What is malicious prosecution?

A person may be charged in court because a police report has been made. Of course, the report merely triggers off an investigation, and in turn the person may be charged by the relevant party. The outcome could be a conviction or an acquittal.

A reader says he knows of instances where a report was made based on suspicion. Yet the person against whom the report was made was charged even though he was subsequently acquitted. This caused him damage. Can such a person sue the person who made the report in the first place?

There are also situations where a person is charged, the matter does not proceed to full trial. Before commencement of the trial or during the trial, the prosecution may withdraw the charge or drop the case. Thereafter, the person charged would be acquitted, and the same question arises.

The situation would be different if the person charged is convicted, as there is hardly any basis for legitimate grounds to complain against the person who made the report.

There are also cases where after a police report was lodged, the person complained against is called in for questioning or even detained but is later released. The person detained is likely to feel aggrieved and may seek remedy in defamation but there are limitations.

Where a person complained against is charged, damage has been caused. The law, no doubt, provides a remedy based on malicious prosecution. However, there are basic requirements which need to be complied with in order to succeed. These are not easy to meet and the onus of proof is on the claimant.

This is because for action to be brought and pursued successfully, there must be what is regarded as, among others, "abuse of legal process". The intention of the person who made the report should have been to cause wrongful harm to the person reported against, and not merely to report a wrong doing.

Pursuant to a report being made and investigations carried our, the person charged may well be acquitted after he is charged. This may be after trial or as result of the charge being withdrawn and the prosecution being discontinued. But acquittal alone cannot be the basis of a successful claim for malicious prosecution. This is because the elements of such a claim are the institution of prosecution without reasonable or probable cause, malice and an outcome establishing the innocence of the person bringing the claim.

Acquittal of a charge alone does not mean that the institution of criminal proceedings was necessarily without reasonable and probable cause. This is clear from the decision of Brett MR in Abrath vs North Eastern Railway Co.

The judge said: "It is not enough for the plaintiff to show, in order to support the claim which he has made, that he was innocent of the charge upon which he was tried. He has to show that the prosecution was instituted against him by the defendant without any reasonable or probable cause and with a malicious intention in the mind of the defendants, that is, not with the mere intention of carrying the law in effect, but with an intention which was wrongful in point of fact. It has been decided over and over again that all these points must be established by the plaintiffs, and that the burden of each of them lies upon the plaintiff."

What will constitute want of reasonable and probable cause and malice depends on the circumstances of the case. A much quoted statement by Tindal J. in Williams vs Taylor, reads: "What shall amount to such a combination of malice and want to probable cause is so much a matter of fact in each individual case as to render it impossible to lay down any general rule on the subject, but there ought to be enough to satisfy a reasonable man that the accuser had no ground for the proceedings but his desire to injure the accused."

Claims based on malicious prosecution are hard to come across. Such a claim can be seen in Robin vs Sunrise Investments (Pte) Ltd & Anor, a Singapore case. The plaintiff was a permanent resident of Australia and the second defendant a proprietor of a firm of public accountants and also the plaintiff's consultant in tax matters. The plaintiff had gone to visit the second defendant about tax matters.

In the course of conversation, the plaintiff indicated he was considering business opportunities in Australia, especially in jewellery and stones. The second defendant took a packet of emerald stones which belonged to him, and showed it to the plaintiff.

The second defendant's table was cluttered with documents. In between, a telephone call came in which he attended to. Meanwhile, the plaintiff walked out of the room, then came back again, and subsequently left.

Shortly after, the second defendant realized that the envelope with the emeralds was missing and he tried to get in touch with the plaintiff who was not reachable because he was on the move.

By the time the plaintiff got back, the defendant had made a police report. Following this, the plaintiff was apprehended and later charged. However, the prosecution was later discontinued and the plaintiff was acquitted and discharged.

He then instituted an action for malicious prosecution, against the defendant. The question that the court posed to itself was whether the second defendant had honestly believed that the emeralds were removed by the plaintiff. In doing so, the judge was guided by Hawkins J. in Hicks and Faulker.

He said: "I should define reasonable and probable cause to be, an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonable lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that he person charged was probable guilty of the crime imputed."

The court then went on to decide that even if it be otherwise, the report was not lodged with any malice. There was nothing to suggest that the intention of the second defendant was to cause wrongful harm to the plaintiff.

The above content and/or article is not the written work of the author and is merely a reproduction of the original article made for the benefit of the general reader. All credits go to Bhat Singh and the Malaysian Bar Council.