Mohamad Sukri Bin Hat v Fadhelah Binti Othman (P-01(NCvC)(W)-566-09/2024)

1.

KOPERAL JANNATUL NAIM BIN ABDUL MANAB

3.

4.

5.

INSP MOHAMAD ADAM DANIYAL @ MOHANDASS BIN

7.

KETUA POLIS DAERAH SEBERANG PERAI UTARA (ACP HJ. NOORZAINY BIN HJ. MOHD. NOOR pada masa material)

KETUA POLIS PULAU PINANG (DATUK T. NARENASAGARAN pada masa material)

KETUA POLIS NEGARA (TAN SRI ABDUL HAMID BADOR pada masa material)

KERAJAAN MALAYSIA …PERAYU-PERAYU DAN 28/01/2026 15:36:15 P-01(NCvC)(W)-566-09/2024 Kand. 28 S/N 4rESRh8oOkymYCjgnf/dVg FADHELAH BINTI OTHMAN (No. K/P: 680514-07-5168) (Pentadbir Estet dan tanggungan MOHD FADZRIN BIN ZAIDI, si mati) …RESPONDEN (Dalam Perkara Mahkamah Tinggi Malaya di Georgetown dalam Negeri Pulau Pinang (Bahagian Sivil), Guaman Sivil NO: PA-21NCvC-22-11/2022 Antara Fadhelah Binti Othman (No. K/P: 680514-07-5168) (Pentadbir Estet Dan Tanggungan Mohd Fadzrin Bin Zaidi, Si Mati) …Plaintif

Mohamad Sukri Bin Hat (G/19718)

Koperal Jannatul Naim Bin Abdul Manab (RF/173423)

Kontstabel Derison Bin Pingot (RF/208807)

Fadly Adzwardy Bin Tahir (201050)

Ramilah Binti Superman (KPL/W 166988)

Insp Mohamad Adam Daniyal @ Mohandass Bin Abdullah 7.

Ketua Polis Daerah Seberang Perai Utara (ACP Hj. Noorzainy Bin Hj. Mohd. Noor pada masa material) S/N 4rESRh8oOkymYCjgnf/dVg

Ketua Polis Pulau Pinang (Datuk T. Narenasagaran pada masa material)

Ketua Polis Negara (Tan Sri Abdul Hamid Bador pada masa material)

Kerajaan Malaysia …Defendan-defendan) CORAM: AZIMAH BINTI OMAR, HMR AZIZUL AZMI BIN ADNAN, HMR LIM HOCK LENG, HMR GROUNDS OF JUDGMENT

The appeal and cross-appeal concern the High Court’s finding of liability and quantum arising out of an action commenced by the mother of a detainee who committed suicide while in police custody at the lockup Ibu Pejabat Polis Derah Seberang Perai Utara (“Lokap IPD SPU”), following his arrest with one Hafeez Nashriq on suspicion of complicity in drug-related offences. S/N 4rESRh8oOkymYCjgnf/dVg

The parties will be referred to as they were in the High Court, unless the context otherwise requires.

The Plaintiff sued in her capacity as the administratrix of the estate of the deceased, and as a dependant.

The action was grounded in negligence, breach of statutory duties, and misfeasance in public office.

Following his arrest on 20 November 2019, the deceased was remanded for a week. He was placed in cell 3 of Lokap IPD

On 22 November 2019, between 2.55am to 3.00am, the deceased was found dead, hanging by his neck in the cell. He had hung himself with his t-shirt. He was 29 years of age at the time of his death.

There was no evidence of foul play. The post-mortem report shows that the cause of death was consistent with hanging.

The Plaintiff’s pleaded case is that the 1st Defendant was negligent in failing to comply with the legal and statutory obligations under the Police Act 1967, Police Regulations 1953, and the Lockup Rules 1953, at the time of the arrest until the detention of the deceased in the lockup. S/N 4rESRh8oOkymYCjgnf/dVg

The 2nd to 5th Defendants were alleged to have been negligent on account of their omissions under and non-compliance with these obligations, as well as the Perintah Tetap, memo dated 11 October 2019, leading to the death of the deceased.

The 6th Defendant was alleged to have been negligent in failing to ensure that the 2nd to 5th Defendants, his subordinates, complied with their said legal and statutory obligations.

