Phrakhru Sangkarat Bau @ Ideng A/L Din Ruang v 1. ) Wai Seng Moh (AB-23NCvC-2-06/2020)

In this civil suit No. AB-23NCvC-2-06/2020 (which will be referred to as “Suit No. 2”), the Plaintiff’s Writ of Summons and Statement of Claim was struck off by the then Judicial Commissioner of the Taiping High Court 10 YA Tuan Muniandy A/L Kanyappan (as His Lordship then was) on 24.5.2021 upon the Defendants’ application in Encl. 5 dated 18.8.2020. Upon the Plaintiff’s appeal, the Court of Appeal on 25.4.2022 allowed it and the case was remitted to the High Court to be heard on the merits. 15 [3] The trial commenced before me 11.9.2023 with a total of 2 witnesses for the Plaintiff and 3 witnesses for the Defendants. On 14.5.2024 the Court dismissed the Plaintiff’s claims of tort of malicious prosecution and/or tort of abuse of process and he filed a Notice of Appeal against this Court’s decision on 10.6.2024. The Court now gives its 20 decision for dismissing the claim. Unless stated otherwise, the parties will be referred to as they were in Suit No. 2. FACTUAL MATRIX 25 [4] The disputes centred around the same piece of land, known as Lot 347, Jalan Muzaffar, Mukim Assam Kumbang, Taiping (referred to as “Lot 347”). The history of Lot 347 can be found in the Learned JC’s Grounds of Judgment of Suit No. 1 where the Defendants here were the plaintiffs S/N 0V8Fr2lmw0241vm58nouzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 in that suit and vice versa. The document can be found in the Common Bundle of Document II (CBOD2) at pages 281 – 300 of Suit No. 2. The history stated that in 1899, the Perak state government had through a notification under s.6 of the Land Enactment 1897, under gazette no. 655, dated 4 August 1899, reserved a piece of land i.e. Lot 347 to be 5 designated as a place of worship for the Buddhist community. It was also stated in the gazette, that Lot 347 is to be protected against trespass, and kept in good oder by the trustees of the Buddhist temple called the Bodi Langka Ram and their successors in office. In the following paragraphs, I would use the words “plaintiffs” to refer to the present Defendants and the 10 words “defendants” to refer to the Plaintiff as he was one of the 2 defendants then and the other was Nellie. The following paragraphs are from the Judgment dated 28.7.2016: “[2] Some few years later, Lot 347 was enlarged to include the land adjacent 15 to it. Subsequent to that, the Perak state government had through gazette no. 668, dated 28 August 1903, reserved the enlarged Lot 347 in the same terms as the previous gazette. The terms are as follows: RESERVATION OF LAND FOR PUBLIC PURPOSES 20 Mo. 668. By virtue of the powers vested in him by Section 8 of the Land Enactment , 1903, the British Resident is pleased to hereby reserve the land described in the schedule hereto, and described in a plan of event date herewith, deposited in the office of the Superintendent of Revenue surveys, for the purpose of a place of worship for the Buddhist Community of Taiping, the said land to be protected against 25 trespass, and kept in good oder by the trustees of the Trustees of the Buddhist Temple called the “Bodi Langka Ram” and their successors in Office:- I shall for ease of reference, describe these second gazette as ‘the gazette’, and Lot 347 as ‘the land’. 30 ... S/N 0V8Fr2lmw0241vm58nouzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

Sadly though, there was discontentment between two groups, namely, the Sinhalese and the Thai Buddhists, who were the dominant group. Both parties had occupied certain parts of the land with their own temples and structures. Their discontentment had culminated over the years, and finally came to a boil, when the Thai demolished a 118-year 5 old building called the Seema on the land, to build a new temple.

The plaintiffs, representing the Sinhalese Buddhists, claim that the defendants, who are Thai Buddhists, had also maimed the sacred Bodi tree that stood next to the Seema when demolishing the Seema. Both 10 parties claimed to have built the Seema.

Foremost in the plaintiffs’ claim, is for a declaration that they are the trustees of the Bodi Langka Ram temple pursuant to the gazette. They have also amongst others, sought for an eviction order against the 15 defendants, and for the latter to give vacant possession of the land to them. The plaintiffs have also sought for an injunction to restrain the defendants, from continuing with the development of their shrine on the land, and from cutting and maiming any part of the 118-year old Bodi tree on the land. The plaintiffs have also sought for general damages.” 20

The plaintiffs in Suit No. 1 (i.e the Defendants here) is a registered society ran by members and they are later known as the Taiping Bodi Langka Ram Association (TBLR). Unlike the Defendants, the Thai Buddhists are not run through a society. They were in Suit No. 1 managed 25 by Nellie who then had acted as the caretaker, and the Plaintiff here as the Chief Priest. The defendants in Suit No. 1 did not claim to be the trustees of the Bodi Langka Ram, and had merely disputed the plaintiffs’ claim. The defendants instead managed a temple called Wat Phodiyaram on the same land. The Bodi tree was planted on the land after the Seema 30 was built and the sacred tree was demolished by the defendants together with the Seema. These are undisputed facts of both suits. S/N 0V8Fr2lmw0241vm58nouzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

The defendants claimed that the Sinhalese Buddhists only came there in early 1900 and was given permission by the Thais to perform their prayers on the land. The defendants had represented themselves as owners of the land and had initially submitted a plan to build a new temple on the land and obtained approval from the local council, Majlis 5 Perbandaran Taiping (MPT). They subsequently submitted a revised plan. The defendants demolished the Seema and built a new building on the same spot. The MPT issued a stop-work notice to the defendants dated 27.9.2011 and work was stopped accordingly. The issue then was whether the defendants could be compelled to stop work on the new 10 temple and to tear down what had been built thus far. This will be elaborated later in this Grounds of Judgment as it is one of the disputed issues between the parties in Suit No. 2.

The learned JC then had ruled that the trustees would be entrusted 15 over Lot 347 as it was to be protected against trespass, and kept in good oder by the trustees of the Buddhist temple and their successors in office. His Lordship also found that the plaintiffs’ version of the history of the Bodi Langka Ram and establishment of the Seema was the more probable one. It was also the learned JC’s view that there was no requirement in law for 20 a trustee to be appointed by the town council and gazetted. It was for the temple’s management to appoint the trustees (paragraph 42 of the Judgment). Therefore, for these reasons, the Court then had found the plaintiffs were the designated trustees and successors in title of the Bodi Langka Ram temple pursuant to the gazette, and that the Seema on the 25 land that had been demolished was the Bodi Langka Ram temple referred to in the gazette (paragraph 43 of the Judgment). His Lordship also found that the defendants had no right to dictate or determine on what can, or cannot be built on the land (paragraph 45 of the Judgment). Therefore, S/N 0V8Fr2lmw0241vm58nouzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 the defendants had also misrepresented to MPT that they were the owner of the land (which had been used by Buddhists from all walks of life).

Needless to say, His Lordship after analysing the evidence given by both parties, found that the plaintiffs’ witnesses were able to substantiate 5 their claims and had the documents to support their case (refer to paragraphs 26 - 35 and 51 of the Judgment). Nellie gave evidence as DW2 but the Plaintiff did not testify then. I refer to the following paragraphs on the Judgment of the learned JC as these became the basis of the application to commit the Plaintiff (the Chief Priest) for failure to abide by 10 the order dated 27.4.2016 where it was decided: “[48] The defendants attempted to justify their plans through DW2, who was the contractor appointed by the defendants, and DW4, the draughtsman who drew up the plan. It would not be necessary to delve into their testimonies. The fact remains that the defendants’ plans, and what was 15 being build, was in contravention of MPT’s approval. It was by all accounts an illegal structure.

