Awg Mohd Syhaffiq bin Awang Salim 1. Penjara Kajang 2. Jabatan Penjara Malaysia 3. Kementerian Dalam Negeri 4. Kerajaan Malaysia

IN THE MAGISTRATE COURT IN KAJANG IN THE STATE OF SELANGOR CIVIL SUIT NO.: BH-A71-1-03/2021 Between AWG MOHD SYHAFFIQ BIN AWANG SALIM ...PLAINTIFF AND 1. PENJARA KAJANG 2. JABATAN PENJARA MALAYSIA 3. KEMENTERIAN DALAM NEGERI MALAYSIA 4. KERAJAAN MALAYSIA …DEFENDANTS GROUNDS OF DECISION (O. 18 r. 19 (1) Rules of Court 2012) 1) The Defendants, via enclosure 12, seek: (i) The writ and statement of claim dated 4.3.2021 be struck out pursuant to O. 18 r. 19 (1) (a) or (b) or (d) Rules of Court 2012; (ii) alternatively, the writ and the statement of claim be struck out pursuant to the inherent jurisdiction of this court pursuant to O. 92 r 4 Rules of Court 2012; (iii) the proceeding be stayed pending the outcome of this application; (iv) cost to be born by the plaintiff 1 (v) Any other order that this court thinks fit and just. FACTS PLEADED BY THE PLAINTIFF 2) On 4.6.2020, Awg Mohd Syhaffiq bin Awang Salim, the plaintiff, received an offer via a letter issued by the Public Service Commission to report for duty as Prison Officer Grade KA19. He was at the material time, a freelance nurse with Paramedic Ambulance EMS Services Sdn Bhd with a daily allowance between RM300-RM700. He resigned from the job upon receipt of the offer. 3) On 18.6.2020, the plaintiff received another letter from Jabatan Penjara Malaysia, the second Defendant, requiring the former to report for duty on 1.7.2020 at 8.00 AM. 4) On 1.7.2020, the plaintiff was present to report for duty and was brought to a hall with 80 other individuals with the same purpose. They were accompanied by their respective family members. 5) In the hall, all of those who came to report for duty were asked to undergo urine test, an agenda of which the plaintiff had no prior knowledge. 6) The plaintiff took the test. A prison officer then revealed the result of the urine test, which was found to be positive for methamphetamine. Upon request by the plaintiff, different test strips were dipped into the same urine sample, alas, the same result. 2 7) The plaintiff claimed the bottle was re-used the purpose of the urine test of the attendees, and he vehemently protested the result of the test, for he had undergone a medical check-up on 19.6.2020 at Klinik Kesihatan Jinjang, and he had sworn a statutory declaration that he did not involve in drug activities dated 12.6.2020. 8) Thereafter, the plaintiff claimed he, with few others whose results were allegedly positive of drug, were escorted by one Inspektor Azim bin Mazlan, an officer of the Penjara Kajang (1st Defendant) and/or Jabatan Penjara Malaysia (2nd Defendant). The said Inspektor Azim harassed, embarrassed and chided (mengaibkan, memalukan dan mengherdik) the plaintiff by calling him “penagih”. 9) The plaintiff and several others, as mentioned earlier, then were brought to see one PKK M. Basakaran a/l S Muthiah, where the plaintiff was once again harassed, embarrassed and chided, as well as being called "penagih". There, he was given two options, either signing a rejection letter, i.e. not to accept the work offer of Prison Officer K19 or being detained and brought to IPD Kajang to be reported for misuse of drug. 10) Stressed, humiliated, and fear of having a criminal record, after being pressed by PKK M. Basakaran a/l S Muthiah as well as a few other officers, the plaintiff opted to sign the rejection letter, which was not done willingly and without good faith. 11) Aftermath the incident, on the same day (1.7.2020) at 12.55 PM, the plaintiff went to Labilink (M) Sdn Bhd, a lab, to have his urine tested. The result was negative and had no trace of methamphetamine. 3 THE CLAIM 12) The plaintiff claims actions of Insp. Azmi bin Mazlan as well as PKK M.Basakaran a/l S. Muthiah which harassed, embarrassed and chided as well as calling the plaintiff penagih which ended up giving the plaintiff two options of rejecting the offer or facing the threat of being reported to the police, was outraging, embarrassing and not complying with the procedure and devoid of professionalism (tindakan melampau, memalukan serta tidak mengikut prosedur dan profesionalisme yang sewajarnya). I wish to pause here and note that Insp. Azmi bin Mazlan and PKK M.Basakaran a/l S. Muthiah were not named as parties in the suit. 13) It follows that the 1st Defendant had failed to control, supervise and fail to take serious concern over the level of professionalism and acts of Insp. Azim bin Mazlan and PKK M.Basakaran /al S. Muthiah that resulted in the incident mentioned earlier. 