The 7th Defendant, the police officer assigned to investigate the deceased’s death, was alleged to have been negligent in his investigations and was perceived to lack impartiality.

It was also pleaded that there was misfeasance on the part of the individual Defendants who were holding public office.

It was further pleaded that the 8th to 11th Defendants ought to be held vicariously liable.

While the Defendants accepted that they owed a general duty of care to the deceased in relation to his health and safety, they contended that the duty only arose if the deceased was a suicide risk. S/N 4rESRh8oOkymYCjgnf/dVg

They further contended that they did not breach their duty of care to the deceased; and the death of the deceased was not attributable to the Defendants since the deceased had, of his own volition, hung himself.

As such, the Defendants took the position that the 8th to 11th Defendants could not be held vicariously liable.

In respect of the tort of misfeasance in public office, the defence was that there was no evidence of the mens rea.

In relation to the tort of negligence, the constituent elements have been set out by the Courts on a number of occasions, including this Court in Projek Lebuh Raya Utara Selatan Sdn Bhd v Kim Seng Enterprise (Kedah) Sdn Bhd [2013] 6 CLJ 958, and the definition is well settled.

The learned trial judge (“LTJ”) was mindful that a common law duty of care could only arise if, and the onus was on the Plaintiff to prove that (i) the Defendants owed a duty of care to the deceased, (ii) the duty was breached; and (iii) the deceased died as a result of the breach.

Since it was an undisputed fact that the deceased was under remand and in the custody of the police at all material times leading to his death, the learned trial judge (“LTJ”) proceeded S/N 4rESRh8oOkymYCjgnf/dVg to determine whether there was a duty owed by to the deceased as a detainee.

The LTJ referred to Article 5 of the Federal Constitution which guarantees every subject to life and liberty.

The LTJ also referred to:

section 20 of the Police Act 1967 which, inter alia, imposes a duty to give “assistance in the protection of life and property” and provides that a police officer “guarding prisoners and other persons in the custody of the police” shall be deemed a prison officer with corresponding powers and duties;

(ii) the Lockup Rules 1953. Among the Rules highlighted was Rule 10 which stipulates that “(t)he Medical Officer shall so far as possible examine every prisoner as soon as possible after admission to a lockup and shall certify whether the prisoner is fit for imprisonment and, if convicted the class of labour which he can perform.” The Lockup Rules also provide that the Medical Officer is to be notified without delay in “any case of apparent mental disorder or of injury to or illness of any prisoner” (Rule 36). The Medical Officer has to keep a journal which must record “all matters and occurrences of importance” and the entries are to be dated and signed on a daily basis (Rule 34). Whenever the Medical Officer is of the opinion S/N 4rESRh8oOkymYCjgnf/dVg that a prisoner’s life will be endangered by his continued confinement or that he is totally and permanently unfit for confinement, he has to state his reasoned opinion (Rule 40). There is then the Rule 42 which imposes an overall or general obligation on subordinate police officers and constables who “shall at all times be responsible for the safe custody of prisoners under their charge”

(iii) the Perintah Tetap dated 4 December 2017 issued by the Ketua Polis Daerah Seberang Perai Utara which states, inter alia: “Kecuaian mengikut takrif perintah ini termasuklah cubaan mana-mana tahanan membunuh diri atau telah membunuh diri dimana ia dianggap (shall be presumed) bahawa anggota bertugas mengawal lokap pada waktu itu telah cuai menjalankan tugas.”

(iv) the 2nd Defendant’s memo dated 11 October 2019 which states: “Memastikan CCTV sentiasa berfungsi serta keselamatan tahanan lokap terkawal. Sekiranya ada kerosakan di dalam lokap, penyelia hendaklah mengemukakan laporan bergambar kepada KPB serta dicatitkan dalam station diary”.

Based on these obligations and case law, the LTJ formed the view that the Defendants had a duty “to ensure the safety of the person in custody and to ensure that they do not harm themselves or commit suicide.” S/N 4rESRh8oOkymYCjgnf/dVg

Section 20 of the Police Act 1967 creates a statutory duty to take care of a detainee and protect his life while he is under remand and in custody. Likewise, the Lockup Rules which are a body of subsidiary legislation under the Prisons Ordinance

Although the Prisons Ordinance 1952 has been repealed, the Lockup Rules continue to remain in force by virtue of the saving provision housed in section 68 of the Prison Act 1995. As for the Perintah Tetap which has an expressly avowed objective of preventing suicide by detainees, it has been gazetted and has statutory force.

