Hassan Marsom

Hassan Marsom & Ors
[2018] 5 MLRA v. Mohd Hady Ya’akop 263
HASSAN MARSOM & ORS

v.
MOHD HADY YA’AKOP
Federal Court, Putrajaya

Richard Malanjum CJSS, Hasan Lah, Balia Yusof, Aziah Ali, Jeffrey Tan FCJJ
[Civil Appeal No: 01(f)-27-09-2016(M)]
7 June 2018
Police: Arrest — Illegal or wrongful arrest — Appellants appealed against decision

that respondent’s detention was unlawful — Whether requirements of ss 117 and 119
Criminal Procedure Code complied with — Whether appellants protected by s 32 of
Police Act 1967 — Whether detention of respondent valid in law — Whether detention
constituted false imprisonment — Whether respondent could bring action in a civil
suit as an alternative to procedures provided under Chapter XXXI Criminal Procedure
Code — Whether detention was in violation of respondent’s constitutional right under
Federal Constitution — Whether exemplary damages should be granted
Tort: False imprisonment — Unlawful detention by police — Appellants appealed

against damages awarded to respondent for false imprisonment — Whether
requirements of ss 117 and 119 Criminal Procedure Code complied with — Whether
appellants protected by s 32 Police Act 1967 — Whether detention of respondent valid
in law — Whether detention constituted false imprisonment — Whether respondent
could bring action in a civil suit as an alternative to procedures provided under Chapter
XXXI Criminal Procedure Code — Whether detention was in violation of respondent’s
constitutional right under Federal Constitution — Whether exemplary damages should
be granted
This appeal related to the respondent’s claim against the appellants for the
unlawful detention and the pain and suffering he had undergone while in
police custody. At the High Court, the respondent’s claim for damages was
allowed, however the declaration that the respondent’s detention was unlawful
was dismissed. On appeal, the Court of Appeal granted a declaration that the
respondent’s detention was unlawful, but dismissed the respondent’s appeal
on the quantum of damages awarded. Consequently, the appellants filed
this appeal to determine the following question of law, namely, whether
damages for false imprisonment could be awarded for detention under
an order of the Magistrate under s 117 of the Criminal Procedure Code
(‘CPC’). In their submissions, the appellants contended that, amongst others,
the detention of the respondent was valid in law; the respondent did appeal
against the detention order pursuant to the provisions of Chapter XXXI of
the CPC; and the appellants were protected by s 32 of the Police Act 1967. On
the other hand, the respondent submitted that his initial arrest was unlawful;
that his subsequent detention was not in compliance with the provisions of ss
117 and 119 of the CPC; and the unlawful detention was in violation of his
constitutional right under art 5 of the Federal Constitution.
Hassan Marsom & Ors
264 v. Mohd Hady Ya’akop [2018] 5 MLRA
Held (dismissing the appeal by majority, and affirming the decision of the
Court of Appeal):
Per Balia Yusuf FC, with Richard Malanjum CJSS, Hasan Lah FCJ and Aziah
Ali FCJ concurring:
(1) A Magistrate exercising his discretion under s 117 of the CPC was
performing a judicial function which was subject to scrutiny. The prerequisites
of ss 117 and 119 of the CPC must be satisfied. Both provisions were couched
in the mandatory terms and must strictly be complied with. In this case,
not only were the strict requirements of ss 117 and 119 of the CPC not
satisfied, but there was also dereliction of duty and obligation bordering gross
irresponsibility on the part of the 3rd and 4th appellants and also suppression
of material development in the investigation as to the involvement of the
respondent at the stage where the application for the extension of the remand
order was made. Hence, the remand order as well as the subsequent extension
was obtained from the Magistrate without duly complying with the safeguards
laid out in law for remand orders to be issued. (paras 71-73)
(2) The appellants’ reliance on the provisions of s 32 of the Police Act 1967 and
s 14 of the Courts of Judicature Act 1964 was misconceived. In the instant case,
the Court of Appeal had found that the strict requirements of the provisions of
ss 117 and 119 of the CPC had not been complied with and further, there was a
failure on the part of the police to be forthright in applying for the extension of
the remand order to enable the magistrate to make an informed decision on the
application. Furthermore, assaults were committed, and injuries were inflicted
on the respondent in the instant case while he was in the custody of the police
under the pretext of using the remand orders. There was therefore misuse and
abuse of power, thus making the detention of the respondent unlawful. The
police should never be allowed to abuse the powers of detention under s 117 of
the CPC for a collateral purpose to extort information or for any other purpose
under the pretext of investigation and interrogation. Therefore, the courts have
a responsibility to ensure that detained suspects were not improperly treated.
(paras 101-103)
(3) In the instant appeal, the respondent had in his amended statement of claim
pleaded and prayed for a declaration that his detention was unlawful and a
transgression of his fundamental rights under art 5 of the Federal Constitution.
In law, he had a choice either to pursue his cause either by way of the procedures
provided under Chapter XXXI of the CPC or by the very action he undertook
in this case. He must be allowed to have the choice of bringing an action in a
civil court as an alternative to the procedures provided under Chapter XXXI
of the CPC. In fact, it would be more cumbersome on his part to adopt the
procedures under the CPC and to subsequently file a claim in the civil court.
The High Court, being a court of unlimited jurisdiction had 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
Hassan Marsom & Ors
pursuant to powers conferred under the law. In the circumstances, the court
was seized with the power to grant the declaration sought by the respondent.
(paras 114 & 118)
(4) The respondent’s liberty in the instant appeal had been encroached and the
court must intervene and declare that his detention was unlawful. Assault in
police custody was a clear violation of the most fundamental liberty guaranteed
under the Federal Constitution. (paras 120-121)
(5) An award of damages must reflect the sense of public outrage, emphasise
the importance of the constitutional right and the gravity of the breach and
deter further breaches. Apart from the physical injury occasioned by the
assaults, there was also the intangible harm such as the distress and injured
feelings suffered by the respondent during the period of his detention. Hence,
in respect of the award of exemplary damages, it should be increased to
RM100,000.00 to reflect the court’s indignation towards the actions of the
police. (paras 124 & 127)
Per Jeffery Tan FCJ (dissenting on the claim for false imprisonment):
(1) In the instant appeal, since the respondent was remanded under a judicial
order, it could not be false imprisonment. Although a violation of art 5 of
the Federal Constitution could justify an award of exemplary damages,
it could not turn malicious prosecution into false imprisonment. Given the
interposition of a judicial order for the remand of the respondent, the tort of
false imprisonment was not available. But since the respondent was remanded
without reasonable cause, it was malicious prosecution. However, there was no
claim for malicious prosecution. In the result, the claim for false imprisonment
should be dismissed. (paras 151-152)
Case(s) referred to:

Attorney General of Trinidad and Tobago v. Ramanoop [2006] 1 AC 328 (refd)
Austin v. Dowling [1870] LR 5 CP 534 (refd)
Bala Krishnan Appala Naidu v. Ketua Inspektor Prabakaran Shanmugam & Ors (No
2) [2010] 2 MLRH 395 (refd)
Bal Krishna v. Emperor AIR 1931 Lahore 99 (refd)
Berry v. British Transport Commission [1962] 1 QB 306 (refd)
Brown v. Chapman [1848] 6 CB 365 (refd)
Cheow Siong Chin v. Menteri Dalam Negeri Malaysia & Ors [1985] 1 MLRA 224 (refd)
Chong Fook Kam & Anor v. Shaaban & Ors [1968] 1 MLRA 664 (distd)
Coghlan v. Chief Constable of Cheshire Police and Others [2018] EWHC 34 (refd)
Dato’ Menteri Othman Baginda & Anor v. Dato’ Ombi Syed Alwi Syed Idrus [1980]
1 MLRA 18 (refd)
Datuk Seri Khalid Abu Bakar & Ors v. N Indra P Nallathamby & Another Appeal
[2014] 6 MLRA 489 (refd)
Hassan Marsom & Ors
DK Basu v. State of West Bengal AIR [1997] SC 610 (refd)

Educational Company of Ireland Ltd v. Fitzpatrick (No 2) [1961] IR 345 (refd)
Everett v. Ribbands [1952] 2 QB 198 (refd)
Harnett v. Bond [1924] 2 KB 517; [1925] AC 669 (refd)
Hashim Bin Saud v. Yahaya Bin Hasim & Anor [1976] 1 MLRH 413 (refd)
In Re Syed Mohammad Syed Isa & Ors [2001] 3 MLRH 597 (refd)
In Re The Detention Of S Sivarasa & Ors [1996] 3 MLRH 180 (refd)
Kable v. State of NSW [2012] NSWCA 243 (refd)
Karpal Singh v. Sultan Of Selangor [1987] 1 MLRH 215 (refd)
Ketua Polis Daerah Johor Bahru, Johor & Ors v. Ngui Tek Choi [2013] 4 MLRA 381
(refd)
Ketua Polis Negara & Ors v. Nurasmira Maulat Jaffar & Ors And Other Appeals [2017]
6 MLRA 635 (refd)
Lai Kim Hon & Ors v. Public Prosecutor [1980] 1 MLRA 366 (refd)
Leonard Teoh Hooi Leong v. PP [2009] 5 MLRA 438 (refd)
Lim Kit Siang v. Dato’ Seri Dr Mahathir Mohamad [1986] 1 MLRA 259 (refd)
Lock v. Ashton [1848] 12 QB 871 (refd)
Madjai Sanusi v. Pengarah Imigresen Negeri Johor & Ors [1999] 3 MLRH 285 (refd)
Masa Nangkai & 5 Ors v. Sgd Edwin Nancha & Anor [2004] 5 MLRH 288 (refd)
Mohamed Lajan v. Daud [1963] 1 MLRH 402 (refd)
PP v. Audrey Keong Mei Cheng [1997] 2 MLRA 23 (refd)
Pyx Granite Co Ltd v. Ministry of Housing and Local Government [1958] 1 QB 554
(refd)
QIW v. Felview Pty Ltd [1989] 2 Qd R 245 (refd)
R (WL (Congo)) v. Home Secretary (SC(E)) [2011] 2 WLR 671 (refd)
Re Datuk James Wong Kim Min; Minister Of Home Affairs, Malaysia & Ors v. Datuk
James Wong Kim Min [1976] 1 MLRA 132 (refd)
Saul Hamid Bin Pakir Mohamad v. Inspector Abdul Fatah Bin Abdul Rahman & Anor
[1999] 5 MLRH 850 (refd)
Terrence Calix v. Attorney General of Trinidad and Tobago [2013] UKPC 15 (refd)
The Russian Commercial & Industrial Bank v. British Bank for Foreign Trade [1921]
AC 438 (refd)
West v. Smallwood 3 M & W 418; 150 ER 1208 (refd)
Wong Kok San v. WH Salt [1948] 1 MLRH 197 (refd)
Zenati v. Comr of Police of the Metropolis [2015] 2 WLR 1563 (refd)
Legislation(s) referred to:

Civil Law Act 1956, ss 7, 8
Courts of Judicature Act 1964, s 14
Hassan Marsom & Ors
Courts Ordinance 1948, s 107

Criminal Procedure Code, ss 23, 117(1), 119, 323, Chapter XXXI
Criminal Procedure Code [Ind], s 167
Federal Constitution, art 5
Penal Code, ss 304A, 330, 331
Police Act 1967, ss 23, 32
Road Traffic Ordinance 1958, s 34A
Other(s) referred to:

