1. ) Badan Peguam Malaysia v 1. ) Noor Dellhan Bin Yahaya (Selaku Pegawai yang Menjaga Daerah Polis Dang Wangi) (WA-21NCvC-113-10/2022)

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KAREN CHEAH YEE LYNN

MOHAMAD EZRI BIN ABDUL WAHAB

ANAND RAJ A/L R. BALASUPRAMANIAM

MURSHIDAH BT MUSTAFA (NO. K/P: 700721-02-5628) …PLAINTIF-PLAINTIF DAN 1. NOOR DELLHAN BIN YAHAYA (SELAKU PEGAWAI YANG MENJAGA DAERAH POLIS DANG

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KERAJAAN MALAYSIA …DEFENDAN-DEFENDAN 21/07/2025 10:49:52 WA-21NCvC-113-10/2022 Kand. 86 S/N Watrl6i0qNqtG5Xn1Jyg GROUNDS OF JUDGMENT Introduction 1. This civil suit was filed by the Plaintiffs pleading, inter alia, violation of their rights under the Peaceful Assembly Act 2012 (“the PAA 2012”) and Federal Constitution, tort of false imprisonment and misfeasance in public office.

The Plaintiffs had organised a peaceful assembly and march to take place on 17th June 2022, which they named: “Walk for Judicial Independence”. The cause of their grievances, as pleaded in their Statement of Claim, is that the 1st Defendant, who was then the Officer-in-charge of the Police District of Dang Wangi, had prohibited the Plaintiffs, members of the Bar and some members of the public, who had assembled at a public carpark known as the Padang Merbok Public Carpark on the said date from marching to Parliament to deliver a memorandum to the then Prime Minister of Malaysia.

After considering the evidence adduced during trial and submissions of learned counsel for the Plaintiffs and learned Senior Federal Counsel for the Defendants, I find that the 1st Defendant, in his capacity as the Officer-in-Charge of the Police District of Dang Wangi had acted ultra vires on 15th June 2022 and also on 17th June 2022. However, I decided that this Court ought to issue only one declaration, and not all the declarations sought by the Plaintiffs.

While reading out my broad grounds, I have expressed my appreciation to counsel on both sides for their agreeing on the S/N Watrl6i0qNqtG5Xn1Jyg quantum of damages, i.e. that nominal damages of only RM1.00 be awarded to the 1st Plaintiff. This spared me from having to assess general damages for such a case – which is not a run-of-the-mill one. The Parties in this Civil Suit 5. The 1st Plaintiff is established under Section 41 of the Legal Profession Act 1976 as a body corporate with perpetual succession and a common seal, and with power subject to the said Act to sue and be sued in its corporate name.

The 2nd Plaintiff is an advocate and solicitor of the High Court of Malaya and was, at the material time, the President of the Malaysian Bar.

The 3rd Plaintiff is an advocate and solicitor of the High Court of Malaya and was, at the material time, the Vice-President of the Malaysian Bar.

The 4th Plaintiff is an advocate and solicitor of the High Court of Malaya and was, at the material time, the Secretary of the Malaysian Bar.

The 5th Plaintiff is an advocate and solicitor of the High Court of Malaya and was, at the material time, the Treasurer of the Malaysian Bar.

As mentioned at the outset, the 1st Defendant is a senior Police officer and was, at the material time, the Officer-in-Charge of the S/N Watrl6i0qNqtG5Xn1Jyg Police District (“the OCPD”) of the Dang Wangi Police District in Kuala Lumpur.

The 2nd Defendant is a Police officer, and was, at the material time, serving at the headquarters of the Dang Wangi Police District, under the command of the 1st Defendant.

The 3rd Defendant (the Royal Malaysian Police) is one of the public services established under Article 132(1)(d) of the Federal Constitution (“the Constitution”).

The 4th Defendant is the Inspector-General of Police of Malaysia and may be held vicariously liable for the actions of the 1st Defendant and 2nd Defendant in performing their duties as Police officers.

The 5th Defendant is the Minister responsible for the 3rd Defendant.

The 6th Defendant is the Government of Malaysia and is, at all material times the employer of the 1st Defendant to the 5th Defendant.

