Ramly Ali J (delivering judgment of the court):

This is an appeal by the appellants against the decision of the learned High Court judge dated 6 April 2011, allowing the respondents’ application to summarily strike out the appellants’ writ of summons and statement of claim pursuant to O 18 r 19(1) of the Rules of the High Court (RHC) 1980 with costs of RM3,000.

BRIEF FACTS

On 9 December 2007, the appellants were amongst a group of people (including members of the public, lawyers, human rights activists and journalists) who had participated in a peaceful walk along Jalan Tuanku Abdul Rahman to Central Market in Kuala Lumpur in conjunction with the International Human Rights Day which falls on 10 December every year.

During the event, the participants, including the appellants were ordered to disperse by the commanding officer of the police personals at the scene ie the first respondent, Che Hamzah Che Ismail. The appellants however disregarded the order to disperse. The first respondent then ordered and caused the arrests of the appellants. (There was however an issue that the arrests were made ten minutes before the time allowed to disperse had ended). It was not disputed that all the appellants were physically arrested by different arresting officers upon the orders and instructions of the first respondent.

The appellants were detained overnight and charged the following day at the Sessions Court Kuala Lumpur under ss 143 and 145Penal CodePolice Act 1967

At the close of the prosecution case, the sessions court found that the prosecution had failed to establish a prima facie case and acquitted and discharged all the appellants. The prosecution did not appeal against the said acquittal.

On 8 December 2010, the appellants filed the present action against the respondents, inter alia, for the following causes of action, namely:

(a)wrongful arrest and wrongful detention; and

(b)malicious prosecution.

On 15 March 2011, the respondents filed an application vide summons in chambers to strike out the writ of summons and statement of claim pursuant to O 18 r 19(1)(a) and (b) of the RHC 1980. On 6 April 2011, the learned judicial commissioner (JC) allowed the respondents’ application with costs. Hence the present appeal.

The learned JC allowed the respondents application to summarily strike out the appellants action against all the respondents on the sole ground that the appellants had failed to cite the arresting officers who were the tortfeasors responsible for the alleged arrest as parties to the action, as required under ss 5 and 6 of the Government Proceedings Act 1956 (‘GPA’) and affirmed by the Federal Court in Kerajaan Malaysia & Ors v Lay Kee Tee & Ors

THE APPELLANTS’ CASE

The appellants contended that the requirements under ss 5 and 6 of the GPA and affirmed in the case of Lay Kee Tee had been complied with by the appellants in filing the present action, by naming the first respondent who had given the orders and instructions for the arrests, as parties to the action. To the appellants the real tortfeasor in the circumstances of the case was the first respondent and not the arresting officers who were merely acting on his orders and did not exercise their independent judgment.

The appellants further argued that the learned JC had summarily struck out their whole action only on the ground of failure to comply with ss 5 and 6 of the GPA and the Federal Court decision in Lay Kee Tee, but had failed to take into account that the appellants’ action also included a claim for malicious prosecution against the respondents, as their additional cause of action.

The appellants also complained that the requirements under ss 5 and 6 of the GPA and the decision of the Federal Court in Lay Kee Tee are only applicable where the action is against the Government of Malaysia (the fourth respondent in the present case). In the present case, even if the appellants had failed to comply with ss 5 and 6 of the GPA and the decision in Lay Kee Tee, the learned JC cou