MULTIMEDIA UNIVERSITY

FACULTY OF LAW
UPP4722 – PROFESSIONAL PRACTICE II
ASSIGNMENT COVER SHEET
Group Assignment
Assignment Group No.: 17
Name and ID No. of Group Members:

1. KATHY WONG KER SING ID No.: 1171100187 Signature:

2. FAIZIN NASRIN BT MD REJAB ID No.: 1171101777 Signature:

3. KOH YONG KWANG ID No.: 1181300953 Signature:

4. NG SAY JIN ID No.: 1181301789 Signature:

Date Due: 25th March 2022

Date Submitted: 25th March 2022
Word Count: 4808 words (excluding footnotes)

DECLARATION:
This is our own work. We have not previously submitted this work, in whole or in part, for
assessment. This work complies with all the governing legal and ethical rules, including those
concerning plagiarism and copyright. We have not plagiarised and have also acknowledged ALL
sources which are not our own and have not merely “cut and pasted”. We have retained a copy of
this assignment.

No. Marking Scheme Marks

1. Research, analysis and application (15)

2. Presentation, format, grammar and compliance with instructions (5)

Total (20)
DECLARATION OF TASKS PERFORMED

No. Name Description of Tasks Performed

1. KATHY WONG KER SING - Drafted and delegated the assignment tasks to
the group members.
- Participated and contributed to the group
discussion regarding the tasks.
- Completed the letter format, background facts,
opinion and conclusion of the legal opinion
letter.
- Researched on case authorities on legal
databases such as Lexis Advance, CLJ,
WestLaw Asia and others.
- Compiled, formatted, and edited the legal
opinion letter.

2. FAIZIN NASRIN BT MD - Drafted and delegated the assignment tasks to

REJAB the group members.
- Participated and contributed to the group
discussion regarding the tasks.
- Researched and completed delegated task on
quantum of damages such as the general
damages, special damages and exemplary
damages.
- Referred to law statutes including Civil Law
Act 1956 (CLA) and Rules of Court 2012
(ROC).
- Researched on case authorities on legal
databases such as Lexis Advance, CLJ,
WestLaw Asia and others.
- Completed the letter format, background facts,

1
 opinion and conclusion of the legal opinion
letter.

3. KOH YONG KWANG - Participated and contributed to the group

discussion regarding the tasks.
- Researched and completed delegated task on
rights of the Deceased who was the accused
when arrested.
- Referred to law statutes including Dangerous
Drug (Special Preventive Measures) Act 1985,
Criminal Procedure Code (CPC), Police Act
1967, Lock-Up Rules 1953, Penal Code (PC)
and the Federal Constitution (FC).
- Researched on case authorities on legal
databases such as Lexis Advance, CLJ,
WestLaw Asia and others.

4. NG SAY JIN - Participated and contributed to the group

discussion regarding the tasks.
- Researched and completed delegated task on
the unlawful detention and custody rights of
the representative of the estate on behalf of the
Deceased.
- Referred to law statutes including Civil Law
Act 1956 (CLA), Courts of Judicature Act
1964 (CJA) and the Federal Constitution (FC).
- Researched on case authorities on legal
databases such as Lexis Advance, CLJ,
WestLaw Asia and others.

2
 TABLE OF CONTENT
DECLARATION OF TASKS PERFORMED ................................................................................ 1

QUESTION ................................................................................................................................ 4

CONTENT ................................................................................................................................. 6

2.0 Background Facts .......................................................................................................................... 7

3.0 Liabilities ........................................................................................................................................ 8

(a) Whether you may sue IPD Setapak for wrongfully arresting the Deceased? .......................... 8

Right of the Deceased as an arrested person to be informed on the ground of arrest .............. 10

Right of the Deceased as an arrested person to communicate and consult with a lawyer ........ 11

Right of the Deceased as an arrested person to be brought before a Magistrate within 24 hours
..................................................................................................................................... 12

(b) Whether you may sue the police officer on the ground of negligence and breach of duty of
care? ................................................................................................................................. 13

Evidence of police breach of duty of care .......................................................................... 13

Policy consideration for imposing duty on police ............................................................... 14

(c) Whether you may sue the police on the ground of unlawful detention of the Deceased? ....... 15

Unlawful detention vs. Tort of misfeasance ....................................................................... 15

4.0 Quantum of Damages .................................................................................................................. 17

4.1 General Damages .......................................................................................................... 17

4.2 Special Damages .......................................................................................................... 19

4.3 Exemplary Damages ..................................................................................................... 20

5.0 Conclusion .................................................................................................................................... 22

BIBLIOGRAPHY .............................................................................................................................. 24

3
QUESTION

Rajoo was a hypertensive, diabetic, stroke and heart patient who required daily medication for his
various health problems. On 1 June 2019 at around 10.30am, Rajoo was arrested at his home in
Setapak, Kuala Lumpur by a group of police officers led by ASP Malik. Several police officers
from the Bahagian Narkotik IPD Setapak led by the ASP Malik arrived at his home to arrest The
Deceased. The officers informed Mala that they intended to bring Rajoo to IPD Setapak. At the
material time, Rajoo was asleep inside the bedroom in the house. Mala informed the arresting
officers that Rajoo had been ill, having undergone a bypass surgery not long ago. She also inform
them that Rajoo had required to take eight types of medicines a day for his various illnesses. During
the arrest, Mala had tried to hand over Rajoo’s medication to the police officers. However, they
had refused to take the medicines.

