Case summary: NG WAI PIN v ONG YEW TEIK AND OTHER APPEALS, Federal Court Civil Appeal No. 02(i)-38-09/2024(W), 02(i)-39-09/2024(W),02(i)-40-09/2024(W), 02(i)-41-09/2024(W)
Introduction
This is a landmark decision wherein the Federal Court has upheld the application of absolute witness immunity and doctrine of finality of litigation in Malaysia.
Background Facts
These appeals which were heard together stemmed from a subsequent suit filed by the Plaintiff (“the second suit”) following his success in an earlier suit for debt recovery (“the first suit”). The second suit was brought against the defendant (D1), witnesses (D2-D5) and defendant’s lawyer (D6) in the first suit.
The Plaintiff’s pleaded cause of action against the Defendants in the second suit include tort of fraud based on perjury, tort of conspiracy, tort of abuse of legal process, tort of malicious prosecution, primarily premised upon the alleged false evidence given by the Defendants in the first suit calculated to cause the Plaintiff damage and loss in his claim in the first suit.
The High Court struck out the second suit upon application by D1 to D5, but the decision was reversed by the Court of Appeal, which led to the present appeals to the Federal Court.
Questions of Law
The Federal Court had allowed leave to appeal 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 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?
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?
The Federal Court further finds it necessary to address the following issue which was not raised in the question posed:-
Whether witness immunity should be determined at a full trial of the second suit and not at the striking out application?
Findings of The Federal Court (Majority)
The Federal Court found that the Court of Appeal had erred in facts and law and hence allowed the appeals and ordered the second suit be struck out. In answering the questions of law posed, the Federal Court has delivered the following rulings:-
Question (a) – Witness immunity is to be determined at the striking out proceedings at the pleading stage, before proceeding for full trial.
The rule of witness immunity shields parties and witnesses from legal actions arising out of their conduct or statements made during judicial proceedings. If, at the stage of a striking out application, it is established that witness immunity is applicable, the case would be struck out without proceeding to trial. By parity of logical reasoning, if a witness is required to undergo full trial to determine merely to determine the applicability of immunity, the witnesses would have been vexed at the full trial in the second suit. Such an approach would undermine the fundamental purpose of invoking witness immunity.
Question 1 (Positive) – The witness immunity rule is absolute.
Absolute immunity applies to the Defendants in the present appeals, extending to all statements made in the course of judicial proceedings, including those that are untrue and made maliciously. This broad protection is essential to uphold the proper functioning of the judicial system and administration of justice. It is a rule of law that no action may be brought against a witness in respect of evidence prepared, given, adduced or procured in the course of judicial proceedings.
Whilst the rule is absolute in core immunity, there may be exceptions depending on the context and specifics. Notably, it does not bar criminal prosecution for perjury, perverting the course of justice or for contempt of court, liability for malicious prosecution or misfeasance in public office.
Question 2 (Negative) – It is impermissible for a party who succeeded in a first action to commence a second action against the same opposing party based on the conduct and/or evidence of the said opposing party.
The second suit, which is founded on the same background facts that had been litigated in the first suit, constitutes an abuse of process having seen that the Plaintiff has succeeded in the first suit and obtained the reliefs sought with interests. To allow the second suit to proceed to trial is to allow re-litigation of the same issues already decided in the first suit. Such an approach runs counter to fundamental policy considerations. It would be a spectre to have a justice system where chain-like litigation is permitted, allowing proceedings to continue ad infinitum with no finality.
Question 3 (Positive) – The tort of malicious prosecution does not extend to civil proceedings.
The Federal Court opined that the principles as enunciated by the Singapore Court of Appeal in Lee Tat Development[1] and the minority view of the Privy Council case and the UK case of Adjusters Crawford[2] and Willers[3] is the approach to be adopted in terms of the Malaysian jurisprudence. Extending the tort of malicious prosecution to encompass civil claims would undermine the principle of finality of litigation as it would encourage a wave of satellite litigation, where the focus shifts from the original dispute to grievances over how the litigation was conducted. This opens floodgates of unnecessary litigation and consuming court’s precious time and resources.
So long as a person has the right in law to commence legal proceedings against another, 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. Extending the tort of malicious prosecution to cover civil proceedings would therefore be inconsistent with this foundational principle.
Question 4 (Negative) – The tort of fraud based on perjury is not a recognised / actionable claim in Malaysia.
The alleged existence of tort of fraud based on perjury stands in direct conflict with the doctrine of witness immunity. 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 based on 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.
Key Takeaways
This decision underscores the court’s commitment to safeguarding the integrity of the judicial process, ensuring that witnesses can testify freely without the fear of facing retaliation through follow-up litigation. It reaffirms that civil court is not a forum for extended retribution against past litigation conduct. Apart from upholding absolute witness immunity, it enhances the safeguards on litigation finality and reflects a judicial reluctance to recognise novel torts in the civil context.
The message conveyed is clear: disputes should be resolved, not reignited.
[1] Lee Tat Development Pte Ltd v Management Corporation Strata Title Plan NO 301 [2018] SGCA 50
[2] Crawford Adjusters & Ors v Sagicor General Insurance (Cayman) Ltd & Anor (Cayman Islands [2013] UKPC 17
No Room For Re-Litigation: Federal Court Upholds Absolute Witness Immunity and Litigation Finality
Case summary: NG WAI PIN v ONG YEW TEIK AND OTHER APPEALS, Federal Court Civil Appeal No. 02(i)-38-09/2024(W), 02(i)-39-09/2024(W),02(i)-40-09/2024(W), 02(i)-41-09/2024(W)
Introduction
This is a landmark decision wherein the Federal Court has upheld the application of absolute witness immunity and doctrine of finality of litigation in Malaysia.
