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2023 MarsdenLR 2958
HIGH COURT MALAYA KUALA LUMPUR
NIK MOHD SUHAIMI AHMAD GHAZALI – Appellant
Versus
SITI FAIRUZ SHAMSURI & ORS – Respondent
[Suit No: WA-21NCVC-79-09/2018]
The court established the tort of malicious process in Malaysia, emphasizing humane treatment of suspects and recognizing the psychological impact of wrongful arrest and detention.
Headnote:(A) Tort of False Imprisonment - Tort of Malicious Prosecution - The court recognized the tort of malicious process or abuse of process in Malaysia, distinct from malicious prosecution, emphasizing the need for humane treatment of suspects, especially in white-collar crimes. (Paras 6, 11, 12, 13, 19, 53)
(B) Legal Process Misuse - The court highlighted that legal processes should not be abused for ulterior motives, and that the treatment of suspects must consider their vulnerability. (Paras 14, 15, 19)
(C) Eggshel Skull Rule - The court applied the eggshell skull rule, stating that defendants are liable for full injuries even if the plaintiff had pre-existing vulnerabilities. (Paras 40, 41)
Facts of the case:
The Plaintiff was wrongfully arrested and detained by MACC, charged with forgery, and later acquitted. He suffered significant psychological and reputational harm due to the process. (Paras 2, 4, 6, 26, 55)
Findings of Court:
The Plaintiff proved his claims for false imprisonment and abuse of process, leading to an award of RM40,000.00 in costs, while the malicious prosecution claim was disallowed due to legal constraints. (Paras 6, 56, 57)
Issues: The main issues included whether the tort of malicious process could be recognized and the treatment of suspects during arrest and detention. (Paras 6, 11)
Ratio Decidendi: The court found that the abuse of legal process occurred despite the legality of the arrest and detention, emphasizing the need for humane treatment and recognition of rights for vulnerable suspects. (Paras 13, 19, 53)
Result: Claims allowed with costs of RM40,000.00.
Key Points: - (!) (!) (!) - (!) (!) - (!) (!) - (!) - (!) (!) - (!) (!) (!) - (!) (!) - (!) (!) (!)
What is the legality and scope of the newly recognized tort of malicious process/abuse of process in Malaysia?
What are the standards for humane treatment and consideration of vulnerable suspects (eggshell skull) in false imprisonment/abuse of process cases?
What are the remedies and limitations for false imprisonment, abuse of process, and malicious prosecution in cases involving arrest by enforcement agencies?
| Table of Content |
|---|
| 1. plaintiff's claim for false imprisonment and malicious prosecution. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. need for recognizing torts by enforcement agencies. (Para 8 , 9 , 10) |
| 3. introduction of abuse of process tort in malaysia. (Para 11 , 12 , 13) |
| 4. legal process abuse and its implications. (Para 14 , 15 , 16 , 17) |
| 5. impact of public perception on suspects. (Para 18 , 19 , 20 , 21 , 22) |
| 6. consequences of wrongful charges on the plaintiff. (Para 23 , 24 , 25 , 26) |
| 7. evidence of mistreatment and its effects. (Para 27 , 28 , 29 , 30 , 31 , 32 , 33) |
| 8. court's assessment of witness credibility. (Para 34 , 35 , 36) |
| 9. eggshell skull rule application. (Para 39 , 40 , 41 , 42 , 44) |
| 10. pleading requirements in tort cases. (Para 46 , 47 , 48 , 49 , 50) |
| 11. double standards in treatment of suspects. (Para 51 , 52) |
| 12. final judgment and implications for justice. (Para 53 , 54 , 55 , 56) |
A. Introduction
[1] The Plaintiff had filed a suit against all the Defendants for the tort of False Imprisonment which entails wrongful arrest, wrongful detention and harassment and the tort of malicious prosecution.
B. Brief Fact
[2] The Plaintiff was earlier investigated for bribery, and was later arrested and detained by Malaysian Anti-Corruption Commission ("MACC") and thereafter was charged under the authority of the Public Prosecutor for "forgery" offence under s 468 of the Penal Code .
[3] He was arrested on 19 March 2014 at MACC Putrajaya and detained and brought by car to Kuantan MACC and spent the night in a MACC lock up which was in deplorable condition. He was then brought to Kuantan Session Court in handcuff the next morning where he was charged. After the proceeding, he was again handcuffed and paraded in front of the medias that were awaiting him. According to him, throughout the process from Putrajaya to Kuantan, he was harassed, threatened, intimidated and induced (to plead guilty).
[4] On that day when he was charged he did not plead guilty, hence eventually he was tried by the Session Court but was acquitted and discharged without his defence being called, as the Prosecution failed to prove a prima facie case against him. Throughout this proceeding, he suffered physiological and mental anguish, apart from anxiety, stress and tension, to say the least. To add salt to injury, the Public Prosecutor then filed an appeal to the Court of Appeal, prolonging his agony of having a charge still hanging on his head, inspite of being acquitted but subsequently withdrew it.
[5] Hence this suit by the Plaintiff for false imprisonment/wrongful arrest/harassment and malicious prosecution against all the Defendants. (Technically the tort of False Imprisonment was against the MACC and its Officers and the tort of Malicious Prosecution against the Public Prosecutor and its Deputies).
[6] Regarding this civil trial, at the end of the trial, this Court, on a balance of probability found that the Plaintiff had successfully proved his claims for wrongful imprisonment/arrest/harassment which this Court had "rebranded" it as "malicious process or abuse of process" with cost of RM40,000.00. However, this Court disallowed the claim for malicious prosecution against the Defendants as the Court ruled that this tort is simply unsustainable in Malaysia because of the discretionary power accorded to the Attorney General/Public Prosecutor under art 145(3) of the Federal Constitution, amongst others.
[7] Dissatisfied with that decision, the Defendants had filed an appeal to the Court of Appeal for abuse of process/malicious process. The Plaintiff did not file an appeal regarding the claim for malicious prosecution.
[8] Herewith are the grounds for that decision regarding abuse of process (malicious process).
C. Analysis And Finding Of Court
[9] This suit by the Plaintiff underscores the need to recognize the tort committed by officers of investigating and enforcement agencies in handling suspects/arrestees under their custody especially in cases