Rajoo was suspected to be a drug dealer. He was brought to Ibu Pejabat Polis Daerah Setapak
where his arrest was made known to the investigating officer, Corporal Maniam and Constable
Chee, the officer who ordered The Deceased's arrest.

At around 3pm, Mala received a call from a police officer from IPD Setapak, requesting that she
bring all Rajoo's medication to IPD Setapak. Mala went to the offices of Bahagian Siasatan
Jenayah Narkotik IPD Setapak at around 3.30pm on the same day to hand over ten types of
medicines that The Deceased required daily to ASP Malik.

However, ASP Malik forgot to record the information regarding Rajoo's health in the station diary
or pocketbook. Constable Chee was in charge of registration at the lockup at the material time and
he was the officer who had received The Deceased's medication from Mala. Constable Chee also
signed the 'Borang Penyerahan Ubat OKT' in which he acknowledged receipt of 10 types of
medicines for Rajoo. However, Constable Chee did not record in the station diary that Rajoo was
ill and needed his daily medication. He also forgot to inform Rajoo that he had to ask the officers
in the lockup to be given his medication when he needed them or to inform the other police officers
subsequently coming to be on duty of Rajoo’s condition and medical needs.

At around 6.30pm on the same day, Rajoo was sent to Lokap Berpusat Jinjang, Kuala Lumpur

4
("lockup") to be detained for 60 days under s. 3(1) of the Dangerous Drugs (Special Preventive
Measures) Act 1985 beginning on 29 June 2019 until 27 August 2019 for investigation. On 7 July
2019 at around 10pm, Rajoo communicated with Mala using a mobile phone belonging to one of
the officers in charge of the lockup. Rajoo informed Mala that he had a fever and his body felt
very cold. On 10 July 2019 at around 5.10am, Rajoo collapsed in his detention cell whilst urinating.
At 6.06am, Rajoo was 'brought in dead' to Hospital Kuala Lumpur. Based on the post-mortem
report that had been prepared, Rajoo’s cause of death had been "Acute Myocardial Infarction due
to Coronary Bypass Graft Disease" and "Hypertension, Diabetes Melitus and Stroke". The
Deceased had been ill prior to his death.

During his life, Rajoo had been employed with BinaGaya Construction, working as a driver
beginning from August 2016 till June 2019. The Deceased had been gainfully employed at the
material time and had been giving Mala and their children money for their expenses. Mala had
been receiving a sum of approximately RM800 to RM900 a month from Rajoo. Mala also testified
that the funeral costs had been about RM10,000 as well as RM3,500 being the costs for travelling
to the Kuala Lumpur courts to attend the inquest proceedings. Mala also testified that RM5,500
had been the cost for obtaining the letters of administration, which enabled her to commence this
suit in court. Uma, Rajoo’s mother claim that Rajoo had given her mother a monthly stipend of
approximately RM200 a month. He had also paid for Uma's house's monthly instalments,
amounting to RM300 a month. The rent for the family home had been RM250 a month.

Write a letter of opinion to Mala, explaining about her rights of legal suit and possible damages.

5
 WONG, NASRIN, NG, KOH & ASSOCIATES
PEGUAMBELA & PEGUAMCARA
ADVOCATES & SOLICITORS

Partners
KATHY WONG KER SING Address
LLB Hons., MMU No. 123, Wisma Puncak,
Jalan Wisma Puncak 13,
FAIZIN NASRIN MD REJAB 17540, Melaka.
LLB Hons., MMU
Contact
NG SAY JIN Tel: 04-7386582
LLB Hons., MMU Fax: 04-8968589
Email: wnnk@gmail.com
KOH YONG KWANG
LLB Hons., MMU

CONTENT
Your Ref : (Please advise)
Our Ref : NW/LIT/M/OL/PI/21/1001/T5
Date : 15 January 2022

Mala, BY AR REGISTERED POST

145, Blok B,
PPR Desa Rejang,
Jalan 9 Desa Rejang,
Setapak Jaya
54100 Kuala Lumpur

Dear Madam,

RE: ENQUIRY REGARDING THE RIGHTS OF LEGAL SUIT AS THE ESTATE

REPRESENTATIVE OF RAJOO (“THE DECEASED”) AND POSSIBLE
DAMAGES

6
1. We refer to the above matter and to our previous correspondence regarding the rights of legal
suit as the estate representative of Rajoo (“the Deceased”) and possible damages obtained
from this suit.

