SINGAPORE — A man who was wrongly imprisoned for less than a day in 2017 was awarded S$20,000 by the High Court for damages after the presiding judge found that a Singapore Police Force (SPF) officer had “acted in bad faith in apprehending” the man.
This sweet moment of victory for Mah Kiat Seng, who had represented himself against the learned counsels from the Attorney-General’s Chambers (AGC), came only after five long years of legal battles in his pursuit of vindication.
The hearing, which was presided over by Justice Philip Jeyaretnam, was held in August and October last year after a long series of proceedings for leave to commence proceedings took place and which was eventually granted.
Mah was arrested on 7 July 2017 after officers attended to a call by a woman who alleged that Mah had touched her son’s head in Suntec City.
The woman told the officers at about 7.59 pm that it looked as though Mah was going to pull his hair and ran away after she shouted at him.
Mah was then interviewed after being located by SPF officers, Staff Sergeant Mohamed Rosli Mohamed and Sergeant Teo Sean, near a stone beach outside Suntec City at about 8.05 pm.
SSG Rosli had alleged that Mah was mentally disordered and posed a danger to himself or other persons by reason of that disorder.
Consequently, SSG Rosli proceeded, with the assistance of two more police officers, to apprehend Mah under Section 7 of the Mental Health Care and Treatment Act (MHCTA), with Mah being handcuffed.
Mah was driven to the Central Police Division Regional Lock-Up (RLU) at 9.11 pm where a search was conducted of his body and belongings.
Mah was detained in a cell at about 10.00pm and examined by Dr Lin Hanjie of Healthway Medical Group Pte Ltd in the RLU at about 10.19pm.
Dr Lin referred Mah to the Institute of Mental Health (IMH) for treatment under s9 of the MHCTA.
Mah was subsequently transferred to a padded cell.
At about 3.00am, Sgt Wong Jingying, along with two other police officers, escorted Mah from the RLU to IMH.
Dr Tracey Wing Li Mun, a Psychiatry Resident at IMH, attended to Mah at about 5.00 am.
At about 5.43 am, Dr Wing made an order under s10(1) of the MCHTA that Mah be detained for further observation and assessment as she was concerned that Mah posed a risk of harm to minors and suspected that he suffered from an undiagnosed mental disorder.
Mah was discharged from IMH on 8 July 2017 at about 7.00 pm.
Following the incident, Mah sued the SPF, along with two police officers: SS Rosli, who took him into custody; and SSG Tan Thiam Chin Lawrence, who interacted with Mr Mah at a police lock-up.
Mah had claimed that he was wrongly apprehended and hence falsely imprisoned as a result of SSG Rosli’s lies that Mah had been mumbling or speaking to himself, told the officer he had obsessive-compulsive disorder (“OCD”) and spat into a plastic bag.
He also claims that he suffered injury at the hands of SSG Tan at the lock-up.
Leave to commence proceedings, was refused initially as Justice Valerie Thean, who heard the application, states that there was no basis to suggest that SSG Rosli had lied. As for the second claim, the judge refused leave because that SSG Tan said he had had no verbal or physical contact with Mah on the night in question, and this was confirmed by the investigating officer.
However, following Mah’s appeal against the judgement, the Attorney-General (AG) reversed its objection for leave to be granted and consented to Mah’s appeal after it was revealed through the review of certain video evidence in relation to the second claim that SSG Tan had had occasion to escort Mah at the lock up on that night, contrary to what was previously conveyed to Justice Thean.
Mah then sought the release of all CCTV footage of his entire imprisonment in the RLU, and bodyworn camera (BWC) recordings showing SSG Rosli interviewing him.
However, as the court agreed with the AG’s request to only allow Mah to view the footage and pixelate the identity of the complainant, Mah appealed to have copies of the footage with them being pixelated.
Justice Jeyaretnam granted Mah’s appeal for the footage but rejected his three other requests for the purpose of discovery.
Findings by judge on bad faith by arresting officer
The judge highlights that SSG Rosli’s claim that Mah spat into a plastic bag was undermined by the fact that one of the two officers who arrested Mah with him, did not find a plastic bag containing saliva at the RLU as well as contradicted by the BWC footage.
SSG Rosli had claimed in his affidavit dated 13 September 2017 that Mah was “mumbling to himself at times”, an assertion that he later withdrew.
AG states that this was just a lapse of memory occurring when he made that affidavit, and thus not relevant to the question of the honesty and reasonableness of his belief at the time the apprehension took place on 7 July 2017.
The AG’s submission is supported by the fact that Rosli did not say that Mah was “mumbling to himself” during his radio call to his superiors.
