Civil Procedure: Striking out — Tort — Striking out plaintiff's suit against defendants for fraud and forgery, conspiracy to fabricate evidence, abuse of process and malicious prosecution allegedly committed in an earlier suit — Whether defendants covered by absolute witness immunity — Whether permissible for party who had been successful in a first action to mount second action against same opposing party based upon conduct and/or evidence of said opposing party — Whether malicious prosecution ought not be a recognised cause of action in civil proceedings — Whether cause of action premised upon tort of fraud based on perjury a recognised and/or actionable claim

The filing of the plaintiff/respondent's claim in the High Court against the defendants/appellants in these four appeals and another defendant, Yee Teck Fah, who was not a party in these appeals or the Court of Appeal, was almost 14 years after an earlier suit he filed in Suit 1333 ("the 1st suit") against the 1st defendant, Kamal YP Tan ("Kamal") for breach of Kamal's promise to pay him monies owing to him under an acknowledgement of debt signed by Kamal for the transfer of shares in a Thailand-based company in the sum of RM8,018,225.00. The High Court in Suit 1333 dismissed the plaintiff's claim and allowed Kamal's counterclaim of RM3,584,211.42 for an alleged personal loan given to the plaintiff. This decision was set aside by the Court of Appeal on appeal by the plaintiff, and Kamal's application for leave to appeal to this Court, as well as his application for a review of the said decision, were dismissed by this Court. Kamal thereafter paid the plaintiff the full judgment sum, interest, and costs. Despite the legal victory, the plaintiff filed Suit 460, ("the 2nd suit"), which was the subject matter of these appeals, against the witnesses in Suit 1333, ie Kamal, Ng Wai Pin ("2nd defendant"), Michael Gunalan Benedict ("3rd defendant"), Wong Yoke Yen ("4th defendant"), Wong Fook Lin ("5th defendant") ("D1-D5") and Yee Teck Fah ("6th defendant"). Suit 460 was a tortious claim against the defendants, premised on an alleged fraud and forgery, conspiracy by them to fabricate evidence against the plaintiff, and for the tort of abuse of process, based on the allegation that they falsely claimed that Kamal had given personal loans to the plaintiff for RM3,584,211.42. Kamal was also sued for malicious prosecution for filing his counterclaim in Suit 1333 because he did so maliciously "with the sole purpose to convolute, dilute, delay, intimidate and oppress" the plaintiff from proceeding with his main claim in Suit 1333. Except for the 6th defendant, all the defendants filed a striking out application against the plaintiff, which the High Court allowed, but which decision was reversed by the Court of Appeal pursuant to separate notices of appeal filed by the plaintiff against the defendants herein. Aggrieved, the appellants filed separate applications for leave to appeal to this Court, and were granted leave on the following questions of law: (1) whether the common law principle of immunity of a party and witness from liability in a civil action, subsequent or otherwise, in respect of evidence, oral and/or written, given in judicial proceedings, was absolute; (2) whether it was permissible for a party who had been vindicated and/or was successful in a first action to mount a second action against the same opposing party in the first action based upon the conduct and/or evidence of the said opposing party; (3) whether the minority views as expressed in Crawford Adjusters And Others v. Sagicor General Insurance (Cayman) Ltd & Another ("Crawford") and Willers v. Joyce And Another (In Substitution For And In Their Capacity As Executors Of Albert Gubay (Deceased)) (No 1) ("Willers") respectively and the decision of Lee Tat Development Pte Ltd v. Management Corporation Strata Title Plan No 301 ("Lee Tat Development") on the existence and availability of the tort of malicious prosecution to civil proceedings were to be adopted in Malaysia; and (4) whether a contended cause of action premised upon the tort of fraud based on perjury was a recognised and/or actionable claim in Malaysia.

Held (allowing the defendants/appellants' appeals with costs):

Per Zabariah Mohd Yusof FCJ (Majority):

(1) The witness immunity rule would protect parties or witnesses from actions based on their acts or statements within judicial proceedings. If, at the striking out application, it was determined that witness immunity applied, then the case would be struck out without having to go for trial. However, if the determination at the striking out application was that witness immunity was not applicable, only then would the case go for trial. It would defeat the whole purpose of invoking witness immunity if a witness were to go for a full trial first to determine whether immunity applied, as he would have been vexed at the full trial in the 2nd suit when defending the claim by the plaintiff. No matter how the plaintiff crafted the causes of action in the 2nd suit, it was pertinent to scrutinise the particulars of the pleadings of the relevant torts alleged against the defendants. In the present appeals, the pleadings disclosed that the 2nd suit arose from the testimony and acts of witnesses in the course of judicial proceedings. The pleadings failed to disclose that the claim fell outside the bounds of witness immunity. Therefore, witness immunity was to be determined at the striking out application at the pleading stage, before proceeding to full trial. (paras 46-48)

(2) Given the authorities regarding witness immunity, the High Court was correct in determining that D1-D5 were entitled to rely on witness immunity or privilege. Whilst the rule was absolute in core immunity, there might be exceptions depending on the context and the specifics. It did not preclude prosecution for perjury, perverting the course of justice, or contempt of Court, liability for malicious prosecution or misfeasance in public office. As the pleadings in the present appeals stood, nothing turned on the exceptions. Hence, the allegations against the defendants in the pleaded case came within the ambit of core immunity as they related to what was said and things done in Court in the course of judicial proceedings. Absolute immunity applied to the defendants in these appeals, which covered statements made in the course of judicial proceedings, even those which were untrue and made maliciously. This included acts done from the inception of the proceedings onwards and extended to all pleadings and other documents brought into existence for the proceedings. This was necessary to protect the proper functioning of the judicial system and administration of justice. (para 110)

(3) It mattered not, whether the action was framed as an action for fraud, tort of conspiracy to injure by unlawful means, tort of abuse of Court process, fabrication of documents, preparation and filing of false witness statements and conspiracy to defeat the plaintiff's claim and malicious prosecution, as in the present appeals, it was a rule of law that no action lay against witnesses in respect of evidence prepared, given, adduced or procured by them in the course of judicial proceedings. Consequently, D1-D5 were immune from any civil action concerning the evidence provided as the witnesses during the trial of Suit 1333, especially given that the plaintiff's action in the High Court herein was to claim damages against D1-D5. The plaintiff's claim against D1-D5 was unsustainable and should be struck out. Thus, the decision of the High Court did not warrant any appellate interference by the Court of Appeal. The Court of Appeal erred in law and fact by allowing the plaintiff's appeal and disregarding the application of witness immunity to D1-D5. Therefore, Question 1 was answered in the affirmative, and the determination by this Court that the defendants were covered by absolute witness immunity was an overarching point which was sufficient to deal with the present appeals in its entirety. (paras 111-114)

(4) The 2nd suit by the plaintiff against the defendants was an abuse of the Court's process. The plaintiff had been vindicated and/or was successful in the 1st suit, and could not mount a second action against the same party in the first action based on the conduct and/or evidence of the said opposing party. This would lead to litigation ad infinitum, which the law sought to avoid. There were also no express findings of fabrication of evidence, the tort of perjury, fraud, forgery, conspiracy, malicious prosecution or abuse of the Court's process in the 1st suit. Allowing the 2nd suit to go for trial would allow re-litigation on the same issues that had been decided in the 1st suit. The High Court Judge, thus, did not err when he held that it was an abuse of the Court's process for the plaintiff to reopen or relitigate the issues again in the present appeals. The plaintiff's claim against D1-D5 concerned the evidence that was presented in the 1st suit, and the damages or loss claimed were all related to the failure of D1 to pay the principal sum of RM8,018,225.00 expeditiously. The High Court Judge also found that there was clear substantial duplication of issues and reliefs of damages sought in the 1st suit and the present appeal. Such findings by the High Court did not warrant any appellate intervention by the Court of Appeal. Therefore, Question 2 was answered in the negative. (paras 120-122, 132, 133 & 134)

(5) Going by the guidelines given by the Supreme Court in Witters, there was no definitive guidance from the case laws as to what must be proven to succeed in a claim for civil malicious prosecution, especially in proving malice. The Supreme Court there relied on previous precedent, which related to criminal malicious prosecution claims. Lee Tat Development and the dissenting judgments in Crawford and Witters advocated for a very cautious approach in extending it to civil claims. This was because it would undermine the principle of finality of litigation and legal process, as this would encourage satellite litigation, as in Lee Tat Devetopment, where parties were disputing, not the original subject matter of dispute, but the conduct of the dispute itself. In the process, it opened floodgates of unnecessary litigation and took up the Court's time and resources. In the context of tort law, the principle was that malice was generally irrelevant. Hence, to extend the tort to civil proceedings would be inconsistent with this principle. Also, the extension of the claim of malicious prosecution to civil proceedings was still an area that was largely unsettled across the commonwealth jurisdiction. Jurisdictions such as the UK, Australia, Hong Kong, and Singapore had divergent approaches in extending the tort to civil proceedings. (paras 153-155)

(6) The preferred approach would be to adopt the principles as enunciated by the Singapore Court of Appeal in Lee Tat Development and the minority view of the Privy Council case and the UK case of Crawford and Witters to be adopted in terms of the Malaysian jurisprudence. The plaintiff had obtained a judgment in his favour in the 1st suit, and he had also received the full judgment with interest and costs. There was no mischief to be remedied. Malicious prosecution as pleaded herein ought not to be a recognised cause of action in civil proceedings and, thus, was rightly struck out by the High Court. The answer to Question 3 was, therefore, in the affirmative. (paras 157-161)

(7) On the alleged tort of fraud based on perjury, Malaysia did not recognise a general tort of fraud based on alleged perjury in the 1st suit as suggested by the plaintiff. The alleged existence of such tort would run contrary to the principle of the doctrine of witness immunity. The appropriate remedy for perjury was within the realm of criminal law, which required perjury to be proven beyond reasonable doubt. Introducing a new tort of perjury would tantamount to circumventing the rigorous threshold of the burden of proof and ignoring the underlying rationale to avoid the "chilling effect" on potential witnesses. The defendants were, on the facts, already facing charges for alleged perjury in the criminal Court pursuant to the police report lodged by the plaintiff, four months after the decision of the High Court in the present appeals. Hence, the answer to Question 4 was in the negative. (paras 167-169)

Per Rhodzariah Bujang FCJ (Dissenting):

(8) These appeals involved striking out applications filed by all the defendants herein under O 18 r 19(1) of the Rules of Court 2012 and the law on this was trite and very much settled, which was only in a plain and obvious case that the Court would resort to the summary procedure of denying a plaintiff or a defendant (as the case might be) the chance or opportunity of ventilating their claim or defence in Court in a full trial. (para 181)

(9) There should not be a blanket application of the witness immunity rule because it would deny access to the Courts to remedy a serious wrong. The fact that the plaintiff had been fully vindicated in Suit 1333 by the ultimate satisfaction of the judgment sum he obtained in the said suit could not be, by itself, a prohibition against the filing of this action against the defendants and Yee Teck Fah, but was a consideration in determining the quantum of damages, if the plaintiff won in his suit against them and successfully proved that there was an engineering or fabrication of evidence and conspiracy to defraud by the defendants and Yee Teck Fah against him. Thus, on the facts of this case, the plaintiff's claim against the defendants and Yee Teck Fah based on their alleged fraudulent acts and perjury, was not an unsustainable one that did not merit a full trial. Therefore, Questions 1, 2, and 4 were answered in the positive. (para 186)

(10) In respect of the plaintiff's claim specifically against D1 for the tort of malicious prosecution, which was the substance of Question 3, the Privy Council case of Crawford was the majority decision which overturned the very much earlier decision in Quartz Hill Consolidated Gold Mining Co v. Eyre, which held that the said tort was not available even though the civil action was brought maliciously and without reasonable and probable cause. Crawford held that the tort of malicious prosecution was available generally to civil proceedings, which decision that was affirmed by the majority of five judges (with four judges dissenting) of the Supreme Court of England in Willers. However, the Court of Appeal of Singapore in Lee Tat Development shared the same view with the minority judges in both Crawford and Willer by deciding that the said tort did not extend to civil proceedings generally, except in the special cases. Counsel for the plaintiff had also cited a Hong Kong case, ie Chua, Grace Gonzales v. Sobrevilla, Rhennie Boy Fernandez, which considered Crawford and noted that "malicious proceeding is recognized as a viable tort at common law" and to a decision of its own Court in Yanfull Investments Ltd v. Datuk Ooi Kee Liang where the Judge refused a striking out application because the judge was not convinced that the claim for malicious proceedings before him was so devoid of merit that he could strike it out and that decision was affirmed by the Court of Appeal of Hong Kong. Therefore, the Court in Chua, Grace Gonzales also declined to strike-out the claim simply on the ground that the tort itself was not recognised at law. In this regard, the tort of malicious prosecution in civil proceedings was also available in New Zealand, as mentioned in Burgess v. Beaven. Thus, after consideration of the said authorities, the tort of malicious prosecution applied in Malaysia, as in these other jurisdictions, and was not limited to just the civil actions listed in Crawford's case, because the existence of the said cause of action could be a form of deterrent against unscrupulous litigants who were motivated by malice, bad faith or unlawful extraneous considerations to file a claim against another for, as held in Chua, Grace Gonzales, the wrong that was at the heart of the tort of malicious prosecution was the manipulation of the legal system. In any case, in the event the claim for malicious prosecution failed after evidence at full trial of the case disclosed that it was unsustainable or was raised without any valid legal justification, the plaintiff could always be punished by the Court's order on costs, which in itself, should be a form of deterrent to the filing of such a claim by unscrupulous litigants. Hence, Question 3 should be answered in the negative, and the four appeals should be dismissed with costs. (paras 187-189)

Case(s) referred to:

Ampthill Peerage [1976] 2 AER 411 (refd)

Arthur J S Hall & Co (A Firm) v. Simmons Barratt v. Woolf Seddon (A Firm) Harris v. Scholfield Roberts & Hill (A Firm) [2002] 1 AC 615 (refd)

Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 1 MLRA 611 (refd)

Burgess v. Beaven [2020] NZHC 497 (refd)

Cabassi v. Villa [1940] 64 CLR 130 (refd)

Chua, Grace Gonzales v. Sobrevilla, Rhennie Boy Fernandez [2017] HKCU 2145 (refd)

Clavel v. Salvage [2013] NSWSC 775 (refd)

Commonwealth v. Griffiths [2007] NSWCA 370 (refd)

Crawford Adjusters And Others v. Sagicor General Insurance (Cayman) Ltd And Another [2013] UKPC 17 (refd)

Daniels v. Chief Constable Of South Wales [2015] EWCA Civ 680 (refd)

Damport v. Sympson [1596] 78 ER 769 (refd)

Darker v. Chief Constable Of The West Midlands Police (UK) [2000] UKHL 44 (distd)

Dato' Sri Mohd Najib Abd Razak v. Ambank Islamic Bank Berhad & Ors [2021] 4 MLRH 529 (refd)

D' Orta Ekenaike v. Victoria Legal Aid [2005] HCA 12 (refd)

Elliot v. Insurance Crime Prevention Bureau [2005] NSJ No 323 (refd)

Gasing Heights Sdn Bhd v. Aloyah Abd Rahman & Ors [1996] 2 MLRH 631 (refd)

Hall v. Simmons [2002] 1 AC 615 (distd)

Hargreaves v. Bretherton [1959] 1 QB 45 (refd)

Jones v. Kaney [2011] 2 WLR 823 (distd)

