Zainal bin Kuning and Others v Chan Sin Mian Michael and Another

• Judgment Date: 23 August 1996
• Date: 23 August 1996
• Docket Number: Civil Appeal No 137 of 1995
• Court: Court of Appeal (Singapore)

Zainal bin Kuning and others

Plaintiff

and

Chan Sin Mian Michael and another

Defendant

[1996] SGCA 47

M Karthigesu JA

,

L P Thean JA

and

Goh Joon Seng J

Civil Appeal No 137 of 1995

Court of Appeal

Tort–False imprisonment–Arrest–Appellants not handcuffed or restrained–Appellants compelled to accompany police officers–Whether appellants arrested–Tort–False imprisonment–Wrongful arrest–Appellants arrested on suspicion of having committed offence–Appellants arrested by police officer–Whether police officer having credible information or reasonable suspicion justifying arrest–Section 32 (1) (a) Criminal Procedure Code (Cap 68, 1985 Rev Ed)–Tort–Malicious prosecution–Elements of the tort–Appellants arrested on suspicion of having committed offence–Appellants subsequently found to be innocent of offence in question–Whether appellants prosecuted without reasonable or probable cause–Whether appellants' prosecution motivated by malice

The appellants sued the respondents for false arrest and malicious prosecution. The first respondent was the police officer in charge of investigations against the accused while the second respondent was joined to represent the Government.

The appellants had been arrested and charged with the murder of one Ang. Subsequently, one Sulaiman was charged and convicted of the murder. The appellants thus brought claims for: (a) false arrest; and (b) malicious prosecution. The trial judge held that the appellants had not been arrested at the times when they were called to accompany the police officers, such that no false arrest or false imprisonment could arise. The trial judge further held that there had been reasonable and probable cause for the prosecution. He thus dismissed both claims. The appellants appealed.

On appeal, the appellants reiterated their claims for false imprisonment and malicious prosecution. The appellants also took issue with the trial judge's refusal to: (a) grant their application for the discovery of certain documents reflecting communications between the first respondent and the deputy public prosecutor; (b) expunge the statements of one Abdul Hannan; and (c) allow certain persons to give evidence.

Held, dismissing the appeal:

(1) The trial judge was fully justified in refusing discovery of the documents in question. Besides the fact that case law did not support the discovery of the documents, the documents were protected by privilege. The documents were communications made by one public officer to another in the discharge of their official duties and were made in official confidence within the meaning of s 126 of the Evidence Act (Cap 97, 1990 Rev Ed): at [30] and [33].

(2) The statements made by Abdul Hannan had not been tendered by the respondents as part of the first respondent's evidence for the truth of their contents, but for the fact that they had been made to the first respondent. Thus, they did not constitute hearsay. The making of these statements formed the occasion or cause for the investigations and were thus relevant under s 7 of the Evidence Act. The statements had thus been rightly admitted: at [35].

(3) While the court had a discretion to allow a plaintiff to call evidence to rebut evidence of the defence, this discretion would only be exercised when a plaintiff had been misled, taken by surprise or where an unexpected development arose and it could not have been reasonably anticipated. These conditions had not been satisfied on the facts and the court would thus decline to exercise its discretion to allow the appellants to call additional witnesses: at [38] and [39].

(4) However, on the facts, the appellants had been arrested by the first respondent or on his instructions. The reality of the situation was that they had been compelled to accompany police officers to the Criminal Investigation Department (“CID”). However, as the first respondent had credible information or reasonable suspicion that the appellants were concerned in the crime he was investigating, he was empowered by s 32 (1) (a) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) to arrest the appellants without a warrant. Their arrests were therefore not wrongful: at [43], [44], [47], [52] and [53].

(5) To prove the tort of malicious prosecution, the appellants had to show that: (a) they were prosecuted by the respondents; (b) the prosecution was determined in favour of the appellants; (c) it was without reasonable or probable cause; and (d) that it was malicious. The appellants bore the burden of establishing all four elements of the tort: at [54].

(6) Since the prosecution had been set in motion by the first respondent, and the prosecution had ended in an acquittal of all the appellants following a plea of nolle presecui, the first and second elements of the tort were made out. However, as regards the third element, the real issue was whether the first respondent believed that there was a case against the appellants at the time he initiated the prosecution. On the facts, the appellants had failed to prove that there was an absence of reasonable and probable cause in their prosecution. The appellants had also failed to show that the prosecution was motivated by some reason other than a desire to achieve justice. Accordingly, the appellants failed to show the existence of malice: at [55], [57], [79] and [84].

