1. ) Tenaswari A/P Rajen v 1. ) Kepten Maritim Mohammad Rosli Bin Kassim Pengarah Maritim Negeri Ibu Pejabat Maritim Negeri Selangor (BA-21NCvC-24-05/2020)

TENASWARI A/P RAJEN

MADHAVAN A/L KATTAN (NO. K/P: 631128-10-6893) (Bertindak sebagai Pentadbir-Pentadbir Bersama Sah Harta Pusaka Thinagaran a/l Madhavan, simati dan dalam kapasiti sendiri serta pihak-pihak tanggungan simati yang lain) -PLAINTIF

KEPTEN MARITIM MOHAMMAD ROSLI BIN KASSIM PENGARAH MARITIM NEGERI

LEFTENAN MARITIM NORAKMA BINTI HASSAN PEGAWAI PENYIASAT AGENSI PENGUATKUASAAN MARITIM, PELABUHAN

KERAJAAN MALAYSIA-DEFENDAN 29/07/2025 12:23:27 BA-21NCvC-24-05/2020 Kand. 73 S/N NkarD5u6Z0i5J5XTwfTimg

The deceased died tragically by committing suicide whilst he was detained in the custody of the Defendants. This suit, founded on negligence, breach of statutory duty and misfeasance in public office, is brought by the Plaintiffs as administrators of estate, his dependants as well as in their personal capacity. Background facts

On 9.1.2019, at about 7.15 am, some officers from the Maritime Enforcement Agency Malaysia MEAM were patrolling the waters off the coast of the state of Selangor. At the material time, they were conducting a special operation, having received prior information about a particular boat which departed from the Sungai Belankan, Tanjung Rhu jetty.

Upon keeping a lookout, they sighted the boat which was being driven in a suspicious manner. They gave chase. Shortly thereafter, they succeeded in apprehending the boat. On the boat was the deceased, Thinagaran a/l Madhavan and another person named Inthiran a/l Inthiran . They were promptly taken into custody. On their boat, some packages were found. These were later tested to be drugs.

Both the deceased and Inthiran were produced before the Sepang Magistrate later at night for a remand order for the purpose of an investigation under section 39B of the Dangerous Drugs Act 1952. The Magistrate ordered for both the detainees to be remanded for a period of 7 days at the lockup of the MEAM office in Klang, Selangor.

Before the deceased was brought to the lockup pursuant to the remand order, he complained of pain at the head region. Leftenan Maritim Norakma binti Hassan the 2nd Defendant, was the investigating officer of the case. She directed that the deceased be sent for treatment at the Hospital Tengku Ampuan Rahimah Klang. He was seen by a doctor and diagnosed to have stress headache and given medication for it. Subsequent to his treatment, he was brought to the MEAM building and placed in the same lockup as Inthiran.

Four days later, at about 6.30 am on 13.1.2019, the lifeless body of the deceased was found hanging from the ceiling of the lockup. He had used a pair of pants to hang himself. This attire was provided to him whilst he was in the lock-up. At the material time, the lockup was monitored through a cctv. The cctv recording was tendered in evidence. Some of the photo shots of the cctv recordings showing the critical moments of the

Upon viewing the cctv, it was found that the deceased had hung the pants from a grill on the ceiling. He then stepped on a partial S/N NkarD5u6Z0i5J5XTwfTimg concrete wall in the lockup in order to hang himself from the pants.

His body was sent to Hospital Tengku Ampuan Rahimah Klang for post mortem of death of the deceased was consistent with hanging.

The Plaintiffs were informed of the death of the deceased on the evening of the same day. The parties

The Plaintiffs are the wife and father of the deceased respectively. The present action is brought in their capacity as dependants under section 7 of the Civil Law Act 1956, and also as co-administrators of the estate of the deceased under section 8 of the Civil Law Act 1956. Letters of Administration were obtained on 20.8.2019. In addition, they have also brought this suit in their personal capacity.

The 1st Defendant was the Director of the Selangor MMEA office at the material time. He was in charge of the entire operations and security of the lock up, particularly the implementation of lock up procedures to ensure the safety of detainees.

The 2nd Defendant was the investigating officer in respect of the crime the deceased was detained.

The 3rd Defendant, the Government of Malaysia is cited as an employer vicariously liable for the actions and omissions of the 1st and 2nd Defendant, and other of its officers and servants pursuant to sections 5 and 6 of the Government Proceedings Act 1956.

