Ram Talib Bin Jani Mohammed v Amirafif Bin Amerudin (BA-12B-47-06/2023)

RAM TALIB BIN JANI MOHAMMED (No. K/P: 630610-10-6061)

MUHAMMAD AMAR GHAZALI BIN ZULFAKAR (No. K/P: 950331-14-5423)

ZULFAKAR BIN MOHD DERUS (No. K/P: 660810-05-5321)

MOHD ALIF AFIAN BIN RAM TALIB (No. K/P: 920409-14-5953)

HANIZAH BINTI HARUN (No. K/P: 660612-02-5756)

HASHIMAH BINTI HARUN (No. K/P: 710827-02-5078) … PERAYU-PERAYU DAN AMIRARIFF BIN AMERUDIN (No. K/P: 890716-14-5633) … RESPONDEN [DALAM MAHKAMAH SESYEN DI SELAYANG DALAM NEGERI SELANGOR DARUL EHSAN GUAMAN NO: BD-B53-3-10/2020 ANTARA AMIRARIFF BIN AMERUDIN (No. K/P: 890716-14-5633) … PLAINTIF

RAM TALIB BIN JANI MOHAMMED (No. K/P: 630610-10-6061)

MUHAMMAD AMAR GHAZALI BIN ZULFAKAR (No. K/P: 950331-14-5423)

ZULFAKAR BIN MOHD DERUS (No. K/P: 660810-05-5321)

MOHD ALIF AFIAN BIN RAM TALIB (No. K/P: 920409-14-5953)

HANIZAH BINTI HARUN (No. K/P: 660612-02-5756)

HASHIMAH BINTI HARUN (No. K/P: 710827-02-5078) … DEFENDAN-DEFENDAN] GROUNDS OF JUDGMENT Introduction [1] The Defendants were found liable on a balance of probabilities for the tort of assault and battery, wrongful confinement and trespass to property after a full trial at the Sessions Court. Their counterclaim for defamation and assault were dismissed. [2] These claims arose substantially from an ugly altercation on 21-2- 2020 at the 1st Defendant’s residence in Bandar Sungai Buaya (“Premises”) between the Plaintiff and the Defendants, who are all relatives of the Plaintiff’s ex-wife (“Incident”). [3] The Defendants appealed to the High Court against the entire Judgment of the Sessions Court Judge. On 19-12-2024, I heard and dismissed the appeal. I upheld the Judgment of the Sessions Court and these are my grounds for doing so. In this judgment, I have referred to the parties as they were in the Court below. The pleaded case [4] On 21-2-2020, the Plaintiff and his father had gone to the Premises to collect the Plaintiff’s then 11-month-old son from his ex-wife. Based on the pleadings and evidence, there was significant marital strife between them and involvement of the wife’s family in that state of affairs. [5] The Defendants were all admittedly present at the premises on 21- 2-2020 at some point during the Incident. The narration of how events allegedly unfolded and escalated during the Incident were detailed in the Statement of Claim and repeated in witness testimony. The pleadings in this case read like affidavits. [6] The Defendants did not deny that the Incident took place and that there were physical scuffles, raised voices and damage to the Plaintiff’s car. They pleaded a somewhat different and watered-down version of events. The gist of the pleaded defence is that the Plaintiff was the aggressor. [7] The defamation counterclaim was based on the publication on WhatsApp status of a video of the Incident and images with captions and comments identifying the Defendants. The Defendants say that the captions and comments were capable of being understood to mean by way of innuendo that the 6th Defendant instigated the 1st to 5th Defendants to commit assault and battery, and they were of such character that they did so and also damaged the Plaintiff’s car. [8] The Plaintiff denied that the material published were defamatory and further relied on the defence of justification and fair comment. According to the Plaintiff, the publication was intended to show that he had evidence of what happened during the Incident and that he was the victim. Tort of trespass [9] I have set out below, descriptions of the tort of assault, battery and false imprisonment from Halsbury’s Laws of Malaysia – Tort (Volume 13(2)). These are the 3 recognized torts that this Court could identify from the pleadings which fall under the rubric of trespass to the person and are actionable per se. [10] Assault is an intentional act of force or violence to the person of another. There is an assault if there is a threat of violence and the defendant is capable, or is in a position, to inflict force on the plaintiff. The threat must be accompanied by an intention to commit the violence or it must have caused the plaintiff reasonable apprehension of an immediate infliction of force on him. [11] Battery is an act of the defendant which directly and either intentionally or negligently causes some physical contact with the person of the plaintiff without the plaintiff's consent. A mere passive obstruction is not battery. The contact must be voluntary; the intentional aspect of the tort relates only to the contact and not the intention to bring harm on the person of the plaintiff. [12] False imprisonment is where a person is imprisoned without lawful justification. Any total restraint of the liberty of a person, irrespective of the duration of the restraint, by the use or threat of force or by confinement, is an imprisonment. In any given factual matrix, the question whether the restraint is complete or not is a question of degree. [13] The Plaintiff also pleaded “harassment” and “humiliation” though it is unclear under what category of recognized torts these fall under. There appears to be no dispute that the Defendants damaged the Plaintiff’s car and therefore committed a trespass to property as alleged. Analysis and findings [14] On reviewing the records of appeal, the written submissions of counsel and the grounds of judgment of the Sessions Court Judge, I found this case to be a quintessentially unsuitable one for appellate interference. [15] There was no error of law by the Sessions Court Judge in laying down the elements of the torts of assault, battery, wrongful confinement and damage to property. In evaluating the evidence adduced by the Plaintiff to prove his case, the Sessions Court Judge had the benefit of hearing the witnesses and watching 8 video/audio recordings of the Incident that were tendered in Court. [16] The Sessions Court Judge also wrote a detailed analysis of the evidence in her judgment and if there is any doubt, the following is a concise summary of some of the key evidence considered (as described in the judgment of the Sessions Court):

