DALAM MAHKAMAH RAYUAN MALAYSIA

(BIDANG KUASA RAYUAN)

RAYUAN SIVIL NO: W-01(NCVC)(W)-14-01/2016

ANTARA

1. TIMBALAN MENTERI KESELAMATAN

DALAM NEGERI, MALAYSIA

2. MENTERI DALAM NEGERI, MALAYSIA

3. PENGUASA PUSAT PEMULIHAN AKHLAK,

MUAR, JOHOR DARUL TAKZIM

4. KETUA POLIS NEGARA

5. KERAJAAN MALAYSIA … PERAYU-PERAYU

DAN
ONG SAN HUEI … RESPONDEN

[Dalam Mahkamah Tinggi Di Kuala Lumpur

Guaman Sivil No: S21 NCVC-45-2011

Antara

Ong San Hui … Plaintif

Dan

1. Timbalan Menteri Keselamatan Dalam Negeri,

Malaysia
2. Menteri Dalam Negeri, Malaysia
3. Penguasa Pusat Pemulihan Akhlak,
Muar, Johor Darul Takzim
4. Ketua Polis Negara
5. Kerajaan Malaysia … Defendan-Defendan]

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 CORAM:

MOHD. ZAWAWI SALLEH, JCA

VERNON ONG LAM KIAT, JCA
ABDUL RAHMAN SEBLI, JCA

GROUNDS OF JUDGMENT

INTRODUCTION

[1] At the High Court, the plaintiff sued the 1st to 5th defendants for
damages for false imprisonment relating to the plaintiff’s detention under
a detention order. At the conclusion of the trial of the action, the learned
judge found for the plaintiff and awarded general damages in the global
sum of RM300,000.00.

[2] This is the 1st to 5th defendants’ appeal against the decision of the
learned judge on liability and quantum. The plaintiff cross-appealed
against part of the decision disallowing his claim for loss of income; the
plaintiff’s cross appeal was withdrawn at the hearing of the appeal. After
hearing of counsel on 16.8.2016, we found no merits in the issues raised
and dismissed the 1st to 5th defendants’ appeal with costs. Our grounds of
decision are as follows.

THE SALIENT FACTS

[3] The plaintiff was subjected to preventive detention for alleged

involvement in dangerous drug trafficking activities by the 1st and 2nd

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defendants under the Dangerous Drugs (Special Preventive Measures)
Act 1985 (Act 316) from 6.11.2004 to 23.10.2009. In order to appreciate
the background leading to the plaintiff’s suit, it is necessary to set out the
following chronology of events:

5.11.2004 Detention Order (“DO”) issued by the 1st defendant

under s 6(1) of Act 316 whereby the plaintiff was ordered
to be detained at a detention centre in Muar for a period
of 2 years commencing from 6.11.2004.

6.11.2004 Plaintiff detained in Pusat Pemulihan Akhlak, Muar

pursuant to the DO.

5.11.2006 Extended Detention Order (“1st EDO”) issued by the 1st

defendant under s 11A(1)(a)(aa) of Act 316 directing
that the duration of the DO be extended for a period of
2 years commencing from 5.11.2006.

11.4.2007 1st defendant issued an Order (“Suspension Order”)

under s 7(1) of Act 316 suspending the 1st EDO with
effect from 13.4.2007 subject to a restriction order
requiring the plaintiff to, inter alia reside within the district
of Ipoh, Perak.

18.7.2008 2nd defendant issued an Order (“Revocation Order”)

under s 7(3) of Act 316, revoking the Suspension Order.
As a result, the plaintiff was directed to be returned to
the Muar Detention Centre to be detained for the
remaining duration of the EDO.

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3.11.2008 2nd defendant issued second Extended Detention Order
(“2nd EDO”) under s 11A(1)(a)(aa) of Act 316 extending
the duration of the 1st EDO for a period of 2 years
commencing from 4.11.2008 and expiring on 3.11.2010.

3.8.2009 Plaintiff filed application at Shah Alam High Court for a

Writ of Habeas Corpus.