Negotiations ensued, and the 2nd Defendant initially offered to allow only 10 of the Participants to march to Parliament, then 20, and finally 30 of the Participants. The Plaintiffs insisted on all the Participants being allowed to march to Parliament but the Police personnel under the command of the 2nd Defendant continued to refuse to clear the path. 17th June 2022 (About 11.00am) – The 2nd Plaintiff called the Deputy Minister of Law, YB Mas Ermieyati on her handphone and informed her that the Participants were unable to march to Parliament. 17th June 2022 (About 11.05am) – The Deputy Minister of Law, YB Mas Ermieyati arrived at Padang Merbok Carpark to receive the 1st Plaintiff’s Memorandum on behalf of the Prime Minister. 17th June 2022 (around 11.15am) – After the 2nd Plaintiff handed the said memorandum to the Deputy Minister who gave a speech S/N Watrl6i0qNqtG5Xn1Jyg apologising to the Participants, the Participants of the assembly dispersed peacefully. 17th June 2022 (afternoon) – The 1st Defendant issued a press statement about having detected and investigating the assembly, and warning the public. 24th June 2022 – The 2nd Defendant asked the 2nd Plaintiff, Chan Weng Keng, and Rajendran Samuel Devaraj to go to the Dang Wangi Police Station for investigation purposes. 19th September 2022 – The 2nd Plaintiff, 4th Plaintiff, Chan Weng Keng, and Rajendran Samuel Devaraj filed a Judicial Review application (WA-25-503-09/2022) to challenge the validity of notices that were issued to them under Section 111 Criminal Procedure Code. 26th September 2022: The 1st Defendant issued a letter stating "NFA" (No Further Action) for the case against those 4 individuals. 13th October 2022: The said Judicial Review application was withdrawn as it had been rendered academic by the 1st Defendant issuing the “NFA” letter. Summary of the Plaintiffs’ Evidence & Submissions 17. The 2nd, 3rd, 4th and 5th Plaintiffs all testified as witnesses for the 1st Plaintiff and for themselves respectively, narrated the events that S/N Watrl6i0qNqtG5Xn1Jyg transpired, as stated in their version of the chronology of events set out in para 16 above.

Learned counsel for the Plaintiffs submitted that premised on those facts, the main issues for this Court to decide are as follows:

Whether the Defendants had acted in breach of the PAA 2012?

(ii) If indeed the Defendants had acted in breach of the PAA 2012, whether the Defendants’ actions:

in preventing the Plaintiffs from marching to Parliament amounted to false imprisonment?

amounted to misfeasance in public office?

violated the Plaintiffs’ constitutional rights?

It was further submitted for the Plaintiffs that the 1st Defendant was out of time in imposing the conditions under s.15 of PAA 2012. On this point, it was contended as follows: that s.14(1) of PAA 2012 requires the 1st Defendant to respond to the notice under s.9(1) of PAA 2012 within 3 days of receipt of the notice and shall, in the response, inform the organiser of the restrictions and conditions imposed under s.15 of PAA 2012, if any. In the present case, the 1st Defendant received the notice on 7th June 2022, if not, by the earlier date of 3rd June 2022. However, the 1st Defendant only imposed conditions under s.15 of PAA 2012 on 16th June 2022 through its letter dated 15th June 2022 (received on 16th June 2022) to the 1st Plaintiff, less than 24 hours before the assembly on 17th June 2024. S/N Watrl6i0qNqtG5Xn1Jyg GUAMAN NO: WA-21NCvC-113-10/2022 20. According to the Plaintiffs’ learned counsel, the consequence of not imposing conditions in time is found at s.14(2) of PAA 2012 which states that “If the Officer in charge of the Police District does not respond to the notification in accordance with subsection (1), the assembly shall proceed as proposed in the notification”, and as such, the 1st Defendant had no power to impose any conditions. The Plaintiffs thereby contend that the conditions imposed were unlawful and the Defendants had acted unlawfully in preventing the Plaintiffs from marching on 17th June 2022, and lastly, by imposing conditions less than 24 hours before the assembly, the 1st Defendant had essentially deprived the Plaintiffs of any avenue of appeal to the Minister under

As his further and alternative submissions, learned counsel for the Plaintiffs submitted that irrespective of what had transpired leading to the imposition of conditions, the 1st Defendant had imposed an illegal condition in prohibiting the march from Padang Merbok Carpark to Parliament. On this point, it was contended as follows: that the PAA 2012 had been amended by Parliament in 2019 to remove the prohibition on street protest. For all intents and purposes, the Plaintiffs’ march to Parliament is a moving assembly under the current definition of an “assembly” or a "street protest under the pre-amendment definition of the same. Any conditions imposed by the OCPD under s.15 of PAA 2012 cannot amount to a prohibition of street protest, which had been permitted by Parliament. The Defendants’ reliance on Regulation 6 of the Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (National Recovery Plan) (Transition Phase To Endemic) S/N Watrl6i0qNqtG5Xn1Jyg Regulations 2022 (“the Regulations”) for the prohibition of the march was unlawful. The Plaintiffs argue that the 1st Defendant could not rely on Regulation 6 of the Regulations to prohibit a street protest when Parliament had allowed it, that the Regulations, being a subsidiary legislation, cannot override the PAA 2012, being a primary legislation and go beyond the scope of its parent legislation, i.e. the Prevention and Control of Diseases Act 1988 (“PCIDA”), which governs public health and not assemblies which is governed by the PAA, and therefore a harmonious reading of the PAA 2012, the Regulations, and the Prevention and Control of Infectious Diseases Act 1988 (“PCIDA”) would mean that Regulation 6 of the Regulations cannot be used to negate the rights of the Plaintiffs under the PAA

2012.

