JUDGMENT

A. Introduction:

This is an appeal by the Appellant/Plaintiff against the dismissal of his suit against the Respondent/Defendant for malicious prosecution by the learned Sessions Court Judge Tawau (SCJ) on 15.03.1999. In dismissing the action the learned SCJ found that that the Appellant/Plaintiff failed to prove that it was the Respondent/Defendant who set the criminal law in motion against the Appellant/Plaintiff. And while finding that the criminal proceeding was terminated in favour of the Appellant/Plaintiff as well as that the Respondent/Defendant 'did not have before him a state of circumstances which would reasonably lead any ordinarily of (sic) prudent and cautious man to conclude that the Plaintiff was probably guilty of misappropriating the RM80,000.00' the learned SCJ also concluded that the Respondent/Defendant was not actuated with malice. According to the learned SCJ the Appellant/Plaintiff also failed to prove damage. And she went on to say that in the event that she was wrong in her conclusion she was only prepared [2] to award the Appellant/Plaintiff a nominal sum of RM1.00 for general damages and the legal fee of one counsel for the criminal trial.

Being dissatisfied with the findings of the learned SCJ the Appellant/Plaintiff now appeals contending several grounds in his Memorandum of Appeal. But before dealing the relevant grounds as submitted it may be appropriate to briefly state the background leading to the institution of the present action.

B. Background Facts:

Both the Appellant/Plaintiff and the Respondent/Defendant were and are members of an association called the 'Fook Siew Society' (the Society) of Semporna, Sabah. The dispute arose when the Respondent/Defendant lodged a Police report (AA117) that since the sum of RM80,000.00, which was part of the State Government grant to the Society of RM150,000.00 given in 1989, was not reported in the Statement of Accounts of the Society for the years 1990-1992 the Appellant/Plaintiff must have misappropriated it until 1993. Such sum only appeared in the Statement of Accounts during the Annual [3] General Meeting of the Society held on 25.12.1994 and was indicated therein that it was only received in 1993. In fact the Police report was preceded by AD1 and AD2 that were recorded by the Investigating Officer Shye Ming Chung (DW.3) from the Respondent/Defendant. In the event the Appellant/Plaintiff was charged under section 409 of the Penal Code under criminal trial TSC-62-58-1995. That trial ended in the acquittal of the Appellant/Plaintiff without his defence being called.

Thereafter the Appellant/Plaintiff commenced the present action against the Respondent/Defendant for malicious prosecution.

C. The judgment of the lower Court:

In coming to her decision as summarized hereinabove the learned SCJ relied on the principle as enunciated in the case of Rawther v Abd. Kareem (1966) 2 MLJ 201 . In that case the plaintiff was charged for making a false affidavit in connection with a winding up proceeding of a company commenced by the defendant. In fact the initial basic dispute was that the defendant alleged that the plaintiff was not a [4] shareholder of the company. The respective parties therefore filed affidavits on the issue with implication that the share certificate of the plaintiff in the company was doubted. However, the plaintiff was not charged for forgery of share certificate but for making a false affidavit. The plaintiff was tried but was acquitted without his defence being called. Hence the plaintiff commenced an action for malicious prosecution against the defendant. At the trial the defendant did not appear. The plaintiff proceeded to prove his case and judgment was entered in his favour. The defendant appealed. In the course of his judgment his Lordship Thomson LP said, inter alia, at page 203:

"Any action for malicious prosecution raises questions of difficulty. On the one hand there is the need to protect the reputation of the individual