Tan Wei Hong & 4 Lagi v Panglima Tentera Udara DI Raja Malaysia & 4 Lagi (Rayuan Sivil No. 02(f)-29-03/2017(W))

Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 1 CIVIL APPEAL NO: 02(f)-29-03/2017(W) __________________________________________

1. Tan Wei Hong (No. Kad Pengenalan: 000416-66-0021) Seorang kanak-kanak di bawah umur dan Mendakwa melalui guardian ad litem dan Sahabat wakilnya Chuang Yin E

2. Tan Wei Jie (No Surat Beranak: 102447) Seorang kanak-kanak di bawah umur dan Mendakwa melalui guardian ad litem dan Sahabat wakilnya Chuang Yin E

3. Tan Hun Khong (No. Kad Pengenalan: 310608-08-5449)

4. Lai Chew Lai (No Kad Pengenalan: 330608-71-5218)

5. Chuang Hung Chien (Republic of China Taiwan Passport No. 214533414) MALAYSIA AIRLINES BERHAD (No. Syarikat: 116944-X) .. RESPONDENT (In the Court of Appeal in Malaysia at Putrajaya Civil Appeal No. W-02(IM)(NCVC)-737-04/2016 _________________________________________________________ Malaysian Airline System Berhad .. APPELLANT

1. Tan Wei Hong Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 2 (No. Kad Pengenalan: 000416-66-0021) Seorang kanak-kanak di bawah umur dan Mendakwa melalui guardian ad litem dan Sahabat wakilnya Chuang Yin E

2. Tan Wei Jie (No Surat Beranak: 102447) Seorang kanak-kanak di bawah umur dan Mendakwa melalui guardian ad litem dan Sahabat wakilnya Chuang Yin E

3. Tan Hun Khong (No. Kad Pengenalan: 310608-08-5449)

4. Lai Chew Lai (No Kad Pengenalan: 330608-71-5218)

5. Chuang Hung Chien (Republic of China Taiwan Passport No. 214533414) .. RESPONDENTS) HEARD TOGETHER CIVIL APPEAL NO: 01(f)-14-05/2017(W) __________________________________________

1. Tan Wei Hong (No. Kad Pengenalan: 000416-66-0021) Seorang kanak-kanak di bawah umur dan Mendakwa melalui guardian ad litem dan Sahabat wakilnya Chuang Yin E

2. Tan Wei Jie (No Surat Beranak: 102447) Seorang kanak-kanak di bawah umur dan Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 3 Mendakwa melalui guardian ad litem dan Sahabat wakilnya Chuang Yin E

3. Tan Hun Khong (No. Kad Pengenalan: 310608-08-5449)

4. Lai Chew Lai (No Kad Pengenalan: 330608-71-5218)

5. Chuang Hung Chien (Republic of China Taiwan Passport No. 214533414) PANGLIMA TENTERA UDARA DIRAJA MALAYSIA .. RESPONDENT HEARD TOGETHER CIVIL APPEAL NO: 01(f)-15-05/2017 (W) __________________________________________

1. KETUA PENGARAH JABATAN PENERBANGAN AWAM MALAYSIA

2. KERAJAAN MALAYSIA

1. Tan Wei Hong (No. Kad Pengenalan: 000416-66-0021) Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 4 Seorang kanak-kanak di bawah umur dan Mendakwa melalui guardian ad litem dan Sahabat wakilnya Chuang Yin E

2. Tan Wei Jie (No Surat Beranak: 102447) Seorang kanak-kanak di bawah umur dan Mendakwa melalui guardian ad litem dan Sahabat wakilnya Chuang Yin E

3. Tan Hun Khong (No. Kad Pengenalan: 310608-08-5449)

4. Lai Chew Lai (No Kad Pengenalan: 330608-71-5218)

5. Chuang Hung Chien (Republic of China Taiwan Passport No. 214533414) .. RESPONDENTS (In the Court of Appeal in Malaysia at Putrajaya Civil Appeal No. W-01(NCVC)(W)-125-04 TAHUN 2016 _________________________________________________________

1. Tan Wei Hong (No. Kad Pengenalan: 000416-66-0021) Seorang kanak-kanak di bawah umur dan Mendakwa melalui guardian ad litem dan Sahabat wakilnya Chuang Yin E

2. Tan Wei Jie (No Surat Beranak: 102447) Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 5 Seorang kanak-kanak di bawah umur dan Mendakwa melalui guardian ad litem dan Sahabat wakilnya Chuang Yin E

3. Tan Hun Khong (No. Kad Pengenalan: 310608-08-5449)

4. Lai Chew Lai (No Kad Pengenalan: 330608-71-5218)

5. Chuang Hung Chien (Republic of China Taiwan Passport No. 214533414)

1. Malaysian Airline System Berhad (No. Syarikat 10601-W)

2. Malaysia Airlines Berhad (No. Syarikat 1116944-X) (Berdasarkan kepada Malaysian Airline System Berhad (Administration) Akta 2015)

