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2022 MarsdenLR 1818
COURT OF APPEAL PUTRAJAYA
RAHAYA SALLEH – Appellant
Versus
NIK MOHD GHAZALI NIK ZUL AZHAR & ORS AND ANOTHER APPEAL – Respondent
[Civil Appeal Nos: A-01(NCVC)(W)-463-09-2019 & A-01(NCVC)(W)-71-02-2020]
Detaining authorities have a strict duty of care to ensure the health and safety of detainees; failure to do so can result in liability for negligence and unlawful detention.
Headnote:(A) Civil Law Act 1956 – Sections 7 and 8 – Minor Offences Act 1955 – Police Act 1967 – Criminal Procedure Code – Unlawful detention – Plaintiff sought damages for unlawful detention and negligence leading to the death of her son – Court found defendants negligent in failure to monitor and provide medical care during detention – Court emphasized that defendants owe a duty of care to detainees – Damages awarded for public misfeasance and false imprisonment. (Paras 19-66)
(B) Negligence – Standard of care – Established that detaining authorities must ensure the wellbeing and medical care of detainees – Court reinforced that neglecting such duty breaches legal obligations. (Paras 48-54)
(C) Appeal – Grounds of appeal included legality of detention, negligence, and adequacy of damages awarded – Court found errors in previous rulings and awarded increased damages. (Paras 28-66)
Facts of the case: The deceased endured multiple remands under police custody before dying in Tapah Prison due to alleged medical neglect following a chronic illness, with insufficient medical examinations conducted during his detention. (Paras 6-66)
Findings of Court: The detention of the deceased was ruled unlawful; defendants breached their duty of care leading to an increased risk of health issues; awarded damages totaled RM250,000. (Paras 57-66)
Issues: The legality of the deceased's detention, whether the defendants were negligent leading to death, and the appropriate amount of damages. (Paras 30-66)
Ratio Decidendi: The court ruled a clear duty of care exists for authorities to provide adequate medical treatment to detainees, failing which they are liable for negligence. (Paras 48-56)
Result: Appeals allowed partly; damages increased to RM250,000. (Paras 67)
JUDGMENT
Introduction
[1] These two (2) appeals were heard together, namely, No: A-01(NCVC)(W)- 463-09-2019 ("Appeal No 463") and A-01(NCVC)(W)-71-02-2020 ("Appeal No 71"). Both are interconnected and share common facts, issues, parties and are against the decision delivered by the learned Judicial Commissioner ("learned JC") in the High Court of Malaya in Ipoh, Perak on 13 August 2019.
[2] In Appeal No 463, the plaintiff appealed against a portion of the following decision:
(a) Dependency claims pursuant to s 7 of the Civil Law Act 1956;
(b) Claim for special damages as per Plaintiff's Statement of Claim ("SOC");
(c) Claim for exemplary and aggravated damages; and
(d) Amount of costs awarded to the plaintiff.
[3] In Appeal No 71, the defendants appealed against the finding of liability.
[4] For the purpose of these appeals, parties will be referred to as they were in the High Court.
[5] We heard the appeal and after giving our most anxious and meticulous consideration to the facts and the submissions from the learned counsel for the plaintiff as well as the learned Senior Federal Counsel ("SFC") for the defendants, we are satisfied that there are appealable errors in the High Court's decision warranting appellate intervention. It is our unanimous decision that the appeal by the plaintiff in Appeal No 463 is allowed partly with costs whilst in the Appeal No 71 by the defendants is dismissed with costs. The following are our grounds in arriving at the decision.
Salient Facts
[6] The plaintiff's son Kamalrulnizam bin Ismail ("the deceased") was arrested by the police at about 11.30am on 13 February 2014 under the Minor Offences Act 1955 in respect of some stolen property and under s 457 of the Penal Code. Upon his arrest, he was detained at the Ibu Pejabat Polis Daerah Seberang Prai Tengah Police lockup.
[7] On 14 February 2014, at about 2.30pm, Sarjan Mejar Suhaimi bin Saidin Alias Saleh (SD2 and the 5th defendant) produced the deceased before a Magistrate and a remand order was obtained until 18 February 2014 to facilitate police investigations ("the first remand"). The "Waran Menahan" (D38) and "Minit Permohonan Reman" and "Permohonan Tahanan Reman OKT Di Bawah Seksyen 117 KPJ" (D37 collectively) were produced in Court. The "Permohonan Tahanan Reman" was prepared by SD2 himself. These were presented by SD2 together to the Magistrate.
[8] Subsequently, the deceased was further remanded, from 18 February 2014 to 21 February 2014 ("the second remand"). The "Permohonan Reman" [D39(b)] was also prepared by SD2.
[9] The second remand was to end on 21 February 2014 and the deceased was supposed to be released. Alas, this was not to be. The deceased was re-arrested on that very day by one ASP Rizal bin Ramli. Sarjan Mohd Hafiz bin Abd Karim (SD3) stated in evidence that the deceased was suspected of committing an offence under s 457 of the Penal Code. On 22 February 2014, he was produced before a Magistrate for another remand ("the third remand") from 22 February 2014 to 25 February 2014. The "Waran Menahan" (D61), "Permohonan Tahanan Reman OKT di bawah Sek. 117 KPJ" (D46(1)) and "Minit Permohonan Reman" (D46(2)) were produced. D46(2) was prepared by Sarjan Mohd Khairie Anwar bin Azmi (SD4).
[10] On 25 February 2014 he was again re-arrested for the third time. He was arrested by Sarjan Kamarudin bin Hushin (SD5). This date is significant as the third remand for the deceased was to end on 25 February 2014. This time the deceased was then taken and detained at Jinjang, Kuala Lumpur police lockup (Pusat Reman Jinjang). He was then produced before a Magistrate at Kuala Lumpur Magistrate Court the following day that is 26 February 2014 and a fourth remand from 26 February 2014 to 28 February 2014 was ordered (P31). The deceased was represented by the Yayasan Bantuan Guaman Kebangsaan's (YBGK's) lawyer (SP3) who evinced that the deceased told him, he was beaten by the police and showed him the bruises. Upon expiry of the remand order