The LTJ drew upon Reeves v. Commissioner of Police of the Metropolis [2000] 1 AC 360, where the House of Lords held that the police owed a duty of care to the deceased to take reasonable care to prevent him from committing suicide.

In that case, the detainee had been remanded on charges of credit card fraud and on suspicion of handling stolen vehicles. He was a known suicide risk. He had tried to commit suicide on two previous occasions while in police custody. A doctor who examined him found at the police station found no evidence of any psychiatric disorder or clinical depression. The flap of the cell door had been inadvertently left open. The detainee was thus able to tie his shirt through the door, and hang himself. S/N 4rESRh8oOkymYCjgnf/dVg

In the course of analysing the evidence and arguments, Lord Hoffmann made certain observations: “The police and prison service have long been aware that prisoners are more than usually likely to attempt suicide or self-injury....” “The risk of suicide is particularly high among prisoners on remand facing a new environment and an uncertain future.” “The duty, as I have said, is a very unusual one, arising from the complete control which the police or prison authorities have over the prisoner, combined with the special danger of people in prison taking their own lives.”

While acknowledging that a duty to protect from self-harm is rare, Lord Hoffmann held that once a duty is admitted, it would be “self-contradictory to say that the breach could not have been a cause of the harm because the victim caused it to himself.”

In the instant case, the defence placed much reliance on oral evidence that the deceased appeared healthy and did not sport any injuries. It was argued that there could only be a breach of the duty to the detainee when he is a known suicide risk. S/N 4rESRh8oOkymYCjgnf/dVg

The sting in the argument is that, if a detainee is not a known suicide risk and he has displayed no suicidal tendencies, the death by suicide could not have been foreseeable. Ergo the Defendants could not be held liable in negligence.

The learned Senior Federal Counsel referred to the decision of the English Court of Appeal in Orange v Chief Constable of West Yorkshire Police [2001] EWCA Civ 611 which was followed by the High Court in Kunasekaran Renggaga v ASP Heisham Harun, Ketua Balai Polis Bukit Sentosa & Ors [2012] 4 CLJ 237, and the Johor Bahru High Court in Sushila Rani Ramasamy (Nenek Yang Sah Mendakwa Sebagai Tanggungan Kepada Sasikumar Selvam, Simati) v Kerajaan Malaysia dan 2 Lagi [2023] 1 CLJU 1358.

In Orange (supra), Latham LJ held: “The obligation to take reasonable care to prevent a prisoner from taking his own life deliberately only arises where the custodian knows or ought to know that the individual prisoner presents a suicide risk.”

The facts in that case are rather different. In that case, the deceased was a young man who had gone out drinking with a friend, in the evening of 17 August 1991, a couple of days before his 26th birthday. The deceased had consumed a large amount of alcohol by the time he was arrested at 540am for drunk and disorderly conduct. One of the arresting constables described him as “a drunken young man who gave me no undue cause for concern.” The custody officer stated that there was no S/N 4rESRh8oOkymYCjgnf/dVg suggestion that the deceased was suicidal, while the sergeant (who booked the deceased in) described the deceased as a “run of the mill drunk”.

The custody officer allowed the deceased to keep his clothes, and his belt which the deceased later used to hang himself in his cell.

It is important to note that the West Yorkshire Police Standing Orders only allowed clothes and personal effects to be seized if the custody officer believes the detainee may use them to cause physical injury to himself or others.

While Court of Appeal noted that “the judge's findings of fact make it clear that the police officers did take reasonable steps to assess whether or not Mr Orange was a suicide risk,” there does not appear to be any evidence in its judgment of such steps taken, but only the passive observations of an arresting constable, the custody officer and the sergeant who formed the view that the deceased did not appear to be a suicide risk. The judgment of the High Court is unavailable online.

Be that as it may, the conflicting expert evidence was post-suicide. There was no medical assessment of the deceased prior to his suicide.

