In Dato’ Sri Najib bin Tun Abdul Razak (“DSN”)’s civil suit against Tan Sri Tommy Thomas and the Government of Malaysia, the Defendants have filed an application to strike out the civil suit.
Amongst others, the Defendants are taking the position that “the cause of action for abuse of process [pleaded by DSN] is not a cause of action recognised by law”.
With all due respect to the Defendants, and to the learned Deputy Public Prosecutor who affirmed the affidavit taking such a position, the Malaysian courts (at least at the Court of Appeal level and below) have in fact recognised a cause of action for abuse of process.
In KHK Advertising Sdn Bhd v Siera Management Sdn Bhd (in liquidation)  4 MLJ 168, the Court of Appeal referred in passing to the existence of the tort of abuse of process:
“We found no reason to interfere with the learned judge’s finding. As pointed out by learned counsel for the defendant, a plain reading of the amended statement of claim would show that the issue of abuse of process was not at all alluded to, let alone pleaded. The tort of abuse of process is a separate cause of action and it is trite that the issue should be separately pleaded and not merely raised in submission (see Yew Wan Leong v Lai Kok Chye  2 MLJ 152).” [Emphasis mine]
Back in 1998, in Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin bin Ungku Mohamed  2 MLJ 425, Gopal Sri Ram JCA (later FCJ) laid down the elements to be established in a claim based on the tort of abuse of process:
“In my judgment, the essential elements of the tort of abuse of process are these:
(1) The process complained of must have been initiated;
(2) The purpose for initiating that process must be some purpose other than to obtain genuine redress which the process offers. In other words, the dominant purpose for which the process was invoked must be collateral, that is to say, aimed at producing a result not intended by the invocation of the process; and
(3) The plaintiff must have suffered some damage or injury in consequence.”
Circumstances giving rise to the tort of abuse of process would “include the use of interlocutory relief as an instrument of oppression.”
The Court of Appeal in Jasa Keramat Sdn Bhd & Anor v Monatech (M) Sdn Bhd  4 MLJ 637 gave the example of interlocutory injunctions and referred to the cases of Motor Sports International Ltd (Servants or agents at Federal Territory of Labuan) & Ors v Delcont (M) Sdn Bhd  2 MLJ 605 and Tsoi Ping Kwan v Loh Lai Ngoh & Anor  3 MLJ 165.
In Hock Peng Realty Sdn Bhd v Ting Sie Chung @ Ting Sieh Chung and another appeal  2 MLJ 51, a recent Court of Appeal decision, the Defendant had issued a writ of seizure and sale and subsequently obtained a prohibitory order against the Plaintiff’s land (without having served any papers on the Plaintiff) in breach of the consent order in force between the Plaintiff and the Defendant.
The Plaintiff then filed a civil suit premised inter alia on the tort of abuse of process.
The High Court allowed the Plaintiff’s claim based on the tort of abuse of process and the Court of Appeal subsequently affirmed the High Court’s decision.
In addition, the High Court had awarded the Plaintiff RM50,000 in damages for the tort of abuse of process and the Court of Appeal agreed with the quantum awarded.
Notwithstanding the above, granted, it appears that there are no Federal Court decisions recognising the existence of the tort of abuse of process.
The Defendants’ striking out application, if appealed all the way to the Federal Court, could be the seminal case on the existence (or lack thereof) of the tort of abuse of process in Malaysian law.
1. Facts which are judicially noticeable do not need to be proved
This is provided for under Section 56 of the Evidence Act 1950:
“No fact of which the court will take judicial notice need be proved.”
