/ .
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
IN THE HIGH COURT OF MALAYA, KUALA LUMPUR
IN THE FEDERAL TERRITORY, MALAYSIA
CIVIL SUIT NO. 21NCVC-7-01/2012
BETWEEN
N. INDRA A/P NALLATHAMBY
(Administratrix ofthe Estate and
Dependant of Kugan a/I Ananthan, deceased)
...PLAINTIFF
AND
1.
2.
3.
4.
5.
DATUK SERI KHALID BIN ABU BAKAR
NAVINDRAN A/L VIVEKANANDAN
WAKIL PERIBADI ESTET ZAINAL RASHID B. ABU BAKAR, SI MATI
KETUA POLlS NEGARA
KERAJAAN MALAYSIA
...DEFENDANTS
JUDGMENT
1.
By the Amended Statement of Claim dated 10.5.2012 (Enclosure 27), the plaintiff
24
who is the mother and the Administratrix of the Estate and dependant of Kugan a/I
25
Ananthan, deceased (hereinafter referred to as 'the deceased') claims for damages
26
against the defendants for negligence and/or breach of statutory duties for
27
unlawfully having killed the deceased on 20.1.2009. In the alternative, the first
28
defendant and/or other police personnel had wrongully and intentionally assaulted
29
and beat the deceased between 14.1.2009 to 20.1.2009 resulting in the death of the
30
deceased whilst the deceased was detained by the police at the Taipan Police
31
Station. The plaintiff has also claimed for damages against the defendants for
32
misfeasance of public ofice, assault and battery, false imprisonment, aggravated,
33
exemplary, vindicatory and special damages. The plaintiff had pleaded, inter alia and
34
briefly, as follows:-
35
36
37
38
39
1.
The deceased was arrested by the police on 14.1.2009 and
the defendants did not inform the plaintiff as to where the
deceased was being held by the police.
1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
2.
On 20.1.2009 at or about 9.00am, the plaintiff was informed
by a police officer that the deceased had died whilst in the
police custody.
3.
On 21.1.2009 the first defendant, being the Deputy
Commissioner of Police and the Chief Police Officer of
Selangor at the material time had issued a false explanation
to the media on the deceased's cause of death. He had alleged
that 'he deceased had asked for a gla�s of water and then
collapsed and died'. (Emphasis by this court).
4.
The first defendant had made attempts to cover-up the real
cause of death of the deceased and/or issued statements
calculated to exonerate the police from liabiliy with the ull
knowledge that the death was unlawfully caused by the
members of the police force.
5.
The body of the deceased bore extensive marks of beating
and other severe physical trauma.
6.
The first autopsy was conducted by the Pathologist Dr. Abdul
Karim bin Haji Tajudin, of the Serdang Hospital. Based on the
autopsy report (hereinafter referred to as 'the irst autopsy
report') he had found that there were '22 categories of
external wounds' and the cause of death was stated as
'pulmonay edema'.
7.
Upon the release of the first autopsy report, the first
defendant again issued a public statement that he deceased
had died 'dne to water in lungs'. (Emphasis by this court).
8.
The first autopsy report is inconsistent with the external
marks of abuse on the body of the deceased. The Pathologist,
Dr. Abdul Karim bin Tajudin was subsequently found guilty
of professional misconduct by the Malaysian Medical Counsel
(MMC) in preparation of the irst autopsy report and has
been reprimanded. The charge and the findings of the
Malaysian Medical Council ir reproduced:MAJLIS PERUBATAN MALAYSlA
(MALAYSIAN MEDICAL COUNCIL)
Tel :
03-26947920
03-26985077/22798100
Sambungan 417/411
Faks:
03-26938569
Enel: admin,mmc@moh.gov,my
Laman
Sesawang: htp://www.mmc.gov.my
Kementerian Kesihatan Malaysia
(Ministry Of Health Malaysia
BIok D, Tingkat 3,
Jalan Cenderasari
50590 Kuala Lumpur
41
42
43
44
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
Ref. No : (101) dim MPM 5141 (S)
Date : 18 July 2011
Prof. Dr. Abdul Karim bin H j . Tajudin
Jabaan Perubatan Forensik
Hospital Serdang
Jalan Puchong
43000 Kajang
Selangor Darul Ehsan.
DearProf,
IN THE MATTER OF REGULATION 31 OF THE MEDICAL REGULATIONS 1974
PURSUANT TO SECTION 29, MEDICAL ACT 1971 IN ERSPECT OF AN ENQUIRY
BY THE MALAYSIAN MEDICAL COUNCIL ON A COMPLAINT AGAINST PROF.
DR. ABDUL KARIM BIN HJ. TAJUDIN, NRIC NO. 490507·08·5539, (APC NO.
1567/2011, FULL REGISTRATION NO. 22783 DATED 13/03/1979)
The above matter refers.
1.
Prof. Dr. Abdul Karim Bin Hj. Tajudin, I have to inform you that the
Malaysian Medical Council had conducted a due enquiry under the Medical
Regulations 1974, enacted under the Medical Act 1971, on a complaint against you
by Madam N. lndra Nallathamby dated 13/03/2009.
2.
After delibetaring on the proceedings of the enquiry as well as your
submission and plea of mitigaion, the Council at the close of its enquiry on
11/07/2011 had found you guilty of infamous conduct in a professional
respect under Section 29(2)(b) of the Medical Act 1971 on the charge framed
against you as follows:
CHARGE:
That you, Prof. Dr. Abdul Karim Bin Hj. Tajudin had
neglected
and
disregarded
ypur
professional
responsibilities by failing to conduct a proper examination
and preparing and honest report as a government
pathologist or forensic pathologist entrusted with
performing an autopsy on the body of the deceased who
died while in custody, as required under the item No. 4 of
the Guidelines of the Malaysian Medical Council in relation
to 'Ethical Implications of Doctors in Conflict Situations',
3.
Consequentially, by virtue of the power vested on the Council in respect
of disciplinary punishment under Section 30 of the Medical Act 1971, the Council
had decided to impose the following punishment:
"To order that you, Prof. Dr. Abdul Karim Bin HJ. Tajudin,
(NRIC) No. 490507·08·5539), (APC No. 1567/2011), (Full
Registration
No.
