Nik Mohd Ghazali B Nik Zul Azhar v Rahaya Binti Salleh (Pentadbir Estet dan Tanggungan Kamarulnizam Bin Ismail, Simati) (A-01(NCvC)(W)-71-02/2020)

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ACP ROSLI BIN MD NOOR KETUA POLIS NEGARA (Tan Sri Dato’ Sri Khalid Bin Abu Bakar)

KERAJAAN MALAYSIA … RESPONDENTS 01/06/2022 16:49:02 A-01(NCvC)(W)-71-02/2020 Kand. 44 S/N RoCGa4fcqUm7GevwCK/p5w (HEARD TOGETHER) IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CIVIL APPEAL NO: A-01(NCvC)(W)-71-02/2020

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ACP ROSLI BIN MD NOOR KETUA POLIS NEGARA (Tan Sri Dato’ Sri Khalid Bin Abu Bakar)

KERAJAAN MALAYSIA … APPELLANTS RAHAYA BINTI SALLEH (Pentadbir Estet dan Tanggungan KAMARULNIZAM BIN ISMAIL, si mati) … RESPONDENT S/N RoCGa4fcqUm7GevwCK/p5w [In the Matter of High Court of Malaya at Ipoh Civil Suit No: AA-21NCvC-2-03/2017 Rahaya Binti Salleh (Pentadbir Estet dan Tanggungan KAMARULNIZAM BIN ISMAIL, si mati) … Plaintiff

Nik Mohd Ghazali B Nik Zul Azhar 2. Ebby Saiful Bin Sulaiman 3. Sarihan Bin Harun 4. Sasibalen A/L Karisianan 5. Sjn Suhaimi Bin Zaidi 6. Sjn Ahmad Azrul Bin Mohd Ujang 7. Sjn Mohd Samsul Bin Saad 8. Abdullah Bin Haji Zaini 9. S/Insp Batumanathan A/L Murugesu 10. Pkk Abdul Halim Bin Ma Hassan 11. Acp Rosli Bin Md Noor 12. Ketua Polis Negara (Tan Sri Dato’ Sri Khalid Bin Abu Bakar)