It is also apparent that the defendants had never consulted with the plaintiffs pertainig to their plans. On the one hand the defendants assert 20 that no one party has an exclusive control over the land and that the land is for all Buddhists, but at the same time, they had acted as though they were the masters of the land. They have never made any attempts to consult the plaintiffs, particularly when both parties had been on the land for so long. 25

Based on the fact that the MPT had issued a notice for the new building to be torn down, and the court’s finding that the plaintiffs are the rightful trustees over the land, it follows that it is the defendants’ responsibility to take down the building that was being built. They should bear the 30 responsibility for their own folly.”. S/N 0V8Fr2lmw0241vm58nouzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7

His Lordship made the following orders and declarations in allowing most of the plaintiffs’ claims:

The Defendants on their own or through their agents or its employees or through any person or with any method is restrained, and an injunction is hereby given to restrict them from building or to proceed to build a 5 shrine on the portion of Lot 347, Mukim Assam Kumbang, Taiping, where there is ongoing construction (on the site of the old Seema building that was demolished by the Defendants);

The Defendants on their own or through their agents or its employees or through any person or with any method is restrained, and an injunction 10 is hereby given to restrict them from cutting, cutting down the entire or a part of, or damaging in any manner one Bodi tree that is 118 years old on the portion of Lot 347, Mukim Assam Kumbang, Taiping;

The Defendants are ordered to demolish in a period of one hundred construction of the building that was built on the portion of Lot 347, Mukim Assam Kumbang, Taiping, (on the site of the old Seema building that was demolished by the Defendants);

A declaration to order that the Bodi Langka Ram Buddhist Association is an association that appoints the trustees for the Bodi Langka Ram 20 Temple that is located on Lot 347 Mukim Assam Kumbang, Taiping;

A declaration to order that the Taiping Bodi Langka Ram Buddhist Association, the 2nd Plaintiff, 3rd Plaintiff and the 4th Plaintiff are trustees, and replacements of the office of the Bodi Langka Ram Temple according to the Government of Perak Gazette Notice, in the year 1899 25 No. 655 under Section 6 of the Land Enactment, 1897, and the Government of Perak Gazette Notice in the year 1903 No. 668, under

A declaration to order that the Seema building that was demolished on Lot 347, is the first Bodi Langka Ram temple;

The 1st Defendant is ordered to pay to the Plaintiffs an amount of RM15,000.00 as costs;

The 2nd Defendant is ordered to pay to the Plaintiffs an amount of RM15,000.00 as costs;

Interests on costs at a rate of 5% a year from the date of this Judgment until full and final settlement;

The Plaintiffs’ claim that the Defendants and Wat Phodhiyaram vacates 5 Lot 347, and give vacant possession of Lot 347 within the time of 6 months from the date of the Order of this Court or at any other period of time as ordered by this Court is dismissed; and

The Plaintiffs’ claim for general damages is dismissed. 10 [Refer to Order dated 27.4.2016 at pages 276 – 280 of CBOD2]. [10] Although the Plaintiff submitted that this suit is not about YA Mohamed Zaini Mazlan’s Judgment, I am compelled to set out the history, the facts and some relevant findings in Suit No. 1 here because the 15 committal proceeding brought against the Plaintiff by the Defendants were in relation to the same plot of land known as Lot 347. At this stage, it is also necessary to draw a chronology of events of the suits and actions between the parties before and after the Order was made to enable a better understanding of Suit No. 2. The summary of these can be found in 20 the Judgment of YA Muniandy A/L Kanyappan JC (as His Lordship then was) pertaining to the striking out application by the Defendants and which I have supplemented with later facts as follows: No.

1.

20.5.2011 (Suit No. 1) The Defendants instituted a civil suit against Plaintiff and Nellie) spelling out that Seema building which was constructed at Lot 347 to be demolished and for vacant possession of the plot. Claim is also for Defendants to be empowered as trustees.

2.

27.4.2016 The High Court dismissed the Plaintiffs’ claims against the Defendants and made certain orders.

3.

19.3.2018 In response to the order of High Court (HC) made in favour of the Defendants on 27.4.2016, a dissatisfied Nellie and the Plaintiff appealed to the Court of Appeal (COA) in Appeal No. A-02(W)-981-05/2018. However, on the day of hearing Nellie withdrew herself from the said appeal. In a further twist of events, the Plaintiff (Ideng) too withdrew the appeal; thus, acceding to the earlier court order by HC. On the same date, the COA had set that the two conflicting parties withdrew their appeal and cross-appeal filed against each other and resolve the matters arising amicably.

4.

4.7.2019 In view of the prevailing order of HC made on 27.4.2016, which has to be enforced, and that the appeals had been withdrawn, the Defendants issued a final notice to the Plaintiff to carry out the said order. Plaintiff was also told that if there is inaction, committal proceeding would be pursued against him.

5.

15.8.2019 But then, the Plaintiff filed an Originating Summons (OS) No. AB-24-NCVC142-08/2019 to set aside the said order. The OS was heard on 9.1.2020 and decided on 20.2.2020, where it was dismissed with costs for want of legal basis and merit.

6.

22.7.2019 Defendants then instituted committal proceeding under Suit No. 1 against the Plaintiff for not respecting and adhering to the order of HC made on 27.4.2016. To iterate, the order was for Seema building to be demolished. Defendants had waited for compliance of the said order by Plaintiff but to no avail. Thus, after a period of three years, committal proceeding was commenced. Nellie was not named anymore in the committal proceeding instituted as she had withdrawn herself from case at the COA. The ex-parte Order was given on 5.9.2019 (Encl. 214) and leave granted for a Committal Order against the Plaintiff.

7.

18.9.2019 Defendants filed the inter-parte application for a Committal Order against the Plaintiff

8.

5.11.2019 The Plaintiff filed a Notice of Application to set aside the ex-parte Order dated 5.9.2019.

9.

9.1.2020 With noble intention not to tarnish the Plaintiff’s image and reputation as Priest of the Buddhist Temple, the Defendants opted not to proceed further with the committal proceeding. They opted to withdraw it. This was done on the same day that OS No. AB-24- NCVC142-08/2019 was heard.

10.

20.2.2020 The Defendants then demolished the Seema building after OS No. AB-24-NCVC142-08/2019 was dismissed. [Note: This act is alleged by the Plaintiff as an act of threat to make him leave Lot 347. He insisted and maintained that Defendants had malicious intent and abused the court process when they chose not to pursue with the committal proceeding against him and henceforth demolished the building at Lot 347. Relief sought by him is for general and special damages.]

11.

23.2.2020 The Plaintiff filed a Notice of Appeal to the COA against the decision on 20.2.2020 to dismiss the OS (Appeal No. A-02(NCvC)(A)-325-02/2020).

12.

28.6.2020 (Suit No. 2) The Plaintiff filed Suit No. 2 at the Taiping High Court against the Defendants for the tort of malicious prosecution and tort of abuse of process for the committal proceedings that was subsequently withdrawn.

13.

10.9.2020 The Defendants in turn filed an application to strike out the writ and statement of claim by the Plaintiff. Consequently, costs on an indemnity basis was sought against Plaintiff, on the basis that claim instituted by him is without legal basis, thus misconceived, frivolous, vexatious and scandalous.

14.

14.6.2021 This court had allowed the application to strike out the writ and statement of claim by Plaintiff with costs to be paid by him to the defendants. Thus, costs on an indemnity basis prayed for was not allowed. Dissatisfied, the plaintiff has appealed to the COA (Appeal No. A- 02(IM)(NCvC)-1201-06/2021).

15.

1.11.2021 The COA dismissed the Plaintiff’s appeal on the OS with costs after hearing it and affirmed the Order dated 20.2.2020.

16.

29.11.2021 A Notice of Motion was filed by the Plaintiff to the Federal Court (FC) for leave to appeal against the COA’s decision (No. 08(i)-634-11/2021(W)).

17.

25.4.2022 The COA hearing the appeal against the Order striking out the Plaintiff’s Writ of Summons and Statement of Claim allowed the appeal with costs and ordered the case to be reinstated and to proceed to full trial.

18.

27.4.2022 The FC dismissed the Plaintiff’s application for leave to appeal with costs against the COA’s decision.

19.

27.5.2022 The Plaintiff filed a Notice of Motion for review under rule 137 of the Rules of the Federal Court 1995 (No. 08(R-7-05/2022(A)).

20.

