Ng Wai Pin v Ong Yew Teik and other appeals [2025] MLJU 1357

Federal Court (Putrajaya)

Witness immunity – Malicious prosecution – abuse of process – conspiracy and fraud

1. Ong Yew Teik (“Plaintiff”) filed a civil suit in 2007 against Kamal Y.P. Tan (“D1”) to recover RM8,018,225 pursuant to an acknowledgement of debt for the sale of shares in Euroceramic Technologies Company Ltd (“ECT”) under a Letter of Pre-Agreement dated 26 October 2006. D1 denied the claim and filed a counterclaim.
2. The High Court dismissed the Plaintiff’s claim, but the Court of Appeal allowed the appeal and awarded the judgment sum to the Plaintiff. D1’s counterclaim was dismissed by the Court of Appeal. D1 later paid the judgment sum with interest.
3. Following the outcome, the Plaintiff filed a second suit in 2021 against D1 and four other individuals—Ng Wai Pin (D2), Michael Gunalan Benedict (D3), Wong Yoke Yen (D4), and Wong Fook Lin (D5)—who had acted as witnesses in the first suit.
4. The Plaintiff alleged that D1 and the other Defendants had committed fraud, perjury, conspiracy, and abuse of court process by fabricating evidence and providing false testimony in the first trial.
5. D1–D5 applied to strike out the second suit, arguing that they were protected by witness immunity and that the claims were barred by res judicata and constituted an abuse of process. The High Court allowed the striking out applications.
6. The Court of Appeal reversed the High Court’s decision and allowed the second suit to proceed to trial. Aggrieved, D1–D5 appealed to the Federal Court.

1. Whether a witness who gives oral and/or written evidence in judicial proceedings is absolutely immune from civil liability, even if the evidence is allegedly false, fabricated, or given with malicious intent?
2. Whether the tort of malicious civil prosecution exists and is actionable in Malaysia?
3. Whether fraud based on perjury is a recognized tort in Malaysia?
4. Whether the doctrine of res judicata and finality of litigation barred the second suit?

(1)  Whether a witness who gives oral and/or written evidence in judicial proceedings is absolutely immune from civil liability, even if the evidence is allegedly false, fabricated, or given with malicious intent?

(a) The Federal Court answered this question in the affirmative. The Federal Court emphasized that allowing a new claim against witnesses based on the same facts and evidence already litigated would be contrary to the proper administration of justice. It stated –

“To enable the Plaintiff to now file a new suit based on the same facts and same evidence against the witnesses is not in the best interest of the administration of justice.” (para [46])

(b) The Federal Court found that the Plaintiff’s pleadings in Suit 460 were based on testimony and acts performed by the defendants in the course of the earlier proceedings, which fall within the protection of witness immunity –

“The pleadings disclosed that Suit 460 arose from the testimony and acts of witnesses in the course of judicial proceedings. The pleadings failed to disclose that the claim fell outside the bounds of witness immunity.” (para [47])

(c)  The Federal Court further explained that the rationale for this immunity is rooted in public policy to prevent a flood of repeat litigation based on the same issues, facts, and evidence –

“The public policy purposes underlying the immunity… [are] to avoid multiplicity of actions in which the truth of evidence would be tried over and over again.” (para [50])

(d) The Federal Court also clarified that this absolute immunity is not limited to what is said in court but also extends to preparatory steps and related conduct outside court. In adopting the Australian position, the Federal Court held –

“The immunity extends to preparatory steps and out-of-court conduct that is intimately connected with the giving of evidence in court.” (para [62])

(e)  Accordingly, the Federal Court affirmed that witness immunity in Malaysia is absolute, consistent with common law principles in the UK and Australia, and applies both to courtroom testimony and related preparatory acts. All claims against the witnesses were therefore barred.

(2)  Whether the tort of malicious prosecution is actionable in the context of civil proceedings in Malaysia?

(a) The Federal Court answered this question in the negative. The Federal Court examined foreign authorities cited by the Plaintiff, including Crawford Adjusters and Willers v Joyce, which support extending the tort of malicious prosecution to civil proceedings. The Court, however, found these authorities unpersuasive and held that the tort is not recognised under Malaysian law for ordinary civil disputes.

(b) The Court stressed that the Plaintiff had already succeeded in the earlier action (Suit 1333), obtained judgment, and received compensation thus had no legal basis to reinitiate another action under a different legal suit –

“The second claim by the Plaintiff against D1 and the other defendants is an abuse of process… The Plaintiff had been vindicated or was successful in the first suit and cannot mount a second action against the same party… based on the conduct and/or evidence of the said opposing party.” (para [120])

“It would be a spectre to have a justice system where chain-like litigation is allowed and proceedings will run ad infinitum with no end.” (para [121])

(c)  The Court noted that no express findings of fabrication, perjury, conspiracy or malicious prosecution were made in Suit 1333. In fact, the Plaintiff had been awarded damages with interest, and therefore suffered no compensable harm in law (para [122]).