2. This letter is to discuss our view regarding the rights of legal suit in your capacity as the estate
representative of the Deceased and the possible damages arising from it.

Kindly find enclosed of the following documents for your reference:

(i) Police report
(ii) Sketch plan
(iii) Post-mortem report issued by General Hospital Kuala Lumpur
(iv) Medical bill issued by General Hospital Kuala Lumpur
(v) Identification card
(vi) Driving licence
(vii) Witness statements
(viii) Death Certificate

2.0 Background Facts

The background of the matter is as follows:

3. Rajoo (hereinafter referred as "the Deceased") was a hypertensive, diabetic, stroke and heart
disease patient who required daily medication for his health problems. On 1 June 2019 at
around 10.30 a.m., he was arrested at his home in Kuala Lumpur on suspicion of drug dealing.
During the arrest, you sought to give the cops the Deceased's medication, but they refused to
take the pills.

4. At around 3 p.m., you were requested to hand over the daily medicines to ASP Malik in IPD
Setapak but ASP Malik forgot to record the Deceased's health information in the station diary
or pocketbook. Constable Chee who oversaw registration at the lockup at the time, had
received the medication and signed the 'Borang Penyerahan Ubat OKT' in acknowledged
receipt of the ten (10) medicines. However, Constable Chee failed to note in the station diary

7
 that the deceased was ill and needed his daily medication and failed to inform other officers
on duty of the Deceased's condition and medical needs.

5. On the same day, the Deceased was imprisoned in Lokap Berpusat Jinjang, Kuala Lumpur for
60 days for investigation under section 3(1) of the Dangerous Drugs (Special Preventive
Measures) Act 1985. On 10 July 2019 at around 5.10am, the Deceased collapsed in his
detention cell whilst urinating and was 'brought in dead' in Hospital Kuala Lumpur. Thus, you
wish to take legal action on behalf of the Deceased.

3.0 Liabilities

Based on the above facts, we are of the opinion that you may take legal action in:-

(a) Whether you may sue IPD Setapak for wrongfully arresting the Deceased?

6. Section 23 of the Criminal Procedure Code1 empowers police officer or a penghulu to arrest
without a warrant. Section 2 of the Police Act 19672 provides that a police officer can be any
member of the Royal Malaysian Police from the rank of police up to Inspector General of
Police.

7. To arrest without warrant, Section 23(1)(a) of the Criminal Procedure Code states that when
any seizable offence has been committed, any police officer may arrest any person without a
warrant if there is a reasonable complaint, or credible information has been received or a
reasonable suspicion exists. Section 3(1) of the Dangerous Drugs (Special Preventive
Measures) Act 19853 is in pari materia as it states that any police officer may arrest any person
without warrant when the police have reason to believe there are grounds which could justify
his detention under subsection 6(1). So, it is a seizable offence.

8. We refer to the case of Muhammad Shafiq Dollah & Anor v Sarjam Mejar Abdul Manaf
Jusoh4, whereby the parties in this case claimed for wrongful arrest and were badly injured

1
S. 23 Criminal Procedure Code
2
S. 2 Police Act 1967
3
S. 3(1) Dangerous Drugs (Special Preventive Measures) Act 1985
4
[2013] 2 CLJ 1096

8
 during the period of arrest and detention to the point that treatment in the hospital was sought.
The court held that Section 23(1)(a) of the Criminal Procedure Code was only applicable if
there was reasonable suspicion for arrest and that police had failed to establish that on the
facts of this case.

9. To prove reasonable suspicion, there is no need to establish prima facie that the person has
committed the offence and the detention is considered lawful when the Magistrate had given
a remand order under Section 117 of the Criminal Procedure Code. If the arrest is wrongful,
there will be a granting of nominal damages, which in this case the court states that RM
5,000.00 may be awarded if the arrest is wrongful.

10. We further cite the case of PDRM v Audrey Keong Mei Cheng5 where the court made
reference to Section 23(1)(a) of the Criminal Procedure Code where the power of police to
arrest extends to only the rank of Sergeant and above.

11. In the present situation, the Deceased was arrested at his home by a group of police officers
led by ASP Malik. The Deceased was suspected to be a drug dealer. The arrest of the Deceased
was made known to the investigating officer, Corporal Maniam and Constable Chee, the
officer who ordered the Deceased’s arrest. On the same day, The Deceased was sent to Lokap
Berpusat Jinjang, Kuala Lumpur for detention under Section 3(1) of the Dangerous Drugs
(Special Preventive Measures) Act 1985.