3. Ketua Pengarah Jabatan Penerbangan Awam Malaysia

4. Panglima Tentera Udara Diraja Malaysia

5. Kerajaan Malaysia .. RESPONDENTS) CORAM RAUS SHARIF, CJ ZULKEFLI AHMAD MAKINUDIN, PCA RAMLY HJ ALI, FCJ ZAHARAH BINTI IBRAHIM, FCJ BALIA YUSOF HJ WAHI, FCJ Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 6 JUDGMENT OF THE COURT Introduction

1. There were three (3) related appeals before us, heard together, namely-

2. In appeals (a) and (c) above, the appellants were appealing against the decisions of the Court of Appeal dismissing their appeals in relation to a striking out application under Order 18 rule 19 of the Rules of Court 2012 (the ROC) filed by the 2th defendant and the 4nd defendant, which resulted in both the 2nd and 4th defendants being struck out as defendants in the writ action.

3. In appeal (b), both the 3rd and 5th defendants were appealing against the decisions of the Court of Appeal dismissing their appeals in relation to their striking out applications under Order 18 rule 19 of the ROC. The Parties 4. The plaintiffs were suing as dependants of the deceased persons who were passengers on board flight MH 370 which was bound for Beijing from Kuala Lumpur on 8.3.2014; the said flight however did not arrive at its destination and after going missing for Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 8 some time, the Government announced that all passengers onboard were presumed dead.

5. The 2nd defendant in the writ action was sued on the ground that it was deemed to have taken over the liabilities and affairs of the Malaysian Airline System (MAS) (the 1st defendant in the writ action, but not a party to the present appeals) by virtue of the Malaysian Airline System Berhad (Administration) Act 2015 (Act 765).

6. The 3rd defendant was sued on the ground that he owed a duty of care to ensure continuous tracking of the missing plane while within Malaysian airspace and/or a duty to ensure safe and proper transfer of the plane to the next jurisdiction. The cause of action against the 3rd defendant was based on section 7 of the Civil Law Act 1958 (on dependency claim) and a breach of duty of care under the common law. The Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 9 plaintiffs also relied on the doctrine of “res ipsa loquitur”.

7. The 5th defendant was sued based on the principle of vicarious liability, being the owner of MAS (1st defendant) and principal of the 3rd and 4th defendants for the acts, defaults, omissions or neglects committed by the 3rd and 4th defendants in the discharge of their duties in the course of their employments.

8. The pleaded claim against the 4th defendant was that he breached his duty of care to investigate and verify any unusual, unidentified, unmarked and/or unaccounted for aircraft appearing on the radar of the Royal Malaysian Air Force (RMAF) in real time. The plaintiffs also relied on section 7 of the Civil Law Act 1956 (on dependency claim) and the doctrine of “res ipsa loquitur”.

9. After having been served with the writ and statement of claim and having filed their respective defence, the Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 10 3rd, 4th, 5th and 2nd defendants filed separate applications pursuant to Order 18 rule 19(1) (a) (b) and

10. On 30.3.2016, the High Court at Kuala Lumpur dismissed the 2nd defendant’s application but allowed the 3rd, 4th and 5th defendants’ applications. On appeal, the Court of Appeal allowed the 2nd defendant’s application, thus reversing the order of the High Court. The Court of Appeal allowed the plaintiffs’ appeals against the 3rd and 5th defendants but dismissed the plaintiffs’ appeal against the 4th defendant.

11. The plaintiffs’ claim against all the defendants was for general damages, aggravated and exemplary damages Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 11 as well as damages to be assessed for the loss of support suffered by the plaintiffs pursuant to section 7 of the Civil Law Act 1956 or at common law.

12. At the conclusion of the hearing of the appeals before this court on 28.11.2017, we dismissed all the appeals. We now give our reasons for doing so. Our Decision

13. All the appeals were related to applications by the 2nd, 3rd, 4th and 5th defendants to have the plaintiffs’ writ of summons and statement of claim against them strike out. The sole issue for our determination was whether the Court of Appeal had correctly exercised its discretion in allowing the 2nd and 4th defendants’ applications; and in dismissing the 3rd and 5th defendants’ applications.

14. Before going any further, it is desirable at this stage to briefly state the relevant statutory provisions relating Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 12 to striking out applications. These are in Order 18 rule 19 of the ROC.

15. Order 18 rule 19 of the ROC provides-

19. “Striking out pleadings and endorsements (Order 18 rule 19)

(1) The court may at any stage of the proceedings order to be stuck 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 –

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

(3) This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.” Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 13

16. The principle for striking out of pleadings pursuant to O. 18 r. 19 of the ROC is well settled. It is applicable only in a plain and obvious case or where a claim is, on the face of it, obviously unsustainable (see: Bandar Builder Sdn Bhd & 2 Ors v. United Malayan Banking Corporation Bhd [1993] 4 CLJ 7 SC; Hubbuck & Sons Ltd v. Wilkinson, Heywood & Clard Ltd [1899] 1 QB 86; Attorney General of the Duchy of Lancaster v. London and North Western Railway Company [1892] 3 Ch 274).