22783
dated
13/03/1979)
be
reprimanded under Section 30(iii) of the Medical Act and
to direct the Registrar accordingly,"
The efect of the foregoing direction and order is tht unless you exercise
4.
your right to appeal to the High Court Section 31 of the Medical Act 1971, within
ONE (1) month from the service of this letter, this Order, will be endorsed against
your name on the Register.
Thank You.
Yours Faithully,
s.g.d.
(DATO' DR. HASAN BIN ABDUL RAHMAN)
President
Malaysian Medical Council
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
9.
Being dissatisfied with the first autopsy report, the plaintiff
had appointed Dr. Prashant N Samberkar of Pusat Perubatan
Universiy Malaya (PPUM) to conduct a second autopsy.
Based on the second autopsy report (hereinafter referred to
as 'the second autopsy report'), Dr. Prashant N Samberkar
had found that there were '45 categories of external injuries'
on the body of the deceased and a wide range of internal
injuries. He had concluded that the cause of death of the
deceased was due to 'acute renal failure due to
rhabdomyolysis due to blunt trauma to skeletal muscles'.
For easy reference and completion, both the post mortems
reports are reproduced:Telefon : 03-89475555
Faks
: 03-89475050
Kawat : MINHEALTH,
KUALA LUMPUR
Teleks : MA 28102
HOSPITAL SERDANG
JALAN PUCHONG
43000 KAJANG
SELANGOR DARUL EHSAN
Ketua Jabatan :
Dr. Abdul Karim bin Haji Tajudin KMN, PJK,
PJC,M.D. (Indon), D.C.P. (Lond), D.M.J. (Path). A.M.M
Pakar Perunding Kanan Patalogi dan Forensik
Tarikh : 24 Februari 2009
Tetuan Naraendran & Suria
Peguambela & Peguamcara
No. 3A, Persiaran Ara Kiri
Lucky Garden, Bangsar
59100 Kuala Lumpur
NO. PENDAFTARAN HOSPITAL
NO. BEDAH SIASAT
No. LAPORAN POLlS
:SD00182405
:P0033/2009
:US! 8 Rpt:764/09
Pada hari ini, 21 Januari 2009 jam 3.00 petang bertempat di Bilik
Mayat Hospital Serdang, saya Dr. Abdul Karim bin Haji Tajudin
bertugas sebagai Pakar Perunding Kanan Patalogi dan Forensik,
Hospital Serdang atas permohonan Pegawai Penyiasat ASP
Mohamad Zainal bin Abdullah telah memeriksa jasad seorang
lelaki dewasa berbangsa India, yang identitinya seperti berikut:Kugan a/I Ananthan
Nama
Umur
22 tahun
No. Kad Pengenalan: 860830-43-5645
Tarikh dan waktu kematian :
20/01/2009 @ 11.50 pagi
Tempat kematian:
Tingkat 3, Pejabat Bahagian
Siasatan Jenayah Berat,
Balai Polis Taipan,
IPD Subang Jaya
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
Mayat dikenalpasti oleh :
a)
b)
No. Pangkat
Mohamad Zainal bin
Abdullah
G/1s429
Waris
No. K/P
Hubungan
N. Indra alp P.Nallathamby
681204-10-6410
Ibu
Polis
RIWAYAT KES
Jasad telah tiba di Jabaan Perubatan Forensik, Hospital
Serdang pada pukul 6.00 petang 20/01/2009 dan pukul 23:40
malam waris meminta untuk nelihat mayat tersebut tetapi
sebenarnya tidak dibenarkan oleh saya. Namun, bilik mayat telah
dibuka untuk membenarkan ibubapa melihat/ mengeeam/
mengenal pasti si mati tetapi tidak diketahui jumlah berapa
ramai orang (waris) telah masuk beramai-ramai melihat si mati.
Peristiwa ini telah berlanjutan hingga ke jam 2.30 pagi
21/01/2009 di mana mayat disimpan semula. Apa yang berlaku
sewaktu "waris" melihat jasad tersebut adalah di luar
pengetahuan saya.
HASIL PEMERIKSAAN ADALAH SEPERTI BERIKUT:
PEMERIKSAAN LUARAN
Jasad seorang lelaki dewasa berketurunan India dalam
keadaan kaku mayat dan lebam mayat yang sempurna. Jasa
tersebut belum terbentuk tanda-tanda pembusukan awal.
Beratnya 76kg dan tingginya 176em. Rupa parasnya adalah
Rambutnya pendek,
sesuai dengan usia yang dinyatakan.
berjambang dan bermisai. Terdapat terkeluar buih putih di
mulut bereampur dengan sedikit darah. Alat kelamin tidak
berkhatan. Terdapat jangkitan tinea cruris di scrotum dan
daerah inguinal.
Terdapat tangkal benang di pinggang.
Terdapat tatu matahari pada lengan atas kanan luar.
Catatan : Waktu kematiannya sesuai seperti yang dinyatakan.
PAKAIAN
1.
Baju lokap polis lengan pendek berwarna oren yang
seperti telah dikoyak di belakang.
2.
Seluar boxer lokap polis berwarna oren.
PERLUKAAN DAN KECEDERAAN
Terdapat perlukaan dan keeederaan seperti berikut:
1.
Parut lama melintang di dahi kanan berukuran 2.2 x
O.sem, 4em di atas kening kanan.
2.
Parut abrasi baru «1 minggu) pada bahu kanan 5.5 x
1em.
5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
3.
Kesan abrasi baru dan sedikit luka dan keropeng yang
sedang menyembuh melintang mengelilingi pada
pergelangan tangan kanan, lebih ketara di sebelah
belakang tangan meliputi 10 x 4 cm (eatitian : kesan itu
sesuai dengan kesan gari yang dipasang berulang-kali)
4.
Kesan lebam dan calaran yang bergaris sejajar antara
satu 5ama lain berbagai ukuran dan juga berbagai arah
di daerah bahu kiri belakang yang berukuran 3 x 1em
(paling kedl) 4 x 3, 7 x 1, 6 x 1, 5 x 1em, 7 x 1em dan 7 x
1em.
s.
Kesan lebam dan calaran yang 5ama lengan atas kiri
luar 16 x 0.8em.
6.