20.9.2022 The FC dismissed with costs the Notice of Motion for review of the previous FC’s decision. SUIT NO. 2 [11] The Plaintiff’s pleaded causes of action were for the tort of malicious prosecution and/or tort of abuse of process. The causes of action arose allegedly when the Defendants filed the committal proceeding against him 5 for failure to comply with the Order within 100 days thereof, in an act of threat to make him leave Lot 347. Then the Defendants had malicious intent and abused the court process when: i. they brought the committal proceeding 3½ years when the Order stated 100 days for compliance; 10 ii. they were selective in bringing the committal proceeding against the Plaintiff alone when both him and Nellie were ordered to comply with the Order; S/N 0V8Fr2lmw0241vm58nouzA iii. they brought the committal proceeding despite not complying with the respective law to enforce a Committal Order, namely, O. 45 r.5(1) of the Rules of Court 2012 (ROC); iv. withdrawing the committal proceeding after the case had been set for trial before the High Court and no judgment given by 5 the Court; and v. they demolished the Seema without any authority or valid Court order. [12] The Plaintiff sought general and special damages as well as 10 aggravated and exemplary damages, interests, costs and other reliefs for his alleged losses. The Defendants denied any liability and pleaded that the Order dated 27.4.2016 still had to be enforced as it had never been set aside. The structure that was constructed by the Plaintiff was to be demolished within 100 days from the date of the Order. However, this was 15 not done by the Plaintiff despite numerous pleas, requests and demands from the Defendants. The Defendants commenced committal proceedings because of the failure to comply with the Order, which was then withdrawn out of goodwill because they were advised by their own priest, having regard to the high position of the Plaintiff in their community. 20 [13] The Defendants contended that the Plaintiff’s claim must fail as there was no basis in law to mount a claim for malicious prosecution since the criteria to do so simply did not exist in law. It was submitted that the Plaintiff’s averments did not come within the category of “special cases” 25 that malicious prosecution applied to and there was no termination of the committal proceeding in favour of the Plaintiff here on the merits. The committal proceeding was withdrawn by the Defendants before it was even heard and decided by the Court. In regard to the claim that there S/N 0V8Fr2lmw0241vm58nouzA was selective prosecution, the Defendants contended it was not their intention as such simply because Nellie had withdrawn from the appeal. ISSUES TO BE TRIED 5 [14] There were only 2 issues to be tried as listed by the parties in this suit as follows: i. whether there was malicious prosecution and abuse of process by the Defendants against the Plaintiff in bringing the committal proceeding under O.52 r.3 of the ROC in Suit No. 10 1; and ii. whether the Plaintiff was entitled to claim aggravated and exemplary damages for malicious prosecution and abuse of process by the Defendants against him. 15 EVALUATION AND FINDINGS OF THE COURT [15] During the trial, the witnesses for each side were as follows: Plaintiff’s witnesses i. Phrakhru Sangkarat Bau @ Ideng A/L Din Ruang or the 20 Plaintiff (SP1); ii. Ng Sen Sui – an administrator at the Plaintiff’s office (SP2); Defendants’ witnesses i. Talawatte Archaryge Choolathileka a/l T.A. Adris – a Trustee of the TBLR (SD1); 25 ii. Raam Kumar (SD2) – a former solicitor of the Plaintiff in the previous suit and action; and S/N 0V8Fr2lmw0241vm58nouzA iii. Foo Chee Mun – a contractor employed by the Defendants to demolish the Seema (SD3). Finding Of Facts On Liability Issue [16] The facts of the case had been briefly set out earlier in this Grounds of Judgment. The Plaintiff submitted that his claim should be allowed as 5 of right since none of the Defendants named in the suit had came to defend themselves, and one of them i.e the 3rd Defendant (Teoh Swee Sun) had passed away some time back. It was the Plaintiff’s contention that SD1’s evidence was mainly hearsay because he was not the person who brought the committal proceedings and neither did he affirm the 10 affidavit(s) for the committal proceedings. Therefore, the Plaintiff submitted that Teoh Swee Sun (since deceased) or his estate’s administrator would be the best person to explain why they brought the committal proceedings. 15 i. Whether there was malicious prosecution and abuse of process by the Defendants against the Plaintiff in bringing the committal proceeding under O.52 r.3 of the ROC in Suit No. 1 [17] The Plaintiff in response to the application to strike out his case 20 earlier had claimed there were triable issues and surmised that the facts of case cannot be ascertained merely by affidavits, instead it has to be fully ventilated in open court by calling witnesses to testify and be available for cross-examination to test their veracity on the claims. The crux of the Plaintiff’s case was the institution of committal proceeding 25 against him by the Defendants, which was subsequently withdrawn. Therefore, impliedly there was no basis for the Defendants’ action in instituting the committal proceeding against the Plaintiff. Hence, witnesses were called to testify for each side. S/N 0V8Fr2lmw0241vm58nouzA [18] I quote from the Defendants’ written submissions (Encl. 75) at the end of the trial where they plead with the Court to dismiss the Plaintiff’s claims as follows: “39. At the outset, it is submitted that, the Plaintiff herein has failed to prove, let alone plead the ingredients to maintain a claim in malicious prosecution and/or 5 abuse of process, in particular that:-

The Tort of Malicious Prosecution in respect of civil proceedings is only available in limited circumstances / special cases, it does not cover / cannot extend to the Committal Proceedings brought against the

there was no termination of the Committal Proceedings in favour of the Plaintiff herein by virtue that it was not heard on its merits;

the Committal Proceeding was instituted because the Plaintiff himself failed to comply with the High Court Order dated 27.4.2016;

the TBLR Association, its trustees, and/or the Defendants had 15 reasonable and probable cause to institute the Committal Proceedings and/or to withdraw the same;

the Committal Proceedings were not instituted nor withdrawn maliciously or for any other ulterior purpose;

the Committal Proceedings which were brought for a genuine redress, 20 which was to seek compliance with the High Court Order dated 27.4.2016; and

the Plaintiff herein has not suffered any damage.”. [19] The Plaintiff submitted that - 25

the Defendants did not have locus standi in filing the committal proceedings because under s.7 of the Societies Act 1966, every society should comply with s.9(c) of the said Act;

the 1st Defendant was no longer a Secretary at the time of filing of the application for committal proceeding and the 4th 30 Defendant was no longer a Trustee since 2016;

the Defendants had failed to comply with the requirements of O.45 r. 5 of the ROC as the Order was not served to the Plaintiff personally and it was mandatory for the Defendants to serve it upon the Plaintiff before the expiration of the 100 days of the Order;

the Defendants were being selective in prosecuting the Plaintiff when Nellie must also comply with the Order;

committal proceeding with an intention to evict the Plaintiff from the temple grounds;

reasons for the withdrawal of the committal proceeding was 10 grossly unacceptable, unreasonable, irrational and an afterthought;

the Defendants had a self-help remedy but still wanted to proceed to commit the Plaintiff to prison;

the committal proceeding was initiated without reasonable and 15 probable cause; and

adverse inference under s.114(g) should be invoked by the Court for failure of the Defendants to call material witness namely the 4 persons named in the suit but instead only called SD1 who was not a party in the previous suit. 20 [20] The issues raised by the Plaintiff will be dealt with as necessary later, accordingly. But first, it is trite law that the buden of proof lies on the plaintiff to prove his claims against a defendant on a balance of 25 probabilities. The Defendants submitted that the tort of malicious prosecution is not generally available in respect of civil proceedings save for special cases of legal processes such as the bringing of a malicious bankruptcy or winding up proceedings and relied on the Court of Appeal S/N 0V8Fr2lmw0241vm58nouzA case of Vivaganth A/L Santharasilan v Public Bank Bhd [2019] 3 MLJ 691 where it was held: “TORT OF MALICIOUS PROSECUTION [12] The tort of malicious prosecution is a common law wrong. It strikes at the balance between two countervailing interests of social importance: 5 safeguarding the individual from being harassed by unjustified litigation and encouraging citizens to aid in law enforcement. On the one hand, it is the right of every person to put the law in motion if he does it with the honest intention of protecting his own or the public interest. Conversely, if legal proceedings are initiated against an individual for a collateral purpose or without any proper 10 basis or foundation for believing that they will ultimately succeed, that individual may suffer great injury during the course of the proceedings. That individual who is aggrieved by legal proceedings improperly instituted against him may sue for damages for the tort of malicious prosecution. 15 [13] Under English law, the tort of malicious prosecution is limited to malicious institution of criminal prosecutions and is not generally available in civil proceedings. It has, however, been extended to civil claims which constitute special cases of legal process such as the malicious prosecution of a petition in bankruptcy or the malicious 20 presentation of a winding up petition (as observed by Lord Steyn in Gregory v Portsmouth City Council [2000] 1 All ER 560 (HL); see also KHK Advertising Sdn Bhd v Siera Management Sdn Bhd (in liquidation) [2018] 4 MLJ 168; [2018] 3 AMR 285 (CA) at para [52])….”. [Emphasis added] 25 [21] The Defendants also relied on the High Court case of Ong Yew Teik v Kamal Y.P Tan & Ors [2022] 1 LNS 1328 where it was also held that: “[47] This can also be seen in the Privy Council's analysis of malicious prosecution in Crawford Adjusters and another v. Sagicor General Insurance 30 (Cayman) Ltd [2013] UKPC 17. I refer to the judgment of Lord Wilson: - "The result of the effective prohibition by the comments in the Quartz Hill case of any general development in England and Wales of a tort of malicious prosecution of civil proceedings has been to confine the tort to a few disparate situations, linked only by the occurrence of prejudice to 35 the victim at or close to the outset of the proceedings. They include:

a petition for bankruptcy: Johnson v. Emerson [1871] LR 6 Ex 329;

a petition for winding-up: the Quartz Hill case itself; 40

a writ to arrest and detain a judgment debtor who had in effect already paid the debt: Gilding v. Eyre [1861] 10 CB (NS) 592, 142 ER 584;

the procurement of a bench warrant to arrest and produce a person for failure to respond to a witness summons which had not 5 been served on him: Roy v. Prior [1971] AC 470;

a writ to arrest a ship in the course of a dispute about a contract for its sale: The Walter D Wallet [1893] P 202;

a writ to arrest an aircraft in the course of a dispute about an alleged lease of it: Transpac Express Ltd v. Malaysian Airlines 10 [2005] 3 NZLR 709;