17. The tests for striking out application under O.18 r. of the ROC, as adopted by the Supreme Court in Bandar Builder (supra) are, inter alia, as follows:

18. The Court of Appeal, in Sivarasa Rasiah & Ors v. Che Hamzah Che Ismail & Ors [2012] 1 CLJ 75; [2012] 1 MLJ 473, had adopted the well-settled principle of striking out in the following passage: “A striking out order should not be made summarily by the court if there is issue of law that requires lengthy argument and mature consideration. It should also not be Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 15 made if there is issue of fact that is capable of resolution only after taking viva voce evidence during trial, (see; Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor [1997] 2 MLJ 565 (Federal Court).”

19. The basic test for striking out as laid down by the Supreme Court in Bandar Builder (supra) is that the claim on the face of it must be ‘obviously unsustainable’. The stress is not only on the word ‘unsustainable’ but also on the word ‘obviously’, i.e., the degree of unsustainability must appear on the face of the statement of claim without having to go into a lengthy and mature consideration in detail. If one has to go into a lengthy detailed argument and mature consideration of the issues of law and/or fact, then the matter is not appropriate to be struck out summarily. It must be determined at the trial.

20. The established rule on this point is that the court should not examine the evidence in summary proceedings in such a way as to amount to conducting Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 16 a trial on the conflicting affidavit evidence. As rightly said by Lord Diplock in the House of Lords case of American Cyanamid Co v. Ethicon Ltd [1975] AC 396 at p. 407: “… The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried. It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial ….” This passage was cited with approval by the Privy Council in the Malaysian case of Eng Mee Yong v. Letchumanan [1979] 1 LNS 18; [1979] 2 MLJ 212.

21. For a better understanding of the issues in this judgment, we will deal with the respective defendants Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 17 in relation to their applications to strike out the plaintiffs’ claim against them, separately. 2nd Defendant: Malaysia Airlines Berhad (MAB)

22. The plaintiffs’ pleaded case against the 2nd defendant was that the 2nd defendant, pursuant to Act 765 was deemed to have and would be taking over all the liabilities of the 1st defendant (MAS). (The plaintiffs’ claim against MAS in the same suit was premised on a breach of contract and a breach of a duty of care).

23. After filing its defence, the 2nd defendant on 23.12.2015 filed an application to have the plaintiffs’ writ of summons and statement of claim struck out pursuant to Order 18 rule 19(1)(a)(b) and (d) of the ROC and the inherent jurisdiction of the court, on the grounds that the plaintiffs had no cause of action against the 2nd defendant and that the plaintiffs’ claim was frivolous, vexatious and an abuse of the process of the court. Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 18

24. The 2nd defendant’s main contention was that it is an entity incorporated on 7.11.2014, some eight (8) months after the occurrence of the loss of flight MH370; and that it is not referred to as a successor company of MAS under Act 765 and that the transfer of assets and liabilities from MAS to the 2nd defendant under Act 765 is limited to specific assets and liabilities that the parties have agreed as being subject to transfer. The assets and liabilities so specified expressly exclude the liabilities arising from the loss of flight MH370.

25. The High Court dismissed the 2nd defendant’s application on 30.3.2016 on the ground that whether the 2nd defendant’s relationship with MAS was such that would wholly or partly assume the liabilities of MAS was not clear. The 2nd defendant’s stand was that it had no nexus or link, in law or in fact, with any of the causes of action pleaded by the plaintiffs relating to the loss of flight MH370. Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 19

26. The Court of Appeal, after having heard the appeal filed by the 2nd defendant, held that the learned High Court judge had manifestly failed to consider and had omitted to take into account the effect of the legislative intent of Act 765: which is to vest only certain liabilities of MAS in the 2nd defendant and the vesting order clearly does not include the liabilities of MAS in respect of the loss of flight MH370. The Court of Appeal ruled that the 2nd defendant had convincingly established that the plaintiffs had wrongly impleaded it to the action and the plaintiffs’ attempt to refute this fact was completely unconvincing. In conclusion, the Court of Appeal found that the claim against the 2nd defendant was eminently one that was plainly or obviously unsustainable and had no chance of success. In the upshot, the 2nd defendant’s appeal was allowed.

27. The plaintiffs subsequently appealed to this Court against the said decision of the Court of Appeal vide Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 20 Civil Appeal No. 02-29-03/017(W). The plaintiffs were granted leave to appeal on 1.3.2017 on the following question of law: “whether the non-vesting of the contingent liability of the defendant, Malaysian Airlines System Berhad (MAS) to MAB under the Act to satisfy any Judgment entered against MAS after all its assets are vested in MAB would constitute asset-striping of MAS, and carried out in order to defeat the satisfaction of such judgment against MAS: in consequence, it is an unlawful exercise of discretion under the Act?”

