7th, 8th, 11th And 12th Defendant Striking Out Application, Order 18 Rule 19(1)(a))
Introduction
[1] This is a case where the 3rd, 4th, 6th, 7th, 8th, 11th and 12th Defendants ('these Defendants') filed an application ("the Application") pursuant to O 18 r 19(1)(a) of the Rules of 2012 (" ROC 2012") praying for an order to strike out the Plaintiff's writ and statement of claim dated 22 February 2021 and 19 March 2021 respectively ("the Suit").
Facts Of The Case
[2] These Defendants subscribed and/or invested monies in the Click Subscription Plan. Click Subscription Plan was offered by the Plaintiff's company known as Click Internet Traffic Sdn Bhd ("Click") through an online application where certain returns on investment were offered to investors.
[3] After a period of time, the Plaintiff alleged that the Click application had been hacked. Based on that reason, the Plaintiff stopped paying subscribers their returns on investments. These Defendants demanded for the refund of their capital investments and for his downlines. The Plaintiff had refused and/or failed to do so. These Defendants and the other defendants then lodged police reports against the Plaintiff for cheating and for masterminding a money game. The Plaintiff refuted the same and said that the allegations in the police reports were not true.
[4] As a result of the police reports, the Plaintiff was detained by the police ("PDRM") to assist in their investigation. While the Plaintiff was detained, the 15th Defendant (an unknown Chinese male) ("D15") allegedly approached the Plaintiff's sister ("Ann"). Ann was asked to contact the first Defendant ("D1') who is the 2nd Defendant's ("D2") solicitor on the refund of the investments to avoid indefinite incarceration.
[5] Therefore, the Plaintiff filed the Suit against these Defendants inter alia for general, aggravated or exemplary damages against these Defendants as global sum on the tort of conspired to Injury, slander, and extortion on the Plaintiff.
[6] Thereafter, these Defendants filed the Application under O 18 r 19(1)(a) to strike out the Plaintiff's claims against them.
Submission By These Defendants
[7] Briefly, these Defendants submitted the Plaintiff's statement of claim was a plain and obvious case to be struck off as it discloses no reasonable cause of action based on these following reasons.
[8] Firstly, the statement of claim did not disclose and only made bare allegations on conspiracy done by these Defendants. On the face para 40(g) of the statement of claim, it was plain and obvious that the Plaintiff has failed to plead the elements for conspiracy as provided in the cases of Renault SA v. Inokom Corp Sdn Bhd & Anor, and A Santamil Selvi a/p Alau Malay @ Anna Malay & Ors v. Dato' Sri Mohd Najib bin Tun Abdul Razak & Ors; [2015] 4 CLJ 1035; [2015] 3 AMR 274.
[9] Next, these Defendants also submitted that the Plaintiff's claim in a civil suit for damages due to an extortion has no basis. This is because extortion is a criminal wrongdoing under s 383 of the Penal Code. This Court does not have the jurisdiction or purview to decide on criminal wrongdoing. Likewise, this Court cannot award damages for it.
[10] Moreover, the Plaintiff also had failed to plead all required elements in order to establish that there was such defamation in the Suit. To support these Defendants had referred to the case of Janagi v. Ong Boon Kiat , , and premised that it is not the Court's duty to make out a case that was not pleaded by the parties.
Submission By The Plaintiff
[11] In opposing the Application, the Plaintiff submitted that there was such conspiracy between the defendants from the contradiction of these Defendants' statement of defence and the answers to Interrogatories. It was the Plaintiff's submission that while these Defendants averred that they were not aware that D1, D2 and D15 have demanded the amount of RM5 million yet somehow, these Defendants
