Witness Immunity Rule In Malaysia Absolute Says Federal Court

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The Federal Court has ruled that the witness immunity rule applies to both ‘honest and dishonest’ litigants.
PUTRAJAYA: The Federal Court has, in a split ruling, held that the common law rule on witness immunity – which protects witnesses from being sued for their testimony in judicial proceedings – applies in Malaysia.
Justice Zabariah Yusof said the protection, which covers both “honest and dishonest” litigants, is absolute.
In reading her broad grounds of judgment, Zabariah said the tort of malicious prosecution in this country cannot arise from civil proceedings as it would “open the floodgates” of litigation, consuming precious time and resources.
Zabariah also said the courts cannot recognise fraud based on perjury as an actionable tort as it would run afoul of the witness immunity rule.
Justice Hanipah Farikullah concurred with Zabariah.
The majority judges allowed an appeal by businessmen Kamal Y P Tan, Ng Wai Pin, Michael Gunalan Benedict, Wong Yoke Yen and Wong Fook Lin in a suit filed by another businessman, Ong Yew Teik.
The court, which ordered Ong to pay a total of RM450,000 in costs to the five appellants, said his cause of action in a second suit was also an abuse of process.
Justice Rhodzariah Bujang, who dissented, said that the Court of Appeal’s unanimous ruling, made in Ong’s favour, was correct and should be maintained.
Friday’s apex court ruling is based on a second suit brought by Ong against Kamal and his four co-appellants in 2021. The four men were witnesses in the first suit.
Ong had initially sued Kamal for about RM8 million in 2007 based on an acknowledgment of debt tied to the sale of shares in Euroceramic Technologies Company Limited, a Thai corporation.
Kamal lost his appeal in the Federal Court, resulting in him paying about RM13.6 million in damages and interest to Ong.
However, having received the judgment sum, Ong filed a second action against the five appellants asserting that they had committed perjury, fraud, forgery, conspiracy, malicious prosecution and abuse of court process in connection with their evidence and conduct in the first suit.
The crux of Ong’s complaint in this second action was that he suffered losses due to Kamal’s refusal to pay the RM8 million debt and his act in mounting an unmeritorious defence and counterclaim in the first suit.
On June 14, 2022, the High Court allowed the five appellants’ applications and struck out Ong’s claim. The decision was reversed by the Court of Appeal and the matter was sent back to the High Court for full trial.
The High Court dismissed Ong’s suit but the Court of Appeal allowed it on appeal, giving rise to the present proceedings.
Robert Low, Karen Yong, Khong Mei-Yan represented Kamal; Elizabeth Lau, Hazel Siau and Ivan Wong appeared for Ng; Nicholas Poon represented Wong Yoke Yen; and A Surendra Ananth acted for Benedict and Wong Fook Lin.
Counsel Rajan Navaratnam, Roshan Selvaratnam, Toh Sin Yi, Sheena Sebastian, Ozair Huneid Tyeb and Diong Qian acted for Ong. - FMT

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