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2014 MarsdenLR 681
HIGH COURT SABAH & SARAWAK KUCHING
VOON LEE SHAN – Appellant
Versus
ANOI KIAN & ORS – Respondent
[Suit No: 21-8-2010-II]
Malicious prosecution requires proof of lack of reasonable cause and malicious intent, where defendants acted with malice following an unlawful arrest.
Headnote:(A) Penal Code - Section 216 - Malicious prosecution, unlawful arrest, assault, defamation claims - Plaintiff, a former police officer, claims damages following malicious prosecution by defendants linked to 27-month delay and illusory evidence - Actions of defendants deemed abusive, leading to liability for malicious prosecution and vicarious liability of employer. (Paras 5, 12, 35, 45)
(B) Malicious prosecution - Plaintiff must prove prosecution by defendant, determined in favor, without reasonable cause, and malicious intent - Defendants failed to demonstrate reasonable grounds as evidenced by lack of diligent investigation. (Paras 7, 12, 13, 35)
(C) Defamation - Absolute privilege applies leading to dismissal of claim. (Paras 46, 56)
Facts of the case:
Plaintiff, after facilitating a remand application for an accused person, faced malicious prosecution initiated by police defendants citing dissatisfaction with his actions. (Paras 2-5)
Findings of Court:
Defendants acted with malice, vicariously liable to plaintiff due to police misconduct, with no reasonable grounds for prosecution. Nominal damages awarded. (Paras 54, 55)
Issues: Reasonable cause for prosecution, element of malice, and alternate motives for arrest. (Paras 5, 12, 36)
Ratio Decidendi: Malicious prosecution requires proof of actions lacking reasonable cause or driven by malice; police actions deemed abusive and retaliatory by nature. (Paras 12, 35)
Result: Plaintiff made nominal damages of RM1.00 and exemplary damages of RM10,000; costs of RM100,000 awarded.
| Table of Content |
|---|
| 1. claim of malicious prosecution by a former police officer. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. requirements to prove malicious prosecution. (Para 7 , 8 , 10 , 11) |
| 3. absence of reasonable and probable cause is crucial. (Para 12 , 13 , 14 , 15) |
| 4. evidence and investigation impact on reasonable belief. (Para 16 , 17 , 18 , 19) |
| 5. delay in prosecution raises questions of intent. (Para 20 , 23 , 25 , 26 , 30 , 33) |
| 6. malice demonstrated through the defendants' conduct. (Para 35 , 36 , 38 , 39 , 40) |
| 7. damages must be quantified with evidence. (Para 46 , 47) |
[1] The plaintiff, a former senior police officer in the Royal Malaysian Police Force for more than 17 years, an advocate and solicitor of the High Court of Sabah and Sarawak and a former Member of Parliament claims damages for, inter alia, malicious prosecution, unlawful arrest, assault and defamation which he suffered in the hands of the 1st, 2nd, 3rd and 4th defendants as servants, employees, and/or agents of the 5th defendant.
[2] The plaintiff had appeared in a remand proceeding, acting on behalf of an accused person known as Hendrick Tan Boon Kai (Hendrick Tan) on 11 July 2000 at the District Office, Kota Samarahan. The 1st defendant, Anoi Binti Kian (DW2), who was then an Inspector, had appeared to apply for a 14 day remand against the said Hendrick Tan but the Magistrate upon hearing the submissions of the plaintiff, released the said Hendrick Tan unconditionally. As it followed, outside the Court, the 1st defendant had attempted to rearrest the said Hendrick Tan. But after an exchange of words with the plaintiff, the 1st defendant desisted and as I find, made no further attempt to re-arrest the said Hendrick. The plaintiff and Hendrick Tan were then driven away together in a car driven by a former employee of the plaintiff, who was not called to be a witness in this case.
[3] The 1st defendant then lodged a police report of which set in motion the process leading to the prosecution against the plaintiff.
[4] The plaintiff has brought these proceedings because of what happened subsequently. He was arrested for an offence framed under s 216 of the Penal Code some 27 months later in October 2002, and was subsequently charged and acquitted at trial. The plaintiff's acquittal was appealed all the way to the Court of Appeal in a period spanning seven years. Along each step of the way along this woeful journey, the plaintiff was vindicated of all charges.
[5] For the purposes of this action it is the plaintiff's case that the charge against him was, from the very first day, malicious and scandalous, with the intention to punish, defame and embarrass him for successfully resisting a remand application instituted against the said Hendrick Tan. The defendants were embarrassed and angry and brought into play the whole machinery of the police force and the prosecution to 'get him' for what he did. In nuce, the defendants sought retribution. The 1st defendant, told the plaintiff that she never expected, at all, that the remand application would fail. She was, clearly angry at this outcome and therefore, I find that she was the initiator of the prosecution against the plaintiff. If the 1st defendant was motivated by the need to seek retribution and not by a bona fide sense of duty, then I must hold that her actions were an abuse of the process for which the 1st, 2nd and 3rd defendants are collectively responsible. I will reserve my findings on this point for the conclusion of this ruling.
[6] The defendants' case on the other hand is that the arrest and prosecution of the plaintiff were lawful and in accordance to due legal process, and that the information on which the prosecution was based was entirely proper.
The Plaintiff's Claim
[7] In an action for malicious prosecution a claimant must prove first that he was prosecuted by the defendant, that is to say that the law was set in motion against him on a criminal charge; second, that the prosecution was determined in his favour;