12. Section 23(1)(a) of the Criminal Procedure Code is applicable to ASP Malik by virtue of the
case of Audrey Keong Mei Cheng, ASP Malik is above the rank of Sergeant. Even though
Constable Chee who ordered the arrestation is under the rank of Sergeant, but ASP Malik was
the one who conducted the arrestation, thus it is difficult for you to win the argument in this
point.

13. We are of the opinion that the police officer did not have reasonable suspicion to arrest the
Deceased. By referring to the case of Muhammad Shafiq Dollah & Anor, the police officers
did not raise any reasonable suspicion regarding the information that the Deceased may or

5
[1994] 3 MLJ 296

9
 may not be the drug dealer without any further information. By relying on section 23(1)(a) of
Criminal Procedure Code, mere weak suspicion is insufficient to conduct such arrest of the
Deceased. The mere suspicion from the police does not satisfy the threshold of reasonable
suspicion.

14. Therefore, we are of the opinion that you may sue IPD Setapak for wrongfully arresting the
Deceased.

Right of the Deceased as an arrested person to be informed on the ground of arrest

15. As an arrested person, the Deceased shall have the right to be informed of grounds of arrest.
According to Article 5(3) of the Federal Constitution6, a person arrested shall be informed
as soon as may be of the grounds of his arrest. Section 28A(1) of the Criminal Procedure
Code7 states that a person arrested without a warrant must be informed as soon as may be on
the grounds of his arrest by the police officer who made the arrest.

16. In Abdul Rahman v Tan Jo Koh8, the court held that a person arrested on suspicion of
committing an offence is entitled to immediately know the reason for his arrest. If the reason
was withheld, then the arrest and detention would amount to false imprisonment until the time
he was told the reason.

17. Back to the present situation, the Deceased was arrested at his home by a group of police
officers led by ASP Malik. To our knowledge, the officers informed you that they intended to
bring the Deceased to IPD Setapak, but they did not inform the ground of arrest. We were not
informed by you that there was any evidence that the police officers and ASP Malik had
informed the Deceased on the grounds of arrest.

6
A. 5(3) Federal Constitution
7
S. 28A(1) Criminal Procedure Code
8
[1968] 1 MLJ 205

10
18. We are of the position that you may sue the police officer for depriving the rights of the
Deceased as an arrested person on the ground that the Deceased was not informed on the
ground of arrest by the police officer.

Right of the Deceased as an arrested person to communicate and consult with a lawyer

19. According to Article 5(3) of the Federal Constitution and Section 28A(2)(b) of Criminal
Procedure Code, an arrested person should be allowed to consult and be defended by a legal
practitioner of his choice. This right to legal advice should arise where such a person is
brought before a Magistrate within 24 hours.

20. Section 28A(4)9 and Section 28A(5) of Criminal Procedure Code10 state that there must
be reasonable time for the legal practitioner to meet with the arrested person and the
consultation shall be within the sight of police but it will not be overheard. We also refer to
the Rule 23 of Lock-up Rules 195311 where lawyers may visit the arrested person to prepare
the defence.

21. In the case of Saul Hamid v Public Prosecutor12, the court states that a person in remand
proceeding is allowed to meet his legal representation and if failed to do so, the burden lies
on the police to show that there will be interruptions in their investigation.

22. By referring to the facts, it is shown that the Deceased was deprived of his opportunity to
call and meet up with his legal practitioner during his arrest at IPD Setapak and Lokap
Berpusat Jinjang, Kuala Lumpur. It clearly shows that the rights of the Deceased as an
arrested person were deprived. By applying the case of Saud Hamid into the present
situation, the burden lies on the police officers to prove that there will be interruptions in
their investigation if they were to allow the Deceased to meet up with lawyer. Failure to
prove as such is fatal and you may succeed in suing the police officer for depriving the rights

9
S. 28A(4) Criminal Procedure Code
10
S. 28A(5) Criminal Procedure Code
11
Rule 23 Lock-Up Rules 1953
12
[1987] 2 MLJ 736

11
 of the Deceased as an arrested person on the ground that the Deceased was not allowed to
communicate and consult with a lawyer.

Right of the Deceased as an arrested person to be brought before a Magistrate within 24

hours

23. Under Article 5(4) of the Federal Constitution13 and Section 28(3) of Criminal
Procedure Code14, an arrested person must be brought before a Magistrate without
unreasonable delay within 24 hours of arrest. This provision was applied in the case of
Kwan Hung Cheong v Inspector Yusof Haji Othman15.

24. The fact is silent about whether the police officers had brought the Deceased before a
Magistrate within 24 hours. The burden lies on the police officer to prove as the police
officer cannot arrest and detain the Deceased more than 24 hours, if there is no remand
application had been made by the police officers under section 117 of the Criminal
Procedure Code16.

