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[2000] Part 4 Case 6 [HCSS] |
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www.ipsofactoJ.com/highcourt/index.htm
[2000] Part 4 Case 6 [HCSS] |
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HIGH COURT OF SABAH & SARAWAK |
Chao
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vs -
Yuen
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Coram RICHARD MALANJUM J |
13
APRIL 2000 |
Judgment
Richard
Malanjum J
A.
INTRODUCTION
This is an appeal by the appellant / plaintiff against the dismissal of his suit against the respondent / defendant for malicious prosecution by the learned Sessions Court Judge Tawau (SCJ) on March 15, 1999. In dismissing the action, the learned SCJ found that the appellant / plaintiff failed to prove that it was the respondent / defendant who set the criminal law in motion against the appellant / plaintiff. And while finding that the criminal proceeding was terminated in favour of the appellant / plaintiff as well as that the respondent defendant
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did not have before him a state of circumstances which would reasonably lead any ordinarily prudent and cautious man to conclude that the plaintiff was probably guilty of misappropriating the RM80,000 |
the
learned SCJ also concluded that the respondent / defendant was not actuated
with malice. According to the learned SCJ the appellant / plaintiff also
failed to prove damage. And she went on to say that in the event that she
was wrong in her conclusion she was only prepared to award the appellant /
plaintiff a nominal sum of RM1 for general damages and the legal fee of one
counsel for the criminal trial.
Being
dissatisfied with the findings of the learned SCJ the appellant / plaintiff
now appeals contending several grounds in his memorandum of appeal. But
before dealing the relevant grounds as submitted, it may be appropriate to
briefly state the background leading to the institution of the present
action.
B.
BACKGROUND OF FACTS
Both
the appellant / plaintiff and the respondent / defendant were and are
members of an association called the 'Fook Siew Society' (the Society) of
Semporna, Sabah. The dispute arose when the respondent / defendant lodged a
police report (AA117) that since the sum of RM80,000, which was part of the
State Government grant to the Society of RM150,000 given in 1989, was not
reported in the statement of accounts of the Society for the years 1990-1992
the appellant / plaintiff must have misappropriated it until 1993. Such sum
only appeared in the statement of accounts during the annual general meeting
of the Society held on December 25, 1994 and was indicated therein that it
was only received in 1993. In fact the police report was preceded by AD1 and
AD2 that were recorded by the investigating officer Shye Ming Chung (DW3)
from the respondent / defendant. In the event the appellant plaintiff was
charged under s 409 of the Penal Code under Criminal Trial TSC-62-58-1995.
That trial ended in the acquittal of the appellant / plaintiff without his
defence being called.
Thereafter
the appellant / plaintiff commenced the present action against the
respondent / defendant for malicious prosecution.
C.
THE JUDGMENT OF THE LOWER COURT
In coming to her decision as summarised hereinabove, the learned SCJ relied on the principle as enunciated in the case of Rawther v Abd Kareem [1966] 2 MLJ 201. In that case the plaintiff was charged for making a false affidavit in connection with a winding up proceeding of a company commenced by the defendant. In fact the initial basic dispute was that the defendant alleged that the plaintiff was not a shareholder of the company. The respective parties therefore filed affidavits on the issue with implication that the share certificate of the plaintiff in the company was doubted. However, the plaintiff was not charged for forgery of share certificate but for making a false affidavit. The plaintiff was tried but was acquitted without his defence being called. Hence the plaintiff commenced an action for malicious prosecution against the defendant. At the trial the defendant did not appear. The plaintiff proceeded to prove his case and judgment was entered in his favour. The defendant appealed. In the course of his judgment his Lordship Thomson LP said, inter alia, at p 203,
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Any
action for malicious prosecution raises questions of difficulty. On