23.10.2009 Shah Alam High Court held that plaintiff’s detention was
unlawful and the Court issued Writ of Habeas Corpus.

22.1.2011 Plaintiff filed writ at Kuala Lumpur High Court against 1st
to 5th defendants for false imprisonment and for general,
exemplary, aggravated and special damages.

11.12.2015 Kuala Lumpur High Court allowed plaintiff’s claim and

awards general damages in the sum of RM300,000.00
together with interest and costs.

FINDINGS OF THE HIGH COURT

[4] On the issue of liability, the learned judge found that the detention
of the plaintiff from 3.11.2008 (the date the 2nd EDO was issued) until
23.10.2009 (the plaintiff’s release pursuant to the decision of the Shah
Alam High Court in the habeas corpus application) was unlawful and
wrongful on the following grounds:

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a) The 2nd EDO issued by the 2nd defendant extending the 1st
EDO was not made in accordance with the law. Instead of
exercising his power under s 11A(4), the 2nd defendant
wrongly invoked s 11A(1)(a)(aa) of Act 316 in making the 2nd
EDO;

b) The learned judge rejected the defendants’ argument that the

2nd EDO was mistakenly issued under s 11(A)(1)(a)(aa) of Act
316 because it was not the defendants’ pleaded case that the
2nd EDO was mistakenly issued. Further, the 2nd defendant
had averred in his affidavit that the 2nd EDO was valid and
proper; there was also no averment that it was mistakenly
issued;

c) Provisions of law that empower the Minister to detain a person

under Act 316 should always be construed strictly and not
liberally (Andrew s/o Thamboosamy v Superintendent of
Pudu Prisons, Kuala Lumpur [1976] 2 MLJ 156 (FC));

d) The ouster clause in s 11C(1) read together with s 11D of Act

316 is not applicable in the circumstances of the case as the
2nd EDO was clearly wrong and was not made in accordance
with the law; and

e) Res judicata does not apply. The Shah Alam habeas corpus
application is not a bar to the court in making a finding on the
validity of the 2nd EDO. Further, the learned judge did not have
the opportunity of knowing the grounds relied upon by the
judge in the Shah Alam habeas corpus case.

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[5] As to quantum, the learned judge premised the assessment of
damages on the total period of 355 days under which the plaintiff was
wrongfully detained. In awarding a global sum of RM300,000.00 as
general damages , the learned judge applied the ‘progressively reducing
scale’ test as explained in Thompson v Commissioner of Police the
Metropolis [1998] QB 498. The learned judge considered the principle
that damages for false imprisonment must be grounded on loss of dignity
and not pecuniary loss and that the amount of damages must be sufficient
enough to give reality to the protection afforded by law to personal
freedom.

[6] The learned judge did not award any aggravated damages to the
plaintiff as there was no evidence to show any aggravating features such
as humiliating circumstances to justify the making of the same. The
learned judge did not make any award for exemplary damages and loss
of income.

SUBMISSION OF PARTIES

[7] Learned senior federal counsel (SFC) for the defendants canvassed
three points on liability and one point on quantum. First, he argued that
the learned judge erred in relying on Andrew s/o Thamboosamy (supra)
in holding that the power to detain given by law must be construed strictly.
The learned judge should have applied the principle that so long as the
exercise of the powers by the defendants is done within the ambit of Act
316 and is done bona fide, the question as to the defendants’ competency
or otherwise is not within the competence of the court (E. Gopal & Anor
v Awang Bin Mona [1978] 2 MLJ 251; Andrew s/o Thamboosamy

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(supra); Liversidge v Sir John Anderson & Anor [1942] AC 206). The
mistake in the 2nd EDO is only in form and not in substance. At all material
times, the defendants had the power to issue the 2nd EDO within the ambit
of Act 316. There is no evidence to show that the 2nd defendant did not
adequately apply his mind to the desirability of detaining the plaintiff
(Karam Singh v Menteri Hal Ehwal Dalam Negeri Malaysia [1969] 2
MLJ 129). As such, the 2nd EDO is valid for being issued under Act 316.

