Mohammad Najib Bin Tun Haji Abdul Razak v Thomas Thomas @ Mohan a/l K. Thomas (W-01(IM)(NCvC)-907-12/2022)

Thomas Thomas @ Mohan A/L K. Thomas (NRIC. No.: 520521-10-5991)

Government of Malaysia ... Defendants] CORAM: RAVINTHRAN A/L N. PARAMAGURU, JCA WONG KIAN KHEONG, JCA NADZARIN BIN WOK NORDIN, JCA 12/03/2026 15:03:13 W-01(IM)(NCvC)-907-12/2022 Kand. 95

We have dismissed the above appeal (This Appeal) with costs of RM12,000.00 (subject to allocatur fee) (Our Decision).

My learned brother, Ravinthran a/l Paramaguru JCA, has previously forwarded to me a copy of his draft written judgment regarding Our Decision (Draft Judgment). I concur with the Draft Judgment and wish to add further reasons in support of Our Decision (This Judgment). A draft of This Judgment had been forwarded to my learned brothers, Ravinthran a/l Paramaguru and Nadzarin bin Wok Nordin JJCA. Both my learned brothers had expressed their agreement with This Judgment.

The following questions will be discussed in This Judgment:

is there a breach of the second rule of natural justice (2nd Rule) when the learned High Court Judge in this suit (This Suit), gave a reason for the decision to strike out This Suit (High Court’s Decision) which had not been submitted on by both learned counsel in This Suit?;

with regard to the tort of negligence, whether -

the Attorney General (AG) cum Public Prosecutor (PP) (referred collectively in This Judgment as the “AG/PP”); and

Deputy Public Prosecutors (DPPs) owe a duty of care to accused person(s), complainant(s) and/or victim(s) [Accused Person(s)/Complainant(s)/Victim(s)] in respect of prosecutions which have been instituted, conducted and/or discontinued by the AG/PP and DPPs with regard to the

can accused person(s) file a suit against the AG/PP and DPPs for the following three torts (3 Torts) in respect of the Prosecution(s) -

tort of malicious prosecution;

tort of misfeasance in public office; and

tort of abuse of process?; and

whether our courts should recognise a new tort of “malicious process” against the AG/PP and DPPs when the AG/PP and DPPs may be liable for the tort of malicious prosecution. C. Was there a breach of the 2nd Rule by the learned High Court Judge?

The learned High Court Judge stated in paragraphs 56 to 69 of his “Grounds of Judgment”, an additional reason for the High Court’s Decision (Additional Reason), namely, there is a “built in check and balance” mechanism in this country wherein the respondent in This Appeal (Respondent), as the then AG/PP, could not have committed the following three torts against the appellant in This

the tort of malicious process;

the tort of misfeasance in public office; and

the tort of negligence.

According to the Appellant’s learned counsel, the 2nd Rule had been breached by the learned High Court Judge because -

both learned counsel did not submit on the Additional Reason in the High Court with regard to the Respondent’s application to strike out This Suit (Respondent’s Striking Out Application); and

if the High Court had intended to rely on the Additional Reason to decide on the Respondent’s Striking Out Application, the 2nd Rule required the learned High Court Judge to pose the Additional Reason to both learned counsel before the High Court’s Decision was made and this would have enabled learned counsel to submit to the High Court on the Additional Reason.

I am not able to accept the above contention that there was a breach of the 2nd Rule when the High Court’s Decision was made without affording both learned counsel a right to submit on the Additional Reason. The following reasons support this decision:

the 2nd Rule only requires all parties in court proceedings to be given a right to adduce evidence and to submit on all the issues which arise in the proceedings - please refer to the Court of Appeal’s judgment in SKN Land & Development Sdn Bhd v Crest Worldwide Resources Sdn Bhd & Ors (in liquidation) (Mudajaya Corp Bhd & Ors, interveners) and another appeal [2026] MLJU 282, at [32]; The main issue in the Respondent’s Striking Out Application (Main Issue) was whether the High Court should exercise its discretion to strike out This Suit under O 18 r 19(1)(a), (b) and/or (d) Rules of Court 2012 (RC). Both parties in this case had been afforded a right to adduce affidavit evidence and to submit on the Main Issue before the High Court’s Decision was made; and

the High Court, like all other courts in this country, are not bound by any submission, written and oral, of any party. This is one of the essential attributes of judicial independence. D. Whether AG/PP and DPPs owe a duty of care to Accused Person(s)/Complainant(s)/Victim(s) with regard to the Prosecution(s)

With regard to the tort of negligence, according to the Federal Court’s judgment delivered by Zainun Ali FCJ in Lok Kok Beng & Anor v Loh Chiak Eong & Anor [2015] 7 CLJ 1008, at [67], [68], [74], [76], [80], [82] and [86], whether a defendant owes a duty of care to the plaintiff in a particular factual matrix (Factual Matrix) depends on the following evidence and reasons:

was there “sufficient legal proximity” between the plaintiff and defendant wherein it was reasonably foreseeable that if the defendant did not exercise reasonable care in the Factual Matrix, the plaintiff would suffer injury, death and/or loss? In this regard, the court may consider whether there was physical proximity, circumstantial proximity and causal proximity between the plaintiff and defendant in the Factual Matrix; and

whether the existence of a duty of care in the Factual Matrix (owed by the defendant to the plaintiff) was negated by any policy consideration.