Kerajaan Malaysia …Defendants] CORAM: YAACOB HAJI MD SAM, JCA AHMAD NASFY YASIN, JCA GUNALAN A/L MUNIANDY, JCA S/N RoCGa4fcqUm7GevwCK/p5w GROUNDS OF JUDGMENT Introduction [1] These two (2) appeals were heard together, namely, No: A- 01(NCVC)(W)-463-09/2019 (“Appeal No. 463”) and A-01(NCVC)(W)-71- 02/2020 (“Appeal No. 71”). Both are interconnected and share common facts, issues, parties and are against the decision delivered by the learned Judicial Commissioner (“learned JC”) in the High Court of Malaya in Ipoh, Perak on 13.8.2019. [2] In Appeal No. 463, the Plaintiff appealed against a portion of the following decision: - a) Dependency claims pursuant to section 7 of the Civil Law Act 1956; b) Claim for special damages as per Plaintiff’s Statement of Claim (“SOC”); c) Claim for exemplary and aggravated damages; and d) Amount of costs awarded to the Plaintiff. S/N RoCGa4fcqUm7GevwCK/p5w [3] In Appeal No. 71, the Defendants appealed against the finding of liability. [4] For the purpose of these appeals, parties will be referred to as they were in the High Court. [5] We heard the appeal and after giving our most anxious and meticulous consideration to the facts and the submissions from the learned counsel for the Plaintiff as well as the learned Senior Federal Counsel (“SFC”) for the Defendants, we are satisfied that there are appealable errors in the High Court’s decision warranting appellate intervention. It is our unanimous decision that the appeal by the Plaintiff in Appeal No. 463 is allowed partly with costs whilst in the Appeal No. 77 by the Defendants is dismissed with costs. The following are our grounds in arriving at the decision. Salient Facts [6] The Plaintiff’s son Kamalrulnizam bin Ismail (“the deceased”) was arrested by the police at about 11.30 am on 13.2.2014 under the Minor Offences Act 1955 in respect of some stolen property and under section S/N RoCGa4fcqUm7GevwCK/p5w 457 of the Penal Code. Upon his arrest, he was detained at the Ibu Pejabat Polis Daerah Seberang Prai Tengah Police lockup. [7] On the 14.02.2014, at about 2.30 pm, Sarjan Mejar Suhaimi bin Saidin Alias Saleh (SD2 and the 5th Defendant) produced the deceased before a Magistrate and a remand order was obtained until 18.02.2014 to facilitate police investigations (“the first remand”). The “Waran Menahan” (D38) and “Minit Permohonan Reman” and “Permohonan Tahanan Reman OKT Di Bawah Seksyen 117 KPJ” (D37 collectively) were produced in court. The “Permohonan Tahanan Reman” was prepared by SD2 himself. These were presented by SD2 together to the Magistrate. [8] Subsequently, the deceased was further remanded, from 18.02.2014 to 21.02.2014 (“the second remand”). The “Permohonan Reman” [D39(b)] was also prepared by SD2. [9] The second remand was to end on the 21.02.2014 and the deceased was supposed to be released. Alas, this was not to be. The deceased was re-arrested on that very day by one ASP Rizal bin Ramli. Sarjan Mohd Hafiz bin Abd. Karim (SD3) stated in evidence that the deceased was suspected of committing an offence under section 457 of S/N RoCGa4fcqUm7GevwCK/p5w the Penal Code. On 22.02.2014, he was produced before a Magistrate for another remand (“the third remand”) from 22.02.2014 to 25.02.2014. The “Waran Menahan” (D61), Permohonan Tahanan Reman OKT di bawah Sek. 117 KPJ” (D46(1)) and “Minit Permohonan Reman" (D46(2)) were produced. D46(2) was prepared by Sarjan Mohd. Khairie Anwar bin Azmi (SD4). [10] On 25.02.2014 he was again re-arrested