14) The 2nd Defendant as a department, had obligation over prisons, detention centres and correctional institutions in Malaysia, including and not limited to the 1st Defendant, had failed, had refused and/or was negligent in controlling, supervising and taking serious concern over the level of professionalism and acts of the officers of the 1st Defendant, resulting the unfortunate incident that befell upon the plaintiff, causing confusion as to the need to hold urine test with without prior notification to the plaintiff on the day he went to report for duty on 1.7.2020. 4 15) The 3rd Defendant, Kementerian Dalam Negeri Malaysia, as a ministry responsible for the business of the 1st and 2nd Defendants, should be held vicariously liable. 16) The same goes to Kerajaan Malaysia, the 4th Defendant, an entity that is responsible for over 1st, 2nd and 3rd Defendants, should be held vicariously liable. 17) Resulting from the aforesaid incidents, the plaintiff had not been employed. He claimed he suffered "temporary restraining order adjustment disorder", requiring him to attend occupational therapy at Klinik Kesihatan Jinjang. He felt humiliated, lost self-confidence and self-value to face family and friends. 18) The plaintiff claimed against the four defendants: i) general damages; ii) "specific damages" (as per the statement of claim) at the amount of RM70,000; iii) damages for stress, emotional depression. iv) aggravated damages; v) exemplary damages; vi) formal oral and written apology; vii) cost; viii) any other orders that this court thinks fit. 5 GROUNDS FOR THE DEFENDANTS' APPLICATION 19) The defendants in moving this court to strike out the writ and the statement of claim pursuant to O. 18 r. 19 (1) (a) or (b) or (d), stated: i) the claim does not disclose a reasonable cause of action; ii) the claim contains bad pleading, lack of material facts to show negligence or any other cause of action under any law; iii) the 1st, the 2nd and the 3rd defendants are not legal entities capable of suing or being sued. iv) Naming the 1st, 2nd and 3rd defendants as parties is a misconception of facts and laws. v) The plaintiff failed to name the tortfeasor as required by s. 5 and 6 of the Government Proceedings Act 1956. O. 18 R. 19 RULES OF COURT 2012 20) O. 18 r. 19 of the Rules of Court 2012 reads: 19. Striking out pleadings and endorsements (O. 18 r. 19) (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that- (a) it discloses no reasonable cause of action or defence, as the case may be; (b) it is scandalous, frivolous or vexatious; 6 (c) omitted (d) it is otherwise an abuse of the process of the Court, 21) As pointed out by both sides, the summary procedure in the aforesaid rule can only be adopted when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable" (per Dzaiddin SCJ in Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, [1993] 4 CLJ 7. S. 5 AND 6 OF THE GOVERNMENT PROCEEDINGS ACT 1956 (ACT 359) 22) I wish to go straight for the jugular, on the issue of failure to name the tortfeasor as a party. 23) S. 5 of the Government Proceedings Act 1956 ("Act 359") provides: Subject to this Act, the Government shall be liable for any wrongful act done or any neglect or default committed by any public officer in the same manner and to the same extent as that in which a principal, being a private person, is liable for any wrongful act done, or any neglect or default committed by his agent, and for the purposes of this section and without prejudice to the generality thereof, any public officer acting or purporting in good faith to be acting in pursuance of a duty imposed by law shall be deemed to be the agent of and to be acting under the instructions of the Government. 7 24) S. 6 (1) of the same Act provides: (1) No proceedings shall lie against the Government by virtue of section 5 in respect of any act, neglect or default of any public officer, unless proceedings for damages in respect of such act, neglect or default would have lain against such officer personally. 24) The bone of contention of the defendants is, since the tortfeasor, i.e. the prison officer(s), was not named as a party in the suit, the pre- requisite of initiating a proceeding against the government as provided for under s. 6 is not fulfilled, which warrants this action to be dismissed. The Federal Counsel submits the law is trite as established in the case of Kerajaan Malaysia & Ors v. Lay Kee Tee & Ors [2009] 1 CLJ 663. 