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PUTRAJAYA: The Court of Appeal has allowed the appeal by the police and government to overturn a High Court decision that former Malaysian Crime Watch Task Force (MyWatch) chairman R. Sri Sanjeevan’s (pic) 16-day detention under the Prevention of Crime Act (Poca) 1959 was unlawful.
The unanimous decision was made by a three-member bench comprising Justices Datuk S. Nantha Balan, Datuk See Mee Chun and Datuk Azimah Omar in online proceedings on Friday (Sept 15).
Justice Azimah, when reading out the judgment, said the High Court had erred when allowing Sri Sanjeevan's suit based on the Federal Court's ruling in a different case relating to Poca.
"The Federal Court's decision last year cannot be applied in the present case as the detention was made six years before the apex court declared Section 4 of Poca to be unconstitutional.
"We find that this case does not retrospectively apply against the remand under Section 4 of Poca which took place more than five years before the Federal Court's verdict last year,” she said, and ordered Sri Sanjeevan to pay RM60,000 in costs.
The judge said a retrospective application would be utterly chaotic and problematic as it would open the floodgates for any and all remands under the same provision to become unconstitutional or unlawful, despite the fact that the remand was lawfully and unconditionally carried out during the time when the provision was lawful and constitutional.
"It could be manifestly unjust for us now to condemn the Magistrate for issuing the impugned Magistrate's warrant and for the first defendant to call the plaintiff under remand when they have done so in reliance of the provisions which were still lawful and constitutional,” she said.
Justice Azimah also said the High Court judge had erred in finding that the physical abuse allegation could be used in claiming false imprisonment.
"It was misdirection on the part of the learned judge to consider the allegation of physical abuse. This physical abuse during detention does not form the basis for a claim of false imprisonment,” she said.
Justice Azimah said the court also cited all the relevant documentation leading up to the issuance of the impugned Magistrate warrant that all bore the plaintiff's signature and admission that he was well aware and informed that the arrest and remand were actuated under Section 4 of Poca.
"This issue was not even raised in the plaintiff's written submission and it was only raised during the hearing of the appeal.
"It would be inappropriate for us to consider this contention when the appellants were not given any opportunity to challenge the contention during the trial,” she said.
Sri Sanjevaan, 38, sued investigating officer Asst Supt Poonnam E. Keling, the Inspector-General of Police (IGP) and the government of Malaysia, claiming he was wrongly detained by ASP Poonnam for 16 days from July 10 to 26, 2016, and that he was also assaulted; and had also sought damages for losses and injuries suffered by him.
On June 28 last year, High Court judge Datuk Ahmad Bache allowed Sri Sanjeevan’s civil suit for false imprisonment and ordered general, exemplary and aggravated damages to be paid to him.
He ordered damages to be assessed in a separate hearing at a later date.
The judge also granted a declaration that Sri Sanjeevan’s detention was unlawful and a declaration that his rights under Article 5(1) of the Federal Constitution had been breached by ASP Poonnam, whom he found liable for unlawfully detaining Sri Sanjeevan; and that the IGP and government were both vicariously liable for the officer's actions.
Sri Sanjeevan was arrested under Poca for alleged involvement in criminal activities on July 10, 2016, and was produced the following day before a magistrate who issued a 21-day remand order.
Before the expiry of the remand period, Sri Sanjeevan filed a habeas corpus application to secure his release from detention.
The High Court allowed his application on July 26, 2016, due to a breach of a mandatory procedure under Poca.
The government filed an appeal with the Federal Court but subsequently withdrew it. Sri Sanjeevan then filed a civil action against the police and government for false imprisonment. – Bernama