for the third time. He was arrested by Sarjan Kamarudin bin Hushin (SD5). This date is significant as the third remand for the deceased was to end on 25.02.2014. This time the deceased was then taken and detained at Jinjang, Kuala Lumpur police lockup (Pusat Reman Jinjang). He was then produced before a Magistrate at Kuala Lumpur Magistrate Court the following day that is 26.02.2014 and a fourth remand from 26.02.2014 to 28.02.2014 was ordered (P31). The deceased was represented by the Yayasan Bantuan Guaman Kebangsaan’s (YBGK’s) lawyer (SP3) who evinced that the deceased told him, he was beaten by the police and showed him the bruises. Upon expiry of the remand order on 28.02.2014, he was re-arrested again, brought before a Magistrate on 01.03.2014 and was remanded until 04.03.2014 (the fifth remand). Evidence showed that the deceased had been placed on a series of “chain remand and road show” ending on 4.3.2014. S/N RoCGa4fcqUm7GevwCK/p5w [11] On 04.03.2014, the deceased was charged under section 29 of Minor Offences Act 1955 and section 89 of the Police Act 1967 to both of in which he pleaded guilty to both charges and was sentenced to a fine of RM800.00 in default thereof for an imprisonment terms of 7 days for the first charge (failure to give account of article believed to be a stolen property) and RM400.00 in default thereof for an imprisonment term of 7 days for the second charge (unlawful possession of a police emblem). [12] The deceased was ordered to be held at the Tapah Prison for failing to pay the fine of RM800.00 imposed on him. The police in this case had instead of taken him to Tapah Prison had continued to keep him in the Seberang Perai police lockup. He was eventually handed over to Tapah Prison on 06.03.2014. He was then brought to see SD18 who was a medical officer on duty at the Klinik Kesihatan Penjara Tapah. The deceased complained that he was having diarrhoea and SD18 prescribed medication to him. SD18 was of the view that the deceased was “clinically fit and mentally stable”. [13] On the fateful night of 07.03.2014, SD12 (D1) and one Mohd Zaki, another warden, were in charge of guarding cell G4 at Blok Insaf Tapah Prison where the deceased was held. According to SD12, Block S/N RoCGa4fcqUm7GevwCK/p5w Insaf was occupied by 154 prisoners. There were about 30 prisoners held in cell G4 of Blok Insaf at the material time. The situation was fully under control. The frequency of rounds that each warden had to make was once in every 30 minutes. [14] On 08.03.2014, at around 6.15 am, a prisoner informed SD12 that the deceased was found in state of unconsciousness. Upon being told, SD12 immediately informed SD13 who arrived at the cell at about 6.25 am. SD13 discovered that the deceased was sprawled with his face down on the prison floor. There was no medical officer on duty at that time. The deceased was then sent to the Tapah Hospital. [15] SD16 who was the doctor on duty at Tapah Hospital confirmed that he received the body of the deceased at about 7.20 am and the deceased was already dead. At around 8.30 am, the body of the deceased was brought to the Forensic Unit of Tapah Hospital for post mortem which was then conducted by SD19. [16] Dr. Siti Zanariah binti Mohd Nazami (SD19) in her report marked P9 revealed the following: - S/N RoCGa4fcqUm7GevwCK/p5w

(a) The deceased died some 6 to 12 hours before being brought to Forensic Unit indicating that he died between 8.30 pm on 07.03.2014 to 2.30 am, 08.03.2014.