2. Section 57 of the Evidence Act 1950 contains a list of facts which the Court must take judicial notice of
3. The list in Section 57 of the Evidence Act 1950 is not exhaustive
The Federal Court in Lee Weng Sang v Public Prosecutor  1 MLJ 168 held that:
“The list of matters of which the court may take judicial notice of [which is found in Section 57 of the Evidence Act 1950] is of course not exhaustive. But while there does not appear to be any statutory limitation to what a judge may take judicial notice of, it is clear from the authorities that, in order to avoid a conflict between the ban on a judge importing his own knowledge into a case and what he may take judicial notice of, there is a limitation to “what is notorious, (of) what everybody knows”: see Yong Pak Yong v Public Prosecutor  MLJ 176.” (Emphasis mine)
The same position was taken by the Federal Court in Pang Ah Chee v Chong Kwee Sang  1 MLJ 153, and by the Supreme Court in Pembangunan Maha Murni Sdn Bhd v Jururus Ladang Sdn Bhd  2 MLJ 30.
4. For facts not listed in Section 57 of the Evidence Act 1950, the notoriety test applies
In Johnson Tan Han Seng v Public Prosecutor (and other cases)  2 MLJ 66 (“Johnson Tan”), Suffian LP was of the view that:
“Judicial notice is the cognizance taken by the court itself of certain matters which are so notorious or clearly established that evidence of their existence is deemed unnecessary; see Phipson on Evidence, 11th Ed., page 10.” (Emphasis mine)
Johnson Tan was relied on recently by the Federal Court in Raqeem Rizqin Enterprise dan lain-lain lwn Ketua Polis Negara dan satu lagi  5 MLJ 693.
In Pembangunan Maha Murni Sdn Bhd v Jururus Ladang Sdn Bhd  2 MLJ 30, a test similar to the one in Johnson Tan was propounded by Syed Agil Barakbah SCJ:
“The matter which the Court will take judicial notice must be the subject of common and general knowledge and its existence or operation is accepted by the public without qualification or contention. The test is that the facts involved must be so sufficiently notorious that it becomes proper to assume its existence without proof. The opponent, however, is not prevented from disputing the matter by adducing evidence if he disputes it. (See Sarkar on Evidence, 13th Edn. paras. 606–609).” (Emphasis mine)
5. Courts should not take judicial notice of foreign law
The Federal Court in The “Lung Yung” The “Lung Yung” & “Thai Yung” Owners ^Ors v Sadit Timber Sdn Bhd & Ors  1 MLJ 29 unequivocally held the following:
“The whole matter appears to have proceeded on false premises in that the question in issue was presented and indeed determinded [sic] by the learned Judge virtually taking judicial notice of the relevant laws of Taiwan that appeared to be applicable. This was clearly wrong as foreign law on a particular topic is a question of fact which is to be and can be proved by evidence of experts [ section 45(1) of the Evidence Act, 1950; Mak Sik Kwong v Minister of Home Affairs, Malaysia (No.2)  2 MLJ 175 181 (at page 181)].” (Emphasis mine)
6. Courts take judicial notice of illegality in contracts
In Lim Kar Bee v Duofortis Properties (M) Sdn Bhd  2 MLJ 281 (“Lim Kar Bee”), Peh Swee Chin SCJ opined that:
“Courts have always set their face against illegality in any contract. It is very well settled that the courts take judicial notice of such illegality and refuse to enforce the contract, and such judicial notice may be taken at any stage, either at the court of first instance or at the appellate stage irrespective of whether illegality is pleaded or not where the contract is ex facie illegal.”
The above extract in Lim Kar Bee was relied upon by the Federal Court in Merong Mahawangsa Sdn Bhd & Anor v Dato’ Shazryl Eskay bin Abdullah  5 MLJ 619.
1. Applies in favour of the constitutionality of an Act of Parliament/State enactment
In Public Prosecutor v Su Liang Yu  2 MLJ 128, Hashim Yeop A Sani J (later Chief Justice of Malaya) held:
“There is always a presumption in favour of constitutionality of an enactment and the burden is upon him who attacks the enactment to show that there has been a clear transgression of the constitutional principles.”
2. Applies to all Acts of Parliament
The Federal Court in Rovin Joty a/l Kodeswaran v Lembaga Pencegahan Jenayah & Ors and other appeals  MLJU 195 remarked that:
“There is a presumption of constitutionality in every legislation passed by Parliament.”