I reproduce below Article 145(3) of the Federal Constitution (FC), s 376(1) and (3) of the Criminal Procedure Code (CPC): “Article 145(3) FC The [AG] shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial. s 376 CPC [PP]

The [AG] shall be the [PP] and shall have the control and direction of all criminal prosecutions and proceedings under this [CPC]. …

The [PP] may appoint fit and proper persons to be [DPPs] who shall be under the general control and direction of the [PP] and may exercise all or any of the rights and powers vested in or exercisable by the [PP] by or under this [CPC] or any other written law except any rights or powers expressed to be exercisable by the [PP] personally and he may designate any of such [DPPs] as Senior [DPPs].” (emphasis added).

Firstly, it is not disputed that by virtue of Article 145(3) FC and s 376(1) CPC, the AG/PP has a constitutional discretion to -

institute any prosecution;

amend any charge before the commencement of the trial of the accused person(s);

conduct any prosecution; and

discontinue any prosecution (4 Prosecutorial Powers).

Secondly, by virtue of s 376(3) CPC, subject to the AG/PP’s “general control and direction”, DPPs may exercise any one or all of the 4 Prosecutorial Powers.

Lastly, with regard to the exercise of the 4 Prosecutorial Powers, I am of the firm view that the AG/PP and DPPs do not owe any duty of care to Accused Person(s)/Complainant(s)/Victim(s) due to the following reasons:

the primary basis for the exercise the 4 Prosecutorial Powers is public interest (Public Interest Basis);

the Public Interest Basis clearly outweighs the personal, private and/or individual death, interests, loss and/or damage of the Accused Person(s)/Complainant(s)/Victim(s);

if the AG/PP and DPPs owe a duty of care to the Accused Person(s)/Complainant(s)/Victim(s), this will be contrary to public policy -

the Accused Person(s)/Complainant(s)/Victim(s) may file a civil suit against the AG/PP and/or DPPs based on the tort of negligence (Negligence Suit);

there may be a simultaneous duplicity in proceedings, namely the criminal proceedings against the accused person(s) and the Negligence Suit [Duplicity (Proceedings)]. In the case of a Duplicity (Proceedings), the accused person(s) may apply to the criminal court to stay the criminal proceedings pending the final disposal of the Negligence Suit [Stay (Criminal Proceedings)]. If a Stay (Criminal Proceedings) is granted, there may be an injustice because with the passage of time -

complainant(s), victim(s) and prosecution witness(es) [Complainant(s)/Victim(s)/Prosecution Witness(es)] may pass on or may not be available to give evidence in the criminal proceedings; and

(ii) the recollection of the Complainant(s)/Victim(s)/Prosecution Witness(es) may be adversely affected; and

the public policy considerations as explained in the above sub-paragraphs (1) to (3), would negate the existence of any duty of care which could be owed by the AG/PP and DPPs to the Accused Person(s)/Complainant(s)/Victim(s). E. Can the Appellant file This Suit based on a tort of malicious prosecution?

The Statement of Claim in This Suit (SOC) did not plead a tort of malicious prosecution against the Respondent. Having said that, I need to discuss this tort because when the court decides the Respondent’s Striking Out Application under O 18 r 19(1) RC, in the interest of justice, the court has a discretion to dismiss the Respondent’s Striking Out Application and allow the Appellant to amend the SOC so as to “save” This Suit - please refer to the judgment of Mahadev Shankar JCA in the Court of Appeal in Muniandy s/o Subrayan & Ors v Chairman & Board Members of Koperasi Menara Maju Bhd [1991] 1 MLJ 557, at 560 and 561. I reproduce below O 18 r 19(1) RC: “O 18 r 19(1) 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.” (emphasis added). In the interest of justice, I will now consider whether the learned High Court Judge should have -

dismissed the Respondent’s Striking Out Application; and

exercised the court’s discretion pursuant to O 18 r 19(1) RC to allow the Appellant to amend the SOC so as to include a claim against the Respondent based on a tort of malicious prosecution.

In the Federal Court case of Rawther v Abdul Kareem [1966] 2 MLJ 201, at 203, Thomson LP explained the five elements of a tort of malicious prosecution [5 Elements (Tort of Malicious Prosecution)] as follows - “In any such action [tort of malicious prosecution] the plaintiff must prove at least five things and unless he does so he cannot succeed. He must prove that the defendant set the criminal law in motion against him. He must prove that the criminal proceedings against him terminated in his favour, that the defendant had no “reasonable and probable cause” for setting the law in motion against him and that the plaintiff [sic – should be the defendant] was actuated by malice in the sense that he had a motive other than only to carry the law into effect. And for historical reasons (the action was originally in case) he must prove damage.” (emphasis added). According to Rawther, the 5 Elements (Tort of Malicious Prosecution) are -

the defendant had instituted criminal proceedings against the plaintiff [1st Element (Tort of Malicious Prosecution)];

the plaintiff had been finally acquitted in the criminal proceedings [2nd Element (Tort of Malicious Prosecution)]. In the following cases, the civil suits based on the tort of malicious prosecution were only filed after the fulfilment of the 2nd Element (Tort of Malicious Prosecution), namely after the plaintiffs had been finally acquitted of the criminal charges in question -

the judgment of See Mee Chun JCA in the Court of Appeal case of Khairuddin Abu Hassan v Wan Aedil Wan Abdullah & Ors and another appeal [2025] 6 CLJ 1, at item no. 21 in the table in [9];