(b) The deceased did not have bruises nor was there any evidence of the deceased being beaten. As to the marks or discoloration on the deceased body she explained that this was due to lividity or “lebam mayat”. The differences between a bruise mark and a “lebam mayat” was explained.

(c) Blood and urine samples were taken from the deceased. The samples did not show anything abnormal.

(d) The cause of death was said to be due “Jangkitan pada Paru-Paru (Chest Infection)”. She added that the deceased was suffering from chronic lung infection which meant that the illness had been there for some time. [17] Premised on the aforesaid facts, the Plaintiff claimed against the Defendants are as follows: - S/N RoCGa4fcqUm7GevwCK/p5w

(a) that the arrest and detention of the deceased were unlawful;

(b) the 8th Defendant was negligent in his duties of care in the police lockup;

(c) the 1st to 4th Defendants were negligent in their duties in Tapah Prison;

(d) the 9th Defendant was negligent in his duties investigating the cause of death of the deceased; and

(e) the 10th to 12th Defendants were negligent in their duties in supervising or controlling the officers under them. [18] The Plaintiff therefore sought the following damages: -

(a) loss of dependency under section 7 of the Civil Law Act, 1956;

(b) loss suffered by the estate under section 8 of the Civil Law Act, 1956;

(c) general damages;

(d) special damages;

(e) damages for assault and battery;

(f) exemplary damages;

(g) aggravated damages; and

(h) damages for misfeasance in public office. S/N RoCGa4fcqUm7GevwCK/p5w The High Court Decision [19] At the High Court, the learned JC, after full trial, had allowed the Plaintiff’s claim in part. [20] In the instant case, the deceased was detained for a total of 24 days before his demise. The deceased was never released from the time he was arrested on 13.02.2014 to the time of his death on 08.03.2014. During that entire period of time he was under the custody and care of the defendants, their servants or agents. [21] In gist, the learned JC found that there was indeed a duty of care owed to the deceased by the police and prison authorities. At this juncture the learned JC had emphasized that the duty of care owed is distinct from the legality of the remands and detention imposed upon the deceased. [22] The period of detention of the deceased can be separated into two parts. The first part would be when he was under remand under section 117 of the CPC. This would cover the period from 13.02.2014 to 04.03.2014. The second part would be his detention prior to the deceased’s transfer to the Tapah Prison after being sentenced. S/N RoCGa4fcqUm7GevwCK/p5w [23] At this juncture, it is important to state that the authenticity of all the documents produced with regards to the remand of the deceased from 13.02.2014 to 06.03.2014 were not disputed. [24] At the end of the trial, the learned JC made the finding which can be summarized as follows: -

(a) There are various remand applications. In respect of the first remand, the “Minit Reman” in D37 did not state when the remand would commence, more importantly, the Magistrate did not state the reasons for the detention in both the “Permohonan” and “Minit Permohonan” as required by the relevant Practice Direction.

(b) With regards to the remand period from 18.02.2014 to 21.02.2014, (the second remand) in respect of the “Minit Permohonan Reman” (D39(a)) and “Permohonan Sambung Reman” (D39(b)) it is to be noted that although D39(a) mentioned that the deceased had been detained prior to the second remand sought but there is no specific indication that the Magistrate ordering the remand took this factor into consideration as required by section 117(4) S/N RoCGa4fcqUm7GevwCK/p5w CPC. Further, D39(a) does not indicate as to when the remand is to commence and for how long. This has to be seen in the light of the fact that the second remand application D39(b) was supported by one ASP Hasan Mohd Salih and dated 15.02.2014, which suggested that it was prepared only one day after the first remand was obtained. Neither did the Magistrate indicate as to the treatment of the deceased during the custody period as this space was left blank. Exhibit D39(a) shows that the Magistrate did not record his reasons for authorizing the extension of the detention of the deceased as required under section 117(7) of the CPC as this space too was left blank. In the absence of the reasons for the further remand, the whole remand proceedings were a mechanical one. It is a duty of the officer applying the remand to ensure that the remand application and remand order is given in strict compliance with the law.

(c) In respect of the third remand, upon perusal of the “Permohonan Reman” D46(1), it is stated that the deceased was detained from the 13th to the date he was brought for the third remand. This was obviously made in S/N RoCGa4fcqUm7GevwCK/p5w breach of section 117(3) CPC. The Magistrate, therefore had failed to take into account any period of detention prior to the remand application. In other words, the Magistrate cannot be said to have exercised his discretion judiciously as the full facts of the case was not before him.

