Ananda Kumar A/L S.Maharajah v Peguam Negara Malaysia (BA-21NCvC-23-06/2024)

1.

2.

KERAJAAN MALAYSIA …DEFENDAN-DEFENDAN

The Plaintiff sued the Defendants for malicious prosecution. He was charged in Kajang Magistrates Court Case No: BH-85- 121-07/2020 under section 323 of the Penal Code for voluntarily causing hurt. About 2 years later on 8-12-2022, the 1st Defendant decided to withdraw the charge. 05/01/2026 09:05:48 BA-21NCvC-23-06/2024 Kand. 65 S/N 2qahvjzweUimnlHZhbZteA

The Plaintiff’s case was that the 1st and 2nd Defendants proceeded with charging and prosecuting him despite his alibi being a live issue known to the police and prosecution, but not investigated. The Defendants argued that the 1st Defendant’s prosecutorial discretion is non-justiciable and that the elements of the tort of malicious prosecution were in any case, not made out on the facts. Background facts

The complainant in the criminal case was the Plaintiff’s 42- year-old brother with learning disabilities, who had been under the Plaintiff’s care since their mother passed away. They lived in the same house at Taman Cuepecs, Cheras. According to the complainant’s police report, the Plaintiff frequently assaulted and abused him.

The police acted on the complaint. The Plaintiff was arrested on 4-6-2020, and in his recorded statement, he informed the investigating officer (“IO”), who testified as SD2, that he was not home at 1900 hours on 23-5-2020, but was still at his farm at Taman Maluri. He stated that he would reach home around 8.00-8.30 at night. S/N 2qahvjzweUimnlHZhbZteA

On 22-7-2020, the charge preferred against the Plaintiff read as follows:

Between 18-8-2020 and 16-4-2021, there were 7 mentions of the criminal case. The Plaintiff was legally represented and at this stage of the proceedings, the delays were due in part to the delay in procuring the complainant’s full medical report and the Plaintiff’s requests to adjourn to file a representation.

The trial was initially set on 8-7-2021 but was postponed at least 5 times for a variety of reasons. The Plaintiff’s counsel withdrew on 6-9-2022. On 9-9-2022, the Plaintiff’s new counsel delivered a letter of representation and notice of alibi to the prosecutor (“DPP”) namely the 2nd Defendant who testified as

The trial finally commenced on 9-9-2022. The complainant testified but failed to identify the Plaintiff who was in the dock. It was also recorded that a notice of alibi had just been submitted and an investigation would be carried out. The trial S/N 2qahvjzweUimnlHZhbZteA was thus rescheduled to 14-11-2022, 25-11-2022 and 8-12-

2022.

On 14-11-2022, the subpoenaed prosecution witness failed to attend court and the court vacated the subsequent trial date on 25-11-2022. On 6-12-2022, SD1 received instructions to withdraw the charge and sought a DNAA on 8-12-2022. The magistrate noted that no finding was made on the alibi, but acquitted and discharged the Plaintiff nonetheless. Analysis and findings

The issues ventilated in the trial and post-trial submissions were the following: a) Whether the action for malicious prosecution is sustainable in the light of Article 145(3) of the Federal Constitution (“FC”); b) Whether the elements of the tort are satisfied on the facts of the case; and c) Whether the 3rd Defendant is vicariously liable for the acts of the 1st and 2nd Defendants. S/N 2qahvjzweUimnlHZhbZteA I. Prosecutorial immunity

A key question in this case is whether the 1st Defendant, acting on the investigation papers before him, had reasonable grounds to prefer the charge against the Plaintiff. The DPP was not involved in the police investigation or the decision to prosecute, but she maintained the prosecution with knowledge of the same set of information.

The Defendants contended that the tort of malicious prosecution against the public prosecutor does not exist in Malaysia, citing Article 145(3) of the FC. It was submitted that recognising a claim of malicious prosecution against the Attorney General/Public Prosecutor would constitute an attack on the office's discretionary power as enshrined in the FC.

The Defendants referred to a line of cases on the non-justiciability of the Attorney General’s discretion under Article 145(3) of the Federal Constitution, though none concerned civil claims for malicious prosecution. Mohammad Najib Tun Hj Abdul Razak v. Thomas Thomas K Thomas & Anor [2023] 4 CLJ 553 and Nik Mohd Suhaimi Ahmad Ghazali v Siti Fairuz Shamsuri & Ors [2024] 2 CLJ 591 (“Nik Mohd Suhaimi”) were more direct recent cases on the issue.

