Suriyadi JCA

(delivering judgment of the court)

[1]The appeal was unanimously allowed with costs here and below. We found the second, third and fourth defendants (‘the respondents’) vicariously liable, jointly and severally, and ordered the sum of RM100,000 ordered by the learned judge of the High Court against the first defendant to remain unvaried. The deposit, was also refunded to the plaintiff (‘the appellant’).

[2]The appeal came about as the appellant had filed an action against the first defendant and the three respondents. The appellant’s claim for, inter alia, general, aggravated and exemplary damages, was allowed in the above sum of RM100,000 solely against the first defendant, but not against the respondents. Being dissatisfied, the appellant filed an appeal as against the unsuccessful litigation against the respondents. There was no appeal filed by the first defendant regarding the sum of RM100,000 against him or for that matter by the respondents. It was on account of wanting to avoid any confusion of the respective relevant parties that we deliberately referred to the respective parties as the appellant, first defendant, and respondents (the second, third and fourth defendants).

[3]A perusal of the amended statement of claim shows that the relief sought against the first defendant and the respondents were on the basis of them being jointly and severally liable. With the respondents off the hook, and the first defendant a man of straw, that judgment would have remained a paper judgment, as openly admitted by counsel for the appellant. The other facts adduced in the statement of claim, and not disputed are that, the first defendant was a member of the RELA (Angkatan Relawan Rakyat Malaysia), the second respondent was the Director General of RELA, the third respondent was the Director of the Jabatan Agama Islam Wilayah Persekutuan, Kuala Lumpur (‘JAWI’) and the fourth respondent is the Government of Malaysia.

[4]It was pleaded that at about 11.30pm on 21 March 2003 the appellant was arrested at the Kelab De Vegas at Jalan Imbi, Kuala Lumpur in a joint operation by officers of the second and third respondents. The appellant, together with some other persons arrested, were then put into a truck and driven off to Taman Maluri, Cheras. Enroute the appellant had requested from officers of the second and third respondents permission to use the toilet facilities but was disallowed. Instead she was scolded and told to urinate in the truck. As she was in quite a state, she asked her friends to shield her by encircling her with a shawl, in order to ease herself. At that particular moment, the first defendant suddenly opened the door of the truck, rushed in, pulled down the shawl and proceeded to take numerous photos of the appellant in a squatting position urinating. As a result, the appellant was thoroughly humiliated with the whole incident, which was within the view of everyone in the truck.

[5]There was abundance of evidence as regards this invasion of privacy, amongst others, his subsequent prosecution for a charge under s 509Penal Code

[6]To return to the pleadings, the appellant pleaded that her privacy had been invaded, resulting in her humiliation, trauma and serious mental anguish. She wanted general, aggravated and exemplary damages in the sum of RM5,000,000, interest and costs from the first defendant and the respondents. She pleaded that the officers of the second and third respondents at the material time, had negligently failed to protect her well-being, by allowing the first defendant to snap those photographs. To reiterate, at the end of the trial, the learned judge found for the appellant only as regards the first defendant, but not the rest of the respondents. Neither did the first defendant nor the respondents appeal against that decision.

[7]The learned judge in her grounds of judgment found that the first defendant, together with several members of RELA who participated in the operation carried out by JAWI, di