The Plaintiffs claim against the Defendants, is founded upon the tort of negligence, breach of statutory duty and misfeasance in public office. In relation to the cause of action in negligence, particulars of this claim have been set out in paragraph 29 therein. The essence of their complaint is that the Defendants owed a duty of care to ensure the safety of the deceased whilst he was in their custody. This they failed to do. Their failures are essentially as follows:

failed to undertake the necessary supervision of the deceased at all material times;

(ii) failed to regularly monitor the deceased through the cctv;

(iii) failed to ensure the lockup was safe for the detention of the deceased; and

(iv) put the deceased at risk of harm by providing him with a second pair of pants in the lock-up where there was a S/N NkarD5u6Z0i5J5XTwfTimg grill where it was foreseeable that the deceased would harm himself.

There were numerous other particulars of negligence listed which were either too generally worded or which I do not reason, I have omitted to set them out here.

In addition, the Plaintiffs also claim that the Defendants breached their statutory duty in failing to comply with the rules and law pertaining to the detention of the deceased in a lockup. The office of the MEAM was not a designated lockup at the material time.

Finally, the Plaintiffs allege misfeasance in public office on the part of both the 1st and 2nd Defendant, and servants of 3rd Defendant. They claim that the deceased was threatened and assaulted after his arrest as there were injuries found on the deceased which were allegedly caused by MMEA officers at the time of arrest. Whilst he was in custody, the Defendants exhibited a reckless indifference as to the welfare of the deceased. Their cumulative actions caused the deceased to commit suicide.

In view of the actions of the Defendants, the Plaintiffs now seek to be compensated in general, aggravated as well as exemplary damages.

the Plaintiffs themselves. Their evidence in court was primarily on the issue of damages which I shall deal with in the later part of this judgment. Their case on liability against the Defendants was sought to be established from the defence documentary evidence. The defence case

The Defendants deny all the allegations of negligence, breach of statutory duty and public misfeasance made against them. They contend that there was no duty of care owed to the deceased as his death was not foreseeable. Even if a duty of care was owed, they had taken all due measures to ensure the safety of the deceased.

Further, even if the Defendants were negligent, the deceased contributed to his death as it was due to his own actions. Finally, the Defendants plead novus actus interveniens to death was independent of the actions of the Defendants. His actions were the direct cause of his death. In the circumstances, no liability ought to be found against them in this particular instance.

Five witnesses testified for the defence, including both the 1st and 2nd Defendants, in support of the defence case to refute the allegations of negligence, breach of statutory duty and S/N NkarD5u6Z0i5J5XTwfTimg misfeasance in public office. Their evidence can be summarized as follows.

DW1 was the arresting officer. He testified as to the circumstances pertaining to the arrest. He observed there were injuries on the face and head of the deceased at the time of arrest. The deceased informed him that the injuries were sustained during the boat chase when he and Inthiran attempted to avoid arrest.

DW2 the investigating officer (and also the 2nd Defendant), gave evidence as to her actions upon being handed the deceased by DW1. She noticed an injury at the back of DW1, he told her that the deceased injured himself whilst avoiding arrest. However, in view of his injury, she ordered for the deceased to be brought for treatment at the Klang Hospital before he was brought to the lockup. After the deceased was detained at the MMEA office, she saw him on 2 consecutive days, 11.1.2019 and 12.1.2019. He appeared well and showed no indication of distress until she was informed on 13.1.2019 at 6.50 am that he committed suicide. Upon such information she sent the body for a post-mortem.

DW3 was the officer in charge of security at the material time. He was on a 24-hour duty from 8 am 12.1.2019 to the following day. His duty included supervising and patrolling the lock-up vicinity every 2 hourly, which he duly recorded in the log book. S/N NkarD5u6Z0i5J5XTwfTimg He did not observe anything untoward about the deceased. At 6 am on 12.1.2019, the deceased was observed to be well.

DW4 was PUSOP the material time. PUSOP is housed in another block of the MMEA office, and located about 50 meters from the lockup. cctv. The lockup in which the deceased was placed had a cctv. The cctv monitors were located on the 2nd floor of PUSOP.

On 13.1.2019, DW4 monitored the cctv at hourly intervals from 2 am to 6 am. The last time he observed the cctv was at 6.15 am. At that time, he observed the deceased to be sitting behind a partial wall in the lock-up. There was nothing untoward noticed. Shortly after, he was notified that the deceased had hung himself.