In Reeves (supra), notwithstanding a medical assessment, the Respondent was held liable in negligence as he was a known S/N 4rESRh8oOkymYCjgnf/dVg suicide risk and, as narrated earlier, he was held in such conditions as enabled his suicide.

We now move on to consider Sushila Rani (supra), where the High Court dismissed a dependency and negligence claim brought by a deceased inmate’s grandmother for his suicide while under incarceration. The decision, recently affirmed by this Court, may be distinguished.

In the instant appeal before us, the deceased was ‘freshly’ locked up following his arrest by the police a mere two days before he took his own life.

In such a short time, there would be very limited opportunity for the 1st to 6th Defendants to assess the medical state (both physical and mental) of the deceased. Hence, the reason that Rule 10 of the Lockup Rules requires an inmate be examined by a Medical Officer as soon as possible after admission into the lockup to ascertain whether the inmate is fit to be imprisoned or otherwise.

In stark contrast, the deceased inmate in Sushila Rani (supra) had already spent two years at the Kluang prison. During the deceased’s imprisonment over the course of two years, he did not exhibit any suicidal tendency and there was no history of any attempts at self-harm. S/N 4rESRh8oOkymYCjgnf/dVg

In that case, the Defendants had ample data spanning over two years which indicated that that the deceased inmate was not a suicide risk.

By contrast, in the instant appeal, the requirement to have the deceased medically examined by an expert Medical Officer under Rule 10 of the Lockup Rules as soon as possible after detention assumes crucial importance, as the Defendants here did not have the benefit of hindsight of the deceased’s behaviour and tendencies over a long span of time.

As pointed out by the LTJ, there was non-compliance with Rule 10 of the Lockup Rules in that no medical examination was carried out on the deceased, which the LTJ viewed as the breach of a mandatory duty.

In fact, there was no credible evidence that the police personnel made any attempt to get a Medical Officer to examine the deceased.

Even if the medical examination is not mandatory under Rule 10, the Perintah Tetap dated 4 December 2017 and issued by the Ketua Polis Daerah Seberang Perai Utara imposes a duty to check on the detainees in their cells at hourly intervals.

It also makes the officer in charge responsible for the monitoring of the CCTV throughout the detention. S/N 4rESRh8oOkymYCjgnf/dVg

Moreover, the purpose of the Perintah Tetap is to prevent the detainees from killing or injuring themselves.

There are no equipollent statutory duties applicable in Orange (supra), and that would dilute the Respondents’ reliance on its principle that the duty owed to a detainee only arises when the custodian knew or ought to have known that the detainee is a suicide risk.

Additionally, there was non-compliance with the 2nd Defendant’s memo dated 11 October 2019 which states that the CCTV is to be kept in working condition for the security of the detainees. The supervisor must submit a report of any damage with pictures to the officer in charge of the station and have that recorded in the station diary.

Importantly, there were a number of issues with the CCTV recordings.

To begin with, the whole of the CCTV recording for the duration of the detention was not made available. Only parts of it as recorded on a mobile phone were produced. There was an unpleaded, and unexplained or unacceptable explanation by SD2 on the delay of 25 to 30 minutes in the timestamps of the recording.

The CCTV recording produced in court only showed the hanging, and a limited period of time before the hanging. S/N 4rESRh8oOkymYCjgnf/dVg

As for the entry in the station diary which purported to show that “Kons 208807 buat rondaan semua sel lokap dapati keadaan baik seadanya,” and thus made a round to check on the detainees just before the deceased hung himself, the LTJ found the words “buat rondaan” strange as such words did not appear in the station diary before or after the suicide. His Lordship took note of the submission by learned counsel for the Plaintiff that the entry “was made merely to cover up the Defendants’ negligence and omissions by making it seem like they had conducted their “rondaan” at the material time.”

From the evidence of SD2 (the 6th Defendant), there were 3 small screens in the control room which were placed too high up on the wall for the duty officers to monitor the lockups clearly.

In addition, SD2 testified that the CCTV did not serve as a live feed but was meant to be used to review the recording after an incident. In the upshot, the LTJ found that to be a departure from the Perintah Tetap which requires the Ketua Ketua Pengawal to “memantau CCTV sepanjang tempoh penugasan dijalankan.”

