JUDGMENT

[ENCLOSURE 22]

Introduction

1. Enclosure 22 is the 3rd to 14th Defendants' application for a court order requiring the Plaintiff to provide security for costs of RM100,000 to be paid within 14 days and that all proceedings be stayed until the application is resolved and the security is paid, and that the Plaintiff's Writ of Summons and Statement of Claim be struck out with costs if the Plaintiff fails to comply. Additionally, they seek that the Plaintiff bear the costs of this application and any other reliefs the court finds appropriate.

Brief Facts

2. The Plaintiff is an Indonesian national who was lawfully employed in Malaysia as a welder by the 1st Defendant under a valid Visit Pass (Temporary Employment). He alleged that he was wrongfully arrested, charged, convicted and subjected to whipping for an offence he did not commit. The wrongfulness of the prosecution and conviction was judicially confirmed when, upon a revision before the High Court Judge at the Tawau High Court on 22.07.2022, the Plaintiff was ordered to be released and acquitted.

3. No appeal was filed by the prosecution against that decision. The Plaintiff alleged that the finding that the Plaintiff was wrongfully convicted therefore stands, unchallenged, as a binding judicial determination to this day.

4. The present action claims damages from the Defendants for wrongful arrest, false imprisonment, malicious prosecution, unlawful whipping and breach of statutory duty, causes of action that crystallised upon the judicial setting aside of the Plaintiff's conviction.

Provisions of Law

5. Order 23 Rule 1 of the Rules of Court 2012 ("ROC 2012") governs the principles on security for costs. It provides that the Court "may" order security for costs "if, having regard to all the circumstances of the case, the Court thinks it just to do so."

6. The Plaintiff opposed the 3rd to 14th Defendants' Enclosure 22 application.

7. It is a correct proposition that the Court is not called upon to conduct a detailed assessment of the merits. The applicable principle, affirmed in Government of Sarawak v. Sami Mousawi-Utama Sdn Bhd [1998] 4 CLJ 175; [1998] 3 MLJ 820, citing Keary Developments Ltd v. Tarmac Construction Ltd & Anor [1995] 3 ALL ER 534, is that:

"In considering all the circumstances, the court will have regard to the plaintiff company's prospects of success. But it should not go into the merits in detail unless it can clearly be demonstrated that there is a high degree of probability of success or failure."

8. In the same vein, in the case of Wan Muhamad Ibrisam Wan Ibrahim & Ors v. Opal Pyramid Sdn Bhd [2009] 1 CLJ 201, the concept of winning has no place in an application for security for costs. The case of S&S Power Switchgear Ltd v. Toprank Corporation Sdn Bhd [2005] 6 CLJ 304; [2005] 2 MLJ 69 should be distinguished. Therefore, in this application, this Court will not dwell into the detailed merits of the case.

Evaluation and Findings

9. It is purely a discretion of the court to allow the application for the Plaintiff to provide security for costs. In considering whether the application should be allowed or not, the court can take into account all circumstances in order to balance between ensuring that protection is afforded to the Defendant and at the same time to avoid injustice to the Plaintiff by unnecessarily shutting the Plaintiff out or stultifying the Plaintiff in the conduct of its litigation. This principle is enunciated in Goldquest International Ltd v. The Leong Kiat [2003] 2 CLJ 402:

"... It is entirely within the domain and the discretion of the court to order security by taking into account all the circumstances of the particular case in order to achieve a balance between ensuring that protection is afforded to the defendant and at the same time to avoid injustice to the plaintiff by unnecessarily shutting the plaintiff out or stultifying the plaintiff in the conduct of its litigation (Jeffcott Holdings Ltd (in liq) v. Paior [1994] 14 ACSR 239, SC (SA);