DW5 is the 1st Defendant himself. He was the Director of the MMEA Selangor at the material time, and was responsible for the entire operations of the office, including matters pertaining to security. detention. He personally saw the deceased on several occasions. He stated that the family of the deceased was allowed to see him whilst in detention. On 13.1.2019, at about 6.40 am, he was notified . He then viewed the cctv and found the deceased to have used the extra pair of pants he was provided with, to hang himself. S/N NkarD5u6Z0i5J5XTwfTimg Issues to be tried

The determination of this case turns on both issues of law and fact. On the claim premised on negligence, the following issues fall to be decided:

in view of the issue raised by the defence that his death was not foreseeable, whether a duty of care exists;

(ii) whether the Defendants were in breach of the duty of care;

(iii) whether the defence of novus actus interveniens applies in the circumstances of this case; and

(iv) whether the deceased was contributorily negligent.

As for claim for breach of statutory duty and public misfeasance, this court will have to decide whether the evidence presented before this court causes of action.

Finally, in the event liability is established on these causes of action, the appropriate award of damages to be made. S/N NkarD5u6Z0i5J5XTwfTimg Analysis and findings of this court

I shall deal with the claim on negligence first. The ingredients essential for a case in negligence was succinctly set out by the Court of Appeal in Tan Wei Hong (a child suing through his guardian ad litem and next friend, Chuang Yin E) & Ors v Malaysia Airlines System Bhd & Ors [2017] 4 MLJ 540 held as follows: [21] Perhaps, in order to better appreciate the issues raised by the parties, it is helpful to note briefly on the law of negligence. There are five distinct elements of negligence:

that the defendant had a obligation to the plaintiff to take care (ie he owed a duty of care to the plaintiff);

that the defendant should have observed a particular standard of care in order to fulfil or perform that duty;

that the defendant breached his duty of care by failing to fulfil or observe the relevant standard of care;

that the breach of duty caused harm to the plaintiff; and

that such harm was not too remote or unforeseeable such that the defendant is to liable for its occurrence S/N NkarD5u6Z0i5J5XTwfTimg (see Fridman, Gerald Henry Louis, The Law of Torts in Canada, Vol I, Toronto, Carswell 1989, at p 317).

It is trite law that the first element to prove in a negligent action is the existence of a duty of care owed to a plaintiff. The Defendants argue that they owe no duty of care to the deceased as it was not foreseeable that the deceased would commit suicide.

The question whether a duty of care is owed in any given situation is one that is very much dependant on the factual situation. However, the law on the issue has now developed to what is referred to as the Caparo test, which gives valuable guidance on the consideration the court is to embark on.

In Lok Kok Beng & 49 Ors v Loh Chiak Eong & Anor. [2015] 4 MLJ 734, the Federal Court held at page 752: To put it in a nutshell the preferred test is the three-fold test, where the requirements of foreseeability, proximity and policy considerations must exist in any claim for negligence. The three-fold test has been recognised by the House of Lords in Caparo Industries plc 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: S/N NkarD5u6Z0i5J5XTwfTimg 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 cha 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. The most difficult ingredient to prove in establishing a duty of care is the requirement of sufficient proximity between the claimant and the defendant. The court would have to look at the closeness of the relationship between the parties and other factors to determine sufficient proximity based on the facts and circumstances of each case. These factors are likely to vary in different categories of cases.

The Caparo test was re-affirmed by the Federal Court in Tenaga Nasional Malaysia v Batu Kemas Industri Sdn Bhd and another appeal [2018] 5 MLJ 561.

Reverting to the facts of this case, as a detainee, the deceased was in the custody and care of the Defendants and/or their officers. He had been detained pursuant to a remand order S/N NkarD5u6Z0i5J5XTwfTimg obtained by the investigating officer. His liberty was curtailed for the duration of the remand period. His movements were under the control and close supervision of the Defendants. In view of this, I find that the ingredient of sufficient proximity of relationship has been established to give rise to a duty of care.

By way of illustration, in Ketua Setiausaha Kementerian Dalam Negeri dan lain-lain lwn Ghaur Chandram a/l Murugesu (mendakwa bagi pihak diri sendiri dan kesemua orang tanggungan sebagai bakal pentadbir sah harta pusaka Uthayachandran a/l Ghaur Chandram) dan satu lagi rayuan [2016] 3 CLJ 310 (Court of Appeal), the Government and its officers were held liable in negligence when the deceased, a prisoner at the Sungei Buloh prison, died from a fight which ensued during food distribution. The defendants were held liable in failing to prevent his death.

