Table of Content
1. plaintiffs seek redress under constitutional violation. (Para 1 , 2 , 4)
2. distinction between public and private legal remedies. (Para 3 , 6)
3. burden of proof may shift based on evidence. (Para 5)

[1] The appellants (dependent - children) appeal against the decision of the learned High Court Judge refusing damages for loss of dependency, exemplary and aggravated damages for the death of the father as a result of having been shot by the police was heard on 10 September 2014 and upon hearing we reserved judgment. My learned brothers Linton Albert JCA and Vernon Ong JCA have read the draft judgment and approved the same. This is our judgment.

[2] What is important to note in this case is that the plaintiffs have not framed the case under negligence but are in essence seeking exemplary damages for constitutional breach for violation of art 5 of the Federal Constitution as well as a claim for dependency under Civil Law Act 1956 for causing wrongful death. [See paras 4 to 9 of the statement of claim]. However, the learned Senior Federal Counsel has anchored the arguments based on negligence and says that the plaintiffs are not entitled to exemplary damages, in consequence of s 8(2) of the , which states:

"8(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person:

(a) shall not include any exemplary damages, any damages for bereavement made under subsection 7(3A), any damages for loss of expectation of life and any damages for loss of earnings in respect of any period after that person's death."

[3]Sections 7 and 8 of the Civil Law Act have everything to do with common law cause of action, in essence tort, and comes within the jurisprudence of private law remedy. And s 8(2) does not pave way for a claim of exemplary damages. When a complaint is related to breach of fundamental guarantee under the Federal Constitution, it attracts public law relief and there are a number of authorities to support the proposition that exemplary damages is permissible. We will deal with this issue further in the judgment, even though the submission of the learned counsel as well as Federal Counsel on the issue of exemplary damages was not satisfactory and was of no assistance to the Court to determine the quantum.

[4] The submission of learned counsel for the appellant reads as follows:

"Article 5 of the Federal Constitution provides that no person shall be deprived of his life safe in accordance with the law.

Yet on 2 September 08 at 10.00am a Police Team from the Unit Tindakan Khas lead by 3rd respondent shot the deceased six times while the deceased was seated in the front passenger seat of a Proton Waja.

The respondents' defence was that they shot in self defence as the deceased had shot at them first.

The only issue for determination was whether the respondent had acted in self defence?

The learned trial judge correctly identified the issue for determination. However, she erred in her finding when she concluded that the deceased had shot at the respondents and the respondents acted in self defence.

It is respectfully submitted that the learned trial judge failed to appreciate/ insufficient judicial appreciation of the evidence.

(a) The police sketch plan show the marking Y. This is where DW3 found the bullet casing (kelongsong peluru). It clearly shows how the police party surrounded the deceased car and shot him from close range.

(b) The position of the police vehicles also show clearly how the police cars surrounded the deceased car in the ambush.

(c) DW3 testified that no bullet casing was found in the car in which the deceased was seated when the police shot him. The absence of casing (kelongsong peluru) was clear evidence that the deceased didn't fire at the police.

(d) DW3 also testified that he found one bullet stuck in the gun which the respondent's claim they found in the car. DW3 said this is a stoppage. He clearly

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