Kesan pergelangan tangan kiri seperti luka, (3) kesan
lebih ke pergelangan tangan, darjat ada yang
mengelupas, mengelopeng dan lebam, berbagai umur,
meliputi daerah 1 1 x 6em (Catitan : Seperti kesan gari
yang diaplikasikan berulang kali).
7.
Lebam bertompok-tompok pada paha kanan berbagai
ukuran.
8.
Lebam bertompok pada betis kanan.
9.
Parut baru di tulang keting kanan depan 7 x 1.sem
10.
Lebam pada Rusuk kiri pada garis ketiak lengah 9 x
8em, 2gem di bawah bahu kanan.
11.
2 x kesan lebam bergaris dan sejajar antara satu sama
lain pada dinding perut kiri atas 15 x 1.sem dan 14 x
l.5em.
12.
3 x lebam yang agak kehitaman berbentuk 'U' bergaris
sejajar (umur dalam 2-3 hari) di dinding perut kiri atas
dan rusuk kiri bawah, meliputi daerah
6 x 6em, 7 x
sem dan 7 x 6em.
13.
Kesan abrasi melintang dalam di tengkuk 4 x 2em.
14.
2 x lebam bentuk lengkung bergaris pada belakang
bahu kanan hingga belikat kanan kiri 1 1 x 0.8em dan 14
x O.8em.
15.
12 x luka ealar abrasi berbentuk 'V' dengan berbagai
darjat kedalamannya di belakang tengkuk di antara 2
belikat dengan ukuran lebar 6em, lcm, 7cm, 4cm,
a.8em, Sem, 3cn, a.Sem, 6em, 6em, 3cm dan 3cm.
16.
4 x Lebam berbentuk V di belikat kiri ukuran 6 x
0.4em, 5 x sem, 8 x sem, 5 x sem.
17.
Luka ealar melengkung di belakang ketiak kiri 6 x 1em.
18.
25 x Luka ealar berbentuk 'V' dan berbagai darjat
kedalaman di bahagian tengah belakang dengan
berbagai ukuran 2 x 3 x 1. 3 x 2 x 1em.
'
6
'
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
19.
8
5
x
20.
Lebam pada pelipat lutut kiri 4 x 3cm.
21.
Luka abrasi di pergelangan kaki kiri bahagian luar 8
7cm.
x
22.
Luka abrasi di pergelangan kanan bahagian dalam 4 x
4cm.
x
Lebam berbentuk 'V' di bahagian pinggang 5
ukuran.
x
ten, hampir semuanya 5ama
Tidak terdapat kecederaan lain yang ketara.
PEMERIKSAAN DALAMAN
Kepala dan Leher Subgaleal hemotama.
Otak keadaan baik 1360g.
Leher
Otot-otot leher normal. Arteri karotid baik dan tiada kesan
lebam. Tulang hyoid dan rawan thyroid juga dalam keadaan
baik.
Dada
Lebam pada bahagian dalam kulit dada di tengah dada.
Paru-paru kanan: 662g, kiri : 622g. Congestion and Oedematous.
jantung normal 248g. Sangkar dada baik, pleura baik.
Abdomen
Perut kosong. Hati normal. Limpa normal. OrganMorgan
laindiperiksa satu persatu dan dalam berkeadaan baik.
Tulang
Tidak ada patah tulang dalam dan tulang-tulang panjang.
SIASATAN
Histopatologi
HasH pemeriksaan histopatogi terdapat dua (2) potong
tisu paru-paru 30 x 20 x 18mm dan 35 x 21 x 20mm. 2 seksyen
tisu telah diambH untuk mewakili paru-paru tersebut. Di bawah
mikroskop, terdapat tisu paru-paru yang penuh sesak dengan seI
sel darah di dalam saluran darah dan di dalam ruang-ruang
alveolus terdapat cecair warna kemerahan (eosinophilic) dan
tidak kelihatan septum-septum alveolus.
Ada di antara bronchioles menunjukkan ada kelenjar
kelenjar mucus yang hyperplasia dan mengelilingi bronchi ales.
Terdapat infiiltrasi sel-sel mono nucleus. Tidak kelihatan sel-sel
inlammasi akut atau deposit selaput hyaline.
HasH dari
pemeriksaan di atas hanya nenunjukkan paru-paru yang
congenstion dan juga oedema.
7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
The internal and external injuries as stated in the second post mortem report
31
being:-
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
RINGKASAN DAN KESIMPULAN
Searang lelaki dewasa India yang tidak diketahui
menderita apa-apa penyakit dan juga tidak ditemukan penyakit
biasa yang boleh menyebabkan kematiannya, telah menderita
beberapa luka akibat dipukul benda tumpul pada seluruh
badannya. Hasil pemeriksaan darah tidak menunjukkan dadah
atau alkohal dalam badannya.
Mulutnya berbuih adalah
disebabkan oleh sambap dan congestion paru-paru. Ini boleh
menyebabkan kematiannya.
Penyebab kepada kongesi dan sembab paru-paru tidak dapat
ditentukan dengan bedah siasat
SEBAB KEMATlAN
5.
a) Pulmonary oedema
"BERKHIDMAT UNTUK NEGARA"
s.g.d.
(DR. ABDUL KARIM BIN HJ TAJUDIN)
No. KIP : 490507-08-5539
Pakar Perunding Kanan Patologi dan Forensik
Ketua Jabatan Perubatan Forensik
Hospital Serdang
PUSAT PERUBATAN UNIVERSITI MALAYA
Universiy Malaya Medical Centre
(sebelum ini dikenali sebagai Hospital Universiti)
ALAMAT : LEMBAH PANTAI, 59100 KUALA LUMPUR
TELEFON: 03-79494422
FAX NO : 60379562253 E-mail : ummc@uhkl.edu.my
AUTOPSY REPORT OF KUGAN AIL ANANTHAN
Autopsy No: A26/09
Registration No : 23877855
Coroner's Case No: I.C. No : 860830435645
Marital Status : Single
Occupation: Employed in a vehicle-towing
Company:Ethic group: Indian
Police Report No: Police Station : Sex : Male
Age : 22 Yrs
Dr. Prashant N Samberkar, carried out an autopsy examination
on the body of Mr. Kugan AJL Ananthan on 25-01-2009
commencing at 0925 hours at the Mortuary, Universiy Malaya
Medical Centre, Kuala Lumpur.