the one hand there is the need to protect the reputation of the
individual against unjustified attacks and his pocket against the
expense of defending himself against unjustified criminal
proceedings. On the other hand the courts have always recognised the
necessity of affording protection to persons who, whatever their
real motives, assist in the administration of public justice. As was
said by Viscount Simonds in the case of Glinski v McIver [1962]
AC 726, 741:- in
such cases as these the liberty of the subject is involved on the
one side, and on the other the risk that the citizen in the
performance of his duty may be embarrassed if a jury too readily
given a verdict in favour of a plaintiff who been prosecuted and
acquitted. In any such action the plaintiff must prove at least five things and unless he does so he cannot succeed. He must prove that the defendant set the criminal law in motion against him. He must prove that the criminal proceedings against him terminated in his favour, that the defendant had no "reasonable and probable cause "for setting the law in motion against him and that the plaintiff was actuated by malice in the sense that he had a motive other than only to carry the law into effect. And for historical reasons (the action was originally in case) he must prove damage. [emphasis added] |
I note that the ingredients as stated by his Lordship, though interrelated, do not necessarily permit upon proof of one to infer the others or any of them. This can be seen when his Lordship said this at pp 204-205:
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In
the present case there can be little doubt that the failure of the
defendant to appear at the trial led to the point receiving less
consideration than it should have received. Nevertheless that
non-appearance could not be construed as any sort of admission so as
to absolve the plaintiff from the requirement of Order 36 r 3 to
"prove his claim so far as the burden of proof lies upon
him". And so far as concerns the issue of reasonable and
probable cause it is possible that the learned trial Judge
misdirected himself. What he said was this: - There
undoubtedly was malice, as there had been ill will for some
considerable time between the parties; and I cannot, without any
assistance from the defendant himself discover any reasonable or
probable cause. Now, if this means that the Judge inferred absence of reasonable and probable cause from the existence of malice or if he considered that the onus of proving the existence of reasonable and probable cause lay on the defendant then, with great respect, it is wrong. [emphasis added] |
D.
THE GROUNDS OF APPEAL
The
appellant / plaintiff submitted in essence four basic complaints against the
decision of the learned SCJ.
(i)
Grounds 1(A) to 2(O)
The
thrust of the contention of these grounds is that the learned SCJ erred in
law and in fact in that having found that the respondent / defendant 'did
not have before him a state of circumstances which would reasonable lead any
ordinarily prudent and cautious man to conclude that the plaintiff was
probably guilty of misappropriating the sum of RM80,000 failed to find that
the respondent / defendant was responsible for setting the criminal law in
motion against the appellant / plaintiff. In other words what the appellant
/ plaintiff is saying is that the finding of that ingredient should have led
to the positive conclusion of the other.
The
issue therefore is to determine whether that should be the case and what the
phrase "to set the criminal law in motion" entails in an action
for malicious prosecution.
As to the first limb of the issue, I think it has been briefly dealt with herein above in that each ingredient has to be proved in order to succeed in an action for malicious prosecution and not by inference of the others or any of them upon proof of one ingredient. Now, as for the second limb, this is how his Lordship Thomson LP addressed it in Rawther (supra) at pp 203-204:
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But
was it proved that it was the defendant who set the criminal law in
motion against him? ... Now
this was not a case of a private prosecution. It was a police
prosecution and, moreover, a police prosecution which was and, by
reason of s 129 of the Criminal Procedure Code, only could be
undertaken by and with the sanction of the Public Prosecutor and it
is therefore important to examine how it came into being, so to
speak. The
matter came to the attention of Inspector Aeria on March 26, 1960.