an order for the attachment of the claimant's assets in advance of an arbitration: The Nicholas M [2008] EWHC 1615 (Comm), [2009] 1 All ER (Comm) 479; and

a search warrant: Gibbs v. Rea [1998] AC 786." 15 [48] Therefore, arguably the position in England and Wales is similar to Malaysia. The tort of malicious prosecution is limited to claims that arise in proceedings that question the financial credit of a litigant such as that arising in bankruptcy and winding-up claims.”. 20 [Emphasis added] [22] In the circumstances, the Defendants submitted that committal proceedings do not fall within the “special cases” for which the tort of malicious of prosecution is available in respect of civil proceedings, being 25 bankruptcy or winding up proceedings. Accordingly, the Plaintiff cannot substantiate nor establish any cause of action for the tort against the Defendants. Nevertheless, should this Court hold that the Plaintiff is entitled to found his action against Defendants in respect of the tort of malicious prosecution, the Defendants submit that the Plaintiff has also 30 failed to discharge the burden of proof required of him as stated in Semesta Insurance Underwriting Agency Sdn Bhd v Koperasi Insurance (M) Bhd and another suit [2011] 3 MLJ 379, where the Court held the following which must be established when bringing a case for malicious prosecution: 35 S/N 0V8Fr2lmw0241vm58nouzA [52] The elements that need to be proven by a plaintiff in an action for malicious prosecution are set out in 45 Halsbury's Laws of England, (4th Ed), para 490 which states as follows: 5 In civil proceeding which result in damage to reputation, person or property a claim analogous to the claim for malicious prosecution may lie if those proceedings are undertaken maliciously and without reasonable and probable cause. Only in exceptional circumstances wills such a claim succeed, because generally no 10 damage can be proved. [53] With respect to malicious institution of winding up proceedings, para 493 (of the same book) provides that: A claim may be brought in respect of injury to reputation caused by maliciously and without reasonable and probable cause 15 commencing bankruptcy proceedings against an individual or winding up proceedings against the company provided that the proceedings terminated favourably to the claimant. [54] To be actionable as a tort the action taken by the defendant must 20 have been without reasonable and probable cause, must have been instituted or carried on maliciously and have been terminated in the plaintiff's favour. The plaintiff must also prove damage (see Halsbury's Laws of England, Vol 45, (4th Ed), para 1340; Vijendran a/l Ponniah v Bank of Commerce [1998] 7 MLJ 418; [1999] 5 CLJ 69; Lim Chee Kuo v The 25 Pacific Bank Bhd [1997] MLJU 472; [1999] 1 CLJ 270). [55] Hence, in the present case, Semesta must prove the following ingredients in order to establish its claim for malicious prosecution on MCIS:

the session court action and the winding up proceedings against 30 Semesta has commenced and terminated in favour of Semesta;

there is malice on part of MCIS in instituting those action/proceedings;

there is an absence of reasonable and probable cause; and

Semesta as the plaintiff must have suffered damage.”. 35 [Emphasis added] [23] The Defendants went on to submit on the case of KHK Advertising Sdn Bhd v Siera Management Sdn Bhd (in liquidation) [2018] 4 MLJ 40 168, where the Court of Appeal held that-S/N 0V8Fr2lmw0241vm58nouzA “[48] A similar view was held by Richard Malanjum J (as he then was) in the earlier case of Chao Yan San v Yuen Ten Soo [2000] MLJU 260; [2000] 3 AMR 3057, where he held that in order to succeed in an action for malicious prosecution each ingredient must be proved and ‘not by inference of the others or any of them upon proof of one ingredient’. His Lordship relied 5 on Thompson LP’s pronouncement in Rawther v Abdul Kareem [1966] 2 MLJ 201 where the latter enunciated that in an action for malicious persecution ‘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 10 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. And for historical reasons (the action was originally in case) he must prove damage’. 15 [Emphasis added] [24] The Plaintiff too submitted on the case of Ong Yew Teik (supra) and urged the Court that the list of special cases there was not exhaustive. 20 The Court was told that it could make a reasonable and detailed considearation in determining whether this matter should be deemed a special case. Otherwise, it was submitted that it could pave the way for arbitrary committal proceedings filings seeking imprisonment, particularly when such actions are undertaken with the sole intention of intimidating 25 individuals, as was alleged in the Plaintiff’s case. [25] The answer to this question is found in the case of Vivaganth A/L Santharasilan (supra) where the Court stated at the end of paragraph 13 that- 30 “[13] … Indeed, it has also been opined in Bullen & Leake & Jacob’s Precedents of Pleadings (14th Ed, Vol 1) at para 2-06 that an action may lie for the abuse of ordinary civil process in respect of a tort of maliciously instituting civil proceedings. In most respects, the matters which must be proved and pleaded are fundamentally the same except that the proceedings do not need 35 to have been determined in the claimant’s favour.”. S/N 0V8Fr2lmw0241vm58nouzA [26] The UK Supreme Court decided in Willers v Joyce [2018] AC 779 that malicious prosecution extends to civil cases. I also refer to the Australian case of A v New South Wales [2007] HCA 10 per Gleeson CJ where the position is the same and Hassan Bin Marsom & 6 Ors v Mohd Hady bin Ya’akop [2018] 5 AMR 1 where in the latter case, Jeffrey Tan 5 FCJ stated that the requirements of the tort of malicious prosecution are: 10 and 15 [27] Therefore, has the Plaintiff successfully discharged the burden of proof required of him as stated in the Semesta Insurance Case (supra)? 20 [28] From the documents i.e. court records filed in CBOD1 and CBOD2, it was confirmed that the committal proceeding was filed against the Plaintiff on 22.7.2019 and the inter-parte application on 18.9.2019 due to the Plaintiff’s deliberate non-compliance with the High Court Order dated 25 27.4.2016. This was done following a final notice to comply with the Order which was sent to the Plaintiff vide the Final Notice dated 4.7.2019 by the Defendants’ solicitors (refer to page 328 of CBOD-2). Nevertheless, it was an undisputed fact that the committal proceeding was abandoned on 9.1.2020 after the Defendants decided not to proceed with it upon advice 30 of their own priest. The Defendants did not want to see the Plaintiff being jailed. I refer to the Questions & Answers in PSD1 below: S/N 0V8Fr2lmw0241vm58nouzA Q22: Why were the committal proceedings against the Plaintiff later withdrawn? On 09.01.2020, the Association/trustees of the Association withdrew Committal Proceedings against the Plaintiff with no order as to costs, on the premise that as fellow Buddhist devotees, they did not want to 5 subject the Plaintiff, a monk in yellow robes, to prison by way of committal proceedings notwithstanding his failure to comply with the High Court Order dated 27.04.2016. This was not objected to by the Plaintiff’s counsel and no costs were sought by the Plaintiff. In this regard, there was absolutely no malice on the part of the 10 Association/trustees of the Association. Q23: The Plaintiff herein also contends that the committal proceedings were commenced against the Plaintiff to try to force the Plaintiff to leave Lot 15 There is absolutely no truth in this allegation. After the High Court Order dated 27.04.2016 was obtained and the appeal in the Court of Appeal was withdrawn, the Association/trustees of the Association had adopted a conciliatory approach in its dealings with the Plaintiff and Wat Phodhiyaram Thai Buddhist Temple. At no time did we seek the removal 20 of the Plaintiff from Lot 347. All we sought for was for dialogue with the Plaintiff or his representatives. However, our efforts were rejected. We had of course also sought compliance with the High Court Order dated 27.04.2016 as the Plaintiff himself had withdrawn his appeal to the Court of Appeal. This clearly showed that the Plaintiff had recognised the 25 validity of the High Court Order dated 27.04.2016 and was not challenging the same. [29] SD1, one of the 3 Trustees of the Defendants with in-depth knowledge of the history of the disputes between the 2 parties as well as 30 provided the documents to support the Defendants’s case, was cross-examined extensively by the Plaintiff’s counsel. This witness was unwavering and firm in his replies to the questions posed and this Court had no reasons not to accept his answer which was given honestly and truthfully. In my observation of this witness’s replies, I concluded that 35 the Defendants were very frustrated with the Plaintiff and Wat Phodiyaram’s refusal to comply with a valid Court order after more S/N 0V8Fr2lmw0241vm58nouzA than 3 years of trying to obtain their co-operation to demolish the Seema as can be seen in Question & Answer 19 below: Q19: Why did the Defendants file committal proceedings against the Plaintiff? The Plaintiff ignored the Final Notice dated 04.07.2019. Due to the Plaintiff’s deliberate and continuous refusal and neglect to comply with 5 the High Court Order dated 27.04.2016, the Defendants then commenced committal proceedings against the Plaintiffs. The cause papers for the committal proceedings can be found at pages 1 – 229 of the Common Bundle of Documents (Volume 1). The consequences of the Plaintiff’s non-compliance with the High Court Order was that:- 10

