Acquitted of drug trafficking & fake firearm charges, can Anwar’s ex-aide Yusoff Rawther sue for malicious prosecution?
A former aide of Prime Minister Datuk Seri Anwar Ibrahim, 32-year-old Muhammed Yusoff Rawther, has been in the news lately for various reasons. For one, he’s suing Anwar over allegations of sexual harassment.
The lawsuit created even more headlines recently after Anwar filed an application to refer eight legal questions to the Federal Court, including whether the Prime Minister enjoys immunity from lawsuits. However, the High Court rejected the application, saying that the questions didn’t warrant immediate constitutional referral. Anwar has since filed a notice of appeal against the decision to the Court of Appeal.
Amidst the lawsuit against the Prime Minister, Yusoff Rawther was also embroiled in another high-profile case, this time for a criminal case involving drug trafficking and possession of a fake firearm. Specifically, on 12 September 2024, he was charged in the Magistrates’ Court with trafficking 305 grammes of cannabis in a vehicle in front of the Kuala Lumpur Police Contingent Headquarters surau at 10.15am on September 6, 2024, as well as for possession of two imitation pistols by the roadside near a condominium along Jalan Bukit Kiara at about 9.25am the same day.
On 12 June, the High Court acquitted and discharged the former aide of the two charges, with Judge Datuk Muhammad Jamil Hussin ruling that the prosecution had failed to establish a prima facie case against Yusoff Rawther. Following his acquittal, the 32-year-old stressed that he will continue to fight and that he was wrongly prosecuted. A few days later, on 16 June, the Attorney-General’s Chambers (AGC) appealed the High Court’s decision to acquit and discharge Yusoff Rawther.
Several high-profile individuals then released statements about the acquittal, notably PAS information chief and Member of Parliament for Pasir Mas Ahmad Fadhli Shaari, who urged Yusoff Rawther to sue the authorities. The Pasir Mas MP claimed that the former aide was “wronged through a deliberate trap”.
Well, one potential legal action Yusoff Rawther can take is to sue for malicious prosecution. However, such a suit is very difficult as the plaintiff must prove several things in court.
So, what is malicious prosecution and what must be established for it to be successful? Join us as we explore the matter below.
What is malicious prosecution?
Malicious prosecution is a tort of civil wrong that enables an individual who was subjected to groundless and unjustified court proceedings to seek a civil claim for damages against the prosecutor and the Government of Malaysia (vicarious liability). In Malaysia, there is no general statutory immunity granted to the Public Prosecutor and their deputies, hence, they can be held liable in damages for malicious, deliberate or injurious wrongdoing, should Yusoff Rawther prove that the prosecution was done maliciously.
In Yusoff Rawther’s case, he may sue for malicious prosecution against the Public Prosecutor for the two criminal charges against him, in which he was acquitted. However, to succeed in a malicious prosecution suit, he must prove:
- The prosecuting authority set the criminal law in motion against him
- The criminal proceedings against him terminated in his favour
- The plaintiff must prove damage to either their reputation, property or pecuniary interest
- The prosecuting authority had no reasonable and probable cause for setting the law in motion against him
- The prosecuting authority was actuated by malice
While the first three are quite straightforward, establishing the other two criteria can be very difficult. We’ll elaborate more about the latter below.
The plaintiff must prove that the Public Prosecutor started the prosecution without reasonable cause
So, what constitutes “reasonable cause”? Well, reasonable cause is established when these conditions exist:
- The prosecutor must believe that the accused is probably guilty of the offence
- The belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise
- The information, whether it consists of things observed by the prosecutor or things told to him or her by others, must be believed by him or her to be true
- This belief must be based upon reasonable grounds
- The information possessed by the prosecutor and reasonably believed by them to be true must be such as would justify a person of ordinary prudence and caution in believing that the accused is probably guilty
Accordingly, the plaintiff to prove that the Public Prosecutor did not hold the belief, or did not hold the belief on reasonable grounds. The evidence necessary to challenge the belief is not supplied by proof that the prosecutor was aware of facts which might or might not have satisfied the prosecutor of the plaintiff’s guilt, or that the defendant had information, some of which pointed to guilt and some to innocence.
To escape liability, the Public Prosecutor needs only to be found to have had an honest belief in the fact that there was a sufficient case to launch a prosecution against the plaintiff, not a belief that a conviction would be secured.
The plaintiff must prove that the prosecuting authority was actuated by malice
In a malicious prosecution, malice is a wrongful or improper purpose in bringing the prosecution. Malice can be established if it can be demonstrated that the prosecutor has an improper and collateral purpose in bringing the prosecution.
This condition is a high hurdle and the most difficult part of proving malicious prosecution. If the plaintiff failed to establish any malice in the prosecution, the malicious prosecution suit will inevitably fail.
With that in mind, it remains to be seen whether Yusoff Rawther will choose to pursue malicious prosecution following his acquittal in the criminal case. As we’ve established in this article, should he choose to do so, he will face a monumental task ahead of him to succeed.
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