8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
The request for the second post-mortem examination and the
body was identified by:
Name :
N. Indra A/P Nallathamby
I.e. No :- 681204-10-6410
Relationship : Mother of the deceased
EXTERNAL EXAMINATION
The body was that of a big-sized, well-nourished, muscular, adult
Indian male, 182cm in length and 81kg in weight The body was
dressed in a branded (Egypt tailor) light brown jeans, a branded
(Rodeo club - L size) orange, red, white and black coloured h
sleeve shirt and a light green coloured underwear.
Rigor mortis was minimally present. Postmortem hypostasis was
present at the back.
There was no decomposition changes noted.
The complexion was dark coloured. The head hair was black and
04 ems in length.
The eyes were blurred/opoque. The ears, mouth and nose did
not show presence of any blood or other body fluid. The nose
showed cotton plugs. The external genitalia appeared normal.
The penis was normal. The anus and the area around the anus
were soiled with feacal matter. The nail beds and the toes
appeared normal and were yellow-stained (due to application of
turmeric powder). The toes were pale. The upper and lower
jaws had natural set of teeth and were in good state of health.
Identiying features:
1.
Identification tag bearing the name of the deceased.
2.
A tattoo on the outer surface of right arm coloured red
and black.
Signs of recent medical therapy : Nil. However, a 1 st
post-mortem examination had been conducted on the
21" january 2009, at Hospital Serdang.
EXTERNAL MARKS OF INjURIES:
Please refer to additional sheet.
INTERNAL MARKS OF INjURY :
Extensive hemorrhaging is present with-in the faty tissues and
the muscles of the upper trunk, lower trunk, both upper limbs
and both lower limbs. Findings are consistent with injuries on
the external surface.
9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
INTERNAL EXAMINATION
Central Nervous System :
The scalp showed diffuse scalp hematoma on its undersurface,
prominently o n the upper and back part of the head and
extending to the back of neck. The skull did not show any
fracture. The meanings were congested and apaque and were
present in the chest caviy.
The brain (1320 gram) was previously dissected and was
wrapped in a green coloured netted cloth. The brain was cut into
several in-complete coronal sections (horizontal sections)
keeping the base infact. There was diffuse oedema and
congestion with patchy areas of contusions. The pituitary gland
did not show any pathology. There was blood present around the
foramen magnum (the spinal canal opening). The cerebral
vessels were normal.
Neck:
The neck had been dissected at the 1st post-mortem examination.
It was packed with gauze pieces. The soft tissue of the neck did
not show any pathology. The air-passage had been opened at 1"
post-mortem examination and on gross examination showed
diffuse congestion and patchy areas of hemorrhage and
ecchymotic patches. The thyroid gland was normal and the neck
cartilages did not show any fracture. The neck blood vessels and
the neck spine did not show any pathology.
Cardiovascular System :
The pericardium was present in the chest cavity. It had been
opened during 1st post-mortem examination. The left inner
preocardial surface shows 02 small tears measuring 01cms x
O.Scms and O.Scms, with a hematoma on the outer surface.
The heart (290 grams) was cut into 04 large coronal sections.
External surface shows patchy areas of petecheal hemorrhages.
The rest of the epicardium, myocardium and endocardium did
not show any pathlogy on gross examination. The great vessels
arising from the heart showed normal anatomy.
The coronary arteries were dissected during 1st post-mortem
examination and were patent.
The heart valves did not show any pathology on gross
examination.
Respiratory System
The sternum and the front rib cage were opened at 1 st post
mortem examination. The longue, neck structures, air passage
and pericardium were present in the chest caviy as one block.
The meninges were present in the chet caviy. The previously
dissected heart and both lungs were present in the chest caviy.
10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
The chest skin and subcutaneous tissue, which was not dissected
at 1st post-mortem examination, were separated and showed
patchy areas of subcutaneous contusions. There were patchy
confusions on the left chest muscles. There was extensive
contusion of the right chest muscles with hemorrhaging.
The chest bony cage did not show any fracture, however, there
were hematoma in he inter-costal spaces, prominently on the
lateral and posterior aspects of the rib cage along its entire length
and breadth.
The right lung weighted 425 gms and the left lung weighed 404
gros. The external surfaces were smooth and glistening and
showed patchy areas of petechiae and small ecchymotic parches
measuring 0.5 ems x O.7cms in diameter.
Both lungs were dissected at 1st post-mortem examination and
were oedematous, deeply congested with patchy areas of
hemorrhages.
The pulmonary arteries were healthy. No evidence of pulmonary
embolism was detected.
The diaphragm was not separated or dissected at 1st post
mortem examination and was present in its normal anatomical
position. The right dome showed patchy areas of hemorrhages.
Abdominal Caviy:
Organs in the abdominal caviy and the diaphragm were not
removed for dissection at the 1st post-mortem examination,
therefore were eviscerated along with the diaphragm for further
dissection. The omentum and the mesenteric fat showed partchy
aras of hemorrhages.
The peritoneum was unremarkable; however, the rectus muscle
showed patchy areas of hemorrhages within the muscle and the
abdominal wall fat.
There was hematoma along both sides of the spine from T12-L4.
Alimentary System:
The tongue and oesophagus were unremarkable. The anterior
lower 1/3rd of the stomach showed an area of pinkish
discoloration - a contusion. On opening the stomach, the
contents were 05ml - 10 ml of greenish/black colored fluid. No
foul odour was noted upon opening of the stomach. The stomach
musosa showed oedema and patchy areas of congestion, and the
duodenal mucosa was unremarkable. The external surfaces of
the small and large bowl showed congestion.
The gall bladder was distended and the external surface showed
few hemorrhagic tags. On opening the contents were thick dark
coloured bile.
The pancreatiC (130 grams) head showed patchy areas of
hemorrhage.
11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
Genito-Uninary System:
The kidneys (right - 110 grams, left - 125 grams) were normal in
size, site and configuration. The external surfaces were deeply
congested to hemorrhagic in appearance. The capsules were
non-adherent. The corticalsurfaces were smooth. Cut sections
showed well-defined cortico-medullary demarcation. The renal
pelvis and ureters were unremarkable.
The uriny bladder was contained about 150ml of brown-colored
urine.
The urethra was not examined.
Endocrine System:
The thyroid and pituitary were unremarkable.