Learned counsel further argues that as the term used in the Regulations is “procession” which is different from the term used in the PAA 2012, which is “street protest”, such distinction is crucial because when Parliament uses different words, it intends to mean different things. “Procession” under the Regulations cannot be interpreted to include a moving assembly or “street protest” under the PAA. It was therefore emphasised on behalf of the Plaintiffs that it was unlawful for the 1st Defendant to rely on Regulation 6 to prohibit the proposed march.

On the issue about using the Padang Merbok Public Carpark for the assembly, learned counsel for the Plaintiff cited Sections 2 and 63 of the Local Government Act 1976 and submitted that Padang Merbok is a public place and therefore no permission was required S/N Watrl6i0qNqtG5Xn1Jyg from Dewan Bandaraya Kuala Lumpur for the assembly to be held there.

The Plaintiffs’ learned counsel went on to rely on the judgment of the the Federal Court in Tony Pua Kiam Wee v. Government of Malaysia [2019] 12 MLJ 1 to submit that the 1st Defendant has also committed the tort of misfeasance in public office. It was submitted that as the 1st Defendant is a public officer, all the key ingredients of the tort are present in the present case, which are: an abuse of public power or authority by a public officer who was recklessly indifferent as to the limits of his public power or authority, and who acted with reckless indifference to the probability of harming the plaintiff or a class of persons of which the plaintiff was one. According to counsel, the 1st Defendant had abused his power by prohibiting the Plaintiffs’ march when he had no power to do so under the PAA.

Further, it was submitted that the 1st Defendant’s prohibition of the Plaintiffs’ march was unlawful as the Defendants had no basis to restrain or block the Plaintiffs from marching to Parliament, and therefore such restraint or blockade by the Defendants amounted to false imprisonment. Learned counsel cited Shahrudi Abidin v Datuk Wira Abu Seman Yusop Timbalan Menteri Dalam Negeri Kementerian Dalam Negeri Malaysia & Ors [2021] 1 CLJ 52 and Hassan bin Marsom & Ors v Mohd Hady bin Ya’akop [2018] 5 MLJ 141 as authorities in support of his contention of false imprisonment. S/N Watrl6i0qNqtG5Xn1Jyg GUAMAN NO: WA-21NCvC-113-10/2022 26. Reference was also made by the Plaintiffs’ learned counsel to Articles 5 (life), 8 (equal protection of the law), 9 (freedom of movement), and 10 (freedom of assembly) of the Federal Constitution to submit that the Defendants’ alleged breach of the PAA 2012 amount to a violation of the Plaintiffs’ constitutional rights.

In the prayers in their lengthy Statement of Claim, the Plaintiffs sought various declarations of rights, General Damages, Aggravated Damages and Exemplary Damages. Summary of the Defendants’ Evidence & Submissions 28. Learned Senior Federal Counsel (“SFC”) who appeared for the Defendants submitted as follows: -

The prohibition of procession and attempts to stop the move to march to Parliament did not constitute false imprisonment;

(ii) The conditions imposed by the police were lawful and did not constitute misfeasance in public office; and

(iii) There was no breach of constitutional rights.

The learned SFC went on to submit that there were attempts by the Police to negotiate with the Plaintiffs, and that upon discussion, the number of Participants who were allowed to march to Parliament were increased from 10 to 20 and finally to 30, but the Police’s offers enabling them to march to Parliament “were never taken by the Plaintiffs. This evidence appears unchallenged throughout the trial”.

In seeking to exclude other Participants from the benefit of this action, learned SFC submitted that this civil suit is not a class action by all S/N Watrl6i0qNqtG5Xn1Jyg the Participants of the assembly, and the question of whether there were any breaches of constitutional rights should be limited to only the constitutional rights of the 2nd, 3rd, 4th and 5th Defendants.

it was further contended for the Defendants that it was mandatory to obtain the consent of DBKL because Section 63 of the Local Government Act 1976 clearly stipulates that the DBKL has the general control and care of the said public place. Learned SFC pointed out that since the facts of the instant case showed that the Plaintiffs intended to organise an assembly to be attended by approximately 500 persons with speeches to be delivered, it would be absurd to say that in such a situation, consent of the DBKL was not required.

By way of illustration, the learned SFC posed a hypothetical question on whether members of the public may freely organise wedding ceremonies or sports carnival at the Padang Merbok Carpark without the consent of DBKL? He concluded on this point by submitting that DBKL’s role in having the general control and care of the said carpark “entitle them to fall within the ambit of the definition of owner or occupier of Padang Merbok” Carpark.

