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  • FADIAH NADWA FIKRI & ORS v. KONSTABLE FAUZIAH MUSTAFA & ORS AND ANOR CASE

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    1) The plaintiffs, who were legal assistants providing services to 14 people arrested outside a police station, were also arrested for being at a candlelight vigil. 2) The police invoked a law to deny the plaintiffs access to meet with their clients, but did not provide justification. 3) The court found the arrests of the plaintiffs were unlawful and a denial of their constitutional rights to legal representation. As a result, the plaintiffs were awarded damages.

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    Summary case of FADIAH NADWA FIKRI & ORS v. KONSTABLE FAUZIAH MUSTAFA & ORS AND ANOR CASE

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    1) The plaintiffs, who were legal assistants providing services to 14 people arrested outside a police station, were also arrested for being at a candlelight vigil. 2) The police invoked a law to deny the plaintiffs access to meet with their clients, but did not provide justification. 3) The court found the arrests of the plaintiffs were unlawful and a denial of their constitutional rights to legal representation. As a result, the plaintiffs were awarded damages.

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    24 views2 pages

    FADIAH NADWA FIKRI & ORS v. KONSTABLE FAUZIAH MUSTAFA & ORS AND ANOR CASE

    Uploaded by

    Rashekka
    1) The plaintiffs, who were legal assistants providing services to 14 people arrested outside a police station, were also arrested for being at a candlelight vigil. 2) The police invoked a law to deny the plaintiffs access to meet with their clients, but did not provide justification. 3) The court found the arrests of the plaintiffs were unlawful and a denial of their constitutional rights to legal representation. As a result, the plaintiffs were awarded damages.

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    © All Rights Reserved
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    RASHEKKA RAVI [A175759]

    Case name: FADIAH NADWA FIKRI & ORS v. KONSTABLE FAUZIAH MUSTAFA &
    ORS AND ANOR CASE
    Citation: [2015] 10 CLJ
    Court: High Court Malaya, Kuala Lumpur
    CASE SUMMARY
    The plaintiffs are legal assistants who provided their services to 14 people who were
    arrestedoutside the Brickfields Police Station (BPS) for holding a candlelight vigil for one
    Wong Chin Huat, a political activist who had been arrested earlier and was being detained at
    the BPS. However, the plaintiffs in this case submitted that one DSP(Deputy Superintendent
    Police) Jude (DW6) had approached the plaintiffs who were standing outside the boom
    barrier (place of congregation), and informed them that he had invoked Section 28A of the
    Criminal Procedure Code (CPC) and denied access for the plaintiff to meet their clients.
    There was no answer provided when the plaintiffs asked for a justification of the invocation.
    Following that, ACP Wan Abdul Bari (DW5) issued a warning through a loud hailer that
    everyone should disperse within 3 minutes, declaring that the gathering outside the boom
    barrier was an illegal assembly. The plaintiffs were the only ones arrested along with a
    journalist by SD1, SD2, SD3 and SD4 because of their vehement denial to disperse from the
    location. The plaintiff scommunicated the arrest to their lawyers, but the lawyers were denied
    access to the plaintiffs. SP6 then lodged a police report indicating that the plaintiffs were
    detained in BPS until about 4a.m. during which they were ordered to change into lock-up
    clothes and after which they were taken to the Travers Police Station where they spent the
    rest of the night and the next morning. The plaintiffs were then taken back to BPS and
    released on bail in the afternoon and were never charged in court with any offence let alone
    the offence of being in an unlawful illegal assembly. As a result of the defendant’s actions,
    the plaintiffs filed the present suit and sought damages for unlawful arrest, detention and
    denial of their constitutional rights.

    ISSUES RELATING TO CRIMINAL PROCEDURE


    a) Whether Section 28A(8) can be invoked so as to deny access to legal advice and
    representatives to arrestees, pursuant to Section 28A(2) ?
    ARGUMENTS (PLAINTIFF)
    a) The arrest and detention were unlawful, and there was a denial of their constitutional
    rights in line with Section 28A of the Criminal Procedure Code that provides for the
    RASHEKKA RAVI [A175759]

    rights of an arrestee
    ARGUMENTS (DEFENDANT)
    a) Pursuant to Section 28A(8) of the Criminal Procedure Code, the requirements under
    subsections above shall not apply due to the reasons so stated in the DW’s testimony.

    JUDGEMENT (JOHN LOUIS O’HARA J) & DISCUSSION


    • Clear from viewing of videos that the plaintiffs were not a part of the candlelight vigil, their
    presence was merely as advocates and solicitors to render legal representation and advice to
    their clients.
    • The prior telephonic communication with the 14 people indicated that there was in
    existence a solicitor and client relationship.
    • In regards to the arrest of the plaintiffs, SD1, SD2, SD3 and SD4 did not introduce
    themselves nor produce their “kad kuasa” or inform the plaintiffs of the reason of their arrest.
    Therefore, the arrests were wrongful and unlawful, which amounted to false imprisonment,
    denial of their constitutional rights and unreasonable denial of access to legal advice and
    representation.
    • The court referred to Section 28A(8) of the CPC which clearly provides that requirements
    under subsection (2), (3), (4), (5), (6), and (7) may be suspended but must be read together
    with subsection (9), (10) and (11), whilst emphasizing on the keyword in this provision that is
    “reasonably believes”.
    • The court finds that the reasons advanced in SD6’s witness statement and during cross-
    examination for invoking Section 28A(8) was unreasonable in the circumstances and factual
    situation of the candlelight vigil outside the BPS.
    • Furthermore, SD6 also kept on changing his testimony in regards to the reasons for
    invoking the aforementioned provision and this provides the grounds to doubt the authenticity
    and veracity of reasons put forward and for the credibility of SD6 as a witness due to the fact
    that SD6 possessed an LLB Hons and a certificate of legal practice.
    • In the evidence, SD6 stated that he in fact knew of the existence of the plaintiffs outside the
    boom barrier and he had told SD5 of his decision to deny access for the lawyers to see their
    clients.
    • The court duly considered the overall conduct of the defendants in regards to the arrest of
    the plaintiffs, and held that all that transpired after the wrongful and unlawful arrest was
    likewise wrongful and unlawful which amount to and unreasonable denial of access to legal
    advice and representation.
    • The court further held that the denial of their constitutional rights and the resulting
    treatment was appalling and oppressive, and as such it is necessary and befitting that the court
    expressed indignation and disapproval by awarding exemplary damages. The court found in
    favour of all the plaintiffs.

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