Detention under the Armed Forces Act must comply with procedural requirements; unlawful detention leads to liability for damages.

JUDGMENT

Wong Kian Kheong JCA:

A. Introduction

[1] The above two appeals (2 Appeals) are heard together as these 2 Appeals emanated from one trial in the High Court .

[2] These 2 Appeals discusses the following main question, namely, where-

(1) a "serviceman" [defined in s 2 of the Armed Forces Act 1972 ( AFA )] of the Armed Forces (Accused) was brought before the "commanding officef (as understood in s 2 ) (Commanding Officer) of the Accused on the ground that the Accused had committed an offence under the (Alleged Offence);

(2) the Commanding Officer decided to arrest and detain the Accused by way of "close arrest (tahanan ketat atau tahanan rapi) pending the completion of the Commanding Officer's investigation regarding the Alleged Offence (Investigation); and

(3) after the completion of the Investigation, the Accused was charged by the Commanding Officer with regard to the Alleged Offence (Charge)-

(a) the Commanding Officer "determined" that the Accused was guilty of the Charge but before recording the finding that the Accused was guilty of the Charge, the Commanding Officer gave the Accused an opportunity to elect to be tried by a " Court -martiat (within the meaning in s 2 read with s 103 AFA );

(b) the Accused elected to be tried by a Court -martial under s 97(9) AFA ; and

(c) the Commanding Officer remanded the Accused by way of close arrest pending the disposal of the Accused's trial in the Court -martial

- was the Accused's detention lawful? If the answer to this question is in the negative, the military authorities and the Federal Government may be liable in compensatory, aggravated and exemplary damages for the unlawful detention of the Accused.

B. Background

[3] We shall refer to the parties as they were in the High Court .

[4] At the material time-

(1) the plaintiff (Plaintiff) was a serviceman in the Fifth Battalion of the "Royal Ranger Regiment (Rejimen Renjer DiRaja), Desa Pahlawan Army Camp, Kota Bahru, Kelantan Darul Naim (Army Camp); and

(2) the first defendant (1st Defendant) was the Plaintiffs Commanding Officer at the Army Camp.

[5] On 29 March 2014, at about 12.30 am, a surprise drug prevention operation was conducted in the Army Camp where 26 Rangers, including the Plaintiff, were asked to provide their urine samples (Urine Samples).

[6] The Urine Samples were sent to the Chemistry Department of Malaysia (CDM) for analysis.

[7] CDM's analysis of the 26 Urine Samples revealed that nine of the Urine Samples, including the Plaintiffs urine sample, contained "methamphetamine", a substance prohibited by a "standing order" (SO) made under s 51 AFA . Consequently, on 7 August 2014-

(1) the Plaintiff was brought before the 1st Defendant (as the Plaintiffs Commanding Officer) for the purpose of the 1st Defendant's Investigation of the charge that the Plaintiff had contravened the SO; and

(2) the 1st Defendant decided to place the Plaintiff under close arrest pending the completion of the Investigation [Arrest (Investigation)].

[8] The Plaintiff was detained for more than eight days as the Investigation could not be completed. Hence, the 1st Defendant made a "special report' under s 94(2) AFA (Laporan Kelengahan Lapan Han) {1st Defendant's Report [s 94(2) ]}

[9] After the completion of the Investigation, on 26 August 2014-

(1) the Plaintiff was brought before the 1st Defendant for the purpose of the charge under s 51 AFA [Charge (s 51 )];

(2) the 1st Defendant informed the Plaintiff that as the Plaintiff's Commanding Officer, the 1st Defendant determined that the Plaintiff was guilty of the Charge (s 51 AFA ) but before recording the finding that the Plaintiff was guilty of the Charge (s 51 ), the 1st Defendant gave the Plaintiff an opportunity to elect to be tried by a Court -martial;

(3) the Plaintiff elected to be tried by a Court -martial under s 97(9) AFA [Trial ( Court -Martial)]; and

(4) the 1st Defendant remanded the Plaintiff by way of close arrest pending the disposal of the Trial ( Court