CASES OF THE WEEK

The plaintiff's claim arose out of the death of her son, Kugan a/l Ananthan (`the deceased') who died on 20 January 2009 at the Taipan Police Station (`the police station'). The deceased was arrested on 14 January 2009 and was detained at the police station from 15 January 2009 until his death for the investigation of the alleged offence under ss. 395 and 397 of the Penal Code. Neither the plaintiff nor the family members of the deceased were informed of the whereabout of the deceased or that he was detained at the police station. They only came to know after his death on 20 January 2009. The body of the deceased bore extensive marks of beating and other severe physical trauma. The plaintiff pleaded that on 21 January 2009, the first defendant, being the Deputy Commissioner of Police and the Chief Police Officer of Selangor at the material time, had issued a false explanation to the media on the cause of the deceased's death. He alleged that "the deceased had asked for a glass of water and then collapsed and died". According to the plaintiff, the first defendant attempted to cover-up the real cause of the deceased's death and/or issued statements calculated to exonerate the police from liability with the full knowledge that the death was unlawfully caused by the members of the police force. The first autopsy conducted at the Serdang Hospital showed that there were "22 categories of external wounds" and the cause of death was stated as "pulmonary edema". The first autopsy report was inconsistent with the external marks of abuse on the body of the deceased. The pathologist who prepared the first autopsy report was subsequently found guilty of professional misconduct by the Malaysian Medical Counsel in the preparation of the first autopsy report and was reprimanded. Dissatisfied with the first autopsy report, the plaintiff then procured a second autopsy which showed that there were "45 categories of external injuries" on the body of the deceased and a wide range of internal injuries. It also revealed that the cause of death of the deceased was "acute renal failure due to rhabdomyolysis due to blunt trauma to skeletal muscles'. The assault and battery was committed by the second defendant on the deceased. Hence, the second defendant was charged under ss. 330 and 331 of the Penal Code for causing grievous hurt to the deceased. The Sessions Court found the second defendant guilty of the charges, convicted and sentenced him to three years' imprisonment. In the present suit, the plaintiff claimed damages against the defendants for negligence, breach of statutory duties for unlawfully having killed the deceased, misfeasance of the public office, assault and battery and false imprisonment. The plaintiff also claimed aggravated, exemplary, vindicatory and special damages. The defendants, however, denied the plaintiff's claim.

Held (allowing the plaintiff's claim with costs):

(1) The reasonable inference to be drawn under the circumstances was that there had been a systematic series of assault and battery which had proceeded and continued over the period of the deceased's detention. The grievous injuries on the deceased could not have been caused by the second defendant only but possibly by other officers and policemen who had access and were assigned to interrogate the deceased. There had been a systematic ill-treatment, torture and grievous injuries inflicted on the deceased which had caused his death on 20 January 2009 for which the defendants must be found liable. (para 24)

(2) The deceased was detained for investigation in respect of theft of a motorcar pursuant to a lawful remand warrant granted by the Magistrate under s. 117 of the Criminal Procedure Code. However, the remand warrant was abused whereby the deceased, who was taken in police custody pursuant to the lawful remand warrant, was beaten and assaulted by police officers who had access to the deceased during the intensive interrogation and the grievous injuries must have been deliberately inflicted on the deceased as shown by the post mortem report. Consequently, the detention must be unlawful and necessarily resulted in false imprisonment as the purpose of the remand warrant had been abused. Accordingly, there was a cause of action for false imprisonment which the defendants were liable to the plaintiff. Section 32(1) of the Police Act 1967 did not assist the defendants as the acts committed was not done in obedience of the remand warrant issued by the Magistrate. (para 27)

(3) On the totality of the evidence, and considering the extent of the cover-up and the fact that there had been no formal disciplinary enquiry or disciplinary action taken against the officers or the policemen who had made and abetted the false entries in the station diary, there were compelling reasons on the balance of probabilities that the false entries in the station diary had been authorised or condoned by the superior officers. The first and third defendants had committed the tort of misfeasance and must be prepared to accept responsibility for the intended tortious act of misfeasance in the public office. (para 40)

(4) The evidence given on the defendants' behalf, indicating the circumstances leading to the death of the deceased was not truthful, an exaggeration and unreliable and was a case of not disclosing the true events of what had occurred during the deceased's detention. (para 50)

(5) In order to hold an employer vicariously liable for the tort committed by the employee, the plaintiff must establish three elements: (i) that the employee (tortfeasor) was under the employment of the defendant; (ii) that the employee had committed a tort; and (iii) the employee had committed the tort during the course of employment. (para 57)

