Anton Warjono v Mohd Khairi Bin Othman (KA-21NCvC-4-06/2023)

ANTON WARJONO (Indonesian Passport No: B9074177)

FONNY IMANUEL MALAU (Indonesian Passport No: C2876263)

MUCHAMAD ZAINUL ABIDIN (Indonesian Passport No: C2733318)

FERDIAN NOVI YURIZKI (Indonesian Passport No: C1129222)

MUKHLISIN YURDIANTO (Indonesian Passport No: B2016688)

FAISHOL ARDI WIRANATA (Indonesian Passport No: C2729814)

SAPLI RESKI (Indonesian Passport No: B0151565)

ABDUL AZIZ (Indonesian Passport No: C1051866) 06/06/2026 00:39:43

NOVAL (Indonesian Passport No: B1687375)

MOH SAFIK UDRUS (Indonesian Passport No: B9695343) --- PLAINTIFFS

MOHD KHAIRI BIN OTHMAN (NRIC No: 830206-02-5151)

MOHD AZHIMAN BIN MOHD AZRI @ MOHD ASRI (NRIC No: 911129-13-5035)

GOVERNMENT OF MALAYSIA --- DEFENDANTS GROUNDS OF JUDGMENT (After Full Trial)

This is a civil action instituted by the Plaintiffs, a group of Indonesian sailors, against the Defendants for a claim against malicious prosecution allegedly committed by the Royal Malaysian Customs for remanding them for a period of around 3 years. S/N F64sMkPUdk2qFNczkoboXw Facts and Background 2. The Plaintiffs were aboard a vessel known as “MV KAMBERRA” (“the Vessel”). The First Plaintiff was the captain of the Vessel, and the rest of the Plaintiffs were the crew of the Vessel.

On 06/04/2019, the Vessel entered the territorial waters of Langkawi, Kedah, for allegedly bunkering purposes. Bunkering is the act of refuelling a vessel at sea, whether at a port or through the assistance of a barge.

According to the Plaintiffs, they had alerted the relevant maritime authorities that they were entering Langkawi territory for bunkering. However, the First Defendant had arrested and detained the Plaintiffs under suspicion, and later charged them for smuggling cigarettes into Langkawi.

This, according to the Defendants, was a result of an inspection by the First Defendant, which uncovered the following irregularities:

(i). The captain failed to furnish related documents, e.g. port of departure, bunkering permit, customs forms for declaration of cigarettes in the Vessel’s manifest.

(ii). The Vessel’s automatic identification system was intentionally deactivated to prevent tracking. The captain claimed their S/N F64sMkPUdk2qFNczkoboXw GPS systems were faulty, and they had to rely on a navigation application on a tablet.

(iii). Undeclared prohibited goods, suspected to be 'uncustomed goods', discovered under highly suspicious circumstances:

The outward manifest indicates they were sailing from the Port of Batam, Indonesia, to the Port of Yangon, Myanmar, with 9,600 master cases of “JOHN” branded cigarettes.

Upon physical inspection, the First Defendant only found 4,801 master cases and not the 9,600 master cases as recorded, a discrepancy of 4,799 cases.

(iv). The captain failed to declare the goods in the inward manifest and did not produce a port clearance to the Defendants.

(v). The captain failed to show a valid approval from the Customs Department for bunkering, where the shipping agent and the Vessel’s counsel were not able to produce relevant permits and licenses.

(vi). The Vessel was not seaworthy after committing 11 serious offences under maritime law, where all crew members, including the captain, possessed expired Certificates of S/N F64sMkPUdk2qFNczkoboXw Recognition upon further inspection by the Marine Department of Malaysia.

(vii). The Vessel had issues with its Oily Water Separator (OWS), which further warranted its arrest.

According to the Second Defendant, he had instructed the captain and the bunkering agent to produce the necessary documents within 24 hours of the Vessel’s arrest. Upon their failure to do so, the captain and crew were arrested for an offence under section 135 of the Customs Act 1967 and the Anti-Money Laundering, Anti-Terrorism Financing, Anti-Restricted Activity Financing and Proceeds of Unlawful Activities Act 2001.

The Plaintiffs were produced before the Magistrates' Court at Langkawi, the very next day on 07/04/2019, for remand. The learned Magistrate granted a 14-day remand for further investigation.