The judge noted that SSG Rosli’s transcribed description given to his superiors of Mah’s behaviour is brief to the point of inarticulacy, saying only “he a bit seven also … got … a bit … don’t know la … this guy”.
He stated that he could not accept that the assertion that Mah was “mumbling to himself” was only made by Rosli two months later, which was claimed by AG.
A case note made by Dr Eng Yong Tai Leonard from IMH on 8 July 2017 at 12.43 pm recorded that he was told by IO Tan that “when police spoke to him on site – he was non-responsive and mumbling to himself” and “hence, they arrested him – as he’s mumbling to himself and not of sound mind”.
IO Tan testified when questioned about this that there was a call, but he could not recall whether he said this.
“I find that he did say what was recorded by Dr Eng and that this assertion must have ultimately come from Rosli as the person who spoke to Mah on site. It may have come indirectly via Ong, as IO Tan testified that he did not speak directly to any of the arresting officers,” wrote the judge.
This case note made the day after shows not only that SSG Rosli had asserted that Mah was “mumbling to himself” but that this fact was considered by IO Tan to be relevant to the assessment of whether Mah had any mental disorder.
Based on this, He finds that SSG Rosli made up the observation that Mah was “mumbling to himself” and made it on the night of the apprehension.
The judge notes that this was not his only embellishment as SSG Rosli also claimed that Mah spat into a plastic bag, but this was not captured on the BWC footage, nor was any plastic bag containing spit found later.
SSG Rosli further claimed that Mah described himself as “OCD”. Mah has denied doing so. No such description was captured on the BWC footage although there were some interactions that were not captured because the battery apparently ran out.
Justice Jeyaretnam concluded that Rosli did not have an honest belief that Mah was a danger to other persons by reason of mental disorder.
He finds that Mah’s behaviour, as shown in the BWC footage, did not suggest that he was dangerous to others, and as far as soundness of mind is concerned only showed a degree of eccentricity falling far short of appearing mentally disordered.
Such eccentric mannerisms however can come across as disrespectful to someone lacking experience or perspective.
“I find on a balance of probabilities that Rosli, knowing that he had no power to arrest Mah for the matter complained of because it was not an arrestable offence, took a dislike to Mah for his apparently disrespectful conduct, including not handing his identity card directly to him. This is what motivated him to come up with the assertions that Mah was mumbling to himself and spat into a plastic bag.”
Justice Jeyaretnam dismissed Mah’s second claim that he was punched in his abdomen when he was apprehended, having reviewed the BWC footage of the apprehension and heard the testimony of Mah as well as those officers who apprehended him.
The judge, however, noted that this does not mean that Mah did not feel discomfort or pain, including in his abdomen, and may have attributed this wrongly to a punch rather than simply to his being forcibly restrained in a manner that would have been lawful had the apprehension itself been lawful.
Police should not threaten an arrest if an arrest is not entitled
Mah claims that while he had consented to SGT Teo in searching his bag and accessing his mobile phone outside Suntec City, his consent was vitiated by SSG Rosli’s threat of arrest.
A police officer who considers that he is entitled to lawfully arrest someone may properly suggest to that person that he voluntarily open his bag or turn out his pockets so that such cooperation may resolve the police officer’s concerns and eliminate the potential grounds for arrest, wrote the judge.
The judge, however, noted that It is not right however to threaten an arrest if the police officer knows he is not entitled to make an arrest.
The judge also pointed out that there is nothing in the MHCTA that authorises the police to search an apprehended person.
“In my view, bringing Mah to the RLU should have been for the purpose of his seeing a medical practitioner at the RLU or as a brief holding point before seeing a designated medical practitioner at IMH or elsewhere.”
“He should not have been treated as if he had been arrested for a criminal offence, and so he and his bag should not have been searched without his consent.”
Explaining why a higher sum of compensation than what was put forward by the AG, the judge said he had taken into account Mah’s being handcuffed and kept in a police cell, rather than taken directly to IMH, an alternate course of action which would have been less stressful for him than what took place.
The judge had also said he had taken into account the minor abrasions caused to Mah during the apprehension, the marks caused by the handcuffs as part of their ordinary use and the invasions of Mah’s privacy when his bag was searched and his mobile phone accessed.
The judge concluded his judgement by noting that “while latitude must be given to police officers who, after all, are not medically trained and have to fulfil their duty under operational conditions, I am satisfied that in this case there was an individual lapse on the part of the police officer concerned that resulted in Mah being falsely imprisoned, albeit for less than a day.”
In response to media queries, the police said that they, along with the Attorney-General’s Chambers, “are studying the judgment delivered” before deciding on the next course of action.