At the trial of the present action he was not asked how or when it
first came to his attention (Points which might have been thought to
be of some importance) but in November, 1960, at the trial in the
Sessions Court, he said that he had had an anonymous letter. At some
stage, but just when it is not clear, certain information, to which
I shall come in a moment, was given to him by the defendant
personally and on March 29, 1960, he drew up and filed in the police
file a first report which was a necessary step to enable him to
exercise his statutory powers of investigation under the Criminal
Procedure Code in addition to his ordinary powers under the Police
Ordinance. That first report set out the facts of the litigation between the brothers. It then continue :-
Unfortunately
at the trial Inspector Aeria was not invited to relate the course of
his investigations in any detail but it is clear that they were
extensive. Prior to March 29, when he drew up his first report, he
clearly had had some sort of statement from the defendant. It is,
however, to be observed that in his report there is no allegation of
any offence having been committed by the present plaintiff; there is
an allegation of forgery by an unspecified person and there are
allegations of forgery and of falsification of accounts by the
defendant's brother. But by April 17, the day on which the plaintiff
was arrested and the day before he first appeared in the Sessions
Court, it had clearly been decided not to prosecute the defendant's
brother but to prosecute the plaintiff and to prosecute him not for
forgery but for swearing a false affidavit and this can only be
accounted for by Inspector Aeria having obtained copies of a number
of documents, including the affidavits of the plaintiff and the
defendant which were subsequently produced at the Sessions Court
trial and having obtained information from at least some of the
twelve witnesses who gave evidence other than formal evidence at
that trial. And as has been pointed out, the prosecution was
undertaken with the sanction of the Public Prosecutor which could
only have been given after consideration of the material in the
possession of the police. In all the circumstances, on the evidence as it stands, it is clearly impossible to hold the defendant responsible for the prosecution unless it was proved that whatever statements he made to the police were made without a belief in their truth for which he had reasonable and probable cause. [emphasis added] |
A similar question came before the House of Lords in Martin v Watson (1996) AC 74, a case which neither of the learned counsel for the parties cited. There the defendant, Watson, laid a complaint against the plaintiff, Martin, alleging that the latter had indecently exposed himself to her. The parties were neighbours but their relationship had been acrimonious for many years. There had been several complaints by the defendant against the plaintiff for such an alleged behaviour but without any results. To another complaint made by the defendant against the plaintiff that was attended to by Police Constable Cratchley, the matter was subsequently referred to Detective Constable Haynes who took a full witness statement from the defendant and at the end of which it was recorded that the defendant was prepared to attend court and give evidence about the contents of it. Thereafter, Detective Constable Haynes took the defendant to the Magistrates' Court and obtained a warrant for the arrest of the plaintiff.
The
defendant was not required to take any part in the proceedings. But in the
event nothing transpired. Later on the defendant again made another
complaint of the alleged behaviour of the plaintiff to another police
officer. Police Constable McKiernan who did not take it seriously. But the
defendant persisted by making another allegation against the plaintiff to
the police. Whereupon the plaintiff was arrested and taken to the police
station for an interview. Thereafter, the plaintiff was released on bail and
to appear before the court the next day in connection with the complaint
made by the defendant earlier on that was attended to by Police Constable
Cratchley. However, that court appearance resulted in the Crown Prosecution
Service offering no evidence and the plaintiff was therefore discharged.
Arising
from the incident the plaintiff commenced an action for malicious
prosecution against the defendant. The trial court allowed the claim.
However, on appeal to the Court of Appeal the decision was reversed. Hence
the plaintiff appealed to the House of Lords. The appeal was allowed thereby
reinstating the decision of the trial court.
