Ong Yew Teik v. Kamal Y.P. Tan (CA)
Civil procedure – Application to strike out claim on grounds of multiple wrongful and unlawful action – Res judicata – Claims of malicious prosecution, conspiracy to injure, fraud and abuse of process.
The key issue in the appeal Ong Yew Teik v. Kamal Y.P. Tan & Ors (Civil Appeal No. W-02(IM)(NCvC)-1194-06/2022) was whether the Learned Judicial Commissioner’s decision to allow the Respondents’ application to strike out the Appellant’s claims warranted appellate intervention. The Court of Appeal allowed the appeal for the following reasons.
BACKGROUND FACTS
The material facts were as follows:
a) The Appellant commenced an action against the 1st Respondent to recover the debt pursuant to an Acknowledgement of Debt signed by the 1st Respondent (“Suit 1333”);
b) The High Court dismissed the Appellant’s claim against the 1st Respondent, however upon appeal before the Court of Appeal, the appeal was allowed;
c) Dissatisfied with the Court of Appeal’s decision, the 1st Respondent appealed before the Federal Court and the appeal was dismissed;
d) In the aftermath of Suit 1333, the Appellant discovered that there were multiple wrongful and unlawful actions and conducts committed by the Respondents to defraud and hinder and complicate the progress of Suit 1333;
e) Among the wrongful and unlawful conducts by the Respondents included:
-intimidation and coercion of witnesses;
-fabrication and/or forgery of documents;
-use of fabricated documents;
-preparing false affidavits, witness statements, submissions and reply submissions; and
-conspiracy with witnesses to injure the Appellant’s case.
f) As such, the Appellant commenced an action against the 2nd Respondent and other Respondents for fraud, tort of conspiracy to injure by unlawful means, tort of abuse of court process and malicious prosecution against the 1st Respondent; and
g) The High Court allowed the Respondents’ striking out applications against the Appellant. The Appellant appealed on the decision.
THE DECISION
A. Res Judicata
The Court of Appeal observed the following:
a) Suit 1333 was only against the 1st Respondent and it was premised on the breach of the Acknowledgment of Debt;
b) Issues of fraud, conspiracy by way of unlawful means and tort of abuse of process and/or malicious prosecution were never mentioned and/or submitted and/or decided in Suit 1333;
c) The 2nd, 3rd, 4th and 5th Respondents were fresh parties to this lawsuit and the Appellant had never sought damages against them in Suit 1333;
d) Fraudulent evidence and acts by the Respondents were not within the Appellant’s knowledge at the stage prior to the close of pleadings;
e) The Appellant’s present claims were not based on the facts of Suit 1333 i.e. the Acknowledgment of Debt and/or the ownership of the ECT shares; and
f) Damages claimed in Suit 1333 by the Appellant had no correlation with the present claims.
As such, the Court of Appeal found that the principle of res judicata and/or estoppel in a wider sense did not apply to the Appellant’s claims.
B. Tort of Malicious Prosecution
The Court of Appeal observed, from perusal of the pleadings, that the Appellant had set out the facts and circumstances where the 2nd Respondent and the other Respondents had given fraudulent facts and fabricated documents both in their affidavits and/or testimonies in order to assist the 1st Respondent’s intent to defraud and injure the Appellant i.e. to prevent the Appellant from enforcing his rights under the Acknowledgement of Debt and to avoid paying a debt due to the Appellant.
As such, this merits at the very least an examination of whether it amounts to malicious prosecution. The Learned Judicial Commissioner failed to consider that abuse of court process and malicious prosecution is actionable under the law of tort and is not confined to cases of winding up and bankruptcy proceedings (see Yong Yoi Mee & Anor v Malpac Holdings Berhad & Ors [2017] MLJU 1674).
C. Witness Immunity Rule
The Learned Judicial Commissioner held that the witness immunity principle extends only to the contents of the evidence provided by the witness but does not extend to the act of the witness collecting material on which he may later be called to give evidence and particularly does not extend to where the witness deliberately creates or procure false evidence for their interest of providing false evidence. The Learned Judicial Commissioner in that respect erred when he failed to realise that courts in the United Kingdom have recognised and accepted that there are exceptions to the witness immunity principle and that such protection should not a blanket one. There was at least some basis for an examination or inquiry as to whether the exceptions to the witness immunity principle ought to be extended in this jurisdiction.
Appeal allowed with costs.
Written by
Sandhya Saravanan
Member, Publications Committee
Credit: This case note was also published in the Highlights of the Appellate Court by the Publications Committee of the Malaysian Bar (2024/2025).