Witness immunity is absolute in Malaysia, preventing civil suits based on evidence given in court. The tort of malicious prosecution is not recognized in civil proceedings, supporting finality in litigation.

Zabariah Mohd Yusof FCJ (Majority):

[1] The 4 appeals before us originated from striking out applications by the 5 appellants (1st defendant-5th defendant in the High Court) under O 18 r 19(1) of the Rules of the Court 2012 in the High Court, which allowed the striking out applications. Appeals by the 5 appellants (1st defendant-5th defendant in the High Court) to the Court of Appeal resulted in the Court of Appeal reversing the decision of the High Court and remitting the cases back to the High Court for a full trial.

[2] These 4 appeals relate primarily to the issues of witness immunity when testifying in Court proceedings, the application of the doctrine of finality of litigation, and implications of enforcement of such a doctrine, which may lead to an ad infinitum/satellite litigation. The appeals raise an important and novel point of law, namely, whether the witnesses have absolute immunity from liability in a civil action, subsequent or otherwise, in respect of evidence, oral and/or written, given in judicial proceedings.

[3] Other related issues are pertaining to the applicability of the tort of malicious prosecution in civil proceedings, and the applicability of the tort of fraud based on perjury is a recognised/actionable claim in Malaysia.

[4] For convenience, we will refer to the parties as they were in the High Court. The parties in the present appeals are as follows:

i. 02(i)-38-09-2024(W) — appeal of Ng Wai Pin (D2 in the High Court). The striking out applications was pursuant to O 18 r 19(1)(a) of the Rules of Court 2012;

ii. 02(i)-39-09-2024(W) — appeal of Kamal Y.P. Tan (D1 in the High Court). The striking out applications were pursuant to O 18 r 19(1)(a), (b), (c), (d) of the Rules of Court 2012 and inherent jurisdiction of the Court;

iii. 02(i)-40-09-2024 (W) — appeal of Wong Yoke Yen (D4 in the High Court). The striking out applications were pursuant to O 18 r 19(1)(a), (b), (c), (d) of the Rules of Court 2012; and

iv. 02(i)-41-09-2024(W) — appeals of Michael Gunalan Benedict & Wong Fook Lin (D3 & D5 in the High Court). The striking out applications was pursuant to O 18 r 19(1)(a), (b), (d) of the Rules of Court 2012.

Questions Of Law:

[5] This Court had allowed leave to appeal on the following common questions of law for all of the appeals, which are as follows:

1. Whether the common law principle of immunity of a party and witness from liability in a civil action, subsequent or otherwise, in respect of evidence, oral and/or written, given in judicial proceedings is absolute.

2. Whether it is permissible for a party who had been vindicated and/or was successful in a first action to mount a second action against the same opposing party in the first action based upon the conduct and/or evidence of the said opposing party.

3. Whether the tort of malicious civil prosecution is only actionable and/or confined to the specific instances set out at para 67 of the Privy Council decision of Crawford Adjusters And Others v. Sagicor General Insurance (Cayman) Ltd And Another [2013] UKPC 17.

4. Whether a contended cause of action premised upon the tort of fraud based on perjury is a recognised and/or actionable claim in Malaysia.

[6] Subsequently, during submissions, counsel for D1 applied for Question 3 to be revised as follows:

3. Whether the minority views as expressed in Crawford and Willers, respectively, and the decision of Lee Tat Development on the existence and the availability of the tort of malicious prosecution to civil proceedings are to be adopted in Malaysia. This revised question was objected to by counsel for the plaintiff. After hearing submissions from both sides, we allowed the application for Question 3 to be revised.

[7] As for the main appeal, after hearing submissions from all parties, both oral and written, including perusing through the relevant cause papers, the panel came to a split decision. Zabariah Mohd Yusof FCJ and Hanipah Farikullah FCJ formed the majority judgment whilst Rhodzariah Bujang FCJ