Kerajaan Malaysia v. LFL Sdn Bhd & Another Appeal [2025] 1 MLRA 327 (refd)

Lee See Woo v. Chu Hong Pong [2020] HKCU 3519 (refd)

Lee Tat Development Pte Ltd v. Management Corporation Strata Title Plan No. 301 [2018] SGCA 50 (folld)

Malaysia Building Society Bhd v. Tan Sri General Ungku Nazaruddin Ungku Mohamed [1998] 1 MLRA 67 (refd)

Marrinan v. Vibart And Another [1963] 1 QB 528 (refd)

Munster v. Lamb [1883] 11 QBD 303 (refd)

Quartz Hill Consolidated Gold Mining Co v. Eyre [1883] 11 QBD 674 (refd)

Renault SA v. Inokom Corporation Sdn Bhd & Anor And Other Applications [2008] 3 MLRA 504 (refd)

Reynolds v. The City Of Kingston Police Services Board et al [2007] 84 OR (3d) 738 (refd)

Rondel v. Worsely [1969] 1 AC 191 (refd)

Roy v. Prior [1971] AC 470 (refd)

Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 2 MLRA 263 (refd)

Silcott v. Commissioner Of Police For The Metropolis [1996] 8 Admin LR 633 (refd)

Singh v. Reading Borough Council And Another [2013] 1 WLR 3052 (distd)

Stanton v. Callaghan [2000] QB 75 (refd)

Sum Cheung Wai v. Tsui Hin Yuet [2016] 6 HKC 494 (refd)

Surzur Overseas Ltd v. Koros And Others [1999] AER (D) 200 (distd)

Symphony Group Plc v. Hodgson [1994] QB 179 (refd)

Takako Sakao v. Ng Pek Yuen & Anor (No 3) [2009] 3 MLRA 96 (refd)

Tony Pua Kiam Wee v. Government Of Malaysia & Another Appeal [2019] 6 MLRA 432 (refd)

Terengganu State Economic Development Corporation v. Nadefinco Ltd [1982] 1 MLRH 644 (refd)

Willers v. Joyce And Another (In Substitution For And In Their Capacity As Executors Of Albert Gubay (Deceased)) (No 1) [2016] UKSC 43; [2016] WLR 477 (refd)

Yanfull Investments Ltd v. Datuk Ooi Kee Liang [2017] 5 HKC 42 (refd)

Legislation referred to:

Civil Procedure Rules 1998 [UK], r 21.01(1)(b)

Penal Code, s 193

Rules of Court 2012, O 18 r 19(1)(a), (b), (c), (d)

Counsel:

For Civil Appeal No: 02(i)-38-09-2024(W):

For the appellant: Elizabeth Lau (Hazel Siau with her); M/s Elizabeth Lau

For the respondent: Rajan Navaratnam (Oazair Huneid Tyeb with him); M/s Roshan

For Civil Appeal No: 02(i)-39-09-2024(W):

For the appellant: Robert Low (Karen Yong Hwei Woon & Khong Mei-Yan with him); M/s Robert Low & Ooi

For the respondent: Rajan Navaratnam (Oazair Huneid Tyeb with him); M/s Roshan

For Civil Appeal No: 02(i)-40-09-2024(W):

For the appellant: Nicholas Poon; M/s Kit & Associates

For the respondent: Rajan Navaratnam (Oazair Huneid Tyeb with him); M/s Roshan

For Civil Appeal No: 02(i)-41-09-2024(W):

For the appellants: Surendra Ananth (Khoo Suk Chyi with her); M/s Surendra Ananth

For the respondent: Rajan Navaratnam (Oazair Huneid Tyeb with him); M/s Roshan

[For the Court of Appeal judgment, please refer to Ong Yew Teik v. Ng Wai Pin & Other Appeals [2025] 2 MLRA 246]

JUDGMENT

Zabariah Mohd Yusof FCJ (Majority):

[1] The 4 appeals before us originated from striking out applications by the 5 appellants (1st defendant-5th defendant in the High Court) under O 18 r 19(1) of the Rules of the Court 2012 in the High Court, which allowed the striking out applications. Appeals by the 5 appellants (1st defendant-5th defendant in the High Court) to the Court of Appeal resulted in the Court of Appeal reversing the decision of the High Court and remitting the cases back to the High Court for a full trial.

[2] These 4 appeals relate primarily to the issues of witness immunity when testifying in court proceedings, the application of the doctrine of finality of litigation, and implications of enforcement of such a doctrine, which may lead to an ad infinitum/satellite litigation. The appeals raise an important and novel point of law, namely, whether the witnesses have absolute immunity from liability in a civil action, subsequent or otherwise, in respect of evidence, oral and/or written, given in judicial proceedings.

[3] Other related issues are pertaining to the applicability of the tort of malicious prosecution in civil proceedings, and the applicability of the tort of fraud based on perjury is a recognised/actionable claim in Malaysia.

[4] For convenience, we will refer to the parties as they were in the High Court. The parties in the present appeals are as follows:

i. 02(i)-38-09-2024(W) — appeal of Ng Wai Pin (D2 in the High Court). The striking out applications was pursuant to O 18 r 19(1)(a) of the Rules of Court 2012;

ii. 02(i)-39-09-2024(W) — appeal of Kamal Y.P. Tan (D1 in the High Court). The striking out applications were pursuant to O 18 r 19(1)(a), (b), (c), (d) of the Rules of Court 2012 and inherent jurisdiction of the Court;

iii. 02(i)-40-09-2024 (W) — appeal of Wong Yoke Yen (D4 in the High Court). The striking out applications were pursuant to O 18 r 19(1)(a), (b), (c), (d) of the Rules of Court 2012; and

iv. 02(i)-41-09-2024(W) — appeals of Michael Gunalan Benedict & Wong Fook Lin (D3 & D5 in the High Court). The striking out applications was pursuant to O 18 r 19(1)(a), (b), (d) of the Rules of Court 2012.

Questions Of Law:

[5] This Court had allowed leave to appeal on the following common questions of law for all of the appeals, which are as follows:

1. Whether the common law principle of immunity of a party and witness from liability in a civil action, subsequent or otherwise, in respect of evidence, oral and/or written, given in judicial proceedings is absolute.

2. Whether it is permissible for a party who had been vindicated and/or was successful in a first action to mount a second action against the same opposing party in the first action based upon the conduct and/or evidence of the said opposing party.

3. Whether the tort of malicious civil prosecution is only actionable and/or confined to the specific instances set out at para 67 of the Privy Council decision of Crawford Adjusters And Others v. Sagicor General Insurance (Cayman) Ltd And Another [2013] UKPC 17.

4. Whether a contended cause of action premised upon the tort of fraud based on perjury is a recognised and/or actionable claim in Malaysia.

[6] Subsequently, during submissions, counsel for D1 applied for Question 3 to be revised as follows:

3. Whether the minority views as expressed in Crawford and Willers, respectively, and the decision of Lee Tat Development on the existence and the availability of the tort of malicious prosecution to civil proceedings are to be adopted in Malaysia. This revised question was objected to by counsel for the plaintiff. After hearing submissions from both sides, we allowed the application for Question 3 to be revised.

[7] As for the main appeal, after hearing submissions from all parties, both oral and written, including perusing through the relevant cause papers, the panel came to a split decision. Zabariah Mohd Yusof FCJ and Hanipah Farikullah FCJ formed the majority judgment whilst Rhodzariah Bujang FCJ dissented. The majority allowed the appeal with costs.

[8] We hereby state our reasons for the decision. This judgment constitutes the majority judgment of this Court.

Background Facts

[9] These appeals relate to 3 suits in the High Court. They are Suit 1333, Suit 1530, and Suit 460.

Suit 1333

(Ong Yew Teik v. Kamal YP Tan)

[10] In 2007, Ong (the plaintiff) had filed a suit in the High Court against Kamal Y.P. Tan (D1) for an unpaid sum of more than RM8,018,225.00 based on an acknowledgment of a debt for the sale of shares in a company in Thailand known as Euroceramic Technologies Company Ltd (ECT) [This Suit is referred to as "Suit 1333 (the 1st suit)" in this judgment]. The plaintiff claims that this was in the Acknowledgement of Debt executed by D1 in favour of the plaintiff in the Letter of Pre-Agreement/Undertaking dated 26 October 2006. D1 denied the claim and filed a counterclaim for loans, which the plaintiff argued had already been compromised through the acknowledgement of debt.

[11] In Suit 1333 (the 1st suit), the plaintiff was unsuccessful in the High Court but succeeded in the Court of Appeal (Appeal 1694), and D1's counterclaim was dismissed. There were no express findings of fraud, perjury, malicious prosecution, abuse of process or conspiracy against D1 and the defendants by the Court of Appeal. D1 appealed to the Federal Court, wherein leave was dismissed, and a subsequent review application by D1 was also dismissed. The effect of the Court of Appeal decision in Appeal 1694 is that D1 has to pay the plaintiff and Roger Yue Sau Yin for the same ECT Shares.

[12] Pursuant to the Court of Appeal decision, D1 has paid to the plaintiff the judgment sum of RM8,018,225.00 with interest at 5% p.a. from the date of filing to the date of realisation, and costs of RM100,000.00.

Suit 1530

(Roger Yue Sau Yin v. Kamal YP Tan)

[13] In 2010, the plaintiff's uncle, Roger Yue Sau Yin sued D1, allegedly for breaching a sale and purchase agreement of the same ECT shares as Roger claimed that the sum of RM3.8 million was due to him [referred to as "Suit 1530"]. This suit is separate and distinct from Suit 1333 (the 1st suit), although it was ordered to be tried together.

[14] Suit 1530 was determined in favour of Roger Yue. D1 did not appeal against the judgment of Suit 1530.

Suit 460 (the 2nd Suit)

(Ong Yew Teik v. Kamal YP Tan, Ng Wai Pin, Michael Gunalan Benedict, Wong Yoke Yen, Wong Fook Lim, Yee Teck Fah)

[15] After Suit 1333 (the 1st suit), the plaintiff filed Suit 460 (the 2nd suit), which resulted in the present 4 appeals before us. In Suit 460 (the 2nd suit), the plaintiff sued 6 defendants (i.e., Ng Wai Pin, Kamal Y.P. Tan, Wong Yoke Yen, Michael Gunalan, Wong Fook Lin, Yee Teck Fah) in tort in the High Court.

[16] D1 was the defendant, and D2-D5 in Suit 460 (the 2nd suit) were witnesses in Suit 1333 (the 1st suit). Yee Teck Fah (D6), was D1's lawyer in Suit 1333 (the 1st suit) and is not a party to the appeal herein.

[17] The plaintiff in Suit 460 (the 2nd suit) claimed that all the defendants committed fraud and perjury in the trial of Suit 1333 (the 1st suit) at his expense, in order to cause him damage and loss in his claim in Suit 1333 (the 1st suit) by depriving him of his entitlement to the sale proceeds of his ECT shares to D1. He also sued D2-D6 for unlawfully conspiring when they supported the fabricated and false facts alleged by D1 in fabricating evidence, and the tort of abuse of legal process. D2-D6 were never parties to Suit 1333 (the 1st suit).

[18] The plaintiff claimed that the defendants allegedly falsely claimed that D1 had given personal loans to the plaintiff, amounting to RM3,584,211.42.

[19] The plaintiff specifically sued D1 for the tort of malicious prosecution based on the same alleged acts. The plaintiff alleged that this was done to cause and/or with the knowledge that it would cause his mining ventures and business to collapse, causing him to go bankrupt. The plaintiff also alleged that in addition to the aforesaid, further preparatory acts that were conducted prior to the trial of Suit 1333 (the 1st suit), D6 together with D1 had conspired with D3 and D5 to dupe, coerce and manipulate the other witnesses (Kong Ah Choo, Edward Moses and Law Swee Haw, who have since recanted and have filed police reports against D1 and D6), to abet and support D1's false evidence and fabricated documents and facts. The plaintiff claimed that all these were only discovered after the conclusion of the trial, when they lodged police reports on the unlawful acts committed.

[20] Five out of the six defendants in the High Court applied to strike out Suit 460 (the 2nd suit) against them based on grounds of witness immunity, res judicata, abuse of process, failure to plead a valid cause of action against them, and that the plaintiff had already been fully compensated for his alleged damages in Suit 1333 (the 1st suit).

[21] The present appeals are in relation to the striking out applications by the respective D1-D5 in Suit 460 (the 2nd suit).

In The High Court

[22] The learned High Court Judge allowed the 4 striking out applications by D1-D5 on the following grounds:

res judicata

(a) The plaintiff's claim arises solely from the defendants' evidence in the trial of Suit 1333 (the 1st suit). The background facts in this suit are the same as in Suit 1333 (the 1st suit);

(b) The damages prayed for by the plaintiff in paras 71-75 of the Statement of Claim relates to the failure of D1 to pay the sum of RM8,018,225.00 and because D1 defended the Suit 1333 (the 1st suit), and filed a counterclaim;

(c) The plaintiff submitted that he could not have included the claim for the tort of abuse of process, malicious falsehood and the alleged fraud in the Suit 1333 (the 1st suit), as at the time of filing of the Suit 1333 (the 1st suit), there has yet to be a complete cause of action. It could only be filed after his claim was decided in his favour;

(d) The learned High Court Judge did not agree in relation to the claim for the tort of abuse of process and the related fraud/perjury. He held that the facts that the plaintiff relied on, i.e., the alleged fraudulent evidence, perjury, false affidavits and submissions filed by D1 with the assistance of the other defendants were all available in Suit 1333 (the 1st suit). The plaintiff could have filed his allegation that the evidence, documents and submissions were false in his answer to the counterclaim by D1;

(e) Even though D2-D6 were not parties in Suit 1333 (the 1st suit), this does not mean the doctrine of res judicata does not apply;

(f) It would be an abuse of court's process for the plaintiff to attempt to re-open the issues in this new suit as the claim against D2-D6 is all concerning the evidence presented in the earlier suit and the damages claimed relates to D1's failure to pay the principal sum expeditiously. There is clear "substantial duplication of issues and reliefs sought in Suit 1333 (the 1st suit) and in Suit 460 (the 2nd suit);

(g) These issues could have been raised in the earlier Suit 1333 (the 1st suit) and it would be wrong to allow the plaintiff to have a second bite of the cherry in a clear attempt to seek additional damages based on the same facts as those raised earlier;

(h) The alleged perjury and alleged fraudulent representation of evidence by the defendants were before the High Court and were eventually dealt with by the Court of Appeal in Suit 1333 (the 1st suit);

(i) Therefore, the plaintiff is barred by res judicata from pursuing the claim based on the tort of abuse of process against D1-D5.

