Hassan Bin Marsom v Mohd Hady Bin Ya'Akop (01(F)-27-09/2016(M))

1 DALAM MAHKAMAH PERSEKUTUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: 01(f) -27-09/2016(M) BETWEEN

1. Hassan bin Marsom 2. Leong Mun Choon 3. Mannimannen a/l Ramaya 4. Jay January Sio Wou 5. Muhammad Adnan bin Abdullah 6. Ketua Polis Melaka 7. Kerajaan Malaysia ... APPELLANTS AND Mohd Hady bin Ya’akop ... RESPONDENT CORAM Richard Malanjum CJSS Hasan Lah FCJ Balia Yusof FCJ Aziah Ali FCJ Jeffrey Tan FCJ JUDGMENT OF JEFFREY TAN FCJ 2

1. I must thank my learned brother, Balia Yusof FCJ, for the benefit of having had sight of his draft judgment. I accept all facts set out so assiduously by my learned brother, Balia Yusof FCJ. I entirely agree that the instant remand order was obtained without reasonable cause, and without compliance with section 117 of the Criminal Procedure Code. But yet I am not of the view that it was false imprisonment. Rather than false imprisonment, I believe that it was malicious prosecution, for the following reasons.

2. Malicious prosecution is not false imprisonment. “There is no similitude or analogy between false imprisonment and malicious prosecution. The consequence of the former is illegal detention, the institution of the latter may on the face of it be manifestly legal but is without probable cause and with malicious motive (33 E & E Digest 465)” (Wong Kok San v WH Salt [1952] 1 MLJ 204 per Callow J).

3. “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 Edition at page 23; see also The Law of Torts in Singapore by Gary Chan Kok Yew and Lee Pey Woan 2nd Edition at 02.036). “ … partial restriction of freedom 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 3 however short a time, by the use or threat of force or by confinement, without lawful cause. As stated in Halsbury's Laws of England, 3rd edition, Volume 38 page 765: "The gist of the action of false imprisonment is the mere imprisonment; the plaintiff need not prove that the imprisonment was unlawful or malicious but establishes a prima facie case if he proves that he was imprisoned by the defendant; the onus then lies on the defendant of proving a justification … It would seem clear on the authority of Warner v Riddiford that the questions which call for consideration in an action for false imprisonment are: (1) whether there was any imprisonment; (2) if so, by whom it was committed; and Daud [1963] 1 MLJ 209 per Gill J, as he then was).

4. “Malicious prosecution is an abuse of the legal system. An action in tort for malicious prosecution may be brought once criminal proceedings have been instigated: without reasonable or probable cause (QIW v Felview Pty Ltd [1989] 2 Qd R 245); have failed (Everett v Ribbands [1952] 2 QB 198); and have caused damage to the accused: Berry v British Transport Commission [1962] 1 QB 306. If no adequate justification for the proceedings is put forward then malicious intent may be implied” (Lexisnexis Dictionaries, Words, Phrases and Maxims [M0055]. “An action or proceeding will be an abuse of process if there is no basis or foundation for it or where it used for an extraneous purpose” (The Law of Torts in Singapore supra at 17.002). “Malice on the 4 defendant’s part, absence of reasonable cause for the prosecution and actual damage are necessary (for a recent decision see Kable v State of NSW [2012] NSWCA 243). False imprisonment requires none of these” (Tort Law Principles by Bernadette Richards, Melissa De Zwart, and Karinne Ludlow at page 70).

5. “False imprisonment arising from an improper arrest of a suspected criminal bears a resemblance to the wrong of malicious prosecution which consists in the abuse of the legal process by maliciously and without reasonable and probable cause instituting a groundless criminal prosecution. The distinction between them lies in whether the restraint on the plaintiff’s liberty is directly imposed by the defendant himself, acting either personally or by his agent, or whether there is interposed the exercise of an independent discretion” (The Law of Torts by Fleming 1957 Publication at page 38).