Bernadette Richards, Melissa De Zwart, and Karinne Ludlow, Tort Law
Principles, p 70
Carolyn Sappideen, Prue Vines and Penelope Watson, Torts: Commentary and
Materials, 11th edn, p 60
Clerk & Lindsell on Torts, 21st edn, 15-46
David Howarth, Martin Matthews, Jonathan Morgan, Janet O’Sullivan,
Stelios Tofaris, Hepple and Matthews’ Tort Law: Cases and Materials, 2016
Publication, p 750
Fleming, The Law of Torts, pp 38, 39
Gary Chan Kok Yew and Lee Pey Woan, The Law of Torts in Singapore, 2nd
edn, 02.036, 17.002
Halsbury’s Laws of England, 3rd edn, vol 38, p 765
Halsbury’s Laws of England, 5th edn, vol 97, para 544
Harry Street, The Law of Torts, 7th edn, pp 23, 27
Richard Clayton and Hugh Tomlinson, Civil Actions against the Police, p 116
Salmond & Heuston on the Law of Torts, 21st edn, pp 126-127
Counsel:
For the appellants: Kamal Azira Hassan (Zureen Elina Mohd Dom with him); SFC
For the respondent: J Amardas (Terence Chan Yoong Tian with him); M/s KP Ng &
Amardas
For the amicus curiae: Salim Bashir; Bar Council Malaysia
[For Court of Appeal judgment, please refer to Mohd Hady Ya’akop v. Hassan Marsom
& Ors [2017] 2 MLRA 641]
JUDGMENT
Balia Yusof Wahi FCJ:
Background Facts
[1] This is a case of custodial assault and police brutality against a man who
was suspected to be involved in a crime which never was. The respondent
Hassan Marsom & Ors
herein, had, in the early hours of 22 November 2008 accompanied his friend,
one Abdul Manan b Hasan (SP4) to the Ibu Pejabat Polis Kontinjen (IPK)
Melaka. It was about 4.00am. Earlier, at about 3.30am while they were
enjoying themselves at the Rally Club, Melaka, SP4 received a phone call from
an unidentified police personnel asking him to come over to the IPK. In the
said phone conversation, SP4 was asked whether he was involved in a fight
involving a police officer at a restaurant in MITC Melaka. SP4 was directed to
see a police officer by the name of Hassan b Marsom, the 1st appellant herein.
[2] At the IPK, SP4 went in to see the 1st appellant while the respondent
waited at the guardhouse. About half an hour later, the respondent was
brought to the 2nd appellant’s room and later into a room where there were
plain clothed police personnels. He was blindfolded, stripped and assaulted
despite his denial on his involvement in a fight which purportedly had taken
place at a restaurant in MITC Melaka.
[3] Later in the morning, the respondent was produced before the magistrate
for a remand order under s 117 of the Criminal Procedure Code (CPC).
A remand order for a period of seven days from 22 November 2008 to 29
November 2008 was obtained from the magistrate by the 3rd appellant.
Thereafter, the respondent together with four other detainees including SP4,
were brought to the Balai Polis Melaka Tengah lock up. One Corporal Nasir b
Jaafar (SP10) noticed injuries suffered by the respondent and ordered him to
be brought to the hospital. Together with three other suspects, the respondent
was taken to the Melaka General Hospital at about 7.00pm where he was
hospitalised for seven days from 22 November 2008 to 29 November 2008.
[4] While still at the hospital, on 28 November 2008, the respondent’s remand
order was extended for another seven days until 5 December 2008 on which
day he was released from police custody.
[5] The result of the police investigation revealed that the respondent was not
involved in the fight at the restaurant in MITC Melaka and accordingly no
charges were brought against him.
[6] As a result the assault, the respondent suffered injuries and complaint of
shortness of breath and chest pain.
[7] The respondent filed a claim in the High Court against the appellants
herein claiming for general and special damages as well as exemplary and/or
aggravated damages for the unlawful detention and the pain and suffering he
had undergone during the ordeal.
[8] In his amended statement of claim, the respondent also prayed for a
declaration that his detention between 22 November 2008 and 5 December
2008 was unlawful and a further declaration that his rights under art 5 of the
Federal Constitution had been breached.
Hassan Marsom & Ors
Proceedings In The High Court
[9] At the end of the trial, the learned Judicial Commissioner (JC) of the
Melaka High Court found the 1st, 2nd, 3rd, 4th and 7th appellants liable
and awarded damages to the respondent. The 7th appellant was held to be
vicariously liable for the acts of the 1st to 4th appellants. They are only liable
for the injuries suffered by the respondent while in police custody. The award
runs:
(i) Damages for injuries suffered RM 60,000.00
(ii) Exemplary damages RM 50.000.00
(iii) Aggravated damages RM 50,000.00
(iv) Special damages RM 100.00
Total RM160,100.00
Interest at 4% per annum on the said amount was also ordered from
22 November 2008 to date of payment.
[10] The learned JC however, did not allow the declaration sought by the
respondent.
[11] In refusing the declaration sought by the respondent, the learned JC had
merely stated that the remand order was properly issued by the magistrate,
hence, the detention of the respondent was legal.
[12] The learned JC cited and followed the decision of the Court of Appeal in
Ketua Polis Daerah Johor Bahru Johor & Ors v. Ngui Tek Choi [2013] 4 MLRA 381,
a decision which we will revert to in the later part of this judgment.
[13] Dissatisfied with the learned JC’s decision refusing the declaration, the
respondent lodged an appeal to the Court of Appeal and the issue raised were
as follows:
(i) that the quantum of damages ordered in his favour for assault
and pain and suffering was grossly inadequate considering the
seriousness of the injuries suffered;
(ii) that the learned JC had erred in not declaring that his detention
was unlawful.
Proceedings In The Court Of Appeal
[14] At the Court of Appeal, the main contention of the respondent was that
the two remand orders were wrongfully obtained by the police and without
sufficient cause and as such, the detention must be declared to be unlawful.
Consequently, further damages, including exemplary damages ought to be
allowed for such unlawful detention.
Hassan Marsom & Ors
[15] In support of his contention that the remand orders were invalid and that
his detention was therefore unlawful, the respondent contended:
(i) that his initial arrest by the 1st appellant was made without proper
instruction;
(ii) the first remand order was obtained from the magistrate without
sufficient basis or grounds to indicate even a reasonable suspicion
to implicate him in the crime;
(iii) the extended remand order was wrongly issued as the magistrate
was being misled into issuing the same;
(iv) there was non-compliance and a breach of ss 117 and 119 of the
CPC.
[16] The appellants on the other hand contended that the remand orders
obtained were lawful and were in compliance with the provisions of the law
namely, ss 117 and 119 of the CPC. The magistrate exercising his powers
under the provisions of the CPC was performing a judicial act and the police
in detaining the respondent were merely following a lawful order issued by
the court. A Civil Court is precluded from challenging the validity of the
remand order. It was further contended that s 32 of the Police Act 1967 affords
protection to the appellants.
[17] The Court of Appeal dismissed the respondent’s appeal on the issue
of damages and the decision of the learned JC on the quantum of damages
awarded was affirmed but allowed his appeal on the declaration sought.
[18] In allowing part of the respondent’s appeal and granting the declaration
sought, the Court of Appeal ruled at para 44 of its judgment as follows:
“44. It was our unanimous view therefore that the appellant had made out
a case for the declaration sought, namely, that his detention by the Police
from 22 November 2008 to 5 November 2008 was unlawful and he was
entitled to be compensated with damages for being denied of his liberty and
freedom during that period (apart from the injuries, pain and suffering he was
subjected to during that detention, for which he had been awarded damages
affirmed above). It was obvious to us that the learned Trial Judge had not
given sufficient consideration to all the surrounding facts in evidence before
him. His Lordship had misdirected himself on the law too, in dismissing
the further prayer for a declaration that the appellant’s detention had been
unlawful and refusing to allow consequential orders for damages.”
[19] For the said unlawful detention, the Court of Appeal awarded a sum of
RM50,000.00 as general damages and another RM50,000.00 as exemplary
damages.
Hassan Marsom & Ors
The Question Of Law
[20] Leave to appeal to this court was granted to the appellants on 29 August
2016 on a question of law which reads as follows:
“Whether damages for false imprisonment can be awarded for detention under
an Order of the Magistrate under s 117 of the Criminal Procedure Code.”
The Appellants’ Submissions
[21] Maintaining the stance taken in their defence, the appellants submit that
the detention of the respondent is valid in law. The first detention, that is
the first 24 hours is valid in law because he was arrested upon a reasonable
suspicion that he was involved in the fight at the restaurant in MITC Melaka.
As to the subsequent detention under s 117 of the CPC and its extension
thereafter, it was submitted that the detention is lawful by virtue of the fact that
it was a lawful order of the magistrate allowing the police’s application under
the said provision.
[22] Both proceedings before the Magistrate on 22 November 2008 for the
first remand order and the subsequent proceeding on 28 November 2008 for
an extension of the remand order were made for purposes of completing the
investigation. The process and the procedure adopted by the police in applying
for the said remand order and its extension were carried out in compliance
with and in accordance with provisions of the law, namely, ss 117 and 119 of
the CPC.
[23] The learned Senior Federal Counsel, appearing on behalf of the appellants
further submitted that the remand orders issued by the magistrate constitutes
a judicial act and as such no claim for damages could lie citing the case of
Chong Fook Kam & Anor v. Shaaban & Ors [1968] 1 MLRA 664 as an authority
to support his contention. Reliance was also placed on the provisions of s 14 of
the Courts of Judicature Act 1964.
[24] The remand orders under s 117 of the CPC issued against the respondent
had never been set aside and neither was there any appeal or a revision made
pursuant to the provisions of Chapter XXXI of the CPC. Until set aside or
appealed against, the remand orders remain valid and good in law. Whether
the remand orders were obtained from the magistrate upon sufficient cause has
been shown or whether the magistrate was misled in so issuing the orders are
questions of facts which must be established in proceedings pursuant to the
provisions of Chapter XXXI of the CPC. It is never the function of the court
in a civil claim for unlawful detention to go behind the remand order and to
question its legality and/or the manner in which it was obtained.
[25] Section 32 of the Police Act 1967 should come in aid of the appellants’
action. The said provision gives protection to the police in carrying out their
duties pursuant to a warrant issued by a competent authority. The respondent, it
Hassan Marsom & Ors
was submitted, was detained in obedience of the lawful order of the magistrate,
a competent authority within the meaning of s 32 of the Police Act 1967.
[26] Finally, it was submitted that the respondent’s action is clearly an abuse of
the court’s process and an award of damages for a detention under s 117 of the
CPC ought not to be allowed.
The Respondent’s Submission
[27] Learned counsel for the respondent submitted that there are three stages
of the detention, the first of which is the period between the time of arrest at
around 5.00am on 22 November 2008 and 11.00am, when the first remand
order was obtained. The second part of the detention covers the period during
the first remand order that is between 22 November 2008 and 28 November
2008 while the third part of the detention covers the period between 28
November 2008 and 5 December 2008 covering the period under which the
respondent was detained under the second remand (ie the extension remand
order) obtained by the police at the Melaka General Hospital.
[28] As to the first detention, the respondent contended that he was detained
by Corporal Hassan (the 1st appellant herein) without any basis. Section 23 of
the CPC had not been satisfied. The evidence proffered by the 1st appellant on
his arrest showed that it was made without any basis.
[29] With regard to the second and third stages of the detention, the respondent
submitted that the provisions of ss 117 and 119 of the CPC were not complied
with. The police had failed to follow the strict requirements of the said
provisions. It was further submitted that the Magistrate had been misled into
issuing the remand orders upon application made by the 3rd and 4th appellants.
[30] The unlawful detention of the respondent is in violation of his

constitutional rights accorded by art 5 of the Federal Constitution and the
appellants cannot hide under the cloak of s 32 of the Police Act 1967 and
seeking protection under the said provision. Section 32 is never intended to
provide protection for any unlawful acts of the police.
[31] A court of unlimited jurisdiction has an inherent power to set aside any
order and correct any wrong that has been done in breach of any written law.
In a case like the instant, where a breach of the provisions of ss 117 and 119 of
the CPC is alleged, the respondent being aggrieved, must be allowed to bring a
collateral proceeding to challenge the same as an alternative to the procedures
provided in Chapter XXXI of the CPC.
Decision
Whether The Arrest Was Lawful?
[32] In the appellants’ written submission, it was submitted that the arrest and
subsequent detention of the respondent was lawful. Although acknowledging
Hassan Marsom & Ors
that the respondent’s challenge on his arrest and detention is threefold, namely,
the initial arrest, the first detention order and the second remand order, no
submission was made by the appellants as to the initial arrest itself. The
respondent contended that he was arrested without any basis and that s 23 of
the CPC had not been satisfied.
[33] Section 23 of the CPC as relevant to this appeal deals with the powers of a
police officer to arrest without an order of a magistrate and without a warrant.
It provides:
“23. When police or penghulu may arrest without warrant.
(1) Any police officer or penghulu may without an order from a Magistrate
and without a warrant arrest.
(a) any person who has been concerned in any offence committed
anywhere in Malaysia which is a seizable offence under any law in
force in that part of Malaysia in which it was committed or against
whom a reasonable complaint has been made or credible information
has been received or a reasonable suspicion exists of his having been so
concerned;
(b) ...;
(c) ...”
[34] In its ground of judgment, we note that the Court of Appeal had made an
oblique reference to the issue of the respondent’s arrest wherein it was stated:
“32. Counsel for the appellant also referred to us the decision in Masa Nangkai
& 5 Ors v. Sgd Edwin Nancha & Anor [2004] 5 MLRH 288 where the court
held that the question whether there was wrongful arrest and detention would
very much depend on whether the police had acted within the provision of
s 23(1)(a) of the CPC and to rely on that section the police had to show they
had reasonable or probable cause to effect the arrest in that they had received
credible information or held a reasonable suspicion as to the commission of
an offence. It was argued that a similar criterion applied when applying for a
remand order to facilitate further investigation.”
[35] In our considered view, the above cited passage of the Court of Appeal’s
judgment merely reiterated that the test of whether or not there was a reasonable
suspicion as to the commission of the offence would also be applied when
applying for a remand order
[36] Before the learned JC too, the issue of whether the arrest was lawful or
otherwise was never dealt with. Focus was given more to the detention itself.
Be that as it may, we are in agreement with the Court of Appeal that whether
there was wrongful arrest or not depends on whether the police had reasonable
or probable cause to effect the arrest on the respondent which depends on
whether the police had credible information or held a reasonable suspicion as
to the commission of the offence. The case of Masa Nangkai & 5 Ors v. Sgd Edwin
Hassan Marsom & Ors
Nancha & Anor [2004] 5 MLRH 288 cited in the Court of Appeal’s judgment
explains the requirements of s 23 of the Police Act 1967 on such power of
arrest by the police. (See also: Saul Hamid Bin Pakir Mohamad v. Inspector Abdul
Fatah Bin Abdul Rahman & Anor [1999] 5 MLRH 850).
[37] We are constrained to hold that since the issue of whether the initial
arrest was lawful or otherwise was never brought up in the courts below, it
would not be open to the respondent to bring it up at this stage before us.
Both the High Court and the Court of Appeal dealt only with the issue on the
s 117 detention. It is only before us now that the respondent is raising the so
called threefold attack which brings in the issue of his initial arrest. In fact,
this aspect of the argument is not within the ambit of the question posed.
Whether The Detention Under The Remand Orders Is Valid?
[38] The respondent’s action against the appellants is based on a claim for false
imprisonment arising from an unlawful detention. While the contention of the
appellants is that the detention is lawful, the respondent alleges otherwise. His
detention was under s 117 of the CPC. Thus, the core issue is simply whether
the detention of the respondent under the said provision of the CPC is lawful.
[39] On the validity of the remand orders, the Court of Appeal had embarked
on the exercise of determining whether those remand orders had been obtained
from the magistrate(s) upon sufficient cause being shown or whether the
judicial officer(s) concerned had been misled in issuing the same.
[40] In his pleadings, the respondent had specifically pleaded that the remand
orders were obtained without complying with the provisions of the law (tidak
mematuhi keperluan undang-undang) and also that the magistrate issuing the
said remand orders were not informed of the true facts on the investigation of
the case (tidak memberitahu majistret berkenaan berhubung dengan fakta-fakta
sebenar mengenai penyiasatan kes berkenaan). Those were his allegations.
[41] Section 117 of the CPC merits reproduction and it provides as follows:
“117. Procedure where investigation cannot be completed within twenty-four
hours.
(1) Whenever any person is arrested and detained in custody and it appears
that the investigation cannot be completed within the period of twenty-four
hours fixed by s 28 and there are grounds for believing that the accusation
or information is well founded, the police officer making the investigation
shall immediately transmit to a Magistrate a copy of the entries in the diary
hereinafter prescribed relating to the case and shall at the same time produce
the accused before the Magistrate.
(2) The Magistrate before whom an accused person is produced under this
section may, whether he has or has no jurisdiction to try the case, authorize
the detention of the accused in such custody as follows:
Hassan Marsom & Ors
(a) if the offence which is being investigated is punishable with

imprisonment of less than fourteen years, the detention shall not be
more than four days on the first application and shall not be more
than three days on the second application; or
(b) if the offence which is being investigated is punishable with death or