Malicious Prosecution

(j) Malaysian jurisprudence limits the application of the tort of malicious prosecution to claims that relate to either the institution of winding-up or bankruptcy proceedings that were instituted mala fide. The extent and limits of the said tort remain unanswered in English law;

(k) Being bound by stare decisis, the learned High Court Judge struck out the claim against the defendants based on the tort of malicious prosecution;

Conspiracy

(l) This claim is based on the same factual matrix as the other claims above, but based on the pleadings, the plaintiff has sufficiently pleaded the necessary elements for the tort of conspiracy. The learned High Court did not strike out the claim premised on conspiracy claims;

Fraud for Alleged Perjury

(m) This is not recognised based on Malaysian common law and if it is, it will potentially lead to the opening of floodgates to every litigant dissatisfied with the evidence presented by witnesses for opponent;

(n) The issue of perjury or presentation of false evidence also could have been raised in Suit 1333 (the 1st suit). It would be inappropriate for this court to investigate the same factual matrix and evidence presented in Suit 1333 (the 1st suit) to determine whether the defendants have perjured themselves;

Witness Privilege

(o) This immunity is still applicable under English law but does not exist in certain limited circumstances. This is to be distinguished from the rule of absolute immunity in other commonwealth jurisdictions, such as Australia and Canada. Malaysia still utilises the absolute immunity rule for witnesses;

(p) There are always exceptions to the general rule. The limitation to the said witness' immunity arises where it could be shown that the said witness has a duty to the litigant such as a friendly expert or where the statements were not part of court proceedings;

(q) Based on the current legal position under Malaysian law, the defendants are entitled to rely on the defence of witness immunity;

(r) However egregious the conduct of the defendants in Suit 1333 (the 1st suit), these issues should have been heard and disposed of, at the said suit. To enable the plaintiff to now file a new suit based on the same facts and same evidence against the witnesses is not in the best interest of the administration of justice;

(s) The exceptions to the general rule of immunity do not apply to the pleaded case against the defendants. They do not owe any duties to the plaintiff and the statements or evidence presented at the Suit 1333 (the 1st suit) and the statements were made during legal proceedings;

The Plaintiff Has Been Fully Compensated In Suit 1333 (The 1st Suit)

(t) The Court of Appeal in Suit 1333 (the 1st suit) had allowed the plaintiff the full sum claimed against D1 with interest at the rate of 5% p.a. from the date of filing to the date of full realisation. If the plaintiff had suffered damages as a result of the failure by D1 to repay him early, i.e., the loss of the mining ventures, bankruptcy and other financial losses, then he should have raised these claims in those proceedings;

(u) The claim against the defendants for these damages should be struck out to ensure that the court process is not abused by the aforesaid litigant and to ensure finality to litigation.

[23] Ultimately, the High Court struck out the claim against the defendants.

In The Court of Appeal

[24] The panel allowed the appeal by the plaintiff. The decision of the Court of Appeal was premised on the following reasons, inter alia:

a) In this case, the court examined the plaintiff's claims, which included allegations of conspiracy, fraud, abuse of process, and malicious prosecution.

b) The court highlighted that the principles for striking out pleadings under O 18 r 19 of the Rules of Court 2012 require that such action only be taken in clear and obvious cases. The plaintiff's claims were based on conspiracy to fabricate false evidence and to defraud the appellant during the trial of Suit 1333 (the 1st suit), which was not the subject of the initial proceedings. The court found that the plaintiff had not previously raised these issues in Suit 1333 (the 1st suit), as the fraudulent actions and fabricated evidence were only discovered after the close of pleadings in that suit. Therefore, the plaintiff's current claim was not barred by res judicata or estoppel, as it concerned a different set of facts related to the defendants' alleged misconduct, not the breach of the Acknowledgment of Debt from Suit 1333 (the 1st suit).

c) The court also addressed the claim of malicious prosecution, which was based on the defendants' alleged abuse of the court process by submitting false evidence and intimidating witnesses to mislead the court in Suit 1333 (the 1st suit). The plaintiff argued that the 1st defendant had made a false counterclaim to injure the plaintiff, and that the defendants had conspired to support fabricated facts through false affidavits and documents. The High Court had previously ruled that a claim for malicious prosecution was only applicable to winding-up and bankruptcy proceedings, a view the court disagreed with, citing the tort of abuse of process as actionable in various circumstances, not just in winding-up cases.

d) The court further disagreed with the High Court's decision to strike out the plaintiff's claim of conspiracy, noting that the facts alleged required a more thorough examination at trial.

e) Finally, the court considered the issue of witness immunity, noting that the High Court had wrongly interpreted the scope of witness immunity. The plaintiff contended that the immunity should not apply to acts of procuring false evidence. The court found merit in the plaintiff's position, suggesting that exceptions to witness immunity, recognized in jurisdictions like the UK, could also apply in Malaysia, especially in cases of fraud and deliberate misconduct.

f) Given the complexity of the claims and the serious legal questions raised, the court concluded that the plaintiff's case was not so plainly unsustainable as to warrant summary disposal. As a result, the court allowed the plaintiff's appeal, set aside the previous judgment, and remitted the case to the High Court for a full trial, with costs of RM60,000.00 awarded for each appeal.

[25] Dissatisfied with the Court of Appeal's decision above, the defendants now appeal to the Federal Court with the aforementioned questions of law.

Analysis And Findings

The Premise Of Suit 460 (The 2nd Suit) Against Each Of The Defendants

[26] Suit 460 (the 2nd suit) is against D1-D6 filed in 2021. The background facts relate to the same background facts as in Suit 1333 (the 1st suit), namely, the ECT Sale of Shares and acknowledgement of debt claimed, which had been ventilated and adjudged, and judgment sum had been paid to the plaintiff in Suit 1333 (the 1st suit).

[27] The claim against D1 in Suit 460 (the 2nd suit) is premised on perjury, fraud, forgery, conspiracy, malicious prosecution, and abuse of the court's process. According to the pleadings, the particulars as enumerated in the claim against D1, the allegations are all in respect of the false evidence allegedly given by D1 and the other defendants in the course of giving evidence in Suit 1333 (the 1st suit).

[28] Essentially, the plaintiff's claim for loss and damage against D1 is that he had suffered loss because of D1's refusal to pay the RM8,018,225.00 which is the judgment sum awarded in Suit 1333 (the 1st suit) and from D1's conduct in mounting an unmeritorious counterclaim in Suit 1333 (the 1st suit) and gave false evidence. For this, we refer to para 71 of the Statement of Claim, which states:

(a) Inability to pay for annual fees resulting in loss of mining concessions;

(b) Inability to pay for operating expenses resulting in closure of mining ventures;

(c) Inability to repay loans resulting in forced sale/repossession of properties, being adjudicated bankrupt, and blacklisted by Banks;

(d) Hefty legal fees, loss of reputation, loss of opportunity costs, unemployment, humiliation and mental anguish.

[29] Although the pleaded claim by the plaintiff consists of allegations of perjury, fraud, forgery, conspiracy, malicious prosecution or abuse of process against D1 and the rest of the defendants, the Statement of Claim does not reflect as such (refer to paras 32-70 of the Statement of Claim). The plaintiff's claim against D2-D5, according to the Statement of Claim, was premised solely on the evidence given by D2-D5 in Suit 1333 (the 1st suit). For D2, the claim was specifically to the purported false evidence given by D2 in Suit 1333 (the 1st suit) vide the 12 February 2008 affidavit and the oral evidence adduced at the trial as the plaintiff's subpoenaed witness on 1 July 2015. D2-D5 were not parties to Suit 1333 (The 1st suit) but only appeared as witnesses who gave evidence during the trial of Suit 1333 (the 1st suit) before the High Court.

[30] The claim for malicious prosecution is only against D1. Hence, for D2- D5, Questions 2 and 3 are not relevant because D2-D5 were not a party to the Suit 1333 (the 1st suit), and that the plaintiff did not plead a cause of action of malicious prosecution against D2-D5.

[31] The loss and damage allegedly suffered by the plaintiff, according to the pleaded case, is the loss and damage suffered by the plaintiff in respect of his claim in Suit 1333 (the 1st suit). We refer to the following paragraphs of the Statement of Claim:

"32. The Plaintiff states that in the course of defending the 1333 Suit, the 1st Defendant together with the rest of the Defendants, vide their fraudulent and/unlawful acts, committed perjury, fraud and the tort of abuse of court process. Such acts were committed at the expense of the Plaintiff and to cause the Plaintiff damage and loss with respect to his claim under the 1333 Suit.

33. The Plaintiff further states that in the course of defending the 1333 Suit, the 1st to 6th Defendants or any of them in part, vide their fraudulent and/unlawful acts, fabricated and/or forged documents and introduced fabricated evidence knowing that they were false. Such acts were committed at the expense of the Plaintiff and to cause the Plaintiff damage and loss with respect to his claim under the 1333 Suit.

34. The 1st to 6th defendants or any of them in part conspired to defraud and combined amongst themselves with the intention to injure the Plaintiff through unlawful means."

[32] From paras 32-70 of the Statement of Claim, it is all with regard to allegations of perjury, fraud, forgery, conspiracy, and malicious prosecution against D1-D5. Where the particulars are given, the allegations are in respect of false evidence allegedly given by the defendants in the course of giving evidence in Suit 1333 (the 1st suit). For this, we refer to:

• Paragraphs 32, 33, 35, 36, 38, 39 and 40 of the Statement of Claim for the alleged tort of perjury;

• Paragraphs 34, 37, 44, 47, 50, 54, 59, 62, 63, 64 of the Statement of Claim for the tort of Conspiracy;

• Paragraphs 66-70, 72 of the Statement of Claim for the tort of malicious prosecution; and

• Paragraphs 32, 65, 72 of the Statement of Claim for the tort of abuse of process.

[33] We will proceed to address the issues in relation to the questions posed.

Whether Witness Immunity Should Be Determined At A Full Trial Of The Second Suit And Not At The Striking Out Application

[34] This particular issue was not raised in the questions posed, but it is an issue which needs to be addressed, nevertheless.

[35] We take note that these appeals are in relation to D1-D5's striking out applications against the plaintiff's claims in Suit 460 (the 2nd suit).

[36] The plaintiff argued that witness immunity could only be determined at a full trial and not via a striking out application as done by the High Court in Suit 460 (the 2nd suit). Reason being, the causes of action pleaded in the 2nd suit against D1-D5 is for fraud, tort of conspiracy to injure by unlawful means, tort of abuse of court process, the fabrication of documents, preparation and filing of false witness statements and conspiracy to defeat the plaintiff's claim and additionally malicious prosecution, all warrant evaluation and analysis of documentary and or/witness evidence via full trial before the court. The plaintiff pleaded that it was during the trial of Suit 1333 (the 1st suit) that D1 conspired with the other defendants to support the false claims and/or fabrication of facts alleged by D1 in the affidavits and testimonies of D2-D5 and/or by producing and/or fabricated documents in order to cause injury and damage to the plaintiff, namely to defraud the plaintiff and hinder and/or delay the proceedings of Suit 1333 (the 1st suit) which resulted in damage to the plaintiff. The false affidavits, fabrication of facts, and use of and fabrication of documents were the plan and/or strategy for the conspiracy throughout the proceedings in Suit 1333 (the 1st suit).

[37] It was further submitted by the plaintiff that the conspiracy and fraudulent acts of D1-D5 go beyond their testimonies in Court as D1 together with D2-D5 had committed fraudulent acts, namely coercion and manipulated witnesses (Kong Ah Choo, Edward Moses and Law Swee Haw who had since lodged police reports against D1-D6) to abet and support D1's false and fabricated documents and facts and intimidation of witnesses to sabotage the plaintiff's trial in Suit 1333 (the 1st suit). The aforesaid acts were only discovered by the plaintiff after the conclusion of Suit 1333 (the 1st suit).

[38] The plaintiff's stand of whether witness immunity is applicable to D1-D5 should be determined at a full trial and not summarily, as in the present case. The plaintiff referred to Reynolds v. The City Of Kingston Police Services Board et al [2007] 84 OR (3d) 738 where the Court of Appeal there recognises that the law with respect to the scope of witness immunity should not be resolved at the pleading stage but could only be determined at trial on the basis of complete factual record. A detailed analysis of this case is available in this judgment at para [68].

[39] In the determination of whether it is possible to strike out the plaintiff's claim summarily at the pleadings stage, premised upon witness immunity, we refer to the cases of Jones v. Kaney [2011] 2 WLR 823, Darker v. Chief Constable of The West Midlands Police (UK) [2000] UKHL 44 and Hall v. Simmons [2002] 1 AC 615, to name a few. In Jones v. Kaney, the claimant was injured in a road traffic accident. He had instructed Dr Sue Kaney, a psychologist expert witness, to testify at his trial as to damages sustained as a result of the accident. Dr Sue Kaney was said to have negligently signed a statement, which essentially agreed with the expert instructed by the opposing party. In the process, Dr Sue Kaney made certain concessions that significantly weakened Jones's claim. As a result, Jones had to settle his claim for much less than he would have obtained if Dr Sue Kaney had not been negligent. Jones sued Dr Sue Kaney in another suit for negligence and Dr Sue Kaney defended relying on the defence of witness immunity from suit as laid down in Stanton v. Callaghan [2000] QB 75 which held the principle that an expert witness who gives evidence at a trial is immune from suit in respect of anything which they say in court, and that immunity will extend to the contents of the report which they adopt as, or incorporate in their evidence. Dr Sue Kaney succeeded in getting Jones's claim struck out before the trial of the second suit on an application before the High Court premised on witness immunity from suit because the High Court was bound by the Court of Appeal ruling in Stanton v. Callaghan. The Judge of the High Court issued a certificate allowing Jones to "leapfrog" the Court of Appeal and go straight to the Supreme Court to appeal against his decision on a point of general importance. Although the Supreme Court, by a majority of five to two, decided that expert witnesses were not immune in the law of England and Wales from claims in tort or contract for matters connected with their participation in legal proceedings, what is pertinent to take note is that the striking out application was instituted in the 2nd suit before the commencement of the full trial. The Court of first instance had struck out the claim by Jones when it decided that witness immunity applied there. In other words, witness immunity was determined by the Court summarily at the pleading stage.

[40] The case of Darker started as a criminal case, and there was an express finding by the trial judge in the criminal case that the police had been significantly at fault in the disclosure process, and he directed that the charges be permanently stayed on the ground of abuse of process and the plaintiffs were accordingly discharged. The plaintiffs then commenced a civil action against the Chief Constable of the West Midlands Police, claiming damages for conspiracy to injure and the tort of misfeasance in public office committed by police officers under his direction and control. No claim was brought for malicious prosecution. A Statement of Claim (which was subsequently amended) was issued and served on the Chief Constable. The Chief Constable applied to strike out the Statement of Claim, where Maurice Kay J., following the principles stated by the Court of Appeal in Silcott v. Commissioner of Police for the Metropolis [1996] 8 Admin LR 633, struck out the amended Statement of Claim premised on witness immunity and dismissed the action. Again, to take note that the 2nd suit was struck out summarily without the need to go for trial.

[41] In Hall v. Simmons, it involved 3 cases heard together. In the first case, which concerned a protracted dispute for a building, the plaintiff's solicitors acted for the opposite side. In the second case, during matrimonial ancillary relief proceedings, the plaintiff's solicitors failed to provide her with proper advice on the valuation and division of the proceeds of a sale and lodged a minute of order which recorded an inaccurate valuation. The third case was also during matrimonial ancillary relief proceedings, where the plaintiff's solicitors had advised the plaintiff on the appropriate level of periodical payments and on the possibility of contributions from the husband's cohabitee. However, on the day of the trial, a different counsel appeared and persuaded the plaintiff to settle for less on the relief, premised on the incorrect assumption that the husband's relationship with the cohabitee had ended. All plaintiffs in the 3 cases filed negligence claims against their former solicitors in a 2nd suit. In all cases, the judges in the 2nd suits concluded that the solicitors enjoyed immunity from suit and struck out the claims against them as an abuse of process of the court.

[42] Given the aforesaid, the authorities demonstrated that witness immunity was decided at a striking out proceedings before the commencement of a full trial.