In rendering the opinion of the House, Lord Keith of Kinkel approached the issue of setting the criminal law in motion' by first acknowledging that there was no direct English authority on the point. His Lordship therefore went on to refer to the decisions from the Commonwealth countries including that of the Privy Council. This is what he said at p 80:
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It is common ground that the ingredients of the tort of malicious prosecution are correctly stated in Clerk & Lindsell on Torts, 16th Edn (1989), p 1042, para 19-05: In
action of malicious prosecution the plaintiff must show first that
he was prosecuted by the defendant, that is to say that the law was
set in motion against him on a criminal charge; secondly that the
prosecution was determined in his favour; thirdly that it was
without reasonable and probable cause; fourthly that it was
malicious. The onus of proving every one of these is on the
plaintiff ..... The question at issue is whether or not the defendant is properly to be regarded, in all the circumstances, as having set the law in motion against the plaintiff. Curiously enough there appears to be no reported English decision dealing with the situation where the defendant in a malicious prosecution action has falsely and maliciously accused the plaintiff to a police officer of having committed an offence, with the result that a prosecution has been initiated by the police officer. A number of decisions in other Commonwealth countries have, however, considered such a state of affairs. [emphasis added] |
Thereafter his Lordship went on to consider several authorities. And the principles emanating from those cases may be quoted as follows:
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i. |
If therefore, a complainant did not go beyond giving what he believed to be correct information to the police and the police, without further interference on his part (except giving such honest assistance as they might require) thought fit to prosecute, it would be improper to make him responsible in damages for the failure of the prosecution. But, if the charge was false to the knowledge of the complainant, if he misled the police by bringing suborned witnesses to support it, if he influenced the police to assist him in sending an innocent man for trial before the Magistrate, it would be equally improper to allow him to escape liability because the prosecution had not technically been conducted by him. Pandit Goya Parshad Tewari v Sardar Bhagat Singh (1908) 24 TLR 884 PC [emphasis added] |
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ii. |
The
legal standard of liability for a prosecution which is instituted
neither by the defendant nor by his servant is open to criticism on
the ground of indefiniteness. It is clear that no responsibility is
incurred by one who confines himself to bringing before some proper
authority information which he does not disbelieve, even although in
the hope that a prosecution will be instituted, if it is actually
instituted as the result of an independent discretion on the part of
that authority (Danby v Beardsley (1880) 43 LT 603; Fanzelow
v Kerr (1896) 14 NZLR 660). But. if the discretion is misled by
false information, or is otherwise practised upon in order to procure
the laying of the charge, those who thus brought about the prosecution
are responsible ... The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him. Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 [emphasis added] |
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iii. |
A defendant who has procured the institution of criminal proceedings by the police is regarded as responsible in law for the initiation of the prosecution. Expressions such as 'instigate,' 'set in motion' and 'actively instrumental inputting the law in force,' while evocative do not provide an immediate touchstone for the decision of individual cases. That requires close analysis of the particular circumstances. In the difficult area where the defendant has given false information to the police that in itself is not a sufficient basis in law for treating the defendant as prosecutor. That conduct must at least have influenced the police decision to prosecute... It does not follow that there is any call for modifying the test which has been developed in the decisions of this court for determining whether a third party is responsible in an action for malicious prosecution for criminal proceedings instituted by the police. What is required is a cautious application of that test where the police have conducted an investigation and decided to prosecute. The core requirement is that the defendant actually procured the use of the power of the State to hurt the plaintiff. One should never assume that tainted evidence persuaded the police to prosecute. In some very special cases, however, the prosecutor may in practical terms have been obliged to act on apparently reliable and damning evidence supplied to the police. The onus properly rests on the plaintiff to establish that it was the false evidence tendered by a third party which led the police to prosecute before that party maybe characterised as having procured the prosecution. ..... As
a general rule a prosecution will be considered to be brought when the
information is laid and by the person who lays it. In the result, ...
the police will generally be treated as the prosecutor and no action
for malicious prosecution will lie against the person on whose
information the police have acted. But in some cases the person who
supplied the information to the police may be regarded as the
prosecutor even though the information was not laid by him. A person
may be regarded as the prosecutor if inter alia, he puts the police in
possession of information which virtually compels an officer to lay an
information; if he deliberately deceives the police by supplying false
information in the absence of which the police would not have
proceeded or if he withhold the information in the knowledge of which
the police would not prosecute.