On 18/04/2019, the Plaintiffs were formally charged for an offence under section 135(1)(a) of the Customs Act 1967. A bail bond of RM80,000.00 was offered, but the Plaintiffs claimed they were unable to pay the bail. Hence, the Plaintiffs were detained at the Perlis Correctional Centre pending disposal of the case.

On 27/04/2021, after a full trial, the Magistrate’s Court discharged and acquitted the Plaintiffs after the prosecution failed to establish a prima facie case. This decision was appealed to the High Court at Alor Setar but was later withdrawn by the prosecution. On 27/05/2022, the Plaintiffs were deported to Indonesia by the Department of Immigration. Arguments of Parties 10. The Plaintiffs contend that their arrest and prosecution were conducted without reasonable cause and with malice, raising the following key arguments:

(i). That the Vessel entered the territory of Langkawi solely for bunkering purposes and maintained that they had no intention of importing or exporting goods into Malaysia, especially the seized cigarettes.

(ii). A central pillar of their claim is that the Defendants failed to investigate the bunkering explanation. They point out that the investigating officer never recorded a statement from the local agent, Encik Shah, which would have verified their story.

(iii). The Plaintiffs suggest the officers were motivated by potential rewards for making a large arrest. Hence, it was tainted by malice. S/N F64sMkPUdk2qFNczkoboXw

Conversely, the Defendants argue that the detention and prosecution constituted a lawful exercise of statutory duties grounded upon a high degree of reasonable suspicion. They further submitted that:

(i). The Defendants rely on section 132 of the Customs Act 1967, which provides immunity from damages for seizures made with reasonable or probable cause.

(ii). They argue that several factors justified the detention, namely failure to furnish necessary documentation, discrepancies of cargo and significant discrepancies between the declared manifest and actual physical count found in the Vessel, and the deactivation of the Vessel’s Automatic Identification System (AIS) all suggesting illegal offloading.

(iii). The Defendants further argue that the Plaintiffs were held under valid court-ordered remands and the decision not to pay the bail is entirely the Plaintiffs’ choice. Decision of this Court 12. Having comprehensively considered evidence presented during trial, and having read both parties’ written submissions and heard the oral submissions, this Court dismisses this claim entirely. S/N F64sMkPUdk2qFNczkoboXw A. Preliminary Finding: The Time-Barred Claims under the Public Authorities Protection Act 1948 13. Before addressing the merits of the malicious prosecution claim, this Court must definitively dispose of the Plaintiffs' initial claims for wrongful arrest and false imprisonment. There is a formidable statutory bar to these causes of action. As rightly submitted by the Defendants, Section 2(a) of the Public Authorities Protection Act 1948 (Act 198) mandates that any suit against a person acting in the execution of a public duty must be commenced within thirty-six (36) months next after the act, neglect, or default complained of.

The strict and mandatory nature of this 36-month limitation period was affirmed by the Federal Court in Selvaraju a/l Ponniah v Suruhanjaya Perkhidmatan Awam Malaysia & Anor [2007] 7 MLJ 1. In the present case, the Plaintiffs' arrest and initial remand took place in April 2019, whereas this civil suit was filed only on 16 June 2023—well beyond the 36-month limitation period. Consequently, the Plaintiffs' claims for wrongful arrest and false imprisonment are hopelessly time-barred. This legal reality explains why the learned counsel for the Plaintiffs judiciously conceded these causes of action during oral submissions, leaving malicious prosecution—which only accrued upon their acquittal in April 2022—as the sole triable issue. S/N F64sMkPUdk2qFNczkoboXw B. Key Issues 15. Appellate authorities on the tort of malicious prosecution are sparse, but not without good reason. The earliest authority discussing malicious prosecution and its requirements was in Rawther v Abdul Kareem [1966] 2 MLJ 201; [1966] 1 MLRA 398. Here, in his judgment, Thomson LP warned that in a malicious prosecution claim, the courts are required to strike a balance between the need to protect the reputation of the individual against unjustified attacks and the necessity of affording protection to persons who have assisted as witnesses in the administration of public justice.

In Rawther, the five requirements to establish the tort of malicious prosecution are laid down:

(i). the defendants set the criminal law in motion against the plaintiff;

(ii). that the defendants did not have any reasonable or probable cause for setting the law in motion against the plaintiff;

(iii). that the defendants were actuated by malice in the sense that they had a motive other than to carry the law into effect;

(iv). that the proceedings terminated in the plaintiff’s favour; and S/N F64sMkPUdk2qFNczkoboXw

(v). that the plaintiff had suffered damages.