(d) With regard to the fourth remand, SP3 did bring to the Magistrate’s attention that the deceased had been detained prior to the application on the 26.02.2014. Yet a further remand of three days was given to the police. Again, the Magistrate did not state the reasons for extending the period of detention. Thus, the remand order was obtained not in accordance with section 117 and 119 CPC and also the relevant Practice Direction.

(e) Further, it is noted that none of the police diaries in this case had complied with all the requirements of section 119(1) CPC. The net effect would be that the Magistrate would not have had the opportunity to make an informed decision and to consider the remand application judiciously (Public Prosecutor v. Audrey Keong Mei Cheng [1997] S/N RoCGa4fcqUm7GevwCK/p5w 4 CLJ 702, [1997] 3 MLJ 477, Hassan Marsom & Ors v. Mohd Hady Ya’akop [2018] 7 CLJ 403).

(f) It is undisputed fact that the deceased was not sent to Tapah prison immediately to serve his sentence. Instead he was detained at the lockup at Seberang Prai Tengah. He was only sent to Tapah Prison two days later on 06.03.2012. The reason was that the Tapah Prison would not accept prisoners after 5.00 pm and there was a shortage of escorts at the material time. This was stated by SD10 in evidence. In this respect no evidence adduced that Tapah Prison Authorities had imposed the said condition. In addition, there was no documentary evidence or otherwise led to show that there was shortage of escorts. Thus, these reasoning are unacceptable. Imperatively, the dispatching of the deceased to Tapah Prison immediately after the sentence is required in section 282 of the CPC and section 54(2) of the Interpretation Act 1948 and 1967 which states as follows: “(1) … S/N RoCGa4fcqUm7GevwCK/p5w

(g) After having analysed the facts and evidence, the detention of deceased during the remand period was unlawful and amounted to an abuse of power. Therefore, the 5th, 6th, 7th and 8th Defendants had committed public misfeasance.

(h) In respect of the cause of death, the post-mortem report clearly stated that “Jangkitan pada Paru-Paru (Chest infection)”. This finding was supported in the Coroner’s finding of “misadventure” and the death of the deceased was due to chest infection. S/N RoCGa4fcqUm7GevwCK/p5w

(i) The Plaintiff’s contended that the cause of death of the deceased was due to the beating he had during the period he was under remand. In short, the deceased died of a condition called Rhabdomyolysis which is due direct or indirect muscle injury from the purported beatings he endured during the remand period. The learned JC had accepted the view of SD19, the pathologist, that much would be dependent on what the patient complained to the doctor, and also the doctor having made aware of the symptoms or history by the patient to order further examination so as to detect illness other than the one complained of without the symptoms or history being made known, the doctor would not be inclined to examine further and therefore detect the underlying chronic illness. However, this does not excuse the 1st, 2nd, 3rd and 4th Defendants from their duty of care towards the deceased especially so when the deceased as newly arrived prisoner and was placed in the “Block Kuarantin” where according to the letter dated 21.03.2005 from the Pengarah Keselamatan (D67) the prison authorities are to exercise more vigilance on those prisoners in the “Block Kuarantin”. S/N RoCGa4fcqUm7GevwCK/p5w [25] The learned JC concluded that the Plaintiff has succeeded in proving on a balance of probabilities the following: -

(a) The 5th defendant had breached his duty of care which was owed to the deceased and that the death of the deceased was due to their negligence in failing to provide a medical officer to examine him upon his confinement in the lockup and keep proper observation on him to ensure his good health. Further to this, Rule 10 of the Lockup Rules had also been breached.

(b) The 1st, 2nd, 3rd and 4th defendants at Tapah Prison had also failed to make proper watch on the deceased when they ought to know that he was unwell. No monitoring and proper observation of his health was made whilst he was in cell G4 in Block Insaf. They had carried out their duties in a manner which was detrimental to the wellbeing of the deceased. They also failed to provide emergency treatment at the Tapah Prison on being informed that the deceased was “tidak sedar diri”. Further Regulation 272 of the Prison Regulations was not adhered to. S/N RoCGa4fcqUm7GevwCK/p5w

(c) The 5th, 6th, 7th and 8th defendants had assisted in the abuse of the remand process of the deceased in a manner that he endured unlawful imprisonment from 14.02.2014 to 06.03.2014. [26] Based on their respective conduct, the learned JC concluded that negligence, false imprisonment, and public misfeasance had been established against the Defendants. The 10th to the 13th Defendants were vicariously liable for the conduct of the 1st to 8th Defendants. [27] The damages awarded are as follows: -

(a) Funeral expenses - RM2,000.00.

