Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2020 MarsdenLR 2642

HIGH COURT MALAYA KUALA LUMPUR
YAW FUN FUN – Appellant
Versus
KETUA POLIS DAERAH GOMBAK SELANGOR & ORS – Respondent
[Civil Appeal No: WA-11BNCVC-13-03-2017]

Petitioner Advocates:Lim Kien Huat,Tang Keen Cheong ,Respondent Advocate: Azza Azmi,Rebecca Helden Leong Poh Leng,Ahmad Faiz Razali

The police and transport authorities do not owe a statutory duty of care in tort to prevent the unlawful sale of vehicles unless expressly provided under statute. Mere breach of SOP does not amount to negligence.

Headnote:(A) Police Act 1967 - Standard Operating Procedure - Tort of Negligence - Appellant's claim for negligence against various Defendants dismissed due to lack of duty of care established. The Plaintiff failed to demonstrate breach by D1, D2, D5, and D6. The decision was upheld based on a finding that D5's negligence was merely a breach of SOP, not statutory duty. (Paras 32, 34, 62)

(B) Duty of Care - Issue arises whether the Defendants had a duty of care to prevent the sale of a vehicle reported stolen. Court maintained that merely being in a public role does not impose such a duty in tort per the case law considered. (Paras 61, 62)

Facts of the case: The Plaintiff purchased a vehicle that was later detained as stolen. Despite various actions taken by the police and transport department, the Plaintiff claimed it resulted in financial losses and reputational damage. The Plaintiff alleged negligence in failing to blacklist the vehicle and causing unlawful sale claims. (Paras 9-15)

Findings of Court: The learned Magistrate concluded no negligence found against the Defendants though D5 was found negligent under SOP regulations. Legal duty was not established under common law or statutory law. (Paras 62)

Issues: Main issues included determining if the Defendants owed a duty and whether their actions constituted negligence leading to the Plaintiff’s losses. (Paras 26, 32)

Ratio Decidendi: The Court stated that without statutory obligation to blacklist vehicles, the Defendants factual conduct did not establish negligence under tort during their regular duties. Legal opinions referenced highlight that the actions of police cannot be held under tort unless specific criteria are met. (Paras 60-62)

Result: Appeal dismissed, and costs awarded against the Plaintiff. (Paras 64)

Judgement Key Points

Key Points: - (!) The plaintiff’s appeal was dismissed; no negligence found against D1, D2, D5, D6. (!) - (!) - (!) D5’s negligence was found to be a SOP breach, not a statutory duty; no statutory obligation to blacklist under PA 1967. (!) - (!) - (!) - (!) Magistrate’s conflation of common law negligence vs statutory duty; appellate court notes lack of clear pleadings on duty of care. (!) - (!) - (!) - (!) Court cites Hill v. Chief Constable of West Yorkshire to discuss proximity and public policy in imposing duty on police; proximity not proven; public policy weighs against extending duty. (!) - (!) - (!) - (!) Dorset Yacht/ Hill principles applied to deny duty; action not appropriate vehicle to challenge police efficiency; public policy against liability in this context. (!) - (!) - (!) Court orders costs against plaintiff; no liability for the defendants. (!)

Question 1?

What is the duty of care owed by police and transport authorities in relation to preventing the sale of a stolen vehicle in the absence of explicit statutory duty?

Question 2?

What is the appropriate standard for evaluating whether the police officers’ failure to blacklist a stolen vehicle constitutes negligence (statutory duty vs. common law tort of negligence) in this context?

Question 3?

What considerations determine whether a public body (police/RTD) can be held liable for damages in negligence for actions involving crime prevention, given Hill v. West Yorkshire and related authorities?

JUDGMENT

Aliza Sulaiman J:

Introduction

[1] On 21 March 2019, this Court heard the Appellant's appeal against the entire decision of the learned Magistrate which was pronounced on 24 February 2017 in dismissing the Appellant's claim for negligence against the Respondents with costs of RM3,000.00. The Appellant's Notice of Appeal was dated and filed on 3 March 2017.

