Yong J:

In this suit the plaintiff claimed damages for physical injuries suffered by him as a result of a gunshot wound caused by the second defendant a police constable in the employ of the Government of Malaysia.In his amended statement of claim the plaintiff alleged that while he was lawfully in the Lake Gardens in the early morning hours of 1 am on 4 January 1968, he heard a commotion and ran away and while running away the police without any warning unlawfully and negligently shot and wounded him.The defence was that the second defendant while on police duties in the Lake Gardens heard a woman screaming for help.He and another constable rushed towards her direction.He saw the plaintiff and another Malay running away from the scene.He gave chase and shouted to them to stop.They ignored his warnings and continued to run away.He fired a warning shot.As they still continued to run away a second shot was fired.It hit the plaintiff and brought him to a halt.The defence contended that when the second defendant fired those shots he was lawfully discharging his police duties to prevent the plaintiff from escaping.

The question before the Court is whether the second defendant was justified or negligent in firing the second shot injuring the plaintiff under the circumstances of this case.

The facts showing the circumstances under which the plaintiff was shot may be briefly described as follows.

The plaintiff and his three friends, Sulaiman, Moktar and Aziz after spending three hours in drinking and dancing left the Bukit Bintang Joget Hall in the early morning hours of 4 January 1968.From there they went to Jalan Tuanku Abdul Rahman, where they met two young ladies near the Mara Building. "I offered them a lift home in our car" said the plaintiff.They accepted the invitation and were conveyed not to their homes but to a restaurant in Jalan Brickfields, and after food they were taken to the Lake Gardens.Moktar who was the driver, stopped the car near the vicinity of the Lake Club Buildings and its car park.

In the car were four men and two girls.They decided to split up into two groups so that two men could be with one girl.Sulaiman and plaintiff got out of the car with one girl, and the others remained in the car.Sulaiman took the girl to a bush and the plaintiff followed them.The bush was about 50 yards away from the car.When they were inside or near the bush, plaintiff, according to his story, was requested by Sulaiman to go away and he then walked back to the car.While he was talking to Moktar and Aziz in the car, he heard screams coming from the bush.The girl in the bush was screaming for help.The girl in the car got out and went to the assistance of the girl in the bush.Plaintiff followed the girl and went towards the direction of the bush.On reaching the bush he saw Sulaiman and the girl on the ground.He asked Sulaiman to go home, and his suggestion was ignored.Then he heard people speaking and saw them coming towards them.They were about 50 yards away and were shining their torch lights towards his direction.He became frightened and told Sulaiman to run away and they both ran away leaving the girl behind.

When he was cross-examined why he had followed Sulaiman and the girl into the bush, plaintiff reluctantly replied:

Now I admit that I went with Sulaiman into the bush in order to have sexual intercourse with the girl but not against her will.There was no arrangement to pay the girl.No arrangement for payment was ever made with the girls.If the girl had not screamed for help but had given her consent I would have taken my turn to have sexual intercourse with her.But I did not have my turn yet. I was waiting. I do not know whether the girl was a good or a bad girl.She did not at any time throughout the evening ask for money.

When asked why he had run away towards the direction of darkness instead of running back to his car where his friends were, or to the Lake Club premises where it was brilliantly lighted up, plaintif