The shabby dilapidated building structures and overgrown shrubs in the Seema Area became a hazard to the health and safety of the priests, monks and devotees of Bodi Langka Ram Temple as it became a breeding ground for Aedes mosquitoes 15 and poisonous animals such as snakes. These dilapidated structures had also fallen and there were some that were on the verge of falling endangering the devotees who were praying at the Bodi Tree;

(ii) The Defendants are hampered and impeded from discharging 20 their duties as trustees of the Bodi Langka Ram Temple to protect Lot 347 against trespass and to keep it in good order as embodied in the Perak Government Gazettes and as subsequently pronounced by this Honourable Court;

(iii) The integrity and authority of this Honourable Court has been 25 undermined due to the Plaintiff’s refusal to comply with the High Court Order. [30] In Semesta Insurance Case (supra), it was held that for proceedings to have been terminated in the favour of the plaintiff, the 30 action must have been litigated. Therefore, the withdrawal of proceedings cannot constitute “termination in the plaintiff’s favour”. The following passage in Semesta Insurance Case (supra) is of relevance here: “[57] What is clear from the undisputed facts above are as follows: 35 (a The merits of the sessions court action was never adjudicated upon as it never went to full trial. … S/N 0V8Fr2lmw0241vm58nouzA [58] The essential determination in the cause of action for malicious prosecution in the present situation is whether the sessions court action and winding up proceeding had terminated in favour of Semesta? If there is any termination in favour of Semesta (as the plaintiff) the action/proceeding must have been litigated. 5 [59] In the present case, the court finds that (based on the undisputed evidence) there has been no determination of either the sessions court action or the winding up proceeding. Both the sessions court action and the winding up proceeding were not litigated at all. Thus their termination 10 by the court cannot be relied upon by Semesta to support its claim for malicious prosecution. Semesta has failed to satisfy this court of the first element to succeed in an action for malicious prosecution.”. [Emphasis added] 15 [31] Having decided that the Plaintiff may found his cause of action in the filing of the committal proceeding against him, nevertheless, the Plaintiff has not proved that the committal proceeding was terminated in his favour after it had been fully litigated before the Court. Therefore, I agreed with the Defendants’ submission that on this 20 ground alone, his claim would fail. But I will go on to consider the other 3 “things” as stated in the KHK Advertising Case (supra). [32] The test for malice and what amounted to lack of reasonable and 25 probable cause was explained in the case of Cheow Tong Chai & Anor v Tan Boon Lieu & Ors [2010] 3 MLJ 91, where it was held that: “[20] What amounts to malice was explained in the Court of Appeal case of Anne Lim Keng See v The New Straits Times Press (M) Bhd & Anor [2008] 3 MLJ 492 as follows: 30 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 35 actual malice, express malice, or malice in fact. In law an act is malicious if done intentionally without just cause or excuse. So S/N 0V8Fr2lmw0241vm58nouzA 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 5

On 15.08.2019, the Plaintiff filed the Setting Aside Application whereby, the Plaintiff had exhibited the sealed High Court Order dated 27.4.2016 in the Originating Summons dated 15.8.2019 and his Affidavit in Support. The Plaintiff could not have done so if the sealed High Court Order dated 27.4.2016 was not 15 served on him. The Plaintiff here clearly had knowledge and also had possession of the High Court Order; [refer to Exhibit A of the Originating Summons dated 15.8.2019 at pages 345 – 351, CBOD2 and paragraph 4 of Affidavit in Support of Setting Aside Application at pages 353 – 354, CBOD2] 20

(ii) The Plaintiff’s solicitors at the time, Messrs KB Tan, Kumar & Partners, had also been served the sealed High Court Order dated 27.4.2016 which was subsequently served on the Plaintiff himself. 25 In the cross-Examination of SD2 at page 306 of NOP: MM: That you did not serve this onto the Plaintiff. I did serve. There’s no reason for me not to do so. If not, the appeal would not have – 30 In re-examination of SD2 at pages 309 – 310 of NOP: S/N 0V8Fr2lmw0241vm58nouzA No. Because I was sure it was, the order was served on me. ADS: Ok. And you have in your record the sealed judgment also? Yes, I have. ADS: Ok. And in your normal practice, Mr Raam, after receiving a sealed judgment such as this, in regards to your client, Phrakhru Sangkarat 5 Bau, what would you have done? I would have served on them. ADS: That is on the Plaintiff, the Plaintiff here? Yes. If not, I would not have been given the order to appeal. ADS: Ok. 10 JUDGE: “I would not have”? Been given the instruction to appeal to the Court of Appeal, My Lady.

(iii) By reason of the Plaintiff’s solicitors having been served with the High Court Order dated 27.4.2016, the Plaintiff is deemed to have been duly served 15 with the same as was held in the following cases: - Plastech Industrial Systems Sdn Bhd v N& C Resources Sdn Bhd & Ors [2013] 10 MLJ 837 at page 151, Tab 7, DBOA, where it was held that:- “[8] The third defendant had constructive knowledge and notice of the 20 terms of the judgment dated 6 October 2011 and order dated 25 November 2011 notwithstanding that the same were not served on the third defendant personally. … [10] Further, the third defendant at all material times was represented by 25 solicitors and must have been given legal advice on every step of these proceedings. - Daljinder Singh v Amardeep Singh a/l Daljinder Singh [2022] MLJU 2515 at page 159. 30 …

At the Court of Appeal, the Plaintiff had withdrawn his appeal and the Defendants had withdrawn their cross-appeal. Parties had done so in an agreement to make peace and settle matters between them amicably. The fact that the Plaintiff here had appealed against the High Court Order 27.4.2016, 35 clearly shows that the Plaintiff had knowledge of the Order. Having withdrawn his appeal, the Plaintiff was made aware by SD2 that the High Court Order dated 24.7.2016 would stand:- S/N 0V8Fr2lmw0241vm58nouzA Examination in Chief of SD2 at page 294 of NOP: ADS: On the 19/03/2018, when the appeal of the Plaintiff was withdrawn, was it made clear to them that the, which means that the High Court order of 27/04/2016 would stand? Yes. 5 … Cross Examination of SP2 at pages 146 & 148 of NOP: ADS: Ok. Di sana ada dinyatakan tolong, I bring your attention once more to Prayer C, High Court order dated 27th April dan telah dinyatakan apakah perintah tersebut dan telah dinyatakan banyak kali surat dihantar untuk 10 mendapatkan kerjasama daripada Wat Phodhiyaram untuk atau Plaintif untuk merobohkan struktur yang dibina di sana mengikut perintah. Betul? Betul. ADS: Tapi masih tidak mengambil, Plaintif ataupun Wat Phodhiyaram tidak 15 mengambil apa-apa tindakan untuk merobohkan structure yang telah dibina. Betul? Betul. .... ADS: Surat ini. So, jadi, Cik Ng boleh mengesahkan di antara bulan Oktober 20 2018 sehingga Julai 2019, iaitu tempoh lebih kurang 10 bulan, Wat Phodhiyaram tidak menghantar apaapa surat kepada pihak Defendan-Defendan di sini untuk menyatakan bahawa kita boleh memulakan dialog. Betul? Memang betul.

The Plaintiff, instead of complying with the High Court Order dated 27.4.2016, takes the position that, he could not “accept” the High Court Order dated 27.4.2016:- Cross Examination of the Plaintiff at pages 42 & 73 of NOP: 30 JUDGE:Soalan dia salah satu perintah ni, Defendan-Defendan tak boleh menebang pokok ni. Dia tau tak? TRANSL: Ok. JUDGE: Ya. SP1: Saya tidak dengar perintah ini. Saya tidak dapat mendengar perintah ini. 35 JUDGE: Saya tidak dapat mendengar? SP1: Saya, saya tidak dapat mendengar perintah ini. ADS: Ok. Kalau dia faham mengenai perintah Mahkamah Tinggi, kenapa dia tidak mematuhi perintah tersebut dengan merobohkan bangunan yang telah dibina di atas tapak Bangunan Seema yang 40 lama dalam masa 100 hari selepas perintah? SP1: Saya difahamkan sejak asal lagi binaan di atas tanah berkenaan, sejak asal lagi, itulah yang menyebabkan saya tidak dapat terima, S/N 0V8Fr2lmw0241vm58nouzA kami telah bersatu hati untuk mengutip dana untuk membuat binaan dalam persatuan kami untuk membina Wat berkenaan. JUDGE: Kutip dana, laju sangat. Kami telah bersatu hati untuk mengutip dana? SP1: Untuk mengutip dana untuk membuat tokong berkenaan. Kerana telah lama ia berada di dalam tanah berkenaan. Itulah yang menyebabkan 5 saya tidak dapat terima keputusan yang dibuat oleh pihak. ADS: Oh, tidak dapat terima keputusan, ok. …