Notably, the courts have consistently cautioned against allowing every acquitted person to automatically institute civil proceedings against investigating authorities. As elucidated by Vazeer Alam J (as he then was) in Mohamad Izaham bin Mohamed Yatim v Norina bt Zainol Abidin & Ors [2017] 7 MLJ 775, to allow such a practice merely because the prosecution failed to prove its case would be contrary to public interest and policy. A high threshold for liability is necessary so that public prosecutors and investigating authorities are not hindered in the proper execution of their public duties by the fear of unmeritorious civil suits.

This public policy concern, as echoed in the landmark Federal Court case of Rawther (supra) (See also, Voon Lee Shan v C/Insp I/14105 Anoi bt Kian & Ors [2015]10 MLJ 218), recognises the necessity of affording protection to persons who assist in the administration of public justice. Notwithstanding this high threshold, the law holds that authorities are not above the law and accountability must be maintained. In this case, it is undisputed that an investigation was conducted and that a criminal charge under Section 135 of the Customs Act 1967 was instituted. It is clear that it was the Defendants who set the criminal law in motion against the Plaintiffs, and it is equally uncontested that these proceedings ended in the Plaintiffs’ favour with an acquittal. Thus, the first two requirements of malicious prosecution are undisputedly met.

In this case, there is no doubt that this is an investigation by an authority for a criminal offence. There was no contest by the Defendants that the charge under section 135 of the Customs Act 1967 is, in fact, a criminal charge. It thus becomes clear that the Defendants were the parties who set the criminal law in motion against the Plaintiffs. It bears stating the obvious that criminal law is not confined to only offences under the Penal Code. It is also uncontested that the proceedings, in this case at the Magistrate’s Court, ended in the Plaintiffs’ favour, where they were dismissed and acquitted. Two out of five requirements are met.

The two requirements: whether there was reasonable or probable cause against the plaintiff and whether the defendants were actuated by malice, are heavily contested. These will form the core of the discussion in this Judgment.

The Defendants have reasonable or probable cause for setting the law in motion against the Plaintiffs 21. To satisfy this requirement, the Plaintiffs must demonstrate, through direct or circumstantial evidence, a lack of reasonable or probable cause on the part of the Defendants.

The question is now what is considered ‘reasonable’ or ‘probable’ cause? The Defendants correctly relied on the definition laid down by Lord Devlin at the Privy Council in Shaaban & Ors v Chong Fook Kam & Anor [1969] 2 MLJ 219, which held that reasonable S/N F64sMkPUdk2qFNczkoboXw suspicion cannot be equated with prima facie proof. Suspicion may encompass non-evidentiary matters that would be inadmissible to form part of a prima facie case, such as a false alibi in a murder investigation. While the offence of murder does not require an alibi to establish a prima facie case, a false alibi certainly raises a reasonable suspicion of culpability. This definition illustrates that the scope of reasonable cause is considerably wide and intensely fact-specific, relying on an objective basis to suspect that an offence was committed rather than an arbitrary, unfettered exercise of authority clothed in mere hunches or unexplained reasoning.

In the instant case, the Plaintiffs allege that the Defendants did not investigate their claim for bunkering. They relied upon the notes of proceedings at the Magistrate’s Court to show that the First Defendant admitted in the trial that he did not investigate the bunkering issue. The Plaintiffs further alleged that the First and Second Defendants were not interested in conducting a sincere investigation, as no statement was taken from the Plaintiffs’ agent during the bunkering investigation. They further claim that the Marine Department's non-prosecution reinforces their innocence.

The Defendants contend that the Plaintiffs’ arrest and detention arose from a series of events and investigations into the legality of their approach and subsequent landing in Langkawi territorial waters. Thus, the arrest and detention are not solely based on the Plaintiffs’ claim for bunkering but also under suspicion of the commission of an offence under the Customs Act 1967.

As described extensively above in paragraph 5 of this Judgment, the captain of the Vessel, i.e., the First Plaintiff, was unable to show that they possessed the necessary permit and license for bunkering. Further physical cargo inspection found that there were highly suspicious circumstances where there was a discrepancy of 4,799 master cases from the 9,600 master cases as declared in the Vessel’s cargo manifest. Other documents, such as outward and inward manifests, port clearance, and bill of lading, did not support their claim that they had offloaded the 4,799 master cases at the Port of Yangon. Hence, there arose a suspicion that it was offloaded at Langkawi.