imprisonment of fourteen years or more, the detention shall not be
more than seven days on the first application and shall not be more
than seven days on the second application.
(3) The officer making the investigation shall state in the copy of the entries in
the diary referred to in subsection (1), any period of detention of the accused
immediately prior to the application, whether or not such detention relates to
the application.
(4) The Magistrate, in deciding the period of detention of the accused

shall take into consideration any detention period immediately prior to the
application, whether or not such detention relates to the application.
(5) The Magistrate in deciding the period of detention of the accused shall
allow representations to be made either by the accused himself or through a
counsel of his choice.
(6) If the Magistrate has no jurisdiction to try the case and considers further
detention unnecessary he may order the accused person to be produced before
a Magistrate having such jurisdiction or, if the case is triable only by the High
Court, before himself or another Magistrate having jurisdiction with a view to
transmission for trial by the High Courts.
(7) A Magistrate authorizing under this section detention in the custody of the
police shall record his reasons for so doing.”
[42] We are replete with authorities which explain the mechanics of s 117 of
the CPC and we will examine some of them in the following manner.
[43] Strict compliance with the provisions of s 117 of the CPC was explained
by Vohrah J (as he then was) in the case of In Re The Detention Of S Sivarasa
& Ors [1996] 3 MLRH 180. The facts in Sivarasa as summarised in the report
may be stated as follows: On 9 November 1996, 67 people were arrested by
the police in an alleged demonstration which took place at Asia Hotel, Kuala
Lumpur. The suspects were remanded under s 117 of the Criminal Procedure
Code (FMS Cap 6) (‘the CPC’) from 10 November 1996 till 13 November
1996. An application was then made to the magistrate for an extension of the
detention period of 10 suspects under s 117 of the CPC for another 10 days ie
from 13 November 1996 until 22 November 1996. Under the heading ‘Alasan-
Alasan’ in the application it was indicated, inter alia, that the application
had to be made as the detention period was too short and was insufficient
for the police to complete investigation. The magistrate stated at the end of
her notes of proceedings that she was satisfied with the reasons as appeared
in the application, and also in the investigation diary that was given. She
went on to allow the application for the extension of detention. Apparently,
Hassan Marsom & Ors
the investigation diary that had been referred to by the magistrate consisted
of three sheets of typewritten paper, which had the heading ‘Pergerakan
Soalsiasat Tahanan’ and a timetable of when the 10 suspects were being taken
out from and being sent back to the cells where they were detained. In the
afternoon of 13 November 1996, an urgent application for the revision of the
magistrate’s remand order under s 323 of the CPC was filed in the High Court.
The complaint was that the omnibus remand order made on the 10 persons by
the magistrate was not in compliance with s 117 of the CPC.”
[44] In exercising his revisionary powers under s 323 of the CPC, the learned
judge set aside the remand order made by the magistrate and held:
“(1) From the record of proceedings and the documents which the magistrate
purported to rely on, it was clear that the magistrate had not appreciated the
strict nature of s 117 of the CPC and the case on the matter
(2) Pursuant to s 117 of the CPC, the police officer has a mandatory duty to
transmit to a magistrate a copy of the entries in the diary as prescribed under
s 119 of the CPC when producing a suspect before him.
(3) In this case, no copy of the entries in the diary was transmitted to the
magistrate. This was fatal to the application for extension of detention, as it
meant that the magistrate did not have the prescribed material (especially that
referred to in s 119(1)(d) to act upon in her judicial enquiry whether to order
further remand.
(4) The three sheets of paper produced in this case did not contain copies of
‘entries in the diary’ as prescribed under s 119, and certainly did not relate
to ‘the day by day’ proceedings of the officer making the police investigation
which were entered into his diary. Also, the timetable listed in the papers
could not be considered as copies of the entries prescribed under s 119.
(5) Section 117 of the CPC also requires that there be grounds for believing
that the accusation or information is well founded for the police officer to
make his application for detention. These grounds are subject to judicial
scrutiny. It has to be stressed that a magistrate ought not give a remand order
in police custody without his satisfying himself as to its necessity and that
the period of remand ought also to be restricted to the necessities of the case.
If the necessities of the case for remand or further remand are not known,
no remand order should be made; Bal Krishna v. Emperor AIR 1931 Lah 99
followed.
(6) The liberty of an individual after arrest is at stake and art 5(4) of the
Federal Constitution reposes an onerous judicial duty on a magistrate to
decide whether a person should be detained or detained further.
(7) The application for extension of detention was an omnibus application

for the detention of 10 named persons, and there was no condescension to
details as to what each of them was arrested for and why it was necessary
to extend the remand of each of them. Whatever vague reasons shown on
the application (which did not show any nexus between the suspects and a
Hassan Marsom & Ors
suspected offence or offences) for the continued detention of each of them

were without any foundation.
(8) Section 28 and 117 have been inserted into the CPC for a good reason, so
that the detention by the police of a person beyond 24 hours after his arrest
is not as a result of an executive act but as a result of a judicial decision in
consonance with art 5(4) of the Federal Constitution. It was unfortunate that
the magistrate did not advert to what was required of her under s 117.”
[45] The format of the diary referred to under s 117(1) of the CPC must be in
accordance with the provisions of s 119 of the CPC which provides:
“119. Diary of proceedings in investigation.
(1) Every police officer making a police investigation under this Chapter shall
day by day enter his proceedings in the investigation in a diary setting forth.
(a) the time at which the order, if any, for investigation reached him;
(b) the time at which he began and closed the investigation;
(c) the place or places visited by him; and
(d) a statement of the circumstances ascertained through his investigation.
(2) Notwithstanding anything contained in the Evidence Act 1950, an accused

person shall not be entitled, either before or in the course of any inquiry or
trial, to call for or inspect any such diary:
Provided that if the police officer who has made the investigation refers to
the diary for the purposes of ss 159 or 160 of that Act, such entries only as
the officer has referred to shall be shown to the accused, and the Court shall
at the request of the officer cause any other entries to be concealed from
view or obliterated.”
[46] The duty of the police officer to transmit to the magistrate a copy of the
entries in the diary in applying for a remand order is a mandatory requirement
of s 117(1) of the CPC. Not only the diary must be in the form as specified in
s 119 of the CPC but it must also be accompanied with grounds indicating that
the information against the accused person is well founded.
[47] Delivering the judgment of the Court of Appeal in Public Prosecutor v.

Audrey Keong Mei Cheng [1997] 2 MLRA 23, Shaik Daud JCA at p 25 of the
report had the following to say on the linkage between ss 117 and 119 of the
CPC:
“Section 119 of the CPC provides that the police officer making the
investigation shall forthwith transmit to the magistrate ‘a copy of the entries
in the diary hereinafter prescribed relating to the case and shall at the
same time produce the accused before such magistrate.’ The diary herein
mentioned, has been prescribed in s 119 of the CPC which provides that
every police officer making a police investigation shall day by day enter his
proceedings in the investigation in a diary setting forth the time at which the
Hassan Marsom & Ors
order, if any, for investigations reached him, the time at which he began and
closed investigation, the place or places visited by him and a statement of
the circumstances ascertained through his investigation. Section 117 of the
CPC makes it mandatory for the police officer seeking a detention order of an
arrested person to produce a copy of such a diary, failing which a magistrate
ought not to entertain the application.
In the present case, let us examine whether the provisions of s 117 of the CPC
has in fact been complied with. It cannot be gainsaid that where the liberty of
a citizen is to be curtailed, the law must be adhered to strictly. The record in
the present case, shows that no such copy of the diary, as envisaged by s 117
of the CPC, was produced before the registrar. What was in fact produced was
a letter dated 12 May 1994, addressed to the magistrate from Latt Mastura
bte Mansor from Cawangan Siasatan Jenayah Perdagangan, Bukit Aman
setting forth the facts upon which a detention order was requested for The fact
that a letter was produced before the registrar, was conceded by the learned
deputy public prosecutor both in the High Court and in this appeal. He further
conceded that it was not a copy of the diary as envisaged by s 117 of the CPC.
In our judgment, it is mandatory for the police to produce a copy of the

diary as prescribed by s 119 of the CPC. The details in such a diary would
provide a true picture of the proceedings in the investigation in compliance
with s 119 of the CPC. Since the police, in this case, failed to do this, the
registrar would be right, in law, to refuse to order the further detention of the
respondent. Furthermore, on our perusal of the contents of the ‘letter’, we find
that nowhere has it been shown that the respondent has committed or been
involved in any offence to justify her further detention in order to complete
the investigation. On the contrary, the information shows that she would, in
all probability, only be a potential witness against her husband. We would,
without hesitation, hold that it would be an abuse of the process of law for
police officers to use the machinery of s 117 of the CPC to compel witnesses
or potential witnesses to come forward to assist them in their investigations.
There are other provisions in the CPC for this purpose.”
[48] It was held by the Court of Appeal in Audrey Keong that s 117 of the
CPC had not been remotely complied with. So was the three sheets of papers
titled ‘Pergerakan Soalsiasat Tahanan’ (Suspects’ Interrogation Movement) in
Sivarasa showing a timetable of the times the ten suspects were taken out and
brought in to the cells where they were detained were held to be not to contain
copies of “entries in the diary” as envisaged under s 119 of the CPC.
[49] Both Sivarasa and Audrey Keong were cited with approval by Raus Sharif
JCA (as he then was) in another Court of Appeal case of Leonard Teoh Hooi
Leong v. PP [2009] 5 MLRA 438, wherein His Lordship had stated at pp 440-
441 as follows:
“[17] The main issue in this case is whether the detention of the appellant
under s 117 of the CPC was lawful. The working of s 117 of the CPC is
well settled (see In Re The Detention Of S Sivarasa & Ors [1996] 3 MLRH 180;
Public Prosecutor v. Audrey Keong Mei Cheng [1997] 2 MLRA 23). Section 117
of the CPC requires the police to produce a copy of the investigation diary
Hassan Marsom & Ors
before the magistrate as prescribed by s 119 when producing a suspect. The

diary must provide a true picture of the proceedings in the investigation. If
the magistrate upon perusal of the entire diary was satisfied that there were
grounds for believing that the accusation or information against the suspect
was well founded and it was necessary for the purpose of the investigation to
remand him, then the magistrate would have to make the remand order. As
to the length of the remand order, it is within the discretion of the magistrate,
who has to decide based on the nature and circumstances of each case
provided that the detention shall not exceed 15 days in the whole as stated in
the then s 117(2) of the CPC.
[18] In Re The Detention Of S Sivarasa & Ors KC Vohrah J (as he then was) held
that the failure to transmit to the magistrate a copy of the entries was fatal to
the application before the magistrate as it meant that the magistrate did not
have the prescribed material to act upon her judicial enquiry whether to order
for further remand. Similarly, in Public Prosecutor v. Audrey Keong Mei Cheng,
Shaikh Daud JCA held that since the police failed to produce a copy of the
diary as prescribed by s 119 of the CPC, the registrar was right to refuse to
order further detention of the respondent.
[19] We endorse the above views ...”
[50] In considering an application for a remand order, a magistrate must balance

fairly between the right of a personal liberty of an individual who has not
been proven guilty of an offence, against the equally important public interest
vis a vis the duty of the police to investigate crimes. It involves an exercise of
discretion and that discretion must be exercised judicially and is subject to the
court’s scrutiny. (Hashim Bin Saud v. Yahaya Bin Hasim & Anor [1976] 1 MLRH
413 and Chong Fook Kam & Anor v. Shaaban & Ors [1968] 1 MLRA 664). KC
Vohrah J in In Re The Detention Of S Sivarasa & Ors (supra) said:
“Section 117 also requires that there be grounds for believing that the
accusation or information is well founded for the police officer to make
his application for detention. These grounds, needless to say, are subject to
judicial scrutiny.”
[51] Harun J (as he then was) in Hashim Bin Saud v. Yahaya Bin Hasim & Anor
(supra) had spoken of the task of a magistrate issuing a remand order in the
following words:
“The purpose of a detention under s 117 CPC therefore is to enable the police
to complete investigations. The detention itself is subject to judicial control.
The power to detain rests squarely and fully on the Magistrate not the police.
The Magistrate is required to satisfy himself on every occasion if detention
is at all necessary and if so to determine the length of time actually required
to complete the investigation - s 117(ii) CPC. If he orders detention he must
record his reasons for doing so - s 117(iii) CPC. To enable the Magistrate
to make the decision whether to detain or not the police must supply the
Magistrate a copy of the investigation diary - s 117(i) CPC. This copy of the
investigation diary to be transmitted to the Magistrate must contain all the
particulars as required under s 119 CPC, that is to say, the police must tell the
Hassan Marsom & Ors
Magistrate all they know so far up to time of application and not what they
think the Magistrate need only know ...”
[Emphasis Added]
[52] Speaking on the same subject matter in dealing with s 167 of the Indian
Criminal Procedure Code, an equipollent provision to s 117 of the CPC, Bhide
J in Bal Krishna v. Emperor AIR 1931 Lahore 99 stated:
“It is to be regretted that Magistrates frequently fail to realize their
responsibility in the matter, though the law and the High Court rules on
the subject are perfectly clear s 167, Criminal PC, requires a Magistrate
remanding an accused person to police custody to state his reasons in writing.
This provision has not been complied with in the present instance. If the
Magistrate had cared to study the diaries, as it was their duty to do before
granting a remand, they would not have, I think, failed to discover that there
was no legal justification for remanding the accused to police custody after
the expiry of the first remand. I would also take the opportunity to invite
attention to the rules on the subject in Chap 6, Vol II of the Rules and Orders
of the High Court in which the subject has been dealt with at great length
and stress had been laid on the great care necessary in remanding accused
persons to police custody. It will appear from these instructions that a remand
to police custody ought not to be granted by a Magistrate without satisfying
himself as to its necessity and the period of remand ought also to be restricted
to the necessities of the case.”
[53] To ensure uniformity and strict compliance with the requirements of the
provisions in s 117 of the CPC, a Practice Direction dated 2 January 2003
was issued by the then Chief Justice Tun Mohamed Dzaiddin titled “Arahan
Amalan Ketua Hakim Negara Bil. 3/2003 Perintah Penahanan Di bawah s 117
Kanun Prosedur Jenayah (KPJ)”, effective from 2 January 2003. For ease of
reference, we reproduce below the said Practice Direction:
Hassan Marsom & Ors
Hassan Marsom & Ors
Hassan Marsom & Ors
Hassan Marsom & Ors
[54] A standard format of minuting for an application of remand order under

