The Tort of Abuse of Process: A Recognised Tort?

In Dato’ Sri Najib bin Tun Abdul Razak (“DSN”)’s civil suit against Tan Sri Tommy Thomas and the Government of Malaysia,[1] the Defendants have filed an application to strike out the civil suit.[2]

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”.[3]

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) [2018] 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 [1990] 2 MLJ 152).”[4] [Emphasis mine]

Back in 1998, in Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin bin Ungku Mohamed [1998] 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.”[5]

The Court of Appeal in Jasa Keramat Sdn Bhd & Anor v Monatech (M) Sdn Bhd [1999] 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 [1996] 2 MLJ 605 and Tsoi Ping Kwan v Loh Lai Ngoh & Anor [1997] 3 MLJ 165.[6]

In Hock Peng Realty Sdn Bhd v Ting Sie Chung @ Ting Sieh Chung and another appeal [2018] 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.[7]

The Plaintiff then filed a civil suit premised inter alia on the tort of abuse of process.[8]

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.[9]

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.[10]

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.


Obscure Torts


Arguably the most well known torts are negligence and defamation. Which law student has not heard of the seminal case of Donoghue v Stevenson [1932] UKHL 100?

Lesser known torts, yet still heard of and/or taught in law school, includes nuisance, trespass to person, trespass to land, and vicarious liability.

This article intends to present and make known obscure torts which do not appear in many Tort Law textbooks.[1]  The first, second, and fourth tort can generally be classified as economic torts which “as their name suggests, have their primary function the protection of claimants’ economic interests, in the sense of their existing wealth or financial expectations.”[2]


Psychiatrist-Patient and the Tort of Sexual Harassment

Around July 2019, there were news reports about a psychiatrist in a hospital in Petaling Jaya who sexually harassed his patient – the latter being a rape victim.[1] An article by World Of Buzz contains multiple screenshots of conversations between the psychiatrist and his patient demonstrating that the former sexually harassed the latter.[2]

The hospital received a complaint on the matter and proceeded to suspend the psychiatrist on the 6th of July 2019. Subsequently, the hospital terminated the psychiatrist’s services effective 15th July 2019.[3]

The victim lodged a police report on the 16th of July 2019[4] and after conducting its investigation, the police concluded vide letter dated 13th September 2019 that:

i) there was no substantial evidence to prove the case against the suspect; and

ii) there should be no further action.[5]

Unsurprisingly, netizens were up in arms about the police’s decision. Thankfully, on 18th October 2019, the psychiatrist was charged at the Magistrate’s Court for having insulted the modesty of his patient.[6] The offence, under Section 509 of the Penal Code, carries a maximum punishment of imprisonment for a term which may extend to five years, or fine, or both.[7]

Notwithstanding the Attorney General’s Chambers’ decision to charge the psychiatrist under the Penal Code, does the patient have any recourse from a civil law perspective?