[2] Subsequent to the filing of Further Submissions by the Appellant's counsel and Federal Counsel ('FC'), the decision of the Court was pronounced on 19 April 2019 whereby the Appellant's appeal was dismissed with costs of RM6,000.00 to be paid by the Appellant to the Respondents, subject to allocatur.

[3] The Appellant then filed a Notice of Motion at the Court of Appeal on 9 May 2019 seeking leave to appeal against the decision of this Court. On 25 June 2020, the Court of Appeal allowed the Appellant's leave application and the Notice of Appeal was duly filed on 26 June 2020.

[4] In these grounds of judgment, the parties shall be referred to as they were in the Court below, namely the Appellant as "the Plaintiff" and the 1st, 2nd, 3rd and 4th Respondents as the "1st Defendant" ('D1'), "2nd Defendant" ('D2'), "5th Defendant" ('D5') and "6th Defendant" ('D6'), respectively.

Background Facts

[5] The Plaintiff is the sole proprietor of Pemiagaan Smart Power Land which is in the business of buying and selling used cars.

[6] D1, D2 and D6 need no introduction except to state that the Plaintiff alleged that D6 is vicariously liable for all the actions of D1, D2 and D5.

[7] At the material time, D5 was the Investigating Officer ('IO') assigned to investigate the police report lodged by Yau Kok Keong on 3 February 2007 that his car, model Toyota Wish UA-ZNE10(A) with registration number WMN 3818, chassis number ZNE10-0095771 and engine number 1ZZ1597592 ('Car WMN 3818'), was missing ('Police Report').

[8] The 4th Defendant ('D4') was the registered owner of a car, model Toyota Wish with registration number WSP 6383 ('Said Vehicle'), that bears the same chassis and engine numbers as Car WMN 3818.

[9] In July 2010, the Plaintiff bought the Said Vehicle from D4 through the 3rd Defendant ('D3') at a price of RM79,000.00. According to para 8 of the Amended Statement of Claim ('SoC') dated 28 November 2013, the Plaintiff then spent RM5,360.00 to repair and refurbish ("membaikpulih") the Said Vehicle before selling the same to one Adnan Bin Ali ('Adnan') in August 2010 at the price of RM85,600.00. Adnan obtained hire purchase financing from Public Bank Berhad.

[10] Before effecting the transfer of ownership from D4 to Adnan, the Plaintiff had brought the Said Vehicle to Puspakom Sdn Bhd ('Puspakom') for an inspection. Puspakom had given their approval and the "Sijil Pemeriksaan Tukar Milik" was duly issued.

[11] Subsequently, the Plaintiff handed all the necessary forms to D2 for purposes of transferring and registering Adnan's name as the owner of the Said Vehicle. This was successfully done on 17 August 2010 by "CTZALIHA" an employee and/or servant of D2 ('said Transfer').

[12] However, just two days after the said Transfer, the Said Vehicle was detained by D1 for investigation under s 379A of the Penal Code [Act 574] for theft of a motor vehicle arising from the Police Report in view of the fact that the Said Vehicle bears the same chassis and engine numbers as Car WMN 3818.

[13] In para 13.4 of the SoC, the Plaintiff pleaded that, although D2 and D5 had knowledge of the Police Report, they failed to take any action to blacklist Car WMN 3818 and/or the Said Vehicle. As a result of the detention and seizure of the Said Vehicle by D1 and the negligence of D1, D2 and D5, the Plaintiff claimed that he had suffered losses and expenses. The Plaintiff additionally alleged that his good name among the public, car sellers and financial institutions was also tarnished.

[14] D3 and D4 are said to have made representations to the Plaintiff that D3 was the owner of the Said Vehicle and due to D1's detenti

Click Here to Read the rest of this document