Duty of care of detaining authorities — Hafiz Hassan

DECEMBER 29 — “Now hear this!” This call is usually made to draw attention to what is going to be said, especially in the military.

Perhaps this is the call to be made out to detaining authorities in Malaysia following news of the death of 29-year-old detainee G Ganeshwaran while in police custody and news of the Coroner’s Court ruling that the death of 36-year-old lorry driver R Thangaraja while in police custody at Dang Wangi two years ago was due to police negligence or omission.

Detaining authorities owe a duty of care to ensure that the detainees are healthy and are given proper medical care during the period of incarceration. There is also a duty to ensure that the detainees are not harmed by the detaining authorities or by other inmates or even self-harm or suicide.

This duty of care has been well penned by legal authorities. For example, the Halsbury’s Laws of England, an authority on English law, states the duty of care of prison authorities as the duty to take reasonable care for the safety of those who are within the prison, including the prisoners. Actions will lie, for example, where a prisoner sustains injury at the hands of another prisoner in consequence of the negligent supervision of the prison authorities, with greater care and supervision, to the extent that is reasonable and practicable, being required of a prisoner known to be potentially at greater risk than other prisoners, or if negligently put to work in conditions damaging to health; or if inadequately instructed in the use of machinery; or if injured as a result of defective premises.

The duty, it has been said, is “a very unusual one, arising from the complete control which the police or prison authorities have over the prisoner, combined with the special danger of people in prison taking their own lives”.

When an authority detains a person, the detaining authority has in fact deprived the detainee of his personal liberty. The detaining authority then assumes control of the detainee. However lawful the arrest and detention may be, if follows that the detaining authority comes under a duty to exercise reasonable care for the safety of the detainee during the detention.

What underpins the law here is the profound respect for the sanctity of human life. This means that a state must not unlawfully take life and must take appropriate legislative and administrative steps to protect it. But the duty does not stop there. The state owes a particular duty to those involuntarily in its custody.

The law is no different in Malaysia. One needs only to refer to the recent case of Datuk Seri Khalid Abu Bakar & Ors v N Indra Nallathamby & Another  [2014] 9 CLJ 15 CA where the Court of Appeal made clear pronouncements on the duty of care of the police authorities in a case of death of a detainee whilst in police custody. This was a case where the conduct of the police was egregious, to say the least. The deceased in this case died as a result of being beaten by police officers. The Court of Appeal took occasion to pronounce the followings:

“The police force is a public professional body and as in other professional bodies there exist duties of care in their discharge of their powers. In the context of the police force, it is their standard operating procedure (SOP) and that should be subject to scrutiny by the court of law. As to what that duty of care and standard of care are depend on the circumstances of each individual case and it is for the courts to determine what that duty and standard of care are as was done in the Federal Court case of Foo Fio Na v. Dr Soo Fook Mun & Anor  [2007] 1 CLJ 229.”

 “In Foo Fio Na case, the Federal Court quoted with approval Callaghan J in Hajgato v. London Health Association  [1982] 36 OR (2d) 669, where in an action in negligence in respect of personal injuries sustained during post-operative case the learned judge stated as follows:

No profession is above the law and the courts on behalf of the public have a critical role to play in monitoring and precipitating changes where required in professional standards.”


Now hear this!

“One death of a detainee in police custody is one death too many. Indeed, in a modern, matured and evolved constitutional democracy such as obtains in Malaysia, it is axiomatic and imperative that there should be zero deaths of detainees in police custody. And more importantly, there should be zero tolerance by all concerned, of deaths of detainees in police custody.” (per S Nantha Balan J in Selvi a/p Narayan & Anor (Pentadbir bersama Estet dan tanggungan Chandran a/l Perumal, simati) v Koperal Zainal bin Mohd Ali & Ors [2017] MLJU 11.

 * This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.

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