There was a deliberate withholding of the entire CCTV recording. The LTJ rightly invoked section 114(g) of the Evidence Act 1950 to draw an adverse inference, more so as the Defendants had undertaken to produce the CCTV recording for the trial (“salinan CCTV akan dikemukakan semasa perbicaraan kelak”) in their pleading. S/N 4rESRh8oOkymYCjgnf/dVg

There is then the evidence of Dr Chandroth Navin Pankajakshan (SD6). He testified that the hanging of the deceased took at least 15 minutes. From what was produced of the CCTV recording, the deceased took time to walk to the corner of the cell and to get prepared before climbing up the bars to hang himself.

The LTJ was of the view that if there was a proper rondaan and, if the CCTV recording was functioning, and there was live monitoring, it was almost certain the suicide would have been averted.

After meticulously examining the evidence of witnesses for the defence, the LTJ found the 1st to 6th Defendants liable in negligence.

In so holding, he had considered the evidence of, inter alia, SD 2 (the 6th Defendant) who was the Ketua Balai Polis with overall supervision of the lockup as highlighted earlier, and the evidence of SD3 (the 2nd Defendant) who was the Ketua Pengawal Lokap of Lokap IPD SPU at the material time to monitor the CCTV in accordance with the Perintah Tetap.

SD4 (the 3rd Defendant) was the lockup sentry on duty on the night the deceased took his own life. He did not make any rondaan that night. There was no record he did so. He admitted he did not monitor the CCTV at all during his shift. S/N 4rESRh8oOkymYCjgnf/dVg

Notably, SD3 (the 2nd Defendant) and SD5 (the 5th Defendant) agreed under cross-examination that had the Defendants complied with all the regulations and standard operating procedures, the deceased’s death could have been avoided.

While disciplinary action was taken against SD3, SD4, were SD5, the LTJ made it clear that his findings of negligence were based on other facts set out in his judgment, though the disciplinary actions were indicative of their negligence.

The breaches of the duty owed to the deceased in the instant case-which have just been considered - were not in issue in Sushila Rani (supra).

Next, the 7th Defendant who was the officer tasked with investigating the death of the deceased. Although there were shortcomings in the 7th Defendant’s investigations such as a failure to investigate whether the deceased had been mistreated and informed of his rights during his arrest which might have an impact on his mental state, there was no causal link with the deceased’s suicide which had occurred before his investigations.

In respect of the 8th to 10th Defendants, the Plaintiff’s position was that these police officers were negligent in supervising and controlling the 1st to 6th Defendants who were their subordinates. It was submitted that the 8th to 10th Defendants had been lackadaisical, and an adverse S/N 4rESRh8oOkymYCjgnf/dVg inference ought to be drawn against them for failing to be present at the trial. The LTJ dismissed the claim against the 8th to 10th Defendants, as there was insufficient evidence to hold them accountable for the negligence of the 1st to 6th Defendants.

Given that the 1st to 6th Defendants as public officers were held to be personally liable in negligence as the named tortfeasors, the LTJ held the Government of Malaysia as the 11th Defendant vicariously liable in line with section 5 and section 6 of the Government Proceedings Act 1956.

As for the Plaintiff’s other cause of action grounded on the tort of misfeasance in public office, the LTJ found that “the Plaintiff has failed to prove that the Defendants have exercised their powers in bad faith with the specific intention to injure the deceased nor did they exercise their powers with reckless indifference about the consequences of such exercise.”

The essential elements of the tort had not been made out. See the decision of the Federal Court in Ketua Polis Negara & Ors v Nurasmira Maulat Jaffar & Ors & Other Appeals [2017] 6 MLRA 635, and the decision of the House of Lords in Three Rivers District Council and others v Governor and Company of the Bank of England [2003] 2 AC 1. There was no cross-appeal against that decision, and nothing more is required to be said of it. S/N 4rESRh8oOkymYCjgnf/dVg

Both the House of Lords in Reeves (supra) and the Court of Appeal in Orange (supra) recognised that a common law duty of care is owed by the police to a person held under remand or in detention, to protect him from harm or injury, whether from others or himself. The duty arises from the complete control that the police have over the detainee who, in the face of an uncertain future, is placed under a lot of stress such that he may take his own life.