(6) In obtaining the confession from the deceased, the second defendant had used an improper method or means of obtaining the confessions for his superior which was for the first, third and fourth defendant. There was closeness of the connection between the duties which the second defendant was instructed to perform and which resulted in the deceased's death. The fourth and fifth defendant were vicariously liable. The second defendant was not engaged "on frolic of his own" or not acting as an employee or had departed from the course of his duty. By exercise of reasonable care, proper steps taken to supervise, monitor and obtain report or the outcome on a regular basis of the progress of the intensive interrogation of the deceased, would have avoided the fatal harm caused to the deceased for which the defendant must be found liable. Accordingly, there was breach of duty for which the defendants must be found liable. (para 58)

(7) In so far as ss. 5 and 6 of the Government Proceedings Act 1956 (`1956 Act'), the officers responsible for the custodial death of the deceased had been named and one of the officers named had committed the tortious act on 16 January 2009 as witnessed by DW6. Therefore, liability had been established against the second defendant to trigger the provisions of ss. 5 and 6 of the 1956 Act. (para 64)

(8) While exemplary damages is seen to be an exceptional remedy and reserved for the most reprehensible circumstances of civil wrongdoings and limited to the three categories test as in Rookes v. Barnard, later cases have opened up the categories for further evolution, where there are compelling authorities including circumstances on the wrongdoing by police officers. In any event, Lord Devlin's first category as recognised in Rookes v. Barnard fitted the present case as justifying the award for exemplary damages and therefore was within the scope of the first category. (para 85)

(9) As to the award for aggravated damages, it would act as a sufficient deterrence to the defendants, and other officers who seem to have the "cultural habit" of being oppressive and inflicting physical assault on suspects and detainees and it would cause the officer in charge of arrest, interrogation and investigation and the superiors to take adequate steps necessary to ensure that such oppressive and unconstitutional misconduct offences would be unacceptable and objectionable against those who act irresponsibly or contrary to the public interest so as to send a reminder that they must treat suspects and detainees with the sense of decency and professionally. (para 86)

Case(s) referred to:

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Ahmad Jefri Mohd Jahri v. Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 5 CLJ 865 FC (refd)

Ajab Singh v. The State of Uttar Pradesh AIR 2000 SC 3421 (refd)

Alfred Templeton & Ors v. Mount Pleasure Corp Sdn Bhd [1989] 1 CLJ 693; [1989] 1 CLJ (Rep) 219 HC (refd)

Ali Tan & Ors v. Mazlan Bidin & Anor [2012] 4 CLJ 736 CA (refd)

Amiable Nancy 3 Wheat [1818] 546 (refd)

Anderson v. Calvert [1908] 24 TLR 399 (refd)

Asghar v. Ahmed [1984] 17 HLR 25 (refd)

Ashley v. Chief Constable of Sussex Police [2007] 1 WLR 398 (refd)

Ashley v. Chief Constable of Sussex Police (Sherwood Intervening) [2008] 2 WLR 975 (refd)

Attorney General of Trinidad and Tobago v. Ramanoop [2005] 2 WLR 1324 (refd)

Bala Krishnan Appala Naidu v. Ketua Inspektor Prabakaran Shanmugam & Ors (No 2) [2011] 2 CLJ 890 HC (refd)

Barwick v. English Joint Stock Bank [1867] LR 2 Ex 259 (refd)

Bell v. Midland Railway Company [1861] 10 CB (NS), 287 (refd)

Benson v. Frederick [1766] 3 Burr 1845 (refd)

Billion Origin Sdn Bhd v. Newbridge Networks Sdn Bhd & Anor; Yap Burgess Rawson International Sdn Bhd (Third Party) [2006] 4 CLJ 113 HC (refd)

Borhan Hj Daud & Ors v. Abd Malek Hussin [2010] 8 CLJ 656 CA (refd)

Caswell v. Powell Duffryn Associates Collieries Ltd [1940] AC 152 (refd)

Chan Chin Min & Anor v. Lim Yok Eng (Lawful Mother Of Gan Swee Hock, Deceased) [1994] 3 CLJ 687 SC (refd)

Common Cause, A Registered Society v. Union of India & Ors [1999] 4 LRI 12 (refd)

DK Basu v. State of West Bengal AIR [1997] SC 610 (refd)

Drane v. Evangelou [1978] 1 WLR 455 (refd)

Dreyfus v. Peruvian Guano Co [1889] 42 Ch D, 66 (refd)

Dunlea v. Attorney-General [2000] 3 NZLR 136 (refd)

Emblen v. Myers [1860] 6 H & N 54 (refd)

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Huckle v. Money [1763] 2 Wils KB 206 (refd)

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Janata Dal v. HS Chowdhary AIR 1993 SC 892 (refd)

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Kerajaan Malaysia & Ors v. Lay Kee Tee & Ors [2009] 1 CLJ 663 FC (refd)