Vazeer Alam Mydin JC’s (as he then was) decision in the High Court in Rosli Dahlan v Tan Sri Abdul Gani Patail & Ors [2014] 11 MLJ 481, at [29];

the judgment of Roz Mawar Rozain JC (as she then was) in the High Court case of Sharil @ Shahrir bin Ab Samad v Tommy Thomas @ Mohan a/k Thomas & Ors [2025] 1 CLJ 1003, at [3(x)] (Sharil); and

Elaine Yap Chin Gaik JC’s decision in the High Court in Ananda Kumar a/l S Maharajah v Peguam Negara Malaysia & Ors [2025] MLJU 4687, at [9];

the defendant had no “reasonable and probable cause” to institute criminal proceedings against the plaintiff [3rd Element (Tort of Malicious Prosecution)];

in the institution of criminal proceedings against the plaintiff, the defendant had been actuated by malice in the sense that the defendant had a motive other than only to carry the law into effect [4th Element (Tort of Malicious Prosecution)]; and

the plaintiff had suffered loss and/or damage to the criminal proceedings instituted by the defendant against the plaintiff [5th Element (Tort of Malicious Prosecution)].

In this instance, the AG/PP had filed 35 criminal charges in four cases against the Appellant (Charges). I am of the view that at the time of the filing of This Suit, the Appellant had no valid cause of action against the Respondent premised on the tort of malicious prosecution. This is because at the time of the filing of This Suit, the 2nd Element (Tort of Malicious Prosecution) had not been fulfilled, namely, the Appellant had not been finally acquitted of the Charges.

As explained in the above paragraph 14, there was no basis to dismiss the Respondent’s Striking Out Application and allow the Appellant to amend the SOC so as to include a claim against the Respondent based on a tort of malicious prosecution. F. Can This Suit be filed against the Respondent for the tort of misfeasance in public office?

The tort of misfeasance in public office has been explained by the following judgment of the Federal Court delivered by Nallini Pathmanathan FCJ in Tony Pua Kiam Wee v Government of Malaysia & another appeal [2019] 12 MLJ 1, at [184]: “[184] The key ingredients of the tort are:

an abuse of public power or authority;

(ii) by a public officer;

(iii) who either:

knew that he was abusing his public power or authority; or

was recklessly indifferent as to the limits of their public power or authority; and

(iv) who acted or omitted to act either with:

the intention of harming the plaintiff (targeted malice); or

with the knowledge of the probability of harming the plaintiff, or with reckless indifference to the probability of harming the plaintiff or a class of persons of which the plaintiff was one.” (emphasis added).

Firstly, it is to be noted that in Tony Pua Kiam Wee, at [1] and [2] -

the suit was filed against the Federal Government and the then Prime Minister (PM) (the Appellant in this case); and

the allegation was that the then PM had committed misfeasance in public office in relation to a sovereign fund established for the economic benefit of Malaysia and the Malaysian people, known as “1MDB”. It is clear that the material facts in Tony Pua Kiam Wee were not based on an exercise of the 4 Prosecutorial Powers by the AG/PP and DPPs. Hence, the Appellant could not rely on Tony Pua Kiam Wee to support This Appeal.

Secondly, with regard to an exercise of the 4 Prosecutorial Powers, a plaintiff can only file a civil action for damages against the AG/PP and/or DPP based on the tort of misfeasance in public office [Civil Suit (Tort of Misfeasance in Public Office)] upon proof on a balance of probabilities of an “abuse of public power or authority” by the AG/PP and/or DPP in respect of the prosecution against the plaintiff, namely, after the prosecution had finally ended in favour of the plaintiff. If otherwise, how can the plaintiff prove on a balance of probabilities an abuse of public power or authority by the AG/PP and/or DPP in respect of the prosecution in question. Furthermore, only upon a final termination of the prosecution in favour of the plaintiff, ie., when the plaintiff’s loss and/or damage due to the prosecution had crystallized, can the plaintiff then institute a Civil Suit (Tort of Misfeasance in Public Office). If a plaintiff can file a Civil Suit (Tort of Misfeasance in Public Office) when the prosecution had not been finally concluded in favour of the plaintiff, a Duplicity (Proceedings) would arise and such an outcome is neither just nor desirable - please refer to the above sub-paragraph 11(3)(b). In the following High Court cases, Civil Suits (Tort of Misfeasance in Public Office) were only filed after the accused persons had been finally acquitted of the criminal charges:

Rosli Dahlan, at [29]; and

Sharil, at [3(x)];

As the Appellant had not been finally acquitted of the Charges at the time of the filing of This Suit, the learned High Court Judge had rightly exercised his discretion to strike out This Suit with regard to the tort of misfeasance in public office.

