Siti Fairuz Binti Shamsuri & Ors v Nik Mohd Suhaimi Bin Ahmad Ghazali

Appellant(s):

• Siti Fairuz Binti Shamsuri
• Pang Teck Mai
• Ameer Anuar Bin Minhad
• Mohd Tharuzi Bin Mohd Nor
• Dato' Abdul Razak Bin Musa
• Syafinas Binti Shabudin
• Rozana Binti Abdul Hadi
• Suruhanjaya Pencegahan Rasuah Malaysia (SPRM)
• Kerajaan Malaysia

Respondent(s): Nik Mohd Suhaimi Bin Ahmad Ghazali

• YA Datuk Azhahari Kamal bin Ramli
• YA Dato' Ahmad Kamal Bin Md. Shahid
• YA Dato' Nadzarin Bin Wok Nordin

• The plaintiff, a director of a security services company, was investigated by the Malaysian Anti-Corruption Commission (MACC) for suspected bribery, but was ultimately arrested and charged with using a fake document under section 468 of the Penal Code; he alleged he was tightly handcuffed, denied medication, held overnight in a lock-up, and paraded before the media before being charged, causing him severe psychiatric harm.
• He sued the MACC officers, the Deputy Public Prosecutors, MACC and the Government for false imprisonment/wrongful arrest/harassment and malicious prosecution; he was acquitted at the end of the prosecution's case, and the Public Prosecutor's appeal against acquittal was later withdrawn.
• The High Court dismissed the malicious prosecution claim but "rebranded" the false imprisonment/harassment claim as a novel tort of "malicious process/abuse of process," awarding a total of RM900,000 in damages plus costs, leading to three consolidated appeals: by the defendants on liability and quantum, and by the plaintiff on quantum (with a cross-appeal on malicious prosecution).

• Whether a Notice of Cross-Appeal under Rule 8 of the Rules of the Court of Appeal 1994 could be used to challenge a substantive finding (dismissal of malicious prosecution) not raised in the main appeal, as opposed to requiring an independent Notice of Appeal.
• Whether the cause of action of "abuse of process/malicious process" was properly pleaded, and more fundamentally, whether this tort (recognised only in the context of abuse of civil process) can be extended to abuse of criminal process/investigation, or whether malicious prosecution remains the sole available remedy for such conduct.
• If liability were upheld, whether the High Court's assessment of general, special, aggravated and exemplary damages was properly reasoned and supported by the evidence, including the effect of agreed medical reports not formally proved by calling the doctors.

• The Court held the plaintiff's Notice of Cross-Appeal was incompetent as it sought to reverse a substantive finding (dismissal of the malicious prosecution claim) rather than merely vary the decision under appeal; the preliminary objection was allowed and the cross-appeal struck out.
• The Court ruled that the tort of "abuse of process/malicious process" applies only to abuse of civil process and has no application to criminal investigation or prosecution; the only recognised remedy for abuse of the criminal process remains malicious prosecution, and since that claim had been dismissed (unappealed), there was no proper basis to find liability under the "rebranded" tort — the High Court therefore erred, and the defendants' appeal on liability was allowed, setting aside the judgment below.
• On quantum, though liability was set aside (rendering the issue academic), the Court nonetheless held that, had liability been established, general damages should have been increased to RM800