Sivarasa Rasiah & Ors
[2012] 1 MLRA v. Che Hamzah Che Ismail & Ors 255
SIVARASA RASIAH & ORS
v.
CHE HAMZAH CHE ISMAIL & ORS
Court Of Appeal, Putrajaya
Ramly Ali, Jeffrey Tan Kok Wha, Zaharah Ibrahim JJCA
[Civil Appeal No: W-01(IM)(NCVC)-252-2011]
26 July 2011
Civil Procedure: Striking out - Writ and statement of claim - Pleadings disclosed
causes of action or raised questions fit to be decided at trial - Whether mere fact
that case was weak sufficient ground for claim to be struck out summarily under
O 18 r 19 Rules of the High Court 1980 - Whether appropriate case for striking
out summarily.
In December 2007, the appellants were arrested during their participation
in a peaceful walk along Kuala Lumpur in conjunction with the
International Human Rights Day. They were brought before the Sessions
Court which found that the prosecution had failed to establish a prima
facie case and subsequently, acquitted and discharged all the appellants.
In December 2010, the appellants filed the present action against the
respondents, inter alia, for the following causes of action, namely: (a)
wrongful arrest and wrongful detention; and (b) malicious prosecution.
In March 2011, the respondents filed an application to strike out the
writ of summons and statement of claim pursuant to O 18 r 19(1)(a) and
(b) of the Rules of the High Court 1980 (‘RHC’). The learned judicial
commissioner allowed the respondents’ application with costs. Hence,
the appellants’ present appeal.
Held:
(1) A striking out application is not a trial on affidavits. It is not an
application where the parties have to adduce evidence to establish the
merits of their case. The court should not conduct a minute examination
of the documents and the facts of the case. So long as the claim on the
face of it discloses some cause of action or raises some question fit to be
tried, it should not be struck out. (para 14)
(2) There were a number of relevant issues that were necessary to be
tried and evidence to be adduced at trial for determination of the whole
claim by the appellants against the respondents. The pleadings clearly
disclosed some causes of action or raised some questions fit to be decided
by the judge at trial. The mere fact that the case was weak and not
likely to succeed at the trial is no ground for the claim to be struck out
summarily under O 18 r 19 of the RHC. There were several issues of
law that required mature consideration; and there were several issues of
Sivarasa Rasiah & Ors
256 v. Che Hamzah Che Ismail & Ors [2012] 1 MLRA
fact that were capable of resolution only after taking viva voce evidence. This was
obviously not an appropriate case for striking out summarily.
(para 29)
Appeal allowed with costs in the cause.
Case(s) referred to:
Kerajaan Malaysia & Ors v. Lay Kee Tee & Ors [2008] 2 MLRA 735; [2009] 1 CLJ 663 (refd)
Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 1 MLRA 611; [1993]
3 MLJ 36; [1993] 4 CLJ 7 (refd)
Lai Yoke Ngan v. Chin Teck Kwee [1997] 1 MLRA 284; [1997] 2 MLJ 565; [1997] 3 CLJ 305 FC (refd)
Shaaban & Ors v. Chong Fook Kam & Anor [1969] 1 MLRA 153 ; [1969] 2 MLJ 219; [1969] 1 LNS 170
FC (refd)
Jayaram v. PP [1982] 1 MLRA 20; [1982] CLJ (Rep) 130; [1982] 2 MLJ 306; [1982] J
Legislation referred to:
Government Proceedings Act 1956, ss 5, 6
Penal Code 1967, ss 143 & 145
Police Act 1967, ss 27(5)(a) & 27(4)
Rules of the High Court 1980, O 18 r 19(1)(a), (b)
Other(s) referred to:
Alkin’s Encyclopedia of Court Forms in Civil Proceedings, 2nd Ed. Vol. 25, 1998 Issue, p 400, para
2
Counsel:
For the appellant’s: Edmund Bon Tai Soon ( Leela J. Jesuthason with him ); M/s Faiz
& Co.
For the respondent’s: Azizan Md Arshad ( Habibah Haron and Andi Razalijaya
with him); SFC
JUDGMENT
Ramly Ali JCA:
[1] This is an appeal by the appellants against the decision of the learned High Court judge
dated 6 April 2011, allowing the respondents’ application to summarily strike out the appellants
Writ of Summons and Statement of Claim pursuant to O 18 r 19(1) of the Rules of the High
Court (RHC) 1980 with costs of RM3,000.00.
Brief Facts
[2] On 9 December 2007, the appellants were amongst a group of people
(including members of the public, lawyers, human rights activists and
Sivarasa Rasiah & Ors
[2012] 1 MLRA v. Che Hamzah Che Ismail & Ors 257
journalists) who had participated in a peaceful walk along Jalan Tuanku
Abdul Rahman to Central Market in Kuala Lumpur in conjunction with the
International Human Rights Day which falls on 10 December every year.