Imposing a duty of care to prevent harm by third parties on account of a detainee being in the custody and care usually presents no difficulty. The situation is however, less straightforward when the harm is inflicted by the deceased himself. It is in this scenario that the Defendants argue as it was unforeseeable that the deceased would commit suicide, no duty of care ought to be imposed.

I am of the view that the duty of care on the part of the Defendants to take reasonable care of the deceased extends S/N NkarD5u6Z0i5J5XTwfTimg not only to preventing harm caused by third parties, but by the deceased inflicting self-harm.

In this regard, the House of Lords case of Reeves v Commissioner of Police of the Metropolis [2001] 1 AC 360 is particularly instructive. In Reeves (supra), the deceased was remanded on charges of credit fraud and for handling stolen vehicles. He had made two previous attempts at suicide. As a suicide risk, he was frequently observed. However, the flap of the cell door open, which allowed the deceased to tie his shirt through the spy hole on the outside of the door and hang himself.

The House of Lords had no hesitation in finding a duty of care to exist. Lord Hope held: In my opinion, it is necessary at the outset to identify the duty which was owed to the deceased by the commissioner. There is no doubt that the commissioner was right to concede that he owed a duty of care to the deceased while he remained in police custody. The deceased had been identified as a suicide risk, having on two previous occasions attempted to strangle himself with a belt after being placed in a cell. It was the provide him with the opportunity of committing suicide by making use of defects in his cell door. The risk was not S/N NkarD5u6Z0i5J5XTwfTimg that he would injure himself accidentally if given the opportunity, but that he would do so deliberately. That is the nature of an act of suicide by a person who is of sound mind. It is a deliberate act of self-destruction by a person who intends to end his own life. So I think the ely be described as a duty to take reasonable care to prevent the deceased, while in police custody, from taking his own life deliberately. As a general rule, the common law duty of care is directed towards the prevention of accidents or of injury caused by But the duty of care may sometimes extend to preventing people from injuring themselves deliberately. sound mind is deprived of this liberty and put in prison or detained in custody by the police. The duty of those who are entrusted with his custody is to take reasonable care for his safety while he remains in their hands. If it is known that he may engage in self-mutilation or suicide while he is in their custody, their duty is to take reasonable care to prevent him from engaging in these acts so that he remain free from harm until he is set a liberty. This duty is owed to the prisoner if there is that risk, irrespective of whether he is mentally disordered or of sound mind. It arises S/N NkarD5u6Z0i5J5XTwfTimg simply from the fact that he is being detained by them in custody and is known to be at risk of engaging in mutilation or of committing suicide.

Another of the Law Lords, Lord Hoffman held: The police and prison authorities have long been aware that prisoners are more than usually likely to attempt suicide or self-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.

To reiterate, in Reeves the existence of duty of care not in issue. The passages set out above made it clear that a duty of care exists when a person is in the custody of another. It is therefore not open for the Defendants to argue that a duty of care was owed to the deceased at the material time.

Defence counsel referred to the above case and sought to distinguish Reeves in that the deceased was a known suicide risk and therefore a duty of care was imposed on the defendant. There had a previous history of attempted suicide. I am of the view that the facts are barely distinguishable. Judicial notice can S/N NkarD5u6Z0i5J5XTwfTimg be taken of the fact that persons in custody are susceptible to mental stress from being in custody. They are vulnerable to depression and hence suicidal impulses is not unforeseeable. The deceased here was arrested and detained for investigation into a drug trafficking offence. One can expect him to be under extreme mental distress from the fact of being detained for a capital offence. It was not unforeseeable that he would be a suicide risk.

Closer home, the case of Fadhelah binti Othman (Pentadbir Estet and Tanggungan Mohd Fadzrin bin Zaidi, simati) v Mohamad Sukri bin Hat & 10 Ors [2024] 11 MLJ 488 demonstrated the readiness to hold that a duty of care is owed to persons in custody and such duty includes the duty to ensure the safety of the person in custody and to ensure that they do not harm themselves or commit suicide.

Having determined that a duty of care exists, the next question to consider is whether the Defendants breached the duty. Returning to the facts of this case, the deceased hung himself from the grill on the ceiling using the extra pair of pants he was provided with. In other words, the grill and the pants provided the very means by which he harmed himself. The crucial question to consider is whether the Defendants were negligent in providing an opportunity for the deceased to harm himself.

It was in evidence that when the deceased was placed in the lock-up, he was provided with two pairs of pants. One was for S/N NkarD5u6Z0i5J5XTwfTimg him to wear, and the other was a spare. The officers on duty noticed that he used the spare pants as a pillow.

