1] Tan Hooi Tin (No. Kp: 710326-10-5942) v 1] Tham E-Ann (No. Kp: 840612-06-5000) (BA-23CY-11-11/2017)

This is an application by the First Plaintiff under Order 18 Rule 19

(1)(a) and / or (b) and/ or (d) of the Rules of Court 2012 (“ROC 2012”) dated 28 February 2018 (enclosure 17) to strike out the Second and Third Defendant’s Counter Claim dated 10 January 2018. The Plaintiff also apply to obtain Security for Costs in enclosure 18 dated 28 February 2018 under Order 23 Rule 1(a) of the Rules of Court 2012. 2

The Plaintiff’s claimed that the issues of assault, harassment and intimidation raised by the Second and Third Defendant is frivolous and vexatious that amounts to an abuse of Court’s process. The Plaintiff seeking for security for costs to secure the proper trial (if any) and to enforce order in the future as it involved foreigners.

The cause papers for this application are as follows :

Plaintiffs’ sealed Writ and Statement of Claim dated 22 November 2017;

Second and Third Defendant’s Defence and Counter Claim dated 10 January 2018;

Plaintiffs’ Reply to Defence and Counter Claim and Defence to Second and Third Defendant’s Counter Claim dated 28 February 2018;

First Plaintiff’s Sealed Notice of Application to Strike Out the Second and Third Defendant’s Counter Claim dated 28 February 2018;

First Plaintiff’s Sealed Notice of Application for Security for Costs dated 28 February 2018;

First Plaintiff’s Affidavit in Support affirmed by Tan Hoi Tin dated 28 February 2018;

Second and Third Defendant’s Affidavit in Reply affirmed by Nadetta Alaiza Tolentino Echavia and Ira Joyce Pal-laya Roseco dated 26 March 2018; and

First Plaintiff’s Affidavit in Reply affirmed by Tan Hooi Tin dated 28 February 2018. 3 THE ESSENTIAL FACT

Having gone through the pleadings and affidavits filed by the respective parties, I have concluded the facts below :

The Plaintiffs are the landlords to one of the condominium units at HyveSoho Suites, Cyberjaya (the Condominium), namely Tower B-18-14, Cyber Bistari, Jalan Impact, Cyber 6, Cyberjaya, 63000

The Second and Third Defendants on the other hand were the tenants to the Unit for one (1) year period from 7 October 2016 till 6 October 2017 (collectively referred to as the Tenants);

On 6 October 2017, the Plaintiff and the Tenants agreed to meet up at the Unit for the purpose of returning the keys for Unit back to the Plaintiffs as well as for an inspection on the Unit;

Throughout the process of the inspection which started sometime around 5.30 pm until 9.00 pm, the Plaintiffs had discussions with the Tenants over some disputes on the damaged sofa, mattress and curtains as well as the cleanliness of the Unit in overall wherein the First Defendant was also present at the Unit at that material time;

At or about 8.30 pm, the Plaintiffs and the Tenants achieved to an agreement and/or understanding that the Tenants were agreeable to pay for the damaged sofa and mattress vide deduction from the 4 rental deposit and the Defendants. The Defendants arranged for the furniture’s to be moved out from the Unit and left the Condominium thereafter;

Sometime around 22 November 2017, the Plaintiff commenced this action herein again the Defendants pursuant to some alleged publications of defamatory statements by the Defendants towards the Plaintiffs on one of the social media sites, Facebook in respect to video recordings of the discussion taken place on 6 October 2017 between parties recorded without consent of the Plaintiffs which is subsequently uploaded on to Facebook with defamatory statements with intention to defame the Plaintiffs;

Upon the Second and Third Defendant’s entering appearance in the action, the Second and Third Defendants filed a counterclaim vide the same action against the First Plaintiff based on some purported cause of actions such as threatened (ugutan and ancaman), assault (serangan), harassment (gangguan) and humiliation (penghinaan) allegedly done by the First Plaintiff against the Second and Third Defendants; and

The First Plaintiff now seeks to strike out the Second and Third Defendants Counter Claim pursuant to Order 18 Rule 19(a) and/or (b) of the Rules of Court, 2012 or further in alternative seeks 5 for an Order for Security for Costs against the Second and Third Defendants for the filing of the Counter Claim THE LAW OF STRIKING OUT

This application is made pursuant to Order 18 Rule 19 (1) (a)(b) and/or (d) ROC 2012 which reads as follows:-

Striking out pleadings and endorsements (O. 18, r. 19)

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that—

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

No evidence shall be admissible on an application under subparagraph (1)(a).