The learned SFC highlighted the fact that at the time when the said notification was served at the Dang Wangi Police Station, the Plaintiffs had yet to obtain the consent of the owner/occupier of Padang Merbok Carpark. The 1st Plaintiff obtained approval vide a letter from DBKL only on 14th June 2022 and paid a sum of RM400 to DBKL, as the rental required to use Padang Merbok Carpark, only S/N Watrl6i0qNqtG5Xn1Jyg after receiving the approval letter. On the law on this point, the learned SFC submitted that Section 9 of the PAA 2012 ought to be read together with Section 10 which mandates the notification to fulfil certain the prescribed criteria, including proof of consent of the owner or occupier of the place of assembly.

The point on law on false imprisonment was dealt with by the learned SFC who submitted that the authorities cited by learned counsel for the Plaintiffs, for eg. Shahrudi Abidin (supra), involve “actual arrest and detention”, unlike the facts of the present case. Several English cases were cited in support of his submission that the law on tort of false imprisonment “requires the constraint to be total or complete in restricting a person to a particular place”.

As for the law on tort of misfeasance in public office, it was submitted that the elements of that tort were not proven in this case. Tony Pua Kiam Wee v. Government of Malaysia (supra) was cited by the learned SFC as authority in support of the 2nd Defendant’s evidence, who testified as follows: “Plaintif-Plaintif dan kesemua peserta perhimpunan yang lain tidak pernah dihalang daripada meninggalkan tempat perhimpunan tersebut. Plaintif-Plaintif tidak dikepung dan bebas keluar masuk tempat letak kereta Padang Merbok. Mereka hanya dihalang dari berarak ke bangunan Parlimen. Jadi, dakwaan ‘penahanan salah tersebut’ merupakan suatu tanggapan yang salah.” S/N Watrl6i0qNqtG5Xn1Jyg Analysis of the Facts and Law 36. As alluded to above, this civil suit was filed by the Plaintiffs who pleaded, inter alia, violation of their rights under the PAA 2012 and Federal Constitution, tort of false imprisonment and misfeasance in public office because the 1st Defendant, who was the Officer in charge of the Police District (OCPD) of Dang Wangi, had imposed a condition that prohibited the Plaintiffs, members of the Bar and some members of the public, who had assembled at the Padang Merbok Public Carpark, from marching to Parliament on 17th June 2022 to deliver a memorandum to the Prime Minister of Malaysia.

S.3 of the PAA 2012 used to contain a definition of “street protest” while s.4 expressly stated that the right to organise an assembly under the said Act does not extend to a street protest. I had used words that are in the past tense because an Amendment Act A1600, which came into force on 1st November 2019, had deleted “street protest” from S.3 and S.4 of the Peaceful Assembly Act 2012.

The deleted definition of “street protest” reads: “Street protest” means an open air assembly which begins with a meeting at a specified place and consists of walking in a mass march or rally for the purpose of objecting to or advancing a particular cause or causes”

As a matter of fact, the deleted definition of “street protest” is the most appropriate description of the event planned by the Plaintiffs, which was to be held on 17th June 2022, beginning with an assembly at Padang Merbok Public Carpark and thereafter to march to Parliament to submit a memorandum to the Prime Minister.

Despite the amendments made by the said Amendment Act, it must be noted that S.3 of the PAA 2012 defines the word “assembly” as an assembly of a number of persons in a public place, whether or not the assembly is at a particular place or moving, i.e. with the participants moving together from one place to another, which would cover street protests. The Undisputed Facts of the Case in Chronological Order 41. On 27th May 2022, the 1st Plaintiff had passed a resolution to hold a peaceful assembly and march to Parliament to express the objection of the members of the 1st Plaintiff against the action of the MACC in publicly announcing that an investigation was being carried out on a judge of the Court of Appeal of Malaysia.

As the area in which the proposed assembly and march is within the Dang Wangi Police District, on 3rd June 2022, the 1st Plaintiff’s letter together with a Notification under S.9(1) in a Form following the format set out in the Fourth Schedule of the said Act, were sent by hand to the Dang Wang Police Station by an employee of the 1st Plaintiff. There is a dispute about what occurred at the Police Station on 3rd June 2022. From the evidence, it appeared to be a situation of either a lack of any standard operating procedure (“SOP”) to guide the Police personnel manning the counters in the Police station on how to deal with letters and notices delivered by hand by members of the public or a situation of counter personnel being unfamiliar with the Police station’s existing SOP. A second attempt made on 7th June S/N Watrl6i0qNqtG5Xn1Jyg GUAMAN NO: WA-21NCvC-113-10/2022 2022, which is undisputed, resulted in the 1st Plaintiff’s s.9(1) notification being served by leaving it at the Police station.