s 117 of the CPC was introduced by the Pekeliling Pendaftar Mahkamah
Tinggi Malaya Bil 1 Tahun 2011 on Prosiding Reman di Mahkamah Majistret
di Semenanjung Malaysia. By the said circular a new format of minuting,
replacing whatever existing format in existence was introduced as shown in
Lampiran A of the said circular. Once again, for ease of reference, we take the
liberty to reproduce the said circular together with its Lampiran A as follows:
Hassan Marsom & Ors
Hassan Marsom & Ors
Hassan Marsom & Ors
[55] The issuance of the above two documents reemphasise the requirement
for strict compliance with the provisions of ss 117 and 119 of the CPC.
Magistrates, Sessions Court Judges and Registrars in performing their duties
in issuing remand orders and extension remand orders are required to adhere
strictly to the requirements and the formats as prescribed.
[56] Coming back to the appeal before us here, the appellants contended that
ss 117 and 119 of the CPC had been complied with and therefore the remand
orders were lawful. The magistrate issuing the remand orders was performing
a judicial act and the appellants were merely following a legal order of the
magistrate and s 32 of the Police Act 1967 affords them protection. Besides, the
remand orders were never set aside and no appeal or revision pursuant to the
provisions of the CPC was made.
[57] The Court of Appeal disagreed with the above contentions and for the
reasons following, we agree with the Court of Appeal.
[58] We have set out the law in the preceeding paragraphs of this judgment
and we will now embark on the exercise of determining whether the Court
of Appeal was justified in allowing the respondent’s claim for the declaration
sought in respect of his arrest and subsequent detention.
[59] The Court of Appeal we note, had done what the learned JC had failed to
do, namely, to consider the evidence as regard to the application for the remand
orders. The learned JC had failed to consider the validity or legality of the
remand orders issued by the magistrate.
Hassan Marsom & Ors
[60] In dismissing the respondent’s claim for wrongful detention, at para 11 of

his judgment, the learned JC had ruled:
“... Plaintif ditahan dan dibawa ke mahkamah untuk direman atas alasan
disyaki secara munasabah terlibat dalam pergaduhan di restoran Zubaidah di
MITC. Sama ada betul atau tidak, itu bukan persoalan yang harus ditentukan
oleh saya dari segi itu. Namun perintah reman di sini telah dikeluarkan
dengan teratur dan sahih oleh majistret. Dengan itu saya tidak membenarkan
tuntutan untuk tahanan tidak sah sepertimana dipohon.”
[61] With due respect, we are unable to fathom as to how the learned JC had
come to that conclusion when there is not the slightest indication as to his
treatment of the evidence to support that conclusion. We agree with the Court
of Appeal that “the learned trial judge had not given sufficient consideration to
all the surrounding facts in evidence before him”. In fact, from our reading of
the above mentioned paragraph of the judgment, it is quite apparent that the
learned JC considered it as a non-issue.
[62] The Court of Appeal had at paras 37 and 38 of its grounds of judgment
considered the evidence with respect to the first and second remand orders
respectively. We do not propose to set out those two paragraphs, but suffice
it to say that the evidence from the testimony of the 3rd and 4th appellants
herein in their cross-examination as considered by the judges of the Court
of Appeal were sufficient enough to support its conclusion as stated in the
following paragraphs of its judgment:
“39. What was obvious from the above evidence in court was that, firstly, the
3rd respondent was not the arresting officer in the case of the plaintiff. There
was no denying the fact that only such an arresting officer could vouch as
to the circumstances or suspicion to support the remand of the plaintiff for
further investigation. To compound matters, the 3rd respondent did not even
know who this officer was. What seemed to have happened here was that a
group of nine persons had been herded to the court on the morning of the 22
November 2008 and 3rd respondent sort of mechanically obtained the first
remand order against the appellant.
40. Secondly on 28 November 2008, when the extension of the remand was
applied for at the Hospital, it had already been determined by the police that
the appellant was at the alleged time of the fight not at Restoran Zubaidah
(MITC) (where the fight under investigation had taken place) but at another
location, namely at Rally Club, as had maintained by the appellant always.
Despite the 4th respondent being aware of this fact or development at that
stage in the investigation, the Magistrate was not informed accordingly. This
result of investigation was also admittedly not recorded in the Investigation
Diary in respect of this case produced to the court.
41. Having considered the law and having examined the record we therefore
found that there were merits in the submissions of counsel for the appellant,
that the first remand order, as well as the subsequent extension, were obtained
by the Police from the Magistrate(s) without the 3rd and 4th respondents duly
complying with the safeguards laid out in law for remand orders to be issued.
Hassan Marsom & Ors
What was at stake here was the liberty of an individual. The first remand
order and the subsequent extension were therefore, in our view, improperly
and unlawfully obtained. The Police Force were charged with the task of
protecting the people and they had to act responsibly and within the prescribed
limits explicitly provided in law in the exercise of their powers.”
[63] The onus is always on the police, the appellants herein, to satisfy the
magistrate that an order to remand the respondent is necessary. As required
by s 119 of the CPC, the entries in the investigation diary must support the
conclusion that there are reasonable grounds for believing the information or
accusation that the respondent was involved in the fight at the Restaurant at
MITC Melaka and also that further investigation is needed to fill in the gaps
in the evidence gathered so far and it is necessary for such purpose to order a
further remand. (See: In Re Syed Mohammad Syed Isa & Ors [2001] 3 MLRH
597).
[64] It is incumbent on the part of the magistrate issuing a remand order under
s 117 of the CPC to properly apply his or her mind. To enable the magistrate
to do so, the appellants are duty bound to comply with the strict requirements
of the provisions of ss 117 and 119 of the CPC. Remand orders should not be
taken lightly or as a matter of mere formality.
[65] In the course of his submission, learned counsel for the respondent in the
person of Mr J Amardas had referred to us the record of proceedings before
the learned magistrate for the application of the first remand order. The records
as shown at pp 388-391 of Rekod Rayuan Jilid 2(2) Bhg B & Bhg C, from
our scrutiny fell far short in meeting the requirements as stipulated in ss 117
and 119 of the CPC. The application was made by Insp Manimannen (the
3rd appellant herein) for the remand of five named suspects on the ground
that “siasatan tidak dapat diselesaikan dalam tempoh 24 jam” beside giving a
brief facts of the case. The respondent’s name was not among the original five
named suspects in the application. His name was included in another sheet
of paper containing another nine names of other suspects together with the
respective police report number. Insofar as the notations or the notes by the
magistrate (which we found to be hardly legible in most parts) it merely stated:
“G: Perintah direman selama 7 hari hingga 28 November 2008 di bawah s
117 KAJ
- Alasan spt (illegible)
...................”
Perhaps, the magistrate concerned was unaware or chose not to abide by the
Arahan Amalan and Pekeliling Pendaftar which we had referred to earlier.
[66] We pause here to recall the observation made by Vohrah J (as he then
was) in Sivarasa case on the omnibus application for the detention of 10 named
persons in that case with no condescension to details as to what each of them
was arrested for and why it was necessary to extend their remand. Likewise in
the instant case such details and/or information were also lacking.
Hassan Marsom & Ors
[67] The learned JC had also found that when the 3rd appellant applied for
the remand order he was unaware as to the reason why the respondent was
detained. Nevertheless the learned magistrate issued a seven-day remand on
the respondent. Despite this fact, the learned JC held that “Namun perintah
remand di sini telah dikeluarkan dengan teratur dan sahih oleh majistret”.
[68] It is not surprising that the investigations were unable to be completed
within 24 hours as stated in the application because as the facts revealed, the
respondent was merely being kept in police custody, interrogated and physically
tortured from the time of his of arrest at about 3.00am or 4.00am until he was
produced before the magistrate for the remand order at about 11.00am. That
perhaps too, was the reason for the lack of the entries in the diary as required
under ss 117 and 119 of the CPC.
[69] It is also worthy to note that in his evidence under cross-examination,
the 4th appellant (ACP Jay January Sio Wou) had candidly admitted of not
complying with s 119 of the CPC. This is despite the fact that he was the one
who applied for the extension of the remand order against the respondent which
was made at the Melaka General Hospital. This is a clear evidence of non-
compliance with the provisions. We need not comment or say anything further.
Despite the fact that seven days had lapsed, there was nothing produced before
the magistrate indicating the day by day entries of the proceedings and progress
of the police investigation as required under s 119(1) of the CPC. In our view,
not only the diary referred to in the section must be in the form as specified
therein, but it must also be replete with grounds and information against the
respondent as to justify his further remand. The onus is on the appellants to
satisfy the magistrate. As for the magistrate issuing the extension remand order,
it seemed he was quite happy to issue the same by merely stating:
“Mahkamah: OYDS 3,4 & 5 ditahan reman lanjut selama 7 hari sehingga
5/12/08 di bawah s 117 KPJ untuk bantu siasatan.
Alasan spt permohonan.”
In our view, a bare statement accepting the reasons given in an application such
as this is insufficient compliance with s 117 of the CPC.
[70] The reasons for the application (alasan permohonan) as stated by the
investigating officer state as follows:
“3.1 Untuk mencari rakan sepenjenayah suspek yang masih bebas.
3.2 Untuk mendapatkan barang-barang kes yang dipercayai disembunyikan.
3.3 Untuk mendapatkan sampel DNA suspek bgi tujuan perbandingan.
3.4 Untuk membuat kawad cam bagi suspek-suspek yang belum dibuat
pengecaman.
3.5 Untuk mendapatkan kordinasi nombor-nombor serta SMS antara
telefon suspek-suspek semasa kejadian.
Hassan Marsom & Ors
3.6. Untuk menyiapkan kertas siasatan dan pertuduhan.
3.7 Untuk merujuk kertas siasatan kepada KJSJ Melaka.
3.8 Untuk merujuk kes kepada YA TPR.”
[71] It must be emphasised that a magistrate exercising his discretion under

s 117 of the CPC is performing a judicial function which is subject to scrutiny.
It is incumbent upon him to apply his mind before issuing an order under
the said provision. The prerequisites of ss 117 and 119 of the CPC must be
satisfied. The object, purpose and design of the two provisions of the CPC
are meant for the protection of the subject. Both provisions are couched in
the mandatory terms and must strictly be complied with. Failure to do so may
gravely prejudice the liberty of a subject. It cannot be gainsaid that where the
liberty of a citizen is affected, the law must be adhered to strictly.
[72] We endorse the findings of the Court of Appeal that not only the strict
requirements of ss 117 and 119 of the CPC had not been satisfied but there
was also dereliction of duty and obligation bordering gross irresponsibility
on the part of the 3rd and 4th appellants and also suppression of material
development in the investigation as to the involvement of the respondent at the
stage where the application for the extension of the remand order was made.
At para 42 of its judgment, the Court of Appeal said:
“42. Although we might not go so far as to say that the Police had willfully
deceived the Magistrate or obtained those orders on a ‘lie’ (as argued by
counsel), it was nevertheless abundantly clear that there was dereliction of
duty and obligations bordering on gross irresponsibility on the part of the
3rd and 4th respondents as Police Officers when applying for those remand
orders from the Magistrate. It could not be gainsaid that the first remand order
was obtained by the Police from the Magistrate without having adduced to
the court through the arresting officer (or not the least being able to identify
the arresting officer) relevant material to ground reasonable suspicion or
other sound basis to detain the appellant. In so far as the extension order was
concerned, what was beyond any dispute from the record, was that there was
here suppression of a material development in the investigations at that stage,
namely that the appellant’s story that he was not at the scene of the fight had
by then been verified and confirmed by the Police; there was therefore no basis
for any further detention of the appellant.”
[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 3rd and 4th 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 (Balkrishnan v. Emperor AIR 1931 Lah
99).
Hassan Marsom & Ors
Section 32 Police Act 1967
[74] We now move on to deal with the contention of the appellants on the
protection afforded under s 32 of the Police Act 1967 and their reliance on the
case of Chong Fook Kam & Anor v. Shaaban & Ors (supra).
[75] The facts of the case in Shaaban may be stated as follows. The defendants,
who were police officers, had arrested the plaintiffs who were the driver and an
attendant of a lorry without warrant. The arrest was as a result of investigations
carried out by the defendants on receiving a complaint of a hit-and-run road
accident. The lorry which the 1st plaintiff was driving answered the description
of the lorry involved in the accident. The plaintiffs were brought before a
magistrate the following day and a detention order was obtained. As there
was insufficient evidence to connect them with the accident, the plaintiffs were
later released. They brought an action for damages for false imprisonment.
The action was dismissed. The learned judge held that the arrest was lawful as
there was sufficient information available to the defendants at the time of the
arrest to give rise to a reasonable suspicion that the plaintiffs had committed a
sizeable offence under s 304A of the Penal Code or s 34A of the Road Traffic
Ordinance 1958.
[76] The plaintiffs appeal to the Federal Court. Learned counsel for the
plaintiffs agreed that the detention may be divided in two parts namely (a)
detention prior to the detention order issued by the magistrate under s 117 of
the CPC and (b) detention after that order. No claim was therefore made in
respect of the second part. For the record, the plaintiffs were arrested at about
9.00am on 11 July 1965, brought before the magistrate for detention under s
117 the next day, and released a day later on 13 July 1965.
[77] The Federal Court allowed the appeal and damages as agreed between the
parties in the sum of $2500 was awarded to the plaintiffs.
[78] On further appeal to the Privy Council by the defendants, it was held
that the test of reasonable suspicion could not be equated with that of a prima
facie proof and the Federal Court was held to have used the wrong test on
the powers of arrest by the police. The police had reason to suspect that the
plaintiffs were concerned in the offence of reckless driving and therefore their
detention was lawful.
[79] Before us, the learned Senior Federal Counsel relied on a passage in the
judgment of the Federal Court touching on the s 117 detention which goes to
say:
“An order of a magistrate authorizing the detention of the arrested person
beyond the period of 24 hours made under s 117 is a judicial act and cannot
found a claim for damages against the magistrate because of s 107(1) of the
Courts Ordinance, 1948, which reads:
Hassan Marsom & Ors
“No ... Magistrate or other person acting judicially shall be liable to be