With regard to the exercise of the 4 Prosecutorial Powers, I am of the view that the tort of malicious prosecution (as recognised in Rawther and Khairuddin) provides a just, effective and adequate remedy for accused persons who had been -

charged with offences by the AG/PP and/or DPPs; and

ultimately acquitted of those charges. Premised on the above reasons, there is no necessity to rely on the tort of misfeasance in public office in respect of the invocation of the 4 Prosecutorial Powers by the AG/PP and/or DPPs. Having said that, a plaintiff may still rely on the tort of misfeasance in public office regarding the exercise of any public power or authority by the AG/PP and/or DPPs which does not concern the 4 Prosecutorial Powers. G. Whether This Suit could be filed against the Respondent for the tort of abuse of process

The SOC did not plead the tort of abuse of process against the Respondent. As explained in the above paragraph 12, I will now discuss whether the Respondent’s Striking Out Application should be dismissed and the Appellant be allowed to amend the SOC so as to include a claim against the Respondent based on a tort of abuse of process.

With regard to the tort of abuse of process, Gopal Sri Ram JCA (as he then was) had decided as follows in the Court of Appeal case of Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin bin Ungku Mohamed [1998] 2 MLJ 425, at 429, 430, 434 to 435 and 438 (MBSB’s Case): “On 3 April 1984, the appellant before us obtained judgment in Civil Suit C431 of 1984 for the sum of RM1,475,529.68. It was a judgment in default of appearance. Later, on 4 April 1986, acting on the judgment, the appellant, as petitioning creditor, instituted bankruptcy proceedings against the respondent which culminated in the making of receiving and adjudicating orders on 10 March 1986. On 20 October 1987, the respondent took out a motion to set aside these orders. He also asked for other relief, including an order that ‘damages be paid by the petitioning creditor to the debtor’. On 19 June 1992, the learned judge who heard the respondent's motion granted an order in its terms. Apart from annulling the adjudicating order and rescinding the receiving order, he directed that damages be paid by the appellant to the respondent. … … On 10 July 1995, the appellant filed a summons in chambers to set aside that part of the order dated 19 June 1992 that awarded damages to the respondent. The ground upon which the application was made was that the judge had no jurisdiction to make that order. The appellant's summons was heard before the learned judicial commissioner who, after hearing arguments, dismissed it on 2 March 1996. It is against that decision that the present appeal has been brought. When the appeal was called on yesterday, we formed the preliminary view that the High Court lacked the power to do what it did, namely to make a summary award of damages to be assessed. ... … I am therefore in agreement with Mr Das’ submission that there is absent in the High Court in our country, any power to award damages upon making orders under s 105 [of the then Bankruptcy Act 1967 (BA)]. Put another way, a High Court exercising bankruptcy jurisdiction under 105 [BA] may only make those orders referred to in the five subsections thereunder. It cannot make any other orders. … Every person who is aggrieved by some wrong he considers done him is at liberty to invoke the process of the court. Equally may a litigant invoke the process to enforce some claim which he perceives he has against another. When however, the process of the court is invoked, not for the genuine purpose of obtaining the relief claimed, but for a collateral purpose, for example, to oppress the defendant, it becomes an abuse of process. Where the court's process is abused, the proceedings complained of may be stayed, or if it is too late to grant a stay, the party injured may bring an action based on the tort of collateral abuse of process. … In my judgment, the essential elements of the tort of abuse of process are these:

The process complained of must have been initiated;

The purpose for initiating that process must be some purpose other than to obtain genuine redress which the process offers. In other words, the dominant purpose for which the process was invoked must be collateral, that is to say, aimed at producing a result not intended by the invocation of the process; and

The plaintiff must have suffered some damage or injury in consequence. It is to be stressed that neither malice nor the termination of the proceedings in the plaintiff's favour are necessary elements of the tort. To put it plainly, a plaintiff in an action for abuse of process need not prove that the defendant had invoked the process of the court maliciously. Neither does he have to prove that the proceedings terminated in his favour. It is only upon proof of the elements that go to make up the tort of collateral abuse of process, that a plaintiff is entitled to an award of damages.” (emphasis added).

In a recent Court of Appeal case of Symphony Life Bhd v Ng Ying Yiing & Ors and other appeals [2026] 2 AMR 19, at [51], [54] and [55], it was decided as follows: “[51] We are of the following view regarding MBSB’s Case:

the material facts in MBSB’s Case were -

based on a default judgment of appearance, the appellant obtained receiving and adjudicating orders (Bankruptcy Orders) under the then applicable Bankruptcy Act 1967 (BA) (now the Insolvency Act 1967) against the respondent; and

the respondent applied to the High Court to set aside the default judgment and Bankruptcy Orders. The High Court not only set aside the default judgment and Bankruptcy Orders but also order an assessment of damages to be paid by the appellant to the respondent [Assessment Order (Damages)];

the sole issue to be determined by the Court of Appeal in MBSB’s Case was whether the High Court had the jurisdiction and power under s 105 BA to make the Assessment Order (Damages) [Sole Issue (MBSB’s Case)]. The Sole Issue (MBSB’s Case) was answered in the negative. In view of the Sole Issue (MBSB’s Case), the Court of Appeal’s dicta regarding the tort of abuse of process, was purely obiter; and

the Court of Appeal’s judgment in MBSB’s Case was an oral one, namely, the Court of Appeal did not require time to consider further (the Court of Appeal did not enter a curia advisari vult). … [54] Our research has revealed a 2-1 majority judgment of the Federal Court in Ng Wai Pin v Ong Yew Teik and other appeals [2025] MLJU 1357. We reproduce below the majority judgment of Zabariah Mohd. Yusof FCJ in Ng Wai Pin, at [5], [118] to [123], [125], [126], [129] and [132] to [134]: “[5] This Court had allowed leave to appeal on the following common questions of law for all of the appeals, which are as follows: …