28. We have read the full judgment of the Court of Appeal on this matter involving the 2nd defendant’s application to strike out. We are attracted to the following passages in the said judgment (being paragraphs 11, 12, 21 and 22 thereof): “[11] …. Pausing here, we would thus say that even if the preamble of Act 765 is not an operating part thereof, for the purpose of determining the legislative intent of Act 765, the preamble ought not to be read in isolation, it Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 21 should instead be read in totality and consonant with the purpose for which Act 765 has been enacted by Parliament. When this is done, it becomes clear that the purpose of Act 765 is to establish the appellant (i.e. the 2nd defendant) so that it, amongst others, can ensure continuity etc. and assume certain assets and liabilities of MAS, Act 765 requires that such assumption of certain assets and liabilities by the appellant will be carried out in an effective, efficient and seamless means by way of a Vesting Order. [12] … such vesting, as envisaged under section 29 of the Act 765, was made, as aforestated, through the Vesting Order dated 1.9.2015 which was later gazetted on 6.11.2015 as P.U.(A) 265/2015. We would once again emphasise, and indeed there is not the slightest room for doubt, that no such liabilities in connection with MH370 has been vested in or transferred to the appellant pursuant to the Vesting Order in question as contended or alleged by the respondents. This is also consonant with the agreement between MAS and the appellant where it is expressly agreed, inter alia, that the appellant shall not assume any liabilities including Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 22 any claims arising from the loss of MH370. This is found in clause 2.2(c) of the Agreement [Exhibit A-2]. [21] A trial of this action would not reveal or add anything more to what was already before the High Court. Further, it is difficult to see what evidence could have any bearing on the interpretation of the Vesting Order and Clause 2.2(c) of the Agreement. Accordingly, and in the absence of disputes over the evidence, all that the High Court had to do so was to interpret section 29 of Act 765, the Vesting Order and clause 2.2(c) of the Agreement. Had the learned Judge done so, there should be no reason for His Lordship to ignore a logical and correct interpretation of those materials that would show that it was not only a straightforward matter but also one where the claim is on the face of it obviously unsustainable that would have led to the claim against the appellant being struck out. [22] We are consequently led to one glaring conclusion which is that the learned Judge had erred in assuming that MAS would necessarily cease to exist, that contrary to the Vesting Order and the Agreement, the liability in this case had been or could be transferred to Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 23 or vested in the appellant and that the potential consequences to the respondents of MAS ceasing to exist was a factor to be taken into account in deciding whether the claim should be struck out. In sum, the learned Judge did not direct himself according to the correct and well-established approach in dealing with an application under Order 18 rule 19 of the Rules of Court 2012 in failing to accord due consideration and weight to the Vesting Order the Agreement and the application of Act 765 in particular the third paragraph of the preamble to and section 29(1) of Act 765 which when considered together would have shown that the appellant has absolutely no nexus both in law and in fact with any of the causes of action pleaded by the respondents in connection with the loss of flight MH370.” We are in agreement with the Court of Appeal on the issues as narrated above.

29. The issue of the Montreal Convention 1999 was raised by learned counsel for the plaintiffs in this appeal. The Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 24 Montreal Convention 1999 was given force of law in Malaysia by our Carriage by Air Act 1974. Learned counsel submitted that under Article 21 of the Convention, the Malaysian Airline System (MAS) as the carrier shall be liable to pay compensation in case of death or injury of passengers. Under Article 50 of the Convention “state parties shall require their carriers to maintain adequate insurance covering their liability under this Convention. A carrier may be required by the state party into which it operates to furnish evidence that it maintains adequate insurance covering its liability under the Convention.” Under Article 21, it is the obligation of MAS (not MAB) to pay compensation in case of death and injury to passengers and under Article 50, it is the obligation of the Government of Malaysia to require MAS to maintain adequate insurance coverage. It does not involve MAB. Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 25

30. We are of the view that the above Articles in the Montreal Convention do not help the plaintiffs in establishing their claim against the 2nd defendant. The 2nd defendant was not “the carrier” as stipulated in the Articles. “The carrier” at the material time when the MH370 incident occurred was the Malaysian Airline System (MAS), not the 2nd defendant. They are separate legal entities.

31. The link between MAS and the 2nd defendant was through Act 765 and an agreement entered into between them. Eventhough learned counsel for the plaintiffs referred to the 1st defendant as “the Old MAS” (referring to the Malaysian Airline System) and the 2nd defendant as “the New MAS”, in actual fact they are separate entities. The 2nd defendant is not a successor company of MAS.