The 1st Defendant was cross examined as to the Standard SOP stated that in handling detainees, MEAM is governed by their admitted in cross-examination that whilst the provision of attire was stated in the SOP, the requisite number was not stated.

I find that it was negligent on the part of the Defendants to have provided him the spare pants. Whilst pants as an attire and ordinarily innocuous and harmless, it has the potential of being dangerous when provided to a detainee. The Defendants were obviously not alert to the possibility of this piece of clothing being used by the deceased to harm himself. DW3 stated that the deceased had used it as a pillow. It is unfathomable for the deceased to be provided with another set of pants only to be used as a pillow. It would appear that there was a careless disregard of the potential harm to which this attire could be put to.

DW5 (1st Defendant) in his evidence said that prior to being placed in the lock-up, a detainee would be thoroughly checked to ensure that weapons or instruments likely to cause harm is not present on his person. Having taken precaution in this aspect, he failed to consider the other aspect of security when S/N NkarD5u6Z0i5J5XTwfTimg the deceased was provided with an item which was capable of harm.

The accused hung the extra pair of pants from a grill that was on the ceiling. DW5 in his evidence stated that the grill was installed as there was a previous escape by a detainee. Unfortunately, the grill and the pants became the very means for the deceased to harm himself. There is a further reason not to have provided the deceased with the extra pair of pants. The presence of a grill ought to have raised a red flag. The Defendants obviously overlooked this. They should have taken steps to avoid exposing the deceased to any danger.

I therefore find that the Defendants created the risk of harm to the deceased. They failed to take reasonable care by providing him with the second pair of pants which then gave him the opportunity to commit the fatal act. In the circumstances, I have no hesitation in finding the Defendants to have breached their duty of care.

There is also another aspect of their duty in which the Defendants failed. A cctv was installed which allowed monitoring of the lockup. The monitoring was done from another building which housed the PUSOP. At the material time, DW4 was on duty at the PUSOP together with 2 other officers. The cctv was viewed hourly. He stated that he last viewed the cctv at around 6.15 am. The deceased was alive then.

The cctv recording was played during the trial. It would show that at 6:05 am to 6:52 am the deceased was awake and appeared restless. He was seen to be intermittently moving between various positions. Between this time, he was found sitting behind and on the partial wall, on the floor, holding the grill and looking out of the cell. It was around 6:55 am that his intentions became more obvious when he climbed on the partial wall and sat there. At around 7:02 am, he stood up on the wall to hang the pants and hung himself shortly thereafter.

In my view, had there been continuous monitoring of the cctv, or at the very least at shorter intervals than the hourly intervals, the deceased could have been prevented from carrying out the suicide.

The lack of closer monitoring caused DW4 and those on duty with him to miss the entire actions of the deceased just prior to his suicide. DW4 attempted to explain the neglect by stating that the monitoring was required to be done only hourly. In other words, if he had viewed the cctv at 6.15 am as he stated, the next time he was obliged to do so would have been 7.15 am.

Monitoring at hourly intervals defeats the purpose of having a cctv. To my mind, it is installed for continuous monitoring. It made no sense to view the cctv only hourly as DW3 was already conducting regular patrolling of the lock up. Although DW5 stated that patrolling was expected to be done two hourly, DW3 in his evidence said that he patrolled the lock up every 30-40 S/N NkarD5u6Z0i5J5XTwfTimg minutes. The cctv monitoring must therefore supplement the regular patrolling. To my mind, had there not been a lapse in the cctv prevented.

Upon considering the totality of the evidence, I find the Defendants to have failed in taking reasonable care to prevent the death of the deceased. There is a clear breach of duty when the deceased was with an extra pair of pants in the presence of a grill in the lock up and where the risk of suicide is not unforeseeable with detainees. Coupled with this is the lack of monitoring which could have prevented the deceased from successfully carrying out his intention to commit suicide.

In the circumstances, the Defendants are liable in negligence. Defences of novus actus interveniens and contributory negligence

caused by their negligence but by the voluntary act of the deceased. This act broke the chain of causation between the

When the defence of novus actus interveniens is raised, the court will have to consider whether the act of the deceased is attributable to some independent act or event which supersedes the tortious conduct. Putting it another way, the novus actus interveniens must constitute an event of such impact that S/N NkarD5u6Z0i5J5XTwfTimg supersedes the wrongdoing of the defendant by breaking the chain of causation.