Whether it is permissible for a party who had been vindicated and/or was successful in a first action to mount a second action against the same opposing party in the first action based upon the conduct and/or evidence of the said opposing party? … Question 2: … [118] The categories of abuse of process can arise in various ways and never close. The factual matrix of our present case lends its context to the abuse. In our case the plaintiff had succeeded and obtained judgment and reliefs against D1 in suit 1333 (the 1st suit). The judgment sum had been settled with interest. The background facts in Suit 460 (the 2nd suit) relates to the same ECT Sale of Shares, the same acknowledgement of debt and the same alleged debt of RM8,018,225 as claimed in suit 1333 (the 1st suit) to which he had been paid. All these had been litigated and canvassed in suit 1333 (the 1st suit). [119] Suit 460 (the 2nd suit) is the 2nd suit against D1. The plaintiff has succeeded in Suit 1333 (the 1st suit) and obtained whatever remedy with interests. [120] The 2nd claim by the plaintiff against D1 and the other defendants is an abuse of process. The plaintiff had been vindicated or was successful in the 1st suit cannot mount a second action against the same party in the first action based on the conduct and/or evidence of the said opposing party. This runs counter to the policy considerations as set out earlier. [121] It would be a spectre to have a justice system where chain like litigation is allowed and proceedings will run ad infinitum with no end. This was demonstrated by Lee Tat Development and our present appeals. [122] Apart from the aforesaid, there is no express findings of fabrication of evidence, the tort of perjury, fraud, forgery, conspiracy, malicious prosecution or abuse of process in suit 1333 (the 1st suit). In any event, whatever its worth of those evidence (be it false, perjury or fabrication of false evidence, manipulation or coercion of witnesses), the plaintiff won in suit 1333 (the 1st suit). The plaintiff already got his remedy in suit 1333 (the 1st suit). This is in contrast to the facts in Jones v Kaney, Darker and Hall v Simmons, where the plaintiffs in those cases were without remedy. There were also no express findings in suit 1333 (the 1st suit) that the plaintiff suffered loss/damage as was found in Jones v Kaney, Darker or the 3 cases in Hall v Simmons. Being a successful litigant in suit 1333 (the 1st suit), the plaintiff in our present case, cannot be said to have been wronged. His pleaded claim at paragraphs 32-34 states that the acts of the defendants caused him damage and loss with respect to his claim under Suit 1333 (the 1st suit) does not have a leg to stand on. It is certainly not supported by the facts, namely the decision of suit 1333 (the 1st suit was decided in the plaintiff’s favor. In other words, there is no damage or loss suffered with respect to his claim under Suit 1333 (the 1st suit). [123] Damage or injury is an essential element of the tort of abuse of process as held in Malaysia Building Society Bhd v. Tan Sri General Ungku Nazaruddin Ungku Mohamed [1998] 2 CLJ 340. … [125] It is undisputed that the Court of Appeal in Appeal 1694 (which is the appeal to suit 1333 (the 1st suit)) via the order dated 10.1.2019 had ordered interest on the judgment sum at 5% per annum from the date of filing of Suit 1333 to the date of realization. [126] The plaintiff in our present case has been reasonably compensated by the award of interests on the judgment sum awarded to him by the Court of Appeal in Appeal 1694. As such, the plaintiff is precluded from claiming any form of damages stemming from D1’s alleged refusal to pay to the plaintiff the RM8,018,225.00 due under the purported Acknowledgment of Debt. … [129] As the plaintiff had been paid the judgment sum with interest for suit 1333 (the 1st suit), it is an abuse of process if this Court is to allow the plaintiff to attempt to claim new damages against the defendants based on essentially the failure of the D1 to repay the damages in the form of judgment sum which had already been adjudged in the sum of RM8,018,255.00 in the first Suit. … [132] Clearly, the subject matter of the present case has already been dealt with by the High Court in suit 1333 (the 1st suit), the majority decision in the Court of Appeal (in Appeal 1694) and on appeal to the Federal Court. To allow suit 460 (the 2nd suit) to go for trial is to allow re litigation on the same issues which had been decided in suit 1333 (the 1st suit). [133] Thus the learned High Court Judge did not err when His Lordship held that it is an abuse of court process for the plaintiff to reopen or relitigate the issues again in the present appeals. The plaintiff’s claim against D1-D5 concerned the evidence that was presented in Suit 1333 (the 1st suit) and the damages or loss claimed are all relating to the failure of D1 to pay the principal sum of RM8,018,225.00 expeditiously. His Lordship also found that there is clear substantial duplication of issues and reliefs of damages sought in Suit 1333 and the present appeal. Such findings by the High Court did not warrant any appellate intervention by the Court of Appeal. [134] We therefore answer Question 2 in the negative.” [emphasis added] [55] We express the following view:

according to the majority judgment in Ng Wai Pin -

if a party (X) had succeeded to claim for relief in the first suit against Y (1st Suit), X cannot subsequently file a second suit against Y for further relief based on the tort of abuse of process (2nd Suit); and