While the Court of Appeal in Orange (supra) read the House of Lords’ decision in Reeves (supra) to restrict the duty of care to situations where the detainee is or ought to be known to be a suicide risk, the position in Malaysia would appear to indicate a broader duty of care in light of the statutory duties which extends to all prisoners.

The Police Act, the Lockup Rules and the Perintah Tetap make no distinction between remand prisoners who are known or perceived to be suicide risks. They have put in place certain safeguards to prevent suicide, such as a medical examination when a detainee is received, CCTV recordings meant to provide a live feed of the detainees, entries in official records of pertinent information relating to the detainees, and regular patrols. S/N 4rESRh8oOkymYCjgnf/dVg

The existence of these safeguards or preventive measures would adequately address concerns that a more onerous duty is placed if the duty were to extend to all detainees, and not just suicide risks. Their very existence puts to rest any contention that suicide risks are too remote or not reasonably foreseeable.

In addition, the provision of relatively heavier punishment for a whole host of offences here – including, as in this case, a prospective drug-related charge – add on even more stress than what was contemplated by Lord Hoffmann.

In the instant case, the deceased’s suicide was only made possible by a breach of the statutory duties and the common law duty of care owed to him by the 1st to 6th Defendants, the very purpose of which was to prevent harm, whether inflicted by others or oneself. In such an instance, an argument premised on novus actus interveniens or a break in the chain of causation would be to no avail.

In Reeves (supra), the House of Lords was of the view that where a duty is specifically directed at the prevention of an act, the occurrence of that act would not be considered an independent act breaking the chain of causation from the breach of duty.

We accordingly uphold the LTJ’s findings on liability. S/N 4rESRh8oOkymYCjgnf/dVg

Having held the 1st to 6th Defendants liable in negligence and the 11th Defendant liable vicariously, the LTJ awarded the

RM57,600.00 as part of the dependency claim;

(ii) RM30,000.00 for her bereavement;

(iii) RM10,000.00 special damages;

(iv) RM50,000.00 aggravated damages; and

RM50,000.00 costs.

On the dependency claim, the Plaintiff (SP1) gave evidence as the deceased’s mother that her son worked as a fisherman and as a grave digger. She testified that he gave her between RM1,000.00 to RM1,500.00 a month for household expenses and for the care of his younger siblings, but later admitted under cross-examination that the amount he gave her did not reach that range.

SP2, the Pengerusi Surau Kampung Perlis, Butterworth, testified that he had known the deceased for some 15 years, and that the deceased worked as a grave cleaner for which he was paid the sum of RM250.00 per month by the mosque. SP2 S/N 4rESRh8oOkymYCjgnf/dVg also testified that the deceased was paid RM150 for each grave he dug by the “waris” of each departed person, but the evidence was derived from others and hearsay. SP2 added that the deceased earned a living as a fisherman whose income was seasonal.

SP3, the deceased’s elder brother, gave evidence that his brother worked as a fisherman and grave digger.

SP3, a lorry attendant at the time he gave evidence, had previously worked as a fisherman. He said he sometimes followed the deceased to go fishing. SP3 testified that he earned about RM1,500.00 per month when he was a fisherman, but admitted that he did not have any documentary evidence to show that he or the deceased earned that amount from being fishermen. Although he had seen the deceased giving their parents money, he did not know the amount though he himself gave between RM250.00 to RM500.00 from time to time.

In considering the Plaintiff’s dependency claim, the LTJ agreed with the defence that there was no independent evidence to show that the deceased was earning RM3,500.00 per month or providing his mother with as much as RM1,500.00 per month.

Nevertheless, the LTJ found that the deceased was “indeed receiving earnings.” The finding is consistent with the evidence provided by SP1, SP2, and SP3 that the deceased worked as a fisherman (depending on the weather and the season), grave S/N 4rESRh8oOkymYCjgnf/dVg cleaner and digger. The deceased was gainfully self-employed, although the amount he earned and gave to the Plaintiff could not be formally verified.

In holding that the deceased was more likely to be earning about RM1,000.00 to RM1,500.00 a month, out of which he gave his mother a sum of RM300.00 to cover monthly expenses, the LTJ could not be said to be plainly wrong. There was evidential basis to apply the filial son test in Muhammad Norazri Abdul Aziz & Anor v. Abdul Rani Hassan & Anor [2020] CLJU 216.