Further, the goods in question were required to be declared by the captain lest they be classified as “uncustomed goods” under section 2 of the Customs Act 1967. (See Goodness for Import and Export v Phillip Morris Brands Sarl [2016] 5 MLJ 171) However, the captain was unable to produce documents demonstrating compliance with the applicable laws and regulations governing these goods, which were allegedly in transit. Hence, it is my opinion that the First and Second Defendants had reasonable, if not probable, suspicion that an offence under section 135 of the Customs Act 1967 was committed.

The Defendants' reasonable suspicion was not isolated to Customs violations alone. The oral testimony of SD1 (Norazman bin Ahmad), the Marine Officer, incontrovertibly established that upon inspection, the Vessel had committed multiple serious maritime infractions. Crucially, it was discovered that the crew members, including the S/N F64sMkPUdk2qFNczkoboXw Captain, possessed Certificates of Competency (Certificate of Endorsement) that had already expired, rendering them legally unfit to sail. These compounded violations under maritime law further justified the Vessel's detention and solidified the Defendants' objective assessment that the ship and its crew were operating unlawfully in Malaysian waters.

In advancing the defence that the Vessel had entered Langkawi waters strictly for the purpose of 'bunkering' (refuelling) and that the missing cargo had been unloaded in Yangon, the evidentiary burden shifted entirely to the Plaintiffs. It is a trite principle of law, statutorily codified under Section 103 of the Evidence Act 1950, that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence (see the Federal Court’s pronouncement in Johara Bi Binte Abdul Kadir Marican v Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139). During the trial, the Plaintiffs' shipping agent (SP2) remarkably admitted that he never submitted the requisite Port Clearance or bunkering approvals to the Customs Department, obstinately asserting there was 'no need' to do so. The Plaintiffs’ spectacular failure to discharge this evidentiary burden fortified the Defendants' honest and reasonable suspicion that a smuggling offence was afoot.

Even if this Court were to isolate the issue of bunkering solely, the Plaintiffs failed to prove their case on this point. Although they had appointed Syarikat Seal Superyatch Malaysia as their agent for bunkering, Encik Muhamad Shah of the agency was also unable to produce the necessary permits to the Defendants when questioned. S/N F64sMkPUdk2qFNczkoboXw As mentioned by SP2, the Plaintiffs’ local agent in charge of their welfare, and the maritime procedure in the shipping industry are standardised globally. While SP2 noted that maritime procedures are standardised globally, his testimony was fundamentally flawed by the untenable assertion that a customs declaration via Borang Kastam 1 was unnecessary simply because Langkawi was a duty-free zone; an assertion that misinterprets basic customs regulations.

SD3 explained that he did meet with Encik Muhamad Shah to investigate the Plaintiffs’ claim for bunkering, but was not able to complete the investigation because the agent failed to furnish any documentation, such as a bunkering permit, port clearance or approval from the Marine Department, to support the claim. For this reason, SD3 did not record the agent’s statement. An investigating officer can hardly be faulted, let alone accused of malicious prosecution, for declining to record a defence that remains entirely uncorroborated by mandatory statutory documentation.

Furthermore, it defies commercial sense for a vessel to sail thousands of kilometres from Yangon to Langkawi for the sole purpose of bunkering without securing the necessary documentation. Although SP2 hypothesised that the Port of Yangon could not supply fuel due to wartime turmoil, he conceded this was merely his opinion. No evidence was adduced to suggest that the Vessel attempted to bunker at Yangon and was denied, nor was any such explanation communicated to the Defendants during the initial inquiry. This explanation is therefore rejected.

Having established that the Customs Officers acted upon an honest and reasonable suspicion, the Defendants are consequently clothed with statutory immunity. This Court draws attention to Section 132 of the Customs Act 1967, which expressly prohibits any proceedings against the Government or its officers for the recovery of costs or damages arising from a seizure, unless it is proven that such seizure was made without reasonable or probable cause. Given the massive, unexplained discrepancy of 4,799 master cases of cigarettes, the Defendants' invocation of this statutory protection is unassailable. The Plaintiffs cannot sidestep this statutory bar when the threshold of reasonable cause has been manifestly met by the Defendants.