25) The plaintiff, on the other hand, urges this court that the action should not be struck out and submits: i) the mistake of not naming the tortfeasor is curable. ii) It is almost impossible to figure out the names of the officers involved as the day of the alleged incident happened was the only day plaintiff went to the place and met those officers whose identity was unknown to him. iii) Relying on the decision of the Court of Appeal in Kerajaan Malaysia v. Ambiga Sreenevasan [2016] 8 CLJ 330; [2016] 5 MLJ 72, the plaintiff submits the damage done to the plaintiff should outweigh the failure to name the tortfeasor. 8 ANALYSIS 26) In the case of Kerajaan Malaysia & Ors v. Lay Kee Tee & Ors [2009] 1 CLJ 663, [2009] 1 MLJ 1 ("Lay Kee Tee"), 184 plaintiffs who allegedly suffered from the Japanese Encephalitis (JE)/Nipah virus or were dependants of persons who died from the virus or owners of pig farms affected by the virus, sued the Kerajaan Malaysia (the defendant). The defendant filed an application to strike out the claim pursuant to O. 18 r. 19 (1)(a), (b), (c) and (d) of the Rules of the High Court 1980, which was accordingly allowed by the Senior Assistant Registrar (SAR) of the High Court. The High Court affirmed the decision of the SAR, whereas, on appeal, the decision was overturned by the Court of Appeal. In the Federal Court, the following questions of law were posed and answered by the Federal Court: (1) Whether ss. 4, 5 and 6 of Act 359 require the public officers or employees of the appellants, who are the alleged tortfeasors concerned must be named and be sued in a claim? (answered in positive) (2) Whether by virtue of ss. 4, 5 and 6 of Act 359 the appellants being governments, can personally commit torts, to wit: negligence; breach of fiduciary duties; breach of statutory duties; negligent misstatement; fraud; breach of constitutional rights; misfeasance of public office and trespass to land and property? (answered in negative) (3) Whether the action of the appellants in applying to strike out the writ and statement of claim which is barred by s. 4 of the PCI DA; s. 9 78 of the AA; s. 2(a) of the PAPA; s. 7(5) and (3B) of the CLA is fit and proper? (answered in positive) (4) Whether the appellants can be named and be sued directly and as primary tortfeasors by virtue of ss. 4, 5 and 6 of Act 359. (answered in negative) (5) Whether the issue of limitation must be pleaded in a defence and not raised as a ground for striking out an action pursuant to O. 18 r. 19(1) of the RHC. (answered in negative) 27) Nik Hashim FCJ, speaking for the Federal Court, observed, inter alia: [16] Thus, I entirely agree with the views expressed by Abdul Aziz J (later FJ) in Haji Abdul Rahman, supra. Contrary to the finding of the Court of Appeal, Haji Abdul Rahman was correctly decided and should be upheld. Therefore, on the proper construction of ss. 5 and 6 of Act 359, in any claim in tort against the Government, the officer of the Government who was responsible for the alleged tortious act must be made a party and his liability be established before the Government can be made liable vicariously as principal. It would be insufficient to merely identify the officer without joining the officer as a party because liability by evidence needs to be established. It is only upon a successful claim against the officer personally can a claim be laid against the Government. [17] In the present case, all the eight causes of actions are actions in tort or tort- based premised on the act or omission of an individual. None of the Governments sued is capable of committing the wrong pleaded. Since the Governments' liability in tort can only be vicarious by virtue of ss. 5 and 6 of Act 10 359, and as the officers who were responsible for the alleged wrongdoing were not joined as defendants to the action, it is therefore not possible in law to maintain a successful claim in tort against the Governments as primary tortfeasors. That being so, the appellants' application to strike out the respondents' actions is meritorious. 