[8] Second, learned SFC argued that the doctrine of res judicata applies
to bar the plaintiff from arguing that the ouster clause in s 11C of Act 316
is not applicable to the plaintiff’s claim in the court below as the same point
has been raised in the Shah Alam habeas corpus application. Further, in
both cases, the parties and issues are the same (Dato’ Sivanathan
Shanmugam v Artisan Fokus Sdn Bhd [2015] 2 CLJ 1062 (CA)).

[9] The third point relates to the ouster clause in s 11C. Learned SFC
argued that Parliament’s intention in amending Act 316 by adding new ss
11C and 11D is to preclude any judicial review or jurisdiction of any court
over any act or decision of the Minister in the exercise of their discretionary
power save in regard to questions on compliance with any procedural
requirement governing such act or decision. As such, the court should
give effect to the clear words of Act 316 (Datuk Seri Ahmad Said
Hamdan, Ketua Suruhanjaya, Suruhanjaya Pencegah Rasuah
Malaysia & Ors v Tan Boon Wah [2010] 3 MLJ 193 (CA); Kumaran
Suppiah v Dato’ Noh Hj Omar & Anor [2006] 4 CLJ 675 (FC); Lew Kew
Sang v Timbalan Menteri Dalam Negeri Malaysia & Ors [2005] 1 CLJ
914; Kerajaan Malaysia & Ors v Nasharuddin Nasir [2004] 1 CLJ 81
(FC)).

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[10] As to quantum, learned SFC argued that the learned judge erred in
applying the ‘progressively reducing scale’ test without considering that
the plaintiff had been detained for about 5 years before the 2nd EDO was
issued. The plaintiff had been arrested and detained since 6.11.2004 until
the writ of habeas corpus was issued by the Shah Alam Court on
23.10.2009. As such, learned SFC argued that a figure of between
RM150,000.00 to RM200,000.00 is a fair and reasonable sum as general
damages (Thompson v Commissioner of Police of the Metropolis
(supra)).

[11] In reply, learned counsel for the plaintiff argued that on the issue of
liability there was no misdirection on the law and on the facts by the
learned trial judge. He argued that the approach adopted by the learned
judge as reflected in her written judgment is correct and that there is no
appealable error to justify any intervention by this court.

[12] As to quantum, learned counsel for the plaintiff argued that the
learned judge had correctly applied the ‘progressively reducing scale’ test.
Learned counsel argued that the plaintiff worked as an offshore oil driller
and has suffered tremendously during the long period of wrongful
detention. The amount of RM300,000.00 awarded by the learned judge
for wrongful detention of 355 days is not excessive and is reasonable.
Learned counsel cited the Court of Appeal decision in Tan Sri Norian Mai
& Ors v Chua Tian Chang & Ors [2015] 6 CLJ 1045 where the Court of
Appeal reduced the quantum of damages for false imprisonment from
RM15,000.00 to RM10,000.00 per day. The award of the learned judge
should be maintained as it amounts to less than RM1,000.00 per day.

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DECISION

[13] As to liability, we are satisfied that on the undisputed facts, the 2nd
EDO was not issued in accordance with the procedural requirements of
Act 316. In fact, learned SFC went so far as to concede that there was a
mistake – admitting to the fact that the 2nd EDO was issued pursuant to
sub-s 11A(1)(a)(aa) instead of under sub-s 11A(4) of Act 316.

[14] Whether or not this so-called mistake negates the lawfulness of the
2nd EDO is a question of construction of Act 316, and in particular s 11A
which provides for the Minister’s power to extend a detention order or a
suspended detention order and is as follows:

“11A. (1) The Minister may at any time before the expiration of the
duration of –

(a) a detention order made under subsection 6(1);

(b) a restriction order made under subsection 6(3); or
(c) a detention order suspended under subsection 7(1)
(hereinafter referred to as a “suspended detention order”),

direct that the duration of the order be extended for such further period,
not exceeding two years, as he may specify, commencing immediately
upon the expiration of its then current duration, and where the Minister
so directs he shall set out in the direction the grounds for the extension
and state whether such grounds are –

(aa) the same as the grounds on which the order was

originally made;

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 (bb) different from the grounds on which the order was
originally made; or

(cc) partly the same grounds and partly different ground.