Keterangan secara terus oleh Plaintif dan ayah Plaintif (SP4);

Rakaman P5 yang menunjukkan saat terakhir sebelum Plaintif dipukul beramai-ramai;

Rakaman audio D38 yang diperdengarkan kepada Mahkamah menunjukkan D6 bersorak “bantai lagi, bantai lagi”, SP4 pula kedengaran melaungkan “Sudah, sudah, mati anak aku”, dan D3 juga mengambil bahagian apabila kedengaran D3 mencarut-carut denga kuat di dalam audio tersebut. [17] On the question of wrongful confinement, the Sessions Court considered evidence that the Plaintiff and his father managed with some effort to escape to their car and was then blocked from driving away by the Defendants who obstructed the car with another vehicle while they proceeded to smash the Plaintiff’s car with fists and a helmet. [18] As the trier of fact, the Sessions Court Judge had concluded that the Defendants’ evidence was not only doubtful, but found in part to be untruthful, embellished and contradicted by objective video evidence as detailed in the judgment. [19] As the Defendants were not able to point out specifically where they say the Sessions Court Judge was plainly wrong in evaluating the evidence, this Court has no grounds to disturb the findings of the Sessions Court on the facts. [20] In dismissing the counterclaim in defamation, the Sessions Court Judge had carefully evaluated each of the impugned WhatsApp images and caption and correctly concluded that the 4th Defendant was not identified while justification was made out as a complete defence to the alleged defamation of the others. [21] The Sessions Court also found no evidence that the Defendants suffered any injury from their counterclaim for assault. There was no medical report tendered. Furthermore, to the extent that there was contact between the Plaintiff and Defendants, it is the law that a person who is assaulted is allowed to use such force as is reasonably necessary to defend himself. [22] Thus, the dismissal of the counterclaim followed from the findings of the Sessions Court Judge on the claim about the conduct of each of the Defendants. [23] As for damages, an action for trespass lies without proof of damage. The defendant may be liable for all the consequences resulting from the trespass, including those which are not foreseeable. In this case, the Plaintiff suffered physical injuries to his person and property, and was also entitled under general damages compensation for the indignity or suffering occasioned by the tort. [24] The Sessions Court Judge awarded a global sum of general damages for the Plaintiff’s non-pecuniary losses (pain and suffering) in the sum of RM30,000.00. The quantum was a measured and reasonable lump sum award that was not shown to be based on wrong principles or manifestly excessive, taking into account the facts and circumstances of the Incident. [25] In addition, the Sessions Court correctly referred to Archer v Brown [1985] QB 401 on the basis for an award of aggravated and exemplary damages. The Sessions Court awarded aggravated damages (RM50,000.00) and exemplary damages (RM50,000.00) based on the following considerations: [26] There is no good reason for this Court to interfere with the above. Conclusion [27] For all of the above reasons, I dismissed the Defendants’ appeal with costs of RM10,000.00 Bertarikh : 24 Januari 2025 ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Perayu-perayu : Mohd Zali Bin Shaari, Messrs Bahar Rusnan & Associates Untuk Responden : Ismail Baduzzaman (with Farah Binti Helmy), Messrs Ismail,