[3] During the event, the participants, including the appellants were ordered to
disperse by the Commanding Officer of the Police Personals at the scene i.e. the
1st respondent, Che Hamzah Che Ismail. The appellants however disregarded
the order to disperse. The 1st respondent then ordered and caused the arrests
of the appellants. (There was however an issue that the arrests were made 10
minutes before the time allowed to disperse had ended). It was not disputed
that all the appellants were physically arrested by different arresting officers
upon the orders and instructions of the 1st respondent.
[4] The appellants were detained overnight and charged the following day at
the Sessions Court Kuala Lumpur under ss 143 and 145 of the Penal Code and
alternatively, under ss 27(5)(a) and 27(4) of the Police Act 1967.
[5] At the close of the prosecution case, the Sessions Court found that the
prosecution had failed to establish a prima facie case and acquitted and
discharged all the appellants. The prosecution did not appeal against the said
acquittal.
[6] On 8 December 2010, the appellants filed the present action against the
respondents, inter alia for the following causes of action, namely:
(a) wrongful arrest and wrongful detention; and
(b) malicious prosecution.
[7] On 15 March 2011, the respondents filed an application vide Summons in
Chambers to strike out the Writ of Summons and Statement of Claim pursuant
to O 18 r 19(1)(a) and (b) of the RHC 1980. On 6 April 2011, the learned
Judicial Commissioner (JC) allowed the respondent’s application with costs.
Hence the present appeal.
[8] The learned JC allowed the respondents application to summarily strike
out the appellants’ action against all the respondents on the sole ground that
the appellants had failed to cite the arresting officers who were the tortfeasors
responsible for the alleged arrest as parties to the action, as required under ss
5 and 6 of the Government Proceedings Act 1956 (GPA) and affirmed by the
Federal Court in Kerajaan Malaysia & Ors. v. Lay Kee Tee & Ors. [2008] 2
MLRA 735; [2009] 1 CLJ 663. The learned JC held that the tortfeasors
must therefore be the arresting officers, but not the 1st respondent, who was
the commanding officer of the day in question (although the orders and
instructions to arrest came from the 1st respondent).
The Appellants’ Case
[9] The appellants contended that the requirements under ss 5 and 6 of the
GPA and affirmed in the case of Lay Kee Tee had been complied with by the
appellants’ in filing the present action, by naming the 1st respondent who had
Sivarasa Rasiah & Ors
258 v. Che Hamzah Che Ismail & Ors [2012] 1 MLRA
given the orders and instructions for the arrests, as parties to the action. To
the appellants the real tortfeasor in the circumstances of the case was the 1st
respondent and not the arresting officers who were merely acting on his orders
and did not exercise their independent judgment.
[10] The appellants further argued that the learned JC had summarily struck
out their whole action only on the ground of failure to comply with ss 5 and 6
of the GPA and the Federal Court decision in Lay Kee Tee, but had failed to
take into account that the appellants action also included a claim for malicious
prosecution against the respondents, as their additional cause of action.
[11] The appellants also complained that the requirements under ss 5 and 6
of the GPA and the decision of the Federal Court in Lay Kee Tee are only
applicable where the action is against the Government of Malaysia (the 4th
respondent in the present case). In the present case, even if the appellants had
failed to comply with ss 5 and 6 of the GPA and the decision in Lay Kee Tee,
the learned JC could only strike out the claim as against the 4th respondent (the
Government of Malaysia). The action could still have been proceeded with
against the 1st and 2nd respondents (without the Government of Malaysia as
a party).
The Respondents’ Case
[12] The respondents argued that the arresting officers, and not the 1st
respondent, were the tortfeasors and since they had not been named as parties,
the appellants had failed to comply with the requirements under ss 5 and 6 of
the GPA and therefore the claim ought to be struck out.
Decision Of The Court
[13] The principles for striking out pursuant to O 18 r 19 of the RHC 1980
are well settled. In Bandar Builder Sdn Bhd & Ors. v. United Malayan Banking
Corporation Bhd [1993] 1 MLRA 611; [193] 3 MLJ 36; [1993] 4 CLJ 7, the
Supreme Court ruled:
“The principles upon which the Court acts in exercising its power under any
of the four limbs of O 18 r 19(1) of the RHC are well settled. It is only in plain
and obvious cases that recourse should be had to the summary process under
this rule (per Lindley MR in Hubbuck & Sons Ltd v. Wilkinson, Heywood & Clard
Ltd), and this summary procedure can only be adopted when it can be clearly
seen that a claim or answer is on the face of it ‘obviously unsustainable’ (see
AG to Duchy of Lancaster v. L 7 NW Rly Co) ….
[14] A striking out application is not a trial on affidavits. It is not an application
where the parties have to adduce evidence to establish the merits of their case.