[43] Also pertinent to note that there was already a determination of the relevant torts in the 1st suit in each of the cases referred to. In Jones v. Kaney, Dr Sue Kaney was negligent in the 1st suit, which resulted in Jones getting considerably lower damages than what he could have been able to achieve. In Darker, there were express findings by the court that the police officers were significantly at fault for the torts in the 1st suit before the plaintiffs proceeded to sue the Chief Constable for conspiracy to injure and misfeasance in public office in the 2nd suit. In Hall v. Simmons, there were already findings in the first suit on the negligence of the solicitors. Contrast the aforesaid cases with the facts in the present appeals.

[44] In our present appeals, there were no express findings in Suit 1333 (the 1st suit) of the torts of fraud, perjury, malicious prosecution, abuse of process or conspiracy that are being alleged against the defendants in Suit 460 (the 2nd suit) or by the Court of Appeal in Appeal 1694.

[45] From the pleaded case in the present appeals, the allegations of the wrongful acts of the defendants of conspiracy of the defendants to dupe, coerce and manipulate witnesses who had lodged police report against D2-D6, to abet D1 in fabricating documents and facts, resulted in the plaintiff suffering loss and damage with respect to his claim in Suit 1333 (the 2nd suit). Whatever its worth of the wrongful acts of the defendants against D2-D6, to abet D1 in fabricating documents and facts, in giving false evidence in Suit 1333 (the 1st suit) obviously did not sway the learned Judge to believe the defendants' testimony, because at the end of the trial, the Court of Appeal decided in favour of the plaintiff. There was no damage or loss to the plaintiff in Suit 1333 (the 1st suit) as he obtained what he prayed for in that suit.

[46] Witness immunity rule protects parties or witnesses from actions based on their acts or statements within judicial proceedings. If at the striking out application, it is determined that witness immunity applies then the case would be struck out without having to go for trial. However, if the determination at the striking out application is that witness immunity is not applicable only then the case goes for trial. By parity of logical reasoning, it would defeat the whole purpose of invoking witness immunity, if a witness is to go for full trial first to determine whether immunity applies, as he would have been vexed at the full trial in the 2nd suit when defending the claim by the plaintiff.

[47] No matter how the plaintiff dressed or crafted the causes of action in Suit 460 (the 2nd suit) it is pertinent to scrutinize the particulars of the pleadings of the relevant torts alleged against the defendants. In the present appeals, the pleadings disclosed that Suit 460 (the 2nd suit) arose from the testimony and acts of witnesses in the course of judicial proceedings. The pleadings failed to disclose that the claim failed outside the bounds of witness immunity.

[48] Therefore, witness immunity is to be determined at the striking out application at the pleading stage, before proceeding for a full trial.

Public Policy Considerations Underlying Witness Immunity

[49] To identify the extent of witness immunity is to first examine the rationale or the grounds of public policy considerations, which would explain the basis of such immunity.

[50] Simon LJ Brown in Silcott v. Commissioner Of Police For The Metropolis said that 'the public policy purposes underlying the immunity is two-fold, firstly, to protect persons acting bona fide, who under a different rule would be liable not perhaps to verdicts and judgments against them but to the vexation of defending actions (refer to Munster v. Lamb [1883] 11 QBD 588). Secondly, to avoid multiplicity of actions in which the value or truth of their evidence would be tried over and over again (Refer to Lord Wilberforce in Roy v. Prior [1971] AC 470). This relates to core immunity.

[51] The public policy consideration also demands the finality of litigation that places limitations on issues which had been determined in a court of law. Lord Wiberforce in Ampthill Peerage [1976] 2 AER 411 at p 417 said in his judgment that "The law knows, and we all know, sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further enquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth... and these are cases where the law insists on finality."

[52] The other policy consideration is the proliferation of an ad infinitum/ satellite litigation especially in cases as in the present appeals where the plaintiff had been successful in Suit 1333 (the 1st suit) and now is mounting Suit 460 (the 2nd suit) against the same defendant (D1) and witnesses (D2-D5) from Suit 1333 (the 1st suit). This is undesirable in the interest of a fair and efficient administration of justice if there is a recurring chain-like course of litigation. (Refer to Rondel v. Worsely [1969] 1 AC 191 at p 251). This is what happened in Lee Tat Development and our present appeals.

[53] From these policy considerations manifest various principles of law, namely, amongst others, res judicata, estoppel, laches, abuse of process, and witness immunity.

Witness Immunity Under Common Law

[54] Question 1 touches on whether the common law principle of immunity of a party and witness from liability in a civil action, subsequent or otherwise, in respect of evidence, oral or written, given in judicial proceedings, is absolute.

[55] Before we set out our analysis giving rise to the decision, we will consider in summary the position in some commonwealth jurisdictions. Common Law has recognized that witnesses of facts who testify in the course of judicial proceedings are immune from civil suits. The principle of witness immunity has been entrenched in the law as a matter of public policy to ensure that a witness can testify in court and in the preparation of evidence to be so given, without fear of a subsequent civil suit against him/her.

The UK Position

[56] The English Court of Appeal in Marrinan v. Vibart And Another [1963] 1 QB 528 explained the rationale for the principle of witness immunity for statements made in the course of judicial proceedings before the court, and it is absolute under common law:

"Whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given.

Lord Esher has been well cited too, in Royal Aquarium and Summer and Winter Garden Society Ltd v. Parkinson. He says: "It is true that, in respect of statements made in the course of proceedings before a court of justice, whether by judge, or counsel, or witnesses, there is an absolute immunity from liability to an action. The ground of that rule is public policy. It is applicable to all kinds of courts of justice. "In this case it is not suggested that there is any difference between the proceedings in a criminal court and the proceedings before the Masters of the Bench of Lincoln's Inn."

[57] The rationale for having such immunity was later reiterated by Lord Wilberforce in the House of Lords' case of Roy v. Prior [1971] AC 470 when he said:

"The reasons why immunity is traditionally (and for this purpose I accept the tradition) conferred on witnesses in respect of evidence given in court, are in order that they may give their evidence fearlessly and to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again."

[58] The House of Lords in Roy v. Prior went further to explain the extent of the absolute immunity accorded to the witnesses, namely that it cannot be circumvented even by the allegations of conspiracy between witnesses to make false statements:

"It is well settled that no action will lie against a witness for words spoken in giving evidence in a court even if the evidence is falsely and maliciously given (see Dawkins v. Lord Rokeby and Watson v. M'Ewan). If a witness gives false evidence he may be prosecuted if the crime of perjury has been committed but a civil action for damages in respect of the words spoken will not lie (see the judgment of Lord Goddard CJ in Hargreaves v. Bretherton). Nor is this rule to be circumvented by alleging a conspiracy between witnesses to make false statements (see Marrinan v. Vibart)."

[59] The common law principle of absolute immunity of a witness is divided into 2 distinct categories, namely:

(i) Core immunity in respect of the giving of evidence in court as established in Roy v Prior. It covers:

(a) evidence at trial (see Hargreaves v. Bretherton [1959] 1 QB 45) and;

(b) affidavit evidence (see Revis v. Smith (UK) (1856) 139 ER 1314).

(ii) Extended Immunity in respect to the carrying of acts preparatory to the giving of evidence in court as established in the case of "Arthur J S Hall & Co (A Firm) v. Simmons Barratt v. Woolf Seddon (A Firm) Harris v. Scholfield Roberts & Hill (A Firm) [2002] 1 AC 615. The English Court of Appeal held that the immunity has also been extended to statements made out of court in the course of preparing evidence to be given in court.

The Australian Position

[60] The Australian Courts upheld the long-established rule of witness immunity based on the same public policy grounds under Common Law.

[61] The High Court of Australia in Cabassi v. Villa [1940] 64 CLR 130 stated the underlying policy of witness immunity, and it cannot be circumvented by framing an action in conspiracy. The reason is for the protection of witnesses for the advancement of public justice. In this regard, Starke J held that:

"No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however, false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts

But it does not matter whether the action is framed as an action for defamation or as an action analogous to an action for malicious prosecution or for deceit, or as in this instance, for combining or conspiring together for the purpose of injuring another; the rule of law is that no action lies against witnesses in respect of evidence prepared,.... given, adduced or procured by the in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely the advancement of public justice....The remedy against a witness who has given or procured false evidence is by means of the criminal law or by the punitive process of contempt of Court..."

[Emphasis Added]

[62] In another High Court of Australia case of D'Orta Ekenaike v. Victoria Legal Aid [2005] HCA 12, although it involved immunity of advocates, the Court affirmed the general witness immunity in Australia (paras [39]-[99]. It held that the immunity extends to "preparatory steps and out of court conduct that is intimately connected with the giving of evidence in court".

[63] In the Supreme Court of New South Wales in the case of Commonwealth v. Griffiths [2007] NSWCA 370, it was held by Young CJ that there is a clear public policy that witnesses have immunity in respect of their evidence and in respect of what they did in preparing to give evidence. The rationale is not to confer benefit to witnesses but to protect the court system from abuse. Although Young CJ observed that "there are dicta in some of the English cases like Darker which held that fabrication lies outside the immunity rule", nevertheless held at paras [148]-[151] that it was made clear in Cabassi that the policy was that "subsequent action for fabrication of evidence or perjury was to be dealt in the areas of criminal law and that all conduct of witnesses was covered by immunity".

[64] The Australian Courts took the general approach that immunity applies to preparatory steps in civil claims and have not adopted the Darker approach, which was taken by the English House of Lords.

The Singapore Position

[65] The Singapore Court of Appeal in Lee Tat Development Pte Ltd v. Management Corporation Strata Title Plan No. 301 [2018] SGCA 50 at p 101 recognised the existence of witness immunity as being one of the factors whereby the court did not recognise the tort of malicious prosecution in civil proceedings:

"[101] Indeed recognising malicious civil prosecution would not only circumvent the doctrine of absolute privilege, but would also undermine the doctrine's underlying policy rationale. As noted by this court in Goh Lay Khim v. Isabel Redrup Agency Pte Ltd [2017] 1 SLR 546 ...at [66], absolute privilege covers statements made in the course of judicial or quasi-judicial proceedings, even those which are untrue and made maliciously. This includes everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings (see the English Court of Appeal decision of Lincoln v. Daniels [1962] 1 QB 237 257 per Devlin LJ)."

The Canadian Position

[66] Canada also adopted the well-established rule of witness immunity when giving evidence in courts and extends to statements by a witness in the preparation of evidence to be presented in Court (Elliot v. Insurance Crime Prevention Bureau [2005] NSJ No 323 at para [114]). Elliot, however, does not form any opinion on whether Darker was applicable. However, it opined that the focus in Darker was on the distinction between the activities of a witness and those of an investigator and that only acts done for the purpose of preparing evidence for actual or contemplated proceedings fall within the ambit of the immunity. The Court in Elliot recognised that absolute immunity of witnesses exists as it was necessary to protect the proper functioning of the system and administration of justice (see para [116]).

[67] However, Canada does not set a clear stand on whether the immunity applies to the fabrication of documents at civil trials.

[68] The case of Reynolds v. The City Of Kingston Police Services Board et al [2007] 84 OR (3d) 738, referred to by the plaintiff in his submissions, is in relation to the issue of whether the case ought to proceed to a full trial when it involves issues of witness immunity. The mother of a seven-year-old murder victim was charged with murder after a pathologist, acting in compliance with a warrant issued under the Coroners Act (Ont.), conducted an autopsy which concluded that the death was the result from stab wounds which were inflicted with a knife or a pair of scissors. These conclusions were made by the pathologists in his testimony at the mother's preliminary inquiry. The murder charges against the mother were dropped when a second autopsy by the same pathologist, and others, disclosed that the death was caused at least partly by dog bites. As a result, the mother sued the pathologist for negligence in the conduct of his first autopsy. However, the claim did not cover the pathologist's testimony at the preliminary inquiry. The mother applied to add a claim for misfeasance in public office, and the pathologist invoked the witness immunity rule and moved under r 21.01(1)(b) of the Rules of Civil Procedure to strike the mother's Statement of Claim for failure to disclose a reasonable cause of action. The Ontario Court of Appeal restored Masters' decisions allowing the mother's motion and dismissing the pathologist's when it ruled that this was not a plain and obvious case that the mother's claims would fail. There was an issue for trial respecting the ambit of both the witness immunity rule and the "constantly evolving" tort of misfeasance in public office. The claims were allowed to proceed for a full trial for resolution on the basis of a complete factual record. This case relates to a claim based on the tort of negligence and misfeasance in public office.

The Position In Hong Kong

[69] The Hong Kong Court of Appeal recognised and accepted the rule of witness immunity in its jurisprudence (refer to Yanfull Investments Ltd v. Datuk Ooi Kee Liang [2017] 5 HKC 42).

The Position In Malaysia

[70] To date, this Court has never determined on the issue of witness immunity. Reference has been made by the defendants' counsel to this Court to the judgment in Takako Sakao v. Ng Pek Yuen & Anor (No 3) [2009] 3 MLRA 96. However, the reference by this Court in that case as to witness immunity is obiter and is not the ratio of the case. The actual focus in Takako Sakao was on the issue of whether the court has the power to direct a non-party to pay the costs of any suit, appeal or any proceeding, which was held to be already settled law. This court then set out the guidelines as set out by Balcombe LJ in the English Court of Appeal case of Symphony Group Plc v. Hodgson [1994] QB 179 for the making of costs against a non-party to a suit. This is where one of the guidelines is stated as follows:

"(1) .....

(2) .....

.....

(7) Again, the normal rule is that witnesses in either civil or criminal proceedings enjoy immunity from any form of civil action in respect of evidence given during those proceedings; one reason for this immunity is so that witnesses may give their evidence fearlessly: see Palmer & Anor v. Durnford Ford (a firm) & Anor [1992] QB 483 at p 487 (in so far as the evidence of a witness in proceedings may lead to an application for the costs of those proceedings against him or his company, it introduces yet another exception to a valuable general principle)."

[71] The court noted that applying for costs against a witness or their associated entities based on their testimony introduces an exception to this immunity.

[72] Despite the lack of case laws in the apex court, there are several Malaysian High Court cases that addressed the issue of witness immunity.

[73] One such case is the case of Dato' Sri Mohd Najib Abd Razak v. Ambank Islamic Bank Berhad & Ors [2021] 4 MLRH 529, where the High Court has the occasion to address the issue of witness immunity. The plaintiff's suit was commenced due to the evidence of the 3rd defendant in the SRC Case, which the plaintiff discovered that the alleged acts and omissions tantamount to breach of duty and negligence. The plaintiff, Dato' Sri Mohd Najib Hj Abd Razak, claimed that the 1st, 2nd and 3rd defendants breached fiduciary duties related to his accounts maintained with the 1st defendant. These breaches allegedly led to unauthorized transactions and wrongful disclosure of his accounts to unauthorized parties. As a result, the plaintiff was charged with criminal offences, causing emotional distress, loss of reputation, embarrassment, and a deprivation of his personal liberty and lawful political position. The plaintiff sought special, general, aggravated, and exemplary damages.

[74] The 1st, 2nd and 3rd defendants therein filed striking out applications under O 18 r 19(1)(a),(b), and/or (d) of the Rules of Court 2012 (ROC 2012), and/or the inherent jurisdiction of the court. The court allowed the applications, leading the plaintiff to appeal the decision. The court held that the 3rd defendant enjoys absolute immunity, which protects the 3rd defendant from being sued due to the evidence given in the SRC Case.

[75] As decided by the court, it is a necessary part of the judicial machinery that advances public justice, where the court is obliged to protect the witness from being put on trial and her evidence in another case re-examined.