The adrenal glands (Rt OSgms; Lt. OSgms). The cut surface of the
left adrenal was hemorrhagic.
Reticulo-endothelial System:
The spleen (100 grams) was soft Cut surface deep congestion
and henorrhages.
The lymph nodes were unremarkable.
Musculoskeletal System:
No bony deformiy or fracture was noted.
Muscles of the upper trunk, lower trunk, both upper limbs and
both lower limbs showed extensive contusions, hemorrhaging
and blood clots.
FURTHER EXAMINATIONS:
Specimen collected:
1.
2.
3.
4.
5.
Blood for Toxicology and drugs - Report Pending
Urine for Toxicology and drugs - Report Pending
Stomach contents for Toxicology and drugs - Report
Pending
Urine for Myoglobinuria - Report Pending
Tissues for hostopthoiogy (microscopic) examination Report attached.
PROVISIONAL CAUSE OF DEATH (PENDING TOXICOLOGy):
Acute renal ailure Due to Rhabdomyolysis
Due to Blunt trauma to skeleal muscles
s.g.d
Dr. Prashant N Samberkar
MBBS, MD
Lecturer (Forensic Pathology)
Department of Pathology
University of Malaya
12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
History: (History as narrated by relatives)
The deceased works for a towing company. He was taken in
police custody for interrogation. Police informed relatives that
he has died, when in custody on 20.01.2009 at 1140 hrs. A 1"
post-mortem was conducted at the Hospital Serdang on
21.01.2009. That relatives were not happy with the 1" post
mortem result and therefore wanted a 2nd post-mortem
examination at PPUM. The body was registered with PPUM for
2" post-mortem on 24.01.2009 and the post-mortem was
conducted on 25.01.2009.
As per relatives there is no past history of any illness or
admission to the hospital, and the deceased is a non-smoker, non
alcoholic.
Mechanism of death:
\habdomyolsis is the rapid breakdown (lysis) of Skeletal Muscle
Tissue (rhabdomyo) due to injury to muscle tissue. The muscle
damage may be caused by physical (e.g. crush injury), chemical,
or biological factors. The destruction of the muscle leads to the
release of the breakdown products of damaged muscle cells into
the bloodstream; some of these, such as myoglobin (a protein),
are harmful to the kidney and may lead to Acute Kidney Failure.
PTJ Forensik Pato!ogi
Pusat Perubaan Universiti Malaya
59100 Kuala Lumpur
KUGAN AIL ANANTHAN
EXTERNAL MARKS OF INJURY
A/26/2009
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
A 43 ems post-mortem surgical wound with sutures on
the head.
A 58 ems post-mortem surgical wound with sutures on
the mid-line of body.
A 02 cms x 0.5cms bruise on the right forehead.
A 0 5 cms x 03 cms contusion at the junction of left
shoulder and left arm.
A 06 cms x 06 cms contusion on the left chest.
A 14 ems x 06 ems contusion on the left arm.
A ll cms x 7.5 cms contusion on the lower 1/3" of left
chest.
A 04 cms x 03 cms bruise on the left cubital fossa.
A 2 5 cms x 22 cms contusion on the left side of
abdomen.
A 17 cms x 14 cms contusion on the outer side of left
thigh.
A 12 cms x 10 cms ">" patterned burns wound.
A 6.5 cms post-mortem surgical incision with sutures.
A 20 cms x 18 cms contusion on the left thigh.
A 07 cms post-mortem surgical wound with sutures.
A 30 cms x 20 cms contusion on the left leg.
A 1.5 cms x 1.5 cms scratch abrasion on the outer side of
left ankle.
A 08 cms x 07 cms contusion on the right shoulder.
A 06 cms x 01 cms burns wound on the outer side of
injury no. (17).
A 03 cms x 02 cms bruise on the right side of chest
A 11 cms x 07 cms contusion on the right arm.
13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
A 02 ems x 02 ems bruise on the right side of chest.
A 09 ems x 07 ems contusion on the lower 1/3" of the
right chest.
A 04 ems x 02 ems area of bruise on the right elbow
joint
A 18 ems x 10 ems area of bruise on the right thigh.
A 7.5 ems post-mortem surgical incision with sutures.
A 07 ems x 02 ems scratch abrasion on the right arm.
A 14 ems x 10 ems contusion on the right leg.
A 07 ems post-mortem surgical incision with sutures.
A 13 ems x 1 1 ems contusion on the back ofleft forearm.
A 33 ems x 13 ems contusion on the back ofleft forearm.
A 13 ems x 12 ems patterned (handcuffs) abrasion with
bruising on left wrist
A 17 ems x 14 ems contusion overlying the left buttock
and upper 1/3" of back ofleft thigh.
A 25 ems x 24 ems contusion on the back ofleft thigh.
A 07 ems x 05 cms area of bruising with scratch
abrasion on the back ofleft knee joint.
A 34 ems x 18 ems contusion over the left calf muscle.
A 10 cm x 09 cms area of patterned (ankle cuffs)
abrasion, with bruising and soft tissue swelling.
Bluish-Black discoloration of the outer surface of the
left foot.
A 11 ems x 03 ems contusion on the back of right arm.
A 55 ems x 45 ems area of contusion over the entire
back with multiple, repeated application of heat with a
instrument or object with a triangular surface, causing
multiple "V" shaped imprint burns wounds are in their
healing stages as is evident from the formation of black
crusts and few are infected and covered with purulent
exudates.
A 37 cms x 12 cms contusion on the back of right
forearm.
A 13 cms x 04 ems patterned (handcuffs) abrasion with
bruising on the right wrist.
A 32 cms x 20 cms contusion overlying the right
buttock and the back of right thigh.
A 34 ems x 19 ems contusion over the right calf muscle.
A 07 cms x 04 cms patterned (ankle cuffs) abrasion with
bruising.
Bluish-Black discoloration on the outer surface of the
right foot.
s.g.d
Dr. Prashant N Samberkar
MBSS.MD
Lecturer (Forensic Pathology)
Department of Patholoy
University of Malaya
KUGAN AjL ANANTHAN
HISTOPATHOLOGY REPORT
Aj26j2009
70 tissue samples were taken from the body for microscopic
examination and following are the microscopic findings.
1.
2.
3.
4.
Meninges: sections show normal meninges.
Brain: sections show congested blood vessels.