(2) Where the duration of a suspended detention order is extended

under subsection (1), the duration of the direction for its suspension
under subsection 7(1) shall be deemed to be extended for the duration
of the extension of the suspended detention order together with the
restrictions and conditions imposed in respect of such suspension,
subject, if the Minister so directs, to the requirement that the person
against whom the detention order was made shall enter into a fresh
bond as provided in subsection 6(4), and section 7 shall apply to such
extended suspension in the same manner as they apply to an original
suspension under subsection 7(1).

(3) Where the direction under subsection (1) for the extension of
the duration of a detention order or a suspended detention order is on
grounds which fall under paragraph (1)(bb) or (cc), sections 9 and 10
shall apply to such direction as if the direction were a fresh detention
order.

(4) The duration of a detention order, or a restriction order, or a

suspended detention order, which is extended under subsection (1)
may, thereafter, be further extended from time to time for further
periods not exceeding two years at a time, and the provisions of this
section shall apply mutatis mutandis in relation to each such
extension.”

[15] What the 2nd EDO purported to do was to extend the period of
detention of the 1st EDO which had been suspended on 11.4.2007 and
which Suspension Order was later revoked on 18.7.2008. It is not in
dispute that the Minister has the power to extend the 1st EDO under s 11A

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of Act 316. The power to extend a detention order is expressly provided
under sub-s 11A(4) which specifically relates to a detention order made
under sub-s 11A(1).

[16] What is the effect of this breach of the statutory procedural

requirement relating to the power to detain? At this juncture, it is
necessary to remember that the liberty of the person is a fundamental right
enshrined under Article 5(1) of the Federal Constitution which provides
that:

“5. (1) No person shall be deprived of his life or personal liberty

save in accordance with law.”.

[17] In the oft-cited case of Andrew s/o Thamboosamy (supra), the

Federal Court held that any form of detention does violence to this
fundamental right of personal liberty. Accordingly, the Federal Court held
that “power given by law to detain must be construed strictly and in cases
of doubt or ambiguity the court should lean in favour of the subject.”

[18] Applying the aforesaid principles, the power of the Minister to extend
a detention order must be exercised strictly within the provisions of s 11A
of Act 316. In this instance, however, the 2nd defendant issued the 2nd
EDO to extend the duration of the 1st EDO pursuant to sub-s 11A(1)(a)(aa)
which relates to a detention order made under sub-s 6(1) a detention order
suspended under sub-s 7(1) of Act 316. In our view, this is a clear non-
compliance of the procedural requirement of Act 316 governing the
exercise of the 2nd defendant’s power under s 11A. As the 2nd EDO was
wrongly issued under s 11A(1)(a)(aa), the 2nd EDO is bad in law.
Consequently, the 2nd EDO is null and void and of no effect. It follows that

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the detention of the plaintiff under the 2nd EDO is also bad in law. We also
observe that the defendants did not appeal against the Shah Alam habeas
corpus decision where the Shah Alam High Court found for the plaintiff on
the issue of liability. As such, the defendants must be taken to have
accepted the correctness and validity of the Shah Alam habeas corpus
judgment.

[19] E Gopal (supra) and Liversidge (supra) are distinguishable on the

facts. In E Gopal (supra), the detention order was lawfully issued under s
6(1) of the Emergency (Public Order and Prevention of Crime) Ordinance
1969. In that case, the issue related to the validity of the detention order
which was altered by the Assistant Secretary subsequent to its issue by
the Minister. In Liversidge (supra), the detention order was ex facie
regular for being properly issued under the law. The issue was whether a
court of law could inquire into whether in fact the Secretary of State had
reasonable grounds for his belief that a person to be of hostile
associations and that by reason thereof it is necessary to exercise control
over him and direct him to be detained.

[20] We have considered the arguments relating to res judicata raised

by the plaintiff and the defendants. The defendants’ argument is that the
instant suit is an attempt to re-litigate the original case. The Shah Alam
habeas corpus application was predicated on securing the immediate
release of the plaintiff; it is not a writ action. The present action filed by the
plaintiff is for a declaration and consequential relief in the form of damages
for false imprisonment. We agree with the learned judge that the Shah
Alam habeas corpus decision is not a bar to the learned judge making a
finding on the validity of the 2nd EDO. On the other hand, given that the
defendants did not appeal against the Shah Alam habeas corpus decision,

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we do not think it is open to the defendants to challenge the said decision
at the trial of this action.

