Hussien v Chong Fook Kam

JurisdictionUK Non-devolved
Judgment Date1969
CourtPrivy Council

Malaysia - False imprisonment - Arrest on suspicion - Distinction between reasonable suspicion and prima facie proof - Compensatory damages - Exemplary damages - Criminal Procedure Code, 1927 (Laws of the Federated Malay States, Rev. 1934, c. 6), ss. 23 (i) (a), 117 - Constitution of Malaysia, 1964 (as amended), art. 5, cl. 3. - False imprisonment - Arrest on suspicion - Distinction between reasonable suspicion and prima facie proof - Compensatory damages - Exemplary damages.

The Criminal Procedure Code by section 23 (i) (a) empowered the police to make an arrest upon reasonable suspicion of an offence having been committed. Section 117 empowered a magistrate to make an order for detention for a further period not exceeding 15 days on the whole, if the investigation could not be completed in 24 hours and there were grounds for believing that the accusation or information was well founded. The Constitution of Malaysia provided by article 5, clause 3, that an arrested person should be informed as soon as might be thereafter of the grounds of his arrest.

On July 10, 1965, the police began inquiries upon a complaint made at 10.15 p.m. at M. police station that when the complainant was driving home with four friends at 9.15 p.m. a piece of timber from the trailer of a passing lorry fell off on to his car and killed one passenger and injured another. The lorry did not stop. The police had reasonable grounds for concluding that the incident had occurred as stated and that the number of the lorry was PC 8200. They gave instructions to stop and detain the lorry. Next morning at 7.55 a.m. July 11, the police found the lorry stationary in front of a coffee shop near B. police station. The corporal in charge of that station arrived at 8.05 a.m. and told K. and S. of the existing suspicion and that he had instructions to detain them. Not later than 9 a.m. K. and S. (the respondents) were arrested by the corporal. The area inspector and district superintendent of M. police station interrogated them at the coffee shop at 1 p.m. and took them to M. police station for further interrogation. They denied that they were at the place of the accident. They were held in custody overnight. Next morning they were brought before the magistrate. It was agreed that the magistrate's order for their detention for seven days for further investigation brought to an end any false imprisonment. They were released next day, July 13, as the police found that there was not sufficient evidence to proceed against either of them. The High Court dismissed their action for damages for false imprisonment against the two police officers and the Government, the present appellants. Their appeal to the Federal Court was allowed, and they were awarded $2,500 each as damages. The Federal Court applied the test that the information available to the police “was insufficient to prove prima facie a case against the plaintiffs under s. 304A of the Penal Code or under s. 34A of the Road Traffic Ordinance.” On appeal to the Judicial Committee the appellants criticised the test adopted by the Federal Court as appropriate in actions for malicious prosecution but not in actions for false imprisonment:—

Held, (1) that at the time of the arrest at 9 a.m. on July 11 there was good reason to suspect that K. or S. was the driver of the lorry from whose trailer the piece of timber fell on to the car, but that there was a wide gap between a suspicion that either K. or S. was driving the lorry and a suspicion that he was driving it recklessly or dangerously; that it was quite possible that the fall might not have been noticed at the time, or that even if it had been noticed and K. and S. had speculated about it, it might not have occurred to them that it would have led to the unusual consequences that happened; that therefore the suspicion that K. or S. was guilty of reckless driving was not reasonable and that, accordingly, the arrest was not justified.

(2) That the test applied by the Federal Court was not well founded; that reasonable suspicion could not be equated with prima facie proof; that suspicion could take into account matters that could not be put in evidence at all whereas prima facie proof consisted of admissible evidence; and that the police were not called before acting to have anything like a prima facie case for conviction but only to be satisfied that there did in fact exist reasonable grounds for suspicion of guilt.

Dumbell v. Roberts [1944] 1 All E.R. 326, 329, C.A. and McArdle v. Egan (1934) 150 L.T. 412, C.A. approved.

(3) That, accepting that the arrest was made in the morning of July 11, that cut in half the period of false imprisonment and excised in particular the night at the police station, and it altered the character of the arrest; that $2,500 each to K. and S. was on the view taken by the Board of the facts of the case undoubtedly excessive; that the scope for compensatory damages was limited and must be confined to approximately nine hours' detention; that the court could mark any departure from constitutional practice, however slight, by exemplary damages, but they did not have to be large; and that, therefore, the case should be remitted to the Federal Court to decide whether it was open to it to review the amount and, if so, to settle the appropriate figure.

Rookes v. Barnard [1964] A.C. 1129, 1221; [1964] 2 W.L.R. 269; [1964] 1 All E.R. 367, H.L.(E). and dictum of Scott L.J. in Dumbell v. Roberts [1944] 1 All E.R. 326, 329, C.A. approved.

Per curiam. The law of Malayasia has to be taken from the Code and not from cases on the common law. But where, as here, the Code is embodying common law principles, decisions of the courts of England and of other Commonwealth countries in which the common law has been expounded, can be helpful in the understanding and application of the Code.

Case remitted to the Federal Court of Malayasia.

The following cases are referred to in their Lordships' judgment:

Bank of England v. Vagliano Brothers [1891] A.C. 107, H.L.(E.).

Dumbell v. Roberts [1944] 1 All E.R. 326, C.A.

McArdle v. Egan (1934) 150 L.T. 412, C.A.

Rookes v. Barnard [1964] A.C. 1129; [1964] 2 W.L.R. 269; [1964] 1 All E.R. 367, H.L.(E.).

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