Inspektor Muhammad Noorariff Shah Bin Zainudin & Ors v Lim Hui Jin

Appellant(s):

• Xxxx
• Timbalan Pendakwa Raya
• Ketua Polis Negara, Malaysia
• Kerajaan Malaysia

Respondent(s): Lim Hui Jin

• YA Datuk Supang Lian
• YA Datuk Azimah binti Omar
• YA Datuk Wong Kian Kheong

• Following a police report alleging criminal breach of trust against the plaintiff's mother, investigations were extended to the plaintiff, culminating in a freezing order under s 44(1) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLA) over four of the plaintiff's bank accounts, and a subsequent seizure order under s 50(1) AMLA over one of those accounts.
• The plaintiff was never charged under AMLA, and despite the statutory lapse of the seizure order after 12 months (per s 52A and s 56(3) AMLA), the frozen funds were not released; a prior suit against the bank and public authorities was needed before the Court of Appeal ordered release of the funds, which only occurred years later.
• The plaintiff then sued the investigating officers, the Deputy Public Prosecutor (DPP), the Inspector-General of Police (IGP) and the Government for the torts of misfeasance in public office and breach of statutory duty under AMLA; the High Court allowed the claim and awarded general and exemplary damages, prompting cross-appeals on liability and quantum.

• Whether, per the Federal Court's ruling in Kerajaan Malaysia v Lay Kay Tee, a claim against the Government under ss 5 and 6 of the Government Proceedings Act 1956 can succeed against an unnamed public officer (here, an unnamed DPP), and whether leave should be granted at a late stage to name the DPP given limitation issues under the Public Authorities Protection Act 1948.
• Whether the elements of the tort of misfeasance in public office and the tort of breach of statutory duty under AMLA were established against each investigating officer, including whether statutory breaches of ss 44(1), 52A and 56(3) AMLA gave rise to a private right of action.
• Whether the officers could rely on statutory defences of good faith and immunity under ss 44(6) and 77(b) AMLA, and whether the Court of Appeal should disturb the High Court's assessment of general damages, exemplary damages, special damages (legal fees) and aggravated damages.

• The Court held that, applying Lay Kay Tee, the suit could not be maintained against the unnamed DPP or vicariously against the Government in respect of the DPP's conduct; it refused leave to name the DPP at the appellate stage due to expiry of the limitation period under the Public Authorities Protection Act 1948, and set aside judgment against the first investigating officer (who had no role in issuing the freezing/seizure orders) and the DPP.
• The Court found that the second investigating officer had breached statutory duties under the pre-amendment s 44(1), s 52A and s 56(3) AMLA, that these breaches amounted to both misfeasance in public office (with proof of malice) and breach of statutory duty under AMLA, and that she could not rely on the good faith defence under s 44(6) or the immunity under s 77(b) AMLA; the IGP and Government were held vicariously liable for her torts.
• The Court increased general damages from RM200,000 to RM500,000 (reflecting the prolonged unlawful freezing/seizure and litigation costs incurred), affirmed the RM100,000 exemplary damages award, declined to award aggravated damages or separate special damages for legal fees, reduced High Court costs to RM50,000, and ordered 5% per annum interest on the total sum from the date of the High Court judgment, with no order as to costs for the appeal and cross-appeal.