Whether Such Immunity Absolute

[76] Questions then arose as to whether such immunity conferred on witnesses is absolute. The plaintiff in the present appeal submitted that there are exceptions to the witness immunity rule, which is purportedly applicable to the present appeal, as manifested in the decisions of the following cases:

• Jones v. Kaney [2011] 2 AC 398;

• Surzur Overseas Ltd v. Koros AndOthers [1999] AER (D) 200;

• Darker And Others v. Chief Constable Of The West Midlands Police; and

• Singh v. Reading Borough Council And Another [2013] 1 WLR 3052.

[77] The Supreme Court case of Jones v. Kaney held that the immunity is not absolute when there is a breach of duty by an expert witness, as an expert witness owes a duty to his client by whom he has been retained. Breach of such duty in the normal course gives remedy to such breach. However, Jones v. Kaney established that witnesses of fact have complete immunity from any civil action as evident from the following excerpts from the judgment:

"65. It has long been established that witnesses of fact enjoy complete immunity, that is from any form of civil action in respect of evidence given (or foreshadowed in a statement made) in the course of proceedings. It is no less clearly established, following Arthur J S Hall & Co v. Simons [2002] 1 AC 615 that advocates have no immunity from suit in respect of any aspect of their conduct of proceedings (save, of course, from defamation claims and the like pursuant to the absolute privilege attaching to court proceedings).

66. The absolute immunity rule which applies to witnesses of fact, as noted by Lord Hoffman in Taylor v. Director of the Serious Fraud Office [1999] 2 AC 177, 208: "is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say. "That aside, witnesses of fact are unlikely to owe the party calling them any duty of care in contract or in tort."

[Emphasis Included]

[78] It is to be noted that the facts in Jones v. Kaney are at variance with our present appeal, as the witness concerned was an expert witness. We have set out the facts of Jones v. Kaney when we addressed the striking out issue at the beginning of this judgment. The plaintiff's claim was struck out by the English High Court, premised on witness immunity. It went on appeal to the Supreme Court, where the Supreme Court, in allowing the plaintiff's appeal, distinguished the application of witness immunity to a witness of fact and that of an expert witness. It was held that witness immunity was not absolute as far as expert witnesses are concerned:

"64. Expert witnesses are to be regarded as sui generis in the present context. There are profound differences between them and, on the one hand, witnesses of fact; on the other hand, advocates. (For the purposes of this brief judgment I mean by "an expert witness" a witness selected, instructed and paid by a party to litigation for his expertise and permitted on that account to give opinion evidence in the dispute. I am not referring, for example, to a treating doctor or forensic pathologist, either of whom may be called to give factual evidence in the case as well as being asked for their professional opinions upon it without them having been initially retained by either party to the dispute).

.....

67. In stark contrast, not only do expert witnesses clearly owe the party retaining them a contractual duty to exercise reasonable skill and care but, I am persuaded, the gains to be derived from denying them immunity from suit for breach of that duty substantially exceed whatever loss might be thought likely to result from this. These pros and cons have been fully explored in the judgments of other members of the court. Suffice to say that in my opinion the most likely broad consequence of denying expert witnesses the immunity accorded to them (only comparatively recently) by the decisions in Palmer v. Durnford Ford [1992] QB 483 and Stanton v. Callaghan [2000] QB 75 will be a sharpened awareness of the risks of pitching their initial views of the merits of their client's case too high or too inflexibly lest these views come to expose and embarrass them at a later date. I for one would welcome this as a healthy development in the approach of expert witnesses to their ultimate task (their sole rationale) of assisting the court to a fair outcome of the dispute (or, indeed, assisting the parties to a reasonable pre-trial settlement)."

[79] The witnesses (i.e., D1-D5) in our present appeal are not expert witnesses as in Jones v. Kaney. They are witnesses of facts. The exception in witness immunity in Jones v. Kaney was clearly on testimonies from expert witnesses:

"38. I propose to consider the following issues in relation to expert witnesses. (i) What are the purposes of the immunity? (ii) What is the scope of the immunity? (iii) Has the immunity been eroded? (iv) What are the effects of the immunity? (v) Can expert witnesses be compared to advocates? (vi) Is the immunity justified? (vii) Should the immunity be abolished?

[Emphasis Added]

[80] Therefore, the exception as stated in Jones v. Kaney is not applicable to the present appeal. It affirms the position that the immunity afforded to witnesses of facts is absolute and complete from any form of civil action in respect of evidence given in the course of proceedings. The rationale is to encourage witnesses to give evidence without fear of being prosecuted or sued (refer to paras 65 and 66 of the judgment). In addition, there is no duty of care in contract or tort owed by witnesses of fact to the parties who called them to testify in court.

[81] Surzur Overseas Ltd is a case not aimed at solely deploying false evidence, but a conspiracy to deceive Surzur and manipulate court proceedings. The conspiracy extended beyond mere false evidence; it involved creating and deploying false documents, making fraudulent statements and orchestrating actions that sought to undermine the Mareva injunction order, thereby facilitating the sale of assets in a deceitful manner.

[82] Unlike the case of Surzur Overseas Ltd, a perusal of paras 50 to 52 of the Statement of Claim in our present appeals discloses that the plaintiff's claim against the D1-D5 is concerned essentially with the evidence given by the said defendants in the proceedings of Suit 1333 (the 1st suit). Nothing was pleaded by the plaintiff in the present appeal as to any acts of D1-D5 on falsifying and/ or manufacturing documents in his claim, let alone any aim and/or objective and/or, more importantly, agreement to the purported conspiracy between the defendants to injure the plaintiff.

[83] Darker was a case of police malpractice where the plaintiffs allegedly fabricated evidence against them in the course of police investigation conducted by the defendants which led to the prosecution of the plaintiffs. However, the plaintiffs' claim was struck out at first instance on the grounds that the plaintiffs' allegations against the defendant were covered by absolute witness immunity. In allowing the appeal, the House of Lords narrowed the scope of witness immunity by distinguishing between evidence given in court and the deliberate fabrication of evidence, noting that witness immunity applies only to the former.

"There is, in my opinion, a distinction in principle between what a witness says in court (or what in a proof of evidence a prospective witness states he will say in court) and the fabrication of evidence, such as the forging of a suspect's signature to a confession or a police officer writing down in his notebook words which a suspect did not say or a police officer planting a brick or drugs on a suspect.

In practice the distinction may appear to be a fine one, as, for example, between the police officer who does not claim to have made a note, but falsely says in the witness box that the suspect made a verbal confession to him (for which statement the police officer has immunity), and a police officer who, to support the evidence he will give in court, fabricates a note containing an admission which the suspect never made.

But I consider that the distinction is a real one and that the first example comes within the proper ambit of the immunity and the other does not.

.....

This view is not in conflict with the principle that immunity (where it exists) is given to a malicious and dishonest witness as well as to an honest witness, and I think that the honest (though negligent) examination of articles to enable a statement of evidence to be made comes within the concept of the preparation of a statement of evidence, whereas the deliberate fabrication of evidence to be referred to in a statement of evidence does not come within that concept."

[Emphasis Included]

[84] The plaintiff relied heavily on the case of Darker to support the argument that the current claim against D1-D5 is not subject to witness immunity, as it involves allegations of evidence fabrication. The plaintiff contends that applying the witness immunity rule would contradict the policy that no wrong should go without a remedy.

[85] However, it is our view that Darker has no application to the present appeal, as Darker was premised on a different set of facts. It involved an action against the West Midlands Police for conspiracy to injure the plaintiffs and misfeasance in public office. The elements of public policy and protection against state machinery were significant considerations and factors in the determination of the case. It is these considerations that influenced the court's approach and the outcomes related to accountability and the rights of individuals against the police.

[86] The difference in the set of facts in the present appeals is, firstly, that the suit is between private individuals. It is in sharp contrast to the facts in Darker. All the defendants were never investigators who procured and/or collected evidence to be used and/or produced in court proceedings, such as the police in Darker.

[87] Secondly, the plaintiff did not plead any acts of fabrication of 'extraneous' evidence outside of Suit 1333 (the 1st suit) against the defendants. The allegations revolved around matters said or done in the course of court proceedings, in the defence and counterclaim of the Suit 1333 (the 1st suit). They form part of the court proceedings.

[88] The other pertinent point is that there were no express findings in Suit 1333 (the 1st suit) as to perjury or even fabrication of extraneous evidence. Unlike Darker, where there were express findings in the criminal proceedings that the police had been at fault in the disclosure process, and there was an abuse of process. The present appeals consist of the allegations of fabrication against the defendants in the pleadings, which are general with no specifics. In Darker, the fabrication of evidence was committed by the police officers in their capacity as investigators, which is totally absent in the present appeals.

[89] Thirdly, unlike Darker, the plaintiff in our present appeal suffered no 'wrong which required remedy', as the plaintiff had already obtained judgment against D1 in Suit 1333 (the 1st suit) and/or Appeal 1694. The plaintiff had been fully compensated by the interests on the judgment sum and/or costs awarded to the plaintiff by the Court of Appeal in Appeal 1694, which had been settled. There were no express findings by the court in Suit 1333 (the 1st suit) that the plaintiff suffered damage in the context of Darker. As the plaintiff was the successful litigant, and he had obtained a remedy, he cannot be said to have been wronged. The competing public policy considerations, as illustrated by Darker (no wrong ought to be without remedy) do not feature in the present appeals.

[90] Lord Hutton in Darker held that the witness immunity is essentially related to the giving of evidence, and made the distinction "between what a witness says in court (or what in a proof of evidence a prospective witness states he will say in court) and the fabrication of evidence". Importantly, it must be noted that this case relates to acts done outside the courtroom, and not evidence given in the court. Therefore, this decision must be understood in its context that the witness immunity does not extend to cover fabrication of evidence by police who fabricate the evidence to support the evidence they will give in court.

[91] Given the aforesaid, premised on the facts and nature of the claim in Darker compared to the present appeals, clearly Darker is distinguishable and hence, inapplicable to the present appeals. Therefore, Darker (in the sense that the rule was not extended) has no application to the present appeals. The immunity also extends (for things said or done in the course of the court's proceedings), namely in the defence and counterclaim of Suit 1333 (the 1st suit). They form part of court proceedings.

[92] Daniels v. Chief Constable Of South Wales [2015] EWCA Civ 680 was also cited by the plaintiff in their submissions for justifications that not every cause of action includes an averment that false evidence was given, which will be struck out on the basis of witness immunity. This case is in relation to civil claims of malicious prosecution, unlawful detention, and misfeasance in public office brought against the Chief Constable of South Wales Police by former police officers (Mr Daniels, Mr Gillard, and Mr Murray). These officers were initially convicted of the 1988 murder of Ms Lynette White, a conviction that was later quashed due to severe criticisms of the police investigation. The case revolves around the issue of the scope of absolute immunity afforded to police officers in the context of initiating, continuing, and conducting criminal proceedings. The case examined whether this immunity extends beyond the conventional boundaries of witness immunity to include actions closely associated with the prosecution process, namely the handling of evidence and prosecutorial decisions.

[93] The Court of Appeal upheld the decision of Gilbart J., who allowed the appeals by Mr Daniels, Mr Gillard, and Mr Murray against the interlocutory orders of Judge Seys Llewellyn QC. The judges allowed the respondents to amend their pleadings to include claims of misfeasance in public office, thereby expanding the scope of their allegations beyond malicious prosecution and unlawful detention.

[94] The Court of Appeal critically assessed the breadth of the immunity claimed by the Chief Constable, particularly focusing on whether actions such as the concealment, destruction, or withholding of documentation during the prosecution process fall within the protected scope of immunity. The appellate court determined that the immunity should essentially cover statements made in the course of giving evidence and not be extended to actions to manipulate or obstruct the judicial process.

[95] Consequently, the Court of Appeal allowed the amendments to the pleadings, thereby rejecting the Chief Constable's argument for a broad interpretation of immunity. This decision emphasized the necessity to balance the protection of police officers from frivolous claims with the need to provide remedies against genuine misconduct. This is with regards to misfeasance in public office, very much different from the facts in the present appeals.

[96] The plaintiff also referred us to the case of Singh v. Reading Borough Council And Another [2013] 1 WLR 3052, which held that an action not brought on or in respect of any evidence given is not covered. This is to support the argument that the purported deliberate actions and planning of the defendants, which are not part of Suit 1333 (the 1st suit), are not protected under the witness immunity rule. In this regard, it is important to note that the case of Singh is a claim against a local authority alleging discrimination and unfair constructive dismissal against a local authority. During the preparation for the hearing, the claimant alleged that a witness statement containing false accusations against the claimant had been made under undue and improper pressure by the respondents.

[97] At a pre-hearing review, the employment tribunal decided that the contents of the witness statement and the conduct related to its preparation were protected by absolute judicial proceedings immunity. Consequently, the claimant could not use the allegation of undue pressure to support her constructive dismissal claim, leading to the relevant parts of her amended claim being struck out. The Employment Appeal Tribunal also dismissed her appeal.

[98] The English Court of Appeal, in allowing the claimant's appeal, made a finding that the alleged untruths were in relation to how the witness's evidence was obtained in an out-of-court setting, rather than the content of the evidence itself, and thus witness immunity did not apply to the respondent.

[99] Apart from the fact that Singh is an employment claim, which differs from the present appeals. The gist of the action in Singh is not the allegedly false statement itself, but is based on things that would form part of the evidence in judicial proceedings where the immunity is not extended. Lewison J held that on the facts of Singh, he considered the complaint was not to be about the contents of the statement, but it was about the means by which it was procured. In such cases, the principle that a wrong should not be without a remedy prevails. Hence, Singh and the present appeals can also be distinguished because it was not plead by the plaintiff in the present appeals of any of the defendants exerted undue pressure, intimidated, or tampered with any witnesses or parties in Suit 1333 (the 1st suit) before and/or during the proceedings of Suit 1333 (the 1st suit).

[100] From the Statement of Claim as disclosed at paras 32-40, 44-47, 47, 50, 54, 59, 62-70, 72, do not show any real claim of fabrication or forgery against all the defendants capable of bringing the case outside of the immunity rule and neither does it falls outside the core immunity. The allegations are general without any particulars or specifics.

[101] The plaintiff complained that the Re Montri Report contained a false opinion by Montri Bonjadani. The maker was not called at trial, which resulted in the report being expunged. That opinion was not given by any of the defendants (refer to para 38.1 of the Statement of Claim).

[102] On the "New Share Registry," where the plaintiff complained that the document was falsely adduced. It was never alleged in the pleadings that it was fabricated or forged by the defendants (see para 38.2 of the Statement of Claim).

[103] On the complaint by the plaintiff on the "Letters of Irrevocable Instructions and Fake Invoices" which were adduced to rebut the claim that D6 misappropriated funds from Kong & Edward": from the pleadings, that has nothing to do with the plaintiff (see para 40 of the Statement of Claim).

[104] Therefore, the plaintiff's allegations against the defendants in the present appeals focus solely on the evidence provided by them during the proceedings of Suit 1333 (the 1st suit), and do not fall within the exceptions to the witness immunity rule, as established in Singh, Surzur and Jones v. Kaney.

[105] The allegations against the defendants in the present appeal come within the ambit of the core immunity, namely, that it relates to the things done or said in the course of court proceedings. As for the things said or done outside court, they were said or done in the course of proceedings which comes within the extension to the core immunity.