32. By a vesting order dated 1.9.2015 (which was later gazette on 6.11.2015 as P.U. (A) 265/2015), certain Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 26 assets and liabilities of MAS were transferred and vested in the 2nd defendant to ensure continuity of the business of MAS. We agree with the Court of Appeal in its finding that “… indeed there is not the slightest room for doubt that no such liabilities in connection with the loss of flight MH370 has been vested or transferred to the appellant (the 2nd defendant)

pursuant to the vesting order in question as contended or alleged by the respondents (the plaintiffs)”.

33. There was an agreement known as “the Sale & Assets Liabilities Agreement” dated 21.8.2015 between the 2nd defendant and MAS relating to the transfer of assets and liabilities from MAS to the 2nd defendant. In clause 2.2 (c) of the said Agreement, both parties had expressly agreed that the 2nd defendant shall not assume any liabilities including any claims arising from the loss of flight MH370. The case against the 2nd defendant only involved an interpretation of section 29 of Act 765, the vesting order dated 1.9.2015 and Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 27 clause 2.2 (c) of the Agreement dated 21.8.2015. That interpretation can be done without having the action against the 2nd defendant go for trial. It is a straight forward matter of interpretation. Apart from that, the 2nd defendant has absolutely no link or nexus both in law and in fact with any of the causes of action pleaded by the plaintiffs in connection with the loss of flight MH370. We therefore agree with and endorse the decision of the Court of Appeal that “the action against the 2nd defendant was eminently one that is plainly unsustainable and has no chance of success.” Therefore, the plaintiffs’ present appeal against the 2nd defendant was dismissed. 4th Defendant: Panglima Tentera Udara Malaysia (RMAF)

34. The 4th defendant was in control of the operation of the RMAF. The pleaded case against him was that he had breached his duty of care and had failed to investigate and verify any unusual, unidentified, unmarked, and/or unaccounted for aircraft appearing on the RMAF’s Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 28 radars in real time. The plaintiffs relied on the doctrine of res ipsa loquitor. The pleaded cause of action against him was under section 7 of the Civil Law Act 1956 (for dependency claim) and breach of duty of care under the common law.

35. In his application to strike out the plaintiffs’ writ and statement of claim, the 4th defendant contended that there was no common law duty of care owed by him to the plaintiffs because the damage was not foreseeable and/or there was no proximity of relationship between them; and therefore the doctrine of res ipsa loquitor did not apply.

36. The High Court allowed the 4th defendant’s application on the grounds that even if he owed a common law duty of care in the manner as pleaded by the plaintiffs, he had carried out his duties satisfactorily and therefore there was no breach of any duty of care Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 29 under the common law; and that the damage suffered by the plaintiffs was not foreseeable.

37. On appeal by the plaintiffs, the Court of Appeal dismissed the appeal. The Court of Appeal made the following findings: “(a) the 4th defendant is a public officer performing a specific function;

38. Dissatisfied with the above decision, the plaintiffs filed an application for leave to appeal to this Court. Leave Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 30 to appeal was granted on 13.4.2017 on the following questions of law: “(a) whether the duties and liability of the RMAF would extend to the disappearance of flight MH 370 on 8.3.2014 having regard to the:

(ii) The Civil Aviation Act 1969

(iii) Malaysia’s National Defence Policy

(ii) The Civil Aviation Act 1969

(iii) Malaysia’s National Defence Policy

39. On the duty owed by the 4th defendant, Azizul Azmi Adnan J. had, in another case involving different plaintiffs but a similar nature of claim involving passengers of flight MH370, Sri Devi a/p Kanan & Ors v Malaysia Airline System Bhd & Ors. [2017] 7 MLJ 305, stated as follows: “[33] In the statement of claim, the plaintiffs claimed that, among others, TUDM (in our judgment referred to as the 4th defendant) did not take adequate steps after their military radar detected the turning back of MH370 from its original north-easterly course. [34] In my judgment, the air force does not owe any duty of care to private citizens, whether to track and report the location of non-military aircraft, to intercept or to search for such aircraft, or, as suggested by the statement of claim, to be accountable for adequate and Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 32 satisfactory answers to the family members such as the plaintiffs. [35] The primary duty of TUDM is to guard the safety of Malaysian airspace from external threats to the sovereignty of the nation. The government may, as a matter of practice and custom, utilize the resources for the military for what may essentially be civilian purposes (such as search and rescue, or relief work in the event of a natural disaster), but the military does not and cannot owe a duty to ordinary private citizens for the discharge of those functions. The existence of such a duty would subvert and compromise the principal aim of a military force. [36] Of course, this does not mean that the military is immune from suits brought by private citizens. For example, if in the proper performance of its functions an accident is caused by the military resulting in loss or damage Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 33 to a private citizen, that citizen will be well within his or her rights to claim for compensation for such loss or damage. That was not, however, the case here.”

