ANANDA KUMAR A/L S.MAHARAJAH v 1. ) PEGUAM NEGARA MALAYSIA 2. ) Nurul Husna Binti Amran 3. ) Kerajaan Malaysia

Case Significance

A statement of the elements and the high threshold of the tort of malicious prosecution against prosecuting authorities, that prosecutorial discretion under Article 145(3) of the Federal Constitution is not immune from a private action, but that liability requires proof of malice and conduct amounting to an abuse of the criminal-justice process.

This High Court decision at Shah Alam concerns a civil claim in the tort of malicious prosecution brought against the Attorney General, a prosecuting officer and the Government. The plaintiff had been charged in the Magistrates' Court under section 323 of the Penal Code for voluntarily causing hurt to his brother, a man with learning disabilities who had been in the plaintiff's care; about two years later the charge was withdrawn. The plaintiff's case was that the prosecution had proceeded despite a live alibi, known to the police and prosecution but not investigated, and he sued for malicious prosecution. The defendants contended that prosecutorial discretion is non-justiciable and that, in any event, the elements of the tort were not made out. The court accepted that prosecutorial power under Article 145(3) of the Federal Constitution is not unfettered and confers no blanket immunity from a private action, so that the tort could in principle lie; but it emphasised the presumption of legality and the deference owed to prosecutorial decisions, and that malice is a distinct element that must be separately established. On the facts the court had no difficulty concluding that the elements of the tort were not made out: the conduct of the prosecuting defendants did not cross the high threshold of a malicious abuse of prosecutorial authority or a perversion of the criminal-justice system for ends it was not designed to serve. Although it accepted that the plaintiff had suffered some damage, no special damages having been pleaded or proved, it found it unnecessary to assess quantum or to address the Government's vicarious liability once primary liability failed. It dismissed the claim with costs of RM10,000. The court underlined that the withdrawal of the charge did not, without more, establish that the prosecution had been malicious or brought without reasonable and probable cause. The judgment is a useful statement of the elements and high threshold of malicious prosecution against prosecuting authorities.