This massive discrepancy did not merely arouse a subjective suspicion; it triggered a cascade of statutory presumptions against the Plaintiffs. Under Section 45 of the Customs Act 1967, goods unaccounted for in the manifest are statutorily deemed to be uncustomed goods. More damningly, Section 46 of the same Act dictates that if the quantity of goods entered in the manifest is found to be short, such missing goods shall be deemed to have been illegally landed in Malaysia. Coupled with the Captain's abject failure to report the Vessel's arrival (Section 36) or submit an accurate manifest (Section 52), the Defendants were legally bound to treat the Vessel as a vessel actively engaged in the smuggling of prohibited goods. It is legally perverse for the Plaintiffs to claim malicious prosecution when their own conduct activated these strict statutory presumptions of guilt.

In evaluating the actions of the Customs Officers, this Court must be cautious not to conflate the threshold required for a criminal conviction with the threshold required to initiate an arrest and investigation. The guiding star remains the pronouncement of the Privy Council in Shaaban & Ors v Chong Fook Kam & Anor [1969] 2 MLJ 219, where Lord Devlin eloquently drew the distinction between 'reasonable suspicion' and 'prima facie proof'. While prima facie proof consists of admissible evidence ready for trial, suspicion can take into account matters that cannot be put in evidence at all. The investigating authorities are not required to possess a water-tight, trial-ready case at the moment of interception. Based on the glaring cargo discrepancies at the material time, the Defendants possessed more than sufficient 'reasonable suspicion' to set the law in motion, irrespective of the Magistrate’s subsequent finding on prima facie proof during the trial.

From the above, the Plaintiffs’ argument that their reason for bunkering was not investigated falls flat. This Court finds that there was reasonable and probable cause for the Plaintiffs’ arrest by the Defendants.

The Defendants’ actions were not actuated by Malice 36. In Rawther, the discussion between probable cause and malice was interconnected and intermingled. Thomson LP observed that, in many English cases, a want of probable cause would naturally infer malice. One such clear pronouncement was in Glinski v S/N F64sMkPUdk2qFNczkoboXw McIver [1962] AC 726 (at 741), where Viscount Simonds warned that a rule to be observed is that a want of honest belief does not automatically conclude a finding of malice, and vice versa. One such example is that the defendants were merely intending to carry out the effect of the law. It must be shown that it must be a wrongful point of fact (See Abrath v The North Eastern Railway Company

11 Q.B.D. 440).

Recent local decisions on malicious prosecution, such as Rosli bin Dahlan v IG Tan Sri Razarudin bin Husain @ Abd Rashid (Ketua Polis Negara PDRM) & Ors [2024] 11 MLJ 381; [2025] 2 CLJ 115, have significantly clarified these principles, liberating our courts from an exclusive reliance upon historical English jurisprudence.

While Ahmad Kamal J (as he then was) in Rosli bin Dahlan did not explicitly discuss the meaning of ‘malice’ within the context of malicious prosecution, the description of the events that occurred in the case suffices to show the manner of establishing malice. In this case, it was found that the PDRM had orchestrated a series of events in abuse of their powers as a law enforcement agency. There was only a false link between the appellant and a police report that became the basis of their wrongful arrest and remand, wrongful freezing orders, wrongful exit prohibition, and wrongful travel ban. Furthermore, a group of reporters was arranged to photograph the appellant in remand clothing solely to embarrass the appellant, thereby making malice obvious through deliberate conduct.

Taking the illustrative example of Rosli bin Dahlan into consideration, and utilising the principles expounded by Rawther, this Court is of the view that malice is a state of mind that, in a case of malicious prosecution by law enforcement, commonly materialises in the form of abuse of power, process, or discretion. This Court wishes to emphasise that this is not an exhaustive list of examples of malice but is simply an observation to harmonise with theoretical principles.

2.1. Prosecutorial Immunity is limited to Actions conducted in Good Faith 40. Before diving deeper into the discussion of malice, it is apt to first address the Defendants’ argument that the prosecution is immune from judicial review by virtue of sections 132 and 145B of the Customs Act 1967.

The amenability of prosecutorial immunity to judicial review has been discussed widely in judicial precedents, as recently as in the case of Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 5 MLJ 209. The Federal Court established that even constitutional prerogatives of the Attorney-General may be reviewed in appropriate circumstances. On this point, this Court is in complete agreement with the learned Senior Federal Counsel’s Reply Submission, which rightfully distinguished the circumstances in Sundra Rajoo. In Sundra Rajoo, the apex court found clear evidence of mala fide because the prosecution proceeded despite knowing the accused was cloaked with immunity. In stark contrast S/N F64sMkPUdk2qFNczkoboXw to the present case, the Defendants’ actions were entirely bereft of mala fide and were securely cloaked in good faith under Section 145B of the Customs Act 1967, driven by a glaring cargo discrepancy.