[106] The rule as to immunity of witnesses is universal, in that it protects the innocent as well as the wicked. In this regard, Lord Hoffman in Hall v. Simmons [2002] 1 AC 615 at p 690 referred and quoted Fry LJ in Munster v. Lamb [1883] 11 QBD 303 when he said:

"It is not a desire to prevent actions from being brought in cases where they ought to be maintained that has led to the adoption of the present rule of law; but it is the fear that if the rule is otherwise, numerous actions would be brought against persons who were merely discharging their duty. It must always be borne in mind that it is not intended to protect malicious and untruthful persons, but that it is intended to protect persons acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions."

[Emphasis Added]

[107] This principle was reiterated by Lord Hope in Darker at p 447 of the judgment:

"In the Court of Appeal Auld J said: The whole point of the first public policy reason for the immunity is to encourage honest and well-meaning persons to assist justice even if dishonest and malicious persons may on occasion benefit from the immunity."

[Emphasis Added]

At p 468 of the same judgment:

"Furthermore, the authorities make it clear, as both Simon Brown and Auld LJJ observe, that where the immunity exists, it is given to those who deliberately and maliciously make false statements; the immunity is not lost because of the wickedness of the person who claims immunity."

[Emphasis Added]

[108] In Marrinan v. Vibart, the core immunity was also extended to protect witnesses against an action alleging a conspiracy by them to make false statements in Court, which is one of the pleaded causes of action in our present appeal.

[109] The approach in the UK Courts is that core immunity remains intact. In cases where the core immunity is sought to be extended, the approach is to be on a case-by-case basis depending on the facts.

Conclusion On Witness Immunity

[110] Given the authorities regarding witness immunity, it is our view that the High Court was correct in determining that the D1-D5 is entitled to rely on witness immunity or privilege. Whilst the rule is absolute in core immunity, there may be exceptions depending on the context and the specifics. It does not preclude prosecution for perjury, perverting the course of justice, or contempt of court, liability for malicious prosecution or misfeasance in public office (see Jones v. Kaney). As the pleadings in the present appeals stand, nothing turns on the exceptions. The pleaded case in the present appeals does not relate to these exceptions. Therefore, the allegations against the defendants in the pleaded case come within the ambit of core immunity as it relates to what was said and things done in Court in the course of judicial proceedings. As for things said or done in the course of proceedings and therefore comes within the extension to the core immunity. Absolute immunity applies to the defendants in our present appeals, which covers statements made in the course of judicial proceedings, even those which are untrue and made maliciously. This includes acts that are done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings. This is necessary to protect the proper functioning of the judicial system and administration of justice.

[111] It matters not, whether the action is framed as an action for fraud, tort of conspiracy to injure by unlawful means, tort of abuse of court process, fabrication of documents, preparation and filing of false witness statements and conspiracy to defeat the plaintiff's claim and malicious prosecution, as in the present appeals, it is a rule of law that no action lies against witnesses in respect of evidence prepared, given, adduced or procured by them in the course of judicial proceedings. Consequently, D1-D5 are immune from any civil action concerning the evidence provided as the witnesses during the trial of Suit 1333 (the 1st suit), especially given that the plaintiff's action in the High Court herein is to claim damages against D1-D5.

[112] In the circumstances, the Plaintiff's claim against the D1-D5 is clearly unsustainable and should be struck out. Thus, the decision of the High Court does not warrant any appellate interference by the Court of Appeal. Based on the numerous cases outlined above, the Court of Appeal erred in law and fact by allowing the plaintiff's appeal and disregarding the application of witness immunity to D1-D5.

[113] Given the aforesaid, we answer Question (1) in the positive.

[114] The determination by this Court that the defendants were covered by absolute witness immunity is an overarching point, which is sufficient to deal with the present appeals in its entirety. However, we proceed to address the other questions for the sake of completeness.

Question 2

[115] Question 2 is only relevant to D1 as D2-D5 were not parties to Suit 1333 (the 1st suit).

[116] It is the plaintiff's contention that the plaintiff's Suit 460 (the 2nd suit) against D1-D5 is premised on wholly different causes of action from the plaintiff's causes of action in Suit 1333 (the 1st suit). As such, the High Court had erred in striking out the plaintiff's claim based on the doctrine of res judicata.

[117] Counsel for the defendants, however, premised the striking out of the Suit 460 (the 2nd suit) on abuse of process.

[118] The categories of abuse of process can arise in various ways and never close. The factual matrix of our present case lends its context to the abuse. In our case, the plaintiff had succeeded and obtained judgment and reliefs against D1 in Suit 1333 (the 1st suit). The judgment sum had been settled with interest. The background facts in Suit 460 (the 2nd suit) relate to the same ECT Sale of Shares, the same acknowledgement of debt and the same alleged debt of RM8,018,225.00 as claimed in Suit 1333 (the 1st suit) to which he had been paid. All these had been litigated and canvassed in Suit 1333 (the 1st suit).

[119] Suit 460 (the 2nd suit) is the 2nd suit against D1. The plaintiff has succeeded in Suit 1333 (the 1st suit) and obtained whatever remedy with interest.

[120] The 2nd claim by the plaintiff against D1 and the other defendants is an abuse of process. The plaintiff had been vindicated or was successful in the 1st suit cannot mount a second action against the same party in the first action based on the conduct and/or evidence of the said opposing party. This runs counter to the policy considerations as set out earlier.

[121] It would be a spectre to have a justice system where chain-like litigation is allowed and proceedings will run ad infinitum with no end. This was demonstrated by Lee Tat Development and our present appeals.

[122] Apart from the aforesaid, there are no express findings of fabrication of evidence, the tort of perjury, fraud, forgery, conspiracy, malicious prosecution, or abuse of process in Suit 1333 (the 1st suit). In any event, whatever its worth of that evidence (be it false, perjury or fabrication of false evidence, manipulation or coercion of witnesses), the plaintiff won in Suit 1333 (the 1st suit). The plaintiff already got his remedy in Suit 1333 (the 1st suit). This is in contrast to the facts in Jones v. Kaney, Darker and Hall v. Simmons, where the plaintiffs in those cases were without remedy. There were also no express findings in Suit 1333 (the 1st suit) that the plaintiff suffered loss/damage as was found in Jones v. Kaney, Darker or the 3 cases in Hall v. Simmons. Being a successful litigant in Suit 1333 (the 1st suit), the plaintiff in our present case cannot be said to have been wronged. His pleaded claim at paras 32-34 states that the acts of the defendants caused him damage and loss with respect to his claim under Suit 1333 (the 1st suit), does not have a leg to stand on. It is certainly not supported by the facts, namely the decision of Suit 1333 (the 1st suit was decided in the plaintiff's favor. In other words, there is no damage or loss suffered with respect to his claim under Suit 1333 (the 1st suit).

[123] Damage or injury is an essential element of the tort of abuse of process as held in Malaysia Building Society Bhd v. Tan Sri General Ungku Nazaruddin Ungku Mohamed [1998] 1 MLRA 67.

[124] Damage or injury is similarly an essential element in a cause of action of conspiracy to defraud as held in the case of Renault SA v. Inokom Corp Sdn Bhd & Anor And Other Appeals [2008] 3 MLRA 504:

"[32] In regard to the tort of conspiracy, the following need to be satisfied at this interlocutory stage: (a) an agreement between two or more persons (that is an agreement between Tan Chong and others); (b) an agreement for the purpose of injuring Inokom and Quasar; (c) that acts done in execution of that agreement resulted in damage to Inokom and Quasar; (d) damage is an essential element and where damage is not pleaded the Statement of Claim may be struck out."

[Emphasis Added]

[125] It is undisputed that the Court of Appeal in Appeal 1694 (which is the appeal to Suit 1333 (the 1st suit)) via the order dated 10 January 2019 had ordered interest on the judgment sum at 5% per annum from the date of filing of Suit 1333 to the date of realization.

[126] The plaintiff in our present case has been reasonably compensated by the award of interest on the judgment sum awarded to him by the Court of Appeal in Appeal 1694. As such, the plaintiff is precluded from claiming any form of damages stemming from D1's alleged refusal to pay the plaintiff the RM8,018,225.00 due under the purported Acknowledgment of Debt.

[127] In this regard, the case of Terengganu State Economic Development Corporation v. Nadefinco Ltd [1982] 1 MLRH 644, which held that:

"Interest is a sum of money representing the return for the use or the compensation for the retention by one person of a sum of money belonging to or owed to another. In essence it is regarded as representing a profit which the other person might have made if he had the use of the money or conversely the loss which he had suffered because he had not that use. In other words, interest is a compensation for the deprivation of the use of money, which he is lawfully entitled to. (per Lord Wright in Riches v. Westminister Bank Ltd [1947] AC 390, 400)".

[Emphasis Added]

[128] Suit 1333 (the 1st suit) and the present appeal bore similarities in actions and damages sought where the particulars pleaded are either based on the sale of the plaintiff's ECT Shares amounting to RM8,018,225.00 and/or D1's refusal to pay to the plaintiff the said sums (refer to paras 72 and 73 of the Statement of Claim of the plaintiff).

[129] As the plaintiff had been paid the judgment sum with interest for Suit 1333 (the 1st suit), it is an abuse of process if this Court is to allow the plaintiff to attempt to claim new damages against the defendants based on essentially the failure of the D1 to repay the damages in the form of judgment sum which had already been adjudged in the sum of RM8,018,225.00 in the first Suit.

[130] On the allegations of the alleged conspiracy between the defendants, where false evidence was given against the plaintiff in Suit 1333 (the 1st suit), even if it is accepted, it is a fact that the evidence of all the defendants was already available during Suit 1333 (the 1st suit). It has also been dealt with substantially by the High Court in Suit 1333 (the 1st suit) as follows:

"[31] The evidence tendered before me must be considered in totality. The crucial point to be decided was whether the Defendant signed a document dated 6 November 2006 as claimed by the Plaintiff or undated document as claimed by the Defendant.

[32] The Defendant's evidence that the document was not dated when he signed it was supported by DW2 evidence. Having perused the whole evidence I accepted evidence by the Defendant that the document he signed was not dated. On the totality of the evidence before me, it is my finding that the document was signed in escrow and gave to the Plaintiff earlier than the stated date."

[131] It has also been dealt with by the Court of Appeal in the majority judgment in Appeal 1694 (which is the appeal from Suit 1333 (the 1st suit)), which is as follows:

"[26] At the trial, the respondent had testified that he remembered signing the Acknowledgement on 15 August 2006 because it was the birthday of his secretary, DW2. The respondent claimed that the date was altered to 6 November 2006".

.....

[29] According to the learned Judge, it was under those circumstances that the Acknowledgement was signed in escrow; that it was pending the fulfillment of these conditions precedent by the appellant. Thus, when the conditions precedent were not fulfilled, the appellant was not entitled to rely on the Acknowledgement to recover any monies as no monies were due.

[30] We find the conclusion reached by the learned Judge plainly erroneous and not at all supported by the whole body of evidence before the Court. On the contrary, there was abundant evidence to show that the respondent's claim that he signed the Acknowledgment in escrow in August 2006 is inherently improbable. The evidence at the trial actually proved convincingly that the respondent did sign the Acknowledgement on the date mentioned in the Acknowledgement itself, that is, 6 November 2006."

[132] Clearly, the subject matter of the present case has already been dealt with by the High Court in Suit 1333 (the 1st suit), the majority decision in the Court of Appeal (in Appeal 1694), and on appeal to the Federal Court. To allow Suit 460 (the 2nd suit) to go for trial is to allow relitigation on the same issues which had been decided in Suit 1333 (the 1st suit).

[133] Thus, the learned High Court Judge did not err when His Lordship held that it is an abuse of court process for the plaintiff to reopen or relitigate the issues again in the present appeals. The plaintiff's claim against D1-D5 concerned the evidence that was presented in Suit 1333 (the 1st suit), and the damages or loss claimed are all related to the failure of D1 to pay the principal sum of RM8,018,225.00 expeditiously. His Lordship also found that there is clear substantial duplication of issues and reliefs of damages sought in Suit 1333 and the present appeal. Such findings by the High Court did not warrant any appellate intervention by the Court of Appeal.

[134] We, therefore, answer Question 2 in the negative.

[135] The answer to Question 2 is, by itself, also sufficient to dispose of the present appeals.

Question 3

[136] Question 3 is also not relevant to D2-D5 as they were not parties to Suit 1333 (the 1st suit), and neither was malicious prosecution pleaded against them.

[137] In the midst of the submissions, the counsel for D1 sought leave to amend Question 3 to read as follows:

"Whether the minority views as expressed in Crawford and Witters respectively and the decision of Lee Tat Development on the existence of the tort of malicious prosecution to civil proceedings are to be adopted in Malaysia."

[138] It was objected to by counsel for the respondent/plaintiff before us, however, we note that the application for amendment to Question 3 was raised in the written submissions of D1, which was made available to counsel for the plaintiff before the oral hearing before us. Counsel for the plaintiff in his written submission at para 109 states that:

"[109] As the proposed amendment to Question 3 by the 1st Defendant, we submit that the same argument would apply and it should be answered in the negative."

[139] There was no reservation made by counsel for the plaintiff/respondent in their written submission when they continued to answer the proposed amended Question 3. In any event, we had considered the objection by counsel for the plaintiff and ruled that there was no prejudice to the plaintiff/respondent as the proposed amended Question does not detract totally from the original Question 3, and the plaintiff was given every opportunity to address the Court on the proposed amended Question. Therefore, we allowed D1's application to amend Question 3 as proposed.

[140] The amended Question 3 refers to the majority decision of Crawford Adjusters & Ors v. Sagicor General Insurance (Cayman) Ltd & Anor [2013] UKPC 17 and the decision of Willers v. Joyce [2016] WLR 477.

[141] The majority decision in Crawford Adjusters is a decision of the Privy Council, which confirmed that the tort of malicious prosecution applies to civil as well as criminal proceedings. It concerned legal proceedings brought by a company against a loss-adjuster employee. A Vice President of the company who had a grudge against the employee hired an independent loss adjuster to review the employee's work, but limited the adjuster's access to specific information. As a result, the independent adjuster's reports were biased and distorted against the employee. Consequently, the legal proceedings caused him a significant loss. However, before the trial commenced, the company discontinued the action, and judgment was awarded in favour of the employee. The employee then amended his counterclaim to include malicious prosecution and abuse of process. The Court of Appeal of the Crawford Adjusters held that the state of law at that point in time was such that the tort of malicious prosecution applied only to criminal proceedings.

[142] The Privy Council by majority disagreed and held that it was no longer valid to uphold the reasoning that limited the tort of malicious prosecution in criminal proceedings and ruled that the tort should be available for civil proceedings as a matter of principle and policy. The reason given for the extension of the tort was the same rationale given as in Darker for refusing immunity to the police, namely the policy that "wrongs should be remedied". However, the dissenting judgment of Lord Sumption and Lord Neuberger held that extending the tort to civil cases could deter legitimate claims and lead to litigation ad infinitum/satellite litigation.

