The court emphasized the strict adherence to lawful procedures in remand orders, highlighting the consequences of police misconduct in cases of detention.

Background Facts

[1] This is a case of custodial assault and police brutality against a man who was suspected to be involved in a crime which never was. The respondent herein, had, in the early hours of 22 November 2008 accompanied his friend, one Abdul Manan b Hasan (SP4) to the Ibu Pejabat Polis Kontinjen (IPK) Melaka. It was about 4.00am. Earlier, at about 3.30am while they were enjoying themselves at the Rally Club, Melaka, SP4 received a phone call from an unidentified police personnel asking him to come over to the IPK. In the said phone conversation, SP4 was asked whether he was involved in a fight involving a police officer at a restaurant in MITC Melaka. SP4 was directed to see a police officer by the name of Hassan b Marsom, the 1st appellant herein.

[2] At the IPK, SP4 went in to see the 1st appellant while the respondent waited at the guardhouse. About half an hour later, the respondent was brought to the 2nd appellant's room and later into a room where there were plain clothed police personnels. He was blindfolded, stripped and assaulted despite his denial on his involvement in a fight which purportedly had taken place at a restaurant in MITC Melaka.

[3] Later in the morning, the respondent was produced before the magistrate for a remand order under s 117 of the Criminal Procedure Code ( CPC ). A remand order for a period of seven days from 22 November 2008 to 29 November 2008 was obtained from the magistrate by the 3rd appellant. Thereafter, the respondent together with four other detainees including SP4, were brought to the Balai Polis Melaka Tengah lock up. One Corporal Nasir b Jaafar (SP10) noticed injuries suffered by the respondent and ordered him to be brought to the hospital. Together with three other suspects, the respondent was taken to the Melaka General Hospital at about 7.00pm where he was hospitalised for seven days from 22 November 2008 to 29 November 2008.

[4] While still at the hospital, on 28 November 2008, the respondent's remand order was extended for another seven days until 5 December 2008 on which day he was released from police custody.

[5] The result of the police investigation revealed that the respondent was not involved in the fight at the restaurant in MITC Melaka and accordingly no charges were brought against him.

[6] As a result the assault, the respondent suffered injuries and complaint of shortness of breath and chest pain.

[7] The respondent filed a claim in the High Court against the appellants herein claiming for general and special damages as well as exemplary and/or aggravated damages for the unlawful detention and the pain and suffering he had undergone during the ordeal.

[8] In his amended statement of claim, the respondent also prayed for a declaration that his detention between 22 November 2008 and 5 December 2008 was unlawful and a further declaration that his rights under art 5 of the Federal Constitution had been breached.

Proceedings In The High Court

[9] At the end of the trial, the learned Judicial Commissioner (JC) of the Melaka High Court found the 1st, 2nd, 3rd, 4th and 7th appellants liable and awarded damages to the respondent. The 7th appellant was held to be vicariously liable for the acts of the 1st to 4th appellants. They are only liable for the injuries suffered by the respondent while in police custody. The award runs:

Interest at 4% per annum on the said amount was also ordered from 22 November 2008 to date of payment.

[10] The learned JC however, did not allow the declaration sought by the respondent.

[11] In refusing the declaration sought by the respondent, the learned JC had merely stated that the remand order was properly issued by the magistrate, hence, the detention of the respondent was le