6. Halsbury’s Laws of England 5th Edition Volume 97 at paragraph 544 thus distinguished false imprisonment from malicious prosecution: “The imprisonment for which the claim for false imprisonment lies must be the act of the defendant or of some one for whose acts he is liable, or the result of his ordering, procuring, instigating or actively inciting the arrest. Merely providing a police constable with information which would justify an arrest, and leaving him to exercise a discretion whether or not to effect the arrest, is insufficient to found a liability in false imprisonment, but if the information is false or given 5 maliciously the giver may be regarded as the initiator of proceedings for the tort of malicious prosecution. No claim for false imprisonment otherwise lies against a person who takes proceedings before a magistrate or judge in respect of imprisonment which is caused by the order of the magistrate or judge; the remedy, if any, of the person imprisoned in such a case, is a claim for malicious prosecution against the person who instituted the proceedings.” Thus, in a malicious prosecution case, the plaintiff must prove that the defendant lacked reasonable cause for the prosecution whilst in false imprisonment it is the defendant who must prove reasonable cause” (Civil Actions against the Police by Richard Clayton and Hugh Tomlinson, 1987 Sweet & Maxwell, at page 246).

8. “If the defendant wrongly gives the plaintiff into custody and then the magistrate remands the plaintiff the defendant is answerable in false imprisonment for damages up to the point of the judicial remand. Once a judicial act interposes, liability for false imprisonment ceases. It becomes important at this stage to distinguish false imprisonment from malicious prosecution, a tort concerned with the abuse of the judicial process, and which, unlike false imprisonment, calls for proof of malice and of abuse of reasonable cause. Therefore, if A wrongfully prefers a complaint 6 against B before a magistrate who then issues a warrant or tries him forthwith or remands him, A has not committed the tort of false imprisonment, even if the magistrate has no jurisdiction” (The Law of Torts by Harry Street 7th edition at page 27; see also Torts: Commentary and Materials 11th edition by Carolyn Sappideen, Prue Vines and Penelope Watson at page 60). “A person who brings about an arrest by merely setting in motion the formal process of law, as by making a complaint before a justice of the peace or applying a warrant is not liable for false imprisonment because courts of justice are not agents of the prosecutor and their acts are not imputable to him. He is liable, if at all, only for the misuse of legal process by procuring an arrest for an improper purpose for which the appropriate remedy is an action for malicious prosecution. This rule provides a valuable protection against liability for error in the course of legal proceedings” (The Law of Torts by Fleming at page 38).

9. Civil Actions against the Police supra at page 116 observed that “where an imprisonment is effected through judicial proceedings, liability for false imprisonment virtually disappears”, on account of the following dicta of Willes J in Austin v Dowling [1870] LR 5 CP 535 at 540: “The distinction between false imprisonment and malicious prosecution is well illustrated by the case where the parties being before a magistrate, one makes a false charge against another, whereupon the magistrate orders the person to be charged and taken 7 into custody until the matter is investigated. The person making the charge is not liable for the action because he does not set a ministerial officer in motion but a judicial officer is interposed between the charge and the imprisonment.”

10. “Consequently, where the plaintiff is wrongfully arrested without a warrant and remanded into custody by the magistrates he can only maintain an action for false imprisonment up to the time of the remand. Thereafter, he must sue for malicious prosecution. Even if the court acts without jurisdiction the instigator of the complaint cannot be liable for false imprisonment … ” (Civil Actions against the Police by Richard Clayton and Hugh Tomlinson supra at page 116; see also The Law of Torts by Fleming at page 39).

11. It should be highlighted that the common law rule stated in Austin v Dowling is still good law (see Zenati v Comr of Police of the Metropolis (CA) [2015] 2 WLR 1563 at 1580; Austin v Dowling was last applied in Coghlan v Chief Constable of Cheshire Police and others [2018] EWHC 34).

12. In Zenati, the claimant was remanded in custody on 10.12.2010 by magistrates on suspicion of that his British passport was forged. That passport was genuine. The claimant was released on bail on 9.2.2011. The claimant brought claims for damages against the Commissioner of Police for the Metropolis and the Crown Prosecution Service for (i) breach of his rights guaranteed by article 5 of the Convention for the Protection of 8 Human Rights and Fundamental Freedoms on the basis (a) from 19.1.2011 until 9.2.2011 his detention had been contrary to article 5.1(c) since there during that period there had been no reasonable suspicion that he had committed an offence, and (b) from 10.12.2010 until 9.2.2011 his detention had been unreasonably long, contrary to article 5.3, since the defendants had failed to act with special diligence in investigating the offence; and (ii) the tort of false imprisonment from 19.1.2011 until 9.2.2011. The judge granted the defendants’ application to strike out the claims against both defendants. On appeal, the English Court of Appeal allowed the appeal in relation to the article 5 claim but dismissed the appeal in relation to the false imprisonment claim.