Background Facts
These appeals which were heard together stemmed from a subsequent suit filed by the Plaintiff (“the second suit”) following his success in an earlier suit for debt recovery (“the first suit”). The second suit was brought against the defendant (D1), witnesses (D2-D5) and defendant’s lawyer (D6) in the first suit.
The Plaintiff’s pleaded cause of action against the Defendants in the second suit include tort of fraud based on perjury, tort of conspiracy, tort of abuse of legal process, tort of malicious prosecution, primarily premised upon the alleged false evidence given by the Defendants in the first suit calculated to cause the Plaintiff damage and loss in his claim in the first suit.
The High Court struck out the second suit upon application by D1 to D5, but the decision was reversed by the Court of Appeal, which led to the present appeals to the Federal Court.
Questions of Law
The Federal Court had allowed leave to appeal on the following questions of law:-
The Federal Court further finds it necessary to address the following issue which was not raised in the question posed:-
Findings of The Federal Court (Majority)
The Federal Court found that the Court of Appeal had erred in facts and law and hence allowed the appeals and ordered the second suit be struck out. In answering the questions of law posed, the Federal Court has delivered the following rulings:-
Question (a) – Witness immunity is to be determined at the striking out proceedings at the pleading stage, before proceeding for full trial.
The rule of witness immunity shields parties and witnesses from legal actions arising out of their conduct or statements made during judicial proceedings. If, at the stage of a striking out application, it is established that witness immunity is applicable, the case would be struck out without proceeding to trial. By parity of logical reasoning, if a witness is required to undergo full trial to determine merely to determine the applicability of immunity, the witnesses would have been vexed at the full trial in the second suit. Such an approach would undermine the fundamental purpose of invoking witness immunity.
Question 1 (Positive) – The witness immunity rule is absolute.
Absolute immunity applies to the Defendants in the present appeals, extending to all statements made in the course of judicial proceedings, including those that are untrue and made maliciously. This broad protection is essential to uphold the proper functioning of the judicial system and administration of justice. It is a rule of law that no action may be brought against a witness in respect of evidence prepared, given, adduced or procured in the course of judicial proceedings.
Whilst the rule is absolute in core immunity, there may be exceptions depending on the context and specifics. Notably, it does not bar criminal prosecution for perjury, perverting the course of justice or for contempt of court, liability for malicious prosecution or misfeasance in public office.
Question 2 (Negative) – It is impermissible for a party who succeeded in a first action to commence a second action against the same opposing party based on the conduct and/or evidence of the said opposing party.
The second suit, which is founded on the same background facts that had been litigated in the first suit, constitutes an abuse of process having seen that the Plaintiff has succeeded in the first suit and obtained the reliefs sought with interests. To allow the second suit to proceed to trial is to allow re-litigation of the same issues already decided in the first suit. Such an approach runs counter to fundamental policy considerations. It would be a spectre to have a justice system where chain-like litigation is permitted, allowing proceedings to continue ad infinitum with no finality.
Question 3 (Positive) – The tort of malicious prosecution does not extend to civil proceedings.
The Federal Court opined that the principles as enunciated by the Singapore Court of Appeal in Lee Tat Development[1] and the minority view of the Privy Council case and the UK case of Adjusters Crawford[2] and Willers[3] is the approach to be adopted in terms of the Malaysian jurisprudence. Extending the tort of malicious prosecution to encompass civil claims would undermine the principle of finality of litigation as it would encourage a wave of satellite litigation, where the focus shifts from the original dispute to grievances over how the litigation was conducted. This opens floodgates of unnecessary litigation and consuming court’s precious time and resources.
So long as a person has the right in law to commence legal proceedings against another, 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. Extending the tort of malicious prosecution to cover civil proceedings would therefore be inconsistent with this foundational principle.
Question 4 (Negative) – The tort of fraud based on perjury is not a recognised / actionable claim in Malaysia.
The alleged existence of tort of fraud based on perjury stands in direct conflict with the doctrine of witness immunity. 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 based on 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.
Key Takeaways
This decision underscores the court’s commitment to safeguarding the integrity of the judicial process, ensuring that witnesses can testify freely without the fear of facing retaliation through follow-up litigation. It reaffirms that civil court is not a forum for extended retribution against past litigation conduct. Apart from upholding absolute witness immunity, it enhances the safeguards on litigation finality and reflects a judicial reluctance to recognise novel torts in the civil context.
The message conveyed is clear: disputes should be resolved, not reignited.
[1] Lee Tat Development Pte Ltd v Management Corporation Strata Title Plan NO 301 [2018] SGCA 50
[2] Crawford Adjusters & Ors v Sagicor General Insurance (Cayman) Ltd & Anor (Cayman Islands [2013] UKPC 17
[3] Willers v Joyce [2016] WLR 477
About the authors
Meyer Thor Xiao Xin
Senior Associate
Dispute Resolution
Halim Hong & Quek
[email protected]
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Tan Zec Kie
Pupil-in-Chambers
Dispute Resolution
Halim Hong & Quek
[email protected]
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