Ketua Polis Daerah Shah Alam v Nor Azura binti Amzah (No. K/P: 700827-10-5108) (Pentadbir Harta Pusaka Si Mati Allahyarham Aminulrasyid bin Amzah) (B-01(NCVC)(W)-117-04/2016)

KERAJAAN MALAYSIA … PERAYU-PERAYU

NOR AZURA BINTI AMZAH (NO. K/P: 700827-10-5108) (Pentadbir Harta Pusaka Si Mati Allahyarham AMINULRASYID BIN AMZAH)

NORSIAH BT. MOHAMAD (NO. K/P: 491201-10-6258) (Ibu Sah Dan Tanggungan Si Mati Allahyarham AMINULRASYID BIN AMZAH) …RESPONDEN-RESPONDEN DIDENGAR BERSAMA: DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: B-02(NCVC)(W)-866-05/2016 ANTARA KOPERAL JENAIN BIN SUBI … PERAYU DAN Page 2 of 9

NOR AZURA BINTI AMZAH (NO. K/P: 700827-10-5108) (Pentadbir Harta Pusaka Si Mati Allahyarham AMINULRASYID BIN AMZAH)

NORSIAH BT. MOHAMAD (NO. K/P: 491201-10-6258) (Ibu Sah Dan Tanggungan Si Mati Allahyarham AMINULRASYID BIN AMZAH) …RESPONDEN-RESPONDEN [Dalam Perkara Mahkamah Tinggi Malaya Di Shah Alam, Guaman Sivil No: 21 NcVC-38-04/2013 Antara

Nor Azura binti Amzah (No. K/P: 700827-10-5108) (Pentadbir Harta Pusaka Si Mati Allahyarham Aminulrasyid bin Amzah)

Norsiah binti Mohamad (No. K/P: 491201-10-6258) (Ibu Sah Dan Tanggungan Si Mati Allahyarham Aminulrasyid bin Amzah) … Plaintif-Plaintif Dan

