The plaintiff, who was a medical officer with the Ministry of Health (`MOH'), was temporarily seconded to the Ministry of Defence (`MINDEF') for two years at the expiry of which his secondment was extended for another two years. The plaintiff served at the Armed Forces Hospital at the Royal Malaysian Navy base in Lumut, Perak. As far as administration and discipline was concerned, the plaintiff was under the authority of the Public Service Commission and the secondment was governed by a Service Circular of the Public Service Department (`PSD') which, inter alia, required MINDEF to release the plaintiff when required to do so by MOH. Whilst serving in MINDEF, the plaintiff was commissioned as a Captain. About seven months into his second two-year term of secondment, the MOH issued a transfer order requiring the plaintiff to report for duty at the Selayang Hospital which was then facing an acute shortage of experienced medical officers. The first defendant, the commanding officer who headed the armed Forces Hospital at the Lumut naval base, took the view that the plaintiff could not report for work to the Selayang Hospital until he was decommissioned from the force. The plaintiff complied with the transfer order and decided to serve at the Selayang Hospital whilst awaiting the paperwork for his decommissioning to be done. When he found that the salary payable to him by the Armed Forces had been withheld, the plaintiff returned to the Lumut naval base to sort out matters. Once he arrived at the base, the plaintiff was put under open arrest for absenting himself without leave (`AWOL'). His open arrest lasted for 141 days during which time he was denied all privileges and was unable to leave the base. To put an end to his predicament, the plaintiff pleaded guilty to the AWOL charge before a court-martial. His conviction, however, was not confirmed by the Chief of Navy under s. 122 of the Armed Forces Act 1972 (`AFA') as a review of his case showed that the plaintiff's commissioning in the armed forces was ultra vires the PSD's Service Circular and there was no jurisdiction to court-martial him. Despite the plaintiff's secondment to MINDEF being cut short by the transfer order and despite the Chief of Navy not confirming the conviction of the court-martial, the plaintiff was only decommissioned and released from the Armed Forces on the expiry of the full term of his extended secondment. Due to the delay, the plaintiff lost out on an opportunity to become a medical lecturer with the UiTM in Shah Alam which had offered him the post. The plaintiff brought the instant action for damages for negligence against the defendants for putting him under open arrest and for unlawfully court-martialing him. The Government of Malaysia, as employer of the first and second defendants, was cited for being vicariously liable for their acts or omissions. Apart from arrears of salary, the plaintiff claimed for general damages for wrongful detention, pain and suffering and loss of reputation as well as for aggravated and exemplary damages.

Held (allowing claim with costs):

(1) The plaintiff had proved on a balance of probabilities his claim for negligence against the defendants. The failure to comply with the letter and spirit of the PSD's Service Circular, and in particular para. 25 thereof, had resulted in the confusion and consternation caused to the plaintiff. Paragraph 25 expressly provided that in the event the seconding agency shortened the period of secondment of the officer concerned, the seconded agency would release the said officer. (para 38)

(2) In keeping with both the letter and spirit of the Service Circular, once the plaintiff had, pursuant to MOH's transfer order, reported for work at the Selayang Hospital, he could not be subject to the discipline of the Armed Forces Act for the offence of AWOL. As the defendants knew for a fact that the plaintiff had been ordered back to work in his original service with the MOH and with that his temporary secondment to MINDEF had come to an end, the Armed Forces Council no longer had any disciplining authority over the plaintiff where AWOL was concerned. Effective from the date of MOH's transfer order, the plaintiff had crossed over from being under the jurisdiction of the Malaysian Armed Forces to being under the jurisdiction of the Public Service Commission. (paras 16 & 45)

(3) The court awarded the plaintiff RM10,626.78 being arrears of salary; RM282,000 as general damages for wrongful detention; RM100,000 for pain and suffering and loss of reputation; RM50,000 for aggravated damages; and RM50,000 for exemplary damages. (para 84)

Case(s) referred to:

Abdul Salam Husin v. Majlis Angkatan Tentera & Anor [2011] 2 CLJ 1 FC (refd)

Ashley v. Chief Constable of Sussex Police [2008] 2 WLR 975 (refd)

Kerajaan Malaysia & Anor v. Yong Moi Sin [2010] 2 CLJ 99 HC (refd)

Laksamana Realty Sdn Bhd v. Goh Eng Hwa [2005] 4 CLJ 871 CA (refd)

Lim Guan Eng v. Utusan Melayu (M) Bhd [2012] 2 CLJ 619 HC (refd)

Majlis Angkatan Tentera Malaysia & Anor v. Mejar Fadzil Arshad [2012] 4 CLJ 748 CA (refd)

Nortel Networks (Asia) Ltd & Ors v. Sapura Holdings Sdn Bhd [2012] 8 CLJ 296 CA (refd)

Pekan Nenas Industries Sdn Bhd v. Chang Ching Chuen & Ors [1998] 1 CLJ 793 FC (refd)

Roshairee Abd Wahad v. Mejar Mustafa Omar & 2 Others [1997] 1 CLJ Supp 39 HC (refd)

State Government of Perak v. Muniandy [1985] 1 LNS 117 SC (refd)

Legislation referred to:

Armed Forces Act 1972, ss. 5C, 6(1), 9, 54(1)(a), 122, 125

Evidence Act 1950, s. 114(g)

Federal Constitution, arts. 5(1), 137(1), 144(1)

Counsel:

For the plaintiff - Norhasham Hassan; M/s Norhasham & Assocs

For the defendants - Shamsul Bolhassan (Nurul Farhana Khalid with him); SFC

Reported by Ashok Kumar

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