in view of the fact that X had already obtained relief against Y in the 1st Suit, Y may apply to court in the 2nd Suit to strike out the 2nd Suit pursuant to O 18 r 19(1)(d) RC on the ground that the 2nd Suit constitutes an abuse of court process;

it was decided in MBSB’s Case that Y may file the 2nd Suit against X for the tort of abuse of court process without -

waiting for the “termination” of the 1st Suit; and

the 1st Suit being “terminated” in Y’s favour Notwithstanding the above part of the Court of Appeal’s judgment in MBSB’s Case, the 2nd Suit should only be filed by Y against X after the 1st Suit had been finally concluded in Y’s favour [Final Conclusion in Y’s Favour (1st Suit)]. Our reasons are as follows -

if the 1st Suit was finally decided in X’s favour, we cannot envisage any basis for Y to file the 2nd Suit against X based on the tort of abuse of process. In fact, if the 2nd Suit is filed by Y in the above circumstances, X may apply to court to strike out the 2nd Suit on the ground that the 2nd Suit constitutes an abuse of court process under O 18 r 19(1)(d) RC; and

(ii) if there is Final Conclusion in Y’s Favour (1st Suit) and if Y has suffered actual loss and/or damage in excess of the costs awarded by the court in Y’s favour in the 1st Suit (Y’s Further Loss/Damage), Y can then file the 2nd Suit against X and claim for Y’s Further Loss/Damage premised on X’s abuse of process in filing the 1st Suit against Y. We rely on the following judgment of the High Court in Sonic Finance Inc. & Anor v Halim bin Mohammad & Ors [2019] MLJU 1887, at [34], a case premised on the tort of abuse of process - “[34] Cik Marina Nasution, the 1st Defendant’s learned counsel, has contended that the Plaintiffs are liable to pay for all of the 1st Defendant’s legal fees and disbursements incurred for the 3 Actions [basis for the tort of abuse of process]. I accept this submission with a qualification - the 1st Defendant has been previously awarded costs against the Plaintiffs (Costs) and the Costs can be recovered by the 1st Defendant from the Plaintiffs. Accordingly, the 1st Defendant is entitled to claim for all legal fees and disbursements incurred in the 3 Actions less the Costs (Deduction) - please see Ranjeet Singh Sidhu, at [64(b)(i)]. If the Deduction is not given in this Assessment, this will enrich the 1st Defendant unjustly because the 1st Defendant will have a “double recovery” in respect of the Costs (by way of the previous order granting Costs and through this Assessment).” (emphasis added); and

in view of the reasons explained in the above sub-paragraphs (2)(i) and (ii), if there is no Final Conclusion in Y’s Favour (1st Suit), Y should not be allowed to file a counterclaim in the 1st Suit [Y’s Counterclaim (1st Suit)] based on the tort of abuse of process allegedly committed by X in filing the 1st Suit (as in this case). Furthermore, if Y’s Counterclaim (1st Suit) is filed, the total loss and/or damage which may be subsequently suffered by Y as a result of the final conclusion of the 1st Suit, has yet to crystallise. In other words, Y’s Counterclaim (1st Suit) is pre-mature in the above circumstances. Needless to say, if the Original Action is finally concluded in Y’s favour, the six-year limitation period under s 6(1)(a) of the Limitation Act 1953 for Y to sue X for X’s commission of the tort of abuse of process (by filing the 1st Suit), can only commence after Y’s Further Loss/Damage has been incurred.” (emphasis added).

As explained in Symphony Life -

the material facts in MBSB’s Case did not concern an abuse of process. Hence, the Court of Appeal’s dicta regarding the tort of abuse of process, was purely obiter. In any event, there was no exercise of the Prosecutorial Powers by the AG/PP and/or DPPs in MBSB’s Case; and

a civil suit based on the tort of abuse of process [Civil Suit (Tort of Abuse of Process)] can only be filed by a plaintiff (X) against a defendant (Y) if the civil proceedings previously instituted by Y against X (Y’s Earlier Suit) had ended in X’s favour. Only when X had finally succeeded in Y’s Earlier Suit, can X file the Civil Suit (Tort of Abuse of Process) against Y.

I am of the opinion that a plaintiff cannot file a Civil Suit (Tort of Abuse of Process) in respect of the invocation of the 4 Prosecutorial Powers by the AG/PP and DPPs. This view is due to the fact that with regard to the exercise of the 4 Prosecutorial Powers by the AG/PP and DPPs, Malaysian case law (in Rawther and Khairuddin) has already provided for the tort of malicious prosecution as a just, effective and adequate remedy for any accused person. Needless to say, a plaintiff may institute a Civil Suit (Tort of Abuse of Process) regarding the exercise of the powers of the AG/PP and DPPs in proceedings in respect of the plaintiff which do not concern the 4 Prosecutorial Powers.

As explained in the above paragraph 25, there is no room for the High Court to dismiss the Respondent’s Striking Out Application and allow the Appellant to amend the SOC so as to include a claim against the Respondent based on a tort of abuse of process. H. Should our courts recognise the tort of malicious process against AG/PP and DPPs?