25. When an arrested person is brought before a Magistrate, the Magistrate should inquire
about the welfare of the arrested person as to whether he as a person with serious illness
needs medication or medical treatment. In hindsight, the Deceased will have a medical
treatment during his lock-up and investigation if the police officers had brought the
Deceased before a Magistrate within 24 hours.

26. Thus, you may sue the police officer for depriving the rights of the Deceased as an arrested
person on the ground that the Deceased was not brought before a Magistrate within 24
hours.

13
A. 5(4) Federal Constitution
14
S. 28(3) Criminal Procedure Code
15
[2009] 3 MLJ 263
16
S. 117 Criminal Procedure Code

12
(b) Whether you may sue the police officer on the ground of negligence and breach of duty
of care?
27. The legal issue in this case was whether the police had a duty of care towards the Deceased
whilst he was in custody and whether that duty, if it exists, included an obligation to ensure
that the deceased is given proper medical care and attention. A key factual issue here is
whether the police were aware or made aware that The Deceased was on medication for
hypertension and whether the deceased had presented any overt symptoms which
warranted medical attention.

Evidence of police breach of duty of care

28. The Deceased was arrested on 1 June 2019 at around 10.30am, at his home. During the
arrest, you, as spouse of The Deceased had tried to hand over The Deceased's medication
to the police officers. However, the arresting team had refused to take the medicines.
Subsequently, at 3.30pm on the same day of arrest, you went to the offices of Bahagian
Siasatan Jenayah Narkotik IPD Setapak to hand over ten types of medicines that The
Deceased required daily to ASP Malik. However, ASP Malik forgot to record the
information regarding the Deceased's health in the station diary or pocketbook.

29. Constable Chee also committed three (3) negligence acts. First, he did not record in the
station diary that The Deceased was ill and needed his daily medication. Second, he also
forgot to inform The Deceased that the latter had both constitutional and statutory rights to
ask the officers in the lockup for his medication when he needed them. Third, Constable
Chee also failed to inform the other police officers subsequently coming to be on duty of
The Deceased's condition and medical needs. As professional policeman, the standard of
care expected of Constable Chee is determined by the standard that would be exercised by
a reasonably prudent professional policeman in that line of work; and in the Malaysian
context means compliance with Lock-Up Rules 1953.

30. On 10 July 2019 at around 5.10am, the Deceased collapsed in his detention cell whilst
urinating. The post-mortem report attributed the Deceased's cause of death to "acute
myocardial infarction due to coronary bypass graft disease" and "hypertension, diabetes
melitus and stroke".

13
31. As such, you may have to argue that despite the Deceased’s pre-existing medical
conditions, his death was caused by the negligence, tort of misfeasance and a breach of his
constitutional rights by the police. The police had both statutory and common law duty to
ensure that the Deceased which was under direct custody, care and control was not exposed
to whatsoever form of danger.

Policy consideration for imposing duty on police

32. The question is whether it is just, fair and reasonable (policy consideration) for estate of
the Deceased to recover financial losses of his death from the police. The House of Lord
in Caparo Industries plc v Dickman and others17 introduced the “three-stage test" in order
to ascertain duty of care in negligence. The Malaysian Lock-Up Rules 1953 stipulates that
the police have a legal duty to ensure that detainees who are unwell are duly attended to
and in particular, when a detainee suffers from any form of medical illness, then special
attention has to be given to this situation and appropriate steps have to be taken accordingly.

33. As a result of failure of ASP Malik to record the information regarding the Deceased's
health in the station diary or pocketbook; and Constable Chee omission in updating station
diary of The Deceased’s illness and medication requirements. Constable Chee also
neglected to inform his colleagues of The Deceased’s conditions. The Deceased’s harm
was therefore reasonably foreseeable and attributed to serious breach of police in the
performance of their duties.

34. The second test of proximity refers to the relationship of police and detainees, they are
‘sufficiently close’ that it is ‘reasonably foreseeable’ that police’s negligence would cause
loss or damage to the detainess. The third test of fairness connotes that it is ‘fair, just and
reasonable’ or there is policy considerations to impose duty on police for failing to comply
with Lock-Up Rules 1953.

17
[1990] 1 All ER 568

14
(c) Whether you may sue the police on the ground of unlawful detention of the Deceased?

Unlawful detention vs. Tort of misfeasance

35. On a separate issue, Federal Court in the case of Jayaganesan Ramakrishnan v Timbalan
Menteri Dalam Negeri, Malaysia & Ors18, held that detention under section 3(1) of the
Dangerous Drugs (Special Preventive Measures) Act 1985 is subject to the detaining
authority to meet its burden under section 9(1) of the Act. Hence, the law mandatorily
entitles the Deceased the right to make representations before the Board before his
detention. No evidence indicated that the relevant notice had been served on the Deceased,
thus it rendered his detention illegal. Applying Jayaganesan’s case, the court would have
to issue a writ of habeas corpus and the Deceased may has to be released accordingly. At
this juncture, the police prima facie has committed the tort of misfeasance.