sued in any civil court for any act done or ordered to be done by him in
the discharge of his judicial duty, whether or not within the limits of his
jurisdiction, nor shall any order for costs be made against him, provided
that he at the time in good faith believed himself to have jurisdiction to do
or order the act complained of.”
Nor may such an order found a claim for damages against a police officer
because s 41(1) of the Police Ordinance No 14 of 1952 (now s 32(1) of the
new Police Act No 41 of 1967) provided:
“Where the defence to any suit instituted against a police officer is that the
act complained of was in obedience to a warrant purporting to be issued by
any competent authority, the court shall, upon production of the warrant
containing the signature of such authority and upon proof that the act
complained of was done in obedience to such warrant, enter judgment in
favour of such police officer.”
In view of these provisions, counsel for the plaintiffs was right in not claiming
damages in respect of the detention following the magistrate’s detention
order.”
[80] The provision of s 107 of the Courts Ordinance 1948 is now embodied in
s 14 of the Courts of Judicature Act 1964 which provides as follows:
“Protection of Judges and other judicial officers
14. (1) No Judge or other person acting judicially shall be liable to be sued in
any civil court for any act done or ordered to be done by him in the discharge
of his judicial duty, whether or not within the limits of his jurisdiction, nor
shall any order for costs be made against him, provided that he at the time
in good faith believed himself to have jurisdiction to do or order the act
complained of.
(2) No officer of any court or other person bound to execute the lawful
warrants or orders of any Judge or other person acting judicially shall be liable
to be sued in any civil court for the execution of any warrant or order which
he would be bound to execute if within the jurisdiction of the person issuing
the same.
(3) No sheriff, bailiff or other officer of the Court charged with the duty of
executing any judgment, order or warrant of distress, or of attaching any
property before judgment, shall be liable to be sued in any civil court in
respect of any property seized by him, or in respect of damage caused to any
property in effecting, or attempting to effect the seizure, unless it shall appear
that he knowingly acted in excess of the authority conferred upon him by
the writ, warrant or order in question, and he shall not be deemed to have
acted knowingly in excess of his authority merely by reason of knowing of the
existence of a dispute as to the ownership of the property to seized.”
[81] The decision in Shaaban in relation to the immunity and protection given
under s 32 of the Police Act 1967 and s 14 of the Courts of Judicature Act 1964
has been followed in a number of cases such as Saul Hamid Bin Pakir Mohamad
Hassan Marsom & Ors
v. Inspector Abdul Fatah Bin Abdul Rahman & Anor (supra), Ketua Polis Daerah
Johor Bahru, Johor & Ors v. Ngui Tek Choi (supra) and Baljeet Singh a/l Katar Singh
& Ors v. Ng Sek Wah (A decision of the Court of Appeal in Rayuan Sivil No
B-01-124-2011). These are all Court of Appeal’s decisions.
[82] In Datuk Seri Khalid Abu Bakar & Ors v. N Indra P Nallathamby & Another
Appeal [2014] 6 MLRA 489 (Kugan case), the provision of s 32 of the Police
Act 1967 was dealt with by the court in deciding that the s 117 detention was
unlawful. We will deal with it shortly later.
[83] For ease of reference, we will also set out s 32 of the Police Act 1967
which provides as follows:
“Non-liability for act done under authority of warrant.
32.(1) Where the defence to any suit instituted against a police officer, an extra
police officer, volunteer reserve police officer or an auxiliary police officer is
that the act complained of was done in obedience to a warrant purporting to
be issued by any competent authority, the court shall, upon production of the
warrant, enter judgment in favour of such police officer, extra police officer,
volunteer reserve police officer or auxiliary police officer.
(2) No proof of the signature of such authority shall be required unless the
court has reason to doubt the genuineness thereof; and where it is proved
that such signature is not genuine, judgment shall nevertheless be given in
favour of such police officer or extra police officer if it is proved that, at the
time when the act complained of was committed, he believed on reasonable
grounds that such signature was genuine.”
Kugan Case
[84] In the circumstances of the matter before us, it is pertinent to consider

Kugan case in some detail. The brief facts of the case as summarised in the
report goes as follows: The plaintiff who was the mother and the administrarix
of the estate of Kugan a/l Ananthan, (‘the deceased’) claimed damages against
the defendants for negligence and/or breach statutory duties for unlawfully
having killed the deceased. It was pleaded that the 1st defendant and/or
other police personnel had wrongfully and intentionally assaulted and beat
the deceased resulting in the death of the deceased whilst the deceased was
detained by the police at the Taipan Police Station. The plaintiff also claimed
for damages against the defendants for misfeasance of public office, assault
and battery, false imprisonment, aggravated, exemplary, vindicatory and
special damages. According to the plaintiff, the deceased was arrested by the
police on 14 January 2009 and the defendants did not inform the plaintiff as
to where the deceased was being held. On 20 January 2009 at about 9.00am,
the plaintiff was informed by a police officer that the deceased had died whilst
in the police custody. On 21 January 2009, the 1st defendant, being the Chief
Police Officer of Selangor at the material time had issued a false explanation to
the media on the deceased’s cause of death. He had alleged that ‘the deceased
had asked for a glass of water and then collapsed and died’. It was contended
Hassan Marsom & Ors
that the 1st defendant had made attempts to cover up the real cause of death
of the deceased and/or issued statements calculated to exonerate the police
from liability with the full knowledge that the death was unlawfully caused
by the members of the police force. The body of the deceased bore extensive
marks of beating and other severe physical trauma. The first autopsy showed
that there were ‘22 categories of external wounds’ and the cause of death was
stated as ‘pulmonary edema’. Upon the release of the first autopsy report, the
1st defendant again issued a public statement that the deceased had died ‘due
to water in lungs.’ The first autopsy report was inconsistent with the external
marks of abuse on the body of the deceased. The pathologist, Dr Abdul Karim
bin Tajudin was subsequently found guilty of professional misconduct by the
Malaysian Medical Council in preparation of the first autopsy report and had
been reprimanded. A second autopsy report conducted upon the request of
the plaintiff showed that there were ‘45 categories of external injuries’ on the
body of the deceased and a wide range of internal injuries. The second autopsy
report concluded that the cause of death of the deceased was due to ‘acute
renal failure due to rhabdomyolysis due to blunt trauma to skeletal muscles’.
The 2nd defendant was found guilty under ss 330 and 331 of the Penal Code
(‘Code’) for causing grievous hurt to the deceased. As such, the plaintiff
claimed that the defendants were liable for misfeasance in the public office and
claimed for damages under ss 7 and 8 of the Civil Law Act 1956.
[85] The plaintiff launched the suit claiming damages in the form of aggravated,
exemplary, vindicatory and special and premised it on the tort of negligence,
breach of statutory duties for unlawfully causing the death of the deceased,
misfeasance of the public office, assault and battery and false imprisonment.
[86] The High Court allowed the plaintiff ’s claims and awarded damages as
prayed.
[87] For purposes of the present appeal, we will deal with the issue of false
imprisonment. Before the High Court, it was submitted by learned Senior
Federal Counsel for the defendants therein that:
(i) the deceased had been lawfully remanded by the magistrate under
s 117 of the CPC;
(ii) the police are protected under s 32 of the Police Act 1967 for the
immunity in carrying out their duty.
[88] For the plaintiff, it was submitted that the detention of the deceased
become unlawful on the grounds that:
(i) he was detained in an ungazetted lockup and had breached the

lockup rules;
(ii) severe assault and battery were inflicted on the deceased in the
course of interrogation.
Hassan Marsom & Ors
[89] In allowing the plaintiff ’s claim under the head of false imprisonment, the
learned High Court Judge (the late VT Singham J) had the following to say on
the s 117 detention and s 32 of the Police Act 1967. We deemed it necessary
to reproduce what the learned judge held at paras 27 and 28 of his judgment
which said:
“[27] The deceased was detained for investigation in respect of theft of a
motorcar pursuant to a lawful remand warrant granted by the magistrate of
the magistrate’s court, Petaling Jaya under s 117 of the Criminal Procedure
Code. However, the remand warrant was abused where the deceased who
was taken in police custody pursuant to the lawful remand warrant was
beaten and assaulted by police officers or policemen who had access to
the deceased during the intensive interrogation and the grievous injuries
must have been deliberately inflicted on the deceased as shown by the
post mortem report. Consequently, the detention must be unlawful and
necessarily result in false imprisonment as the purpose of the remand
warrant had been abused to such an extent that grievous injuries were
inflicted on the deceased by the policemen while the deceased was in police
custody which had resulted in the deceased’s death. It is important to stress
that the plaintiff is not questioning the validity of the remand warrant which
at the time had been obtained lawfully but the challenge is on the subsequent
events when the tortious act were committed and grievous injuries were
inflicted on the deceased under the pretex of using the lawful remand warrant
and which had resulted in the death of the deceased. If the lawful remand
warrant is subjected to abuse and the abuse was to such an extent that there
is an element of criminal and tortious acts having been committed during the
period of his detention as it happened in the present case, which had resulted
in the deceased’s death, then the detention, as contended on the plaintiff ’s
behalf would become unlawful. Accordingly the detention would result in
false imprisonment and the plaintiff is entitled to damages when death occurs
in police custody as it has, as a matter of fact in the present case.
[28] It is important to observe that it is not only to the deceased’s family and
the public at large that the police officers and the defendants are responsible,
but they are also responsible and answerable to the court under whose remand
order the deceased was held in police custody to carry out investigation in a
lawful manner against the deceased who was suspected of committing theft
and surely not to inflict grievous injuries or to cause death to the deceased
as it happened in the present case. In this respect, a police officer or for
that matter an Investigating Officer who is able to persuade a magistrate to
exercise his or her discretion to grant the remand warrant under s 117 of the
Criminal Procedure Code is subsequently found to have abused his or her
power and use the remand warrant to cause injuries or death to the suspect,
in the present case, the deceased, it may tantamount to contempt of court
because the remand warrant was issued by the magistrate for a lawful purpose
as provided under the law namely, s 117 of the Criminal Procedure Code but
however, if it is found the remand warrant which is a judicial order obtained by
investigating officer from a magistrate is abused, the investigating officer may
be answerable to the magistrate and may tantamount to committing contempt
of court. In fact the remand warrant dated 15 January 2009 issued by the
magistrate of the Magistrate Court Petaling Jaya had directed the deceased
Hassan Marsom & Ors
to be detained at the police lockup Petaling Jaya and not at the Taipan Police
Station which admittedly did not have a lockup, be it any lockup or gazetted
lockup. Therefore, and on the factual matrix of this case, this court finds there
is a cause of action for false imprisonment which the defendants are liable to
the plaintiff. Accordingly, s 32(1) of the Police Act 1967 does not assist the
defendants as the acts committed was not done in obedience of the remand
warrant issued by the magistrate.”
[Emphasis Added]
[90] For the record, the plaintiff was awarded amongst others the following:
(1) RM192,000.00 damages for loss of support;
(2) damages for pain and suffering RM50,000.00;
(3) damages for assault and battery RM50,000;
(4) damages for false imprisonment RM100,000.00;
(5) damages for misfeasance in public office in the sum of
RM100,000.00; and
(6) exemplary damages in the sum of RM300,000.00.
[91] The defendants appealed to the Court of Appeal.
[92] Disagreeing with the learned High Court Judge and allowing the
defendants’ appeal on the issue of false imprisonment, the Court of Appeal
held that the deceased’s remand is a consequence of a judicial act, being an
order given by a magistrate and the abuses which the deceased endured do not
and cannot give rise to a cause of action for false imprisonment.
[93] In so holding, the Court of Appeal relied on the decision of another Court
of Appeal in Ketua Polis Daerah Johor Bahru, Johor & Ors v. Ngui Tek Choi (supra)
which held that since the remand order under s 117 of the CPC was on exercise
of a magistrate’s criminal jurisdiction, the said remand order remain a lawful
order unless and until it is set aside by a High Court exercising its criminal
appellate or revisionary power. As such, the Court of Appeal held that the tort
of false imprisonment is not available to the plaintiff as there was in place a
valid remand order.
[94] The appeal was allowed in part and the award of RM100,000.00 for false
imprisonment was set aside and the rest of the decision was affirmed.
[95] The defendants in Kugan case has been given leave to appeal to the Federal
Court on the question of law: with regard to the award of exemplary damages
in respect of claims brought under s 8 of the Civil Law Act 1956. The two
questions of law posed were:
(1) Whether s 8(2) of the Civil Law Act 1956 (Act 67) which bars the
awarding of exemplary damages in an estate claim is applicable
Hassan Marsom & Ors
where the death of the deceased is as a result of a breach of his

