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2021 MarsdenLR 257
MAGISTRATE COURT KAJANG
AWANG MOHD SYHAFFIQ AWANG SALIM – Appellant
Versus
PENJARA KAJANG & ORS (ENCL 12) – Respondent
[Civil Suit No: BH-A71-1-03/2021]
Failure to name the tortfeasor in tort claims against the government under the Government Proceedings Act 1956 is fatal, rendering the action unsustainable.
Headnote:(A) Rules of 2012 – O 18 r 19 (1) – Government Proceedings Act 1956 – ss 5 and 6 – Striking out a writ and statement of claim for lack of reasonable cause of action due to failure to name tortfeasors – The court determined that failure to include relevant parties affects the validity of the claim, rendering it without merit. (Paras 19, 39, 41)
(B) Legal Capacity – The court ruled that the 1st, 2nd, and 3rd defendants lacked legal personality to be sued – Any claims against them therefore discloses no reasonable cause of action. (Paras 36, 41)
(C) Negligence Requirement – The claim contained inadequate material facts to prove negligence, resulting in a dismissal of the action. (Para 38)
Facts of the case: The plaintiff received a job offer as a Prison Officer but alleged harassment and forced rejection of the position due to a positive drug test that he contested. The subsequent claims included general and specific damages, but the defendants asserted lack of legal standing.
Findings of Court: The court found that the plaintiff’s action was unsustainable due to failure to comply with statutory requirements and lack of proper defendants.
Issues: Whether the failure to name the tortfeasor could be remedied, and whether the defendants had legal capacity to be sued.
Ratio Decidendi: The court concluded that naming the tortfeasor was essential for the government’s liability in tort; a failure to do so made the claim void.
Result: The claim was struck out.
JUDGMENT
(O 18 r 19 (1) Rules of 2012)
[1] The Defendants, via encl 12, seek:
(i) The writ and statement of claim dated 4 March 2021 be struck out pursuant to O 18 r 19 (1) (a) or (b) or (d) Rules of 2012;
(ii) alternatively, the writ and the statement of claim be struck out pursuant to the inherent jurisdiction of this Court pursuant to O 92 r 4 Rules of 2012;
(iii) the proceeding be stayed pending the outcome of this application;
(iv) cost to be born by the plaintiff
(v) Any other order that this Court thinks fit and just.
Facts Pleaded By The Plaintiff
[2] On 4 June 2020, Awg Mohd Syhaffiq bin Awang Salim, the plaintiff, received an offer via a letter issued by the Public Service Commission to report for duty as Prison Officer Grade KA19. He was at the material time, a freelance nurse with Paramedic Ambulance EMS Services Sdn Bhd with a daily allowance between RM300-RM700. He resigned from the job upon receipt of the offer.
[3] On 18 June 2020, the plaintiff received another letter from Jabatan Penjara Malaysia, the second Defendant, requiring the former to report for duty on 1 July 2020 at 8.00 AM.
[4] On 1 July 2020, the plaintiff was present to report for duty and was brought to a hall with 80 other individuals with the same purpose. They were accompanied by their respective family members.
[5] In the hall, all of those who came to report for duty were asked to undergo urine test, an agenda of which the plaintiff had no prior knowledge.
[6] The plaintiff took the test. A prison officer then revealed the result of the urine test, which was found to be positive for methamphetamine. Upon request by the plaintiff, different test strips were dipped into the same urine sample, alas, the same result.
[7] The plaintiff claimed the bottle was re-used the purpose of the urine test of the attendees, and he vehemently protested the result of the test, for he had undergone a medical check-up on 19 June 2020 at Klinik Kesihatan Jinjang, and he had sworn a statutory declaration that he did not involve in drug activities dated 12 June 2020.
[8] Thereafter, the plaintiff claimed he, with few others whose results were allegedly positive of drug, were escorted by one Inspektor Azim bin Mazlan, an officer of the Penjara Kajang (1st Defendant) and/or Jabatan Penjara Malaysia (2nd Defendant). The said Inspektor Azim harassed, embarrassed and chided (mengaibkan, memalukan dan mengherdik) the plaintiff by calling him "penagih".
[9] The plaintiff and several others, as mentioned earlier, then were brought to see one PKK M Basakaran a/l S Muthiah, where the plaintiff was once again harassed, embarrassed and chided, as well as being called "penagih". There, he was given two options, either signing a rejection letter, ie not to accept the work offer of Prison Officer K19 or being detained and brought to IPD Kajang to be reported for misuse of drug.
[10] Stressed, humiliated, and fear of having a criminal record, after being pressed by PKK M Basakaran a/l S Muthiah as well as a few other officers, the plaintiff opted to sign the rejection letter, which was not done willingly and without good faith.
[11] Aftermath the incident, on the same day (1 July 2020) at 12.55 PM, the plaintiff went to Labilink (M) Sdn Bhd, a lab, to have his urine tested. The result was negative and had no trace of methamphetamine.
The Claim
[12] The plaintiff claims actions of Insp Azmi bin Mazlan as well as PKK M.Basakaran a/l S Muthiah which harassed, embarrassed and chided as well as calling the plaintiff penagih which ended up giving the plaintiff two options of rejecting the offer or facing the threat of being reported to the police, was outraging, embarrassing and not complying with the procedure and devoid of professionalism (tindakan melampau, memalukan serta tidak mengikut prosedur dan profesionalisme yang sewajarnya). I wish to pause here and note that Insp Azmi bin Mazlan and PKK M Basakaran a/l S Muthiah were not named as parties in the suit.
[13] It f