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Lai Hie Hua v. Lim Teong Yu & Anor [2009] 1 CLJ 98 HC (refd)

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Lamb v. Contugno [1987] 164 CLR 1 (refd)

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Limpus v. London General Omnibus Company [1862] 1 H&C (refd)

Lloyd v. Grace Smith & Co [1912] AC 716 (refd)

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Merest v. Harvey [1814] 5 Taunt 442 (refd)

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Polland v. John Parr & Sons [1926] 1 KB 236 (refd)

P-V Kapoor v. Union of India [1992] Cri LJ 128 (refd)

R (Middleton) v. West Somerset Coroners [2004] 2 AC 182 (refd)

R v. Inner West London Coroner Ex-p Dallaglio [1994] 4 All ER 139 (refd)

Ragbir Singh v. State of Haryana AIR 1980 SC 1087 (refd)

Rajeshkanna Marimuthu v. Tuan Hj Abd Wahab Hj Kassim [2004] 5 CLJ 328 HC (refd)

Riga Sdn Bhd v. Awang Sepian Haji Awang Joini & Ors [2005] 1 LNS 251 HC (refd)

Rookes v. Barnard [1964] AC 1129 (foll)

Roshairee Abd Wahab v. Mejar Mustafa Omar & Ors [1997] 1 CLJ Supp 39 HC (refd)

S Anand v. State of Tamil Nadu rep by its Secretary to Government, Department of Home, Chennai and Others [2012] 5 MLJ 772 (refd)

Saheli, A Women's Resources v. Commissioner of Police, Delhi 1990 AIR 513 (refd)

Sambu Pernas Construction & Anor v. Pitchakkaran Krishnan [1982] CLJ 151; [1982] CLJ (Rep) 299 FC (refd)

Sangaiyya v. State of Tamil Nadu rep by its Chief Secretary, Chennai and Others [2011] 1 MLJ 280 (refd)

Shri DK Basu, Ashok K Johri v. State of West Bengal, State of UP LNIND [1996] SC 2177 (refd)

Siddhu v. State of UP [2002] Cri LJ 4546 (refd)

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Suzana Md Aris v. DSP Ishak Hussain & Ors [2011] 1 CLJ 226 HC (refd)

Suzana Md Aris (claiming as administratrix of the estate and a dependant of Mohd Anuar Sharip, deceased) v. DSP Ishak Hussin & Ors (Civil Appeal No. W-01-402-2009) (Unreported) (refd)

Takong Tabari v. Government of Sarawak & Ors & Other Cases [1996] 2 CLJ 1068 HC (refd)

Templeton & Ors v. Low Yat Holdings Sdn Bhd & Anor [1992] 1 LNS 7 HC (refd)

Thangavelu v. Chia Kok Bin [1981] CLJ 132; [1981] CLJ (Rep) 281 HC (refd)

The Mediana [1900] AC 113 (refd)

Thomson v. Commissioner of Police for the Metropolice [1999] 2 All ER 762 (refd)

Three Rivers District Council and Others v. Bank of England (No. 3) [2001] 2 All ER 513 (refd)

Whitfield v. De Lauret [1920] 29 CLR 71 (refd)

Wilkes v. Wood [1763], Lofft 1, 98 ER 489 (KB) (refd)

XL Petroleum (NSW) Ptd Ltd v. Caltex Oil (Australia) Ptd Ltd [1985] 155 CLR 1 (refd)

Yap Ami & Anor v. Tan Hui Pang [1982] CLJ 410; [1982] CLJ (Rep) 367 FC (refd)

Yew You & Anor v. Mah Poay Koh & Anor [1969] 1 LNS 209 FC (refd)

Legislation referred to:

Civil Law Act 1956, ss. 7(3)(ii), (iv)(d), 8

Criminal Procedure Code, s. 117

Federal Constitution, art. 5

Government Proceedings Act 1956, ss. 5, 6

Lockup Rules 1953, r. 3

Penal Code, ss. 302, 304, 330, 331, 395, 397

Police Act 1967, ss. 20, 32(1), 74, 78

Other source(s) referred to:

Clerk & Lindsell on Torts, 17th edn, London, Sweet & Maxwell, 1995, paras 2-24

McGregor on Damages, 16th edn, Sweet & Maxwell, p 430

Counsel:

For the plaintiff - Sivarasa Rasiah (Latheefa Koya & Bani Prakash with him); M/s Edwin Lim Suren & Soh

For the 1st, 3rd, 4th & 5th defendants - Azizan Md Arshad (Nur Aqilah Ishak with him); AG's Chambers

For the 2nd defendant - Ramesh Sivakumar R Ramaveloo (Mohd Nor Md Deros with him); M/s Ramesh & Loo

Reported by Amutha Suppayah