In Nik Mohd Suhaimi the High Court dismissed a claim for malicious prosecution against the Public Prosecutor and its deputies on grounds that the tort was unsustainable in S/N 2qahvjzweUimnlHZhbZteA Malaysia due to the discretionary powers accorded to the Attorney General/Public Prosecutor under Article 145(3) of the

On the other hand, the Plaintiffs referred to Mohamad Izaham bin Mohamed Yatim v Norina Bt Zainol Abidin & Ors [2017] 1 MLJ 772 (“Mohamad Izaham”), Rosli Dahlan v. Tan Sri Abdul Gani Patail & Ors [2014] 9 CLJ 225, Dato' Pahlawan Ramli Yusuff v Tan Sri Abdul Gani Patail & Ors [2014] 9 CLJ 489 and developments since the Federal Court in Sundra Rajoo Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 6 CLJ 199 (“Sundra Rajoo”) such as Shahril @ Shahrir bin Ab Samad v Tommy Thomas Mohan a/l K. Thomas & Ors [2025] 1 CLJ 1003 (“Shahril”), all of which have taken the view that the public prosecutor can be sued for malicious prosecution.

There is also a Court of Appeal decision in Khairuddin bin Abu Hassan v Wan Aedil bin Wan Abdullah & Ors and another [2025] 6 CLJ 1 (“Khairuddin”) that appears to have confirmed that public prosecutors do not enjoy absolute immunity from claims of malicious prosecution. In that case, the claim for malicious prosecution was dismissed while the claim for unlawful detention was allowed. The appeals of both decisions were dismissed. S/N 2qahvjzweUimnlHZhbZteA

In Khairuddin, the Court of Appeal agreed with the High Court and found no malicious prosecution, but entertained and analysed the claim against the Attorney General and the prosecutors, and reaffirmed the classic five elements of the tort from Rawther v Abdul Kareem [1966] 2 MLJ 201 (“Rawther”). On the issue of non-justiciability, the Court of Appeal mentioned the High Court’s ruling that: “[23] With regard to the non-justiciability of the discretion to prosecute, this was not about the denial of prosecutorial authority but the abuse of such authority.” The High Court’s evaluation of the elements of malicious prosecution was upheld, but the issue of prosecutorial immunity was not discussed in the judgment of the Court of Appeal.

This Court also notes that the Federal Court in Sundra Rajoo was careful to delineate the scope of its holding to the availability of public law remedies—namely certiorari and declarations—to supervise the legality of executive power. The Federal Court did not consider or decide whether the Public Prosecutor may be subjected to private law liability for malicious prosecution.

The position of the law is thus unsettled since the landmark decision of the Federal Court in Sundra Rajoo which held that the discretion of the Attorney General in Article 145(3) of the S/N 2qahvjzweUimnlHZhbZteA Federal Constitution is not unfettered and is amenable to judicial review. The Federal Court placed the bar very high and held that in all such challenges, the position is that his decisions are cloaked with the presumption of legality: “The onerous burden lies on the challenging party to overcome the strong presumption of legality with compelling prima facie evidence of grounds to review the AG/PP's decision within the recognised reasons for judicial review.”

Considering all the authorities above, this Court respectfully aligns itself with the decisions of the High Court in Mohamad Izaham, Shahril and the High Court decisions cited therein that have rejected prosecutorial immunity from civil claims of malicious prosecution. As it has been made clear that the Attorney General does not have unfettered discretion, there is no substantive incompatibility between Sundra Rajoo and this line of cases, to justify granting this special immunity. II. Proof of malicious prosecution

Based on Rawther, the elements of the tort that were admitted in this case were that: a) the Defendants set the criminal law in motion against the Plaintiff; and b) the criminal proceedings against the Plaintiff terminated in his favour. S/N 2qahvjzweUimnlHZhbZteA The remaining elements to be proved at the trial were: c) Whether the Defendants had “reasonable and probable cause” for setting the law in motion against him d) Whether the Defendants were actuated by malice in the sense that he had a motive other than only to carry the law into effect e) Whether the Plaintiff suffered damages.

This Court considered each of these elements in turn. Reasonable and probable cause

Both Rawther and Khairuddin adopted the test for “reasonable and probable cause” formulated by Hawkins J in Hicks v Faulkner [1878] 8 QBD 167: “I should define reasonable and probable cause to be, an honest belief in the guilt of the accused upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.” [Emphasis added] S/N 2qahvjzweUimnlHZhbZteA

The main plank of the Plaintiff’s case is that the offence under section 323 of the Penal Code required the prosecution to place the Plaintiff at the location of the alleged crime, and without any investigation into his whereabouts, there were no reasonable grounds to support an honest belief that the Plaintiff had committed the crime.

Factually, it was not disputed that there was no investigation into the Plaintiff’s whereabouts although he stated that he was not at home at the time and date eventually stated in the charge. The evidence of the IO was that there was no need to investigate the Plaintiff’s statement because the Plaintiff did not provide any notice of alibi and/or any alibi witness.

It is true that under section 402A of the Criminal Procedure Code, a notice of alibi is only required to be produced after the accused has been charged and presented in court. The IO did not inquire further, but the Plaintiff’s counsel also did not produce a notice of alibi until 9-9-2022. In any case, the question is whether there were reasonable grounds to charge despite this apparent gap in the investigation.

The IO explained that she did not inquire further as: a) there was sufficient cause to link the Plaintiff to the crime as the complainant’s evidence was that the incident took place at the home between 7 pm and 10 pm; and S/N 2qahvjzweUimnlHZhbZteA b) the medical evidence showed that the complainant had suffered soft tissue injury. The Plaintiff and the complainant lived in the same house in Cheras and the farm that the Plaintiff said he was at is also in Cheras.