This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.

The principles governing a striking out application are automatically set out in Bandar Builder Sdn. Bhd. & 2 Ors. v. United Malayan 6

1 MLRA 611 (FC). It is only in plain and obvious cases where it is clear that the claim is unsustainable is the power to summarily strike out a case exercised. Mohamed Dzaiddin SCJ delivering the judgment of the Federal Court as follows: “….the principles upon which the Court acts in exercising its power under any of the four limbs of O.18 r.19….are well settled. It is only in plan and obvious cases that recourse should be had to the summary process under this rule………and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it “obviously unsustainable” …….The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defence raised are not arguable……..”

In the Federal Court decision in the case of: Sim Kie Chon v. Superintendent of Pudu Prison &Ors (1985) CLJ Rep 293, the court held that: “…..the principle governing the striking out of pleadings is clear in that it is only in plain and obvious cases that recourse should be had to the summary process under Order 18 Rule 19 of the Rules of the High Court 1980; the summary procedure under this Rule can only be adopted when it can clearly be seen that a claim or answer is on the face of it “obviously unsustainable………”

The above case and principles was also followed in the Court of Appeal judgment in Enersafe Sdn. Bhd. v. Megarina Sdn. Bhd. 7

2 CLJ 1021 (CA), Zulkefli Makinuddin JCA (as he then was) had said this: “….(12) We find it is most appropriate here to state the well established principle in that the power of striking out pleadings under O.18 r.19…..as invoked by the appellant in this case is too well known that it can only be exercised when the respondent’s claim on the face of it is obviously bound to fail……”

Similarly, in another Court of Appeal decision of Sivakumar a/l Varatharaju Naidu v. Ganesan a/l Retanam (2011) 6 MLJ 70, Abdul Malik Ishak JCA held that: “…….the summary procedure under Order 18 Rule 19 should only be resorted to when it is conspicuously clear that the Plaintiff’s claim, on the face of it, is obviously unsustainable. The court will always strike out a claim in plain and obvious cases and where the claim in obviously unsustainable. The power to strike out must be exercised by the court sparingly. It is a rule of thumb that if it can be shown that the pleadings do disclose some cause of action or that it has raised some question fit to be decided, then the case should be set down for argument notwithstanding that the chances of success are minimal. The pleadings must be entirely hopeless, baseless or without foundation in law or in equity before they can be struck out…….”

This court is always reminded by plethora of cases that the power to strike out summarily without a trial is a drastic power which should be exercised with utmost caution and should only be exercised in plain 8 and obvious cases (see Tractors Malaysia Berhad v. Too Chee Hing (1975) 2 MLJ 1, Bandar Builders Sdn. Bhd. v. United Malayan Banking Corporation Bhd. (1993) 3 MLJ 36).

Having scrutinized the above, I shall now consider the rival contentions of the parties. FIRST ISSUE Has the Second and Third Defendant’s Counter Claim discloses any triable issue?? In the Second and Third Defendant’s Counter Claim Paragraph 29, they had pleaded that the Plaintiff had committed “Ugutan, Ancaman, Serangan, Gangguan and / or Penghinaan”. The First Plaintiff’s learned counsel submitted that the Defendants’ pleaded cause of action are of no existence and/or not recognized in a civil court save except for the cause of action of civil assault. According to the counsel such assault is defined as an intentional act of force or violence to another person. There must be elements of threat of violence and the threat must be accompanied with an intention to commit violence or must have caused the person reasonable apprehension of an immediate infliction of force on the person. As such, the particulars pleaded by the Second and Third Defendants, such words and sentences do not carry any effect of a threat to any reasonable individuals. The only reason they brought this action against the First Plaintiff is to annoy and cause more unnecessary 9 hardships to the First Plaintiff into defending against their suit. Furthermore, the counsel had submitted that the purported cause of actions pleaded by the Second and Third Defendants are of criminal in nature and therefore are not cause of action recognized under a Civil Court and this Honourable Court is not a proper forum to hear and try these purported cause of actions.