However, this Court need not traverse the constitutional realm to determine the application of section 145B here, as the protection claimed is strictly statutory.

In the decision of Vazeer Alam Mydin JC (now FCJ) in the case of Rosli bin Dahlan v Tan Sri Abdul Gani bin Patail & Ors [2014] 11 MLJ 481, the issue of prosecutorial immunity was extensively discussed within the window of malicious prosecution when it is conferred by statute. Several appellate authorities, whether Malaysian, English, or Commonwealth, were referenced and analysed in the judgment over the years, ultimately concluding that modern Malaysian jurisprudence, and the world at large, have departed from the notion of absolute prosecutorial immunity. I can do no better than to adopt these analyses, as neither Plaintiffs nor Defendants offered such a discussion in their respective submissions.

This statutory shield is further fortified by Section 145B of the Customs Act 1967, which expressly prohibits any action, suit, or prosecution from being brought against any officer of customs for any act or omission done in 'good faith' in the exercise of their duties. The evidence overwhelmingly illustrates that the First and Second S/N F64sMkPUdk2qFNczkoboXw Defendants executed their duties based on objective discrepancies in the cargo and the persistent failure of the Plaintiffs to adduce the required shipping and bunkering documentation. Their actions were clearly cloaked in good faith, thereby triggering the absolute protection afforded by Section 145B.

Be that as it may, these authorities show that while prosecutorial immunity is amenable to review, it should be afforded to law enforcement authorities and the prosecution when their authority is exercised in good faith. Hence, the relationship between the requirement to show mala fide to establish malicious prosecution and prosecutorial immunity becomes apparent. Simply put, if mala fide is established, prosecutorial immunity does not come into play.

2.2. The Defendants’ Actions were conducted in Good Faith 46. Chiefly, the Plaintiffs alleged that their arrest and detention were motivated by a reward system for catching ‘big fish’ and that system was abused by the First and Second Defendant. This was based on an answer by the Second Defendant during the trial at the Langkawi Magistrate’s Court, where the Plaintiffs’ counsel asked him, “Sudah dapat reward dalam kes ini?” and he answered, “Sudah”.

In the trial before this Court, the Second Defendant had an opportunity to explain and elaborate on the reward system. Here, SD2, who is the Second Defendant, and SD3 explained in their witness statements that the reward system was meant only for S/N F64sMkPUdk2qFNczkoboXw informants (codenamed ‘ampoma’) at the discretion of the Director-General of Customs. Hence, the reward mentioned during the trial at the Magistrate’s Court was paid to this ampoma, not to the investigating officer. This line of questioning was not challenged during cross-examination. The Defendants further adduced Perintah Tetap Penguatkuasaan Bil. 44 dated 1 December 2018 (see page 55 of Enclosure 46), which corroborates that officers at the time of the arrest were not entitled to any reward for a large bust.

This Court makes another observation that discredits the Plaintiffs’ claim that there was mala fide. It was agreed by the parties that the Defendants, specifically the First and Second Defendants, gave the Plaintiffs 24 hours to compile the necessary documents before setting the course of criminal action against the Defendants. According to the Defendants, the provision for providing 24 hours is only applicable to vessels that dock at a valid location of the Langkawi port, of which the Plaintiffs failed to do so. However, to err on the side of caution, the Defendants nevertheless afforded the Plaintiffs the same 24-hour period to supply the necessary documents, which they squandered and failed to comply with.

Had the Defendants been motivated by mala fides, an element of undue haste would characterise the arrest and subsequent prosecution. Instead, the record shows that the Plaintiffs were afforded a reasonable time to verify the legitimacy of their presence. This conclusion is reinforced by the Defendants' strict compliance with standard criminal procedures; although a three-year detention period appears severe at first glance, a close examination of the S/N F64sMkPUdk2qFNczkoboXw record reveals no procedural impropriety.

The Defendants followed the correct procedure for arrest, producing the Plaintiffs for remand application within 24 hours of the arrest, obtaining an extension of 14 days for further investigation, and upon their charge, an offer for bail was extended by the learned Magistrate, which they refused due to financial incapability before being detained further at the Perlis Correctional Centre for the next three years. Upon completion of the investigation, SD3 handed the investigation papers to the Deputy Public Prosecutor at headquarters, who then decided to charge the Plaintiffs with an offence under section 135 of the Customs Act 1967.

