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2024 MarsdenLR 1014
HIGH COURT MALAYA KUALA LUMPUR
HEW KUAN YAU – Appellant
Versus
MENTERI DALAM NEGERI & ORS – Respondent
[Judicial Review No: WA-25-531-11-2019]
A claim for damages in judicial review must be adequately pleaded with recognized torts; failure to do so results in dismissal.
Headnote:(A) Printing Presses and Publications Act 1984 – Section 7(1) – Judicial review – Assessment of damages – The Court of Appeal quashed the Minister's prohibitory order against a comic book, ruling that the decision was irrational and lacked evidentiary support for public order concerns. The applicant's claims for damages, including loss of earnings and reputational harm, were dismissed due to insufficient pleading of recognized torts. (Paras 1-3, 10-12, 17-33, 70)
(B) Judicial Review – Damages – The prerequisites for a successful claim for damages under O 53 r 5 include the necessity of pleading recognized torts and providing particulars of claims. The applicant failed to establish a recognized tort in private law, leading to the dismissal of the damages claim. (Paras 17-23, 34-69)
Facts of the case: The applicant's comic book was banned by the Minister, leading to a judicial review application that resulted in the quashing of the order. The applicant sought damages for loss of earnings and reputation due to the ban. (Paras 1-8)
Findings of Court: The Court of Appeal found the Minister's decision irrational and lacking evidence of public order threats, but the applicant's claims for damages were not sufficiently pleaded. (Paras 10-12, 70)
Issues: The main issues included whether the Minister's decision was subject to judicial review and the adequacy of the applicant's claims for damages. (Paras 10-12)
Ratio Decidendi: The court ruled that the Minister's exercise of discretion was irrational and that the applicant's claims for damages were not adequately pleaded as recognized torts in private law. (Paras 10-12, 70)
Result: The claims for damages were dismissed.
JUDGMENT
Introduction
[1] This judgment concerns the approach to be taken in assessing damages sought in a successful judicial review application. The case concerns the assessment of damages sought by the applicant where the decision of the Minister of Home Affairs ("Minister") issuing a prohibitory order under s 7(1) of the Printing Presses and Publications Act 1984 ("the PPPA") banning a comic book authored by the applicant was quashed by order of certiorari.
[2] Initially, the High Court had dismissed the application for judicial review. The Court of Appeal reversed the High Court in the ensuing appeal and ordered that the prohibitory order issued by the Minister be quashed by an order of certiorari and allowed the prayer that damages be assessed as pleaded in the application for judicial review. The prayer for damages was made pursuant to O 53 r 5 of the Rules of 2012 (hereinafter all rules mentioned refer to the Rules of 2012 unless stated otherwise).
[3] The assessment was carried out by way of affidavit evidence and after reading the affidavits and written and oral submission of the parties, I made the following orders in respect of special damages sought by the applicant:
(i) refusing the claim of RM1,048,000.00 loss of earnings (salary at RM8,000.00 a month from October 2019 to August 2030) as Chief Executive Officer ("CEO") of the Malaysia-China Business Council;
(ii) refusing the claim of RM88,000.00 accumulated bonuses for 11 years (from 2020 to 2030);
(iii) allowing costs of legal fees of RM51,140.00 at the High Court, Court of Appeal, and the Federal Court based on invoices and receipts;
(iv) refusing the claim of RM2,718.00 as Court filing fees at the High Court, Court of Appeal and the Federal Court
(v) refusing the claim of RM1,000.00 as the Court of Appeal costs after it was withdrawn; and
(vi) allowing the claim of RM325.00 as the cost of 13 comic books (at RM25.00 per comic book).
[4] I also refused general damages, aggravated damages, and exemplary damages sought for the following causes of action in private law put forth by the applicant (see the applicant's executive summary — encl 58): (i) misfeasance in public office; (ii) defamation; (iii) malicious falsehood; (iv) conspiracy to injure; and (v) breach of statutory duty.
Background
[5] I begin with the background leading to the instant application of assessment of damages before me.
[6] The applicant is the author of a comic book that purportedly explained and praised the "Belt and Road Initiative" (BRI) of the People's Republic of China. The comic book was published on 18 April 2019 and distributed to mainly schools. Six months later, on 23 October 2019, the Minister of Home Affairs ("the Minister") banned the comic book vide a prohibitory order made and published as required under s 7(1) of the PPPA. As a result of the prohibitory order, the comic books were seized from various organisations and schools that had received the comic books.
[7] The reasons for the ban were given in a press statement and are as follows: (a) the comic book was published with the intention to promote the ideology of communism and socialism; (b) the comic book spreads wrong and confusing facts about communist while trying to raise support and sympathy towards the communist struggle; and (c) the comic book causes readers especially the younger generation to question the history of Malaysia and disputes the struggles of the past leaders/icons in fighting for independence and nation building.
[8] The applicant challenged the prohibitory order by way of judicial review at the High Court on the following grounds:
(i) the decision was unreasonable as the contents of the comic book do not fall within the ambit of s 7(1) of the PPPA;
(ii) there was insufficient evidence to support the conclusion that the comic book is likely to be prejudicial to public order, security or alarm public opinion;
(iii) the decision was made in bad faith and tainted with bias;
(iv) the decisio