(b) Public misfeasance - RM50,000.00.

(c) False imprisonment - RM100,000.00.

(d) Exemplary damages - no award

(e) Loss of support - not allowed.

(f) Special damages - not allowed.

(g) Damages for assault and battery - not allowed.

(h) Aggravated damages - no award.

(i) Cost - RM12,000.00. S/N RoCGa4fcqUm7GevwCK/p5w The Appeal [28] Before us, the learned counsel for the Plaintiff had canvassed six grounds of appeal for our determination. They are: -

(a) Whether the Plaintiff is entitled to loss of dependency under section 7 Civil Law Act 1956;

(b) Whether the Plaintiff is entitled to bereavement;

(c) Whether the Plaintiff is entitled to exemplary damages;

(d) Whether the Plaintiff is entitled to aggravated damages;

(e) Whether the Plaintiff is entitled to special damages; and

(f) Amount of costs awarded to Plaintiff is extremely low. [29] Whilst the Defendants enumerated 18 grounds which can be summarized into 3 core grounds as follows: -

(a) Legality of the detention of the deceased;

(b) Were the Defendants negligent in causing the death of the deceased? S/N RoCGa4fcqUm7GevwCK/p5w

(c) Can the Defendants be held liable for breach of statutory duty despite the failure of the Plaintiff to specially plead statutory provisions which were said to have been breached by the Defendants? Our Decision [30] Given that the Respondents have, in Appeal No. 71 pivoted their appeal on the issue of liability chiefly on the non-illegality of the detention, we are of the considered view and it is opportune for us to deal with this issue first, which we now deal as hereunder. Issue:

(a) Legality of the detention of the deceased [31] It is not in dispute that the deceased was detained for a total of 24 days before his demise. The deceased was never released from the time he was arrested on 13.02.2014 to the time of his death on 08.03.2014. During that period of time he was under the custody of the Defendants, their servants or agents. [32] As we have alluded to above, the learned JC came to a finding that the detention of the deceased for this period is unlawful. S/N RoCGa4fcqUm7GevwCK/p5w [33] On this point, the learned JC had referred to the decision of Federal Court in Hassan Marsom & Ors v. Mohd Hady Ya’acop [2018] 7 CLJ 403 which stressed the importance of adherence to sections 117 and 119 in particular the following paragraphs: “[73] We are in agreement with the Court of Appeal that the first remand order as well as the subsequent extension were obtained by the police from the magistrate (s) without the third and fourth appellants duly complying with the safeguards laid out in law for the remand orders to be issued. We are constrained to say that if the requirements of SS 117 and 119 of the CPC had not been complied with how then, can the Magistrate make an informed decision as to whether to issue or not the remand order. The Magistrate has to satisfy himself as to the necessity of the order and that the period of detention also ought to be restricted to the necessities of the case (Bal Krishna v. Emperror AIR 93 Lah 99).” [34] The learned SFC for the Defendants sought to assail that finding and the reliance on the said case. It was submitted that the first to the fourth remand orders remained valid in law for the reason that the orders were never challenged by the deceased. It was faintly suggested too that it was not opened for the deceased to seek to challenge the legality of the orders through the civil proceedings. Learned SFC further contended that the failure of the “Minit Reman” to state when the remand S/N RoCGa4fcqUm7GevwCK/p5w would commence and the reasons for the extension of remand orders was not the Defendants’ fault. Therefore, so long as the remand order was not challenged and ruled defective, thus, the orders remained valid and must be deemed to have been made in accordance with the law. In other words, the Defendants’ act in detaining the deceased during the first until the fourth remand period would fall squarely within the ambit of section 32 Police Act 1967 and the Criminal Procedure Code. [35] It was further submitted that the learned JC had misapplied the Federal Court’s decision in Hassan Marsom & Ors which indicates that a detention may only be challenged in very limited circumstances subject to proving of certain elements. There the Federal Court held as follows: “The High Court, being court of unlimited jurisdiction has an inherent power to correct any wrong that had been done in breach of any written law and to declare the legality or otherwise of any act purportedly done or exercised pursuant to powers conferred under the law.” [36] We think that the learned SFC’s submission stretches too far. In our judgment, the submission is valid on the limited point on the pleadings which the learned JC had overlooked. A careful perusal of the S/N RoCGa4fcqUm7GevwCK/p5w pleadings showed that the Plaintiff did not pray for any declaratory relief that the arrest and detention were unlawful. The Plaintiff merely averred on the unlawfulness of the arrest and/or detention in paragraph 21(a) of the Statement of Claim (“SOC”) but the particulars on the unlawfulness of the arrest and detention were not pleaded in the SOC. In similar vein, relief on the wrongful arrest and detention either in the form of declaration or damages was also not prayed. It is well settled that parties are bound by their pleadings - Iftikar Ahmad Khan v. Perwira Affin Bank Berhad [2018] 1 CLJ 415. So too here. The Plaintiff’s claim must fall to be decided based on the pleadings. The learned JC unfortunately has missed this point of procedure. Accordingly, where the trial court went beyond what was claimed in the SOC, then the judgment being contrary to the pleading become untenable in law and liable to be set aside-see Buttrose Jin Seven Seas Supply Co. v. Raajoo [1966] 1 MLJ 71. [37] In view of the position that we have taken we find it unnecessary to make a finding on whether the detentions are unlawful or that the lawfulness of any detention can only be challenged at the time of detention and not by way of a civil action although we must at once doubt the correctness of that proposition advanced by the learned SFC. We should also like to point out that the courts have generally taken a S/N RoCGa4fcqUm7GevwCK/p5w dim view of detentions in the nature of “roadshows” (where a suspect is taken from one police station to another soon after the expiry of the remand) or colloquially referred to as “tukar gari” or change of handcuffs from one police station in one jurisdiction to another. We must say that the days of police investigation premised on securing admissions are relics of the past and that a charge and conviction must be sustained through a methodical and technical investigations or now known as forensic science. Again, we must emphasise that nothing that we have stated herein should be construed as stating that a claim on the unlawfulness of detention could not be challenged after remand orders have been made. We also do not think that the decision of this Court in Datuk Seri Khalid Abu Bakar & Ors v. N Indra P Nallatamby & Another Appeal [2014] 9 CLJ 15 could lend support to, or be construed as the authority for, the proposition that the validity of remand proceedings could be challenged by way of criminal revision or appeal only. In the present case the Plaintiff, unfortunately, was less than careful in his pleading and is thereby precluded from doing so. [38] That said, at the core of the Plaintiff’s case is the allegation of negligence on the part of the Defendants which we will now examine below. S/N RoCGa4fcqUm7GevwCK/p5w Issues: (b) Were the Defendants negligent in causing the death of the deceased [39] The learned JC, after considering the evidence of the Plaintiff’s witnesses, was satisfied that the Plaintiff had succeeded in proving on a balance of probabilities the following:

