A Remedy for Transgression - A Global Discussion

Sara Lau considers the tort of misfeasance in public office.
Imagine the following scenarios:
Scenario 1: A was the proprietor of a popular restaurant with a licence to sell liquor for the past 34 years. He was also a staunch believer in the Jehovah’s Witnesses faith, and whilst not being personally involved in the distribution of Jehovah’s Witnesses’ publications to the general public (an act which the majority Roman Catholic population in the area found offensive), A had posted bail for numerous members of the Jehovah’s Witnesses faith who had been arrested for the distribution of such publications, to the chagrin of the local authorities. The next thing A knew, his liquor license was permanently revoked by the Liquor Commission for no real reason. A’s restaurant suffered such an immense loss of profit that he ultimately had to close it down within six months.
Scenario 2: Z was arrested for theft. The local police did not allow him to call his parents or his lawyer or tell anyone that he had been arrested or where he was. Pursuant to a 7-day remand order issued by the local Magistrate’s Court, Z was held in custody at the police lock-up. Six days later, his family was informed of his death while in police custody. His body showed extensive injuries from beating and other severe physical trauma, but the Deputy Commissioner of the Police (“OCPD”) and the Chief Police Officer (“CPO”) said that he had collapsed and died after drinking a cup of water. Z was only 22 years old.
Do A and Z’s estate have any recourse against the public authorities in law?
The examples above are derived from real-life situations. In the event of a transgression by a public authority, plaintiffs have little choice – judicial review offers but a pyrrhic victory; a criminal investigation cannot be pursued personally. In any event, there is no remedy of damages in either recourse in most jurisdictions.
The emergence of the tort of misfeasance in public office offers some semblance of a solution for such situations: it affords an opportunity for plaintiffs to recover damages suffered as a result of a wilful and/or unlawful act on the part of a public authority, which would otherwise not be sufficient to constitute any other type of cause of action. Abuse of public authority can be redressed by a plaintiff through this tort, where otherwise he would be without recourse or remedy.
The tort of misfeasance is not a common cause of action although there have been semblance of its application across Commonwealth countries. The cases below, amongst others, have contributed to the development of different facets of the tort throughout the times:
Roncarelli v Duplessis (1959) 16 DLR (2d) 689: Scenario 1 was based on this Canadian case, where the combination of opinions by judges resulted in a unified stand regarding the tort of misfeasance in public office. It was held, inter alia, that “an administration according to law is to be superseded by any action dictated by and according to the arbitrary likes, dislikes and irrelevant purposes of public officers acting beyond their duty, would signalize the beginning of disintegration of the rule of law ...” This case is the locus classicus of the tort.
Farrington v Thomson and Bridgland [1959] VR 286: This is the first important Australian case where the police had purported to use their statutory powers to close a hotel although there was no power to do so. The Australian court held that if a public officer committed an act which to his knowledge amounts to an abuse of office, an action in the tort of misfeasance in public office will lie against him.
Dunlop v Woollahra Municipal Council [1982] AC 158: This Privy Council appeal from New South Wales added that in the absence of malice, passing without knowledge of its invalidity, a resolution which is devoid of any legal effect is not conduct that is capable of amounting to ‘misfeasance’. This case illustrates the conflict in relation to the mental element requirement of the tort. 
Garrett v Attorney General [1997] 2 NZLR 332: In an action against the police force for purportedly failing to deal with her allegations that she had been raped by a police officer in a police station, the plaintiff claimed damages for loss of reputation and loss of her job as a result of being supposed to have made a false allegation of rape. On appeal, it was held that for the mental element of the tort to be established, there needed to be an actual appreciation of the consequences to the plaintiff, of the disregard of duty, or that at least, the official was recklessly indifferent to the consequences and could thus be taken to have been content for them to happen as they would.
Today, the English case of Three Rivers District Council and Others v Governor and Company of the Bank of England [2003] 2 AC 1 (“Three Rivers Case”) largely remains the authoritative law on the tort of misfeasance in public office.
The Three Rivers Case developed a three part test for the tort of misfeasance in public office. In other jurisdictions and other interpretations, the elements of this tort have been fashioned differently with different emphases but the core ingredients remain substantially the same. 
According to the Three Rivers Case, the tort of misfeasance in public office involves three main questions:
(1)   That the act complained of had been committed by a public officer purportedly pursuant to his exercise of public power;
(2)   That the act committed must be done with malice or without honest belief that the act is lawful; and
(3)   That there is proximity between the plaintiff and the defendant so as to confer on the plaintiff a legal standing to sue.