13. Lord Dyson MR (Lewison and McCombe LJJ in agreement) held that there is no support in any jurisdiction for the submission that a breach of article 5 results in liability for the tort of false imprisonment: “53 But there is no support in any jurisprudence for the submission that a breach of article 5 results in liability for the tort of false imprisonment. There is support for the contrary proposition. Thus in R (Faulkner) v Secretary of State for Justice and another [2013] 2 AC 254 Lord Reed (with whom Lord Neuberger PSC, Lords Mance and Kerr agreed) said at para 13.1: ‘A prisoner whose detention is prolonged as the result of a delay….in violation of article 5(4) of the Convention, is not a victim of false imprisonment.’ 54 In any event, I do not accept that article 5 requires the law of false imprisonment to be adapted in the way 9 suggested by Mr Southey. Article 5(5) provides a right to compensation in the event of a breach of article 5. There is no compelling need to change our long established law of false imprisonment to reflect article 5. The analogy with Campbell is unconvincing. The lack of a right of privacy was a real gap in our domestic law. 55 Nor is it relevant to the common law rule whether the court decides to remand a person in custody without a full appreciation of all the relevant facts. As Mr Johnson points out, the relevant passage in Austin explicitly contemplates that there has been malice on the part of the person making the false charge. Even where the court is misled as to the true facts, that does not mean that it does not exercise its indepedent judgment in deciding whether or not to order an individual to be detained. 56 In my judgment, therefore, the claim in false imprisonment is bound to fail.”

14. In short, a judicial order provides the defence of lawful authority for the detention or imprisonment (see Hepple and Matthews' Tort Law: Cases and Materials by David Howarth, Martin Matthews, Jonathan Morgan, Janet O'Sullivan, Stelios Tofaris (2016 Publication) at page 750).

15. In the instant case, the Respondent was remanded under the judicial order of a magistrate. The remand order might have been wrongly applied. It might even have been that there was no reasonable cause or basis for a remand order. The remand order might have been applied and or issued without compliance with section 117 of the Criminal Procedure Code. The remand 10 order might even have been set aside. But that, with respect, was all inconsequential in a claim for false imprisonment, as the following authorities amply demonstrate.

16. In West v Smallwood 3 M & W 418; 150 ER 1208, the defendant went before a magistrate and laid information against the plaintiff. The magistrate issued a warrant. The plaintiff was arrested. The complaint was heard and dismissed. At the trial of the action for trespass and false imprisonment, Lord Abinger C.B. was of the opinion that the action was misconceived. In the application for a re-trial, Lord Abinger C.B. said: “I retain the opinion which I expressed at the trial. Where a magistrate has a general jurisdiction over the subject matter, and a party comes before him and prefers a complaint, upon which the magistrate makes a mistake in thinking it a case within his authority and grants a warrant which is not justiciable in point of law, the party complaining is not liable as a trespasser, but the only remedy against him is by an action upon the case, if he has acted maliciously.”

17. Bolland B., who agreed with Lord Abinger C.B., said, “In the case of an act done by a magistrate, the complainant does no more than lay before a Court of competent jurisdiction the grounds on which he seeks redress, and the magistrate, erroneously thinking that he has authority, grants the warrant”.