The DPP also testified that all statements recorded in the investigation were taken into consideration, along with the medical records and photographs of the injury.

Upon consideration of all the evidence, this Court was given no compelling reason to second-guess the judgment of the 1st and 2nd Defendants based on the evidence that the police had gathered, that there was enough to link the Plaintiff to the offence of causing hurt to the complainant. As noted by the Federal Court in Sundra Rajoo: “[95]…An overzealous Judiciary which imposes no fetter upon its own powers of review vis-a-vis the discretionary powers of the AG/PP runs the risk of arrogating the executive power of the second respondent to the court. [96] The AG/PP by constitutional design has access to the police, investigation papers and other core decisive material which ultimately factor into his decision to charge or not to charge a person or to otherwise discontinue proceedings. The AG/PP is the guardian of public interest and so he factors not S/N 2qahvjzweUimnlHZhbZteA just the law and legal principles but also matters relevant to public policy and national security. The courts, also by constitutional design, do not have the same benefit. Such design is inherent in the mechanism of our adversarial system which is grounded or rooted in the doctrine of separation of powers. Some degree of judicial deference to executive discretion of the AG/PP is necessary so as not to stymie our justice system.”

The DPP testified that she received instructions to withdraw the charge on 6-12-2022. This Court took into consideration that the alibi was investigated but was not ultimately proved, as the magistrate noted. As noted, the decision to withdraw was also motivated by the complainant’s failure to identify the Plaintiff in Court.

The only particulars of malice pleaded by the Plaintiff were that the 1st and 2nd Defendants failed, refused and/or neglected to investigate carefully whether the complainant’s allegation had any proper basis before deciding to charge the Plaintiff, and to maintain the charge.

Based on the pleading alone, this Court had no difficulty finding that the Plaintiff had failed to prove malice, which is a separate element from “reasonable and probable cause” and served a S/N 2qahvjzweUimnlHZhbZteA different purpose. Khairuddin cited A v State of New South Wales & Anor [2007] HCA 10 for the following passage: “(4) ‘Malice’ in malicious prosecution was a separate element of the tort. Absence of reasonable cause was not evidence of malice, but proof of particular facts could supply evidence of both elements. For example, if the plaintiff demonstrated that a prosecution was launched on obviously insufficient material, the insufficiency of the material could support an inference of malice as well as demonstrate the absence of reasonable and probable cause. To constitute malice, the dominant purpose of the prosecutor had to be a purpose other than the proper invocation of the criminal law and the improper purpose had to be the sole or dominant purpose actuating the prosecutor. Purposes held to be capable of constituting malice (other than spite or ill will) included to punish the defendant and to stop a civil action brought by the accused against the prosecutor. Malice could be defined only by a negative proposition: a purpose other than a proper purpose.” [Emphasis added]

By seeking to draw an inference of malice solely from the same set of facts in support of the claim that there was no reasonable or probable cause to charge the Plaintiff i.e. failure to investigate his alibi, the Plaintiff fell far short in proving malice on the part of the Defendants. It was not demonstrated that either the Attorney General or the DPP had any motive to fix-S/N 2qahvjzweUimnlHZhbZteA up the Plaintiff. This Court accepts that they were merely carrying out their duties.

The Plaintiff also alluded to the fact that there were multiple postponements of the case requested by the prosecution for no good reason. However, the evidence of the DPP on the reasons for these postponements were unchallenged.

Based on this evidence, the postponements were largely directed by the Court and on at least 2 occasions, at the request of Plaintiff’s counsel. This Court finds that the passage of the case, especially considering that it went through the height of the Covid-19 pandemic, was neither exceptional nor exclusive, and did not point to malice on the part of the Defendants.

This Court accepts that the Plaintiff did suffer damage, though no special damages were pleaded or proved. However, since 2 of the elements of the tort were not established, this Court finds no need to evaluate the evidence to assess the quantum of damages he suffered. III. Vicarious liability of the Government

It is also unnecessary to deal with this issue as primary liability was not established. S/N 2qahvjzweUimnlHZhbZteA

This Court had no difficulty finding on the facts of the case that the elements of the tort of malicious were not made out.

The conduct of the 1st and 2nd Defendants in prosecuting the Plaintiff did not cross the high threshold of malicious abuse of prosecutorial authority or the “perversion of the system of criminal justice for ends it was not designed to serve.”

The Plaintiff’s claim is therefore dismissed with costs of RM10,000.00. Bertarikh : 12 Disember 2025 ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM - S/N 2qahvjzweUimnlHZhbZteA Peguam bagi pihak Plaintif: Norshalin Binti Anuar Messrs Anton & Chen Peguam bagi pihak Defendan: SFC Siti Syuhada Alwi with FC Afiq Nazrin Bin Zaharinan Jabatan Peguam Negara, Putrajaya S/N 2qahvjzweUimnlHZhbZteA