The same argument was advanced in Reeves case and it did not find favour with the House of Lords. The relevant portion of the judgment reads: .. such impact that it rightly obliterates the wrongdoing of the The reference to an independent act superseding the effect of the tortious conduct must, in my view, relate to an act which was outside the contemplated scope of events to which the duty of care was directed. Where such a duty is specifically directed at the prevention of the occurrence of a certain event I cannot see how it can be said that the occurrence of that event amounts to an independent act breaking the chain of causation from the breach of duty, even though it may be unusual for one person to come under a duty to prevent another person deliberately inflicting harm on himself.

In this case, the Defendants were under a duty of care to ensure the deceased came to no harm whilst in their custody. His death was the very event their duty was directed at. It is not therefore open to the Defendants to contend that the actions of the deceased broke the chain of causation. The act of the deceased did not constitute an independent intervening act as it flowed from the breach of the Defendants.

The defence further submit that liability ought to be apportioned as the deceased ought to be responsible taking his own life. However, I am not persuaded that liability ought to be apportioned. The deceased was in a position of extreme mental stress as he was detained for alleged drug trafficking and faced the possibility of the death penalty, if convicted. It would be unconscionable to expect the deceased to bear some part of the blame for his death especially when the Defendants own actions afforded him an opportunity to take his own life. But for committed suicide. I therefore reject the defence of contributory negligence. Breach of statutory duty

The Defendants plea of breach of statutory duty, if it can be considered so, appears to be found in paragraph 31 of its Statement of Claim. The paragraph reads:

Secara tambahan kepada perkara yang telah diplidkan di atas, Plaintif-Plaintif juga memplidkan bahawa Defendan-Defendan, pekerja-pekerja, pengkhidmat-pengkhidmat dan/atau agen-agen Defendan-Defendan telah gagal, enggan dan/atau cuai dan/atau secara sengaja telah gagal, enggan dan/atau cuai untuk mematuhi peruntukan-peruntukan dalam undang-undang sedia dan juga undang-undang lazimnya yang ada bagi menjaga, mengawal, mengawas, S/N NkarD5u6Z0i5J5XTwfTimg menyelia, mengurus serta memberi pertolongan dan perlindungan kepada simati, Plaintif-Plaintif dan keluarga amnya.

From the above pleading, there is at best, a vague reference to breach of statutory duty. The law upon which the duty was said to arise was not mentioned. (See: Asia Pacific Land Berhad and Others v Datuk Bandar Kuala Lumpur [2006] 2 MLJ 137). However, in the written submissions of counsel for the Plaintiffs, the alleged breach of statutory duty was elaborated on. The plaintiffs contend that the detention of the deceased in of the Prisons Act 1995 in that the lock up the deceased was detained must first be gazetted a place for the confinement of persons.

I consider the fact of gazettement to be material and must be pleaded in order to afford an opportunity for the Defendants to respond. The Defendants justifiably submitted that the Plaintiffs are bound by their pleadings and ought not to be allowed to raise an unpleaded point in submission. I agree.

The law on this is trite. In Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1, the Federal Court held: It is a cardinal rule in civil litigation that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded (see State Government of Perak v Muniandy [1986] 1 MLJ 490; S/N NkarD5u6Z0i5J5XTwfTimg and Anuar bin Mat Amin v Abdullah bin Mohd Zain [1989] 3 MLJ 313). In Blay v Pollard & Morris [1930] 1 KB 628, Scrutton L issues on the record; and if it is desired to raise other issues there must be pleaded on the record by The Supreme Court in Lee Ah Chor v Southern Bank Bhd [1991] 1 MLJ 428, had also emphasised the importance of pleadings and ruled that where a vital issue was not raised in the pleadings it could not be allowed to be argued and to succeed on appeal (see also AmBank (M) Bhd (formerly known as Arab-Malaysia Bank Bhd) v Luqman Kamil bin Mohd Don [2012] 3 MLJ 1 (FC)). On the same issue, HRH Raja Azlan Shah FJ (as HRH then was) in The Chartered Bank v Yong Chan [1974] 1 MLJ 157 decided on an issue which was not raised in the pleadings, the judgment must be set aside and new trial o Haji Mohamed Dom v Sakiman [1956] 1 MLJ 45; and Kiaw Aik Hang Co Ltd v Tan Tien Choy [1964] 1 MLJ 99).