It does not appear that there was any procedural irregularity that suggests eagerness to prosecute the Plaintiffs. From the date of the Vessel’s arrest, there was a clear trail of suspicion, investigation, and procedural compliance, illustrating that the prosecution was bona fide and not tainted by malice.

As decided by Zaleha Zahari J (later FCJ) in Saul Hamid bin Pakir Mohamad v Inspector Abdul Fatah bin Abdul Rahman & Anor [1999] 6 MLJ 800, when the decision to prefer charges is made by the Deputy Public Prosecutor upon independent evaluation of the investigation papers, a strong presumption of good faith attaches to the decision, negating any allegation of a unilateral choice by the investigating officers.

On the element of malice, as mentioned earlier, the Plaintiffs contended that the Investigating Officer (the Second Defendant) acted maliciously by failing to record a formal statement from their shipping agent regarding the bunkering defence. This Court finds this allegation to be wholly unsubstantiated. An investigating officer cannot be branded as malicious for failing to formalise a defence that is entirely devoid of statutory documentary backing. Furthermore, the decision to institute criminal charges was not made unilaterally by the Customs officers. The investigation papers were submitted to the Deputy Public Prosecutor, who independently evaluated the evidence and issued the directive to charge. As established in Saul Hamid (supra), the institution of proceedings based on the objective assessment and instruction of the Public Prosecutor effectively negates any imputation of malice against the arresting and investigating officers.

Vicarious liability of the Third and Fourth Defendants is not established 54. Sections 5 and 6 of the Government Proceedings Act 1956 provide that the Government of Malaysia will only be vicariously liable as principal for tort if the public officer is found liable for the act of tort personally.

Having established that the First and Second Defendants bear no liability for the tort of malicious prosecution, the claims against the Third and Fourth Defendants must automatically fail. As S/N F64sMkPUdk2qFNczkoboXw emphasised in Awg Mohd Syhaffiq Bin Awang Salim v Penjara Kajang & Ors [2021] MLJU 2510, the statutory framework of Sections 5 and 6 of the Government Proceedings Act 1956 dictates that vicarious liability can only be attributed to the Government where the primary tortfeasor's liability has been personally established. Consequently, since no primary liability arises, the claim of vicarious liability against the Third and Fourth Defendants inevitably collapses.

Discussion on Damages has become Academic due to the lack of Pleadings 56. The Plaintiffs claimed the following damages:

(i). Loss of employment for 36.5 months (their length of imprisonment). They were paid at a rate of RM3,000/month and hence 36.5 months amounts to RM109,500.00 per

(ii). Legal costs to defend the proceedings at the Langkawi Magistrate’s Court of RM100,000.00; and

(iii). Aggravated damages of RM100,000.00 for their televised arrest and portrayal as large-scale smugglers and for missing out on the passing of their own parents due to the detention. S/N F64sMkPUdk2qFNczkoboXw

The Defendants argued that the Plaintiffs were disentitled to claim for damages as they did not lead evidence to show the damages suffered, and under section 132 of the Customs Act 1967, are only entitled to return of their cargo or its equivalent value should wrongful arrest be found.

In this Court’s perusal of the Statement of Claims, it is apparent to this Court that damages were not pleaded properly by the Plaintiffs. The Plaintiffs’ claims for damages were limited to an unspecified amount in loss of employment, costs for defence at the Magistrate’s Court of RM100,000.00, and aggravated damages to be assessed if malicious prosecution was proven. Other forms of damages were pleaded only in the abstract. Only at the submissions stage did the Plaintiffs mention a specific amount of RM109,500 per Plaintiff for compensation for the loss of employment. It is trite law that damages must be pleaded within the four corners of the pleadings, and failure to do so is fatal.

The most elementary principle in damages could be found in the Federal Court decision of Sum Kum v Devaki Nair [1964] 30 MLJ 74, where it was established that an action for damages needs to be proven. A plaintiff cannot merely write down particulars and ‘throw them at the head of the Court’ to entitle them to the damages. In Voon Lee Shan v C/Insp I/14105 Anoi bt Kian & Ors [2015] 10 MLJ 218, a failure to properly quantify or account for the extent of loss limits a claimant to mere nominal damages even if a legal wrong is established. This is reinforced by the settled principle in Jub'li Mohamed Taib Taral & Ors v Sunway Lagoon Sdn Bhd [2001] 4 S/N F64sMkPUdk2qFNczkoboXw CLJ 599 and Saul Hamid (supra), which dictates that special damages must be strictly pleaded and strictly proved. Here, the Plaintiffs prayed for RM100,000.00 in legal costs and substantial loss of income as special damages; yet, during the trial, the First Plaintiff (SP1) offered mere verbal assertions, failing to tender a single receipt or shred of documentary evidence. The Plaintiffs' failure to properly particularise and produce documents to substantiate their financial losses within the four corners of their pleadings is fatal to this head of claim.