36. In Keruntum Sdn Bhd v The Director Of Forests & Ors19, Tun Ariffin Zakaria highlighted
the importance of tort of misfeasance in the Malaysian legal system is founded on the
sacrosanct and inviolable principle of rule of law in which executive or enforcement power
of police shall only be exercised for the public and common good and not for improper
purposes. The jurisprudence behind misfeasance tort has been designed to protect poor,
helpless, and weak citizen like The Deceased.

37. As ordinary citizens, the Deceased and his family have reasonable expectation that police
officers will not intentionally or accidentally injure the Deceased through any unlawful
conduct in the exercise of public functions or police power. You are advised that there is
an inalienable individual right and public interest in bringing police officers guilty of
outrageous conduct to book. Any police officer who acts in contrary to fair play and good
conscience should not be free to do so with impunity as the detention of the Deceased for
60 days; without trial, was unlawful and unconstitutional.

18
[2019] 9 CLJ 725
19
[2017] 3 MLJ 281

15
(d) Whether you as the estate representative of the Deceased has the Burden of proof on
balance of probabilities?

38. The duty is on the estate of the Deceased to prove on a balance of probabilities that the
police had breached their duty of care which was owed to the deceased and that the death
of The Deceased was due to police negligence in providing timely and effective
prescription; and/or failing to send The Deceased to the hospital for immediate medical
treatment in circumstances where there was clear and unmistakable evidence that The
Deceased was suffering severe medical condition as evidenced by his fever and cold body;
and the police were already informed either directly or indirectly that the deceased was
unwell and required costant medical attention. Hence, liability for negligence (by omission)
and public misfeasance had been established against the police.

39. Her Ladyship, Nallini Pathmanathan writing on behalf of Federal Court in Koperal Zainal
bin Mohd Ali & Ors v Selvi a/p Narayan20 affirmed that award of exemplary damages in
an estate claim of custodial death may not be available under section 8(2) of the Civil Law
Act 1956. However, redress can be premised on the infringement of a fundamental right
under Art 5(1) Federal Constitution and Schedule 1 to paragraph 25 of the Courts of
Judicature Act 1964. Lady Justice Nallini in applying the decision of R Rama Chandran
v industrial Court of Malaysia & Anor21 propounded by Justice Edgar Joseph Sr that
courts may mould the relief required to ensure compliance and observance of The
Deceased’s constitutional right.

40. In this matter, public law remedy may not afford sufficient or appropriate relief as the
victim’s death has been attributed to arbitrary, oppressive, and unconstitutional conduct of
the police as servants of the State, the appropriate relief is in the form of monetary
compensation payable to The Deceased's estate. Therefore, estate of The Deceased may be
entitled to receive the damages, be it exemplary or aggravated damages for a breach of his
constitutional right to life under Article 5(1) FC where the assessment and grant of

20
[2021] MLJU 377
21
[1996] 1 MELR 71; [1996] 1 MLRA 725

16
 exemplary damages in the total sum of RM200,000.00 was deemed as appropriate, fair and
reasonable.

4.0 Quantum of Damages

41. For the quantum of damages, there are a few considerable types of damages to be taken
into consideration. This includes the general damages, special damages, and exemplary
damages.

4.1 General Damages

42. In the general damages, the burden of proof on the balance of probabilities in the evidence
lies on you. In this situation, the Deceased has incurred pain and suffering due to the lack
of proper care administered by the police department which eventually led to his demise.

43. The court in Mariam binte Ahad v Ernesto Gacad & Anor22 awarded damages based on
the years lost. We ask for you to take into consideration to claim for the monthly allowances
that the Deceased has given to you, your children, and your mother as well as the monthly
rental.

44. The calculation for this claim would be the amount of month allowance paid multiplied by
the years’ purchase.

45. We reproduce section 28A (2) of the Civil Law Act 195623 whereby it states that the
number of years’ purchase shall be 16 for the victim of 30 years or below. In the event that
the person is between 31 years and 59 years, the number of years’ purchase will be
calculated by deducting the age of the person from 60 and dividing the remainder by 2.

46. Our office is yet to receive the information on how old the Deceased was when he
unfortunately passed away. Therefore, our office will calculate for situation for your kind
reference. The loss of earning that is claimable if the Deceased is below 30 would be 16.