3. Is premised on the understanding that Parliament is deemed better placed than the Courts to determine social policy as parliamentarians are democratically elected and represent the will of the people
Azahar Mohamed CJ (Malaya), in delivery the majority decision in Letitia Bosman v Public Prosecutor and other appeals (No 1)  5 MLJ 277 held:
“The presumption of constitutionality exists because Parliament is deemed better placed than the Courts to determine social policy. Parliamentarians are democratically elected and represent the will of the people.”
4. A manifestation of judicial deference in the exercise of constitutionally derived powers
In Rovin Joty a/l Kodeswaran v Lembaga Pencegahan Jenayah & Ors and other appeals  MLJU 195, Zabariah Mohd Yusof FCJ opined the following:
“The presumption of constitutionality is a manifestation of judicial deference in striking down laws passed by Parliament or to impugn executive action insofar as the exercise of constitutionally derived powers are concerned.”
5. Cannot be carried to the extent or stretched to for the purposes of validating an invalid law
Eusoffe Abdoolcaader J (later SCJ) held in Public Prosecutor v Datuk Harun bin Haji Idris & Ors  2 MLJ 116 (“Datuk Harun”):
“… the presumption is not however to be carried to the extent or stretched for the purpose of validating an otherwise invalid law, and if the force ofArticle 8(1) bears sufficiently strongly upon and against that presumption, it must then necessarily bend, break and give way under that force.”
The Federal Court in Letitia Bosman v Public Prosecutor and other appeals (No 1)  5 MLJ 277 shared a similar view when it held:
“… that is not to say that the presumption is unassailable. The presumption of constitutionality cannot be applied to render a law that is invalid, valid.”
6. Burden to disprove the presumption lies on the party presenting the challenge
This is the trite position as seen in Datuk Harun:
“there is a presumption – perhaps even a strong presumption – of the constitutional validity of the impugned section with the burden of proof on whoever alleges otherwise.”
The above extract in Datuk Harun was referred to favourably by the Supreme Court in Public Prosecutor v Pung Chen Choon  1 MLJ 566.
Both Datuk Harun and Pung Chen Choon were relied on by the Federal Court in Rovin Joty a/l Kodeeswaran v Lembaga Pencegahan Jenayah & Ors and other appeals  MLJU 195 on this point. (more…)
Mr. Marcus van Geyzel, co-founder of boutique corporate law firm Peter Ling & van Geyzel, recently highlighted that the proposed amendment to the definition of ‘apprenticeship contract’ found in the Employment (Amendment) Bill 2021 [“Amendment Bill”] could result in the following:
“… pupils will fall within the scope of the EA (they would be “employees” for the purpose of the EA provided that they are paid RM2,000/month or below), and will be entitled to the minimum wage.”
The revised definition of ‘apprenticeship contract’, if passed by Parliament the way it is presently worded in the Amendment Bill, would be:
“a written contract entered into by a person with an employer who undertakes to employ the person and train or have him trained systematically for a trade for a specified period which shall be for a minimum period of six months and a maximum period of twenty four months in the course of which the apprentice is bound to work in the employer’s service.”
Assuming the revised definition is adopted in its entirety, it is submitted that there still remains various obstacles in place preventing pupilages from being construed as apprenticeship for the purposes of the EA 1955.
For the purposes of this article, we will examine the following aspects of the definition of ‘apprenticeship contract’ in the context of pupilage and the legal profession:
i. Written contract;
ii. Employer; and
iii. Systematic training for a trade.
At the present moment, some pupils have written contracts with their masters and/or the firm while others do not.
It is important to note that Ruling 10.09 of the Rules and Rulings of the Bar Council, which was introduced in February 2019, prohibits a master from “[entering] into any contract of or for service, with his/her pupil.”
Some pupil masters and/or firms may rely on Ruling 10.09 to justify not entering into a written contract with a pupil.
Based on the above definition of ‘apprenticeship contract’, a written contract is a prerequisite.
The absence of a written contract would result in a pupil-master arrangement not being an ‘apprenticeship contract.’