However, as the Plaintiffs failed to establish their case for malicious prosecution, further discussion on this issue becomes moot and academic. Hence, this Court finds no need to elaborate further. Conclusion 61. It is a cornerstone of our justice system that an acquittal in a criminal trial does not automatically translate into a successful civil claim for malicious prosecution. The threshold and burden of proof in criminal proceedings (proof beyond a reasonable doubt) differ vastly from those in a civil suit. As elucidated by the Court of Appeal in Datuk S Nallakaruppan & Ors v Datuk Seri Anwar bin Ibrahim and other appeals [2015] 4 MLJ 34 and reaffirmed in Kerajaan Malaysia & Ors v Then See Nyuk & Anor [2018] 4 MLJ 262, a judgment of discharge and acquittal in a criminal case cannot be used as automatic proof of a fact in issue in a civil case for damages. The mere fact that the Magistrate's Court found that the prosecution S/N F64sMkPUdk2qFNczkoboXw failed to establish a prima facie case does not retrospectively render the initial arrest, investigation, or the institution of the charge malicious or devoid of reasonable cause.

Upon careful consideration of the pleadings, cause papers, and the oral and written submissions of both parties, this Court dismisses the Plaintiffs’ claims. This Court finds that there was reasonable suspicion for the Defendants to set the law in motion against the Plaintiffs and that the actions of the Defendants were not actuated by malice, but were bona fide and merely intended to carry out the effect of the law.

Earlier in the suit, this Court has ordered security for costs of RM25,000.00. The amount shall be utilised as costs for this suit. Dated 5th June, 2026 ..................................................................................... YA DR. HJ. JOHN LEE KIEN HOW @ MOHD JOHAN LEE JUDGE HIGH COURT OF MALAYA ALOR SETAR For the Plaintiffs : V. Rajadevan Messrs. Rajadevan & Associates Advocates & Solicitors S/N F64sMkPUdk2qFNczkoboXw For the Defendants : Norshuhada binti Mohd Yatim Senior Federal Counsel Attorney-General Chambers Authorities Cases Abrath v. The North Eastern Railway Company (1883) 11 Q.B.D. Awg Mohd Syhaffiq bin Awang Salim v Penjara Kajang & Ors [2021] MLJU 2510 Datuk S Nallakaruppan & Ors v Datuk Seri Anwar bin Ibrahim and other appeals [2015] 4 MLJ 34 Glinski v McIver [1962] AC 726 Goodness for Import and Export v Phillip Morris Brands Sarl [2016] 5 MLJ 171 Johara Bi Binte Abdul Kadir Marican v Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139 Jub'li Mohamed Taib Taral & Ors v Sunway Lagoon Sdn Bhd [2001] 4 CLJ 599 Kerajaan Malaysia & Ors v Then See Nyuk & Anor [2018] 4 MLJ 262 Mohamad Izaham bin Mohamed Yatim v Norina bt Zainol Abidin & Ors [2017] 7 MLJ 775 Rawther v Abdul Kareem [1966] 2 MLJ 201; [1966] 1 MLRA 398 Rosli bin Dahlan v IG Tan Sri Razarudin bin Husain @ Abd Rashid Ketua Polis Negara PDRM) & Ors [2024] 11 MLJ 381; [2025] 2 CLJ 115 Rosli bin Dahlan v Tan Sri Abdul Gani bin Patail & Ors [2014] 11 MLJ 481 Saul Hamid bin Pakir Mohamad v Inspector Abdul Fatah bin Abdul Rahman & Anor [1999] 6 MLJ 800 Selvaraju a/l Ponniah v Suruhanjaya Perkhidmatan Awam Malaysia & Anor [2007] 7 MLJ 1 S/N F64sMkPUdk2qFNczkoboXw Shaaban & Ors v Chong Fook Kam & Anor [1969] 2 MLJ 219 Sum Kum v Devaki Nair [1964] 30 MLJ 74 Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 5 MLJ 209 Voon Lee Shan v C/Insp I/14105 Anoi bt Kian & Ors [2015] 10 MLJ 218