Mohd Azran Rahmat & Anor v Mazlan bin Aliman [2016] 4 MLJ 337

Court: Court of Appeal (Putrajaya)

Judges: Abdul Wahab Patail, Hamid Sultan and Umi Kalthum JJCA

Date of Judgement: 24 March 2015

Topic: False Imprisonment

2.     In brief, the Respondent was arrested on the ground of an alleged criminal trespass under Section 441 of the Penal Code and punishable under Section 447 of the Penal Code which provide as follows:

“Section 441 of Penal Code

“Whoever enters into or upon property in the possession of another with intent to commit any offence or to intimidate, insult or annoy any person in possession of such property; or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person or with the intent to commit an offence, is said to commit ‘criminal trespass.”

Section 447 of Penal Code

“Whoever commits criminal trespass shall be punished with imprisonment for a term which may extend to six months or with fine which may extend to three thousand ringgit or with both.”

3.     The Respondent’s cause of action in the civil complaint was based on the tort of false imprisonment.

4.     According to the claims, a police complaint was filed, and all investigations and witness statements had been concluded at the time of the arrest.  On the next day, remand was requested and obtained.

5.     Nevertheless, the Respondent filed a claim for damages against the Appellants in the High Court, claiming that the following remand was flawed and illegal since it was based on an inaccurate charge of criminal trespass.

6.     The Appellants had also been alleged to commit unlawful arrest and improper detention between March 9 and March 11, 2010.

7.     The High Court judge found in favor of the Respondent and awarded the sum of RM300,000.00 as general damages, RM50,000.00 as exemplary damages and RM20,000.00 costs.

8.     Aggrieved with decision of the High Court, the Appellants made an appeal to the Court of Appeal.

2.     Whether the imprisonment of the Respondent by remand order was justified under the Criminal Procedure Code?

2.     The submissions of “pembohongan yang mempunyai motif jahat”, dispute as to when arrest was made, and failure to bring any of the detachment of nine police officers to testify against the Respondent’s and SP2’s statement, that the arrest was made at 10.30 p.m. at IPD Raub “hanyalah menunjukkan kecurangan dan penipuan maklumat tangkapan oleh SD1”.

3.     These comments were pertinent to the claim for exemplary damages, but the same must be evaluated separately since those are immaterial to the basic question of whether there was reasonable suspicion that an offence had been committed.

4.     The Court of Appeal referred to the case Chong Fook Kam & Anor v Shaaban & Ors [1968] 2 MLJ 50, where the excerpt of judgment in regards to the order of a magistrate warranting the detention of the arrested person and the police officer who was in obedience to such warrant is as follows:

“An order of a magistrate authorising the detention of the arrested person beyond the period of 24 hours made under Section 117 of Criminal Procedure Act (“Act 953”) is a judicial act and cannot found a claim for damages against the magistrate because of Section 107(1) of the Courts Ordinance 1948, which reads:

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 find a claim for damages against a police officer because Section 41(1) of the Police Ordinance No 14 of 1952 (now Section 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.”    [Emphasis added]

5.     The Court of Appeal then carefully look into the material facts of the case in which a remand order was obtained the next day after the arrest in the evening of 9 March 2010, yet the claim was for damages for false imprisonment until 11 March 2010. The ground for the first Appellant proceeded with the remand application, as submitted before us by the Respondent was-

“Walau pun Defendan Pertama (the first Appellant), yang telah mengetahui keseluruhan keterangan sebelum membuat tangkapan ke atas Plaintif (the respondent), dengan ketiadaan kesalahan oleh Plaintif (the Respondent) berkenaan dengan siasatan bagi pencerobohan jenayah (criminal trespass) di bawah Seksyen 441 dan Seksyen 447 Kanun Keseksaan, masih meneruskan permohonan reman atas kesalahan yang tidak wujud dan sengaja di ada-adakan.”

6.     The Court of Appeal also cited the provision in Section 107A of Criminal Procedure Code (“Act 953”) in which any person who has given information under Section 107 of Act 953 may request for a report on the status of the investigation of the offence complained of, and the officer in charge of a police station shall give a status report on the investigation of such offence to the informant not later than two weeks from the receipt of the request.

7.     Having correctly referred to the Act and the case above, the Court of Appeal found that the police is bound to conduct investigations to determine whether there was reasonable suspicion that an offence had been committed.

8.     Looking at the facts of the case, the Court of Appeal is seen leaning to the Appellants’ favour in which despite fact that the Majlis Dialog was not carried out since neither authorisation for the use of the Balai Raya Felda Lembah Klau nor a police permit for the Majlis Dialog was acquired, the arrival of the Respondent with Fauzi, the promoter to the Balai Raya Felda Lembah Klau in such circumstances provides reasonable grounds for suspicion that an offence was being committed, even though it was not carried out to completion.

9.     There was no cause for the Respondent and Fauzi to come to the Balai Raya Felda Lembah Klau if neither approval nor a police permit had been acquired.

10.   There was no authorisation for the use of the Balai Raya Felda Lembah Klau for the Majlis Dialog, therefore there was reason to suspect foul play that an offence under criminal trespass has been committed.

11.  The Respondent was not someone who would be reluctant to engage in a dialogue. He was the President of an Organisation called ANAK (‘Persatuan Anak-anak Peneroka Kebangsaan’), which was related to Felda settlers.

12.  In such case, the contradictory evidence plainly required investigation. There was still a report from the Felda Manager that the police were obligated to investigate.

13.  With regards to police witnesses, the Court of Appeal has cited the case of Public Prosecutor v Mohamed Ali [1962] 1 MLJ 257 which is as follows:

“When a police witness says something that is not inherently improbable his evidence must in the first instance be accepted.   If his evidence is contradicted by other evidence or is shaken by cross-examination then it becomes the business of the Magistrate to decide whether or not it should be accepted. In the absence of contradiction, however, and in the absence of any element of inherent probability the evidence of any witness, whether a police witness or not, who gives evidence on affirmation, should normally be accepted.”   [Emphasis added]

14.  It is the wisdom of this Court to out with such careful decision that the evidence of the Appellant was supported by a contemporaneous police report against which there was no evidence adduced of any information or complaint filed that it was a false report.

15.  Thus, the Court of Appeal concluded that the trial judge was erred in his judgment and therefore allowed the appeal, setting aside the decision of the High Court.

2.     The imprisonment of the Respondent by the remand order was also justified as the Appellants were duty bound to investigate the Respondent under Criminal Procedure Code.

2.     It is not for the police to determine whether in fact an offence has been committed or not despite a person being investigated or an accused being certain from his point of view that he has not committed any offence.

3.     The fact remains that under the Criminal Procedure Code, where there is an information filed, the police is duty bound to investigate and give a status report to the person who had given the information under Section 107 of Act 953 if he so requests it.

4.     A reasonable suspicion that an offence is committed is sufficient, to require the police to proceed to complete the investigation and put the matter to the court to determine whether an offence as charged has been committed or not.

5.     The final charge itself can only be formulated after the investigations had been completed.