40. The Court of Appeal was in full agreement with the above findings made by Azizul Azmi Adnan J. and concluded that “It is plain and obvious that the 4th defendant does not owe any duty of care to the plaintiffs and we find it impossible to conclude otherwise in this instant appeal. Therefore the claim against the 4th defendant was rightly struck out by the learned judge.”

41. We have read the full judgments of the High Court as well as the Court of Appeal on issues relating to the 4th defendant. We are in full agreement with their findings and decisions; and we accordingly adopted them for the purpose of our judgment. We found no reason to disagree with both the courts below. Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 34

42. The issues of the Chicago Convention; the Civil Aviation Act 1969; and the Malaysian National Defence Policy were raised by learned counsel for the plaintiffs in his submissions before us. According to learned counsel, the Chicago Convention places certain duties on the military authorities of each contracting country, in relation to civilian aircraft in order to facilitate coordination with the military to avoid the need to intercept civilian flights. As such, learned counsel contended that in relation to the loss of flight MH370, the 4th defendant certainly did owe a duty of care to the said aircraft, the passengers therein and their next of kin.

43. The Civil Aviation Act 1969 was brought in by learned counsel on the ground that section 3(1) of the Act stipulates that the provisions of the Chicago Convention are to be given effect and carried out in this country by way of regulations to be made by the Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 35 Minister. This includes any Annex to it and any amendments of such Convention and Annexes.

44. This point had also been answered and clarified by Azizul Azmi Adnan J. in Sri Dewi a/p Kanan case (supra). We are of the same view with his Lordship that the 4th defendant and the air force “does not owe any duty of care to private citizens whether to track and report the location of non-military aircraft, to intercept or to search for such aircraft or … to be accountable for adequate and satisfactory answers to the family members such as the plaintiffs.” As clearly stated in the said judgment, the primary duty of the 4th defendant and the air force is to guard the safety of Malaysian airspace from external threats to the sovereignty of the nation. The existence of such duty to ordinary citizens as suggested by learned counsel for the plaintiffs in his submissions would subvert and compromise the principal aim of a military force of the nation. On that ground, the point relating to the Civil Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 36 Aviation Act 1969 as contended by learned counsel is without any merit at all.

45. We were also in agreement with the Court of Appeal that the plaintiffs’ claim against the 4th defendant was rightly struck out by the High Court. We were of the view that in this case (against the 4th defendant) it was clear as a matter of law at the outset that even if the plaintiffs were to proceed in proving all the facts that they offered to prove at trial, they would not be entitled to the remedy they sought for. In other words, the plaintiffs’ claim is obviously and legally unsustainable. The factual basis of the claim is fanciful and entirely without substance and therefore cannot be allowed to go for trial. (see: “Bunga Melati 5 Case” [2012] 4 SLR 546).

46. Based on the above considerations we dismissed the appeal by the plaintiffs against the 4th defendant and we affirmed the decision of the Court of Appeal. Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 37 3rd Defendant: Ketua Pengarah, Jabatan Penerbangan Awam Malaysia

47. The Director General of the Department of Civil Aviation (DCA) was named as the 3rd defendant in the plaintiffs’ writ and statement of claim. DCA is a government department under the purview of the Ministry of Transport of Malaysia with the responsibility and authority to regulate and oversee all the technical operational aspects of the civil aviation industry in Malaysia, including civil air traffic control, and service and management of the Kuala Lumpur Air Traffic Control Centre (KLATCC). The KLATCC was at all times within the control of the 3rd defendant.

48. The pleaded case against the 3rd defendant was based on a breach of statutory duty by virtue of the Civil Aviation Act 1969. It was pleaded that the 3rd defendant through KLATCC had failed in his basic statutory duty to track and monitor flight MH370 while within the Malaysia airspace; and failed to ensure a Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 38 safe and proper transfer to the next air traffic control tower.

49. Learned Senior Federal Counsel (SFC), acting for and on behalf of the 3rd and 5th defendants, in a nutshell, argued that in the present case, the essential ingredients of duty of care in a cause of action for negligence against the 3rd defendant did not exist and therefore the plaintiffs’ action in negligence could not maintained.

50. After having filed his statement of defence, the 3rd defendant filed an application to strike out the plaintiffs’ action under Order 18 rule 19 of the ROC on the ground that the plaintiffs had not pleaded a reasonable cause of action against him in their statement of claim.

51. The High Court allowed the application made by the 3rd defendant, as a result of which the plaintiffs’ action against the 3rd defendant was struck out. Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 39

52. On appeal by the plaintiffs, the Court of Appeal allowed the appeal. The order of the High Court in relation to the 3rd defendant was set aside and the 3rd defendant was then reinstated as a defendant in the action. In coming to its decision to allow the appeal, the Court of Appeal ruled, inter alia, as follows: “(a) we think that the plaintiffs’ case requires the court to enter into a fact finding analysis in order to determine whether the 3rd defendant owes a duty of care to the plaintiffs and this court must guard against the possibility of depriving the plaintiffs of access to the judgment seat without benefit of a trial where they have an opportunity to bring forth all the relevant facts.”

