ADMINISTRATIVE LAW-April/Mei 2010

Critically analyse the following from the perspective of public law:

(a) Whenever a death occurred mysteriously to a detainee who was in the custody of a detaining authority.

(b) In the most recent case of Borhan bin Hj Daud & Ors v Abdul Malek bin Hussin, the Court of Appeal reversed the earlier High Court decision on the same both in terms of findings of fact and damages.

(15 marks)

"Saya Borhan bin Hj Daud (G/7624) pada 25 September 1998 jam 2310 hrs telah memberitahu kamu Abdul Malik bin Hussin No: K/P: 560814-06-5467 sebab-sebab kamu ditangkap di bawah seksyen 73(1) Akta Keselamatan Dalam Negeri, 1960 iaitu:

(a) Saya mempercayai ada alasan-alasan untuk menahan kamu di bawah seksyen 8 Akta Keselamatan Dalam Negeri, 1960; dan

(b) Saya mempercayai kamu telah bertindak dengan cara yang memudaratkan keselamatan Malaysia.

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ABD MALEK HUSSIN v.BORHAN HJ DAUD & ORS

HIGH COURT MALAYA, KUALA LUMPUR

HISHAMUDIN MOHD YUNUS J

[CIVIL SUIT NO: S3(S5)-21-20-1999]

18 OCTOBER 200

Briefly, the plaintiff alleges that he was unlawfully arrested without a warrant of arrest by a group of Special Branch officers led by the first defendant at about 10 o’clock at night on

25 September 1998. The arrest occurred in front of his house, as he was returning home and after he had just alighted from a car driven by a friend. He was not clearly told by the first defendant of the reason for the arrest. He was only vaguely told that he was arrested under the Internal Security Act. The plaintiff alleges that at the time of arrest he was handcuffed and given a hard slap thrice by the first defendant when he was unable to show the first defendant the location of his car. After the arrest, the first defendant and his men entered the plaintiff’s house without a search warrant and seized several documents and items. He was then blindfolded and taken to the Ibupejabat Polis Kontinjen (‘the IPK’), Kuala Lumpur, where in a room at the first floor he was stripped naked, humiliated, and subjected to prolonged mental and physical torture by the first defendant together with the then Inspector-General of Police, Tan Sri Rahim Noor, and several other police personnel. The ordeal lasted until 4 in the morning. He was denied medical treatment for several days. Only on 29 September that he was taken to see a doctor, Dr. Vasantha (SD7).

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