18. In Brown v Chapman (1848) 6 C.B. 365; 136 ER 1202, the plaintiff voluntarily went before a magistrate to meet a charge 11 of embezzlement which was there about to be made against him by the defendant. The magistrate declined to entertain the matter, unless a charge was formally made. The defendant said “Well, then, I charge him with embezzling 30s”. The plaintiff was then ordered by one of the constables in attendance to go into the dock. The charge was gone into and the plaintiff held to bail. Coltman J held that the act of the defendant amounted to no more than calling upon the magistrate to exercise his jurisdiction, and consequently, that he was not liable to an action of trespass, for the imprisonment of the plaintiff: “If an individual prefers a complaint to a magistrate, and procures a warrant to be granted, upon which the accused is taken into custody, the complainant, in such case, is not liable in trespass for the imprisonment; and that, even although the magistrate had no jurisdiction. According to the case of West v Smallwood (3 M. & W. 418), a party who shall make a direct application to a magistrate for a warrant, that another may be taken into custody, is deemed thereby only to make an appeal to the magistrate to exercise his jurisdiction: and the imprisonment is referred to the magistrate’s authority, so as to exempt the complainant from all liability in trespass: and what takes place in the presence of the magistrate, ought to be referred to the exercise of his authority, as in Barber v. Rollinson (1 C. & M. 330). In that case, the plaintiff having been discharged from criminal custody by a magistrate, was leaving the police-office, when the defendant said – “I have another charge against him, for forgery;” upon which the plaintiff was again taken, and placed at the bar: and, upon the trial before Lord Lyndhurst, in an action of trespass in respect of this second imprisonment, the plaintiff was nonsuited; 12 and, upon motion to set aside the nonsuit, it was held that the acts of the defendant were part of the proceedings before the magistrate, for which the defendant could not be held liable in trespass; that the taking could not be considered as the act of the defendant, who had only put the law in motion, for which he might be liable in case.”

19. In Lock v Ashton (1848) 12 QB 871; 116 ER 1097, the defendant had given the plaintiff into custody and had him taken to a police officer on a charge of felony. The magistrate heard the charge and remanded the prisoner. On a subsequent examination he was discharged, it being discovered that the charge had been made under a mistake. In the action for trespass and false imprisonment, Lord Denman C.J. held that “The verdict in this case cannot be sustained, the action being trespass and the jury having given damages, not only for the trespass in arresting, but for the remand, which was the act of the magistrate”.

20. Lock v Ashton was applied in Harnett v Bond [1924] 2 KB 517 (CA) and [1925] AC 669 (HL), where a sane man was detained in various asylums for nine years. The question was whether the doctor who first caused him to be unlawfully detained could be held liable for the entire period of detention, even though the man was subjected to various subsequent assessments by other doctors. The trial judge directed the jury in accordance with the direct consequences test, advising them that it was open to them to hold that the failure by intervening doctors to appreciate that the claimant should not be further detained did not break the 13 causal link between the first doctor’s unlawful act and the nine-year detention. This is what the jury held but the Court of Appeal reversed the decision and the House of Lords confirmed the Court of Appeal’s judgment. In the Court of Appeal, Scrutton LJ expressed himself as follows: “But it appears to me that when there comes in the chain the act of a person who is bound by law to decide a matter judicially and independently, the consequences of his decision are too remote from the original wrong which gave him a chance of deciding. It was on this principle that in Lock v Ashton it was decided that a defendant who had wrongfully taken a person into custody and brought him before a magistrate was not liable for the subsequent remand by the magistrate, which was a judicial act.”

21. Lock v Ashton was also applied in Terrence Calix v Attorney General of Trinidad and Tobago [2013] UKPC 15, where the appellant was arrested on suspicion of being the person who robbed GN and raped JF. At an identification parade, the appellant was picked out by both GN and JF as the man who had committed the crimes. The appellant was acquitted of both charges. The appellant instituted proceedings for malicious prosecution. Acting Judge Aboud J awarded compensation of $38,000.00 to the appellant. In an ex tempore judgment, the Court of Appeal dismissed the appellant’s appeal. The Court of Appeal held that the trial judge had correctly assessed compensation for the damage to the appellant’s reputation. The Court of Appeal refused 14 to award any compensation for the period of incarceration of 115 days; bail, which had granted, was not assessed by the appellant. On further appeal to the Privy Council, and in relation to the claim for compensation for loss of liberty, Lord Kerr, who delivered the judgment of the Board, said that a judicial act precludes liability in false imprisonment: “The respondent did not seek to uphold the Court of Appeal’s conclusion that the grant of bail was a judicial act which became the cause of the appellant’s detention. A claimant’s failure to take a grant of bail (which is the avowed basis on which the appellant should not recover compensation for loss of liberty) is not a ‘judicial act’. In any event, although a judicial act precludes liability in false imprisonment, it does not relieve the prosecutor of liability in malicious prosecution: the prosecutor remains liable for the damage caused by his setting the prosecution in motion – see Lock v Ashton (1848) 12 QB 871 (116 ER 1097).”

