With top court victory, Teresa Kok keeps RM350,000 award over ISA arrest

Seputeh MP Teresa Kok (sixth from right), fellow DAP leaders, supporters and her lawyers pose for a photo after the Federal Court ruling in Putrajaya July 11, 2017. — Picture by Ida Lim
Seputeh MP Teresa Kok (sixth from right), fellow DAP leaders, supporters and her lawyers pose for a photo after the Federal Court ruling in Putrajaya July 11, 2017. — Picture by Ida Lim

PUPUTRAJAYA, July 11 — DAP MP Teresa Kok won again in her long eight-year legal battle when the Federal Court today ruled in her favour and maintained a RM350,000 compensation over her wrongful arrest in 2008.

The Federal Court dismissed the government’s bid to appeal an earlier court ruling to award RM350,000 to Kok to compensate for her arrest and detention under the now-abolished Internal Security Act (ISA).

“The application is dismissed. The law is settled,” said Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum in delivering the three-man panel’s unanimous decision, awarding costs of RM10,000.

The other two judges today were Tan Sri Hasan Lah and Datuk Balia Yusof Wahi.

Today was the hearing of the federal government’s application for leave to appeal the Court of Appeal’s decision last July.

The government had, in its bid to appeal, presented six questions of law to the Federal Court, mainly revolving around whether an objective or subjective test should be applied to determine the lawfulness of an arrest, and whether the actual outrageous conduct of civil servants must be specified for the granting of exemplary and aggravated damages as compensation.

Balia Yusof had, during the hearing today, interjected to say that the conduct of civil servants in this case “must be taken as a whole” that covered the time from Kok’s arrest until her release, instead of just “one particular conduct”.

In response to senior federal counsel Awang Armadajaya Awang Mahmud’s contention that the appellate court’s judges had not named the specific conduct in granting the exemplary and aggravated damages, Kok’s lawyer Sankara Nair highlighted portions of the Court of Appeal’s judgment in her case.

Among other things, Sankara had highlighted the Court of Appeal judges’ stating their findings that the information on Kok’s alleged conduct that was claimed to have caused a perceived threat to national security or public order were “stale” or several months old, and that there were no immediate or live threats justifying her ISA detention and trampling of her constitutional rights.

There had also been a “total indifference” by the police to probe already available information that rebutted the claims that Kok was involved in trying to silence the “azan” or the broadcasted Muslim call to prayer, the judges had said.

In concluding that the government failed to show the police had reasonable grounds to believe Kok would pose a threat to public order unless she was urgently detained under ISA, the Court of Appeal judges also said that proper investigations should have been carried out and that other laws such as the Penal Code could have been used instead.

The appellate court’s judges had then also said “the circumstances and matters” surrounding Kok’s case justified the award for exemplary and aggravated damages, citing a 2015 Court of Appeal decision where such additional compensation can be granted to those “injured by the oppressive, arbitrary or unconstitutional action” of the government or civil servants or those sued.

On July 26, the Court of Appeal reversed the High Court’s previous decision to dismiss Kok’s lawsuit, after finding that the authorities did not have sufficient grounds to arrest her.

The Court of Appeal had awarded RM350,000 to Kok after ruling that the government was liable for her wrongful arrest and seven-day detention in 2008 under the now-abolished Internal Security Act (ISA).

The RM350,000 award consisted of RM200,000 in general damages and RM150,000 in exemplary and aggravated damages.

On March 13, 2009, Kok filed the civil suit against the Malaysian government, the then Home Minister Datuk Seri Syed Hamid Syed Jaafar Albar, then Inspector-General of Police Tan Sri Musa Hassan and police officer DSP E Kim Tien for damages over her alleged wrongful arrest and detention.

In her statement of claim, Kok said she was arrested by the defendants at 11.15pm on September 12, 2008, and was not allowed to contact her lawyer or relatives during a two-hour detention that followed.

She said she was informed at 2am the next day at the Wangsa Maju police station that she was being detained under the ISA’s Section 73 (1) for allegedly taking part in activities that could cause racial tension.

Kok said she was then detained without trial at a secret location until her release on September 19, 2008.

She said that her arrest had been conducted negligently and arbitrarily, causing her severe mental stress, pain and suffering.

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