(d) Accordingly, the Court held that the tort of malicious prosecution is not recognised in ordinary civil litigation in Malaysia and the Plaintiff’s claim was properly struck out.

(3)  Whether fraud based on perjury is a recognised and actionable tort in Malaysia?

(a) The Federal Court answered this question in the negative. The Federal Court held that the  allegations of false or dishonest testimony by the Defendants in the earlier proceedings (Suit 1333) cannot give rise to an independent civil claim. The law in Malaysia recognises absolute witness immunity for statements and conduct arising in the course of judicial proceedings even if the statements were false or malicious –

“Absolute immunity applies to the defendants in our present appeals, which covers statements made in the course of judicial proceedings, even those which are untrue and made maliciously.” (para [110])

“It is a rule of law that no action lies against witnesses in respect of evidence prepared, given, adduced or procured by them in the course of judicial proceedings.” (para [111])

(b) The Court also found that the Plaintiff’s claims, including fraud, conspiracy to injure, and malicious prosecution, were simply a relabelling of grievances already litigated. No fresh wrongdoing was identified outside of what had already been adjudicated in Suit 1333 –

“The allegations against the defendants… relate to what was said and things done in Court in the course of judicial proceedings.” (para [110])

“The Plaintiff’s claim against D1–D5 is clearly unsustainable and should be struck out.” (para [112])

“The Court of Appeal erred in law and fact by allowing the Plaintiff’s appeal and disregarding the application of witness immunity to D1–D5.” (para [112])

“Being a successful litigant in Suit 1333, the Plaintiff cannot be said to have been wronged.” (para [122])

(c)  As such, the Federal Court affirmed that fraud based on perjury is not an actionable tort under Malaysian law, and the Plaintiff’s action was barred by witness immunity and an abuse of process.

(4)  Whether the doctrine of res judicata and finality of litigation barred the second suit?

(a) The Federal Court answered this question in the affirmative. The Federal Court held that Suit 460 was barred by the doctrine of res judicata and constituted an abuse of process, as the Plaintiff sought to relitigate matters that had already been fully addressed and decided in Suit 1333.

“The background facts in Suit 460 relate to the same ECT Sale of Shares, the same acknowledgement of debt and the same alleged debt of RM8,018,225 as claimed in Suit 1333… All these had been litigated and canvassed in Suit 1333.” (para [118])

(b) The Federal Court emphasized that the Plaintiff had already succeeded in the first suit and obtained his remedy, including interest, and therefore had no legal basis to reopen the dispute –

“Suit 460 (the 2nd suit) is the 2nd suit against D1. The Plaintiff has succeeded in Suit 1333 (the 1st suit) and obtained whatever remedy with interests.” (para [119])

(c)  The Federal Court rejected the argument that different causes of action justified the second suit, stating clearly that this was an impermissible attempt to repackage the same dispute –

“The Plaintiff had been vindicated or was successful in the 1st suit and cannot mount a second action against the same party… based on the conduct and/or evidence of the said opposing party.” (para [120])

(d) The Federal Court warned that allowing such repeated litigation would harm the justice system by encouraging never-ending disputes.

(e)  Accordingly, the Federal Court upheld the High Court’s decision to strike out Suit 460 as barred by res judicata and finality of litigation, and ruled that the Plaintiff’s action was a clear abuse of process.

1. The Federal Court allowed the appeals of D1–D5 and reinstated the High Court’s decision to strike out suit. The Court held that the plaintiff’s claims were barred by the doctrine of witness immunity and res judicata. It found that the alleged torts, including fraud, perjury, conspiracy, and malicious prosecution, were either not recognised under Malaysian law or insufficiently pleaded in the statement of claim. Accordingly, the Court ruled that the claims were legally unsustainable and should not proceed to full trial.

1. The tort of malicious prosecution in civil proceedings is not recognized in Malaysia.
2. Perjury and fraudulent testimony cannot ground a civil claim such misconduct must be addressed via criminal law.
3. Once a dispute is litigated and decided, litigants cannot relitigate the same issues on new theories (res judicata).
4. Courts will prevent abuse of process and maintain finality in litigation, even where a party later alleges discovery of wrongdoing.
5. Witness immunity in Malaysia is absolute for factual witnesses, shielding them from civil liability for courtroom testimony and related preparatory acts.