Two possible solutions to plug the loophole immediately come to mind:
i. Expand the definition of ‘apprenticeship contract’ to cover oral contracts; and
ii. Amend or replace Ruling 10.09 to require pupil masters to enter into written contracts with pupils.
The former, however, could result in significant hardship for employers across all industries. Individuals can claim to have entered into an oral contract for apprenticeship and claim to be entitled to the rights and protections accorded under the Employment Act 1955 (“EA 1955”).
On the other hand, the latter could be contrary to public policy as the parties’ autonomy vis-a-vis freedom of contract (namely whether or not to enter into a contract) would be violated.
This loophole, and the best/appropriate method to close it, evidently requires further deliberation.
Section 2 of the EA 1955 defines an ‘employer’ as:
“any person who has entered into a contract of service to employ any other person as an employee and includes the agent, manager or factor of such first mentioned person, and the word “employ”, with its grammatical variations and cognate expressions, shall be construed accordingly.” (Emphasis mine)
Here, Ruling 10.09 of the Rules and Rulings of the Bar Council could prove to be an obstacle yet again.
If a pupil master refuses to enter into a contract of service with a pupil, by virtue of Ruling 10.09, the pupil master would not be an ‘employer’ for the purposes of the EA 1955.
Alternatively, a pupil master can opt to enter into a contract for services with a pupil (Ruling 10.09 notwithstanding) so as to not fall into the definition of an ‘employer’ for the purposes of the EA 1955.
An employer, as defined by the EA 1955, is a prerequisite for the existence of an ‘apprenticeship contract.’
The absence of an ‘employer’ (as defined by the EA 1955) would result in a pupil-master arrangement not being an ‘apprenticeship contract.’
Similar to the written contract loophole, the employer loophole and the best/appropriate method to close it would require further consideration.
Systematic training for a trade
The EA 1955 does not define the word “trade.” As such, the Courts will likely rely on dictionary definitions of the word.
Black’s Law Dictionary defines ‘trade’ as:
“the act or the business or buying and selling for money; traffic; barter. May V. Sloan, 101 U.S, 231, 25, L.Ed. 797, Purchase and sale of goods and services between businesses, states or nations. Trade is not a technical word and is ordinarily used in three senses: (1) in that of exchanging goods or commodities by barter of by buying and selling for money; (2) in that of a business occupation generally; (3) in that of a mechanical employment, in contradistinction to the learned professions, agriculture, of the liberal arts. People v. Volar vort of America, Inc., 1.0 Misc. 2d 378, 174 N.Y.S. 2d 789, 793.” (Emphasis mine)
Meanwhile, Collins Dictionary of Law defines ‘trade’ as:
“operations of a commercial character involving the provision to customers of goods or services for reward; an adventure in the nature of a trade connotes a single such operation.” (Emphasis mine)
In view of the above definitions, the legal profession could be considered a trade. If so, a pupilage could be construed as training for a trade.
Having said that, whether such training is ‘systematic’ is debatable. At the present moment, pupil masters are free to tailor the 9 months pupilage as they see fit.
In the event a pupilage is a training for trade but it is not considered systematic training, a pupilage would not qualify as an ‘apprenticeship contract’ for the purposes of the EA 1955.
Postscript: Mr. Donovan Cheah, co-founding partner of Messrs. Donovan & Ho, brought to my attention that some provisions in the EA 1955 use the phrase “trade, profession, or business” [Section 63A(1)(a)] and “trade, business, or profession.” [Section 2]. He argued that this would imply that “trade” is distinguished from “profession” and the legal profession being a profession, would fall under the latter rather than the former.
In light of the principle that Parliament does not legislate in vain [see e.g. Asia Pacific Higher Learning Sdn Bhd (registered owner and licensee of the higher learning institution Lincoln University College) v Majlis Perubatan Malaysia & Anor  2 MLJ 1, at paragraph 126], as well as the rule of harmonious construction [see e.g. Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v Muziadi Mukhtar  1 MLJ 141, at paragraph 78], I am inclined to agree with him.