Alderson v Booth [1969] 2 QB 216 (refd)

Alrich Development Pte Ltd v Rafiq Jumabhoy [1994] 3 SLR (R) 38; [1994] 3 SLR 1 (folld)

Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 (refd)

Bigsby v Dickinson (1876) 4 Ch D 24 (folld)

Charu Chandra, ReAIR 1917 Cal 253 (folld)

Eliza F T Higgs Vatcher v Henry Paull [1915] AC 372 (refd)

Emanuel v Emanuel [1946] P 115 (refd)

Glinski v McIver [1962] AC 726 (distd)

Henderson v Preston (1888) 21 QB 362 (refd)

Herniman v Smith [1938] AC 305 (refd)

Hicks v Faulkner (1878) 8 QBD 167 (refd)

Joseph Constantine Steamship Line, Limited v Imperial Smelting Corporation, Limited [1942] AC 154 (refd)

Loh Kah Kheng (deceased), Re [1990] 2 MLJ 126 (folld)

Martin v Watson [1996] AC 74; [1995] 3 All ER 559 (refd)

Mitchell v Jenkins (1833) 5 B & Ad 588; 110 ER 908 (refd)

Mohammed-Holgate v Duke [1984] AC 437 (refd)

Mohd Sulaiman v PP [1994] 2 SLR (R) 528; [1994] 2 SLR 465 (refd)

Neo Guan Chye (deceased), Re [1935] MLJ 271 (folld)

PP v Mohd Sulaiman bin Samsudin [1994] 2 CLAS News 161 (refd)

Roshan Lal Goel v Superintendent, Central Jail, LashkarAIR 1950 MB 83 (folld)

Shaw v Beck (1853) 8 Exch 392; 155 ER 1401 (refd)

Silas Saul Robin v Sunrise Investments (Pte) Ltd [1991] 1 SLR (R) 169; [1991] SLR 436 (refd)

Subramaniam v PP [1956] 1 WLR 965 (refd)

Williams v Davies (1833) 1 C & M 464; 149 ER 481 (refd)

Criminal Procedure Code (Cap 68,1985 Rev Ed)s 32 (1) (a) (consd);ss 121,122 (6)

Evidence Act (Cap 97,1990 Rev Ed)ss 7, 8, 45,76, 125,126

J B Jeyaretnam (J B Jeyaretnam & Co) for the appellants

Lee Seiu Kin and Tan Ken Hwee (State Counsel) for the respondents.

Judgment reserved.

L P Thean JA

(delivering the judgment of the court):

1 The appellants, Zainal bin Kuning (“Zainal”), Salahuddin bin Ismail (“Salahuddin”) and Mohmad Bashir bin Ismail (“Bashir”), instituted an action against the respondents claiming damages for false arrest and malicious prosecution. The action was tried over several days before the High Court and at the conclusion the court dismissed the action with costs. Against this decision the appellants have now brought this appeal.

The facts

2 The relevant facts which are not in dispute that gave rise to this appeal are as follows. On the morning of 2 February 1989, one Ang Chye (“Ang”), aged 65, was found dead on the ground floor of a coffeeshop at Block 780, Yishun Ring Road, #01-3542 (“the coffeeshop”). He sustained multiple stab wounds and was found lying in a supine position on the floor. At a window at the back of the coffeeshop two of its louvre panes had been removed, and one of its cross-bars was missing. Outside, just beneath this window, a crate had been brought close to the wall, which probably assisted entry into the coffeeshop. Ang's wallet was missing, and the coffeeshop was apparently ransacked. A red handkerchief and a bloodstained white towel were found at the scene. A shoe print was also discovered on a piece of cardboard.

3 The first respondent is an inspector of police and was then attached to the Special Investigation Section of the Criminal Investigation Department (“CID”). He was the officer leading the investigations. From enquiries made by him and his team of officers they found that a few nights before the incident a group of Malay youths were seen taking drugs at the second floor along the corridor of Block 783, Yishun Ring Road and that the police came and detained one of them, Abdul Jaafar bin Abdul Rahim. The first respondent also learnt that another Malay youth, Ishak bin Kojan, who was a helper of the satay stall at the coffeeshop, could also assist in the investigation. Both Abdul Jaafar and Ishak were brought to the CID for an interview. From the interview of Abdul Jaafar the first respondent learnt that two Malay youths nicknamed “Kayu” and “Din” were with Abdul Jaafar at the second floor corridor of Block 783, Yishun Ring Road on 29 January 1989 at 1.04am when the police came and made a spot check and detained Abdul Jaafar. From the information provided by Abdul Jaafar the first respondent eventually traced “Kayu” and “Din” and identified them as Mohmad Bashir bin Ismail and Sulahuddin bin Ismail, the third and second appellants respectively, who are brothers. They and two others were brought to the CID for an interview on 3 February 1989 and after the interview all of them were released.

4 Further investigation by the first respondent and his team led them to a Malay youth nicknamed “Nan”. They traced the whereabouts of “Nan” and found that he is Abdul...