constitutional right to life;
(2) For the purpose of an estate claim under s 8 of the Civil Law
Act 1956 (Act 67); whether the acts that make up the tort of
misfeasance in public office must be the acts that occurred before
the death of the deceased.
[96] In our considered view, the two questions of law referred to above and
which have been decided by the court is of no relevance for purposes of
determining the issue of law raised in the instant appeal which is not a claim
under s 8 of the Civil Law Act 1956 (Act 67).
[97] Coming back to the instant appeal, before the Court of Appeal, Kugan
case was heavily relied upon by the respondent as an appellant therein and
this may be evinced from the following paragraphs of the Court of Appeal’s
judgment:
“28. Counsel for appellant submitted that the observation of this court in
Kugan’s case (supra) did not restrict or necessarily mean that any Magistrate’s
order of remand could only be challenged or set aside by way of a criminal
appeal or revision. It was urged upon us that a collateral attack could still be
mounted by way of a civil suit to have the detention pursuant to any such order
to be declared to have been ‘unlawful’, if the ‘unlawfulness’ of the remand
order was expressly pleaded and constituted a specific issue for determination
in that suit. Moreover, the appellant’s complaint here, it was contended, was
not directed so much against the Magistrate’s action but against the conduct
of the 3rd and 4th respondents in not complying with requirements of the
law and not being forthright with the court when securing the remand orders.
29 ...
30 ...
31. Counsel for the appellant before us urged us to note the distinction that
whilst the cause of action in Kugan’s case was for ‘false imprisonment’, the
appellant in the instant case under appeal before us, had specifically pleaded
and sought for a declaration that his detention was ‘unlawful’ for reason
that the remand orders were obtained deceptively and/or obtained without
sufficient cause being placed before the Magistrate and premised upon such a
declaration he was entitled to be compensated for wrongful detention.”
[98] The Court of Appeal in the instant appeal had meticulously considered
the Court of Appeal’s decision in Kugan case, and after having considered also
the other authorities cited therein, it decided to depart from the said decision
and concluded at para 30 of its judgment:
“30. It would no doubt be appreciated from the highlighted parts of the above
excerpt (paras 18-24) that:
(a) while a detention may be legal it may still be improperly obtained if
some regulation or rule governing the detention is breached resulting
in an abuse of the powers to detain;
Hassan Marsom & Ors
(b) any challenge as to the unlawfulness of the remand order is not limited
to an appeal or revision under the CPC but could still be pursued if
specifically pleaded in a civil;
(c) the judicial act of the Magistrate in issuing the remand orders may
be declared unlawful if the detainee can prove that it was made or
obtained mala fides in the first place.”
[99] The panel also referred to and considered the case of PP v. Audrey Keong
Mei Cheng (supra) another decision of the Court of Appeal which we have
considered in para 47 of this judgment on the linkage between ss 117 and 119
of the CPC and the requirement of strict adherence to those provisions.
[100] We find the Court of Appeal was justified in departing from the views
expressed by the other Court of Appeal in Kugan case and by the same token,
it has also departed from the decision of another Court of Appeal’s decision
in Ketua Polis Daerah Johor Bahru, Johor & Ors v. Ngui Teck Choi (supra). We also
agree with its decision on the legality of the s 117 detention and the protection
and immunity sought under s 32 of the Police Act 1967 and s 14 of the Court
of Judicature Act 1964 as stated in para 43 of its judgment:
“43. Although the remand order and the subsequent extension order issued
by the Magistrate under s 117 CPC were seemingly ‘legal’ on the face of it, it
was the direct lapses and the indifference shown to statutory provisions and
procedures by the 3rd and 4th respondents that caused those remand orders
to be issued by the court. The Magisterial orders were therefore no cover nor
could they be relied upon to absolve the respondents from liability for their
dereliction of duties which, it must be reiterated, went to the very root of the
validity of those orders obtained by the Police from the Magistrate.”
[101] Although it was not so clearly stated, it is implicit from the said para 43
of its judgment that the Court of Appeal had also departed from the position
of the law pronounced by the Federal Court in Shaaban case in respect of these
two provisions of the law. In our considered view, the appellants’ reliance
on the provisions of s 32 of the Police Act 1967 and s 14 of the Courts of
Judicature Act 1954 is misconceived.
[102] In affirming the decision of the Court of Appeal, we are of the view
that the facts as found by the Court of Appeal are peculiar and clearly
distinguishable from the other cases which we have discussed, including the
Shaaban case. The Court of Appeal had found that the strict requirements
of the provisions of ss 117 and 119 of the CPC had not been complied with
and further, there was a failure on the part of the police to be forthright in
applying for the extension of the remand order to enable the magistrate to
make an informed decision on the application. Thus, making the detention
of the respondent unlawful. In Shaaban’s case, the detention following the
magistrate’s detention order was found to be lawful.
[103] On the same token, we wish to reiterate and express our agreement with
the views expressed by the learned High Court Judge, the late VT Singham
Hassan Marsom & Ors
J in Kugan case as stated in paras 27 and 28 of his judgment which we have

quoted in extenso at para 89 of this judgment. Assaults were committed and
injuries were inflicted on the respondent in the instant case while he was in
the custody of the police under the pretext of using the remand orders. There
was therefore misuse and abuse of power and thus making the detention
of the respondent to be unlawful. The police can never be allowed to abuse
the powers of detention under s 117 of the CPC. It can never be used for a
collateral purpose to extort information or for any other purpose under the
pretext of investigation and interrogation. The courts have a responsibility to
ensure that detained suspects are not to be improperly treated.
[104] The courts are always vigilant and have a duty to ensure the powers
given by the said provisions are properly exercised and used. In this respect, as
a reminder, it is perhaps opportune to quote what Tun Suffian, Lord President
of the Federal Court said in Lai Kim Hon & Ors v. Public Prosecutor [1980] 1
MLRA 366:
“... Malaysia should not be allowed to develop into a police state...
Members of the Force who do their duty in accordance with the law will
receive our and public support and encouragement; but those who treat
suspects in a cruel manner can expect to receive only very severe punishment
from the courts.
Parliament and the public will not allow a Savak to be established here,
bringing disrepute to those responsible for the government and for the
administration of justice.”
[105] While we agree that it is not the function of the courts to take upon itself
and dictate the manner as to how the police should carry out their investigation
works, it does not mean that the courts should abdicate its judicial functions
and seem to be wearing blinkers oblivious to the horror stories and allegations
of police brutality and custodial assaults. In this day and age of greater public
awareness of police functions, should judges simply fold their arms and declare
that nothing can be done about the complaint? The courts have been entrusted
with the responsibility to ensure that prisoners and detainees are not improperly
treated, let alone be assaulted and inflicted with injuries. This court must insist
on civilised standards of human decency and be diligent in maintaining that
standard. It is our bounden duty to do so.
[106] The Indian Supreme Court in DK Basu v. State of West Bengal AIR [1997]
SC 610 had made observations at pp 620-621:
“Tortures in police custody, which of late are on the increase, receive
encouragement by this type of an unrealistic approach of the courts because
it reinforces the belief in the mind of the police that no harm would come to
them if an odd prisoner dies in the lockup, because there would hardly be and
evidence available to prosecution to directly implicate them with torture. The
courts, must not loose sight of the fact that death in police custody is perhaps
one of the worst kind of crime in a civilized society, governed by the rule of
Hassan Marsom & Ors
law and poses a serious there at to an orderly civilized society.

The courts are also required to have a change in their outlook and attitude,
particularly in cases involving custodial crimes and they should exhibit more
sensitivity and adopt a realistic rather than a narrow technical approach,
while dealing with cases of custodial crime so that as far as possible within
their powers, the guilty should not escape so that the victim of crime has the
satisfaction that ultimately the Majesty of Law has prevailed.
Police is, no doubt, under a legal duty and has legitimate right to arrest a
criminal and to interrogate him during the investigation of a an offence but it
must be remembered that the law does not permit use of third degree methods
or torture of accused in custody during interrogation and investigation with
that view to solve the crime. End cannot justify the means. The interrogation
and investigation into a crime should be in true sense purposeful to make the
investigation effective. By torturing a person and using third degree methods,
the police would be accomplishing behind the closed doors what the demands
of our legal order forbid. No society can permit it.
How do we check the abuse of police power? Transparency of action and
accountability perhaps are two possible safeguards which this court must insist
upon. Attention is also required to be paid to properly develop work culture,
training and orientation of police force consistent with basic human values.
Training methodology of the police needs restructuring. The force needs to
be infused with basic human values and made sensitive to the Constitutional
ethos. Efforts must be made to change the attitude and approach of the
police personnel handling investigations so that they do not sacrifice basic
human values during interrogation and do not resort to questionable form
of interrogation. With a view to bring in transparency, the presence of the
counsel of the arrestee at some point of time during the interrogation may
deter the police from using third degree methods during interrogation.”
[107] We wish to associate ourselves with the observations made by the Indian
Supreme Court in the abovementioned case and fully endorse the same.
Whether The Section 117 Remand Order May Be Challenged By A Collateral
Proceeding?
[108] Moving on, we will now deal with the contention of the appellants
that the detention order under s 117 of the CPC had never been set aside or
challenged either by way of an appeal or criminal revision pursuant to Chapter
XXXI of the CPC and until that has been done, the remand order remain
good and valid in law. The respondent on the other hand contended that he
ought to be allowed to bring a collateral proceeding to challenge the same as an
alternative to the procedures as provided in Chapter XXXI of the CPC.
[109] Chapter XXXI of the CPC deals with the powers of a judge to call and
examine the record of any proceedings before any Subordinate Criminal Court
for the purpose of satisfying himself as to the correctness, legality or propriety
of any finding, sentence or order recorded or passed and to the regularity of
any proceedings of that Subordinate Court.
Hassan Marsom & Ors
[110] The Court of Appeal in Kugan case in allowing the defendant’s appeal on
the issue of false imprisonment arising from the s 117 detention held:
“[21] The deceased’s remand is a consequence of a judicial act, being an order
given by magistrate on 15 January 2009. Unless and until this remand is
set aside by way of a criminal appeal or revision by the High Court, that
remand remains lawful. It is undisputed that no such application to the High
Court had been made by the plaintiff to declare that the remand is unlawful.
Though it is pleaded by the plaintiff in the pleadings that the detention had
become unlawful on grounds stated earlier, it does not help the plaintiff as we
are of the view a separate suit by way of criminal revision should have been
commenced and not through this civil suit. [Emphasis Added]
[22] It is our respective view the abuses which the deceased endured do not
and cannot give rise to a cause of action for false imprisonment. The cause
of action for a tort of false imprisonment arises when a person has been
imprisoned without lawful justification and that action is against the person
who caused the imprisonment. Here the person who caused the detention is a
magistrate exercising his judicial power and that judicial act had not been set
aside or declared unlawful.”
[111] In so holding, that Court of Appeal had followed the decision of another
Court of Appeal in the case of Ketua Polis Daerah Johor Bahru, Johor & Ors v.
Ngui Tek Choi (supra) which held that the remand order made by the magistrate
remained a lawful order until it is set aside by a High Court exercising its
criminal appellate or revisionary power and it is not the function of the judge
in a civil claim to go behind the remand order and to question its legality or
the manner in which it was obtained. (see also: Bala Krishnan Appala Naidu v.
Ketua Inspektor Prabakaran Shanmugam & Ors (No 2) [2010] 2 MLRH 395, Madjai
Sanusi v. Pengarah Imigresen Negeri Johor & Ors [1999] 3 MLRH 285).
[112] We note that although submissions were made by learned counsel for
the appellants on this issue and relying on Kugan case in the court below, the
panel in the appeal however did not seem to have dealt with this issue in its
grounds of judgment. Be that as it may, our reading of the Court of Appeal’s
ground of judgment clearly shows that in granting the declaration sought by
the respondent, it had departed from the view taken by the Court of Appeal in
the Kugan case. This is most apparent when the Court of Appeal opined in para
30 of its judgment and stated:
“30. It would no doubt be appreciated from the highlighted parts of the above
excerpt (paras 13-24) that:
(a) ...
(b) any challenge to the unlawfulness of the remand order is not limited
to an appeal or revision under the CPC but could still be pursued if
specifically pleaded in a civil action
(c) ...”
Hassan Marsom & Ors
[113] We are inclined to agree with the view expressed by the Court of Appeal
in the above statement. It was an opinion expressed after a distillation of a
number of authorities cited by David Wong Dak Wah JCA in the Kugan case.
To hold otherwise would in our opinion, be too narrow an approach to be
taken by this court.
[114] The respondent in the instant appeal had in his amended statement of
claim pleaded and prayed for a declaration that his detention was unlawful
and a transgression of his fundamental rights under art 5 of the Federal
Constitution. In law, he has a choice either to pursue his cause either by way
of the procedures provided under Chapter XXXI of the CPC or by the very
action he undertook in this case. He must be allowed to have the choice of
bringing an action in a civil court as an alternative to the procedures provided
under Chapter XXXI of the CPC. In fact, it would be more cumbersome on his
part to adopt the procedures under the CPC and to subsequently file a claim in
the civil court. A sheer waste of time and resources, we would add. The High
Court, being a 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.
[115] The power to grant a declaration has been stated by Raja Azlan Shah
Ag LP (as His Lordship then was) “to be exercised with a proper sense of
responsibility and after a full realization that judicial pronouncement ought not
to be issued unless there are circumstances that properly call for their making”
(See: Dato’ Menteri Othman Baginda & Anor v. Dato’ Ombi Syed Alwi Syed Idrus
[1980] 1 MLRA 18). We hold this is one instance that properly calls for the
making of such pronouncement and for a good reason. The law wills that in
every case where a man is wronged he must have a remedy. More so when his
constitutional rights have been infringed. Ubi jus ibi remedium - there is no wrong
without a remedy. (See also Educational Company of Ireland Ltd v. Fitzpatrick (No
2) [1961] IR 345 Budd J at p 368.
[116] Speaking on the same subject matter, Lord Denning in Pyx Granite Co Ltd
v. Ministry of Housing and Local Government [1958] 1 QB 554 observed:
“The wide scope of it can be seen from the speech of Viscount Kilmuir L C in
Vine. v. National Dock Labour Board [1957] A C 488, 498) from which it appears
that if a substantial question exists which one person has a real interest to
raise, and the other to oppose, then the court has a discretion to resolve it by a
declaration, which it will exercise if there is good reason for so doing.”
[117] In Karpal Singh v. Sultan Of Selangor [1987] 1 MLRH 215 Abdul Hamid
CJM referred to Declaratory Order 2nd edn by PW Young on the condition to be
satisfied for the grant of such orders as:
“(a) there must exist a controversy between the parties; (b) the proceedings
must involve a ‘right’; (c) the proceedings must be brought by a person who
has a proper or tangible interest in obtaining the order; (d) the controversy
Hassan Marsom & Ors
must be subject to the court’s jurisdiction; and (e) it must not be merely of
academic interest, hypothetical or one whose resolution would be of no
practical utility.”
His Lordship also referred to the observation of Lord Dunedin in The Russian
Commercial & Industrial Bank v. British Bank for Foreign Trade [1921] AC 438 at
p 448:
“The question must be a real and not a theoretical question; the person raising
it must have a real interest to raise it; he must be able to secure a proper
contradictor, that is to say, someone presently existing who has a true interest
to oppose the declaration sought.”
[118] We are satisfied that these conditions have been satisfied and that the
court is seized with the power to grant the declaration sought by the respondent.
[119] Before we conclude, let it be stressed that as a custodian of justice,