Now, s.14(1) of the Act requires the OCPD to respond within 3 days of his receipt of a S.9(1) notification. In this case, the 1st Defendant, in his capacity as the OCPD of Dang Wang, did respond with his letter dated 10th June 2022 within 3 days from 7th June 2022. In his letter, the OCPD referred to s.10(c) of the PAA 2012 that makes it mandatory for the s.9(1) notification to be accompanied by a consent letter from the owner or occupier of the place of assembly, i.e. where the assembly is to take place.

I note that S.11 of the PAA 2012 states as follows: “The organiser of an assembly, other than a religious assembly or a funeral procession or an assembly held at a designated place of assembly, shall obtain the consent of the owner or occupier of the place of assembly for it to be used for the purpose of the assembly.”

Even though under the PAA 2012, no permit is required from the Police for an assembly to be held, and only a notification is required to be given, in my view, such notification would be valid if and only if it complies with s.10 of the said Act. S.10(c) contains a requirement for the s.9 notification to be accompanied by a copy of the consent of the owner or occupier of the place of assembly. Learned counsel on both sides have differing views as to whether the consent of DBKL was required to use the Padang Merbok Public Carpark for the assembly planned by the Plaintiffs. S/N Watrl6i0qNqtG5Xn1Jyg GUAMAN NO: WA-21NCvC-113-10/2022 46. The facts show that the Plaintiffs intended to organise an assembly to be attended by approximately 500 persons with speeches to be delivered. It was not a small event to be attended by a handful of people. I am of the view that the learned SFC had effectively used an appropriate illustration to rebut the submission of learned counsel for the Plaintiffs that no permission is required from DBKL. He envisaged a scenario of members of the public freely organising wedding ceremonies and sports carnivals at the Padang Merbok Carpark without the consent of DBKL and causing chaos to ensue.

This Court may not turn a blind eye to the fact that pursuant to Section 63 of the Local Government Act 1976, DBKL has the general control and care of the Padang Merbok Public Carpark. Even though the Padang Merbok Public Carpark is a carpark open to the public, it is a place that requires maintenance and supervision. S.63 states: “A local authority shall have the general control and care of all places within the local authority area which have been or shall be at any time set apart and vested in the local authority for the use of the public or to which the public shall at any time have or have acquired a common right”.

Since DBKL has a statutory duty to control and care for the Padang Merbok Carpark, it could be held liable for any accidents within that public carpark which are caused by their negligence (if any) in upkeeping it. Therefore, I agree with the learned SFC that DBKL is, for all intents and purpose, the occupier of Padang Merbok Carpark for the purpose of s.10(c) of the PAA 2012.

I am of the view that even though the Padang Merbok Carpark is a carpark open to the public, consent from DBKL was required due to two reasons. First, the Plaintiffs had planned to use it as a meeting place and to set up a stage there for them to deliver speeches. In other words, the Padang Merbok Carpark was not to be used for its designated purpose as a carpark but as premises for an event organised by the 1st Plaintiff. Thus, I have to agree with submissions by the learned SFC that if no permission is required from the occupier cum legal guardian of the public carpark, it would mean that it would be open – free of charge – to members of the public to hold private events there as and when they please, including wedding functions, sports carnivals and concerts.

The second reason for my ruling that the consent of DBKL is required is because the term “assembly” as defined in s.3 of the PAA 2012 specifically refers to an intentional and temporary assembly of a number of persons in a “public place” while s.11 makes it mandatory for the consent of the owner or occupier of the place of assembly to be obtained. Consent is unrequired if and only if it is a religious assembly or a funeral procession or an assembly held at a place gazetted by the Minister as a “designated place of assembly” under s.25 of the PAA 2012. Since Padang Merbok Carpark is not a gazetted designated place of assembly, it was mandatory for the Plaintiffs, who had planned to use the Padang Merbok Carpark for an assembly, to apply for DBKL’s consent to fulfil the requirement of s.11 of the PAA 2012 S/N Watrl6i0qNqtG5Xn1Jyg GUAMAN NO: WA-21NCvC-113-10/2022 51. In my judgment, a s.9(1) notification must be a notification that complies with the requirements of s.10 of the PAA 2012. Thus, the OCPD (1st Defendant in this case) did not err in holding on to the s.9(1) notification – which was short of a consent letter from DBKL – and sending his letter on 10th June 2022 to the 1st Plaintiff to request the submission of a consent letter.

It is undisputed that the Plaintiffs did subsequently obtain a consent letter from DBKL and forwarded it to the 1st Defendant on 14th June

Upon receipt of this letter, the 1st Defendant called a meeting with the Plaintiffs, which was held at the Dang Wangi Police Station on 15th June 2022. Suffice to say that there was no amicable agreement between the parties as to how the assembly and march scheduled on 17th June were to be conducted.