53. The Court of Appeal concluded that the factual issues, particularly regarding the extent of the statutory duties of the 3rd defendant, the issue of whether the 3rd defendant had carried out his duties in the circumstances of the case and the applicability of the doctrine of res ipsa loquitor as pleaded by the plaintiffs, required close examination by the court and could only be resolved after careful examination of the evidence from both sides which the court could not embark upon at the preliminary stage of a striking out application. These issues were triable issues that needed to be decided and determined at trial.

54. The 3rd defendant filed an application for leave to appeal to this court against the decision of the Court of Appeal allowing the plaintiffs’ appeal. Leave to appeal was granted on the following question of law, namely, Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 41 “Whether an action in negligence can lie against the Director General of Civil Aviation in the exercise of his functions under the Civil Aviation Act 1969 [Act 3]?”

55. Before us, learned counsel for the plaintiffs submitted that in his defence, the 3rd defendant had admitted that the DCA had a statutory duty of care to the extent of the provisions of the Civil Law Act 1969 and it was the responsibility of the 3rd defendant to regulate and manage the safe passage of aircraft over Malaysian airspace and/or air traffic control functions.

56. Learned counsel also submitted that the 3rd defendant was responsible to track and monitor aircraft. It was directly foreseeable. If he failed to keep the track, he could lose track of an aircraft and therefore the loss of the plane leading to the presumed death of the passengers was not too remote.

57. Learned counsel further submitted: Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 42 “The DCA (3rd defendant) is a government agency with the specific authority and duty to regulate all technical operational aspects of the civil aviation industry within Malaysia. The basic duty of the KL Air Traffic Control Centre is to track and monitor aircrafts. The relationship between the passenger of the flight and the 3rd defendant is such that they are entitled to rely on the 3rd defendant performing its duties with due care expected of reasonable person in ensuring the safety of the flight. The preliminary report produced by the 5th defendant and or its servants, does not reveal clear evidence of MH370 leaving Malaysian airspace. In fact the said report shows evidence of the aircraft made an air turn back and headed towards Penang.”

58. Learned SFC, in rebutting the plaintiffs’ allegations, listed out the duties and functions of the 3rd defendant as provided for in section 2B of the Civil Aviation Act 1969: Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 43 “Duties and functions of the Director General 2B. It shall be the duty and function of the Director General-

59. Learned SFC contended that sections 2A and 2B of the Civil Aviation Act 1969, which were included by way of amendments vide Act 803 in 1992, provide inter alia for regulatory functions in respect of civil aviation, airport and aviation services. The duties under section 2B are duties created by statute which cannot support the creation of a common law duty of care to passengers of commercial flights. The statutory duties and functions under section 2B were not created for the purpose of protecting the interests of the passengers on board commercial flights; and it would be placing an onerous burden on the 3rd defendant if liability were to be imposed upon him as part of the exercise of his Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 45 functions to ensure that a commercial flight reaches its destination.

60. Learned SFC further contended that the 3rd defendant owed no duty of care to the plaintiffs nor the deceased passengers in the exercise of his statutory duties as provided for in the Civil Aviation Act 1969; and an action in negligence under the common law cannot lie against him. The mere fact that statutory duties exist does not in itself create a parallel duty of care at common law.

61. After hearing both parties, we share the same view with the Court of Appeal that the issues of whether the 3rd defendant owed any duty of care to the plaintiffs and whether there was a breach of that duty in the circumstances of the present case were not straight forward. The issues involve complex questions of law and fact. They require a close and careful examination of evidence from both sides. These issues are triable Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 46 issues. The plaintiffs’ claim against the 3rd defendant cannot be struck out at the preliminary stage under Order 18 rule 19 of the ROC. This is not a plain and obvious case to be struck out.

62. The law on negligence in the exercise of a statutory duty or power particularly relating to an incident involving an aircraft (as in the present appeal) is still uncertain and developing. It requires a resolution and determination of difficult legal questions in an area where the law is still unsettled. The court should be cautious and careful before striking out claims made under such circumstances (see: Barrett v. Enfield Borough council [1999] YJH 25; [2001] 2 AC 550; Williams v. Canada (Attorney General) [2005] 76 O.R 3rd).

63. We find support fors the above proposition in the words of Lord Browne-Wilkinson in the case of Barrett v. Enfield Borough Council (supra) who had expressed Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 47 his view that “… in an area of the law which was uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possible wrongly) to be true for the purpose of the strike out”.

64. We are also of the view that in dealing with an application for striking out, the court must exercise great care and caution, bearing in mind that the court must not drive away any litigant however weak his case may be from the seat of justice (see: Lee Nyan Choi v. Voon Moon [1979] 1 MLJ 28). On the face of the pleadings against the 3rd defendant, the plaintiffs’ claim is not obviously unsustainable. There are triable issues that need to be fully argued at trial. This is a case where the court is not in a position to embark on Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 48 a minute examination of the documents and the facts of the case at this preliminary stage of striking out application. That is solely reserved for the trial judge.

