JUDGMENT

Kang Hwee Gee J:

[1] The plaintiff sues in her capacity as the wife and administrator of the estate of her husband, Mohd Anuar bin Sharip who died while being detained under s. 117 of the Criminal Procedure Code at the police lock-up in Rawang.

[2] The 1st defendant DSP Ishak bin Hussain the Ketua Bahagian Siasatan Jenayah, Daerah Gombak, the 2nd defendant ACP Massari bin Hashim, the Ketua Polis Daerah Jenayah, Gombak, Selangor and the 3rd defendant Tan Sri Norian Mai, the Ketua Polis Negara were sued in their personal capacity. No mention was however made in the statement of claim with respect to the role that each defendant played causing the death of the deceased save that they were at the material time holding their respective post in the Polis diRaja Malaysia.

[3] The 4th defendant is the Government of Malaysia, employer of the 1st, 2nd and 3rd defendants.

[4] The said Mohd Anuar bin Sharip was arrested on 10 August 1999 at his house on suspicion of being a drug addict under s. 3 of the Drug Dependants (Treatment And Rehabilitation) Act 1983 . He was brought to the Balai Polis Selayang and on the next day produced before the Rawang Magistrate who remanded him for a period of 14 days (from 11 August 1999 to 15 August 1999) pending the result of his urine test to determine the presence of dangerous drugs.

[5] On 16 August 1999, he vomited blood while under detention in his cell. He informed Sarjan 69632 Mohd Noor bin Ali (DW8) the 'penyelia' lock-up who in turn informed the operation officer, Inspector Owi Cheang Ian through the phone, who directed the deceased to be brought to the clinic. On the same day according to defence witness DW7 D/Kopral 98010 Sulaiman bin Abu Bakar, he brought the deceased to the Klinik Kesihatan Rawang to be attended to but could not remember to whom. The deceased was subsequently brought back to his cell at the police station.

[6] Two days later on 18 August 1999, the deceased complained to Kopral 86369 Mohd Nor bin Hussin (DW6) another 'penyelia' then on duty, of stomach ache. He was then brought to the same Klinik Kesihatan Rawang and was attended to by the Pembantu Perubatan Murugaian a/l Vedankan (DW5). He was examined by Mr. Murugaian, before whom he had complained of having stomach ache and loss of appetite. He was examined and was given some gastric pills. He was asked to rest for about 10 minutes to see the reaction of the medication. He was then brought back to the lock-up when he felt better.

[7] A day later on 19 August 1999 at about 1.30am Mohd Nor bin Hussin (DW6) was informed that the deceased was unconscious in his cell. When he went over to investigate, he found the deceased already dead. A report was subsequently lodged of the death.

[8] A doctor from Hospital Kuala Kubu Bharu, Dr. Syed Mohd Redha bin Syed Nasir (DW1) was summoned to attend to the deceased. He arrived at the cell later in the morning and confirmed the death of the deceased.

[9] In so far as it can be understood from para. 26 of the statement of claim the plaintiff's claim is based on negligence in the execution of their duty in detaining the deceased Mohd Anuar bin Sharip.

[10] Various particulars of negligence were pleaded as follows:

a) Defendan-Defendan dan/atau Agen/Pengkhidmat/Penggaji/Pekerja mereka melampaui tugas-tugas sah disisi undang-undang dan/atau Akta Polis 1967 ;

b) Defendan-Defendan dan/atau Agen/Pengkhidmat/Penggaji mereka melampaui Peraturan-Peraturan Am;

c) Defendan-Defendan dan/atau Agen/Pengkhidmat/Penggaji mereka terkeluar daripada tugas-tugas dan arahan-arahan yang sah dan berpatutan;

d) Defendan-Defendan dan/atau Agen/Pengkhidmat/Penggaji mereka bertindak secara tidak munasabah dan berpatutan;

e) Defendan-Defenda dan/atau Agen/Pengkhidmat/Penggaji mereka gagal mengenalkan diri mereka kepada Plaintif dan atau anggota keluarga Plaintif;

f) Defendan-Defendan dan/atau Agen/Pengkhidmat/Penggaji mereka bertindak tanpa "valid or legal power to act";

g) Defendan-Defendan dan/atau Agen/Pengkhidmat/Penggaj