28) On the submission of the plaintiff that this court should scale the damage suffered by the plaintiff with the failure to name the tortfeasor as being done by the Court of Appeal in Kerajaan Malaysia v. Ambiga Sreenevasan [2016] 8 CLJ 330; [2016] 5 MLJ 72, there are two pertinent observations I wish to make: i) Regarding the issue of the impossibility to name the officer, the Court of Appeal in Ambiga (supra) observed, "Lest we be misunderstood, in arriving at the decision that we did we are not saying that the requirements of ss. 5 and 6 of the Government Proceedings Act can be dispensed with even on the ground that it is impossible to name them as stated by the respondent in this case. There are rules and procedures available to litigants to obtain or elicit the necessary information." ii) As correctly pointed out by the learned Federal Counsel, the Court of Appeal in Ambiga (supra) held at para 9 that the tortfeasor must be identified; nonetheless, at para 18, the Court of Appeal held: [18] Learned SFC in this appeal had neither applied to strike out the counterclaim of the sixth respondent under O. 18 r. 19, nor raised any preliminary objection on this point of non-compliance. Instead, the case was allowed to proceed to a full trial wherein unchallenged 11 evidence clearly established the allegation of injury as well as the damage suffered by the sixth respondent, in the course of his arrest. In the circumstances, in our view it was too late in the day for the non- compliance issue to be raised. The SFC had forgone the opportunity to the raise issue of non-compliance when it proceeded to file the reply to the counterclaim, and to simply deny all the allegations made against the Government. 29) Thus, based on the observation above, it is my affirmative finding on this issue that: i) The true reading of s. 5 & 6 of Act 359, on the authority of Lay Kee Tee (supra), the officer of the Government who is responsible for the alleged tortious act, in a tort claim against the Government, must be made a party and his liability be established before the Government can be made liable vicariously as principal. It is insufficient to merely identify the officer in the pleading without joining the officer as a party. ii) The issue of the impossibility to identify the tortfeasor, in my view, has no merit. To quote the Court of Appeal in Ambiga (supra), "(T)here are rules and procedures available to litigants to obtain or elicit the necessary information." iii) In Lay Kee Tee (supra), the objection against the failure to name the tortfeasor was taken at the preliminary stage by an application to strike out made pursuant to (1)(a), (b), (c) and (d) of the Rules of the High Court 1980 (as in this case), whilst in the case of Ambiga (supra), no similar protest was made by the Government which was held to their detriment. There were no 12 differences in the interpretation of s. 5 and 6 of Act 359 in both of the cases, and the two cases should be viewed on their own peculiar facts. I find no difficulty to state that the facts in the present case before me resembles the facts in Lee Kee Tee (supra), which is suitably to be preferred, than the ones in Ambiga. 30) Considering the findings above, since there is no action against "such officer personally", i.e. by naming the tortfeasor, which is the pre- requisite laid down in s. 6 of Act 359, the outcome should be "no proceedings shall lie against the Government". The net effect inevitable points to that "the action discloses no reasonable cause of action". The action is therefore plain and obviously unsustainable, and the reasonable sequitur will be that it is not possible in law to maintain a successful claim in tort against the Governments, as held in Lee Kee Tee (supra. WHETHER THE FAILURE TO NAME THE TORTFEASOR IS CURABLE? 31) On the submission that the failure to name the tortfeasor is curable, I am mindful of O. 1A of Rules of Court 2012: Regard shall be to justice (O. 1A) In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules. 13 32) The plaintiff relies on the decision of the Federal Court in Malayan Banking Berhad v. Chairman Sarawak Housing Developers' Association [2014] 6 CLJ 409 (Malayan Banking Berhad) to support the contention that the omission of naming the tortfeasor is curable. 