Having said that, this would in fact further support the contention in this article that there remains various obstacles in place preventing pupilages from being construed as apprenticeship for the purposes of the EA 1955.
1. Are statements not made under oath
Statements from the Bar are unsworn statements.
This can also be gleaned from the Court of Appeal’s decision in Ng Hee Thong & Anor v Public Bank Bhd  1 MLJ 281 (“Ng Hee Thong”):
“It is a principle fundamental to our system adversarial litigation that evidence upon a matter must be given on oath. The practice of counsel giving evidence from the Bar, as was done in this case, is to be deprecated.”
2. Can be made by a party’s counsel or by the party himself/herself
Commonly, statements from the Bar are made by a party’s counsel.
In Tetuan Tokoyaki Property Sdn Bhd v Sam Kok Sang @ Tham Sow Seng & Ors  1 MLJ 585, VT Singham JC made the following observation:
“This court is of the view that a statement of fact which is used or relied as a ground to support to prove or disprove or to oppose an application for summary possession of any other application before the court must necessarily be expressed in the affidavit and not raised by way of a statement from the bar table by counsel for one of the parties or litigants.” (Emphasis ours)
3. Includes statements made in Written and/or Reply Submissions
In Dr Lim Boon Ping v Sun Pharmaceutical Sdn Bhd  MLJU 1645, the High Court remarked that the statement from the Bar was made in the Written Submission:
“The Defendant’s written submission at para 30 in fact appears to be a statement from the Bar and as such to be ignored …”
Similarly, in Dian Kiara Sdn Bhd v GCH Retail (M) Sdn Bhd  12 MLJ 570, the statement from the Bar was also made in the Written Submission:
“Most importantly, the affidavit affirmed by Jason Chong at para 6 of encl 18 remains unrebutted and unchallenged. It is noted that the plaintiff had ample time to rebut, contradict and challenge the contents of encl 18 which the plaintiff failed to do. It is nonetheless admitted that the plaintiff submitted the issue in passing in their written submission which in my view is insufficient, at best, it is merely a statement from the Bar.”
4. Is not evidence
This is a position consistently taken by the appellate courts in Malaysia.
In Pernas Construction Sdn Bhd v Sykt Rasabina Sdn Bhd  MLJU 759, Mokhtar Sidin JCA held the following:
“Obviously this is merely a statement from the Bar table. This is no evidence.”
Abdul Hamid Mohamad FCJ in Lie Kok Keong v Tang Container & Services Sdn Bhd  1 MLJ 373 was of the view that:
“… that is merely a statement from the bar.It is not evidence and should not have been accepted as evidence.”
5. Disapproved of by the courts
Pre-Ng Hee Thong, some courts were willing to accept statements from the Bar on a case by case basis.
However, since Ng Hee Thong was decided, it appears that the courts generally disapprove of the practice.
In Sematan Shrimp Hatchery Company v Aqua Fresh Co  MLJU 404, the High Court was of the view that statements from the Bar are inadmissible:
“It is improper for the Court to accept the explanation of Mr. Ng with regard to the omission in filing the Supplementary Record of Appeal earlier because that statement is a statement from the Bar and it is inadmissible.”
The Court of Appeal in Malayan Banking Bhd (formerly known as ‘ Mayban Finance Bhd’ ) v Boo Hock Soon @ Boo Choo Soon  2 MLJ 843 could arguably have narrowed the scope of rejection of statements from the Bar to very crucial issues:
“Be that as it may, the defendant guarantor ought not to be allowed to challenge the correctness of the certificate of indebtedness because the defendant guarantor has not alluded to this in any of his affidavits in reply nor was there any averment that there were manifest errors in the said certificate. A submission from the bar on this very crucial issue will not be entertained by this court (Ng Hee Thoong & Anor v Public Bank Bhd  1 MLJ 281;  1 CLJ 609 (CA); and Abdul Razak Ahmad v Majlis Bandaraya Johor Bahru  2 MLJ 287;  2 AMR 1174;  4 CLJ 339 (HC)).” (Emphasis mine)