In respect of SP2, she goes one step further to allege that SD2, the solicitor for the Plaintiff for his appeal against the High Court Order dated 10 27.4.2016 at the Court of Appeal, had somehow unilaterally decided to withdraw the Plaintiff’s appeal. Allegedly, the Plaintiff and SP2 was not agreeable to this and unaware of the same:- Cross-Examination of SP2 at pages 126, 127 & 128 of NOP 15 ADS: Dan hasil daripada perbincangan tersebut adalah bahawa rayuan Plaintif akan ditarik balik pada hari tersebut. Betul? Itu keputusan lawyer, bukan keputusan kami. ADS: Cik Ng, tiada lawyer boleh mengambil tindakan secara sendiri. Dia mesti mengambil arahan daripada anak guam dia. 20 .... ADS: Saya memberitahu Cik Ng siapa-siapa peguam tidak boleh mengambil arahan, tidak boleh berbuat apa-apa dia suka. Dia hanya boleh menerima, ambil arahan daripada anak guam beliau. Ok. Ini adalah kenyataan. So, saya cadangkan bahawa peguam Plaintif setelah 25 berbincang dengan Plaintif dan orang daripada tokong Siam Wat Phodhiyaram pada hari tersebut telah menerima arahan dan telah bersetuju untuk menarik balik rayuan tersebut. Betul? Itu keputusan lawyer. Bukan keputusan kami. Kami bukan lawyer. Saya 30 minta maaf, Tuan Arif. Saya ingin menjelaskan kedudukan sebenar. .... ADS: Tetapi semasa lawyer... so adakah kenyataan Cik Ng di Mahkamah pada hari ini bahawa Plaintif tidak bersetuju untuk menarik balik rayuan tersebut? Betul. Kami tidak setuju. 35 ADS: Dan bila lawyer Cik Ng, bukan Cik Ng. Sorry. Peguam bagi pihak Plaintif di sini berdiri dan menyatakan bahawa pihak-pihak telah bersetuju untuk menarik balik rayuan, adakah sesiapa telah protes dan cakap ini tidak benar? Adakah Cik Ng atau sesiapa lain daripada pihak tokong Siam yang berdiri bercakap ini tidak benar, kami tidak setuju? 40 Kami serahkan kepada lawyer untuk membuat keputusan. Jadi, kami tidak tahu apa keputusan lawyer.

It is clear that that the Plaintiff continuously, deliberately and wilfully refused to comply with the High Court Order dated 27.4.2016 simply because the Plaintiff did not “accept” and recognise the High Court Order dated 27.4.2016. 5 … Cross-Examination of the Plaintiff at page 53 of NOP: ADS: Ya. Ok, ini saya cadangkanlah kepada saksi bahawa berdasarkan fakta bahawa rayuan di Mahkamah Rayuan telah ditarik balik secara persetujuan dengan persetujuan saksi sebagai Perayu Ke-2, ini 10 bermakna saksi sedar bahawa perintah Mahkamah Tinggi di muka surat 276 sehingga 280 adalah berkesan dan terpakai. IDENG Masih saya ingat pada tahun 2018 itu, ya. ADS: So, saksi tahulah bahawa perintah Mahkamah Tinggi adalah masih berkesan, betul? 15 SP1: Masih berkesan, ya.”. [35] Based on the evidence elicited from the Plaintiff’s witnesses above, the Court found that on 19.3.2018, when the appeal of the Plaintiff was 20 withdrawn, but in November 2018 the Plaintiff still requested for a copy of the Court Order dated 27.4.2016, this was an attempt to delay compliance with the said Order. There was an issue earlier raised that the Plaintiff was not well-versed with the national language and English. But I found that it was not probable that the Plaintiff did not understand Malay at all, from 25 my observation of this witness when he gave evidence as he sat next to the Thai interpreter. From the evidence above, I did not think he meant that he “could not hear” when he replied “Saya tidak mendengar Perintah ini”. Actually, he was telling the Court that he did not comply with the Order because “Saya difahamkan sejak asal lagi binaan di atas tanah 30 berkenaan, sejak asal lagi, itulah yang menyebabkan saya tidak dapat terima, kami telah bersatu hati untuk mengutip dana untuk membuat binaan dalam persatuan kami untuk membina Wat berkenaan.”. Hence, this was deliberate refusal to recognise the Court Order dated 27.4.2016 S/N 0V8Fr2lmw0241vm58nouzA and purposely they did not comply with it due to their own obstinacy. They were basically “in denial” of the decisions of the Superior Courts of the country. [36] I also noted the demeanour of SP2, as she testified before me. It 5 was as clear as day that this witness, despite being a Malaysian and understanding the proceedings, did not have regard for the High Court Order dated 27.4.2016 or any orders of the Superior Courts for that matter. Her answers were given in arrogance and seemingly implied that the justices of the Superior Courts did not make the “right decision” simply 10 because it was not in their favour. She was also evasive in her answers that despite having their solicitor on board to advise them about the legal proceedings during the appeal, and giving him (SD2) instructions “Kami serahkan kepada lawyer untuk membuat keputusan. Jadi, kami tidak tahu apa keputusan lawyer.” and “Betul. Kami tidak setuju [untuk menarik balik 15 rayuan].”. SD2 in response to this, told the Court that “I will say it’s not true”. Being an officer of the Court and I could see this witness was only wanting to assist the Court in arriving at the truth, did not divulge any more than was necessary and at the same time he did not go against the lawyer-client privilege because he said he only advised his clients what the Court 20 of Appeal judges had conveyed to the counsels on that day. The parties were advised to sit and talk about resolving the matter amicably. [37] I would say further, with due respect, that the Plaintiff and SP2 were being stubborn and uncooperative with the TBLR Association as the 25 trustees of Lot 347 despite the valid and binding Court Order as can be seen in the following excerpts from the Notes of Proceedings: “ADS: Tak apa. Saya... ok. So, berdasarkan jawapan tadi, so Cik Ng menyatakan bahawa Cik Ng dan orang lain di Tokong Siam Wat 30 S/N 0V8Fr2lmw0241vm58nouzA Phodhiyaram tidak recognise, tidak mengiktiraf, tidak menerima bahawa

Plaintif-Plaintif... saya rujuk kepada 276 ya. Rujuk kepada muka surat Plaintif-Plaintif di sana iaitu Persatuan Buddhist Taiping Bodi Langka Ram dan trustee-trustee Bodi Langka Ram sebagai orang yang dilantik sebagai trustee di bawah gazet. Itulah, itu yang dinyatakan. 5 Betul? You don’t recognise. You don’t recognise them. They are not the trustees under the gazette. Betul? Betul. Kita tak recognise lah. … 10 ADS: “For this reasons it is the Court’s finding that the Plaintiff are the designated trustees and successors in title of the Bodi Langka Ram Temple pursuant to the gazette and that the Seema on the land that has been demolished was the Bodi Langka Ram Temple referred to in the gazette.” And then we go on muka surat 45. “In light of this Court’s finding 15 that the Plaintiffs are the designated trustees of the land pursuant to the gazette, it follows that they have a say on what to is to be done on the land. The Defendant certainly has no right to dictate or determine of what cannot be build on the land. As trustees they are entrusted to keep the land free from trespass and in good order as stated in the gazette.” So, 20 boleh nampak? So, hakim Mahkamah Tinggi telah pun membuat keputusan bahawa Plaintif-Plaintif di sana adalah trustees seperti yang dinyatakan dalam gazet. So, betul? Itu Mahkamah, pemahaman Mahkamah. Tetapi pemahaman kami, kami tidak setuju. 25 ADS: So, apa yang dinyatakan oleh Cik Ng pemahaman Mahkamah adalah salah? Itu saya tidak pasti sebab saya bukan Defendan. … 30 ADS: Ya. Satu deklarasi diperintahkan Buddhist Taiping Bodi Langka Ram, Plaintif Ke-2, Ke-3, Ke-4 adalah trustee-trustee dan pengganti pejabat kepada Tokong Bodi Langka Ram menurut notis gazet kerajaan 1899 di bawah Seksyen 6 Enakmen Tanah 1897 dan notis gazet kerajaan tahun 1903, No.668 di bawah Seksyen 8 Enakmen Tanah 1903. So, 35 berdasarkan ini, Mahkamah mendapati bahawa persatuan dan trustee trustee persatuan tersebut adalah trustee-trustee yang dinyatakan dalam gazet. Betul? Ini menurut Mahkamah. Ok? Tapi menurut pemahaman kami, ini adalah tidak betul. 40 ADS: Ok, alright. So, berdasarkan pada pefahaman Cik Ng bahawa perintah tersebut tidak betul, adakah itu alasan kenapa Wat Phodhiyaram tidak mahu mengikut perintah tersebut? S/N 0V8Fr2lmw0241vm58nouzA NG Bukan sebab itu. Sebabnya perintah Mahkamah tersebut tidak diserah secara kendiri kepada Plaintif dan tidak ada apa, kami tidak dapat melihat perintah yang ada seal. Cuma lihat dokumen Mahkamah sahaja dalam rekod rayuan. Itu kami tidak boleh terima pakai. 5 … ADS: Ok. So, tadi Cik Ng telah jelaskan, maaf saya. Maaf saya, Yang Arif, I'm also going too fast. Tadi Cik Ng telah nyatakan ada nampak dokumen-dokumen tersebut dalam rekod rayuan. So, perintah ini pun ada dalam, Perintah 276 sehingga 280 ada dalam rekod rayuan. Betul? Tadi Cik Ng 10 telah mengesahkan. Betul? Ya, memang ada dalam rekod rayuan. ADS: Ok. So, Plaintif dan Cik Ng dan semua orang dari Wat Phodhiyaram tahu mengenai perintah ini. Betul? Betul. 15 … ADS: Ok. Sebelum saya habiskan dengan Soalan 10, perenggan Ke-2, lihat perenggan Ke-2. Soalan 10, “Namun begitu, sekiranya benar terdapat lantikan Defendan-Defendan seperti sebegitu, lantikan tersebut tidak 20 sah di sisi undang-undang, batal dan tiada efek atas sebab Wat Phodhiyaram adalah sebuah charitable trust.” Cik Ng, Cik Ng tidak tahu makna charitable trust di sisi undang-undang. Betul? Saya maksudkan saya tidak belajar undang-undang, tidak bermaksud yang saya langsung tidak tahu undang-undang apa-apa. 25 ADS: Ok, tak apa. Tolong jelaskan pada Mahkamah ini apakah erti charitable trust dalam undang-undang.