In deciding this issue, it is best to see that the Second and Third Defendant Counter Claim seeking for damages incurred to a civil assault/ tort. In the case of : Ismail Mohd Said & Anor v. DSP Haji Mohd Ali Bujang @ Mohd Bujang (2009) 1 LNS 886, Ravinthran Paramaguru JC (as he then was) held that : “………..as I noted, in this instant case, the First Plaintiff did not suffer serious injuries. However,, counsel is right to submit that he is entitled to compensation for his injured feelings and humiliation as well. The Defendant was his superior officer and that was the probable reason the First Plaintiff did not offer any resistance. I take judicial notice that uniformed bodies such as the police force are hierarchical organizations where enlisted men are trained to obey their superiors without question. In the circumstances it is not difficult to imagine the helpless and humiliation suffered by the first plaintiff when he was punched by his own superior officer who was also his neighbor. Therefore aggravated damages which are not meant to punish the defendant but to compensate the first plaintiff are in order. After having considered all the circumstances of the case, including the provocation given to the defendant and the overreaction of the defendant, I award RM5,000 as general damages…….” 10 Similarly in the case of : Roshairee Abd. Wahab v. Mejar Mustafa Omar & Ors. (1997) 1 CLJ Supp 39, James Foong J held that : “…….. in his submission highlights that within the category of compensatory damages, aggravated damages can also be awarded. This category of damages is described as: Compensation for the injured feelings of the plaintiff where the sense of injury resulting from wrongful physical act is justifiably heightened by the manner in which or motive for which the defendant did it - per Lord Diplock in Broome v. Cassell & Co [1972] AC 1027 @ 1124. It is to compensate the plaintiff for injuries affecting his feelings arising out of the tortuous acts of the defendants. In assessing this, all circumstances of the case must be taken into account, including the character of the plaintiff - see Edmund Davis LJ in Ansell v. Thomas [1974] Crim. LR 31. In the opinion of this Court, the plaintiff may at the material time be weaker, less experience and lower in rank to the 1st and 2nd defendants, but he was entitled, as all young officers do to self respect and dignity. By the acts of the 1st and 2nd defendants he has suffered humiliation, loss of pride and self esteem. Instead of being encouraged, advised and protected by these two seniors, the plaintiff was insulted and assaulted by them. To compensate the plaintiff for the injury to his feelings, this Court awards a sum of RM50,000 as aggravated damages…………” 11 Having considered the above authority, to my mind the Second and Third Defendant’s Counter Claim on the issue could tantamount to a criminal act and/or civil action for damages. Since the criminal court does not have powers to award damages for assault and battery, it is my considered view that this court is the right forum for this Counter Claim to be heard.

Though the First Plaintiff was in the position of authority to do the inspection, but the words uttered by the First Plaintiff which caused the Second and Third Defendants to feel threatened, assaulted, harassed and humiliated. In the Second and Third Defendant’s Affidavit, the actions of the First Plaintiff have been recorded in Exhibit NI-1 (Video CD). Having considered this, to my mind the video should be viewed during the trial proceedings for the court to assess whether the First Plaintiff’s action constitute as threats, assault, harassment and humiliation. As this involved triable issue, it can only be resolved through a full trial.

In light of prematurity mentioned above, to my mind that the Defendant’s averments should be disregarded by this court and the Defendants ought to have reserved their averments until after the trial in this matter. In the light of the foregoing and in the upshot, after hearing the submission by both parties, I hold that the Second and Third Defendant’s Counter Claim clearly contained issues that can only be resolved by evidences during the trial. Such determination requires further evidence which can only be adduced by examination of witnesses at a trial. For the reasons 12 stated above, these issues cannot in my view be used as a ground for striking out the Second and Third Defendant’s action. In the circumstances, I dismiss the First Plaintiff application herein with cost in the cause.

In the second application, the First Plaintiff seeks for an Order for Security for Cost against the Second and Third Defendant’s to be paid pending the disposal of the action. In resolving this issue, it is best to look at Order 23 Rule 1(1) of the Rules of Court 2012 as stated below :

Where, on the application of a Defendant to an action or other proceedings in the Court, it appears to the Court –

That the Plaintiff is ordinarily resident out of the jurisdiction;

That the Plaintiff (not being a plaintiff who is suing in a representative capacity) is a normal plaintiff who is suing for the P.U.(A) 105 benefit of some other person and that there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so;

Subject to paragraph (2), that the plaintiff’s address is not stated in the writ or originating summons or is incorrectly stated therein; or

That the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of the litigation 13 then, if, having regard to all the circumstances of the case, the Court thinks it just to do, it may order the plaintiff to give such security for the defendant’s cost of the action or other proceedings as it thinks just…..