The Plaintiffs cannot be allowed to take the Defendants by surprise on an unpleaded fact. For this reason, I have refrained from considering this point as it would be tantamount to a denial of justice to the Defendants who were not allowed to respond by evidence led on their behalf. S/N NkarD5u6Z0i5J5XTwfTimg Misfeasance in public office

The Plaintiffs have also premised their case on misfeasance in public office. Again, combing through their Statement of Claim, I find a vague reference to this tort in paragraph 51 in the claim for exemplary damages when the Plaintiffs pled the grounds to substantiate their claim for exemplary damages. However, these same reasons were relied upon in their claim for negligence. Notwithstanding the inadequacy in the pleadings, I shall nonetheless deal with this cause of action.

For a claim in public misfeasance to succeed, the requisite elements have been explained in Datuk Seri Khalid bin Abu Bakar & Ors v N Indra a/p P Nallathamby (the administrator of the estate and dependent of Kugan a/l Ananthan, deceased) and another appeal [2015] 1 MLJ 353 (Court of Appeal) where it was held: [33] To sustain a claim of public misfeasance, what the plaintiff is required to prove is as set-out in the case of Three Rivers District Council v Bank of England [2003] 2 AC 1; [2000] 2 WLR 1220 which are as follows:

the act complained of had been committed by a public officer purportedly pursuant to his exercise of his public power;

the act committed must be done with malice which Lord Steyn in Three Rivers explained as follows: S/N NkarD5u6Z0i5J5XTwfTimg First there is the case of targeted malice by a public officer, ie, conduct specially intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is unlawful,

that there is proximity between the deceased and the defendants giving rise to the plaintiff a legal standing to sue; and

that the acts of the defendants had caused material damage to the deceased.

The Plaintiffs sought to establish, from the cross-examination of the defence witnesses, a case of assault at the time of arrest, denied/neglect in the provision of food and inhumane treatment in the lock up cell, as well as being subject to threats by one MEAM officer. Raising facts and allegations in cross-examination is not equivalent to adducing evidence from a party itself. I find no credible evidence from the Plaintiffs to substantiate the allegations raised in cross-examination. All the allegations were denied by the defence witnesses. The Plaintiffs could have called the medical doctor from the Klang Hospital who examined the deceased after his arrest to establish a case S/N NkarD5u6Z0i5J5XTwfTimg of assault at time of arrest. It is a well-established principle that there is no property in a witness. (See: Alliance Connext Sdn Bhd & Anor v Wangsa Budimas Sdn Bhd [2022] 2 MLJ 154, Court of Appeal). Bearing in mind the ingredients of the tort of misfeasance in public office, I do the evidence do not even suggest remotely a case of misfeasance in public office.

In the result, I find on a balance of probabilities, the Plaintiffs to have succeeded only in establishing their case in negligence.

For the sake of completeness, I will also add that the 1st and 2nd Defendants, whilst they were not the actual tortfeasors as their duties did not include patrolling and monitoring the deceased at the material time, they were superior officers who had authority over the well-being of the deceased. The 1st Defendant stated in his evidence that as the State Maritime Director, he was responsible for the entire operations and security of the maritime office. The 2nd Defendant had authority over the deceased as she was the investigating officer. This is a case of systemic failure, as revealed by the evidence, for which the superior officers are to held responsible. (See: Muthammal a/l Rose Udayar & Anor v ACP A Paramasivam & 3 Ors [2011]

I note that in this case, the defence did not raise any objections to the 1st and 2nd Defendants being cited as tortfeasors.

I shall now deal with the issue of damages, starting with the claim for special damages. It is trite law that special damages must be strictly proved. (See: Child N (claiming through her father) & Ors v Kerajaan Malaysia [2022] 1 MLJ 666).

Having perused the pleaded special damages, I find them to the following to have been reasonably incurred and I allow as follows:

Cost of extracting Letters of Administration RM 5,850.00

(ii) Post-mortem report RM 500.00

(iii) Police report RM 20.00_ _ RM 6,370.00

The Plaintiffs have made a claim on behalf of the dependents under section 7 of the Civil Law Act 1956 CLA . The dependents are as listed in paragraph 34 of the Statement of Claim. The law on section 7 has since been amended with effect from 31.5.2019. However, as the cause of action arose before the date of coming into force of the amending Act, the claim for bereavement is only for the benefit of the 1st Plaintiff as the spouse, for the amount of RM 10,000.00 and I so allow. (See: section 7 (3A) and (3B) of the CLA).