A judgment or order of the Court takes effect from the day of its date.

Such a judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the Court orders it to 20 be dated as of some other earlier or later day, in which case it shall be dated as of that other day. [39] The Defendants submitted that the Plaintiff’s conduct of not obeying the Court Order was in fact a contempt of court, justifying a committal 25 proceeding pursuant to O.45 r 5(1) ROC. That again amounted to a reasonable and probable cause for the Defendants to have instituted the committal proceeding against the Plaintiff. However, the committal proceeding was withdrawn, thus occasioning no damage or injury to the Plaintiff. On this note, the Court agreed with the Defendants’ submissions 30 that the non-compliance with the Order dated 27.4.2016 was a contempt of court, justifying a committal proceeding pursuant to O.52 r.3. The Plaintiff submitted it was not valid as the Order was not served upon the Plaintiff personally. S/N 0V8Fr2lmw0241vm58nouzA [40] This Court accepted the evidence of SD2 that his firm had been discharged from representing the Plaintiff as could be seen in the letter dated 15.5.2018 (page 317 of CBOD2). His firm represented the Plaintiff only at the Court of Appeal and which the appeal was withdrawn on 19.3.2018. According to SD2, the sealed Order was served upon his firm 5 by the Plaintiffs’ previous solicitors, Messrs. Peggy Ang & Co. SD2 acted upon the Order and filed an appeal against the Order dated 27.4.2016 and that he would not have acted against his clients’ instructions. Therefore, the Court may presume under s.114(e) of the Evidence Act 1950 that judicial and official acts have been regularly performed since the Notice of 10 Appeal was filed in respect of the Order. There was no issue arising that SD-2 may have breached s.126 of the Evidence Act 1950. [41] In the case of Syarikat Perumahan Pegawai Kerajaan Sdn Bhd v Sri Makmur Sdn Bhd [1998] 5 MLJ 756, the court stated: 15 “…once a defendant is represented by a firm of solicitors who have filed a memorandum of appearance with the court and had served a copy of the same on the plaintiff’s solicitors, it must stand that until the said solicitors discharge themselves or are themselves discharged by their client and such notice being 20 given to the plaintiff, the firm of solicitors shall continue to remain as having conduct of the case. When a defendant company breaches an order and is in contempt, it can only meet a charge of contempt through its directors. In such circumstances, the plaintiff, like in this case, will be hard put to trace the whereabouts of the directors to effect personal service. It is no doubt with this 25 in mind that the (then) Supreme Court has approved service of the order, which would form the basis for an order of committal, upon the solicitors. I am bound by this decision and therefore accept the service on the firm of solicitors in this case as proper service.”. 30

The Plaintiff must prove the damage [42] This fifth “thing” is the same as the second issue to be tried i.e. whether the Plaintiff was entitled to claim aggravated and exemplary S/N 0V8Fr2lmw0241vm58nouzA damages for malicious prosecution and abuse of process by the Defendants against him? SD1 in his evidence stated: Q25: The Plaintiff herein has claimed damages for damage to his reputation and various other things. What is your response to this? The Plaintiff has not suffered any damage and/or any harm in any 5 manner or form. If anything, the Plaintiff was saved from harm to his reputation by the withdrawal of the Committal Proceedings. The Plaintiff’s claim for damages is wholly misplaced and baseless. Eventually, it was us, the Association/trustees of the Association, who paid for the cost of more than RM20,000 for the removal and complete 10 clearance of the dilapidated structures, which was supposed to be borne by the Plaintiff. [43] The Defendants submitted that the Plaintiff had not shown any damages that he suffered due to the alleged acts of the Defendants 15 although the Plaintiff contended that his standing in the Buddhist community had been shaken and he had been embarrassed by the whole episode, he had lost the respect of the community, and loss of reputation given that he was the Chief Priest. He also claimed that by the malicious actions of the Defendants, he was entitled to aggravated and exemplary 20 damages. However, refer to the excerpt below: Cross Examination of SP2 at pages 148 – 149 of NOP ADS: Tidak ada. So, tidak ada apa-apa dokumen di Mahkamah ini untuk menyatakan bahawa Defendan-Defendan di sini telah bertindak untuk halau atau menakutkan Plaintif dalam kes ini. Betul? 25 Betul – ADS: Tiada apa-apa dokumen. Betul. 70. [44] It was submitted that there was absolutely no evidence that the 30 Defendants wanted to “chase” the Plaintiff out of the temple. In fact, the S/N 0V8Fr2lmw0241vm58nouzA evidence pointed the other way. The Defendants had sent a letter dated 1.4.2018 seeking dialogue “to discuss the way forward as to how both temples can co-exist harmoniously without further conflict”. There was no response by the Plaintiff or representatives from the Wat Phodhiyaram. Accordingly, there was simply no abuse of process or collateral purpose 5 in the filing of the committal proceedings. Neither was there selective prosecution against the Plaintiff alone (because Nellie had withdrawn from the appeal on 19.3.2018). [45] After hearing the testimonies and observing their demeanour, 10 particularly the Plaintiff, SP2, SD1 (as the representative of the Defendants) and SD2, these are the Court’s findings:

having withdrawn the appeal in the Court of Appeal on 19.3.2018 (Appeal No. A-02(W)-981-05/2018) against the decision of the learned JC in Suit No. 1, the Order dated 15 27.4.2016 for the Plaintiff to demolish the Seema within 100 days of the High Court Order (and subsequently the Court of Appeal Order) was still valid and enforceable against the

the COA on 1.11.2021 dismissed the Plaintiff’s appeal against 20 the High Court Order dated 20.2.2020 in OS No. AB-24- NCVC142-08/2019 which sought to set aside the Order dated 27.4.2016, and upheld the learned JC’s decision which held the OS lacked legal basis and merit;

the FC on 27.4.2022 dismissed the Plaintiff’s application for 25 leave to appeal with costs against the COA’s decision;

the FC on 20.9.2022 dismissed with costs the Plaintiff’s Notice of Motion for review of the previous FC’s decision;

the Order dated 27.4.2016 and gave the Plaintiff notice to demolish the structure within 100 days as provided for in Prayer (c);

numerous letters from the Defendants and its solicitors to Wat Phodhiyaram / the Plaintiff herein and/or its former solicitors, 5 Messrs KB Tan, Kumar & Partners to demand compliance to the High Court Order dated 27.4.2016, particularly Prayer (c) pertaining to the demolition of the structure built on the area where the old Seema was built. In this regard, I refer to the documents exhibited as follows- 10 i. Letter dated 29.3.2018 at pages 308 – 309 of CBOD-2 ii. Letter dated 1.4.2018 at pages 311 – 312 of CBOD-2; iii. Letter dated 9.4.2018 at pages 313 of CBOD-2 iv. Letter dated 30.4.2018 at pages 314 of CBOD-2 v. Letter dated 18.5.2018 at pages 318 – 319 of CBOD-2 15 vi. Letter dated 31.5.2018 at pages 320 of CBOD-2 vii. Letter dated 9.7.2018 at pages 321 of CBOD-2 viii. Letter dated 20.8.2018 at pages 323 – 324 of CBOD-2 ix Question and Answer 15 at pages 8 – 10 of SD1’s witness statement marked as PSD-1.