[143] Willers v. Joyce [2016] WLR 477 is a landmark decision where the Supreme Court has shown a move towards a revival of the tort of malicious prosecution in English law. The decision opens up a potential cause of action for those who have suffered due to the launch of unsuccessful civil proceedings against them with malice and without reasonable cause. However, it is to be noted that Witters demonstrated a split decision of 5 to 4. The 4 dissenting Law Lords gave reasons, which we viewed as compelling, as to why the application to civil proceedings should be limited, including:

i) Conflict with the principle that litigants do not owe a duty of care to their opponents;

ii) Conflict with the principle of witness immunity;

iii) Malicious prosecution is justified in criminal cases to prevent arbitrary prosecution but does not apply to civil proceedings due to different risks involved;

iv) Civil law already provides a remedy through cross-undertakings in damages for victims of unjust orders;

v) No compelling reasons for change to exist;

vi) Extending the tort to civil cases may lead to uncertainty in defining malicious conduct;

vii) Risk of satellite litigation;

viii) Unpredictable effects on other areas of law, such as defamation or privilege;

ix) "Chilling effect" on litigation, discouraging legitimate claims due to fear of malicious prosecution claims;

x) Increased litigation costs and delays to proceedings;

xi) Practical difficulties in determining malice and recoverable damages in malicious prosecution claims

[144] Prior to Witters v. Joyce, the House of Lords held that the tort was confined to criminal proceedings until the Privy Council decided in Crawford Adjusters. However, the Supreme Court in Witters provides guidelines for a claimant to bring an action for malicious prosecution:

(i) Proceedings were brought against it without reasonable cause and probable cause of action;

(ii) The party bringing the proceedings did so maliciously. Lord Toulson noted that the element of malice requires the claimant to prove that the defendant deliberately misused the process of court. This involves establishing that the proceedings were not bona fide use of court process.

The Singapore Position

[145] The Singapore Court of Appeal in Lee Tat Development Pte Ltd has, in a landmark decision, held that the tort of malicious prosecution should not be extended to civil proceedings generally and that the tort of abuse of process is not recognised in Singapore.

[146] The Singapore Court of Appeal in Lee Tat Development Pte Ltd found that extending the tort of malicious prosecution to the civil context generally would undermine the principle of finality in the law, i.e., it would encourage unnecessary satellite litigation and drag out disputes. The Court of Appeal undertook a critical analysis of the majority and minority views in Crawford Adjusters and Witters and preferred the minority views.

The Australian Position

[147] Australia considers that this area of the law as a controversial one and appears to be unsettled. In the Supreme Court case of Clavel v. Salvage [2013] NSWSC 775, Rothmans J observed that:

"It is controversial whether malicious prosecution is confined to the institution of criminal proceedings. The tort of malicious prosecution may also apply to certain disciplinary proceedings (Little v. Law Institute (Vic) (No 3) [1990] VR 257), courts martials (Forster v. Mac Donald [1995] 127 DLR (4th 185) and certain Bankruptcy proceedings (Quartz Hill v. Consolidated Mining Co v. Eyre (1983) 11 QBD 674; QIW Retailers Ltd v. Felview Pty Ltd [1989] 2 Qd R 245). See generally the discussion in Gregory v. Portsmouth City Council [2000] UKHL 3; ...discussed by Hoeben J in Kable v. New South Wales [2010] NSWSC 811.

[44] The discriminating feature identifying non-criminal proceedings that may give rise to a claim for malicious prosecution may well be proceedings that, by their very nature, damage the reputation and standing of the person accused, where the result of the judicial process cannot, itself, overcome the damage. Ordinary civil proceedings, even those involving serious allegations, are not in that category, because the judgment of the court is generally seen as overcoming any damage caused by the institution of the proceedings and the allegations therein. That is not true of bankruptcy proceedings, which may have an immediate impact in the business world, well beyond the proceedings themselves. It is also not true of courts-martials or criminal proceedings and proceedings to strike off a legal practitioner (see Little (supra))."

The Position In Hong Kong

[148] The Hong Kong Courts have not conclusively put their stand as to whether the claim of malicious prosecution applies in civil proceedings (Refer to Sum Cheung Wai v. Tsui Hin Yuet [2016] 6 HKC 494; Lee See Woo v. Chu Hong Pong [2020] HKCU 3519). Although the Hong Kong Court of 1st instance held in Lee See Woo that it was arguable that the law recognised the tort of malicious prosecution should extend to civil proceedings for purposes of determination of the striking out in that case, the court still cautioned against regarding this as a definitive ruling on whether Hong Kong Law should be so extended.

The Position In Malaysia

[149] In criminal proceedings, the position is clear, namely, where the criminal process has been abused when a person has been wrongly charged in court, under certain conditions, the person will have a remedy for malicious prosecution.

[150] In Gasing Heights Sdn Bhd v. Aloyah Abd Rahman & Ors [1996] 2 MLRH 631, Mahadev Shankar J (as he then was) doubted the existence of a tort of malicious prosecution of civil proceedings.

[151] The Court of Appeal in Malaysia Building Society Bhd v. Tan Sri General Ungku Nazaruddin Ungku Mohamed [1998] 1 MLRA 67 appears to have implicitly accepted that Malaysian law did not recognise a tort of malicious prosecution of civil proceedings.

[152] To date, there is no Federal Court decision on the matter.

[153] Going by the guidelines given by the Supreme Court in Willers, there is no definitive guidance from the case laws as to what must be proven to succeed in a claim for civil malicious prosecution, especially in proving malice. The Supreme Court there relied on previous precedent, which relates to criminal malicious prosecution claims.

[154] Lee Tat Development and the dissenting judgments in Crawford and Willers advocate for a very cautious approach in extending it to civil claims. The reason is that it would undermine the principle of finality of litigation and legal process, as this would encourage satellite litigation as seen in Lee Tat Development, where parties were disputing not the original subject matter of dispute but the conduct of the dispute itself. In the process, it opens floodgates of unnecessary litigation and takes up the court's precious time and resources.

[155] Given the aforesaid, we are of the view that so long as a person has the right in law to commence legal proceedings against another, regardless of the motive in doing so, he would not be civilly liable even if those proceedings turn out to be unmeritorious. In the context of tort law, the principle is that malice is generally irrelevant. Hence, to extend the tort to civil proceedings would be inconsistent with this principle. It is also our view that the extension of the claim of malicious prosecution to civil proceedings is still an area that is largely unsettled across the commonwealth jurisdiction. Jurisdictions such as the UK, Australia, Hong Kong, and Singapore have divergent approaches in extending the tort to civil proceedings.

[156] Bowen LJ in Quartz Hill [1883] 11 QBD 674, which is pre-Crawford and pre-Willers, expressed his view on the issue as follows:

"In no civil action (even for fraud, where the fraud is charged on the face of the pleading) does bringing an action necessarily produce damage to character. If there is a trial the fame of the person sort of damage charged with fraud is cleared, if he deserves to have it cleared; and if there is no trial it is not assailed. Then as to damage to the person, it is clear that bringing a civil action does not in any way involve damage to the person. The same observation applies to the third sort of damage, for bringing a civil action does not necessarily damage property, for the only costs recognised by the law for this purpose are those which are properly incurred as between party and party, and they can be recovered from the plaintiff in the action which is improperly brought. I am therefore of opinion that the broad canon which the Master of the Rolls has laid down is true, namely, that bringing a civil action, however unfoundedly, however maliciously, and with whatever absence of reasonable and probable cause, will not give a cause of action to the person against whom such action is improperly brought."

[Emphasis Added]

[157] Given the aforesaid, we opined that the more preferred approach would be the principles as enunciated by the Singapore Court of Appeal in Lee Tat Development and the minority view of the Privy Council case and the UK case of Adjusters Crawford and Witters is the approach to be adopted in terms of the Malaysian jurisprudence.

[158] We have considered the cases referred to by the plaintiff in support of malicious prosecution in civil proceedings, however, those cases do not support or advocate for the tort of malicious prosecution to be applicable to civil proceedings.

[159] The plaintiff in the present appeal had obtained a judgment in his favour in Suit 1333 (the 1st suit) and he had also received the full judgment with interest and costs. There is no mischief to be remedied.

[160] Malicious prosecution as pleaded herein ought not to be a recognised cause of action in civil proceedings and therefore was rightly struck out by the High Court.

[161] The answer to the revised Question 3 is in the positive.

Question 4

[162] The judicial policy that denies a tort for perjury in the course of civil proceedings dates as far back as 1596 in the case of Damport v. Sympson [1596] 78 ER 769. The plaintiff in Damport sued the defendant, alleging that the defendant committed perjury in an earlier suit for conversion. The plaintiff sought to recover damages against the defendant in a second suit. As a result of the perjury in the 1st suit, the plaintiff obtained a reduced amount of damages in the sum of two hundred pounds instead actual value of five hundred pounds. The action for tort of perjury was denied was due to such perjury can be punished by statute, and if a civil action were to be allowed, it would double the punishment, which would not be reasonable.

[163] Lord Denning MR in Roy v. Prior [1970] 1 QB 283 at p 287 rationalised why an action for damages for such tort should not lie because "witnesses must be able to give their evidence without fear or consequences. They might be deterred from doing so if they were at risk of being sued for what they said."

[164] The seriousness of bringing a tort of perjury in civil proceedings was expressed by Lord Wilberforce at p 480 of Damport that there is a need "to avoid multiplicity of actions in which the value of the truth of the evidence would be tried over and over again."

[165] Lord Goddard CJ in Hargreaves v. Bretherton [1959] 1 QB 45 expressed his concern that half the prisoners in England bringing actions against prosecution witnesses, and this is a very real problem in relation to the extension of a civil action for perjury to perjury alleged to have been committed in the course of a criminal trial.

[166] The High Court of Australia in Cabassi v. Villa [1940] 64 CLR 130 which followed suit when it held in relation to an alleged perjury in civil proceedings, that a witness, against whom it is alleged that his evidence amounted to perjury, cannot be made liable by framing the claim as one for conspiracy with others to defraud the plaintiff by giving of false evidence. It was made clear in paras [148]-[151] in Cabassi that the policy was that "subsequent action for fabrication of evidence or perjury was to be dealt in the areas of criminal law and that all conduct of witnesses was covered by immunity".

[167] On the alleged tort of fraud based on perjury, Malaysia does not recognise a general tort of fraud based on alleged perjury in the 1st suit as suggested by the plaintiff. The alleged existence of such tort would run contrary to the principle of the doctrine of witness immunity.

[168] The appropriate remedy for perjury is within the realm of criminal law, which requires perjury to be proven beyond reasonable doubt. In introducing a new tort of perjury would tantamount to circumventing the rigorous threshold of burden of proof and ignoring the underlying rationale to avoid the "chilling effect" on potential witnesses. D1 and the other defendants are already facing charges for alleged perjury in the criminal court pursuant to the police report lodged by the plaintiff, 4 months after the decision of the High Court in the present appeals.

Conclusion

[169] In summary the answers to the questions of law posed are as follows:

Question (i) — Positive.

Question (ii) — Negative.

Question (iii) — Positive.

Question (iv) — Negative.

[170] Given the aforesaid, we find that the Court of Appeal had erred in fact and law. We therefore:

(i) allowed the appeals by the defendants/appellants with costs of RM150,000.00 to D1. Costs of RM100,000.00 to each set of the other defendants/appellants. Costs to be paid to the defendants/ appellants, subject to allocatur;

(ii) order that the Court of Appeal Order of RM60,000.00 for each defendant/appellant and allocator fees of RM2,400.00 be refunded to the defendants/appellants;

(iii) order that the Court of Appeal Order dated 20 May 2024 be set aside and the High Court's Order dated 14 June 2022 be restored; and

(iv) order that the amended statement of Writ of Summons dated 13 July 2021 and Statement of Claim dated 13 July 2021 against the defendants/appellants be struck out.

Rhodzariah Bujang FCJ (Dissenting):

[171] At the risk of being repetitive with the background facts stated in the judgment of the majority, I wish to reiterate the following pertinent facts in these appeals. The filing of the respondent's claim in the High Court against the appellants in these 4 appeals and another defendant (Yee Teck Fah), not a party in these appeals nor in the Court of Appeal, was almost 14 years after that of an earlier suit he filed on 19 November 2007 in High Court Suit No S5-22-1333-2007 ("Suit 1333") against the appellant in Appeal No 02(i)-39-092024(W) now before us, i.e., Kamal Y.P Tan ("Kamal") for breach of Kamal's promise to pay him monies owing to him under an acknowledgement of debt signed by Kamal for the transfer of shares in a Thailand based company called Euroceramic Technologies Company Ltd ("ECT") in the sum of RM8,018,225.00. The High Court in Suit 1333 dismissed the respondent's claim on 11 August 2016 and allowed Kamal's counterclaim of RM3,583,211.42 for an alleged personal loan given to the respondent. The High Court decision was set aside on 10 January 2019 by the Court of Appeal on appeal by the respondent herein and Kamal's application for leave to appeal to this Court, as well as his application for a review of the said decision, were dismissed by this court on 18 July 2019 and 23 November 2020, respectively. Kamal had thereafter paid the respondent the judgment sum in full, together with the interest at 5% p.a. from the date of the filing of the claim till its realization, as well as the RM100,000.00 costs ordered by the courts.

[172] In spite of the legal victory, the respondent decided to file a suit in the Kuala Lumpur High Court, i.e., Suit No. WA-22NCVC-460-06/2021 ("Suit 460") on the 30 June 2021, which is the subject matter of these appeals before us, against the witnesses in Suit 1333, i.e., Kamal (1st Defendant), Ng Wai Pin (2nd Defendant), Michael Benedict (3rd Defendant), Wong Yoke Yen (4th Defendant), Wong Fook Lin (5th Defendant) and Yee Teck Fah (6th Defendant) who was Kamal's lawyer in Suit 1333 but who is not a party in these appeals before us as I had stated earlier. This Suit 460 of the respondent is a tortious claim against them, premised on an alleged fraud and forgery, conspiracy by them to fabricate evidence against him, and for the tort of abuse of process, all in Suit 1333 when they falsely claimed that Kamal had given personal loans to the respondent for RM3,584,211.42. Kamal was also sued for malicious prosecution for filing his counterclaim in Suit 1333 because he did so maliciously "with the sole purpose to convolute, dilute, delay, intimidate and oppress" the respondent from proceeding with his main claim in Suit 1333 (see paras 69 and 70 of the Statement of Claim in Suit 460). Except for Yee Teck Fah, all the appellants before us have filed a striking out application against the respondent, which the High Court allowed, but which decision was reversed by the Court of Appeal pursuant to separate notices of appeal filed by the respondent against the appellants herein. Aggrieved by the said decision, the appellants herein filed separate applications for leave to appeal to this Court.

The Questions Of Law

[173] This Court granted leave for the appellants to appeal on 24 September 2024 on the following questions of law:

1. "Whether the common law principle of immunity of a party and witness from liability in a civil action, subsequent or otherwise, in respect of evidence, oral and/or written, given in judicial proceedings is absolute.

2. Whether it is permissible for a party who had been vindicated and/or was successful in a first action to mount a second action against the same opposing party in the first action based upon the conduct and/or evidence of the said opposing party.

3. Whether the tort of malicious civil prosecution is only actionable and/or confined to the specific instances set out at para 67 of the Privy Council decision of Crawford Adjusters And Others v. Sagicor General Insurance (Cayman) Ltd And Another (2013) UKPC 17.

4. Whether a contended cause of action premised upon the tort of fraud based on perjury is a recognised and/or actionable claim in Malaysia."

[174] It is to be noted that Question 3 above was revised, with leave of the court, on 11 December 2024, and it reads as follows:

"Whether the minority views as expressed in Crawford and Willers respectively and the decision of Lee Tat Development on the existence and availability of the tort of malicious prosecution to civil proceedings are to be adopted in Malaysia."

[175] Before delving into the merits of these four questions of law, I would briefly mention the basis of the High Court and Court of Appeal decisions herein.