22
[1986] 1 MLJ 266
23
S. 28A (2) Civil Law Act 1956

17
47. The monthly allowance claimable shall then be as follows:

Description Amount (monthly) Calculation Total

Mala and children’s RM800.00 - 900.00 1. RM800.00 x 12 x Ranges from
expenses 16 = RM153,600.00 RM153,600.00 to
RM172,800.00
2. RM900.00 x 12 x
16 = RM172,800.00
Uma, Rajoo’s RM200.00 RM200.00 x 12 x 16 RM38,400.00
mother’s allowance = RM38,400.00
Uma’s house’s RM300.00 RM300.00 x 12 x 16 RM57,600.00
monthly instalments = RM57,600.00
Family home rent RM250.00 RM250.00 x 12 x 16 RM48,000.00
= RM48,000.00

48. In the event that the Deceased was between 31 to 59 years, our office will take 45 years
being the median number. The calculation for the years’ purchase shall be [60 – 45] divided
by 2. This brings the years’ purchase to 7.5 years.

49. The monthly claimable allowance would then be:

Description Amount (monthly) Calculation Total

Mala and children’s RM800.00 - 900.00 1. RM800.00 x 12 x Ranges from
expenses 7.5 =RM72,000.00 RM72,000.00 to
RM81,000.00
2. RM900.00 x 12 x
7.5 = RM6,750.00
Uma, Rajoo’s RM200.00 RM200.00 x 12 x 7.5 RM18,000.00
mother’s allowance = RM18,000.00

18
 Uma’s house’s RM300.00 RM300.00 x 12 x 7.5 RM27,000.00
monthly instalments = RM27,000.00
Family home rent RM250.00 RM250.00 x 12 x 7.5 RM22,500.00
= RM22,500.00

50. In Thangavelu v Chia Kok Bin24, the court ruled that an award for pain and suffering and
loss of amenities will be made if the death occurs after a lapse of time. The Deceased was
in fact conscious for a period of time before he was brought in dead to the hospital. In
addition, the deceased had been deprived from consuming his daily medication from the
moment he got arrested and detained in prison which meant the Deceased had been in
constant pain and struggle. This includes the period where he contacted your goodself that
he was suffering from fever and his body was cold. As such, we suggest for you to claim
for pain and suffering and loss of amenities.

4.2 Special Damages

51. Citing Tan Teck Hing & Anor v Lee Yong Kong & Anor25, the court ruled that special
damages are damages that can be quantified precisely. The funeral costs, transportation
costs, letter of administration costs fall under special damages.

52. We furnish to you the case of Soo Wai Seng v Tan Kim Lock26 where the court deemed
travel expenses to be claimable. This further strengthens your case of claiming RM3,500.00
being the transportation cost to attend inquest proceedings in Kuala Lumpur courts.

53. We furnish to you below the total amount of special damages claimable by you:

Description Amount
Funeral Costs RM10,000.00
Transportation to attend inquest proceedings RM3,500.00
in Kuala Lumpur courts

24
[1981] 2 MLJ 277
25
[2003] 1 MLJ 599
26
[1986] 2 MLJ 61

19
 Obtaining the letters of administration costs Rm5,500.00

54. Thus, the total amount of special damage that you could claim for is RM29,000.00.

4.3 Exemplary Damages

55. Exemplary damages were highlighted in Khaw Cheng bok & Ors v Khaw Cheng Poon &
Ors27, the court described those exemplary damages are to be awarded in situations where
the acts of the tortfeasor were intentional, and even malicious. In this particular, the court
awarded the victim RM5,000,000.00.

56. In Rookes v Barnard & Ors28, Devlin J restricted the award of this damages to situations
where the servants of the government had acted oppressive towards the victim.

57. It is clear that the police department, being servants of the government, had acted
oppressive towards the Deceased. There was an intentional act of denying the Deceased’s
proper treatment. In addition to that, the police officer had acted malicious by refusing to
take the medications that were handed over by you. It is our suggestion for you to request
for exemplary damages from the court due to this unconstitutional and oppressive conduct
of the police officer. This sum is up to your preference, however, we strongly suggest that
you claim for RM1,000,000.00 as it falls within the range that is usually claimed for
exemplary damages.

58. We furnish to you the summarised damages claimable by your kindself.

Description Amount
Mala and children’s expenses Median amount (if Rajoo is below 30 years old)
RM163,200.00

Median amount (if Rajoo is 45 years old)

27
[1998] 3 MLJ 457
28
[1964] ac 1129, para 1226

20
 RM76,500.00
Uma, Rajoo’s mother’s allowance If Rajoo is below 30 years old
RM38,400.00

If Rajoo is 45 years old

RM18,000.00
Uma’s house’s monthly instalments If Rajoo is below 30 years old
RM57,600.00

If Rajoo is 45 years old

RM27,000.00
Family home rent If Rajoo is below 30 years old
RM48,000.00

If Rajoo is 45 years old

RM22,500.00
Funeral Costs RM10,000.00
Transportation to attend inquest RM3,500.00
proceedings in Kuala Lumpur courts
Obtaining the letters of RM5,500.00
administration costs
Exemplary damages RM1,000,000.00

TOTAL: RM 1,652,400.00 if Rajoo is 30 below years old;

RM1,163,000.00 if Rajoo is 45 years old.