65. In the upshot, we dismissed the appeal by the 3rd defendant and we upheld the decision of the Court of Appeal. The 3rd defendant shall remains as a defendant in the plaintiffs’ action. 5th Defendant: The Government of Malaysia

66. The Government of Malaysia was named as the 5th defendant in the plaintiffs’ action. The plaintiffs’ claim against the 5th defendant was based upon the principle of vicarious liability applying to the 5th defendant as the employer of the 3rd and 4th defendants; and the 5th defendant’s duty to manage the disappearance of flight MH370 with due care, respect, transparency and accountability. Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 49

67. The principle of vicarious liability is a principle at common law where one person is liable for the delict of another. It applies to an employer and employee relationship. Thus, in law an employer is liable for the damage caused by the delict of his employee, committed while acting within the course and scope of his duties as an employee. It is the duty of an employer to ensure that no one is injured or damaged by the employee’s improper conduct or negligence in carrying on his work (see: Feldman (Pty) Ltd v. Mall [1945] AD 733).

68. Statutorily, the liability of the 5th defendant as the government is governed by section 5 of the Government Proceedings Act 1956, which provides: “5. Subject to this Act, the Government shall be liable for any wrongful act done or any neglect or default committed by any public officer in the same manner and to the same extent as that in which a principal, being a private person, is liable for any Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 50 wrongful act done, or any neglect or default committed by his agent, and for the purposes of this section and without prejudice to the generality thereof, any public officer acting or purporting in good faith to be acting in pursuance of a duty imposed by law shall be deemed to be the agent of and to be acting under the instructions of the government.”

69. In the present appeal, having dismissed the 3rd defendant’s appeal, as a result of which the 3rd defendant remains as a defendant to the plaintiffs’ action, we were of the view that the 5th defendant must also remain as a defendant in this action as named in the writ on the principle of vicarious liability and by virtue of section 5 of the Government Proceedings Act 1956. Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 51

70. In any event, the issue of vicarious liability if disputed by the employer generally involves factual determination based on evidence adduced by parties at trial. The plaintiffs must be given a chance to adduce evidence on this issue at trial.

71. Based on that ground, we also dismissed the appeal by the 5th defendant. Therefore the 5th defendant remains as a defendant in the plaintiffs’ action. Conclusion

72. In the upshot, we dismissed all the three appeals before us. We upheld and affirmed the decisions of the Court of Appeals on all the three appeals. We ordered that costs of RM10,000 be paid by the plaintiffs to the 4th defendant in Civil Appeal No. 01(f)-14-05/2017(W). We made no order as to costs with regard to the other two appeals. Deposits, if any, were ordered to be refunded. Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 52 Dated: sgd RAMLY HJ ALI Federal Court Judge Malaysia Solicitors:

1. Sangeet Kaur Deo (with Ngeow Chow Ying and Tan Chee Kian) Merss Ngeow & Tan .. for the plaintiffs

2. Logan Sabapathy (with Sanjeev Kumar, Carmelia Cheong and Najihah Farhana Che Awang) Merss Sanjeev Kumar .. for the 2nd defendant

3. SFC Alice Loke Yee Ching (with FC Shaiful Nizam bin Shahrin) Attorney General’s Chambers .. for the 3rd, 4th and 5th defendants Ground of Judgment Tan Wei Hong & 4 Lagi V Panglima Tentera Udara Di raja Malaysia & Ketua Pengarah Jabatan Penerbangan Awam Malaysia & 1 Lagi 53 Cases Referred to:

1. Bandar Builder Sdn Bhd & 2 Ors v. United Malayan Banking Corporation Bhd [1993] 4 CLJ 7 SC

2. Hubbuck & Sons Ltd v. Wilkinson, Heywood & Clard Ltd [1899] 1 QB 86 3. Attorney General of the Duchy of Lancaster v. London and North Western Railway Company [1892] 3 Ch 274 4. Sivarasa Rasiah & Ors v. Che Hamzah Che Ismail & Ors [2012] 1 CLJ 75 5. “Bunga Melati 5 Case” [2012] 4 SLR 546 6. Barrett v. Enfield Borough Council [1999] YJH 25; [2001] 2 AC 550 7. Williams v. Canada (Attorney General) [2005] 76 O.R 3rd 8. Lee Nyan Choi v. Voon Moon [1979] 1 MLJ 28 9. Feldman (Pty) Ltd v. Mall [1945] AD 733 Legislation Referred to

1. Civil Aviation Act 1969 (Act 3): section 2B

2. Government Proceedings Act 1956: section 5 3. Rules of Court 2012: Order 18 rule 19