Firstly, the categories of torts are never closed and Malaysian courts may recognise new torts in the interest of justice. In Ou Yang Chow Min (trading as Ou Yang Architect) v Green Venture Capital Sdn Bhd and another case [2022] 6 MLRH 489, at [35], the High Court decided as follows: “[35] I would take this opportunity to express my view as to whether Malaysian case law should recognize a tort of abuse of adjudication process under CIPAA [Construction Industry Payment and Adjudications Act 2012]. Firstly, as decided by Lord MacMillan in the House of Lords in Donoghue v Stevenson [1932] AC 562, at 619, the categories of tort are never closed. Secondly, without the benefit of argument from learned counsel, I cannot envisage a tort of abuse of adjudication process unless all the following three circumstances are present:

a claimant (Y) has instituted adjudication proceedings against a respondent (Z) and the adjudicator has dismissed Y’s adjudication claim against Z [Dismissal (Adjudication Claim)]. Alternatively, if an adjudication decision has been delivered in favour of Y against Z, Z has successfully applied to the High Court to set aside the adjudication decision and the High Court’s setting aside order has been affirmed on appeal by the Court of Appeal or Federal Court, as the case may be (Setting Aside Order). When there is a Setting Aside Order, Y cannot obtain leave of court under s 28 CIPAA to enforce the adjudication decision;

no Litigation/Arbitration has been commenced between Y and Z. Alternatively, Litigation/Arbitration has been instituted and resolved in favour of Z against Y [Z’s Success (Litigation/Arbitration)]. If Y is successful in Litigation/Arbitration against Z, this means that Y has performed construction work for which Z should be liable to Y. In such a case, I cannot foresee how Y has abused the adjudication process under CIPAA; and

Z has suffered loss due to the Dismissal (Adjudication Claim) or the Setting Aside Order [Z’s Loss (Adjudication)]. Z’s Loss (Adjudication) should be distinguished from Z’s loss due Litigation/Arbitration in Z’s Success (Litigation/Arbitration) [Z’s Loss (Litigation/Arbitration)]. This is because Z’s Loss (Litigation/Arbitration) may be claimed by Z from Y pursuant to tort of Y’s abuse of court process, tort of arbitral process (if recognized by Malaysian case law) and/or tort of malicious prosecution.” (emphasis added).

In Nik Mohd Suhaimi Ahmad Ghazali v Siti Fairuz Shamsuri & Ors [2024] 2 CLJ 591, at [1], [5], [11] to [18], [30] and [53], the High Court decided as follows: “[1] The plaintiff had filed a suit against all the defendants for the tort of false imprisonment which entails wrongful arrest, wrongful detention and harassment and the tort of malicious prosecution. … [5] Hence this suit by the plaintiff for false imprisonment/wrongful arrest/harassment and malicious prosecution against all the defendants. (Technically, the tort of false imprisonment was against the MACC and its officers and the tort of malicious prosecution against the Public Prosecutor and its deputies). … The Tort Of Malicious Process/Abuse Of Process [11] The tort of malicious process or abuse of process was introduced earlier in the United Kingdom, where the police were found to be liable for procuring arrests maliciously and without reasonable cause. This tort is newly introduced in Malaysia. It entails the torts of wrongful arrest/ detention/wrongful imprisonment etc, and the lists are not closed. Apart from the United Kingdom, some other Commonwealth countries, for example, New Zealand, Australia and Canada have recognised it. As we will see later, the Supreme Court of Canada earlier had even introduced the tort of negligent investigation against the police, as they recognised that the torts of false imprisonment, misfeasance etc, do not provide an adequate remedy. [12] It is distinct from the tort of malicious prosecution which applies against the Public Prosecutor. In the case of Everett v. Ribbands And Another [1952] 1 All ER 823, at p. 826, lines B to D, the court held: This action was known as an action for malicious process. It differed from malicious prosecution in that there was no need for the plaintiff to prove that he had been acquitted. There could be no question of acquittal, because the process issued without his innocence or guilt being decided at all. It issued, indeed, without his being heard at all. A modern parallel is the issue of a search warrant. If it is obtained maliciously and without reasonable and probable cause, an action lies. See also Roy v. Prior [1971] AC 470. [13] This tort prevails in a situation like the present case before the court whereby the claimant/plaintiff was rightfully and legally arrested but in the process, he was subjected to abuse, harassment, intimidation, inducement, and harm which had affected him not only physically but mentally and psychologically. (This court agreed that the arrest and detention was legal). Hence, he should be entitled to some form of redress or remedy for malicious process/abuse of process, as this court ruled that the arrest and detention were legal. [14] In the English case of Goldsmith v. Sperrings Ltd [1977] 2 All ER 566, p. 574, lines E to F, the Court of Appeal, in a dissenting judgment, said this about the tort of abuse of process: What may make it (the legal process) wrongful is the purpose for which it is used. If it is done in order to exert pressure so as to achieve an end which is improper in itself then it is a wrong known to the law. [15] This dissenting judgment was applied by our court in TN Metal Industries Sdn Bhd & Ors v. Ng Pyak Yeow [1995] CLJU 320; [1995] 1 LNS 320; [1996] 4 MLJ 567 at p. 583 (A to C). The judge held that the tort of abuse of process is distinct from malicious prosecution. It is applied in cases when a legal process has been misused to satisfy some other ulterior motives, thus: Where a legal process, the basis for which in itself could have proper foundation, has been perverted to satisfy some other motive such as extortion or oppression, an action will lie at the feet of a party that suffers the wrong. This is the tort of abuse of process. Unlike the tort of malicious prosecution, the tort of abuse of process does not depend on the wrongful procurement of the legal process but in the misuse of the process however correctly it was obtained ... (emphasis added). [16] The Court of Appeal in the case of Malaysia Building Society Bhd v. Tan Sri General Ungku Nazaruddin Ungku Mohamed [1998] 2 CLJ 340; [1998] 2 MLJ 425, at p. 438 above also applied the dissenting judgment in Goldsmith v. Sperrings Ltd (supra). The court ruled that, if a legal process is abused for an ulterior motive, and harm is done to the person for which the process is initiated against, then the court can award damages against the wrongdoer. [17] This position has been neatly summed up by Lord Denning MR in his dissenting judgment in Goldsmith v. Sperrings Ltd & Ors [1977] 1 WLR 478, where at p. 489 His Lordship said: In a civilised society, legal process is the machinery for keeping and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men’s rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression: or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process, they can, before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer. [18] Though a dissenting judgment, the principle enunciated by Lord Denning has been accepted as authoritative of what constitutes an abuse of process. See: Malaysia Building Society v. Tan Sri General Ungku Nazaruddin (supra), at p. 435. … [30] This court ruled that, his arrest, detention and being charged on 20 March 2014, although legal, but the adverse publicity was very damaging to his life and reputation as a businessman. This has also greatly affected the reputation of his family as a whole. That had changed his life not for the better, thereafter. From the evidence adduced, this court found that this action by the defendants (SPRM) was deliberate and hence malicious as it was pre-planned. This was because the third defendant had at the SPRM Headquarters, Putrajaya, informed the plaintiff of his eventual charging the next day and that the media was already informed. This is an act of harassment and inducement to lure the plaintiff to plead guilty. In fact, during his arrest, he was also deprived of making preparations regarding his bails, medication etc, at that period of time. The plaintiff was brought to Kuantan handcuffed during the journey where he was charged at the Kuantan Sessions Court the next day. … Conclusion [53] This new approach by the court must be recognised and is timely as it is built on the foundation of fairness, reasonableness, justice and respect to this group of vulnerable suspects/detainees. This resonates with the application of the eggshell skull rule and the call that the time has come for society and officers of investigation and law enforcement agencies (like MACC and police) to recognise the rights of these vulnerable suspects/ arrestees as they are, at the extreme of the spectrum are susceptible to suffer from mental health which can cause them to even take away their own life (see Teoh Beng Hock’s case). The Ministry of Health once declared that from surveys conducted, four in every ten ordinary Malaysians, suffer from some form of mental health issues and remedial measures are to be taken to arrest this problem. It will be more profound to this group of people.” (emphasis added).