Brain: sections show congested blood vessels.
Brain: sections show congested blood vessels.
14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
Scalp : sections show hair follicles and subcutaneous
fibro faty tissue and have areas of hemorrhages
confirming the gross findings.
Trachea : sections show muscosal inflammation and
congested dilated blood vessels. Peritracheal faty
tissue shows areas of hemorrhage.
Trachea: sections show normal morphology.
Pericardium : sections show remnants of thymus with
faty tissue.
Pericardium : section show hemorrhage between
pericardium and thymus.
Heart: sections show focal area of hemorrhage in the
epicardial fat and few scattered foci of lymphocytes in
the myocardium.
Left Lung : sections show large areas of pulmonary
hemorrhages and edema and chronic congestion. No
hemosidderin laden macphages.
Left Lung: same - as - above.
Left Lung : same - as - above.
Left Lung : same - as - above.
Stomach : autolysed
Liver : sections show very mild faty change, mild
diffuse sinusoidal congestion and mild lymphocytic
infiltrate in the portal tract.
Liver : same - as - above.
Liver: same - as - above.
Spleen : sections show large areas of hemorrhages with
partial autolysis.
Right Kidney : sections show numerous casts in the
tubules and collecting ducts. There is widespread acute
tubular necrosis and shows that the casts are strongly
positive for myoglobin ( 1 in 30,000 dilutions).
Right Kidney : same - as - above.
Left Kidney : same - as - above.
Left Kidney : same - as - above.
Pancreas : Autolysed
Pancreas: Autolysed
Mysentry : sections show normal faty tissue.
Mysentry : sections show normal faty tissue.
Mysentry : sections show normal fatty tissue.
Mysentry : sections show normal faty tissue.
Mysentry : sections show normal faty tissue.
Right Adrenals: partially autolysed.
Left Adrenals : sections show focal areas of congestion
with partial autolysis.
Urinary Bladder: sections do not show any significant
findings.
Right Testis : sections show normal testicular
morphology
Let Testis: sections do not show any patholoy
Prostate : section show normal prostate morpholoy.
Gall Bladder: Autolysed.
Gall Bladder: Autolysed.
Gall Bladder : Autolysed.
Right Nect Muscle : section show hemorrhage.
Let Forearm Muscle : sections show normal skeletal
muscle.
Right Rectus Abdominus Muscle : section do not show
any pathology.
Left Calf Muscle : section show large areas of
hemorrhages with fatty tissue.
15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
Right Calf Muscle : section show large areas of
hemorrhages with faty tissue.
Left Wrist Skin: sections show inflammatory infiltrate
in the subcutaneous tissue.
Right Wrist Skin : sections show inflammatory infiltrate
in the subcutaneous tissue.
Right Thigh Skin : sections do not show any vital
reaction.
Left Thigh Skin : sections do not sjow any vital reaction.'
Right Foot Skin : sections show mild perivascular
inflammatory reaction.
Left Knee Skin : section show deep areas of
hemorrhages.
Back Skin : sections show denuded epidermal layer of
skin with bacterial growth.
Sections also show
remnants of hair follicles and hair shaft with scattered
inlammatory cells.
Left Back Skin : sections show definite perivascular vital
reaction.
Left Back Skin : sections show definite perivascular vital
reaction.
Right Chest Tissue : sections show henorrhage in the
muscle and fat
Right Chest Tissue : sections show hemorrhage in the
muscle and fat.
Left Lower Back : sections show large areas of severe
hemorrhages in the fat
Let Lower Back : sections show large areas of severe
hemorrhages in the fat
Left Upper Back : sections show large areas of severe
hemorrhages in the fat.
Left Upper Back : sections show large areas of severe
hemorrhages in the fat and muscles with severe
Rabdomyoisis, fragmentation and hemorrhage in
muscle.
Let Upper Back : sections show fat and hemorrhage.
Left Upper Back : sections show large areas of severe
hemorrhages in the fat and fibrofaty tissue.
Left Upper Back : sections show large areas of severe
hemorrhages in the fat and fibrofaty tissue;
Left Upper Back : sections show large areas of
hemorrhages in the fat and fibrofaty tissue with
fragmentation and Rabdomyolsis.
Right Upper Back : sections show areas of severe
hemorrhages in the fat and fibrofaty tissue.
Right Upper Back : sections show areas of severe
hemorrhages in the fat and fibrofaty tissue.
Right Upper Back : sections show areas of severe
hemorrhages in the fat and fibrofaty tissue.
Right Lower Back : sections show areas of severe
hemorrhages in the fat and fibrofaty tissue.
Right back : sections show inlammatory infiltrate with
vital reaction in the upper dermis predominantly
perivascular.
Right Back : sections show inlammatory infiltrate with
vital reaction in the upper dermis predominantly
perivascular.
Right Back : sections show loss of superficial layer of
skin the epidermis with perivascular inflammatory
infiltrate and bacterial growth.
16
1
2
3
4
5
6
7
8
9
10
11
12
s.g.d
Dr. Prashant N Samberkar
MBBS,MD
Lecturer (Forensic Pathology)