The matter was put in the following way by Isaacs ACJ in Davis v
Cell (1924)35 CLR 275, 282: For the purposes of this form of action the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge, a circumstance bearing directly on the question of the effect in the civil action of the judicial termination of the criminal proceedings. The substance and not the legal form must in all cases govern, and while, on the one hand, a person giving information to the police is not necessarily the prosecutor yet, on the other, the mere fact that the police conduct the prosecution does not exclude him from that position. Commercial Union Assurance Co of NZ Ltd v Lament [1989] 3 NZLR 187 [emphasis added] |
And having considered those cases Lord Keith of Kinkel in Martin (supra) at p 84 said this:
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In the absence of any countervailing authority in the English courts, I am of opinion that the principles to be derived from the foregoing sources should be accepted as valid in English law. |
And further down at p 86 his Lordship said this:
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Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant; as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant. |
Accordingly, the principle as regards the ingredient 'to set the criminal law in motion against the plaintiff in an action for malicious prosecution appears to be thus: that merely lodging an information or complaint with the authorities such as the police that a person may be guilty of an offence does not necessarily make the complainant answerable in damages for malicious prosecution in the event the prosecution does not proceed or fails.
"The
mere fact that an individual has given information to the police which leads
to their bringing a prosecution does not make that individual the
prosecutor", (see: Martin (supra)). But if the falsity of
the information or complaint made is solely within the knowledge of the
complainant thereby producing a situation where it can be said that the
authority responsible for the commencement of the criminal prosecution could
not have been in a position to exercise his independent discretion or that
the complainant has misled the authority in one way or another or that he
has influenced the authority or instrumental to have the person alleged to
be guilty of an offence to be brought to trial then such complainant should
be answerable to a claim for malicious prosecution even though technically
the power to initiate criminal prosecution lies elsewhere. In this country
it is with the Public Prosecutor.
And to put it briefly, a person making a complaint to an authority should not per se be held responsible for the prosecution of the person complained against since the decision to prosecute lies with the Public Prosecutor
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unless it was proved that whatever statements he made to the police were made without a belief in their truth for which he had reasonable and probable cause. [Rawther (supra)] |
And
the burden lies with the plaintiff to prove that such is the case.
Now, in coming to her decision that the first ingredient of the action for malicious prosecution had not been established the learned SCJ said this, inter alia:
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Plaintiff
counsel submits at pp 3 and 4 of his written submission that by
looking at the charge (AA 1) and AA 117 both refer to the one and
same transaction in that the following common ingredients are
found:-
However
I agree with the defence submission that this is conjecture and
speculative as the plaintiff had not adduce evidence as to the
making of the charge by calling the person responsible for the
making of the charge. Although I find ingredients common to AA1 and
AA 117, in the absence of any evidence on the making of the charge,
I am unable to hold that these common ingredients are indicative of
the one and same transaction and that the defendant in making the
police report had set the criminal law in motion against the
Plaintiff. The
entire basis of plaintiff counsel's submissions on this ingredient
is that the police report per se set the law in
motion. This cannot be so as the crux of the matter is "set the
criminal law in motion". As rightly submitted by defence
counsel, the plaintiff has not proved that it was the defendant that
was responsible for the prosecution of the charge against the
plaintiff. Halsbury Laws of England vol 45 at paragraph 1342 states
a prosecution exists where a criminal charge is made before a
judicial officer or tribunal, and any person who makes or is
actively instrumental in the making or prosecuting the charge is
deemed to prosecute it. The plaintiff has not proved that it was the
defendant who was responsible for the making of the charge or that
defendant was responsible for the prosecution of the case. In fact
DW3's evidence show that the defendant was never actively
instrumental in the investigation and prosecution of the charge. As seen from the notes of proceedings (AA9-116) the evidence adduced by the prosecution was based on 18 witnesses, of whom the defendant was one. |
Bearing
therefore in mind the principle pertaining to this first ingredient and
having perused the evidence adduced at the trial, in particular the evidence
of DW3 Shye Ming Chung, I am inclined to agree with the finding of the
learned SCJ that the appellant / plaintiff has failed to establish this
first ingredient. There was nothing shown in evidence that the commencement
of the prosecution of the appellant / plaintiff was based solely on the
information given by the respondent / defendant to the exclusion of an
independent exercise of discretion by the Public Prosecutor. Indeed it could
not have been as documentary evidence were involved unlike in Martin
(supra) where the oral evidence of defendant played a crucial role.
