The Court affirms that exemplary damages can be awarded for constitutional violations, distinguishing them from standard tort claims under the Civil Law Act.

[41] The Court of Appeal, after hearing the parties, allowed the respondents' appeal and ruled that the judgment of the High Court showed error of law of a grave nature which required the Court of Appeal to intervene.

[42] The Court of Appeal held that there was nothing in the grounds of judgment of the High Court that stated that the appellants had discharged their burden of proving self-defence.

[43] The Court of Appeal awarded damages in the sum of RM51,000.00 for the respondents' dependency claim. The Court also awarded exemplary damages in the sum of RM300,000.00.

[44] In granting the claim for exemplary damages, the Court of Appeal held that exemplary damages are permissible when a complaint is related to breach of fundamental guarantee under the Federal Constitution. The Court of Appeal said:

(i) The House of Lords as early as 1964 in Rookes v. Barnard [1964] AC 1129 has held that English courts have recognised the awarding of exemplary damages, that is, damages whose object was to punish or deter and which were distinct from aggravated damages (whereby the motives and conduct of the defendant aggravating the injury to the plaintiff would be taken into account in assessing compensatory damages), and there were two categories in which an award of exemplary damages could serve as a useful purpose, viz, in the case of oppressive, arbitrary or unconstitutional action by the servants of the government, in the case where the defendant's conduct had been calculated by him to make a profit for himself, which might well exceed the compensation payable to the plaintiff. [See Sakshi Sharma w/o Rajesh Sharma and Others v. State of Himachal Pradesh and Others [2012)] Indlaw HP 1474). The Indian courts have been cautious in granting exemplary damages in ordinary tort claims. In Common Cause v. Union of India [1999] 6 SCC 667, it was stated:

"In an action for tort where the plaintiff is found entitled to damages, the matter should not be stretched too far to punish the defendant by awarding exemplary damages except when their conduct, specially those of the government and its officers, is found to be oppressive, obnoxious and arbitrary and is, sometimes coupled with malice... If we were to apply the rule in Rookes v. Barnard [1964] 1 All ER 367 invariably and unhesitatingly and were to award exemplary damages in every case involving government officers or government servants, the result would be appalling."

(j) The reason for awarding exemplary damages was addressed in Rookes v. Barnard as follows:

"There are certain categories of cases in which the award of exemplary damages can serve useful purpose in vindicating the strength of the law and thus affording a practical justification for admitting into civil law a principle which ought logically to belong to criminal."

(k) In essence, English and Indian case laws recognises that courts on extraordinary facts and circumstances to maintain social discipline and rule of law must take punitive measures by awarding damages for unlawful act. The English courts in the recent case of Ashley v. Chief Constable of Sussex Police [2008] 2 WLR 975 HL have gone to say that exemplary damages which is statutorily barred in tortuous claim by virtue of English Law Reform (Miscellaneous Provisions) Act 26 1934, is maintainable if the claim is premised on breach of fundamental guarantees enshrined in the Federal Constitution. This part of the jurisprudence is well captured and articulated by His Lordship David Wong Dak Wah in the case of Datuk Seri Khalid Abu Bakar & Ors v. N Indra P Nallathamby & Another Appeal, [2014] 9 CLJ 15, often referred to Kugan case High Court's citation [2013] 4 MLRH 441].

(l) The Ind