'Court has discretion to waive security costs in foreign rape survivor suit'

 

A High Court has the discretion to waive security for cost in a civil action involving a foreigner rape survivor against her alleged attacker, according to a senior human rights lawyer.

Honey Tan Lay Ean said this today in relation to the recent dismissal of a Mongolian rape survivor’s civil suit by the High Court in Kuala Lumpur against her purported attacker, who is a police officer.

The court made the ruling as the plaintiff was unable to pay the RM70,000 in security for cost sought by the defendant on grounds that she was a foreign national.

Tan said the High Court is granted this discretion to waive such security for cost if the court finds that circumstances of the case make it just to do so.

The lawyer said this discretion is enshrined under Order 23 Rule 1 of the Rules of Court 2012.

“Yes, it does (court having the discretion to waive payment of security for costs). As can be seen in the provisions above (Order 23 Rule 1), the power to order security for costs is discretionary.

“One of the factors to consider is whether the plaintiff is 'ordinarily resident' outside Malaysia. In this case, the plaintiff is a Mongolian (national).

“The High Court '... if, having regard to all the circumstances of the case, the court thinks it just to do, it may order' security for costs.

“A key concern is over the quantum. Is RM70,000 a fair amount, taking all factors into consideration?

“These factors could include the complexity of facts which may require a large number of witnesses, and whether difficult areas of law are being argued,” Tan told Malaysiakini.

The lawyer pointed out that in one of the civil action matters she is handling, the High Court ordered that security for costs only be set at RM40,000, due to the uncommon facts and novel points of law raised in the matter.

In regard to the Mongolian woman’s avenues in relation to the recent High Court ruling, Tan said the plaintiff has the option of appealing the court’s decision in the ordering of payment of the security for costs, as well as over the quantum of RM70,000.

On Jan 27, Petaling Jaya MP Maria Chin Abdullah and Kampung Tunku assemblyperson Lim Yi Wei urged the High Court in Kuala Lumpur to reconsider its recent decision to strike out a case brought by a survivor against her alleged rapist after she could not make an RM70,000 “security” payment.

The two lawmakers said the court needed to reconsider the decision due to rape survivors' lack of means to pay high security for costs, among others.

In the previous week, judge Azimah Omar annulled the survivor's sexual assault and false imprisonment suit against the police officer. 

She further ordered the plaintiff to pay RM6,500 in costs to the defendant.

This was after the survivor failed to deposit the RM70,000, which the police officer had applied as security for costs due to her status as a foreigner.

The law enforcer made headlines last April when he was charged with trafficking and raping two Mongolian women - one of them being the survivor. 

The 30-year-old police inspector had stopped a vehicle transporting the women while on duty at a police roadblock at the NPE Toll Plaza in Petaling Jaya, Selangor.

Instead of taking them to the police station, he had allegedly taken them to a hotel. He is accused of abusing his position as a police officer and employing criminal force to commit the crimes.

The lawyer representing the two Mongolian nationals - Mathew Thomas Philip - has started an online crowdfunding campaign to raise RM46,500 to allow the survivor's case to be refiled in the Sessions Court. 

As of 2.45pm this afternoon, the campaign had collected RM39,669.

The survivor previously said she intends to pursue the case despite losing her reputation back home and struggling to obtain support from her family and friends.

Malaysiakini is attempting to reach out to Mathew over the matter. - Mkini