The High Court Decision

[176] The learned Judicial Commissioner ("JC") (as His Lordship then was), struck out the respondent's claim against the appellants herein based on res judicata and abuse of court process because the facts relied on by the plaintiff for the alleged fraudulent evidence, perjury, false affidavits and/or submissions filed by Yee Teck Fah were all available in Suit 1333 and that defence is available not just to Kamal but to the other defendants who were not parties in Suit 1333. His Lordship held that given the clear substantial duplication of issues and reliefs sought in this suit and Suit 1333, the filing of the former suit is an abuse of process and the plaintiff should not be allowed to have a second bite of the cherry. Given that the allegation of perjury and fraudulent evidence by the appellants were all available during Suit 1333, the alleged false affidavits and legal submissions filed by Kamal with the alleged assistance of the other appellants, the respondent's claim is barred by res judicata.

[177] In addition, the learned JC held that the appellants herein are entitled to rely on the defence of witness immunity as the exception to the rule of immunity does not apply to the pleaded case against them, and also for the claim based on the alleged perjury, as that is not recognized under Malaysian law. The claim based on malicious prosecution was struck out because that is only available in a company winding up and bankruptcy proceedings.

[178] However, the learned JC decided that the claim based on tort of conspiracy is a viable claim based on the pleaded facts, which justifies the elements for the said tort. His Lordship also decided that the respondent's claim for damages should be struck out as he had been paid the judgment sum in Suit 1333 with interest and he should have raised the damage he suffered for the late payment which are, inter alia, the loss of mining ventures and bankruptcy proceedings filed against him in those related proceedings.

The Court Of Appeal Decision

[179] The reversal of the High Court's decision by the Court of Appeal was primarily because the respondent's claim herein was based on a conspiracy to fabricate false evidence to defraud him in Suit 1333 which must be given a thorough examination at the trial and which allegation could not be raised in the said proceeding because the respondent only discovered these facts after the close of proceedings in that Suit 1333. Therefore, res judicata or estoppel do not apply. As for his claim for malicious prosecution based on alleged abuse of process by the appellants herein by the giving of false evidence and intimidation of witnesses in Suit 1333, it is available not just in winding-up and bankruptcy proceedings. As for witness immunity, the Court of Appeal agreed with the respondent that witness immunity should not apply to acts of procuring false evidence, and an exception to that rule, recognized in jurisdictions like the United Kingdom, applies in Malaysia. Given the complexity of the claim and the serious legal questions raised in the present suit, the Court of Appeal held that this is not a plain and obvious case for striking out.

My Decision

[180] Having considered the above-mentioned judgments, the evidence in the appeal record and submissions of all learned counsel for the parties in these four appeals, I am of the view that these appeals should be dismissed and the decision of the Court of Appeal be and is affirmed, premised on the following considerations.

[181] First and foremost, these appeals involve striking out applications filed by all the appellants herein under O 18 r 19(1) of the Rules of Court 2012 (the ROC 2012) and the law on this is trite and very much settled, which is, it is only in a plain and obvious case that the court would resort to the summary procedure of denying a plaintiff or a defendant (as the case may be) the chance or opportunity of ventilating their claim or defence in court in a full trial. The application of this principle can be seen in the legendary decisions of the Supreme Court in Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 1 MLRA 611, which has been consistently applied by our courts at all levels until now. In this regard, I would like to highlight the decision of this court in Tony Pua Kiam Wee v. Government Of Malaysia And Another Appeal [2019] 6 MLRA 432, where the High Court's decision to strike out the claim was reversed because, as held by this court, the appellant's claim is not an obviously unsustainable one and the fairly recent one also by this court, i.e., Kerajaan Malaysia v. LFL Sdn Bhd & Another Appeal [2025] 1 MLRA 327 where in para 47 it is held as follows:

"[47] The domestic law relating to striking out is trite (see: Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 1 MLRA 611 and Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 2 MLRA 263). In these cases, the subject matter of the applications usually relates to the need for the parties to ventilate evidence in full before arriving at a final decision, as a consequence of which the option of striking out becomes untenable. In other words, these applications are related to the requirement for further evidence at trial."

Witness Immunity

[182] It is to be emphasised that the core premise of the respondent's case against the appellants and Yee Teck Fah is that they had conspired to fabricate and give false evidence against him in Suit 1333 and his pleaded allegation against them includes the intimidation and coercion of witnesses, the use of, inter alia, fabricated and/or forged documents, including the affidavits and a conspiracy to injure him, which facts were only discovered by him during and after the trial, which therefore renders it impossible for him to raise this claim against them in Suit 1333. It is to be noted, in this respect, as highlighted by the respondent in his written submission, that three of the witnesses at the trial who gave evidence against the respondent in Suit 1333 had after the trial had concluded, filed police reports against, amongst others, Kamal and Yee Teck Fah for allegedly duping, coercing and manipulating them in respect of the false and fabricated documents. The 3 named witnesses are Kong Ah Choo, Edward Moses, Julius Joseph (deceased) and Law Swee Haw. Clearly, in my view, the veracity of these really serious allegations against the appellants and Yee Teck Fah, too, cannot be summarily determined without a full trial where the credibility of the allegations made against these litigants and witnesses would be effectively tested through cross-examination with the audio-visual advantage enjoyed by the trial judge.

[183] It is to be equally emphasised that the respondent had lodged police reports against the appellants herein and had been charged in court under s 193 of the Penal Code for perjury, thus supporting the respondent's contention that his claim against them is not obviously unsustainable. The clear irrefutable evidence of this is not just the charge sheets but, more importantly, too, the official letter dated 23 April 2024 to the respondent from the Investigation Officer, Insp Muhammad Farid bin Fadzillah, confirming that the appellants now before us have been so charged in the Magistrate Court, Kuala Lumpur. The said letter is reproduced in encl 31, ie, the Appeal Record Vol 4 (24) at pdf pp 192-193. This fact to me amplifies my decision that the respondent's claim against the appellants herein and Yee Teck Fah is not an obviously unsustainable, which does not merit a full trial but is one which has to be determined at such a trial based on viva voce and documentary evidence tendered therein.

[184] I make the above finding in full awareness of the principle of witness immunity which is based on public policy and the rationale behind it which is not to vex witnesses with defending action against them and to avoid multiplicity of action in a retrial on the veracity or truth of their evidence, so finality of court proceedings or litigation is the consideration. I refer to the House of Lords' decision in Darker (As Personal Representation Of Docker, Deceased) v. Chief Constable Of The West Midlands Police [2000] 3 WLR 747, where the said principle of witness immunity, relevant to our case, is explained as follows by the House of Lords:

"The underlying rationale for the immunity given to a witness is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court. This immunity has been extended, as I have described, to proofs of evidence and to prevent witnesses being sued for conspiracy to give false evidence. But the immunity in essence relates to the giving of evidence. There is, in my opinion, a distinction in principle between what a witness says in court (or what in a proof of evidence a prospective witness states he will say in court) and the fabrication of evidence, such as the forging of a suspect's signature to a confession or a police officer writing down in his notebook words which a suspect did not say or a police officer planting a brick or drugs on a suspect. In practice the distinction may appear to be a fine one, as, for example, between the police officer who does not claim to have made a note, but falsely says in the witness box that the suspect made a verbal confession to him (for which statement the police officer has immunity), and a police officer who, to support the evidence he will give in court, fabricates a note containing an admission which the suspect never made. But I consider that the distinction is a real one and that the first example comes within the proper ambit of the immunity and the other does not."

[Emphasis Added]

[185] I am also in agreement with Lord Cooke, who quoted, at p 453 of the report, the case of Silcott v. Commissioner Of Police Of The Metropolis, ie that:

"Absolute immunity is in principle inconsistent with the rule of law but in a few, strictly limited, categories of cases it has to be granted for practical reasons. It is granted grudgingly, the standard formulation of the test for inclusion of a case in any of the categories being Sir Thaddeus McCarthy P's proposition in Rees v. Sinclair (1974) 1 NZLR 180, 197, "The protection should not be given any wider application that is absolutely necessary in the interest of the administration of justice..." Many other authorities contain language to similar effect."

[186] Learned counsel for the respondent had rightly submitted, and I quote from para 43 of the his written submission, that the respondent's "cause of action is not against the contents of the false evidence given by the appellant but their conduct or actions in that they have collaborated and conspired and acted to fabricate or create false evidence to support a fabricated fact alleged by Kamal in Suit 1333", and the giving of the said evidence was in order to obstruct and/or to injure the respondent. In other words, his claim against them is against their conduct or acts and not just the false evidence itself. That to me is a fine distinction which dispels any argument that the ratio in Darker's case (supra) is not applicable just because the initial and original case in Darker's case (supra) was a criminal one and the fabrication of evidence was by the law enforcement officers, i.e., the police which facts are encapsulated in the earlier quotation of the passage from Darker's case (supra) which I had reproduced above. The above distinction, as made in Darker's case (supra), shows that there should not, as submitted by the respondent, be a blanket application of the witness immunity rule because doing so would deny access to the courts to remedy a serious wrong. In this regard as well, I am of the view that the fact that the respondent had been fully vindicated in Suit 1333 by the ultimate full satisfaction of the judgment sum he obtained in the said Suit cannot be, by itself, a prohibition against the filing of this action against the appellants and Yee Teck Fah but is a consideration in determining the quantum of damages, if the respondent wins in his suit against them and successfully proved that there was indeed such an engineering or fabrication of evidence and conspiracy to defraud by the appellants and Yee Teck Fah against him. Thus, on the facts of this case, I am of the view that the respondent's claim against the appellants and Yee Teck Fah based on their alleged fraudulent acts and perjury is not an obviously unsustainable one which does not merit a full trial. I am also fortified in making this conclusion of mine by the decision of the Canadian Court of Appeal in Reynolds v. Kingston (City) Police Services Board [2007] 84 O. R. (3d) 738 which is consonant with the said view of mine that the application of witness immunity is a question of fact to be determined at the trial and not one which merits a striking out of a claim which is that of negligent investigation and misfeasance in public office brought by the plaintiff in the case cited. Therefore, Question 1, Question 2, and Question 4 are answered in the positive.

Malicious Prosecution And Abuse Of Process

[187] Next, in respect of the respondent's claim specifically against Kamal for the tort of malicious prosecution, which is the substance of Question 3. I wish to note that the Privy Council case of Crawford Adjusters AndOthers v. Sagicor General Insurance (Cayman) Ltd & Another [2013] UKPC 17 mentioned in the original Question 3 is the majority decision which overturned the very much earlier decision in Quartz Hill Consolidated Gold Mining Co v. Eyre [1883] 11 QBD 674, which held that the said tort is not available even though the civil action was brought maliciously and without reasonable and probable cause. Crawford's case (supra) held that the tort of malicious prosecution is available generally to civil proceedings which decision is affirmed by the majority of five judges (with four judges dissenting) of the Supreme Court of England in Willers v. Joyce And Another (In Substitution For And In Their Capacity As Executors Of Albert Gubay (Deceased) (No 1) [2016] UKSC 43. However, the Court of Appeal of Singapore in Lee Tat Development Pte Ltd v. Management Corporation Strata Title Plan No 301 [2018] SGCA 50 shared the same view with the minority judges in both Crawford's case (supra) and Willer's case (supra) by deciding that the said tort does not extend to civil proceeding generally except in the special cases as listed in para 67 of Crawford's case (supra). For ease of reference, the said para 67 is reproduced below:

"67. The result of the effective prohibition by the comments in the Quartz Hill case of any general development in England and Wales of a tort of malicious prosecution of civil proceedings has been to confine the tort to a few disparate situations, linked only by the occurrence of prejudice to the victim at or close to the outset of the proceedings. They include:

(a) a petition for bankruptcy: Johnson v. Emerson (1871) LR 6 Ex 329;

(b) a petition for winding-up: The Quartz Hill case itself;

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

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

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

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

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

(h) a search warrant: Gibbs v. Rea (1998) AC 786."

[188] Without a need for further elaboration, I wish to state that the listing of these civil actions in para 67 was merely to state the law after Quartz Hill's case (supra) and Lord Wilson made further deliberation and states his view at para 68 that there is a need for reversion to the old principled law which made no distinction between malicious prosecution of criminal and civil proceedings. Then, at para 73, His Lordship concluded as follows:

"73.In the end I conclude that the arguments against renewed recognition of a tort of malicious prosecution of civil proceedings fail to override the need for the law to be true to the reason for its very existence. In X (Minors) v. Bedfordshire County Council [1995] 2 AC 633 Sir Thomas Bingham MR referred, at p663, to "the rule of public policy which has first claim on the loyalty of the law: that wrongs should be remedied". The word in the rule is "wrongs" as opposed to "misfortunes": see Gorringe v. Calderdale Metropolitan Borough Council (2004) UKHL 15, (2004) 1 WLR 1057, at para 2 (Lord Steyn). In Jones v. Kaney (2011) UKSC 13, (2011) 2 AC 398, Lord Dyson said, at para 113:

"The general rule that where there is a wrong there should be a remedy is a cornerstone of any system of justice. To deny a remedy to the victim of a wrong should always be regarded as exceptional... any justification must be necessary and requires [to be] strict and cogent..."

The cumulative force of the suggested justification for denying Mr Paterson a remedy for what can only be described as the wrong done to him by Sagicor fails in my view to measure up to these demanding standards. In determining his claim of malicious prosecution, the Board should be true to its primary loyalty."

[189] Learned counsel for the respondent had also cited a Hong Kong's case, i.e., Chua, Grace Gonzales v. Sobrevilla, RhennieBoy Fernandez [2017] HKCU 2145 which considered Crawford Adjuster's case (supra) and noted that "malicious proceeding is recognized as a viable tort at common law" and to a decision of its own court in Yanfull Investments Ltd v. Datuk Ooi Kee Liang [2017] 5 HKC 42 where the judge refused a striking out application filed because the judge was not convinced that the claim for malicious proceedings before him was so devoid of merit that he can strike it out and that decision was affirmed by the Court of Appeal of Hong Kong. Therefore, the court in the Chua, Grace Gonzales's case (supra) also declined to strike out the claim simply on the ground that the tort itself is not recognised at law. In this regard, it is to be noted that the tort of malicious prosecution in civil proceedings is also available in New Zealand, as mentioned in Burgess v. Beaven [2020] NZHC 497. I am equally convinced, after consideration of the above-mentioned authorities that the tort of malicious prosecution applies in Malaysia as in these other jurisdictions, and not limited to just the civil actions listed in paragraph 67 of Crawford Adjuster's case (supra), because in my view, the existence of the said cause of action can be a form of deterrent against unscrupulous litigants who are motivated by malice, bad faith or unlawful extraneous consideration to file a claim against another for, as held in Chua, Grace Gonzales's case (supra) the wrong that is at the heart of the tort of malicious prosecution is the manipulation of the legal system. In any case, as I had said earlier, in the event the claim for malicious prosecution fails after evidence at full trial of the case disclose that it is unsustainable or was raised without any valid legal justification, the plaintiff can always be punished by the court's order on cost which in itself should be a form of deterrent to the filing of such a claim by unscrupulous litigants.

[190] In the upshot and premised on the above considerations, I found no appealable error in the judgment of the Court of Appeal that remitted the cases for full trial, which merits my appellate intervention. Hence, I would answer Question 1, Question 2 and 4 in the positive, as I had indicated earlier, and the revised Question 3 in the negative. Accordingly, on these notes, the four appeals should be dismissed with costs.