the constitutional guarantee accorded to citizens under art 5 of the Federal
Constitution must be upheld by the courts. It is every judge’s duty as he
solemnly swears under the oath of office to uphold and protect the Federal
Constitution. Indeed, it is opportune to recall the words of Lee Hun Hoe CJ
(Borneo) in Re Datuk James Wong Kim Min; Minister Of Home Affairs, Malaysia &
Ors v. Datuk James Wong Kim Min [1976] 1 MLRA 132:
“One of the functions of the courts is to interpret the law. An inherent part
of their function is to see that the executive acts within the law and does not
encroach unnecessarily into the realm of liberty of the subject. In fact, art 5(1)
of the Constitution guarantees that no person shall be deprived of his liberty
except in accordance with the law. If this constitutional guarantee is to have
any real meaning at all, then it is imperative that the courts should intervene
whenever the liberty of the subject is encroached upon not in accordance with
the law.”
[120] The respondent’s liberty in the instant appeal had been encroached and
we must intervene and declare that his detention was unlawful. “The courts are
the final arbiter between the individual and the State and between individuals
inter se, and in performing their constitutional role they must of necessity and
strictly in accordance with the Constitution and the law be the ultimate bulwark
against unconstitutional legislation or excesses in administrative action.” per
Salleh Abas LP in Lim Kit Siang v. Dato’ Seri Dr Mahathir Mohamad [1986] 1
MLRA 259.
[121] Assault in police custody is a clear violation of the most fundamental

liberty guaranteed under the Federal Constitution.
Exemplary Damages
[122] While the issue of exemplary damages has not been explicitly covered
in the question posed to us, nevertheless we are of the view that premised on
the finding of liability for false imprisonment and exacerbated by the unlawful
Hassan Marsom & Ors
assault while in custody, we must therefore address this issue of exemplary

damages notwithstanding that it may also be just consequential in this case.
[123] In approving the Court of Appeal’s decision to award exemplary

damages to the respondent, we cite with approval the sentiments expressed
the learned judges therein as stated in the following paragraphs of the court’s
judgment:
“46. We are also of the unanimous view that this was a proper case for
exemplary damages to be awarded to register the court’s disdain of law
enforcement officers want only disregarding the rules and procedures that
determine the parameters of their duties and responsibilities. In this case, this
had resulted in a serious violation of an individual’s dignity and deprivation
of his constitutionally guaranteed freedom, what more, by the very same
authority who had the duty to protect and safeguard those rights. To overlook
and dismiss without adequate remedy this failure on the part of the Police
Force to act within the law, would be to occasion and injustice to the appellant.
The public at large, are also all entitled to be given the assurance that the
Police Force has been forewarned to exercise caution and duly comply with
all the requirements of the law before any one is denied their liberty, even only
if it was for investigation purposes.
47. James Foong J (as he then was) in Roshairee Abd Wahab v. Mejar Mustafa
Omar & Ors [1996] 1 MLRH 548 had set the guidelines for awarding exemplary
damages in the following terms:
“While considering the request for exemplary damages, this court must
bear in mind that the objective for an award under this category is to punish
the defendants, and to display the court’s indignant attitude towards the acts
committed by the defendants. However, from the enlightening judgment of
Lord Devlin in Rookes v. Bernard [1946] AC 1129, such damages must be
restricted to situations where there are:
“...oppressive, arbitrary or unconstitutional actin by the servants of the

Government” or where “the defendant’s conduct has been calculated by
him to make a profit for himself which may well exceed the compensation
payable to the plaintiff.”
Outside these 2 categories, exemplary damages should not be awarded.”
It could not be disputed that it was the respondents’ actions, as public

servants, in obtaining the remand orders without sufficient cause and in
violation of applicable procedures, which has resulted in the appellant’s basic
constitutional rights of liberty and freedom being infringed and negated in
this case.”
[124] We hasten to add that the award of damages must also reflect the sense
of public outrage, emphasise the importance of the constitutional right and
the gravity of the breach and deter further breaches (see: Attorney General of
Trinidad and Tobago v. Ramanoop [2006] 1 AC 328). We also note that apart
from the physical injury occasioned by the assaults, there is also the intangible
harm such as the distress and injured feelings suffered by the respondent during
Hassan Marsom & Ors
the period of his detention. We would further add that the actions of the police
in this case have indeed shocked this court thereby warranting the award of
exemplary damages.
[125] This court, in the judgment of Zainun Ali FCJ in Ketua Polis Negara &
Ors v. Nurasmira Maulat Jaffar & Ors And Other Appeals [2017] 6 MLRA 635 in
disagreeing with the views of the majority in Appeal No: 01(i)-52-10-2015(W)
had expressed the following on the award of exemplary damages to victims of
a constitutional violation to which we subscribe:
“69. What is important in this appeal is that, once it is accepted that by the
common law of England a victim of a constitutional violation has the right to
be compensated by an award of punitive, exemplary or aggravated damages,
that in itself translates into a right guaranteed under art 5(1) of the Federal
Constitution which for ease of reference is once again illustrated below, where
it reads:
“No person shall be deprived of his life or personal liberty save in accordance
with the law.””
[126] At para 71 of the judgment, Her Ladyship further opined:

“71. Accordingly, where a wrong is committed by the state or an instrument
of the state which has the effect of depriving the victim of his life (in the
widest sense as held by this court in Lee Kwan Woh v. PP [2009] 2 MLRA 286,
in a manner not in accordance with law, the victim is entitled to an award of
exemplary or aggravated damages.”
[127] For the reasons above stated, by majority, the appeal is hereby dismissed
and we affirm the decision of the Court of Appeal and answering the sole
question posed before us in the affirmative. In respect of the award of exemplary
damages, we are inclined to increase it to RM100,000.00 as to reflect the court’s
indignation towards the actions of the police.
Jeffrey Tan FCJ (dissenting):
[128] I must thank my learned brother, Balia Yusof FCJ, for the benefit of
having had sight of his draft judgment. I accept all facts set out so assiduously
by my learned brother, Balia Yusof FCJ. I entirely agree that the instant
remand order was obtained without reasonable cause, and without compliance
with s 117 of the Criminal Procedure Code. But yet I am not of the view that it
was false imprisonment. Rather than false imprisonment, I believe that it was
malicious prosecution, for the following reasons.
[129] Malicious prosecution is not false imprisonment. “There is no similitude

or analogy between false imprisonment and malicious prosecution. The
consequence of the former is illegal detention, the institution of the latter may
on the face of it be manifestly legal but is without probable cause and with
malicious motive (33 E & E Digest 465)” (Wong Kok San v. WH Salt [1948] 1
MLRH 197 per Callow J).
Hassan Marsom & Ors
[130] “False imprisonment may be defined as an act of the defendant which

directly and intentionally or negligently causes the confinement of the plaintiff
within an area delimited by the defendant” (The Law of Torts by Harry Street
7th edn at p 23; see also The Law of Torts in Singapore by Gary Chan Kok Yew
and Lee Pey Woan 2nd edn at 02.036). “... partial restriction of freedom
of movement is not an imprisonment” (Cheow Siong Chin v. Menteri Dalam
Negeri Malaysia & Ors [1985] 1 MLRA 224 per Abdoolcader SCJ, delivering
the judgment of the court). “False imprisonment is any total restraint of
the liberty of the person, for however short a time, by the use or threat of
force or by confinement, without lawful cause. As stated in Halsbury’s Laws of
England, 3rd edn, vol 38 p 765: “The gist of the action of false imprisonment
is the mere imprisonment; the plaintiff need not prove that the imprisonment
was unlawful or malicious but establishes a prima facie case if he proves that
he was imprisoned by the defendant; the onus then lies on the defendant of
proving a justification ... It would seem clear on the authority of Warner v.
Riddiford that the questions which call for consideration in an action for false
imprisonment are: (1) whether there was any imprisonment; (2) if so, by whom
it was committed; and (3) whether there was any legal ground for it” (Mohamed
Lajan v. Daud [1963] 1 MLRH 402 per Gill J, as he then was).
[131] “Malicious prosecution is an abuse of the legal system. An action in

tort for malicious prosecution may be brought once criminal proceedings have
been instigated: without reasonable or probable cause (QIW v. Felview Pty Ltd
[1989] 2 Qd R 245); have failed (Everett v. Ribbands [1952] 2 QB 198); and have
caused damage to the accused: Berry v. British Transport Commission [1962] 1
QB 306. If no adequate justification for the proceedings is put forward then
malicious intent may be implied” (Lexisnexis Dictionaries, Words, Phrases and
Maxims [M0055]. “An action or proceeding will be an abuse of process if there
is no basis or foundation for it or where it used for an extraneous purpose”
(The Law of Torts in Singapore supra at 17.002). “Malice on the defendant’s
part, absence of reasonable cause for the prosecution and actual damage are
necessary (for a recent decision see Kable v. State of NSW [2012] NSWCA 243).
False imprisonment requires none of these” (Tort Law Principles by Bernadette
Richards, Melissa De Zwart, and Karinne Ludlow at p 70).
[132] “False imprisonment arising from an improper arrest of a suspected

criminal bears a resemblance to the wrong of malicious prosecution which
consists in the abuse of the legal process by maliciously and without reasonable
and probable cause instituting a groundless criminal prosecution. The
distinction between them lies in whether the restraint on the plaintiff ’s liberty
is directly imposed by the defendant himself, acting either personally or by his
agent, or whether there is interposed the exercise of an independent discretion”
(The Law of Torts by Fleming 1957 Publication at p 38).
[133] Halsbury’s Laws of England 5th edn vol 97 at para 544 thus distinguished
false imprisonment from malicious prosecution:
Hassan Marsom & Ors
“The imprisonment for which the claim for false imprisonment lies must be
the act of the defendant or of some one for whose acts he is liable, or the
result of his ordering, procuring, instigating or actively inciting the arrest.
Merely providing a police constable with information which would justify
an arrest, and leaving him to exercise a discretion whether or not to effect
the arrest, is insufficient to found a liability in false imprisonment, but if the
information is false or given maliciously the giver may be regarded as the
initiator of proceedings for the tort of malicious prosecution. No claim for
false imprisonment otherwise lies against a person who takes proceedings
before a magistrate or judge in respect of imprisonment which is caused by the
order of the magistrate or judge; the remedy, if any, of the person imprisoned
in such a case, is a claim for malicious prosecution against the person who
instituted the proceedings.”
[134] “The basic difference between the two has been expressed to be one of
presumption. While imprisoning a man is prima facie wrongful, setting the
law in motion is prima facie right and proper. Thus, in a malicious prosecution
case, the plaintiff must prove that the defendant lacked reasonable cause for
the prosecution whilst in false imprisonment, it is the defendant who must
prove reasonable cause” (Civil Actions Against The Police by Richard Clayton and
Hugh Tomlinson, 1987 Sweet & Maxwell, at p 246).
[135] “If the defendant wrongly gives the plaintiff into custody and then
the magistrate remands the plaintiff the defendant is answerable in false
imprisonment for damages up to the point of the judicial remand. Once a
judicial act interposes, liability for false imprisonment ceases. It becomes
important at this stage to distinguish false imprisonment from malicious
prosecution, a tort concerned with the abuse of the judicial process, and which,
unlike false imprisonment, calls for proof of malice and of abuse of reasonable
cause. Therefore, if A wrongfully prefers a complaint against B before a
magistrate who then issues a warrant or tries him forthwith or remands him,
A has not committed the tort of false imprisonment, even if the magistrate
has no jurisdiction” (The Law of Torts by Harry Street 7th edn at p 27; see also
Torts: Commentary and Materials 11th edn by Carolyn Sappideen, Prue Vines
and Penelope Watson at p 60). “A person who brings about an arrest by merely
setting in motion the formal process of law, as by making a complaint before a
justice of the peace or applying a warrant is not liable for false imprisonment
because courts of justice are not agents of the prosecutor and their acts are not
imputable to him. He is liable, if at all, only for the misuse of legal process by
procuring an arrest for an improper purpose for which the appropriate remedy
is an action for malicious prosecution. This rule provides a valuable protection
against liability for error in the course of legal proceedings” (The Law of Torts
by Fleming at p 38).
[136] Civil Actions against the Police supra at p 116 observed that “where an
imprisonment is effected through judicial proceedings, liability for false
imprisonment virtually disappears”, on account of the following dicta of
Willes J in Austin v. Dowling [1870] LR 5 CP 534 at p 540:
Hassan Marsom & Ors
“The distinction between false imprisonment and malicious prosecution is

well illustrated by the case where the parties being before a magistrate, one
makes a false charge against another, whereupon the magistrate orders the
person to be charged and taken into custody until the matter is investigated.
The person making the charge is not liable for the action because he does not
set a ministerial officer in motion but a judicial officer is interposed between
the charge and the imprisonment.”
[137] “Consequently, where the plaintiff is wrongfully arrested without a

warrant and remanded into custody by the magistrates he can only maintain an
action for false imprisonment up to the time of the remand. Thereafter, he must
sue for malicious prosecution. Even if the court acts without jurisdiction the
instigator of the complaint cannot be liable for false imprisonment... “ (Civil
Actions against the Police by Richard Clayton and Hugh Tomlinson supra at p
116; see also The Law of Torts by Fleming at p 39).
[138] It should be highlighted that the common law rule stated in Austin v.
Dowling is still good law (see Zenati v. Comr of Police of the Metropolis (CA) [2015]
2 WLR 1563 at 1580; Austin v. Dowling was last applied in Coghlan v. Chief
Constable of Cheshire Police and others [2018] EWHC 34).
[139] In Zenati, the claimant was remanded in custody on 10 December 2010