The court should not conduct a minute examination of the documents and the
facts of the case. So long as the claim on the face of it discloses some cause
of action or raises some question fit to be tried it should not be struck out.
The mere fact the case is weak and not likely to succeed is no ground for the
pleadings to be struck out.
Sivarasa Rasiah & Ors
[2012] 1 MLRA v. Che Hamzah Che Ismail & Ors 259
[15] A striking out order should not be made summarily by the court if there
is an issue of law that requires lengthy argument and mature consideration. It
should also not be made if there is an issue of fact that is capable of resolution
only after taking viva voce evidence during trial. (see: Lai Yoke Ngan v. Chin Teck
Kwee [1997] 1 MLRA 284; [1997] 2 MLJ 565; [1997] 3 CLJ 305 – Federal
Court).
[16] The test for striking out as laid down by the Supreme Court in
Bandar Builder’s case 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 claim without having to go into lengthy and mature consideration
in detail. If one has to go into a lengthy and mature consideration in detail of
the issues of law and/or fact, then the matter is not appropriate to be struck out
summarily. It must be determined at trial.
[17] In the present case, the respondents contended and the learned JC agreed,
that the appellants’ Writ and Statement of Claim should be summarily struck
out, alleging non-compliance with ss 5 and 6 of the GPA as the appellants
had not named the individual arresting officers (who physically executed the
arrests) as defendants in the suit.
[18] The appellants on the other hand claimed that the arresting officer was
the one who gave the orders and instructions to arrest and he had been named
as defendant in the suit; i.e. the 1st respondent, and therefore the appellants
had complied with the requirement under ss 5 and 6 of the GPA as well as the
Federal Court’s decision in Lay Kee Tee.
[19] The crux of the matter is really – who is the tortfeasor in the present
case? Was it the 1st respondent who ordered and instructed the arrest of the
appellants or was it the individual arresting officers who were responsible
for effecting the arrests based on the orders and instructions of the 1st
respondent ?
[20] In interpreting ss 5 and 6 of the GPA, the Federal Court in Lay Kee Tee
held:
“On the proper construction of ss 5 and 6 of the Act 359, in any claim in tort
against the government, the officer who was responsible for the alleged tortuous
act must be made a party and his liability established before the government
can be made liable vicariously as principal. It would be insufficient to merely
identify the officer without joining the officer as a party because liability by
evidence needs to be established.”
[21] The appellants submitted “the officer who was responsible for the alleged
tortuous act” i.e. the arrests in the present case can be the 1st respondent
who ordered and instructed the arrests to be made on the appellants. In the
criminal case notes of evidence at the Sessions Court Kuala Lumpur (where
all the appellants were charged, tried and later acquitted and discharged) the
1st respondent stated categorically that he made the decision to arrest and the
arresting officers were carrying out his orders. On this point this court agrees
Sivarasa Rasiah & Ors
260 v. Che Hamzah Che Ismail & Ors [2012] 1 MLRA
with the appellants that under the circumstances the 1st respondent may be
the correct tortfeasor in this case. The oral orders and instructions given by
the 1st respondent to arrest were sufficient to constitute arrest or to make him
as the officer who was responsible for the alleged tortuous act (i.e. the arrest)
as found in the Federal Court’s decision in Lay Kee Tee case. The individual
arresting officers merely obeyed and followed the orders and instructions of the
1st respondent. This was admitted by the 1st respondent in his evidence before
the Sessions Court Kuala Lumpur in the criminal case against the appellants.
The individual arresting officers were merely carrying out the orders and
instructions of the 1st respondent and could not disobey the said orders and
instructions under s 20 (1) of the Police Act 1967, which provides:
“(1) Every police officer shall perform such duties and exercise such powers
as are by law imposed or conferred upon a police officer, and shall obey
all lawful directions in respect of the execution of his office which he
may from time to time receive from his superior officers in the Force.”
[22] To support their contention on this point, the appellants cited the decision
of the Privy Council in Shaaban & Ors. v. Chong Fook Kam & Anor [1969] 1
MLRA 153; 2 MLJ 219; [1969 1 LNS 170, where it was held:
“An arrest occurs when a police officer states in terms that he is arresting or
when he uses force to restrain the individual concerned. It occurs also when
by words or conduct he makes it clear that he will, if necessary, use force to
prevent the individual from going where he may want to go.”
(Shaaban case was adopted with approval in Jayaram v. PP [1982] 1 MLRA 20;
[1982] 2 MLJ 306; [1982] CLJ (Rep) 130 and Megat Halim Megat Omar v. PP [2008] 2
MLRA 489; [2009] 1 CLJ 154).