Finally, as the tort of misfeasance in public law is not actionable per se, it is necessary to prove damages suffered as a result of the misfeasance.
These elements shall be discussed in turn.
Public Office
The essence of this tort is to bring, and to hold to accountability, members of public office who have used their position of influence and power to commit an unlawful act. Without such office, no action in this tort will lie.
Public office in this tort includes public bodies and public officers, local authorities, ministries, government departments, central banks and police officers. There is global consensus that the concept of public office is a broad one and there is little disagreement that it covers both natural persons and incorporated bodies.
What remains debatable in this element of the tort is the nature of the exercise of power – do private acts, such as the exercise of contractual rights by public officers or public bodies, disqualify the application of this tort?
The position in England according to Jones v Swansea City Council [1990] 3 All ER 737 suggests that the exercise of conduct in private law does not disqualify a cause of action in this tort. In that case, the Swansea City Council reversed its previous decision allowing a site to be used as a club. The plaintiff alleged that the Council had committed misfeasance in public office in reversing its decision, but the Council argued that the plaintiff could not succeed against it on such a cause of action as the Council was acting as the plaintiff’s landlord under private law, for which no cause of action based on malice would lie.
In the Court of Appeal, Slade LJ disagreed and stated that “it was not the juridical nature of the relevant power but the nature of the council’s office which is the important consideration”. Interestingly, this case suggests that the exercise of public power may include a public body’s exercise of private law rights. Under such an interpretation, the tort covers a wide range of acts deemed committed in public office. 
However, in the Canadian case of Odhavji Estate v Metropolitan Toronto Police Force (2000) 194 DLR (4th) 577, the defendant police officers failed to cooperate with an inquiry into a fatal shooting by them. The Court held that failure to cooperate did not give rise to misfeasance in public office as the police officers in failing to cooperate were not exercising any power in relation to the public.
The Mental Element
The mental element of this tort is perhaps the most crucial ingredient. Early development of this tort centred on the requirement of malice – the public officer must have committed an act or omitted to act in his public capacity with bad faith intention or with ill-will. A narrow definition such as this would have greatly narrowed the scope of the tort to only include cases where express malice could be proven.
In the development of the requirements of this tort, Lord Cottenham in the old English case of Ferguson v Kinnoull (1842) 8 ER 412, sought to rectify this. He found that malice in the context of this tort is not confined to personal spite but extends to a conscious violation of the law to the prejudice of another.
It was not until the Three Rivers Case that a distinction was drawn between malice and illegality of the act or omission. The House of Lords held that under the “targeted malice” limb, it must be shown that the public officer acted with an intention to harm the claimant or the class in which the claimant is a member. Anything short of this express intention does not suffice to qualify as malice.
Under the “illegality limb”, it is now established that the public officer must be proven to have acted with knowledge that the act is unlawful or that there had been recklessness indifference to the same and there must have been foresight that such an act would cause harm.
Either of these elements would suffice to establish the mental element required of this tort.
In the Hong Kong case of Tang Nin Mun v Secretary of Justice [2000] HKCA 298, Ribeiro JA succinctly summarised the mental element as follows:
“… the plaintiff’s claim … is only viable if he is in a position to allege and ultimately to establish that in abusing his … powers … the [defendant] either intended to injure the plaintiff or knew that such a conduct would in the ordinary course directly cause injury to the plaintiff of the type actually suffered … or that he was recklessly indifferent as to whether such injury would ensue.”
The advantage of a cause of action under this tort is that a claimant is able to seek a remedy in monetary damages for the actual loss sustained.
However, as the tort of misfeasance in public office is not actionable per se, an odd situation may arise wherein a public officer may not be liable for any damages and will go unpunished in law, even if it is proven that he has committed misfeasance in public office if the act did not cause damage.
The issue of exemplary damages is also a live one under this tort. The English courts have shown some reluctance to impose exemplary damages, but the Australian courts advocate this in cases where there is conduct which calls for “condign punishment”. In such circumstances, the Australian Courts have held that the award must be “of a size sufficient to serve as a deterrent to others – particularly to those who abuse a position of public office to the detriment of others.” (see Sanders v Snell (1997) 143 ALR 426).  