by magistrates on suspicion of that his British passport was forged. That
passport was genuine. The claimant was released on bail on 9 February 2011.
The claimant brought claims for damages against the Commissioner of Police
for the Metropolis and the Crown Prosecution Service for (i) breach of his
rights guaranteed by art 5 of the Convention for the Protection of Human
Rights and Fundamental Freedoms on the basis (a) from 19 January 2011 until
9 February 2011 his detention had been contrary to art 5.1(c) since there during
that period there had been no reasonable suspicion that he had committed an
offence, and (b) from 10 December 2010 until 9 February 2011 his detention
had been unreasonably long, contrary to art 5.3, since the defendants had failed
to act with special diligence in investigating the offence; and (ii) the tort of false
imprisonment from 19 January 2011 until 9 February 2011. The judge granted
the defendants’ application to strike out the claims against both defendants. On
appeal, the English Court of Appeal allowed the appeal in relation to the art
5 claim but dismissed the appeal in relation to the false imprisonment claim.
[140] Lord Dyson MR (Lewison and McCombe LJJ in agreement) held that
there is no support in any jurisdiction for the submission that a breach of art 5
results in liability for the tort of false imprisonment:
“[53] But there is no support in any jurisprudence for the submission that a
breach of art 5 results in liability for the tort of false imprisonment. There
is support for the contrary proposition. Thus in R (Faulkner) v. Secretary of
State For Justice And Another [2013] 2 AC 254 Lord Reed (with whom Lord
Neuberger PSC, Lords Mance and Kerr agreed) said at para 13.1: ‘A prisoner
whose detention is prolonged as the result of a delay ... in violation of art 5(4)
of the Convention, is not a victim of false imprisonment.’
Hassan Marsom & Ors
[54] In any event, I do not accept that art 5 requires the law of false
imprisonment to be adapted in the way suggested by Mr Southey. Article 5(5)
provides a right to compensation in the event of a breach of art 5. There is no
compelling need to change our long established law of false imprisonment to
reflect art 5. The analogy with Campbell is unconvincing. The lack of a right
of privacy was a real gap in our domestic law.
[55] Nor is it relevant to the common law rule whether the court decides to
remand a person in custody without a full appreciation of all the relevant
facts. As Mr Johnson points out, the relevant passage in Austin explicitly
contemplates that there has been malice on the part of the person making the
false charge. Even where the court is misled as to the true facts, that does not
mean that it does not exercise its indepedent judgment in deciding whether or
not to order an individual to be detained.
[56] In my judgment, therefore, the claim in false imprisonment is bound to
fail.”
[141] In short, a judicial order provides the defence of lawful authority for
the detention or imprisonment (see Hepple and Matthews’ Tort Law: Cases and
Materials by David Howarth, Martin Matthews, Jonathan Morgan, Janet
O’Sullivan, Stelios Tofaris (2016 Publication) at p 750).
[142] In the instant case, the respondent was remanded under the judicial order
of a magistrate. The remand order might have been wrongly applied. It might
even have been that there was no reasonable cause or basis for a remand order
The remand order might have been applied and or issued without compliance
with s 117 of the Criminal Procedure Code. The remand order might even have
been set aside. But that, with respect, was all inconsequential in a claim for
false imprisonment, as the following authorities amply demonstrate.
[143] In West v. Smallwood 3 M & W 418; 150 ER 1208, the defendant went
before a magistrate and laid information against the plaintiff. The magistrate
issued a warrant. The plaintiff was arrested. The complaint was heard and
dismissed. At the trial of the action for trespass and false imprisonment, Lord
Abinger CB was of the opinion that the action was misconceived. In the
application for a re-trial, Lord Abinger CB said:
“I retain the opinion which I expressed at the trial. Where a magistrate has a
general jurisdiction over the subject matter, and a party comes before him and
prefers a complaint, upon which the magistrate makes a mistake in thinking
it a case within his authority and grants a warrant which is not justiciable in
point of law, the party complaining is not liable as a trespasser, but the only
remedy against him is by an action upon the case, if he has acted maliciously.”
[144] Bolland B., who agreed with Lord Abinger CB, said, “In the case of
an act done by a magistrate, the complainant does no more than lay before a
court of competent jurisdiction the grounds on which he seeks redress, and
the magistrate, erroneously thinking that he has authority, grants the warrant”.
[145] In Brown v. Chapman [1848] 6 CB 365, the plaintiff voluntarily went
before a magistrate to meet a charge of embezzlement which was there about
Hassan Marsom & Ors
to be made against him by the defendant. The magistrate declined to entertain

the matter, unless a charge was formally made. The defendant said “Well, then,
I charge him with embezzling 30s”. The plaintiff was then ordered by one of
the constables in attendance to go into the dock. The charge was gone into
and the plaintiff held to bail. Coltman J held that the act of the defendant
amounted to no more than calling upon the magistrate to exercise his
jurisdiction, and consequently, that he was not liable to an action of trespass,
for the imprisonment of the plaintiff:
“If an individual prefers a complaint to a magistrate, and procures a warrant
to be granted, upon which the accused is taken into custody, the complainant,
in such case, is not liable in trespass for the imprisonment; and that, even
although the magistrate had no jurisdiction. According to the case of West v.
Smallwood (3 M & W 418), a party who shall make a direct application to a
magistrate for a warrant, that another may be taken into custody, is deemed
thereby only to make an appeal to the magistrate to exercise his jurisdiction:
and the imprisonment is referred to the magistrate’s authority, so as to
exempt the complainant from all liability in trespass: and what takes place
in the presence of the magistrate, ought to be referred to the exercise of his
authority, as in Barber v. Rollinson (1 C & M 330). In that case, the plaintiff
having been discharged from criminal custody by a magistrate, was leaving
the police office, when the defendant said - “I have another charge against
him, for forgery;” upon which the plaintiff was again taken, and placed at
the bar: and, upon the trial before Lord Lyndhurst, in an action of trespass in
respect of this second imprisonment, the plaintiff was nonsuited; and, upon
motion to set aside the nonsuit, it was held that the acts of the defendant were
part of the proceedings before the magistrate, for which the defendant could
not be held liable in trespass; that the taking could not be considered as the
act of the defendant, who had only put the law in motion, for which he might
be liable in case.”
[146] In Lock v. Ashton [1848] 12 QB 871, the defendant had given the plaintiff
into custody and had him taken to a police officer on a charge of felony. The
magistrate heard the charge and remanded the prisoner. On a subsequent
examination he was discharged, it being discovered that the charge had been
made under a mistake. In the action for trespass and false imprisonment, Lord
Denman CJ held that “The verdict in this case cannot be sustained, the action
being trespass and the jury having given damages, not only for the trespass in
arresting, but for the remand, which was the act of the magistrate”.
[147] Lock v. Ashton was applied in Harnett v. Bond [1924] 2 KB 517 (CA) and
[1925] AC 669 (HL), where a sane man was detained in various asylums for
nine years. The question was whether the doctor who first caused him to be
unlawfully detained could be held liable for the entire period of detention,
even though the man was subjected to various subsequent assessments by
other doctors. The trial judge directed the jury in accordance with the direct
consequences test, advising them that it was open to them to hold that the failure
by intervening doctors to appreciate that the claimant should not be further
detained did not break the causal link between the first doctor’s unlawful act
Hassan Marsom & Ors
and the nine-year detention. This is what the jury held but the Court of Appeal
reversed the decision and the House of Lords confirmed the Court of Appeal’s
judgment. In the Court of Appeal, Scrutton LJ expressed himself as follows:
“But it appears to me that when there comes in the chain the act of a person
who is bound by law to decide a matter judicially and independently, the
consequences of his decision are too remote from the original wrong which
gave him a chance of deciding. It was on this principle that in Lock v. Ashton it
was decided that a defendant who had wrongfully taken a person into custody
and brought him before a magistrate was not liable for the subsequent remand
by the magistrate, which was a judicial act.”
[148] Lock v. Ashton was also applied in Terrence Calix v. Attorney General of
Trinidad and Tobago [2013] UKPC 15, where the appellant was arrested on
suspicion of being the person who robbed GN and raped JF. At an identification
parade, the appellant was picked out by both GN and JF as the man who
had committed the crimes. The appellant was acquitted of both charges. The
appellant instituted proceedings for malicious prosecution. Acting Judge
Aboud J awarded compensation of $38,000.00 to the appellant. In an ex
tempore judgment, the Court of Appeal dismissed the appellant’s appeal. The
Court of Appeal held that the trial judge had correctly assessed compensation
for the damage to the appellant’s reputation. The Court of Appeal refused
to award any compensation for the period of incarceration of 115 days; bail,
which had granted, was not assessed by the appellant. On further appeal to the
Privy Council, and in relation to the claim for compensation for loss of liberty,
Lord Kerr, who delivered the judgment of the Board, said that a judicial act
precludes liability in false imprisonment:
“The respondent did not seek to uphold the Court of Appeal’s conclusion that
the grant of bail was a judicial act which became the cause of the appellant’s
detention. A claimant’s failure to take a grant of bail (which is the avowed
basis on which the appellant should not recover compensation for loss of
liberty) is not a ‘judicial act’. In any event, although a judicial act precludes
liability in false imprisonment, it does not relieve the prosecutor of liability in
malicious prosecution: the prosecutor remains liable for the damage caused
by his setting the prosecution in motion - see Lock v. Ashton [1848] 12 QB 871
(116 ER 1097).”
[149] Clerk & Lindsell on Torts 21st edn at 15-46 concluded that “An order
of a court may be set aside on the ground of error, as a matter of favour or
because it was irregularly obtained. There can only be error where there had
been a judicial decision and anything done under a judicial decision cannot
be a ground of trespass against a party, because it is not his act but the act of
the court. It is obvious that, where an order is set aside as a matter of favour,
the order is admitted to have been in itself a proper one, and it therefore gives
validity to all proceedings taken while it was still in force”.
[150] Salmond & Heuston on the Law of Torts 21st edn at pp 126-127 was more
direct:
Hassan Marsom & Ors
“No action for false imprisonment will lie against a person who has procured
the imprisonment of another by obtaining against him a judgment or other
judicial order of a court of justice even though that judgment or order is
erroneous, irregular, or without jurisdiction. The proper remedy in such a
case is an action for malicious prosecution or other malicious abuse of legal
process. In an action of that description that plaintiff can succeed only if he
proves both malice and the absence of any reasonable and probable cause for
the proceedings complained of; whereas in an action for false imprisonment,
just as in all other cases of trespass to person or property, liability is created,
in general, even by honest and inevitable mistake. The rule, therefore, that no
action for false imprisonment will lie against a litigant in respect of judicial
imprisonment procured by him is a valuable protection against liability for
error in the course of legal proceedings. Accordingly, if the plaintiff has
been wrongly arrested without warrant and taken before a magistrate, who
remands him in custody, he must sue in respect of his imprisonment before
the remand in an action for false imprisonment, but in respect of that which is
subsequent to the remand in an action for malicious prosecution. The reason
for this distinction is that a man cannot be sued in trespass (and so not for
false imprisonment) unless he himself, whether personally or by his agent, has
done the act complained of. A court of justice, however, is not the agent of the
litigant but acts in the exercise of its own independent judicial discretion. The
litigant can be charged only with having maliciously and without reasonable
cause exercised his rights of setting a court of justice in motion. This exemption
of the litigant from any liability for false imprisonment extends even to cases
in which the court ordering the imprisonment has acted without jurisdiction.
It is the right of every litigant to bring his case before the court, and it is for
the court to know the limits of its own jurisdiction and to keep within them.”
[151] What was only pertinent was whether the respondent was remanded
under lawful authority at the material time of the remand. Since the respondent
was remanded under a judicial order, it could not be false imprisonment.
[152] False imprisonment is a common law tort. Maybe, violation of art 5 of

the Federal Constitution could justify an award of exemplary damages (see the
views expressed by Lord Dyson and Lord Collins on awards of vindicatory
damages in R (WL (Congo)) v. Home Secretary (SC(E)) [2011] 2 WLR 671 at
paras 97-101, and 222-237). But no violation of art 5 would turn malicious
prosecution into false imprisonment. They are conceptually distinct. One
is malice based, while the other is not. Given the interposition of a judicial
order for the remand of the respondent, the tort of false imprisonment was
not available. But since the respondent was remanded without reasonable
cause, it was malicious prosecution. But alas, there was no claim for malicious
prosecution. I would therefore apply Austin v. Dowling and Zenati and dismiss
the claim for false imprisonment. Save for that, I would allow the other claims
and dismiss the appeal with respect to them.

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Hassan Marsom & Ors

[2018] 5 MLRA v. Mohd Hady Ya’akop 263

HASSAN MARSOM & ORS

Federal Court, Putrajaya

Police: Arrest — Illegal or wrongful arrest — Appellants appealed against decision

Tort: False imprisonment — Unlawful detention by police — Appellants appealed

Case(s) referred to:

DK Basu v. State of West Bengal AIR [1997] SC 610 (refd)

Legislation(s) referred to:

Courts Ordinance 1948, s 107

Other(s) referred to:

Balia Yusof Wahi FCJ:

Proceedings In The High Court

(i) Damages for injuries suffered RM 60,000.00

(ii) Exemplary damages RM 50.000.00

(iii) Aggravated damages RM 50,000.00

(iv) Special damages RM 100.00

Proceedings In The Court Of Appeal

The Question Of Law

The Appellants’ Submissions

The Respondent’s Submission

[30] The unlawful detention of the respondent is in violation of his

Whether The Arrest Was Lawful?

Whether The Detention Under The Remand Orders Is Valid?

(a) if the offence which is being investigated is punishable with

(b) if the offence which is being investigated is punishable with death or

(4) The Magistrate, in deciding the period of detention of the accused

(7) The application for extension of detention was an omnibus application

suspected offence or offences) for the continued detention of each of them

(b) the time at which he began and closed the investigation;

(c) the place or places visited by him; and

(d) a statement of the circumstances ascertained through his investigation.

(2) Notwithstanding anything contained in the Evidence Act 1950, an accused

[47] Delivering the judgment of the Court of Appeal in Public Prosecutor v.

In our judgment, it is mandatory for the police to produce a copy of the

before the magistrate as prescribed by s 119 when producing a suspect. The

[19] We endorse the above views ...”

[50] In considering an application for a remand order, a magistrate must balance

[54] A standard format of minuting for an application of remand order under

[60] In dismissing the respondent’s claim for wrongful detention, at para 11 of

3.6. Untuk menyiapkan kertas siasatan dan pertuduhan.

3.7 Untuk merujuk kertas siasatan kepada KJSJ Melaka.

3.8 Untuk merujuk kes kepada YA TPR.”

[71] It must be emphasised that a magistrate exercising his discretion under

Section 32 Police Act 1967

“No ... Magistrate or other person acting judicially shall be liable to be

[84] In the circumstances of the matter before us, it is pertinent to consider

(i) he was detained in an ungazetted lockup and had breached the

where the death of the deceased is as a result of a breach of his

J in Kugan case as stated in paras 27 and 28 of his judgment which we have

law and poses a serious there at to an orderly civilized society.

[119] Before we conclude, let it be stressed that as a custodian of justice,

[121] Assault in police custody is a clear violation of the most fundamental

assault while in custody, we must therefore address this issue of exemplary

[123] In approving the Court of Appeal’s decision to award exemplary

“...oppressive, arbitrary or unconstitutional actin by the servants of the

Outside these 2 categories, exemplary damages should not be awarded.”

It could not be disputed that it was the respondents’ actions, as public

[126] At para 71 of the judgment, Her Ladyship further opined:

Jeffrey Tan FCJ (dissenting):

[129] Malicious prosecution is not false imprisonment. “There is no similitude

[130] “False imprisonment may be defined as an act of the defendant which

[131] “Malicious prosecution is an abuse of the legal system. An action in