Anand Ponnudurai J:

GROUNDS OF JUDGMENT

Introduction

[1]This is yet another tragic case involving the death of a person whilst under police detention/custody. The Plaintiff as the mother and the administrator of the estate of her deceased son, one Mohd Fadzrin bin Zaidi (hereinafter referred to as “the deceased”) has commenced this present suit against the Defendants for alleged negligence and public misfeasance for the wrongful death of her deceased son, who was found hung at the police lockup at Ibu Pejabat Polis Daerah Seberang Perai Utara on 22^nd November 2019.

[2]In determining whether the Plaintiff’s claim is with merits or otherwise, I will hereinbelow set out the salient background facts, the issues to be tried, the parties’ respective contentions/submissions, the evidence adduced and my analysis of the same.

The Salient Background Facts

[3]The salient background facts can be gleaned from the pleadings filed as well as the evidence led during trial and is summarised as follows.

[4]It is an undisputed fact that on 20^th November 2019, the deceased was arrested together with one Hafeez Nashriq bin Sukry (hereinafter referred to as “Hafeez”) by the police at No. 2255, Kampung Perlis, 12100 Butterworth, Pulau Pinang and was remanded for a period of 7 days under Sections 39B39A(1)15(1)(a)Dangerous Drugs Act 1952

[5]The deceased was then placed in Cell 3 of the lockup of Ibu Pejabat Polis Daerah Seberang Perai Utara (hereinafter referred to as “IPD SPU”).

[6]It is undisputed that on 22^nd November 2019 in the early hours of the morning (between 02:55am to 03:00am), the deceased was found hanging by his neck in his cell. The post-mortem report by the forensics pathologist has ascertained the deceased’s cause of death as “consistent with hanging”.

[7]Parts of the CCTV recording recorded from a mobile phone was tendered by the Plaintiff in Court whereby having viewed the same, there is no disputing that it was the deceased who hung himself with the aid of his t-shirt and that no other person was found to be involved in the hanging incident.

The Plaintiff’s Claim

[8]The Plaintiff’s claim as pleaded is based on the following causes of action:

a.Negligence of the 1^st Defendant in failing to comply with the legal and statutory obligations as provided under the Police Act 1967, Police Regulations 1952, Lockup Rules 1953 at the time of the arrest until the detention of the deceased in the lockup.

b.Negligence of the 2^nd to 5^th Defendants arising from the omissions and non-compliance of the legal and statutory obligations as provided under the Police Act 1967, Police Regulations 1952, Lockup Rules 1953, Perintah Tetap, Memo dated 11^th October 2019 leading to the death of the deceased.

c.Negligence of the 6^th Defendant in ensuring that his subordinates i.e. the 2^nd to 5^th Defendants complied with the legal and statutory obligations as provided under the Police Act 1967, Police Regulations 1952, Lockup Rules 1953, Perintah Tetap and Memo dated 11^th October 2019 leading to the death of the deceased.

d.The failure of the 7^th Defendant in conducting a transparent investigation against the 1^st to 6^th Defendants.

e.Misfeasance of the Defendants in public office which had led to the death of the deceased.

f.The 8^th to 11^th Defendants to be held vicariously liable.

The Defendants’ Defence

[9]The Defendants’ defence as pleaded is as follows:

a.that it was not reasonably foreseeable that the deceased would take his own life;

b.that the deceased was not a suicide risk;

c.that the Defendants were not negligent in their execution of duties; and

d.that the Plaintiff is unable to prove misfeasance in public office.

Trial

[10]A trial was conducted over 4 days with the following witnesses testifying:

The Plaintiff’s witnesses

a.Fadhelah bt Othman (SP1 - the mother of the deceased and administrator of the deceased’s estate);

b.Abdul Aziz bin Sulaiman (SP2 - Pengerusi Surau Kampung Perlis, Butterworth); and

c.Mohd Fadzli bin Zaidi (SP3 - the deceased’s older brother).

The Defendants’ wi