As for the loss of earnings, the 1st Plaintiff (PW1) testified that the deceased was working as a security guard at the material time with a monthly salary of RM 1,000.00. A letter of offer from Delta Force Security Services & Consultancy Sdn Bhd was adduced in evidence. The contents state that the deceased was to receive a monthly salary of RM 1,000.00 with effect from 1.2.2018. The 2nd Plaintiff (PW2) confirmed this in his evidence. In addition, PW2 stated that his son was also working as a part-time fisherman using the fishing boat belonging to PW2 to supplement his income. He estimated from his part-time job to be about RM 1,800.00 per month.

The EPF statement of the deceased was also adduced in evidence to show a balance of RM 7,057.14 and a contribution by his employer of RM 130.00 for the month of January 2019.

I am satisfied on the documentary evidence that the deceased was gainfully employed at the material time. Although the evidence of a salary slip would provide more certainty as to the amount he was receiving. Considering the circumstances of the Plaintiffs, it would be too optimistic to expect good record keeping. Although the Plaintiffs claim that the deceased was contributing an amount of RM 2,200.00 per month towards his dependants, I do not find the evidence of this fact. However, bearing in mind that the deceased had 3 children at the material time with aging parents to support, I find an amount of RM 1,200.00 to be reasonable contribution to his dependents.

The deceased was 31 years of age at the material time. His years of purchase would be 12 ((55-31)/2). Applying the multiplicand of RM 1,200.00, the amount for loss of earnings would be RM 172,800.00. As there are 6 dependents listed, comprising of the 1st Plaintiff and her 3 children and the 2nd Plaintiff together with his wife, it necessary to apportion the amount of RM 172,800.00 in the ratio of 80:20, for these 2 groups of dependants.

A dependency claim under section 7 of the CLA also allows for funeral expenses. I consider an amount of RM 5,000.00 to be reasonable and I so award.

Apart from the dependancy claim, the Plaintiffs have also made a claim for general damages of RM 500,000.00 (paragraph 52(3) of the Statement of Claim), presumably for misfeasance in public office. In view of my finding that the tort was not proved, damages does not arise. Further, this claim was also not addressed in the submissions by counsel, and I would regard the claim as abandoned. For these reasons, the claim is not allowed.

As for the aggravated damages of RM 500,000.00, there is no merit for this claim. The is allowed on the cause of action of negligence only. There was no evidence of egregious conduct on the part of the Defendants to warrant an award of aggravated damages. (See: Ashley v Chief Constable of Sussex Police [2008] 2 WLR 975, S/N NkarD5u6Z0i5J5XTwfTimg Korperal Zainal bin Mohd Ali & 6 Ors v Selvi a/p Narayan & Anor [2021] 4 AMR 529 (FC) ). There was also no evidence that the conduct of the Defendants caused the plaintiff to suffer additional mental distress beyond what is normal arising from the death of the deceased.

Finally, the claim for exemplary damages of RM 500,000.00 is also not allowed. The law as to the award of exemplary damages in a dependency claim and estate claim has since been settled in Ketua Polis Negara & Ors v Nurasmira Maulat bt Jaafar & Ors (minors bringing the action through their legal mother and next friend Abra bt Sahul Hamid) and other appeals [2018] 3 MLJ 184 (Federal Court). The Federal Court held that damages under section 7 was intended to be compensatory in nature. An award of exemplary damages under section 7 of the Act was clearly contrary to the As for the claim for exemplary damages, section 8 of the Act clearly prohibits such an award. In any event, the submissions of learned counsel did not pursue the claim for exemplary damages.

is allowed. I also order that the Defendants are to pay the Plaintiffs the following amounts:

Special damages RM 6370;

Funeral expenses RM 5,000;

Bereavement (1st Plaintiff only) RM 10,000;

Loss of earnings RM 172,800.00; (in the proportion of 80:20, for the benefit of the 1st Plaintiff and her 3 children, and 2nd Plaintiff and his wife respectively)

Finally, I also order that costs of the action of RM 30,000.00 be paid by the Defendants to the Plaintiffs. Dated 28th July 2025 -sgd-ALICE LOKE YEE CHING JUDGE HIGH COURT IN MALAYA AT SHAH ALAM S/N NkarD5u6Z0i5J5XTwfTimg NEGERI SELANGOR Counsel for the Plaintiff: Mr. Manoharan Malayalam (Mr. P Subramaniam & Mr. Sarathbala Balakrishnan with him) (Messrs. M Manoharan & Co.) Counsel for the 1st, 2nd and 3rd Defendants: SFC Puan Siti Syakimah binti Ibrahim (FC Puan Nuurzul Izzati binti Zulkipli with her (Jabatan Peguam Negara)