High Court Strikes Out Assault and Conspiracy Claims Against Family Bystanders in Domestic Dispute

Introduction

In a recent ruling, the High Court of Malaysia, presided over by Judicial Commissioner John Lee Kien How @ Mohd Johan Lee, granted an application to strike out the plaintiff's claims against the 2nd and 3rd Defendants under Order 18 r 19(1)(a) of the Rules of Court 2012 (ROC 2012). The case stemmed from a family altercation where the plaintiff alleged assault and conspiracy to injure by his in-laws during an incident involving his friend, the 1st Defendant. The court found no reasonable cause of action, emphasizing that mere inaction and non-threatening words do not suffice for tort liability, dismissing the claims against the siblings to prevent unnecessary trials.

Case Background

The plaintiff is married to Sharifah Aisyah binti Syed Mohamed, the younger sister of the 2nd and 3rd Defendants. The 1st Defendant is the husband of the 2nd Defendant and a longtime friend of the plaintiff since 2005. Tensions arose in May 2021, leading to a family dinner on 21 October 2021 attended by the plaintiff, his wife, in-laws, and the defendants. During the event, the plaintiff claimed the 1st Defendant punched him in the face, causing serious injuries that required medical attention and prompted a police report.

The plaintiff initiated legal action on 3 November 2021 via a writ and statement of claim (SOC), seeking declarations of assault and trespass to the person by all defendants, along with an injunction to restrain them from approaching him. He also alleged conspiracy to injure. The 2nd and 3rd Defendants, siblings of the plaintiff's wife, applied to strike out the claims against them, arguing the SOC disclosed no reasonable cause of action. The central legal questions were whether their alleged inaction and the 2nd Defendant's words ("you do not deserve my sister") constituted assault or conspiracy, and if the pleadings met the threshold under ROC 2012.

Arguments Presented

The 2nd and 3rd Defendants contended that the SOC failed to establish any reasonable cause of action against them. They argued their mere presence as bystanders during the 1st Defendant's alleged assault did not amount to assault or trespass, as inaction alone cannot create liability for an imminent threat. They dismissed the 2nd Defendant's statement as non-threatening and irrelevant to assault. On conspiracy, they highlighted the absence of specific pleadings for essential elements, such as an agreement to injure, emphasizing that vague references to prior paragraphs were insufficient and required clarity and precision.

In opposition, the plaintiff maintained that the siblings' inaction, combined with the 2nd Defendant's words, could form an assault, citing the English case R v Ireland to argue that silence or words might induce fear of immediate violence—a factual matter for trial. He asserted that paragraphs 29–37 and 47–48 of the SOC adequately particularized conspiracy by reiterating the assault events, and even if deficient, the error was not fatal per Pacific Orient Insurance Co Berhad v Mohammad Hafizi Bahari & Anor [2021] 1 LNS 647. He urged the court to allow the case to proceed to trial for witness testimonies rather than striking out at this stage.

Legal Analysis

The court applied Order 18 r 19(1)(a) of ROC 2012, which permits striking out pleadings that disclose no reasonable cause of action, but only in plain and obvious cases to avoid frivolous trials, as affirmed in precedents like Bandar Builder Sdn Bhd v United Malayan Banking Corp Bhd and Abdul Rahim bin Abdul Hamid v Perdana Merchant Bankers Sdn Bhd . It stressed that striking out is not for merits assessment but for unsustainable claims on their face, per Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd , where the court must consider pleadings alone without affidavits.

On assault, the court defined it as an intentional act with an imminent threat of hostile touching, drawing from Bullen & Leake & Jacob’s Precedents of Pleadings . It rejected inaction as assault, viewing the siblings as mere bystanders without any threat or apprehension of violence. The R v Ireland reliance was distinguished, noting that words must objectively provoke fear of immediate violence in context, which "you do not deserve my sister" did not.

For conspiracy to injure, the court required pleading an agreement to injure, followed by overt acts causing damage, per Renault SA v Inokom Corporation Sdn Bhd & Anor . The SOC's paragraph 50 was deemed too general, lacking specifics on any agreement among defendants, unlike Pacific Orient Insurance , where a police report provided some basis—absent here. The court also declined to amend pleadings under its inherent jurisdiction, citing AIC DotCom Sdn Bhd v MTEX Corp Sdn Bhd , as no amendment could salvage the untenable claims. Other precedents like Global Ventures Network Sdn Bhd v Lokman bin Dato’ Mohd Kamal clarified that "agreement" need not be formal but must be precisely alleged, which was not done.

The analysis distinguished assault (requiring active threat) from conspiracy (needing concerted agreement), underscoring that family dynamics and verbal barbs alone do not trigger tort liability without clear unlawful intent or acts.

Key Observations

• "An assault is an act involving an imminent threat to touch another in a hostile manner with the capability to carry out such threat." (From Bullen & Leake & Jacob’s Precedents of Pleadings , adopted by the court to define the tort.)
• "The well-established principle is that the court will not summarily strike out pleadings, except only in plain and obvious cases where the claim or counterclaim is plainly and obviously not sustainable." (Quoting Abdul Rahim bin Abdul Hamid v Perdana Merchant Bankers Sdn Bhd , emphasizing the high threshold for striking out.)
• "It is clear that the very first element to be shown must be an agreement between two or more persons for the purpose of injuring... The agreement to injure must come first." (From Renault SA v Inokom Corporation Sdn Bhd & Anor , highlighting the core requirement for conspiracy claims.)
• "Mere spoken words may be insulting or threatening and, in most cases, would not amount to an assault unless they provoke fear of immediate violence. The test in determining an assault is objective." (From Bullen & Leake & Jacob’s Malaysian Precedents of Pleadings , applied to dismiss the verbal remark as non-assaultive.)
• "The power [to amend] may only be exercised if the pleading is capable of being saved by an amendment." (From AIC DotCom Sdn Bhd v MTEX Corp Sdn Bhd , justifying refusal to amend due to fundamental flaws.)

Court's Decision

The court allowed the 2nd and 3rd Defendants' application under Order 18 r 19(1)(a) ROC 2012, striking out the plaintiff's SOC dated 3 November 2021 against them and dismissing the action accordingly, with costs awarded to the applicants. This ruling reinforces that courts will dismiss plainly unsustainable tort claims early to conserve resources, particularly where pleadings lack essential elements like threats for assault or agreements for conspiracy. Practically, it shields bystanders in family disputes from liability absent active involvement, potentially deterring weakly pleaded claims in domestic tort cases. Future litigants must ensure precise particularization to survive striking out, promoting clearer pleadings in Malaysian civil procedure.