33) The requirement to name the tortfeasor is provided for in s. 6 of Act 359, whereas O. 1A of Rules of Court 2012 is applicable to "technical non-compliance with these Rules". I am of the view that it will be too much to stretch the application of O.1A (a provision of subsidiary legislation), which specifically meant to apply to the rules therein, to supersede a requirement laid in an act (in this case, Act 359, a pre- Merdeka law that continues in force by virtue of Article 162 of the Federal Constitution). O. 1A is to apply for non-compliance of any other rules in the Rules of Court 2012 itself. On another note, the reliance by the plaintiff on the case of Malayan Banking Berhad (supra) is misplaced, as Suryadi Halim Omar FCJ in that case explicitly ruled: [30] Under O. 1A of the Rules of Court 2012 the court or judge now shall have regard to the justice of the particular case and not only to the technical non- compliance of the any of the rules. 34) To recapitulate, not naming the tortfeasor in this case is fatal to the plaintiff’s case, and as it is not curable, the domino effect would be the action against the Government of Malaysia, the 4th Defendant, and the rest of the defendants (on the pretext that all of them were correctly cited as parties), must fail. 14 LEGAL CAPACITY OF 1ST, 2ND AND 3RD DEFENDANT 35) The learned Federal Counsel points out Penjara Kajang (1st defendant), Jabatan Penjara Malaysia (2nd defendant) and Kementerian Dalam Negeri Malaysia (3rd defendant) have no legal capacity to sue or be sued; thus, naming the three is misconceived on facts and in law. The following cases and the observation of the judges were brought to the attention of this court: i) Haji Abdul Rahman v Government Of Malaysia & Anor [1966] 2 MLJ 174, [1966] 1 LNS 215 – "the Public Works Department Kelantan is not a legal person". ii) Bencon Development Sdn Bhd v Majlis Perbandaran Pulau Pinang & Ors [1999] 2 MLJ 385, [1999] 8 CLJ 37 - Jabatan Kerja Raya, Pulau Pinang (2nd Defendant) - "There is no legal justification for the second or the third defendants to be made a party". iii) Vestime Corporation Sdn Bhd v. Yble Resources Sdn Bhd & Ors [2006] 2 CLJ 196 – "MINDEF is not itself a legal entity - it is only a Ministry of the Government and therefore there is no basis in law to sue it in its own name as a party to this action". iv) Sri Devi Kanan & Ors v. Malaysian Airline System Bhd & Ors [2017] 7 MLJ 305, [2017] 2 CLJ 728 - "Both the DCA and Jabatan Imigresen are government departments, and have no separate legal personality. For this reason alone the striking out against the fourth and sixth defendants was allowed. The action would be properly maintained against the ninth Defendant, the Government of Malaysia". 15 36) Based on the authorities submitted, I find myself in agreement with the learned Federal Counsel that the 1st, 2nd and 3rd Defendants, have no legal capacity to sue or be sued in their own name. Corollary, any action against the three will disclose no reasonable cause of action, for they have no legal capacity to be sued. THE CLAIM CONTAINS BAD PLEADING, LACK OF MATERIAL FACTS TO SHOW NEGLIGENCE OR ANY OTHER CAUSE OF ACTION UNDER ANY LAW 37) Since the action is not sustainable, as discussed earlier, the issues of bad pleading and lack of material to show negligence, which are secondary to the main issues, in my view, do not need deliberation. CONCLUSION 38) Based on the reasons adumbrated earlier, s. 5 and 6 (1) of the Government Proceedings Act 1956 (Act 359) require the tortfeasor to be named as a party to an action. In present case, the tortfeasor(s) is not named as a party, without which, "no proceedings shall lie against the Government", in the present case, Kerajaan Malaysia, the 4th Defendant. Such failure on the part of the plaintiff to name the tortfeasor, as required by s. 5 and 6 (1) of the Act, is not curable, and I hold that O.1A of Rules of Court 2012 lends no assistance to the plaintiff’s case. Such omission is fatal. 16 39) The 1st, 2nd, and 3rd defendants are not entities capable of suing or being sued. The suit against them, therefore, could not sustain. 40) The cumulative effect is – the plaintiff action discloses no reasonable cause of action. Accordingly, the action is struck out pursuant to O. 18 r. 19 (1) (a) of Rules of Court 2012. Upon hearing parties, I order the cost of RM2500 to be paid to the Defendants. 41) I wish to record appreciation for the thorough submission put by both sides. Dated 1 December 2021 Signed MUHAMMAD NOOR FIRDAUS BIN ROSLI Magistrate Magistrate Court of Kajang Selangor Darul Ehsan FOR THE PLAINTIFF MOHD KHAIRUL AZAM BIN ABDUL AZIZ Messr. Azam Aziz & Co. Kuala Lumpur. FOR THE DEFENDANTS TUAN AFIQ BIN ZAINAL ABIDIN Federal Counsel Attorney General’s Chamber Putrajaya. 17