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2025 MarsdenLR 271
HIGH COURT MALAYA SHAH ALAM
K SENG SENG CORPORATION BERHAD – Appellant
Versus
TAN LIAN CHOON – Respondent
[Civil Appeal No: BA-12B-53-06/2024]
The court found that the Plaintiff's action was valid and the trial judge incorrectly ruled it an abuse of process due to a misallocation of the burden of proof and insufficient evidence against the Plaintiff.
Headnote:(A) Tort - Abuse of process - General and exemplary damages awarded to Defendant after finding that Plaintiff's main action was an abuse of process - Plaintiff failed to establish direct evidence of breach of confidence or any lawful basis for main action - Discontinuance of action post-industrial court award noted as circumstantial but not conclusive. (Paras 2, 11, 30-33)
(B) Appellate intervention - Standards for appellate review established where appeal involves findings on credibility and judicial appreciation of evidence - Lack of direct evidence for Plaintiff's claims undermines proceeding's legitimacy - Collateral purpose must be substantiated and not speculative. (Paras 8, 11-19)
Facts of the case:
The Plaintiff commenced action against the Defendant, a former employee, accusing her of various claims including breach of confidence, but later discontinued the claim while the Defendant counterclaimed alleging abuse of process, resulting in significant damages being awarded to the Defendant. (Paras 1-6)
Findings of Court:
The trial Judge's finding of abuse of process was incorrect; Plaintiff had sufficiently established a prima facie case warranting further legal examination. The conclusion on discontinuation of the main action was misapplied and should not imply fabrication of claims. (Paras 14, 18, 36)
Issues: The court addressed whether the Plaintiff's main action constituted an abuse of process and if the Plaintiff provided a reasonable cause of action post-termination of the employee's tenure. (Paras 8-12)
Ratio Decidendi: The trial court's misallocation of the burden of proof and failure to reasonably analyze the circumstantial evidence were pivotal errors justifying appellate intervention - Claims initiated by the Plaintiff were not proven to be frivolous or intended solely to intimidate. (Paras 14, 17-19, 32-35)
Result: Appeal allowed with costs awarded.
| Table of Content |
|---|
| 1. overview of appeal and trial outcomes. (Para 1 , 2) |
| 2. background facts of employment and claims. (Para 3 , 4 , 5 , 6 , 7) |
| 3. principles of appellate intervention. (Para 8 , 9 , 10) |
| 4. elements necessary for tort of abuse of process. (Para 11 , 12 , 13 , 14) |
| 5. circumstantial evidence considerations. (Para 15 , 16 , 17 , 18) |
| 6. assessment of reasonable cause of action. (Para 19 , 20 , 21 , 22) |
| 7. merits of the plaintiff's primary action claims. (Para 23 , 24 , 25 , 26 , 27) |
| 8. discussion on adverse inference and evidence suppression. (Para 28 , 29 , 30) |
| 9. analysis of discontinuance of the main action. (Para 31 , 32 , 33 , 34 , 35) |
Introduction
[1] This is an appeal by the Appellant/Plaintiff after trial before the Sessions Court. The main action by the Appellant/Plaintiff had been discontinued on 20 June 2023 and the trial proceeded on 20 December 2023 only on the Respondent/Defendant's counterclaim based on the tort of abuse of process.
[2] It is convenient to refer to the parties as they were in the Sessions Court. There, the trial Judge found for the Defendant on her counterclaim and ruled that the Plaintiffs discontinued main action was an abuse of process. General damages of RM300,000.00 and exemplary damages of RM250,000.00 were awarded to the Defendant, together with costs of RM15,000.00.
Background Facts
[3] The Defendant was the former Group Accountant of the Plaintiff and its group of companies. The Defendant was dismissed on 1 June 2020 for refusing to accept a company memorandum dated 26 April 2020 on salary reduction during the period April to December 2020. She filed an unfair dismissal claim against the Defendant in the Industrial Court after she left.
[4] The Defendant's last day of employment was on 30 June 2020. The Plaintiff pleaded that it discovered a security breach around the same time at the end of June 2020. The Plaintiff engaged Le-Global Services Sdn Bhd ("LGMS") who prepared an independent digital forensic investigation report dated 2 September 2020 ("LGMS Report").
[5] Based on the LGMS Report, the Plaintiff commenced the main action here on 12 October 2022, some 2 years later. The Plaintiff pleaded that the Defendant committed a breach of confidence, unlawful interference with the Plaintiff's trade, breach of her terms of employment and breach of her fiduciary duties.
[6] The Defendant pleaded that the allegations in the said action were never raised in the Industrial Court proceedings and were fabricated to intimidate and pressure the Defendant to withdraw her claim at the Industrial Court, vex and embarrass the Defendant and cause her mental distress. This formed the basis of the counterclaim for the tort of abuse of process.
[7] The evidentiary hearings before the Industrial Court concluded on 25 October 2022 and an award was made on 21 March 2023 in favour of the Defendant. There was no appeal by the Plaintiff who settled the award. The Plaintiff also discontinued the main action in the Court below on 20 June 2023.
Law On Appellate Intervention
[8] The law on appellate intervention is well-established but no less difficult in its application, unless there is a clear misdirection on the law. It is instructive to refer to the Federal Court decision in China Airlines Ltd v. Maltran Air Corp Sdn Bhd & Another Appeal ; ; [1996] 1 AMR 2233 to set out the principles:
"It is a settled principle of law that in an appeal, where facts have to be reviewed, it is undesirable that the findings of the Court below should be disturbed by a Court of appeal unless it appears that those findings are clearly wrong, and more especially that it is undesirable to do so where the conclusions reached must to a large extent depend on the credibility of the witnesses and the impression formed by a Court which has seen them and can Judge their honesty and accuracy ( Crofter Harris Tweed Co v. Veitch ) [1942] 1 All ER 142 HL per Lord Porter at p 167.
However, the authority for the above proposition
