In wrongful arrest and detention claims, individual arresting officers must be named as defendants, as their actions determine the lawfulness of the arrest.

(Enclosure 11)

[1] This is an application by the defendants in Enclosure 11 to strike out the plaintiffs' Writ and Statement of Claim dated 8 December 2010 under Order 18 Rule 19 of the Rules of High 1980 ("RHC 1980"). The application is supported by the affidavit of Habibah binti Haron affirmed on 14 March 2011. The 3^rd plaintiff has filed an affidavit in reply on 1 April 2011. The main ground relied upon by the defendants in this application is that the plaintiffs have not complied with sections 5 and 6 of the Government Proceedings Act 1956 ("GPA 1956") as they have not named the individual tortfeasors.

Background Facts

[2] The plaintiffs are all lawyers. On 9 December 2009, they were among a group of about 100 persons who participated in a peaceful walk along Jalan Tuanku Abdul Rahman to celebrate the World Human Rights Day which falls on 10 December every year. The participants however did not have a police permit to do so.

[3] During the course of the event, the participants including the plaintiffs were ordered to disperse by the commanding officer of the police personnel at the scene, the 1^st defendant. The plaintiffs however disregarded this order to disperse. The 1^st defendant then instructed the arrest of the plaintiffs. There was however an issue that the arrests were made 10 minutes before the time allowed to disperse had expired. It was not disputed that the plaintiffs were arrested by different arresting officers upon the instructions of the 1^st defendant.

[4] After their arrest, the plaintiffs were detained overnight. The following day, they were charged under sections 143 and 145 of the Penal Code and sections 27(5) (a) and 27(4) of the Police Act 1967 . At the trial, and after the close of the case for the prosecution, the learned Sessions Court Judge found that the prosecution had failed to establish a prima facie case. The plaintiffs were acquitted and discharged. No appeal was filed. The plaintiffs then commenced the instant action for wrongful arrest and detention.

Arguments

[5] The main ground relied upon by the defendants to strike out the plaintiff's Writ and Statement of Claim is that there had been non-compliance with the provisions as set out in section 5 and 6 of the GPA 1956. The law in this regard was revisited by the Federal Court in Kerajaan Malaysia & Ors v. Lay Kee Tee & Ors, [2009] 1 MLJ 1 where it was held that by virtue of sections 5 and 6 of the 1956 , in any claim in tort against the government, the government officer who was responsible for the alleged tortuous act must be made a party and his liability must be established before the government could be made liable as principal (see also Government of the State of Sabah v. Syarikat Raspand (suing as a firm); [2010] 7 CLJ 945 ; [2010] 1 LNS 634 ; [2010] 5 MLJ 717 ; Haji Abdul Rahman v. Government of Malaysia & Anor ; 1966 MarsdenLR 267 ; Steven Phoa Cheng Loo & Ors v. Highland Properties Sdn Bhd & Ors [2010] 4 MLJ 200 and Bala Krishnan Appala Naidu v. Ketua Inspektor Prabakaran Shanmugam & Ors (No. 2); [2011] 2 CLJ 890 ; [2010] 1 LNS 1448 )

[6] The defendants claim that there has been non-compliance of sections 5 and 6 of the GPA 1956 as the tortfeasors were not named or cited as a party in the instant case. It was submitted that since the cause of action is for unlawful arrest and detention, the arresting officers and not the commanding officer must be named as parties to the action.

[7] The plaintiffs, on the other hand, claim that sections 5 and 6 of the GPA 1956 gave individuals the right to sue the Government. The intention was to protect individuals against the government. Reliance was placed on the Offic