Department of Pathology
University of MaJaya
KUGAN AIL ANANTHAN
HISTOPATHOLOGY TISSUE SAMPLES
A/26/2009
ORGAN BLOCKS
Meninges
Brain
Brain
Brain
Scalp
Trachea
Trachea
Pericardium
Pericardium
Heart
Left Lung
Right Lung
Right Lung
Right Lung
Stomach
Liver
Liver
Liver
Spleen
Right Kidney
Right Kidney
Left Kidney
Left Kidney
Pancreas
Pancreas
Mysentrv
Mysenty
Mvsentrv
Mysentrv
Mysentry
Right Adrenals
Left Adrenals
Urinary Bladder
Rght Testis
Left Testis
Prostrate
Gall Bladder
Gall Bladder
Gall Bladder
Right Neck Muscle
Left Forearm Muscle
Right Rectus Abdominus Muscle
Left Calf Muscle
Right Calf Muscle
Left Wrist Skin
Right Wrist Skin
17
CASETSNO,
01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
1
2
3
4
5
6
7
8
9
10
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
70 Casets.
Right Thigh Skin
Left Thigh Skin
Right Foot Skin
Left Knee Skin
Back Skin
Left Back Skin
Left Back Skin
Right Chest
Right Chest
Left Lower Back
Left Lower Back
Left Upper Back
Left Upper Back
Let Upper Back
Left Upper Back
Left Upper Back
Left Upper Back
Right Upper Back
Right Upper Back
Right Upper Back
Right Lower Back
Right Back
Right Back
Right Back
Total
s.g.d
Dr. Prashant N Samberkar
MBBS, MD
Lecturer (Forensic Pathology)
Department of Pathology
Universiy of Malaya
PTJ PERIMEJAN BIO·PERUBATAN
PUSAT PERUBATAN UNIVERSITI
MALAYA
LEMBAH PANTAI
59100 KUALA LUMPUR
TeI:(603)79492091/2526
Fax:(603) 79494603
UNIVERSlTI MALAYA
KUALA LUMPUR
PUSAT PERUBATAN UM
11
12
13
14
15
16
17
18
19
20
Patient
Date of Birth
Request Number
RN Number
Referring Doctor
Examination Date
RADIOLOGICAL REPORT
KUGAN AIL ANANTHAN
30/08/1986
2009012500081
860830435645 / 23877855
25/01/2009
XR BOTH HAND AP/LAT
XR Right Forearm (Radius/Ulna) AP
XR Right Humerus AP
XR BOTH FOOT AP/OBLlQUE
XR BOTH TIBIA FIBULA AP/LAT
18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
XRBOTH FEMUR AP/LAT
XR Pelvis AP
XR Abdomen AP Supine
XR ChestAP Supine
XR Skull AP
Indication
For post mortem examination
Findings
XR (R) & (L) hands - No fracture/dislocation seen. jOint spaces are preserved.
XR (R) & (L) Radius/Ulna - No fracture/dislocation seen.
preserved.
XR (R) & (L) Humerus
-
Joint spaces are
No fracture/dislocation seen.
XR (R) & (L) Foot (AP/Oblique) - No fracture/dislocation seen. JOint spaces are
preserved.
XR (R) & (L) Tibia/Fibula (AP/Lat) - There is a radio opaciy projected over the
subcutaneous area adjacent to the media aspect of the left ankle joint? Significance.
However underlying bones show no fracture. The right tibia and fibula are normal.
XR (R) & (L) Femur (AP/Lat) - No fracture seen.
XR Pelvis: No fracture/dislocation noted.
XR Abdomen (Supine) : faecal laden bowel loops seen.
-
XR Skull (AP) Evidence of craniotomy noted.
CXR (Supine) - Both lungs appear opaque. The right lung is collapsed. Moderate
right pleural effusion seen. Trachea not visualized.
Unable to delineate cardiac border.
No rib fracture noted. Clavicle and spatula are normal.
Drs. Vicky/Yuzairif/Shazriman/Umarani/
PROF.MADYA DR. YANG FARIDAH ABDUL AZIZ
1/25/2009
SIGNED BY
STAFF
RADIOLOGIST
PROF. MADYA DR.YANG
FARIDAABDULAZIZ
10:38AM
RESULT
MODIFIED
PROF. MADYA DR.YANG
FARIDA ABDUL AZIZ
(RAD) PROF. MADYA
DR. YANG FARIDA
ABDUL AZIZ
1/25/2009
6:02 PM
RESULT
MODIFIED
PROF. MADYA DR.YANG
FARIDA ABDUL AZIZ
(MO) DR.UMARANI
ANN RANjIN
SIVARAjAN
1/25/2009
6:00 PM
SIGNED BY
RESIDENT
PROF. MADYA DR.YANG
FARIDA ABDULAZIZ
(MO) DR.UMARANI
ANN RANjIN
SIVARAjAN
1/25/2009
6:00 PM
PRELIM RESULT
PROF. MADYA DR.YANG
FARIDA ABDULAZIZ
(MO) DR.UMARANI
ANN RANjIN
SIVARAjAN
10:38AM
1/26/2009
41
42
19
(RAD) PROF. MADYA
DR. YANG FARIDA
ABDUL AZIZ
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48 .
49
50
51
52
53
54
55
56
Report status SIGNED B Y STAFF RADIOLOGIST I Physician (RAD) PROF.MADYA DR
YANG FARIDAH ABDUL AZIZ
Computer generated report No signature required.
10.
The second defendant was charged at the Session Court
under s.330 and s.331 of the Penal Code for causing grievous
hurt to the deceased. On 28.1.2011, the second defendant
was acquitted and discharged of the charges by the Session
Court without calling him to enter his defence. The
prosecution then appealed against the acquittal to the High
Court. On appeal, the High Court allowed the appeal of the
prosecution and directed the second defendant to enter his
defence and remitted the case to the Session Court. At the
close of the defence case, the Session Court found the second
defendant gUily of the charges, convicted and sentenced him
to three (3) years imprisonment for both the charges to run
concurrently. The second defendant has filed an appeal to the
High Court against the conviction and sentence. The charge
against the second defendant is reproduced:-
PENDAKWARAYA
LAWAN
NAVINDRAN AIL VIYEKANANDAN
(No. KP: RF 141631)
PERTUDUHAN PERTAMA
Kamu didakwa atas kehendak Pendakwa Raya dan pertuduhan ke atas
kamu ialah:
"Bahawa kamu pada 16 Januari 2009 jam 7.00 pagi dibilik soal siasat
pejabat D9, Balai PoHs Taipan, USJ, Subang Jaya, di dalam Daerah
Petaling, dalam Negeri Selangor Darul Ehsan, telah dengan
sengaja
menyebabkan cedera parah kepada Kugan AIL Ananthan (KP : 860803-435645) bagi maksud hendak memeras daripadanya apa-apa pengakuan
bersalah atau apa-apa maklumat yang boleh membawa kepada diketahui
sesuatu kesalahan atau salahlaku; dan oleh yang demikian kamu telah
melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 331
Kanun Keseksaan." (Emphasis by this court).
Hukunan :
Sekiranya disabitkan, hendaklah dihukum dengan penjara selama tempoh
yang boleh sampai sepuluh tahun, d25an bolehlah dikenakan denda.