I am of the following view regarding Nik Mohd Suhaimi:

the plaintiff was charged with a criminal offence but was finally acquitted of the charge;

the plaintiff had filed a suit against, among others, the PP and DPP based on the tort of malicious prosecution;

the High Court did not decide on whether the PP and DPP were liable for the tort of malicious prosecution. Instead, the learned High Court Judge found that the officers of the Malaysian Anti-Corruption Commission (MACC) had committed the tort of malicious process and tort of abuse of process against the plaintiff with regard to the treatment of the plaintiff when the plaintiff was in the custody of the MACC officers;

Nik Mohd Suhaimi did not decide that the tort of malicious process applied to the exercise of the 4 Prosecutorial Powers by the AG/PP and DPPs; and

the tort of malicious process should not be recognised against the invocation of the 4 Prosecutorial Powers by the AG/PP and DPPs because -

our case law (in Rawther and Khairuddin) has already enforced the tort of malicious prosecution with regard to the exercise of 4 Prosecutorial Powers by the AG/PP and

if our courts recognise the tort of malicious process against the AG/PP and DPPs in respect of the Prosecution(s), a Duplicity (Proceedings) would arise and such an outcome is neither just nor desirable - please refer to the above sub-paragraph 11(3)(b).

As explained in the above sub-paragraph 29(5), the Appellant could not file This Suit against the Respondent based on the tort of malicious process. Consequently, the learned High Court Judge did not err in law and in fact by striking out This Suit with regard to the tort of malicious process. I. A summary of This Judgment

In summary, This Appeal is dismissed with costs on the following brief grounds:

in respect of the tort of negligence, the Respondent, as the then AG/PP, did not owe any duty of care to the Appellant with regard to the exercise of the Respondent’s discretion in the filing of the Charges against the Appellant;

the Appellant could not file This Suit against the Respondent premised on the 3 Torts because at the time of the filing of This Suit, the Appellant had not been finally acquitted of the Charges; and

Malaysian courts should not recognise the tort of malicious process against the Respondent as the then AG/PP. DATE: 10 MARCH 2026 sgd WONG KIAN KHEONG Judge Court of Appeal Counsel for Dato’ Firoz Hussein bin Ahmad Jamaluddin, Appellant: Mr. Yudistra Darma Dorai, Ms. Melody Tham Cheng Yee, Mr. Daniel Annamalai, Ms. Woo J Enn, Mr. Harel Niryan & Mr. Dheveendra Krishna Kumar (Messrs Raj, Ong & Yudistra) Counsel for Mr. Alan Adrian Gomez, Mr. Mervyn Lai Wei Shiung & Respondent: Encik Haikaldin Mahyidin (Messrs Tommy Thomas)