This court noted the word 'appears' in the section and would recognise that the word 'appears' denotes a lesser degree of probability than normally required in terms of proving a particular assertion. The burden of proof on the part of the Plaintiff to say that the Defendant must provide the security is lessen in view of that word 'appears'. Needless to say the word 'appears' is inserted by the legislature not for it to be superfluous or as a surplus age; there must be a reason for the addition of that word. Therefore this court would rule that 'appears' in the context of that section means evidence lesser than credible testimony. This view is not unsupported as the Court of Appeal in Tengku Dato' Kamal Ibni Sultan Sir Abu Bakar & Ors v. Bursa (M) Securities Bhd. and another appeal (2013) 1 MLJ 158 quoted with approval the Supreme Court of India's decision in Pyare Lal Bhargava v State of Rajasthan AIR 1963 SC 1094 where the relevant passage reads : “…….The crucial word in the first ingredient is the expression 'appears'. The appropriate meaning of the word 'appears' is 'seems'. It imports a lesser degree of probability than proof…….” The above decision means no inhibitive demand should be imposed on the interpretation of the section. Therefore this court takes the above passage to reinforce the understanding that insubstantial proof 14 is required from the Plaintiff for its application and as long as it can be shown that there is some credible testimony to believe that the Defendant will be unable to pay the costs of the Plaintiff in the event the Plaintiff wins the case, the application for security of costs should be allowed.

In the Second and Third Defendant’s Affidavit it revealed to me that both are residents travelling from Philippine whom own work permits to temporarily work in Malaysia. Apart from the Second Defendant disclosing that currently she own a motor vehicle, Proton Savvy, no other assets were being declared. It would be difficult for the First Plaintiff to enforce any order as to costs should they failed in its action herein. More so, the Second Defendant and Third Defendants did not give any statement, supported by documentary evidence, of their financial capability to pay all costs, if ordered against them. In the case of : Mas Anita bt. Abdullah v. Lew Wai Kuong (No. 1)

8 MLJ 698, Yeoh Wee Siam J stated that : “……(6) The Plaintiff had not disclosed that she has assets in Malaysia. She also did not give any statement, supported by documentary evidence, of her financial capability to pay all cost, if ordered against her. There are ample authorities on security for cost being ordered by the court when a Plaintiff does not have assets within the jurisdiction (see eg Adarsh Pandit v. Viking Engineering Sdn. Bhd. (1996) MLJU 594; Shaik Ali v. Shaik Mohamed (1963) 1 MLJ 300 and Ace King Ltd. v. Circus American Ltd. & Ors. (1985) 2 MLJ 75)…………” 15 Similarly in the case of : Stamford College Bhd v. Iris Corp Bhd.

8 MLJ 178, Abu Bakar Jais JC (as he then was) held that : “……(3) Although the defendant was at all material times aware of the plaintiff's financial position, it was only after the plaintiff filed the present suit that it had to show that it had the means of satisfying the costs of the defendant in the event its claim was dismissed by the court. The documentary proof indicated that the plaintiff and most of its subsidiaries profit was in the negative. Consequently, the plaintiff would be unable to pay the defendant's cost in the event that the defendant was held not liable. The defendant only needed to show some proof to assert security as needed from the plaintiff and in the present case there was sufficient proof for application. Further, the amount requested of RM250,000 as security for costs was a fair amount having regard to the amount claimed in the defendant's counterclaim. In the event the security for costs was not provided as ordered, the defendant was granted liberty to apply to strike out the writ and statement of claim……..”

In the course of deciding this issue, I have taken note that the Plaintiff’s application for Security for Costs herein is not intended to deny the Second and Third Defendants from a fair suit but rather to safeguard the interest of the Plaintiff should the action escalated to trial and the Defendants failed in their Counterclaim against the Plaintiff. The Plaintiff ought not to be placed to hardship in attempt to recover cost from the Second and Third Defendants at a later stage. 16

Based on all of the findings of this court as narrated, I allow the First Plaintiff’s application for Security for Costs under Order 23 Rule 1(1) Rules of Court 2012. An order is made for the Second and Third Defendant to deposit RM10,000 each to the court for the security for costs within 30 days from today. Dated 8th June 2018. (DATO’ HJ. MOHAMAD SHARIFF BIN HJ. ABU SAMAH) Judicial Commissioner (NCVC 6) High Court of Malaya Shah Alam, Selangor Darul Ehsan Counsel For the Plaintiff: EE Yeh Chin (Messrs. Gideon Tan Razali Zaini) For the Defendant: Lim Chooi Yi (Messrs. S N Nair & Partners)