The monthly income is consistent with what SP3 used to earn as a fisherman, and the deceased’s contribution is also consistent with what SP3 contributed.

Bearing in mind that the deceased was 29 years old at the time he committed suicide, the number of years’ purchase would be

Hence, the dependency award of RM57,600.00 was calculated on the basis of RM300 x 12 months x 16 years. See section 7(3)(iv)(d) of the Civil Law Act 1956.

We do not find the LTJ’s award for dependency plainly wrong in principle or quantum, as argued by the learned SFC.

At the same time, there is no merit in the Plaintiff’s cross-appeal, taken with a view to increasing the quantum. S/N 4rESRh8oOkymYCjgnf/dVg

We also see no reason to disturb the award for bereavement in the sum of RM30,000.00 which is in line with section 7(3a) of the Civil Law Act 1956, and the award of RM10,000.00 special damages comprising RM3,000.00 for funeral expenses which the learned SFC intimated was reasonable, RM5,000.00 to obtain the grant of letters of administration, and RM2,000.00 travelling costs which were taken to have been incurred by the Plaintiff. In Janagi Nadarajah & Anor v Sjn Razali Budin & Ors [2021] 10 CLJ 915, the claim for the costs of obtaining letters of administration was allowed in the sum of RM5,500.00 as it was supported by a legal firm’s receipt for fees and disbursements. Although no receipt for obtaining the letters of administration was produced in the instant case, the LTJ’s slightly lower award is in line with the actual costs in the other case.

We now turn to the appeal against the award of aggravated damages in the sum of RM50,000.00 and the cross-appeal by the Plaintiff to enhance the quantum.

The Plaintiff sought aggravated damages in the sum of RM250,000.00. The LTJ awarded aggravated damages of RM50,000.00 and that is the subject of a cross-appeal by the Plaintiff who was aggrieved by the smaller sum awarded. The LTJ moderated the quantum as “the extent of the infringement is more in the nature of negligent acts or omissions, rather than any deliberate withholding of medicine or positive acts of torture or injury inflicted on the deceased.” S/N 4rESRh8oOkymYCjgnf/dVg

We are, however, of the view that the award of aggravated damages ought not to have been made at all. Any injury to the hurt feelings and dignity of the deceased arose out of his remand which was lawful. There was no egregious conduct which would justify the grant of aggravated damages. See the decision of the Federal Court in Koperal Zainal Mohd Ali & Ors v Selvi Narayan (Pentadbir Bersama Estet Tanggungan Chandran Perumal, Si Mati) & Anor [2021] 6 CLJ 157. As just noted, the LTJ in fact took cognisance of the fact that there was no deliberate withholding of medicine or positive acts of torture or injury inflicted on the deceased.

The deceased’s untimely demise was caused by the negligence of the tortfeasors, but that is a different and separate matter, for which the usual general and special damages are to be considered. It was plainly wrong of the LTJ to award aggravated damages because “the defendants' actions/omissions had led to the death of the deceased despite the fact that it could have been avoided had they complied with all the necessary rules, regulations and standard operating procedures and if the defendants had not been negligent or in breach of their duty of care.” Negligence by itself does not give rise to an award of aggravated damages as of right. S/N 4rESRh8oOkymYCjgnf/dVg

For the reasons given, the appeal is dismissed, save in relation to the award of aggravated damages which is hereby set aside. The decision of the LTJ is otherwise affirmed.

The cross-appeal for the aggravated damages and dependency award to be increased is dismissed.

As the 1st to 6th and the 11th Appellants have partially succeeded in their appeal while the Respondent has failed in her cross-appeal, we make no Order as to costs in this Court. Dated the 26th day of January 2026 Counsel for the Appellants

SFC Nur Ezdiani binti Roleb

FC Syafiq Affandy bin Hasan [Attorney General’s Office, Putrajaya] S/N 4rESRh8oOkymYCjgnf/dVg Counsel for the Respondents

M. Visvanathan

V. Sanjay Nathan

Pushan Qin Nathan [Messrs. Saibullah MV Nathan & Co Advocates & Solicitors] S/N 4rESRh8oOkymYCjgnf/dVg