Thomson LP:

This is an appeal by the defendant in an action in which the plaintiff successfully sued for damages for malicious prosecution.

The facts of the case are by no means clear but would appear to be as follows.

The defendant and his brother were shareholders (the defendant has always said the only shareholders) in K Ismail Ghaney Rawther & Co. Ltd, a limited liability company carrying on business in Kuala Lumpur. Differences arose between the brothers and in 1959 the defendant commenced proceedings which were opposed by his brother for the compulsory winding-up of the company. Then in January or February, 1960, the present plaintiff took steps to be joined as a party on the ground that he was a shareholder in the company and he opposed the petition.

On this the defendant took up the attitude that the plaintiff was not a shareholder and that a share certificate on which he relied was not genuine and on 6 February 1960, he swore an affidavit and filed it in the winding-up proceedings. That affidavit has not been produced in evidence in the present proceedings and whether it contained any allegation of actual forgery it is impossible to say. The nature of some of its contents can be gathered from a counter affidavit sworn by the plaintiff on 12 February 1960. That affidavit referred to the defendant's affidavit and went on:-

It is untrue as stated in the said affidavit that (a) S M Abdul Kareem is not a shareholder of the company, (b) no consideration was paid for the 300 shares held by the said S M Abdul Kareem, (c) at the time of issue of share certificate for him and me, the said K E Packeer Mohiadeen Rawther signed any blank share certificate forms, (d) the share certificate issued to the said S M Abdul Kareem was not duly sealed with the authority of both the directors, (e) Mr. Mohideen Bacha was not the secretary of the company on the date the said certificate wan sealed, that is 29 July 1958."

About this time the winding-up proceedings came to the notice of Inspector Donald Aeria of the commercial crimes branch of the police and he commenced to make investigations which resulted in the arrest of the plaintiff on 11 April 1960. He was released on police bail and the following day he appeared in the sessions Court on a charge that his affidavit of 12 February 1960, which has already been quoted, was false and in making it he had committed an offence under section 199 of the Penal Code.

The trial in the sessions Court commenced on 3 August 1960, and occupied eight days spread over a period of some three months. The defendant himself gave evidence on the first day of the trial and on seven November the president held that there was no case to answer and acquitted and discharged the accused. The president gave his reasons for taking that course in a short note, the material portions of which read as follows (Sic):

The evidence of the prosecution which greatly depended upon PW4 KE Packir Meideen (the present defendant) is quite unsatisfactory.

Other prosecution witnesses are at complete variance therewith, I did not accept PW4's testimony.

In that it has certainly not been established by the prosecution at this time that the accused was not what he purported to be i.e. the holder of 300 shares in Messrs. Ismail Ghany Rawther & Co. at the relevant date charged.

Indeed were it so established, which I hold it is not then most certainty in the circumstances disclosed in this case there is no evidence whatever that the accused intentionally made a false declaration for he although the subject of certain arbitration proceedings concerning his shares was on the evidence never a party thereto. To quote that evidence 'SM Abdul Kareem was not consulted nor was he present' would therefore the evidence adduced at this time if unrebucted warrant the conviction of the accused for the offence brought against him."

On 15 December 1960 the plaintiff commenced the present proceedings.

The statement of claim averred th