Koperal Jenain Subi

Ketua Polis Daerah Shah Alam

Tan Sri Khalid bin Abu Bakar

Ketua Polis Negara

Kerajaan Malaysia … Defendan-Defendan] CORAM: MOHD. ZAWAWI SALLEH, JCA VERNON ONG LAM KIAT, JCA ASMABI MOHAMAD, JCA Page 3 of 9 GROUNDS OF JUDGMENT INTRODUCTION [1] The appeals herein emanate from the decision of the High Court at Shah Alam on a claim for assault and battery and alternatively negligence and public misfeasance, arising from fatal gunshot wounds inflicted upon Aminulrasyid bin Amzah (the deceased) by police personnel, including the 1st defendant, in an incident that occurred on 26.4.2010. [2] The 1st and 2nd plaintiffs sued as the joint administratrix of the deceased under s 8 of the Civil Law Act 1956 (CLA 1956) and the 2nd plaintiff, as a dependent of the deceased under s 7 of the CLA 1956 for the death of the deceased. The 2nd to the 5th defendants are sued for being vicariously liable for the acts of the 1st defendant and other police personnel; the 2nd defendant being also sued for misfeasance in public office. [3] The defendants deny liability for any injury and suffering of the deceased on the ground that the 1st defendant and other police personnel acted reasonably and according to correct procedure. [4] After a full trial of the action, the learned judge allowed the plaintiffs’ claim and awarded the following heads of damages: i. RM150,000.00 for General damages; ii. RM150,000.00 for damages for misfeasance; iii. RM150,000.00 for aggravated/exemplary damages; iv. RM10,000.00 for bereavement; Page 4 of 9 v. RM4,800.00 for special damages; and vi. RM50,000.00 costs. [5] The 1st defendant and the 2nd to 5th defendants being dissatisfied with the decision of the High Court have lodged their respective appeals against the finding of liability and on damages. In this judgment, the parties shall be referred to as they were in the court below. SALIENT FACTS [6] The background facts have been comprehensively set out in paras. 11 to 16 of the written judgment of the learned judge. Insofar as this appeal is concerned, it is sufficient to allude to the following key facts. The fatal shots were discharged in the course of a car chase by the police personnel. The deceased, then of 14 years of age, was driving his sister’s car and in the front passenger seat was his friend one Mohd Azamuddin (SP4). Two of the police personnel discharged their firearms at the vehicle driven by the deceased. The deceased died of a gunshot wound to the back of his head. SUBMISSION OF COUNSEL [7] Learned senior federal counsel (SFC) for the 1st defendant advanced six main points. First, learned SFC argued that there is no evidence to show that the 1st defendant discharged the fatal shots. Second, she argued that even if there is, in all the circumstances the 1st defendant’s conduct was justified and reasonable. Third, there was contributory negligence on the part of the deceased; in particular, (i) the deceased failed to stop the car when he was instructed by the police, (ii) Page 5 of 9 the deceased’s car was speeding to evade arrest, (iii) as the police personnel suspected the deceased of being a criminal, there was a ‘hot pursuit’ after the deceased’s car failed to stop and was driven in an aggressive and dangerous manner, and (iv) the deceased exposed himself, his passenger and other road users in a dangerous situation. Learned SFC submitted that liability should be apportioned on the basis of 75% against the deceased and 25% against the 1st defendant. Fourth, learned SFC argued that the claim of misfeasance in public office against the 3rd defendant (then the Chief Police Officer of Selangor) is unfounded as the three ingredients of the tort have not been pleaded or proved (Three Rivers District Council & Ors v Bank Of England (No. 3) [2000] 3 All ER 1 HL). The facts relied on by the plaintiffs relate to defamation and not to the tort of misfeasance in public office. Fifthly, it was contended that damages for pain and suffering should not have been allowed. The plaintiffs did not prove that they were suffering from any recognizable psychiatric illness due to the death of the deceased. Lastly, learned SFC argued that learned judge had erred in awarding aggravated or exemplary damages on the ground that the 3rd defendant’s press statement about the deceased was malicious. Award of aggravated or exemplary damages are only awarded for injured feelings or for humiliating circumstances (Broome & Another v Cassell & Co [1972] AC 1027, 1224; Thompson v Comr of Police of the Metropolis [1998] 1 All ER 498, 516). There was also no evidence to show that the 3rd defendant’s press statement was oppressive, arbitrary or unconstitutional (Rookes v Barnard [1964] AC 1129). [8] In reply, learned counsel for the plaintiffs submitted that only two persons fired the shots, i.e. the 1st defendant and SD4. However, SD4 did not fire any shots after Bulatan Kayangan. Therefore, only the 1st Page 6 of 9 defendant could have fired the fatal shot which killed the deceased. There was no justification for the 1st defendant to have fired the shots because the Inspector General’s Standing Orders (IGSO) and s 15(3) of the Criminal Procedure Code clearly provides that shots cannot be fired unless the police officer finds himself in a