[23] This court finds that the appellants contention on this issue is not totally
without merit. There are issues of law that need to be elaborated and argued in
great detail and for mature consideration. There are also issues of fact for the
trial court to scrutinize and determine how and what manner the orders and
instructions were made by the 1st respondent; under what circumstances and
in what manner the arrests were affected by the individual arresting officers on
all the appellants. It would be also for the trial court to scrutinize the evidence
to determine whether the 1st respondent had “cause to arrest, and if the cause
was “reasonable”. These are factual issues relevant to determine whether
the arrests were wrongful or not. Clearly, these issues cannot be summarily
disposed of by way of affidavits in a striking out application. This is not an
appropriate case to be summarily struck out under O 18 r 19 of the RHC.
[24] The above issue on who was responsible for the arrests is relevant only
to the claim for wrongful arrests on the appellants. Under ss 5 and 6 of the
GPA and the decision in Lay Kee Tee, this issue relates to the position of the
Government of Malaysia as the 4th defendant in the suit, but the learned JC
had struck out the action against all the respondents. The appellants contended
that even if the learned JC was to strike out the suit against the 3rd and 4th
respondents, as the appellants had not named the tortfeasor as alleged by the
Senior Federal Counsel for the respondents, the suit could still proceed against
Sivarasa Rasiah & Ors
[2012] 1 MLRA v. Che Hamzah Che Ismail & Ors 261
the 1st and 2nd respondents (without the Government of Malaysia as a party).
The appellants contended that it was the 1st respondent who issued orders
and instructions to arrest all the appellants and later initiated the prosecution
against all of them.
[25] This is another issue that needs to be tried. The appellants contention on
this issue is not totally without merit. It is an issue of law that need elaborate
argument and mature consideration.
[26] On reading the grounds of judgment by the learned JC, it is clear that
the learned JC had failed to consider the malicious prosecution claim by the
appellants in the same suit. It is another cause of action by the appellants as
appears in the Statement of Claim, where if the appellants succeed, damages
would ensue. It is a question for trial on evidence whether the appellants are
able to prove their case or not.
[27] Paragraph 23, of the Statement of Claim at pp 44 – 46 of the Appeal
Records sets out the lengthy particulars of the malicious prosecution claim.
The 1st respondent, whom the appellants claimed to be the main tortfeasor in
the malicious prosecution claim, has been named as a party. The appellants
contended that it was the 1st respondent who had initiated the prosecution of
the appellants which led to the criminal case against them at the Sessions Court
Kuala Lumpur. From the pleadings and submissions of counsels, it is clear
that both questions of fact and law arise that cannot be resolved without a trial.
Only at trial the appellants may be able to prove that:
(a) the respondents initiated the process of prosecution against the
appellants which led to the criminal case in the Session Court
Kuala Lumpur;
(b) the prosecution terminated in favour of the appellants (i.e. they
were acquitted in the criminal case);
(c) the respondents initiated the prosecution maliciously;
(d) there was no reasonable and probable cause for the prosecution;
and
(e) the appellants have suffered damages.
(see: Alkin’s Encyclopedia of Court Forms in Civil Proceedings, 2nd
Ed. Vol. 25, 1998 Issue, p 400, para 2).
[28] On this issue the court is in agreement with Clement Skinner J (now JCA)
in his decision in Wui Kuang Liong v. Government of Malaysia & Anor [2006] 2
MLRH 583; [2006] 4 MLJ 269; [2006] 6 CLJ 512, where the plaintiff ’s claim in
that case was for malicious prosecution. The learned judge held:
“ Here, the appellant’s cause of action is for malicious prosecution, the success
or failure of which action will depend on whether or not it can be shown that
the second respondent instituted or carried on the proceedings maliciously
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262 v. Che Hamzah Che Ismail & Ors [2012] 1 MLRA
or whether there was an absence of reasonable and probable cause for the
proceedings, which are questions that give rise to issues of mixed fact and
law which are dependent for their resolution on all the circumstances and
evidence that are disclosed at a trial. Such questions are not suitable to be
decided on disputed facts in the affidavits of the parties, and certainly cannot
be decided by merely looking at the pleadings only on an application under
the first limb of O 14 r 21(1)(a) of the SCR.”
Conclusion
[29] Based on the above considerations, this court unanimously is of the view
that there are a number of relevant issues that need to be tried and evidence
to be adduced at trial for determination of the whole claim by the appellants
against the respondents. The pleadings clearly disclose some causes of action
or raised some questions fit to be decided by the judge at trial; the mere fact that
the case is weak and not likely to succeed at the trial is no ground for the claim
to be struck out summarily under O 18 r 19 of the RHC. There are several
issues of law that require mature consideration; and there are several issues of
fact that are capable of resolution only after taking viva voce evidence. This is
obviously not an appropriate case for striking out summarily.
[30] Therefore, the appeal is allowed with costs in the cause. Deposit to be
refunded.