In this case, the Plaintiffs complied with s.10 of the PAA 2012 only on 14th June 2022 when they submitted DBKL’s consent letter to the office of the 1st Defendant. Since the 1st Defendant’s letter dated 15th June 2022 was issued to the Plaintiffs within 3 days of all relevant s.10 notification documents being submitted to make the s.9(1) notification complete, I find that there was no delay on the part of the 1st Defendant in complying with s.14(1) of the Peaceful Assembly Act 2012 by issuing his letter on 15th June 2022. For reference, the relevant part of s.10(c) is set out below: “The notification made under subsection 9(1) shall-

be in the form in the Fourth schedule;

be signed by the organizer;

be accompanied by a copy of the consent of the owner or occupier of the place of assembly, if applicable;”

Next, I move on to consider the restrictions and conditions imposed in the OCPD’s letter dated 15th June 2022. I agree with submissions by learned counsel for the Plaintiffs that in June 2022, the manner in which the Director-General of Health regulated permitted activities was through a negative list of prohibited activities in their SOP published on the website of the Majlis Keselamatan Negara (“MKN”). Further, on 1st April 2022, the Director General of Health had issued a SOP to drop all the negative list of prohibited activities, which took effect from 15th May 2022, to allow the public to gather outdoors without facemasks. If an activity is not contained in the negative list, such activity is deemed permitted without any prior approval. The outdoor activities of the assembly and march planned by the Plaintiffs were not activities prohibited as at 17th June 2022.

Therefore, it is the finding of this Court that the 1st Defendant, in his capacity as the OCPD of Dang Wangi Police District, had acted ultra vires in imposing a prohibition of the march by relying on Regulation 6(I) of the Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (National Recovery Plan) (Transition Phase To Endemic) Regulations 2022 – as stated in his letter of 15th June 2022 absolutely prohibiting a march from being held by the 1st Plaintiff.

I find that the evidence adduced in this case proved that the assembly was allowed to take place on 17th June 2022, a temporary S/N Watrl6i0qNqtG5Xn1Jyg stage was set up, and speeches were delivered. The further issues in dispute relate to the conduct of the 1st Defendant and his subordinates on that day in enforcing the conditions imposed in the 1st Defendant’s letter dated 15th June 2022 to prevent the Participants of the assembly from marching to Parliament on 17th June 2022.

The Defendants’ evidence was that the plastic barriers at the said carpark were left there by some contractors who carried on works in the vicinity, and the Police and the participants of the assembly were separated by the plastic barriers. Regardless of who placed those plastic barriers there, the undisputed facts are that there was no physical contact between the Police and the Participants at the assembly, and no arrest was made by the Police.

The 1st Defendant testified that he was not physically present at the assembly on 17th June 2022 but was constantly in touch with the 2nd Defendant who was the commanding officer present at the site of the assembly. They take the stand that the Participants were prohibited only from marching to Parliament but were not restrained from leaving the Padang Merbok Carpark.

There was no evidence adduced by the Plaintiffs as to whether the Participants would have been allowed to leave the Padang Merbok Carpark if he or she had decided to leave the assembly for the purpose of going elsewhere and not to march to Parliament. S/N Watrl6i0qNqtG5Xn1Jyg GUAMAN NO: WA-21NCvC-113-10/2022 60. The evidence of the 2nd Plaintiff (the President of the Bar at the material time) under cross-examination confirmed that it was not a case of the 2nd Defendant and his subordinates using force to confine the Participants to a corner of the Padang Merbok Carpark. The evidence of witnesses from both sides confirmed that there were indeed dialogues being held, whereby the 2nd Defendant was trying to dissuade all the Participants from marching to Parliament by offering to allow, initially just 10 of the Participants, then 20, and finally 30 of them to march to Parliament. The following screenshots of the Notes of Evidence are relevant: S/N Watrl6i0qNqtG5Xn1Jyg GUAMAN NO: WA-21NCvC-113-10/2022 61. The evidence of the Plaintiffs was that in response to the 2nd Defendant’s “offer” to allow up to 30 of the Participants to Parliament, all the Participants spoke with one voice, steadfast in adhering to their plans afoot, to march to Parliament on foot. The sentiments of the Participants could be verbalised as: “We ain’t going home before we march to Parliament”. This could be gleaned from the oral evidence of the 2nd Plaintiff, as shown in the following screenshots of the Notes of Evidence:

On the law applicable to the Plaintiffs’ allegation of false imprisonment, I find guidance in the judgment of the Federal Court in Hassan bin Marsom & Ors v Mohd Hady bin Ya’akop (supra) which held as follows: [130] ‘False imprisonment may be defined as an act of the defendant which directly and intentionally or negligently causes the confinement of the plaintiff within an area delimited by the defendant’ (The Law of Torts by Harry Street (7th Ed) at p 23; see also The Law of Torts in Singapore by Gary Chan Kok Yew and Lee Pey Woan (2nd Ed) at 02.036). ‘… partial restriction of freedom S/N Watrl6i0qNqtG5Xn1Jyg of movement is not an imprisonment’ (Cheow Siong Chin v Menteri Dalam Negeri, Malaysia & Ors [1985] 2 MLJ 95 per Abdoolcader SCJ, delivering the judgment of the court). ‘False imprisonment is any total restraint of the liberty of the person, for however short a time, by the use or threat of force or by confinement, without lawful cause.”