It follows therefore that such a failure should lead to the dismissal of the
action of the appellant / plaintiff.
The
above grounds of the appellant / plaintiff therefore fail.
In
passing I have noted the finding of the learned SCJ as regards the third
ingredient, namely, that the respondent / defendant 'did not have before him
a state of circumstances which would reasonably lead any ordinarily prudent
and cautious man to conclude' that the appellant / plaintiff was probably
guilty of misappropriating the RM80.000. Meanwhile, I am well aware that it
is a finding of fact based on the evidence adduced. But I would have thought
that the absence of the sum of RM80,000 in the statement of accounts for the
years 1990-1992 itself would have given a state of circumstance that any
prudent and cautious person could have concluded that something was amiss.
Anyway since this point is not a specific issue to be considered I would not
make any further observation on it. Suffice it to say that it should not be
taken that owing to this finding of the learned SCJ it should be concluded
or inferred without more that it was the respondent / defendant that set the
criminal law in motion against the appellant / plaintiff.
(ii)
Grounds 3(A) to 3(F)
These
grounds deal with the finding of the learned SCJ that the appellant /
plaintiff failed to prove that in lodging the police report the respondent
defendant was actuated with malice rather than to carry the law into effect.
The appellant / plaintiff again relied on the finding of the learned SCJ on
the third ingredient as discussed herein above. It was contended that malice
should have therefore been inferred. The incident in 1982 was also referred
to as an indication of the long-standing animosity of the parties.
My short answer to these grounds is that it would be wrong to infer malice just because of the absence of reasonable and probable cause for the respondent / defendant to lodge the police report. The appellant / plaintiff was still required to prove such an ingredient of malice in his action for malicious prosecution. (See: Rawther (supra)). In Martin (supra) this is what Lord Keith of Kinkel said at page 88:
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It is to be kept in mind also that in actions for malicious prosecution the onus lies on the plaintiff to prove malice and want of reasonable cause. This would not be possible in the case of genuine complaints. |
In
respect of the finding of the learned SCJ that the 1982 incident was petty
in nature and long forgotten it is a finding of fact to which I have no
reason to disagree. Moreover, from the evidence adduced as a whole I agree
that the evidence of malice has. not been satisfactorily adduced, if
not absence. Maybe if there was an obvious falsity in the police report of
the respondent / defendant then perhaps it could be said to be malicious.
However in this case it was not in doubt that the statement of accounts for
the years 1990-1992 did not reflect the true state of the financial affairs
of the Society pertaining to the grant from the State Government of
RM150,000 that was received in 1989.
Accordingly,
I also find these grounds to be without any merit.
(iii)
Grounds 4(A) to 4(E)
These
grounds relate to the finding of the learned SCJ on what should be
established before a claim for general damages can be considered in an
action for malicious prosecution.
Now,
in view of my conclusions on the preceding grounds I do not think it is
necessary for me to deal with these grounds. In any event for this
ingredient it is also incumbent upon the appellant / plaintiff to prove it
in order to succeed, (see: Rawther (supra)).
From
the evidence adduced it was only from the appellant / plaintiff who stated
that due to his prosecution he had suffered mental anguish and that his name
and reputation were tarnished. He also said that due to the case his health
was affected. Unfortunately, save for what he had said, in particular
relating to his health, there was no documentary or corroborative evidence
adduced. Surely it would have been quite easy to get his medical report from
his doctor.
As
such these grounds also fail.
CONCLUSION
For
the reasons hereinabove this appeal is therefore dismissed with costs.
Cases
Rawther v Abd Kareem [1966] 2 MLJ 201; Martin v Watson (1996) AC 74
Legislations
Penal
Code: s.409
Representations
Sugumar
Balakrishnan (Sugumar & Co) for the Appellant
VK
Liew (VK Liew & Co) for the Respondent
Notes:-
This decision is also reported at [2000] 3 AMR 3057
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