22. Clerk & Lindsell on Torts 21st Edition at 15-46 concluded that “An order of a court may be set aside on the ground of error, as a matter of favour or because it was irregularly obtained. There can only be error where there had been a judicial decision and anything done under a judicial decision cannot be a ground of trespass against a party, because it is not his act but the act of the court. It is obvious that, where an order is set aside as a matter of favour, the order is admitted to have been in itself a proper one, and it therefore gives validity to all proceedings taken while it was still in force”. 15

23. Salmond & Heuston on the Law of Torts 21st Edition at pages 126 – 127 was more direct: “No action for false imprisonment will lie against a person who has procured the imprisonment of another by obtaining against him a judgment or other judicial order of a court of justice even though that judgment or order is erroneous, irregular, or without jurisdiction. The proper remedy in such a case is an action for malicious prosecution or other malicious abuse of legal process. In an action of that description that plaintiff can succeed only if he proves both malice and the absence of any reasonable and probable cause for the proceedings complained of;

whereas in an action for false imprisonment, just as in all other cases of trespass to person or property, liability is created, in general, even by honest and inevitable mistake. The rule, therefore, that no action for false imprisonment will lie against a litigant in respect of judicial imprisonment procured by him is a valuable protection against liability for error in the course of legal proceedings. Accordingly, if the plaintiff has been wrongly arrested without warrant and taken before a magistrate, who remands him in custody, he must sue in respect of his imprisonment before the remand in an action for false imprisonment, but in respect of that which is subsequent to the remand in an action for malicious prosecution. The reason for this distinction is that a man cannot be sued in trespass (and so not for false imprisonment) unless he himself, whether personally or by his agent, has done the act complained of. A court of justice, however, is not the agent of the litigant but acts in the exercise of its own independent judicial discretion. The litigant can be charged only with having maliciously and without reasonable cause exercised his rights of setting a court of justice in motion. This exemption of the litigant from any liability for false imprisonment extends even to 16 cases in which the court ordering the imprisonment has acted without jurisdiction. It is the right of every litigant to bring his case before the court, and it is for the court to know the limits of its own jurisdiction and to keep within them.”

24. What was only pertinent was whether the Respondent was remanded under lawful authority at the material time of the remand. Since the Respondent was remanded under a judicial order, it could not be false imprisonment.

25. False imprisonment is a common law tort. Maybe, violation of Article 5 of the Federal Constitution could justify an award of exemplary damages (see the views expressed by Lord Dyson and Lord Collins on awards of vindicatory damages in R (WL (Congo)) v Home Secretary (SC(E)) [2011] 2 WLR 671 at paras 97 - 101, and 222 - 237). But no violation of Article 5 would turn malicious prosecution into false imprisonment. They are conceptually distinct. One is malice based, while the other is not. Given the interposition of a judicial order for the remand of the Respondent, the tort of false imprisonment was not available. But since the Respondent was remanded without reasonable cause, it was malicious prosecution. But alas, there was no claim for malicious prosecution. I would therefore apply Austin v Dowling and Zenati and dismiss the claim for false imprisonment. Save for that, I would allow the other claims and dismiss the appeal with respect to them. 17 Dated this 7th day of June 2018. Tan Sri Jeffrey Tan Hakim Mahkamah Persekutuan Malaysia COUNSEL For the Appellants : Kamal Azira Hassan Zureen Elina Hj Mohd Dom Jabatan Peguam Negara, Putrajaya For the Respondent : J Amardas (Terence Chan Yoong Tian with him) Solicitors: Tetuan K P Ng & Amardas Salim Bashir (Amicus Curiae) Bar Council, Malaysia