Subsection
(8) the tenancy agreement between the respondent and SME Bank clearly stated that “Ruangan Kilang Digunakan HANYA untuk pembungkusan dan pengedaran minuman kesihatan ‘Lactovida’. The premises was never meant to be used as a factory for manufacturing purposes; [25] It is true that some of the bottles had no labelling that indicated false trade description, but that is not a bar for the enforcement officers of the 1st appellant to seize them for the purpose of investigation. At the trial, it was put to the appellants’ witness (DW2) that he had no reasonable cause to believe that the goods and equipment seized would or could be used as evidence at the trial. DW2 emphatically denied the suggestion. [26] In our view, it would be premature at that stage of the investigation for the seizing officers to determine which goods were in breach of the TDA and which were not and which items would be used at the trial and which would not be used. The fact that the respondent was eventually acquitted of the offence charged does not render the seizure illegal if otherwise it was made in accordance with section 28(1) (c) and (d) of the TDA. 12 [27] Section 34 of the TDA is similar though not identical with section 48 of the Optical Discs Act 2000, which provides as follows: “48. No person shall, in any proceedings before any court in respect of any article, optical disc, thing, book or document seized in the exercise or the purported exercise of any power conferred under this Act, be entitled to the costs of such proceedings or to any damages or other relief unless such seizure was made without reasonable cause.” [28] This court had occasion to deal with this provision in Empayar Canggih Sdn Bhd v Ketua Pengarah Bahagian Penguatkuasa Kementerian Perdagangan Dalam Negeri dan Hal Ehwal Pengguna Malaysia & Anor [2013] 7 CLJ 681. In affirming the decision of the High Court that the seizure of the goods was made with reasonable cause in the exercise of an investigative function, Zaharah Ibrahim JCA (now FCJ) delivering the judgment of the court, inter alia, said: “(5) The appellant’s claim for the declaration and damages could only succeed if the seizure was made without reasonable cause. On the facts, the said seizure was done with the reasonable belief that they contained information as to the commission of some offence, for which the search at the new premises was conducted. Further, the fact that, inter alia, the manufacturer’s codes were issued for machines under a different licence for the old premises and used for machines installed in the new premises were sufficient to constitute reasonable cause so as to deny the appellant the relief sought under s. 48 of the Act.” [29] For all the reasons aforesaid, we must say, with due respect to the learned judge, that he was wrong in finding the appellants liable in damages for negligence for the seizure of the goods that the prosecution did not use at the trial of the respondent. 13 [30] We shall now deal with the respondent’s appeal against the learned judge’s decision to dismiss its claim for malicious prosecution. It was submitted that on the evidence before the court, the learned trial judge ought to have found that the claim for malicious prosecution had been proved against the appellants on the balance of probabilities. It was argued that the appellants had no reasonable or probable cause to set the criminal law in motion against the respondent. [31] It was further argued that the appellants were actuated by malice, citing this court’s decision in Anne Lim Keng See v The New Straits Times Press (M) Bhd & Anor [2008] 3 MLJ 492 (a defamation case) where, in dealing with the issue of malice, Mohd Ghazali JCA (as he then was) delivering the judgment of the court made the following observations at page 517: “What is malice? According to Osborn’s Concise Law Dictionary (7th Ed) the word ‘malice’ means: ill-will or evil motive: personal spite or ill-will is sometimes called actual malice, express malice, or malice in fact. In law an act is malicious if done intentionally without just cause or excuse. So long as a person believes in the truth of what he says and is not reckless, malice cannot be inferred from the fact that his belief is unreasonable, prejudiced or unfair (Horrocks v Lowe [1972] 1 WLR 1625). Malice in the law of tort is a constituent of malicious prosecution, defamation, malicious falsehood, and conspiracy. But an act otherwise legal is not made wrongful by an improper motive (Mayor of Bradford v Pickles [1895] AC 587).” (emphasis added) [32] In Rawther (supra), the Federal Court laid down at least 5 elements for the successful prosecution of the tort of malicious prosecution. We reproduce below what the court said at page 203: 14 “In any such action 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 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 was actuated by malice in the sense that he had a motive other than only to carry the law into effect.” [33] The appellants’ answer to the respondent’s claim for malicious prosecution was that the claim was time barred by virtue of section 3 item 10 of the Schedule to the Sabah Limitation Ordinance (“the Limitation Ordinance”), which stipulates that a claim for compensation for a malicious prosecution instituted after 1 year from the date of acquittal or the termination of the prosecution must be dismissed. In the present case, the respondent was acquitted on 29.4.2011 but the suit was only filed on 25.1.2013. There was therefore a delay of almost 2 years. [34] Setting the criminal law in motion in the context of the tort of malicious prosecution means in our view the institution of a criminal prosecution by the Public Prosecutor and not the commencement of a criminal investigation by an enforcement agency. Item 10 of the Schedule to the Limitation Ordinance speaks of the acquittal or termination of a “prosecution”. It does not speak of the termination of an “investigation” by an enforcement agency. [35] It is settled law that the power to institute criminal prosecution and the general control of criminal proceedings are vested in the Public Prosecutor, who is the ultimate and sole authority to decide whether or not any person is to be prosecuted for any offence known to law: Long bin Samat & Ors v Public Prosecutor [1974] 1 LNS 80; [1974] 2 MLJ 152 and Johnson Tan Han Seng v Public Prosecutor [1977] 1 LNS 38; [1977] 2 15 MLJ 66. The 1st appellant’s power on the other hand is purely investigative. He has no prosecutorial power. [36] In the present case, it is obvious that the respondent’s claim for malicious prosecution was predicated on the assumption that it was the 1st appellant who made the decision to institute criminal prosecution against the respondent. For the reason that we have mentioned in the preceding paragraph, nothing can be farther from the truth. [37] The appellants’ liability, if at all, is confined to the legality or otherwise of their act of seizing the goods, which as we said is an investigative function and not an exercise of prosecutorial power. It is therefore misconceived and futile for the respondent to argue that it was the 1st appellant who set the criminal law in motion by instituting the criminal prosecution against it for an offence under section 3(1)(b) of the TDA. This ground alone would have been sufficient for the learned judge to dismiss the respondent’s claim for malicious prosecution. [38] Even if the 1st appellant had such power of prosecution, or that it was the 1st appellant who set the criminal law in motion by commencing the criminal investigation against the respondent which led to its prosecution under the TDA, the respondent’s claim for malicious prosecution was in any event barred by limitation as it was filed outside the limitation period prescribed by section 3 of the Limitation Ordinance. [39] The learned judge however rejected the defence of limitation raised by the appellants on the ground that it was not included in the list of agreed issues. He was of the view that by not including the defence in the agreed issues, the appellants were deemed to have abandoned the defence. 16 [40] With due respect to the learned judge, this is erroneous. Pleadings operate to define and delimit with clarity and precision, the real matters in controversy between the parties upon which they can present their respective cases, and upon which the court will be called upon to adjudicate between them: see Asia Hotels Sdn Bhd v Malayan Insurance