approach to what should in my opinion be a broad, meritsbased judgment which takes account
of the public and private interests involved and also takes account of all the facts of the case,
focusing attention on the crucial question whether, in all the circumstances, a party is misusing
Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] MYFC 2
or abusing the process of the court by seeking to raise before it the issue which could have been
raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot
formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or
not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in
earlier proceedings an issue which could and should have been raised then, I would not regard it
as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the
party against whom it is sought to claim. While the result may often be the same, it is in my view
preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask
whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified
by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule
has in my view a valuable part to play in protecting the interests of justice...”
[36] Reverting to the present appeal, upon hearing the argument of the learned Senior Federal
Counsel (SFC) who challenged Encl. 1 as an abuse of the process and on the ground of res judicata,
and upon reply by the respondent’s counsel, the High Court dismissed Encl. 1 with costs, having
found it to be an abuse of the process of the Court.
[37] In its judgment reversing the aforesaid decision of the High Court, the Court of Appeal
approached the appeal under the following issues:
(a) Whether the appellant (the respondent before us) was precluded by the doctrine of res judicata
from the declaration sought in the Originating Summons,
(b) What was the position in law in respect of the test of ‘proportionality’ with reference to the
legislative restrictions which might be imposed to meet the objectives of Article 10(2) of the
Federal Constitution, and
(c) What was the legal effect of section 3(3) of Act 15 as presently worded and found in the
statute book.
The Court of Appeal next set out the provisions under Article 8 and 10 of the Federal Constitution.
Then under the heading ‘Res Judicata Issue’, the Court stated that the doctrine of res judicata is not
an inflexible rule; that the Court could still decline to apply it where to do so would lead to unjust
result, and that the doctrine is ... “merely equity in action in procedural arena” [Chee Pok Choy &
Ors v Scotch Leasing Sdn Bhd [2001] 2 CLJ 321, quoting Gopal Sri Ram, JCA (as His Lordship
then was), CarlZeissStiftung v Rayner and Keeler Ltd & Ors (No. 2) [1966] 2 All ER 532,
Arnold v National Westminster Bank Plc [1991] 2 AC 93]. The Court then said:
“From a perusal of the various authorities referred to us it was clear that section 3(3) of Act 15
had not hitherto before specifically been the subject of a constitutional challenge in any of those
previous proceedings, that is, on similar lines as mounted in the saman pemula here by the
appellant. This was conceded in as much by learned SFC. The criminal application questioned
the validity of section 4(1)(c) of Act 15 on the grounds that it unfairly restricted a person’s right
to freedom of speech and expression. There was in the judgment of the Court of Appeal in the
criminal application (Mat Shuhaimi bin Shafiei v Public Prosecutor [2014] 2 MLJ 145; [2014] 5
CLJ 22), a comment with regard to the relevance of the ‘proportionality test’ but this was merely
in general terms and with reference to the purpose of Act 15 and the permissible laws for the
maintenance of public order as allowed under Article 10(2) of the Federal Constitution.”
MALAYSIAN JUDGMENTS
Page: 17 of 39
[38] Reference was then made to the Federal Court’s decision in PP v Azmi Sharom [2015] 8 CLJ
921, which according to the Court of Appeal, only confined its consideration on whether section 4(1)
of Act 15 fell within the scope of Article 10(2)(a) of the Federal Constitution. Section 3(3) of Act
15 did not feature at all in the Federal Court’s finding. With regard to PP v Ooi Kee Said & Ors
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