Datuk Seri khalid bin abu bakar & orsvN indra a/p p Nallathamby (the administrator of the estate and dependant of kugan a/l Ananthan, deceased) and another appeal [2015] 1 mlj 353
Semelhante a Datuk Seri khalid bin abu bakar & orsvN indra a/p p Nallathamby (the administrator of the estate and dependant of kugan a/l Ananthan, deceased) and another appeal [2015] 1 mlj 353
Semelhante a Datuk Seri khalid bin abu bakar & orsvN indra a/p p Nallathamby (the administrator of the estate and dependant of kugan a/l Ananthan, deceased) and another appeal [2015] 1 mlj 353 (20)
Datuk Seri khalid bin abu bakar & orsvN indra a/p p Nallathamby (the administrator of the estate and dependant of kugan a/l Ananthan, deceased) and another appeal [2015] 1 mlj 353
1. DATUK SERI KHALID BIN ABU BAKAR
& ORS
V
N INDRA A/P P NALLATHAMBY
(THE ADMINISTRATOR OF THE ESTATE AND
DEPENDANT OF KUGAN A/L ANANTHAN,
DECEASED) AND ANOTHER APPEAL
[2015] 1 MLJ 353
Prepared and presented by:
Muhammad Zaim Nur Bin Zaini 1813491
1
2. FACTS OF THE CASE
1) Kugan a/l Ananthan
was arrested in respect
of a theft offence and
detained at the Taipan
Police Station
2) On 20 January 2009, the deceased met
his death while under remand at the
station. Prior to his death, the family was
not aware of his detention as they were not
informed by the police.
3) The family only became aware
when they informed of his death
on the same date. The
deceased's body showed
extensive injuries from beatings
he sustained during his
detention.
4) D1, the Chief Police Officer of
Selangor, on 21 January 2009 issued
a press statement that the deceased
collapsed and died after drinking a
cup of water. The truth of D1's press
statement is ambiguous and
plaintiff alleged that there had been
a cover up of the real cause of the
deceased's death to exculpate the
police force from any responsibility
5) 2 Autopsy has been made
and the 1st autopsy is invalid
as the author was charged
with misconduct by MMC.
2nd autopsy has shown a
valid report where ‘45
categories of personal
injuries were identified
6) D2 was found guilty of causing
grievous hurt to the deceased.
Arising from this, the plaintiff (the
mother of the deceased as
administratrix of the estate)
launched this suit claiming damages
in the form of aggravated,
exemplary, vindicatory and special
and premised it on the tort of
negligence, breach of statutory
duties for unlawfully causing the
death of the deceased, misfeasance
of the public office, assault and
battery and false imprisonment.
2
3. CIVIL APPEAL
HIGH COURT OF KUALA LUMPUR
26 JUNE 2013
COURT OF APPEAL OF PUTRAJAYA
8 AUGUST 2014
3
5. LEGAL ISSUES
1. Whether there was a breach of statutory duty suffered by the detainee by
the defendants
2. Whether the detention of the deceased was unlawful and whether false
imprisonment by police was established
3. Whether tortfeasor and his superior officers liable for deceased death
4. Whether award of exemplary damages barred by s 8(2) of the Civil Law
Act was appropriate
5. Whether detainee was allowed to seek advice.
6. Whether superior officers liable for misfeasance in public office.
5
6. WHETHER THERE WAS A BREACH OF
STATUTORY DUTY SUFFERED BY THE
DETAINEE BY THE DEFENDANTS
• In the circumstances of this case, an independent inquiry should have been
initiated and nothing short of that would have sufficed. There were many
unanswered questions and common sense demanded that only a full public
inquiry would answer those questions.
• The court was also perturbed by the fact that no inquest was held as
permitted by s 334 of the Criminal Procedure Code when the 2nd autopsy by
itself should have warranted a full investigation of the circumstances in
which the deceased met his death.
• HELD: the first, second and third defendants had breached their duty of
care to the deceased. 6
8. CONTINUE
• As to what that duty of care and standard of care are depend on the
circumstances of each individual case and it is for the courts to determine
what that duty and standard of care are as was done in the Federal Court
case of Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593.
• In Foo Fio Na's case, the Federal Court quoted with approval Callaghan J in
Hajgato v London Health Association et al (1982) 36 OR (2d) 669, where in
an action in negligence in respect of personal injuries sustained during post-
operative case the learned judge stated as follows:
• In my view however, a court has a right to strike down substandard
approved practices when common sense dictates such a result. No
profession is above the law and the courts on behalf of the public have a
critical role to play in monitoring and precipitating changes where
required in professional standards. 8
9. WHETHER THE DETENTION OF THE DECEASED
WAS UNLAWFUL AND WHETHER FALSE
IMPRISONMENT BY POLICE WAS ESTABLISHED
• The deceased's remand was a consequence of a judicial act, being an order given by a
magistrate and no such application to the High Court had been made by the plaintiff
to declare that the remand was unlawful.
• Hence, the abuses which the deceased endured could not give rise to a cause of action
for false imprisonment. The cause of action for a tort of false imprisonment arises
when a person is imprisoned without lawful justification and that action is against
the person who caused the imprisonment.
• Here the person who caused the detention was a magistrate exercising his judicial
power and that judicial act had not been set aside or declared unlawful.
• HELD: the Court found that the tort of false imprisonment is not available to the
plaintiff as there was in place a valid remand.
9