[21] Insofar as the ouster clause in s 11C read together with s 11D is
concerned, we agree with the learned judge that they only apply to oust
the court’s jurisdiction if the 2nd defendant has acted in accordance with
the law when he issued the 2nd EDO. In this instance, it has been clearly
established on the undisputed facts that there was a non-compliance with
the procedural requirement of Act 316 when the 2nd defendant wrongly
issued the 2nd EDO under sub-s 11A(1)(a)(aa) instead of sub-s 11A(4). In
other words, the 2nd defendant did not act in accordance with Act 316. In
the circumstances, we take the view that s 11C does not apply oust the
jurisdiction of the court to try the plaintiff’s suit against the defendants for
false imprisonment.

[22] As to the defendants’ appeal against the award of RM300,000.00 as

general damages, the classic statement of the grounds upon which the
Court of Appeal will interfere by reassessment of the damages appears in
the judgment of Greer LJ in Flint v Lovell [1935] 1 KB 354, CA at 360.
“This court”, he said,

“… will be disinclined to reverse the finding of a trial judge as to the

amount of damages merely because they think that if they had tried
the case in the first instance they would have given a lesser sum. In
order to justify reversing the trial judge on the question of the amount
of damages it will generally be necessary that this court should be
convinced either that the judge acted upon some wrong principle of
law, or that the amount awarded was so extremely high or so very
small as to make it, in the judgment of this court, an entirely erroneous
estimate of the damage to which the plaintiff is entitled.”

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[23] The abovementioned principle starts upon the premise that an
appellate court will interfere with an award of damages made by a judge
sitting alone is trite (Rasidin bin Partojo v Frederick Kiai [1976] 2 MLJ
214 FC; Davies v Powell Duffryn Associated Colleries Ltd [1942] AC
601, 616-7). An appellate court should not interfere with an award of
damages unless (i) it is satisfied that the judge had acted on a wrong
principle of law, or has misapprehended the facts, or for some reason or
other made a wholly erroneous estimate of the damages or the amount
awarded so excessive or insufficient as to lead to the conclusion that
some error in principle must have taken place; and (ii) it can be shown
that the award is extremely inconsistent with the discernible trend or that
the award was made on some misapprehension of facts or some
erroneous assumption of law or fact. The fact that the award may be
slightly high or low is not a sufficient ground to interfere. Even if this Court
is inclined to differ on the quantum, it is trite that the award is ultimately a
matter of the trial judge’s discretion. Therefore, this Court will be slow to
interfere with the award (Rasidin (supra); Topaiwah v Salleh (1968) 1
MLJ 284; Tan Kuan Yau v Suhindrimani (1985) 2 MLJ 22; Jamiah Bt
Holam v Koon Yin [1983] 1 MLJ 103; Ng Moon Leong v Seema
Balvantrai Goda [1986] 2 MLJ (CA) Singapore 405). There is nothing to
show that the award of RM300,000.00 is manifestly high or that the award
was a wholly erroneous estimate of the damages or wrong in law.

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[24] For the foregoing reasons, we find no merits in the issues raised by
the defendants in the appeal. We therefore dismissed the appeal with
costs.

sgd
(Vernon Ong)
Judge
Court Of Appeal
Malaysia

Dated : 25th April 2017

Counsel:

Normastura binti Ayub - Peguam Kanan Persekutuan, Jabatan Peguam Negara,

Bahagian Guaman, No. 45 Persiaran Perdana, Presint 4, Pusat Pentadbiran Kerajaan
Persekutuan, 62100 Putrajaya - Perayu.

G. Subramaniam Nair dan Ebrina Zubir - Tetuan Maniam Nair & Co, Peguambela
dan Peguamcara, No. 117, Tingkat 2, Jalan Genuang, 85000 Segamat, Johor –
Responden.

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