(a) The 5th defendant had breached his duty of care which was owed to the deceased and that the death of the deceased was due to his negligence in failing to provide a medical officer to examine him upon his confinement in the lockup and keep proper observation on him to ensure his good health. Therefore, Rule 10 of the Lockup Rules had been breached.

(b) The 1st, 2nd, 3rd and 4th Defendants at Tapah Prison had also failed to make proper watch on the deceased when they ought to know that he was unwell. No monitoring and proper observation of his health was made whilst he was in cell G4 in Block Insaf. They had carried out their duties in a manner which was detrimental to the wellbeing of the deceased. They also failed to provide emergency S/N RoCGa4fcqUm7GevwCK/p5w treatment at the Tapah Prison on being informed that the deceased was unconscious or “tidak sedar diri”. Therefore, Regulation 272 of the Prison Regulations was not adhered to.

(c) The 5th, 6th, 7th and 8th Defendants had assisted in the abuse in the remand process of the deceased in a manner that he endured unlawful imprisonment from 14.02.2014 to 06.03.2014. [40] Before us, the learned SFC submitted that the Defendants have not breached their duties of care while discharging their duty at the material time. The learned JC opined that there was a duty of care on the part of the Defendants toward the deceased by relying on Datuk Seri Khalid Abu Bakar & Ors v. N Indra P Nallatamby & Another Appeal [2014] 9 CLJ 15 and Amin, R (on the application of) v. Secretary of State for the Home Department (2003) UKHL 51. It was submitted by the learned SFC that the reference made by the learned JC to the both cases was plainly wrong. Learned SFC further submitted that the test laid down in Caparo Industries Pic v. Dickman and Others [1990] 2 AC 605 which has long been accepted and applied by Malaysian Court plays a vital role in assisting this court in this instant S/N RoCGa4fcqUm7GevwCK/p5w appeal. Further, the Federal Court in Lok Kok Beng & Ors. v. Loh Chiak Eong & Anor [2015] 4 MLJ 733 has adopted the test of foreseeability, proximity and policy consideration as expounded in the House of Lords in Caparo Industries. The Court viewed as follows: - “[44] To put it in a nutshell the preferred test is the threefold test, where the requirements of foreseeability, proximity and policy considerations must exist in any claim for negligence. The threefold test has been recognised by the House of Lords in Caparo Industries pk v. Dickman [1990] 2 AC 605, as the elements giving rise to a duty of care. In the judgment of Lord Bridge in Caparo at pp 617-618. His Lordship said that: What emerges is that in addition to the foreseeability of damage necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of proximity or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other.” S/N RoCGa4fcqUm7GevwCK/p5w [41] The learned SFC further submitted that the deceased had never made any complaint on his health. Neither was there any complaint from the police, the prison officer nor from the other prisoners living in the same block as the deceased in Tapah Prison. [42] With respect, we are not persuaded with the learned SFC’s submissions on this point. There is nothing magical on the formulations of the test to be applied in determining whether a duty of care exists at common law. All the authoritative texts on the subject had alluded to the development in law of which could be traced back to the case of Heaven v Pender (1883) 11 QBD 503 which the first attempt at rationalisation of the law of negligence and followed by the seminal decision on Donoghue v Stevenson [1932] AC 562 where the “House of Lords set the law on the new principal part of development” – see Charlesworth & Percy on Negligence, 13th Edition, at page 22. See too Clerk & Lindsell on Torts, 21st Edition at page 823; Winfield & Joliwicz on Tort, 19th Edition, at page85. Of course the exact formulation on the duty of care is still subject to much debate, as can be seen from the cases of Anns v Merton London Borough Council [1978] AC 728 and the criticism that the said decision received from the later decisions, amongst which in Yuen Kun Yue v Attorney General of Hong Kong [1988] AC 175 and Caparo Industries itself. In gist the issue is whether the test on S/N RoCGa4fcqUm7GevwCK/p5w determining a duty is premised on a two-tier or three-test, the former being advocated in Anns, whilst the latter being the result of the analysis in Caparo Industries. There is of course yet another aspect in the issue: whether the test in Caparo Industries ought to be confined to cases involving pure economic loss and not to be applied in all cases of negligence. The Singapore Court of Appeal in Spandeck Engineering Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR 100 has answered that question in the affirmative and our Federal Court in Tenaga Nasional Malaysia v. Batu Kemas Industri Sdn Bhd & Another Appeal [2018] 6 CLJ 683) speaking through Zainun Ali FCJ had this to observe: - [75] It could be observed that the ingredients giving arise to the existence of a duty of care as expounded in Spandeck are not dissimilar to the law in England. Applying the incremental approach, both jurisdictions take a restrictive approach in the development of the law of negligence. Nevertheless, unlike the decisions in Caparo and Murphy, Spandeck took a step further by recognising these ingredients of foreseeability, proximity of relationship and policy consideration as general principles that will serve as a guide for all cases. Hence general principles are to be applied for a smooth evolution of the law of negligence, such S/N RoCGa4fcqUm7GevwCK/p5w that it is not unduly hampered by an over-reliance on precedents as happened in England. [76] As a matter of interest, Spandeck imposes a “single test” or universal test in all negligence cases which makes all claims for damages arising from negligent conduct now becoming more restricted, regardless of whether the plaintiff sustained physical damage or pure economic loss, and irrespective of whether the loss arose from a negligent misstatement or negligent physical act/omission.”. [43] As a result there is no uniformity in cross jurisdictions on the proper test to be used. Discerning practitioners will benefit from the discussions from the cases as we have benefited from reading literature on the subject - see para 2-22 of Charlesworth & Percy, supra. The long and short of the discourse is that there is no rigid formulation and that there should be an approach towards incrementalism in the determination of whether a duty exist in a particular fact pattern. We find the following to be the correct statement on the point - Charlesworth & Percy, supra, para 2-25: - S/N RoCGa4fcqUm7GevwCK/p5w In broad summary, the leading cases indicate the law favours an incremental approach to analysing negligent conduct in most new factual situations, that is one which builds upon and proceeds from past decisions. To the extent that a decision is required in a novel or borderline case, where the duty question is not covered by authority, the usual analysis will be to ask whether the harm to the claimant was foreseeable, whether the parties were at the material time in a relationship of proximity or neighbourhood, and whether it is fair, just and reasonable taking into account the relevant policy concern, that a duty of care should be recognised in all circumstances of the case. [44] In the present case we are not dealing with a novel or borderline case. In Malaysia, neither the police nor the prison authorities enjoy immunity from a civil claim for negligence. So too the personnel in the discharge of their duties. Cases on this point are aplenty and there is no necessity for us to state them. It is plain as pikestaff or as night follows day. [45] Now, in establishing that a duty of care existed in a particular case, as we have stated earlier, the claimant may either prove that such a duty is imposed by a statute or that duty can be said to have existed at S/N RoCGa4fcqUm7GevwCK/p5w common law using the formulation as we have discussed above. Upon perusal of the evidence adduced by the plaintiff, we are in agreement with the learned JC that the plaintiff had established that there was a duty of care owed by the respective defendants to the deceased and that the defendants had breached that duty. [46] The Plaintiff’s pleaded case is summarized as follows: -