the Defendants had not failed to comply with the requirements of O.45 r. 5 of the ROC as the Order was served to the Plaintiff through its solicitors and a Notice of Appeal had in fact been filed against the Order, by SD2’s firm, way before the committal proceeding was initiated in July 2019; 25

the Defendants were not being selective in prosecuting the Plaintiff because Nellie had withdrawn from the appeal on 19.3.2018 and no one had heard from her thereafter;

there was no evidence that the committal proceeding with an intention to evict the Plaintiff from the temple grounds;

the reasons for the withdrawal of the committal proceeding alleged by the Plaintiff to be grossly unacceptable, unreasonable, irrational and an afterthought was not raised by the Plaintiff at the time when it was withdrawn on 9.1.2020 and SD1 stated the withdrawal was not objected to by the 10 Plaintiff’s counsel;

the committal proceeding was initiated with reasonable and probable cause; and

adverse inference under s.114(g) cannot be simply invoked by the Court for failure of the Defendants to call witnesses to 15 testify namely the 4 persons named in the suit because SD1 was a competent witness to testify on their behalf, and there had been no suppression of evidence or a material witness in this trial. 20 [46] Guided by the case laws above, the Court has answered the questions posed on the 5 things that the Plaintiff must successfully prove in a claim of tort of malicious prosecution, based on the evidence adduced: i. he must prove that the Defendants set the criminal law in 25 motion against him – Yes, the committal proceeding was commenced on 22.7.2019; ii. he must prove that the criminal proceedings against him terminated in his favour – No, the committal proceeding S/N 0V8Fr2lmw0241vm58nouzA was withdrawn on 9.1.2020 by the Defendants without being decided on its merits; iii. that the Defendants had no ‘reasonable and probable cause’ for setting the law in motion against him – No, the Defendants had shown ‘reasonable and probable cause’ because of 5 the non-compliance by the Plaintiff with the Order; iv. that the criminal proceeding against the Plaintiff was actuated by malice in the sense that the Defendants had a motive other than only to carry the law into effect – No, the only reason for filing the committal proceeding was to ensure that the 10 Plaintiff would obey the Order; and v. the Plaintiff must prove damage – No, the Plaintiff was not able to prove the damages which he claimed as he could not back the amounts stated in the Statement of Claim with any documents. 15 [47] The Court also agreed with the Defendants’ submissions that the 3 remaining issues raised in the Plaintiff’s submissions were clearly an afterthought because that was not the pleaded case of the Plaintiff. These had been raised very late in the day and not in the pleadings of the parties:

the Defendants did not have locus standi in filing the committal proceedings because under s.7 of the Societies Act 1966, every society should comply with s.9(c) of the said Act;

the 1st Defendant was no longer a Secretary at the time of filing of the application for committal proceeding and the 4th 25 Defendant was no longer a Trustee since 2016;

the Defendants had a self-help remedy but still wanted to proceed to commit the Plaintiff to prison. S/N 0V8Fr2lmw0241vm58nouzA [48] I do not wish to dwell further on this other than to state that parties are bound by their pleadings lest their opponent will be surprised at the trial. It is trite law that it is not the function of the Court to build a case for the plaintiff/defendant inconsistent with the pleaded case: Heritage Grand Vacation Club Bhd v Pacific Fantasy Vacation Sdn Bhd [2016] 5 4 MLJ 389. I agreed with the submissions of the Defendants that it was not open for the Plaintiff to challenge the validity of the High Court Order dated 27.4.2016 in these proceedings. Not only was this not pleaded, but more importantly it would breach the fundamental principle that an Order of Court is deemed valid and enforceable unless set aside: Badiaddin 10 Bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393. [49] The Defendants dealt with the s.9(c) of the Societies Act 1966 in their written reply submissions for completeness, and submitted that the 15 provision does not provide for a situation where a society wishes to bring an action in the event that it does not have a registered public officer. However, this does not mean that, in absence of a registered public officer, that society may not bring any action at all in the Courts. The Federal Court in Malayan Banking Bhd v Chairman of Sarawak 20 Housing Developers' Association [2014] 5 MLJ 169 dealt with the issue of a society bringing an action without a registered public officer where the apex court stated: “[28] The action here was not commenced in the name of the association hence not breaching any rule of the inability of an association to sue in its name. 25 As no public officer was declared and registered, the respondent had initiated a representative action as permitted by O 15 r 12 of the Rules of the High Court 1980 (O 15 r 12 of the Rules of Court 2012). On this point see also the case of S Kulasingam & Anor v Commisioner of Lands, Federal Territory & Ors [1982] 1 MLJ 204; [1982] CLJ (Rep) 314, where Eusoffe Abdoolcader J (as he then 30 was), speaking for the court had opined that a society may sue in the name of S/N 0V8Fr2lmw0241vm58nouzA its public officer but in the absence of a registered public officer, a representative claim by one or more of its office bearers on behalf of the society would suffice. Alluding to the above speech we find that the format of the respondent's action falls safely within it.”. 5 [50] I agreed totally with the Defendants’ submission that there was no need to amend the High Court Order dated 27.4.2016 every time there was a change in the office bearers or the trustees of the TBLR Association. As otherwise, it would make a mockery out of the High Court Order dated 27.4.2016, since, any time that there is a change in the 10 Secretary (office-bearer) and/or trustee of the TBLR Association, the said Order would have to be amended. This is simply wrong in law. It is for this very reason that the law allows for representative actions vide O.15 rule 12 of ROC 2012, as was done in the case of Suit No. 1 which resulted in the High Court Order dated 27.4.2016. Therefore, the case laws submitted 15 by the Plaintiff on this issue could be distinguished on the facts of those cases. [51] I will also very briefly state the requirements of the tort of abuse of process. In the case of Conweld Engineering Sdn Bhd & Ors v Goh 20 Swee Boh @ Goh Cheng Kin & Anor [2022] 6 MLJ 810, the Court of Appeal upheld the principles propounded in Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin bin Ungku Mohamed [1998] 2 MLJ 425 which stated - “[44] Based on MBSB, the essential elements for the tort of abuse of process 25 are:

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 30 other words, the dominant purpose for which the process was S/N 0V8Fr2lmw0241vm58nouzA 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.” 5 [52] The ingredients of the tort of abuse of process overlapped with the tort of malicious prosecution. It is therefore unneccesary for the Court elaborate on this issue as the cause of action was already identified to be a tort of malicious prosecution. Regardless, the Court had found on the 10 overall evidence, that the Plaintiff had failed to prove his claim of malicious prosecution or abuse of process on a balance of probabilities and therefore, the Plaintiff’s claims are dismissed. Nevertheless, I will very briefly address the isssue of damages at this last part of the Grounds of Judgment. 15 General Damages [53] The Plaintiff sought RM1,000,000.00 in general damages. It was submitted that the damages need not be proved in a case of malicious 20 prosecution: Tetuan Bee Ling & Co. v Vijendran Ponniah [2010] 6 CLJ

There are no general damages awarded as the Plaintiff had not proved his case of a balance of probabilities. But the general principle is that damages for the tort of malicious prosecution is akin to those relevant for defamation cases and may include damages for injury to reputation: 25 Street on Torts, 16th Edition, Oxford university Press. Special damages [54] It is trite law that special damages must be proved: Sam Wun 30 Hoong v. Kader Ibramshah [1981] 1 MLJ 295. The Plaintiff had pleaded S/N 0V8Fr2lmw0241vm58nouzA for special damages for the total costs of RM555,000.00 that he had incurred, namely RM500,000.00 for the demolition of the Seema, RM5,000 for disbursements and RM50,000.00 for legal fees. The Plaintiff had not proved how he arrived at the figure and these were not supported by any documents, particularly the amount of RM500,000.00. In fact, the 5 Defendants brought down the dilapidated structure at a cost of RM20,000.00 only as stated by SD3. Aggravated / Exemplary damages 10 [55] From the facts, it was submitted that the Defendants had the bad intention against the Plaintiff to scare him and move out from Lot 347. The Court accepted the Defendants’ explanation given by SD1 and did not find there was any malicious intent in this regard on the part of the Defendants. Hence, aggravated and /or exemplary damages was not justified to be 15 awarded in the present case. CONCLUSION [56] Pursuant to the above considerations, the Court found that the 20 Plaintiff had failed to prove his claims on a balance of probabilities and dismissed it with costs. Dated 4 August 2024 25 Sgd. NOOR RUWENA BINTI MD. NURDIN 30 Judicial Commissioner High Court of Malaya, Taiping S/N 0V8Fr2lmw0241vm58nouzA Counsels: For the Plaintiff: M. Manoharan with Nur Syamimi Adriana Binti Shaharim 5 (Messrs. M Manoharan & Co., Kuala Lumpur) For the Defendants: Alex De Silva with Joshua Lawson Cowie 10 (Messrs. De Silva, Kuala Lumpur)