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2022 MarsdenLR 1318
HIGH COURT MALAYA KUALA LUMPUR
TAN KOK PIN – Appellant
Versus
LOH CHUN HOO & ORS – Respondent
[Civil Suit No: WA-22NCvC-100/02/2021]
Claims for extortion in civil law are unsustainable since extortion is a criminal act under the Penal Code, and insufficient particulars invalidate conspiracy claims.
Headnote:(A) Rules of Court 2012 – Order 18 Rule 19 – Application to strike out – Claim for damages for extortion not sustainable as extortion is a criminal wrong under s 383 of the Penal Code, which does not provide a civil remedy – Plaintiff failed to demonstrate a cause of action regarding alleged conspiracy and breach of fiduciary duty due to lack of particulars – Court must ensure the statement of claim discloses a reasonable cause of action per established legal principles. (Paras 14, 15, 42-44)
(B) Conspiracy to injure – Elements of conspiracy - Agreement among two or more persons intending to injure, and acts resulting in damage must be established – Allegations found to be general and lacking necessary particulars to substantiate the claim. (Paras 28-38)
Facts of the case: The Plaintiff filed Suit against Defendants claiming damages for torts including extortion and conspiracy, alleging that D1 had neglected his professional duty and engaged in injurious conduct without cause of action established in the pleadings.
Findings of Court: The Plaintiff’s claims were deemed frivolous, unsustainable, and amounting to an abuse of process; the statement of claim failed to disclose a reasonable cause of action.
Issues: The primary issues concerned the appropriateness of striking out the Plaintiff's claims based on alleged criminal wrongs insufficiently plead as civil claims.
Ratio Decidendi: The court emphasized the necessity for a precise disclosure of facts that meet the elements of the claimed torts, ruling that merely general allegations were inadequate. The court found D1's actions did not constitute an abuse of profession since he represented his client lawfully.
Result: Application to strike out granted, Suit dismissed with costs.
JUDGMENT
(Enclosure 18 - 1st Defendant Striking Out Application, Order 18 Rule 19(1)(a))
Introduction
[1] The 1st Defendant ("D1") filed an application ("this Application") pursuant to O 18 r 19(1) of the Rules of 2012 (" ROC 2012") to strike out the Plaintiff's writ and statement of claim dated 22 February 2021 and 19 March 2021 respectively ("the Suit"). Having read all the submissions by the Parties, I hereby allow the Application. Herein are the judgment.
Facts Of The Case
[2] D1 is an advocate and solicitor of the High Court of Malaya and the 2nd Defendant was his client. On 8 February 2021, the 2nd Defendant had lodged a police report against the Plaintiff and one Gideon ('Gideon') for cheating and master-minding a money game. Subsequently, the 3rd Defendant to 14th Defendant also lodged police reports against the Plaintiff and Gideon.
[3] The Police ('PDRM') later detained the Plaintiff to assist with the investigation. While the Plaintiff was being detained, his sister, Ann, was allegedly approached by the 15th Defendant and was asked to contact D1 on the details and manner to refund the sum owed by the Plaintiff.
[4] On D2's instructions, D1, Ann and the Plaintiff's solicitor on without prejudice basis conversed through a few telephone calls and met to negotiate a settlement. However, all negotiations were unsuccessful.
[5] Subsequently, the Plaintiff filed the Suit against all the defendants and prayed for the following:
(a) general, aggravated or exemplary damages against D1, as global sum, on the tort of conspired to injure, extortion and breach of fiduciary trust;
(b) general, aggravated or exemplary damages against D2 as global sum on the tort of conspired to injury, slander, breach of personal data and extortion;
(c) general, aggravated or exemplary damage against the 3rd to the 14th Defendant jointly and severally, as global sum, on tort of conspiracy, slander and extortion;
(d) general aggravated or exemplary damages against D15, as global sum, on the tort of conspiracy to injure, threat, breach of personal data, extortion and misrepresentation;
(e) In the alternative to prayer (d), 'the First and Second Defendant to be held jointly and severally vicariously liable for the 15th Defendant;
(f) costs; and
(g) any other relief deems fit by this Court.
[6] D1 then filed this Application under O 18 r 19(1)(a) to strike out the Plaintiff's claims against him.
Submission By D1
[7] Briefly, D1 submitted that there is no cause of action in any civil action for extortion as prayed by the Plaintiff in his statement of claim. Extortion is a penal wrong under s 383 of the Penal Code . It will be inappropriate and wrong in law for this Court to apply the beyond reasonable doubt test in a civil proceeding for a criminal wrong. To support, D1 quoted the case of Tengku Jaafar Bin Tengku Ahmad v. Karpal Singh , [1993] 3 MLJ 156.
[8] D1 further contended that it was plain and obvious that the claim in relation to extortion by D1 (if at all) was plainly and wholly unsustainable. The Plaintiff also had failed to plead that he has succumbed to the alleged extortion or has paid any sums because of the alleged extortion. Also, there has not been any damage or loss suffered by the Plaintiff in this incident.
[9] D1 also premised that there was no cause of action regarding any abuse of profession alleged by the Plaintiff. He had failed to disclose any facts concerning any duty whatsoever owed by D1 toward the Plaintiff. The Plaintiff was also not D1 client. Thus, D1 did not and does not owe any duties to the Plaintiff, not least the more arduous duty of a fiduciary. D1 quoted several authorities for this.
[10] Next, D1 argued that the Plaintiff had failed to fulfil the elements for tort of conspiracy as set out by the Court of Appeal in Renault SA v. Inokom Corp Sdn Bhd & Anor, . The matters set out in paras 40(a) to (g) of the Plaintiff's statement of claim are general allegations and do not constitute any particular