21
59. We would like to inform you at this juncture that your claim for damages will be subjected
to interests as the court deem as fit by virtue of Section 11 of the Civil Law Act 195629.
This interest rate shall be 5% pursuant to Order 59 Rule 24 of the Rules of Court 201230.

5.0 Conclusion

60. We are of the view that you may sue IPD Setapak for wrongfully arresting the Deceased.
We draw support from the fact that the Deceased was deprived of his right as an arrested
person to be informed on the ground of arrest. In addition to that, his right to communicate
and consult with a lawyer might be deprived as well. Furthermore, the Deceased’s right to
be brought before a Magistrate was also denied by IPD Setapak. However, as our office
has yet to receive full particulars as to the detailed brazen act of negligence from your side,
we are of the position that these grounds might be subjected to change.

61. We are of the opinion that you may take action against the police officers on the ground of
negligence and breach of duty care. It is trite law that police officers, being professionals,
are bound to adhere to set standards. Thus, the police officers’ failure to meet such
threshold resulted in a breach of duty of care which inevitable amounted to negligence on
their part.

62. We highly suggest for you to consider taking action against the police on the ground of
unlawful detention of the Deceased. We illustrated to your kindself the difference between
unlawful detention and tort of misfeasance. We believe this to be sufficient.

63. We bring to your attention that your capacity as the estate representative of the Deceased
has the burden of proof on balance of probabilities. This is something that you have to
consider before proceeding with this suit. We would be of good service to your kindself in
assisting you with this matter.

29
S. 11 Civil Law Act 1956
30
O. 59 r. 34 Rules of Court 2012

22
64. We are of the position that the odds are favourable against you. We could foresee that you
could claim for general damages, special damages, and exemplary damages. Our office
would be honoured to guide you in obtaining the maximum award in this suit.

KINDLY TAKE NOTE that the purpose of this letter is to list the POSSIBLE claims that may
be favourable to you. Till this date, we have yet to receive any further instructions from you. Thus,
the list provided shall not be treated as conclusive and may be updated pending the documents
from your side.

Yours Faithfully,

WNNK
………………………….
Advocates and Solicitors
Messrs. Wong, Nasrin, Ng, Koh & Associates

23
BIBLIOGRAPHY

Cases
Abdul Rahman v Tan Jo Koh [1968] 1 MLJ 205
Caparo Industries plc v Dickman and others [1990] 1 All ER 568
Jayaganesan Ramakrishnan v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2019] 9 CLJ 725
Keruntum Sdn Bhd v The Director Of Forests & ors [2017] 3 MLJ 281
Khaw Cheng Bok & Ors v. Khaw Cheng Poon & Ors [1998] 3 MLJ 457
Koperal Zainal bin Mohd Ali & Ors v Selvi a/p Narayan [2021] MLJU 377
Kwan Hung Cheong v Inspector Yusof Haji Othman [2009] 3 MLJ 263
Mariam Binte Ahad v Ernesto A. Gacad (1986) 1 MLJ 266
Mohammad Shafiq Dollah & Anor v Sarjan Mejar Abdul Manaf Jusoh [2013] 2 CLJ 1096
PDRM v Audrey Keong Mei Cheng [1994] 3 MLJ 296
R Rama Chandran v industrial Court of Malaysia & Anor [1996] 1 MELR 71 [1996] 1 MLRA 725
Rookes v Barnard [1964] AC 1129
Saul Hamid v Public Prosecutor [1987] 2 MLJ 736
Soo Wai Seng v Tan Kim Lock [1986] 2 MLJ 61
Tan Teck Hing & Anor v Lee Yong Kong & Anor [2003] 1 MLJ 599
Thangavelu v Chia Kok Bin (1981) 2 MLJ 277

Journal
Gary Lilienthal, Nehaluddin Ahmad, “The State Obligations and Torture: A Comparative
Jurisprudential Analysis” [2016] 1 MLJ clxvii
Nichola Hodge, 'Police, Negligence and the Elusive Special Ingredient: A Critical Analysis of
Michael v Chief Constable of South Wales Police and the Liability of Police for the Actions
of Third Parties' (2018) 24 Canterbury L Rev 107

Statutes
Civil Law Act 1956
Courts of Judicature Act 1964

24
Criminal Procedure Code
Dangerous Drugs (Special Preventive Measures) Act 1985
Federal Constitution
Lock-up Rules 1953
Penal Code
Police Act 1967
Rules of Court 2012

25