(a) The 5th, 6th and 7th defendants were negligent and or were in dereliction of their duties and responsibilities in the arrest and/or detention and/or investigation in respect of the deceased;

(b) The 8th defendant was negligent and or was in dereliction of his duties and responsibilities in the care and/or control and/or supervision of the police lockup at the Ibu Pejabat Polis Daerah Seberang Prai Tengah; and

(c) The 1st, 2nd, 3rd and 4th defendants were warders and guards at Tapah Prison. They were negligent and/or were in dereliction of their duties and responsibilities in the care and or control and/or supervision of the Tapah Prison. S/N RoCGa4fcqUm7GevwCK/p5w [47] As we have alluded, the facts showed that the deceased was detained for a total of 24 days before his demise. The deceased was never released from the time he was arrested on 13.02.2014 to the time of his death on 08.03.2014. During that period of time he was under the custody of the Defendants, their servants or agents. [48] We must say at once that there is duty of care on the part of the detaining authority to ensure the welfare and well being of the person under detention, in the physical as well as the mental aspects. That must, in our considered view, include the duty to ensure that medical treatment or care is available and to be provided readily to the detained person in a given circumstances. This would necessarily mean that the detaining authority must be sensitive or not take an attitude of careless to the needs of the detained person. Every cry of pain cannot be brushed aside as being a silly cry for attention. It could well be an actual cry of pain. The fact that a person is being detained either in prison (serving a sentence) or in lock up (pursuant to a remand order) does not and cannot be construed as giving the detaining authority to trifle with the said persons due and constitutional right to life, in particular, of the right to be treated with dignity. There is a duty on the part of the detaining authority to ensure that the detained person be given a decent meals and medicines and be given medical treatment by competent S/N RoCGa4fcqUm7GevwCK/p5w medical personnel and medical aid at the earliest opportunity when required. He must also not be denied of his medicines. The other facet of duty of the detaining authority and its personnel is to ensure that no physical harm is inflicted upon the person detained. Such action of assault or battery cannot be legitimized under any name or guise. Any such action, if committed will tantamount to the strangulation of the rule of law and an insult to the very essence of human dignity and the very office that the perpetrators occupy. We must say in no uncertain terms that brutality is not acceptable and has no part in any criminal investigation and death in custody is an anathema or antithetical to humanity. There is a general duty on the part of the detaining authority to protect and ensure that no violence or abuse is visited upon by the detained person by any one including the detaining authority itself, as the gaoler is not to be oppressor for that is the story of the pagans and not the accomplished story of humanity. [49] In this context the learned JC was not wrong in premising the duties not only on the existence of the common law duties but also on the Lockup Rules 1953 and the Prison Regulations 2000, where the following provisions are relevant to the present case. S/N RoCGa4fcqUm7GevwCK/p5w Rule 10 of the Lock-up Rules 1953. States as follows: The 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. Regulation 7 of the Prison Regulations states: That in every prison an infirmary or proper place for the reception of sick prisoners shall be provided. Regulation 18 of the Prison Regulations 2000 states: Medical examination

(a) Claim for dependency pursuant to section 7 of the Civil Law Act 1956;

(b) Claim for special damages; and

(c) Amount of cost awarded. Dependency Claim [58] The Plaintiff and her husband are father and mother of the deceased. They had testified that on average the deceased had a monthly earning of RM2,500.00 a month. Both the Plaintiff and her husband (SP2) had testified that they received a sum totalling about RM1,000.00 to RM1,300.00 from the deceased as monthly support. The deceased had worked in a sugar factory “Balamunis Enterprise” as general worker since June 2013. The “Employment Confirmation” from Balamunis Enterprise copies of the Pay Advice for Kamarulnizam bin Ismail, the deceased, and a copy of his EPF by the Kumpulan Wang Simpanan Pekerja showed that contribution had been made for January S/N RoCGa4fcqUm7GevwCK/p5w 2014 can found respectively at page 986, at pages 987-994 Rekod Rayuan, Bahagian C-Jilid 2, and at page 913 Rekod Rayuan, Bahagian C-Jilid 1. [59] The deceased also had been working part time at a fruit stall for one Encik Mohammad Syaarni bin Shahhabudin (SP5). A copy of the “Employment Confirmation” from SP5 as at page 1001 Rekod Rayuan,