The definition and scope of “false imprisonment” are also discussed in the Supreme Court judgment of Cheow Siong Chin v Menteri Dalam Negeri, Malaysia & Ors [1985] 2 MLJ 95 – which was approved by the Federal Court in Hassan bin Marsom & Ors v Mohd Hady bin Ya’akop (supra). Abdoolcader SCJ writing for the Supreme Court held: “The reasoning in the cases we have referred to would appear to be directly in line with that in Bird v Jones (1845) 7 QB 742; 115 ER 668, a false imprisonment action in which it was held that partial restriction of freedom of movement is not an imprisonment, where Lord Coleridge, C.J., said (at page 744): “And I am of the opinion that there was no imprisonment. To call it so appears to me to confound partial obstruction and disturbance with total obstruction and detention. A prison may have its boundary large or narrow, visible and tangible, or though real, still in the conception only; it may itself be moveable or fixed: but a boundary it must have; and that boundary the party imprisoned must be prevented from passing; he must be prevented from leaving that place, within the ambit of which the party imprisoning would confine him, except by prison-breach. Some confusion seems to me to arise from confounding imprisonment of the body with mere loss of freedom: it S/N Watrl6i0qNqtG5Xn1Jyg is one part of the definition of freedom to be able to go whithersoever one pleases; but imprisonment is something more than the mere loss of this power; it includes the notion of restraint within some limits defined by a will or power exterior to our own.”

The point of law of relevance from the two authorities cited above is that the Federal Court in Hassan bin Marsom & Ors v Mohd Hady bin Ya’akop (supra) agrees with the judgment of Abdoolcader SCJ in Cheow Siong Chin v Menteri Dalam Negeri, Malaysia & Ors (supra) that partial restriction of freedom of movement is not an imprisonment, and that there must be total restraint of liberty of the complainant.

Factually, as pointed out earlier above, there was no evidence of any of the Participants requesting to be allowed to leave the assembly to go elsewhere but was restrained from doing so. The Plaintiffs admitted that there was no physical contact between the Police and the Participants at the assembly, and no arrest was made by the Police. There is not a single one of the Participants who could testify of having being cornered by a few Police officers at a particular place within the said carpark, so as to have been temporarily imprisoned. The Participants were able to move about freely within the Padang Merbok Carpark while the 2nd Defendant was continuing his efforts to negotiate with the Plaintiffs.

As the chronology of events shows, the Plaintiffs’ speeches ended around 10.35am, and the Deputy Minister (as the representative of the Prime Minister) turned up at the Padang Merbok Public Carpark S/N Watrl6i0qNqtG5Xn1Jyg by 11.05am, i.e. within approximately 30 minutes to receive the memorandum from the Plaintiffs. After the 2nd Plaintiff handed the said memorandum to the Deputy Minister who gave a speech apologising to the Participants, the Participants of the assembly dispersed peacefully without any hindrance by the 2nd Defendant and/or his subordinates.

I find that during the short period when the participants of the assembly were blocked by the Police from marching to Parliament before the arrival of the Deputy Minister, their movement was only partially restricted. Thus, I am bound to apply Hassan bin Marsom & Ors v Mohd Hady bin Ya’akop (supra) and Cheow Siong Chin v Menteri Dalam Negeri, Malaysia & Ors (supra) which held that partial restriction of freedom of movement is not imprisonment, and to dismiss the Plaintiffs’ prayer for a declaration of false imprisonment.

Next, on the Plaintiffs’ plea on tort of misfeasance in public office, the judgment of the Federal Court in Tony Pua Kiam Wee v. Government of Malaysia [2019] 12 MLJ 1 is binding on this Court. Tort of misfeasance in public office would be established if there is “abuse of public power or authority by a public officer who was recklessly indifferent as to the limits of his public power or authority, and who acted with reckless indifference to the probability of harming the plaintiff”. Now, the 1st Defendant, being an officer of one of the public services established under Article 132(1)(d) of the Constitution, is no doubt a public officer. He did make a decision on 15th June 2022 to prohibit a march to Parliament. However, his reliance on Regulation 6(I) of S/N Watrl6i0qNqtG5Xn1Jyg the Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (National Recovery Plan) (Transition Phase To Endemic) Regulations 2022 was due to his misinterpretation of the law. Is the 1st Defendant’s said decision – which was due to his misinterpretation of the law – an abuse of public power or reckless indifference that meets the threshold of the tort as defined in Tony Pua Kiam Wee (supra)?

