The police have a duty of care towards detainees, which includes ensuring their health needs are adequately met during custody.

[126] The position is no different in Malaysia. In Datuk Seri Khalid Abu Bakar & Ors v. N Indra P Nallathamby & Another Appeal, [2015] 1 MLJ 353 , the court of Appeal made the following pronouncements on the duty of care of the police authorities in a case of death of a detainee whilst in police custody. It was a case where the conduct of the police was egregious, to say the least. The deceased in that case died as a result of being beaten by police officers. In that case, the court of Appeal approved the award of exemplary damages, although this appears contrary to s 8(2) of the Civil Law Act 1956 . I will pick up this point for discussion in the later part of the judgment. For now, on the issue of duty of care, the following paragraphs of the judgment deserve reproduction.

"[47]... The police force is a public professional body and as in other professional bodies there exist duties of care in their discharge of their powers. In the context of the police force, it is their standard operating procedure (SOP) and that should be subject to scrutiny by the court of law. As to what that duty of care and standard of care are depend on the circumstances of each individual case and it is for the courts to determine what that duty and standard of care are as was done in the Federal court case of Foo Fio Na v. Dr Soo Fook Mun & Anor, [2007] 1 MLJ 593.

[48] In Foo Fio Na case, the Federal court quoted with approval Callaghan J in Hajgato v. London Health Association [1982] 36 OR (2d) 669, where in an action in negligence in respect of personal injuries sustained during postoperative case the learned judge stated as follows:-

In my view however, a court has a right to strike down substandard approved practices when common sense dictates such a result. No profession is above the law and the courts on behalf of the public have a critical role to play in monitoring and precipitating changes where required in professional standards."

[Emphasis Added]

[127] Having regard to the principles of law as enunciated in the cases referred to above, I turn now to the case at hand. The first issue is a legal one. The issue is whether the police have a duty of care towards detainees who are held in police lock-up. In my view, there is no question that there is a duty of care which is owed by the police to those who are held in detention. No doubt, the detention itself may be lawful in the sense that there may have been a valid basis for their arrest. The issue is not about the arrest or the lawfulness of the detention or remand order but whether the detaining authorities owe a duty of care to the detainees whilst they are in detention in the police lock-up.

[128] In my view, both under common law and under statute, there is a duty of care to ensure that the detainee is not harmed by the police or by other detainees or that they do not harm themselves. Insofar as the common law is concerned, the principle is well established by the cases referred to above and it is trite that detaining authorities do owe a duty of care to ensure that the detainees/prisoners are healthy and are given proper medical care during the period of incarceration. There is also a duty to ensure that the detainees are not harmed by the detaining authorities or by other inmates or even selfharm or suicide. In this regard, it is relevant to refer to the judgment of Lord Bingham of Cornhill in Amin, R (on the application of) v. Secretary Of State For The Home Department [2003] UKHL 51 [2003] 4 All ER 1264, [2004] UKHRR 75, [2004] 1 AC 653, [2004] AC 653, [1998] 1 WLR 972, [2003] UKHL 51, 15 BHRC 362, [2004] 76 BMLR 143, [2003] 3 WLR 1169, [2004] HRLR 3 which lucidly illustrates the general duty of care that is imposed on the police or prison authorities. In this context, it is necessary to acknowledge that the late Lord Bingham has been one of the greatest proponents of the rule of law in recent times. He drew inspiration