Scenario 2 is based on the Malaysian case, Datuk Seri Khalid bin Abu Bakar v N Indra a/p P Nallathamby (the administrator of the estate and dependent of Kugan a/l Ananthan, deceased) and another appeal [2015] 1 MLJ 353, also known as the “Kugan Case”. Kugan was the deceased, and a claim of misfeasance in public office was mounted by Kugan’s mother as administratrix of his estate, against five defendants, namely the CPO, a constable in the Taipan police station, the OCPD, an officer on duty at the Taipan police station and the Government of Malaysia. In that case, the High Court found the CPO and the OCPD liable in misfeasance for their cover-up of the circumstances leading up to Kugan’s death.
On appeal, the Court of Appeal, in applying the principles of the Three Rivers Case affirmed the decision of the High Court on this point. The Court Appeal in its deliberation stated:
“We say that this wilful disregard to ensure that the truth behind the death of the deceased is made known together with other undisputed evidence set-out above are enough to satisfy a case of public misfeasance. It is also our view that there has been a reckless indifference to the illegal act of the second defendant … Lord Steyn in the Three Rivers Case opined … that to impose liability where the defendant had acted with reckless indifference to the illegality of his act and the probability of its causing injury was ‘an organic development which fits into structure of our law governing intentional torts’. We adopt His Lordship’s view without any reservation.”
The Court of Appeal’s whole-hearted adoption of the principles enunciated in the Three Rivers Case is not uncommon. The cases of misfeasance in public office in Malaysia have consistently applied the spirit of the principles enunciated in the Three Rivers Case.
In Kemajuan Kuari (M) Sdn Bhd v PTB Suramix Sdn Bhd and 3 Others [2015] MLJU 1018, where the defendants included the Terengganu State Government and other entities directly or indirectly belonging to the Terengganu State Government, an action in misfeasance in public office was brought by Kemajuan Kuari in the High Court for the revocation of its permit to extract and remove rocks from a piece of quarry land in Terengganu. Kemajuan Kuari’s permit did not have an expiry date nor was there a fixed duration of the approval.
Kemajuan Kuari carried out its works and stockpiled rocks at various sites for use later. A few years later, Kemajuan Kuari was informed that it was no longer approved to carry out such works. The approval was instead granted to PTB Suramix. After the revocation of the approval, Kemajuan Kuari was prevented from extracting rocks from the quarry land and the Defendants converted to their own use the rocks and rock by-products stockpiled at the various locations. Kemajuan Kuari was also prevented from using the jetty to transport the stockpiles out.
The High Court found that the revocation of Kemajuan Kuari’s approval amounted to misfeasance in public office, and this was upheld by the Court of Appeal. The Court of Appeal stated that the revocation of the permit was on a false pretext and that the Terengganu State Government had instructed PTB Suramix to remove and sell rocks from Kemajuan Kuari’s stock piles without regard for the latter’s rights. The Court of Appeal reiterated the principles of misfeasance in public office as stated in Bourgoin SA and Ministry of Agriculture, Fisheries and Food [1986] 1 QB 716, which largely resemble those of, and inspired discussion, in the Three Rivers Case.
Despite the adoption of English principles, it is worth noting that there are differences in the application of this law in Malaysia.
First, Order 53 Rule 5 of the Rules of Court 2012 provides a limited avenue for an aggrieved applicant in a judicial review to claim damages. However, this is a discretionary remedy and is not awarded as of right. This was affirmed by the Court of Appeal in a recent case between The Edge Communications Sdn Bhd and the Home Ministry on the suspension of the former’s publishing permits.
Second, any action for vicarious liability against the State or Federal Government in an action of misfeasance in public office against a public authority may be limited by Sections 5 and 6 of the Government Proceedings Act 1956.  In LCBN Development Sdn Bhd & Anor v Pengarah Tanah dan Galian Selangor & Ors [2014] 3 MLJ 445, the Court of Appeal held that if the act of the public officer cannot give rise to a private action against the public officer concerned, then the Government will not be liable.
Misfeasance in public office is a difficult tort to assert as it lies in a precarious position between justice and fault. On the one hand, it seeks to remedy an inequity leading to actual loss. On the other, it is blind to actual unlawful conduct if no damage is caused and in fact imposes an unduly heavy burden of proving culpability.
It is submitted that the ambit of this tort must be expanded and interpreted to address due punishment to any abuse of public office, even if it is through a civil function of the law.