It is noteworthy that the Plaintiffs complied with s.10 of the PAA 2012 only on 14th June 2022 when they submitted DBKL’s consent letter to the office of the 1st Defendant. The 1st Defendant did respond expeditiously by issuing his letter on 15th June 2022 – which contains an ultra vires condition prohibiting the march proposed by the Plaintiffs. Given that the 1st Defendant had little time to consult the Attorney-General Chambers within that short span of time then, I would hold, on a balance of probabilities, that the 1st Defendant did not commit any misfeasance in public office in imposing that prohibition in his letter the next day, i.e. on 15th June 2022 and/or in enforcing the prohibition on 17th June 2022. Conclusion 70. Under s.15 of the PAA 2012, the OCPD can impose conditions but not a total prohibition that defeats the purpose of the amendments made to the said Act by Act 1600. The amendments had, inter alia, deleted the prohibition against street protest. Street protests are to be allowed subject to reasonable conditions being imposed. S/N Watrl6i0qNqtG5Xn1Jyg GUAMAN NO: WA-21NCvC-113-10/2022 71. Even though s.12(3) of the PAA 2012 requires the 1st Defendant (as the OCPD) to take into account the concerns and objections received from people who has interests, i.e. the occupants of neighbouring premises, he should have imposed restrictions and conditions instead of a total prohibition of the march. As an example, the OCPD could have imposed a condition that the Participants march in 2 rows on the public road to Parliament or such other conditions that ensure the safety of the Participants as well as to avoid any nuisance to the people with interest. The 1st Defendant should have facilitated the march by controlling traffic to Parliament and ensuring the safety of the Participants. Thus, the 1st Defendant, as OCPD of Dang Wangi, had obviously acted ultra vires in absolutely prohibiting the march.

Since the Plaintiffs were allowed to hold the assembly on 17th June 2022 at the Padang Merbok Public Carpark, to deliver speeches there and to deliver the memorandum to the representative of the Prime Minister at the said venue, I find that the Plaintiffs had in fact achieved almost the whole objective of the assembly on 17th June 2022 sans the march. Therefore, in fairness, there should be no award for Special Damages because those expenses claimed by the Plaintiffs as Special Damages had served their purpose at the assembly.

In view of the finding of facts and law that I have made, I am of the view that a Declaration ought to be issued by this Court to declare that the 1st Defendant had, in his capacity as the Officer in charge of the Dang Wang Police District, acted ultra vires on 15th June 2022 in S/N Watrl6i0qNqtG5Xn1Jyg S/N Watrl6i0qNqtG5Xn1Jyg Counsel for the Plaintiffs: New Sin Yew (Lee Yee Woei and Izni Syazwani with him) SOLICITORS FOR THE PLAINTIFFS: MESSRS AMERBON Advocates & Solicitors D3-5-1 Solaris Dutamas, No. 1 Jalan Dutamas 1, 50480 KUALA LUMPUR. Counsel for the Defendants: SFC Tuan Haji Muhammad Al-Saifi Haji Hashim (FC Asyraf Abd Hamid with him) SOLICITORS FOR THE DEFENDANTS: JABATAN PEGUAM NEGARA, MALAYSIA Aras 6, Bahagian Guaman, No. 45, Persiaran Perdana, Presint 4, Pusat Pentadbiran Kerajaan Persekutuan, 62100 PUTRAJAYA. S/N Watrl6i0qNqtG5Xn1Jyg

Tony Pua Kiam Wee v. Government of Malaysia [2019] 12 MLJ 1.

Shahrudi Abidin v Datuk Wira Abu Seman Yusop Timbalan Menteri Dalam Negeri Kementerian Dalam Negeri Malaysia & Ors [2021] 1 CLJ 52.

Hassan bin Marsom & Ors v Mohd Hady bin Ya’akop [2018] 5 MLJ

141.

Cheow Siong Chin v Menteri Dalam Negeri, Malaysia & Ors [1985] 2 MLJ 95. LEGISLATIONS’ REFERRED TO:

Section 41 Legal Profession Act 1976.

Article 132(1)(d) Federal Constitution.

Section 5 Government Proceedings Act 1956.

Section 2 and 63 Local Government Act 1976.

Sections 3, 4, 9(1), 10(c), 11, 12(3), 14(1) and 15 Peaceful Assembly Act 2012. S/N Watrl6i0qNqtG5Xn1Jyg