situation where he is under attacked and he believes that his life is in danger or under threat of grievous injury. The evidence clearly showed that at the time the fatal shot was fired, the deceased posed no threat to the police personnel. Learned counsel also argued that contributory negligence is not a defence in cases of assault and battery (Co-operative Group (CWS) Ltd v Pritchard [2012] 1 All ER 205, 222 CA). Further, it was submitted that all the ingredients in the tort of misfeasance have been pleaded in the statement of claim. All the necessary facts have been proved to satisfy the three ingredients of the tort of misfeasance in public office. The 3rd defendant never retracted his statement and did not come to court to explain or clarify. [9] As for damages for pain and suffering, learned counsel submitted that the estate claim was made under ss 7 and 8 of the Civil Law Act 1956 and that RM150,000.00 is a fair and reasonable sum in the circumstances. The plaintiffs were entitled to aggravated and exemplary damages because of the oppressive and arbitrary actions of the defendants (N Indra Nallathamby v Datuk Seri Khalid Abu Bakar & Ors [2013] 6 CLJ 272 (CA); Rookes v Barnard, (supra). DECISION [10] We agree with the learned judge’s findings that (i) there was no evidence that there were other road users in Jalan Tarian 11/2 at the Page 7 of 9 material time, (ii) that Jalan Tarian 11/2 is a housing area, and (iii) that during the time of the shooting, it was early hours of the morning and the area was empty and quiet. Based on the evidence on record, the deceased was driving his car away from the police when the 1st defendant fired the fatal shot. Further, by the time the deceased’s car arrived in the housing area of Jalan Tarian 11/2, the car tyres were already punctured. More significantly, the 1st defendant admitted under cross-examination that the deceased posed no danger at the time he fired the fatal shot. As such, we agree with the learned judge’s finding that the deceased did not pose any threat to the police personnel. [11] We also note that when the 1st defendant fired his weapon, the weapon was set on auto mode instead of manual mode; consequently, 21 bullets were discharged in the direction of the deceased’s car. The fact that the 1st defendant fired the fatal shot is undisputed; he admitted that his patrol car was behind the deceased’s car and pursuing it when the shots were fired. The 1st defendant candidly admitted that it was wrong for him to have done that. In our view, this is a patent instance of negligence on the part of the 1st defendant. On the totality of the evidence, the action of the 1st defendant in firing the fatal shot which resulted in the death of the deceased was clearly unwarranted, unreasonable and unjustified. As for the defendant’s argument of contributory negligence, we agree with the submission of learned counsel for the plaintiffs that contributory negligence is not a defence in this instance. Page 8 of 9 [12] In regard to the tort of misfeasance in public office, however, we agree with the submission of learned SFC that on the pleaded case and on the facts the plaintiffs have not proved the tort of misfeasance in public office. [13] As for the award of general damages for pain and suffering, we also agree with learned SFC that the plaintiffs have failed to prove the damages for pain and suffering under this head of damages. Similarly, as there is no evidence to show that the 2nd plaintiff depended on the deceased for sustenance the dependency claim is unsustainable (see Ketua Setiausaha Kementerian Dalam Negeri v Ghaur Chandram Murugesu & Anor [2016] 3 CLJ 210 (CA) which referred to Mariayee Veeran & Anor v Mohammad Nasir Mohamed Ali & Anor [1985] 1 CLJ 416 (FC)). For general damages, however, we take the view that RM150,000.00 is manifestly excessive and that RM100,000.00 is a more reasonable and fair amount in the circumstances. Accordingly, we would reduce the amount of general damages to RM100,000.00. We affirm the awards for special damages and bereavement by the learned judge. Consequent on our decision in para. [11] preceding, the award of RM150,000.00 for the tort of misfeasance in public office is set aside. [14] As there was an affirmative finding by the learned judge that there was no intention on the part of the 1st defendant, we do not think that it is appropriate to grant aggravated or exemplary damages. Accordingly, the award of RM150,000.00 for aggravated/exemplary damages is also set aside. Page 9 of 9 [15] In conclusion, the defendants’ appeals are allowed in part. We make no order as to costs in this proceedings. The costs of the High Court are maintained. sgd (Vernon Ong) Judge Court Of Appeal Malaysia Dated : 5th December 2017 Counsel: For the Case No: B-01(NCVC)(W)-117-04/2016 For the Appellant: Normastura binti Ayub (Nurhasmanita binti Abdul Manap with her) Senior Federal Counsel The Attorney General Chambers For the Respondent: N. Surendran (Latheefa Koya and Shahid Adli Kamaruddin with him) Messrs Daim & Germany For the Case No: B-02(NCVC)(W)-866-05/2016 For the Appellant: Zulkepli bin Omar Messrs Lainah Yaacob & Zulkepli For the Respondent: N. Surendran (Latheefa Koya and Shahid Adli Kamaruddin with him) Messrs Daim & Germany