PERTUDUHAN PILIHAN UNTUK PERTUDUHAN PERTAMA
"Bahawa kamu pada 16 Januari 2009 jam 7.00 pagi, di bilik soal siasat
pejabat D9, di Balai PoHs Taipan, USJ, Subang Jaya di dalam Daerah
Petaling, dalam Negeri Selangor Darul Ehsan, telah
dengan sengaja
menyebabkan cedera kepada Kugan AIL Ananthan (KP : 860803-43-5645)
bagi maksud hendak memeras daripadanya apa-apa pengakuan bersalah
atau apa-apa maklumat yang boleh membawa kepada diketahui sesuatu
kesalahan atau salahlaku; dan oleh yang demikian kamu melakukan suatu
20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
kesalahan yang boleh dihukum di bawah seksyen 330 Kanun
Keseksaan." (Emphasis by this court).
PERTUDUHAN KEDUA
Kamu didakwa atas kehendak Pendakwa Raya dan pertuduhan ke atas
kamu ialah:
"Bahawa kamu pada 16 Januari 2009 iam 4.00 petang, di bilik soal
siasat pejabat D9, di Balai PoHs Taipan, USJ, Subang Jaya, di dalam
Daerah Petaling, dalam Negeri Selangor Darul Ehsan, telah dengan sengaja
menyebabkan cedera parah kepada Kugan AIL Ananthan (P : 860803-435645) bagi maksud hendak memeras daripadanya apa-apa pengakuan
bersalah atau apa-apa maklumat yang boleh membawa kepada diketahui
sesuatu kesalahan atau salahlaku; dan oleh yang demikian kamu telah
melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 331
Kanun Keseksaan." (Emphasis by this court).
Hukuman:
Sekiranya disabitkan, hendaklah dihukum dengan penjara selama tempoh
yang boleh sampai sepuluh tahun, dan bolehlah dikenakan denda.
PERTUDUHAN PILIHAN UNTUK PERTUDUHAN KEDUA
"Bahawa kamu pada 16 Januari 2009 jam 4.00 petang, di bilik soal
siasat pejabat D9, di Balai PoHs Taipan, USJ, Subaug Jaya di dalam
Daerah Petaling, dalam Negeri Selangor Darul Ehsan, telah
dengan
sengaja menyebabkan cedera kepada Kugan AfL Ananthan (KP : 86080343-5645) bagi maksud hendak memeras daripadanya apa-apa pengakuan
bersalah atau apa-apa maklumat yang boleh membawa kepada diketahui
sesuatu kesalahan atau salahlaku; dan oleh yang demikian kamu telah
melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 330
Kanun Keseksaan." (Emphasis by this court).
Hukuman :
Sekiranya disabitkan, hendaklah dihukum dengan penjara selama tempoh
yang boleh sampai tujuh tahun, dan bolehkan dikenakan denda.
11.
The first to the fourth defendants are liable for misfeasance
in he public ofice on the following grounds:(i)
The defendants made repeated and sustained
attempts to cover-up the cause of death of
Kugan all Ananthan and the persons
responsible thereof;
(il)
The defendants refused to allow access to or
inform the plaintiff of the location of the
deceased after his arrest;
(ili)
The circumstances surrounding and the acts
that led to the death of the deceased are as
stated in the foregoing paragraphs;
21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
12.
The deceased was wrongfully imprisoned and deprived of his
libery between 14.1.2009 and 20.1.2009. The defendants
had also denied the plaintiff access to the deceased and the
conduct of the defendants was oppressive, arbirary and
unconsitutional.
2.
The plaintiff has claimed for the following reliefs:(a)
Under Section 7 of the Civil Law Act 1956, damages for the
aforesaid dependant;
(b)
Under Section 8 of the Civil Law Act 1956, damages for the
benefit of the estate of the deceased;
(c)
Damages for assault and battery in the sum of RM50,000.00;
(d)
Damages for false imprisonment for a period of in 7 days the
sum ofRM 10,000,000.00;
(e)
Damages for misfeasance of public office in the sum of
RMIO,OOO,OOO.OO;
()
Aggravated damages in the sum of RMIO,OOO,OOO.OO;
(g)
Exemplary damages in the sum of RMIO,OOO,OOO.OO;
(h)
Vindicatory damages in the sum of RMIO,OOO,OOO.OO;
(i)
Special damages;
0)
A declaration that the defendants had 'willfully and
maliciously breached the fundamental liberties' of the
deceased Kugan a/I Ananthan, as contained in Part II of the
Federal Constitution;
(k)
Interest on the decretal sum at such rate and for such rate
and for such period deemed fit and appropriate by this
Honourable Court;
(I)
Costs; and
(m)
Such further and/or other reliefs deemed just and fit by this
Honourable Court.
22
1
3.
The defendants have denied the plaintiffs claim. By the Statement of Defence dated
2
17.2.2012 (Enclosure 5), the irst, third, fourth and ith defendants have pleaded,
3
inter alia and briely, as follows:-
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
1.
Simati telah ditahan bagi satu siasatan kesalahan jenayah
dan p enahanan simati adalah dibawah peruntukkan undang
undang yang sah.
2.
Defendan pertama menafikan mengeluarkan pernyataan
palsu berhubung sebab kematian simati. Pernyataan sebab
kematian simati oleh defendan pertama adalah berdasarkan
kepada laporan autopsy pertama yang disediakan oleh
Dr. Abdul Karim bin Hj. Tajudin bertarikh 21.1.2009.
3.
Penyiasatan pihak polis telah berakhir apabiJa defendan
kedua telah dituduh di bawah s.330 dan s.331 Kanun
Keseksaan.
4.
Tindakan defendan kedua adalah satu tindakan peribadi
defendan kedua dan bukan dalam tugas rasmi defendan
kedua dan defendan pertama, ketiga, keempat dan kelima
bergantung kepada s.5 dan s.6 Akta Prosiding Kerajaan 1956.
5.
Defendan pertama, ketiga, keempat dan kelima mengakui
bahawa estet simati telah mengalami kerugian disebabkan
kematian simati dan simai telah mengalami kecederaan
semasa dalam penahanan. (tekanan oleh Mahkamah ini).
6.
Kausa tindakan plaintif bagi kecuaian statutori adalah salah
anggap dan salah di sisi undang-undang dan tidak disokong
oleh fakta. Manakala, kausa tindakan untuk penyalahgunaan
kuasa awam (misfeasance in public oice) tidak disokong
oleh mana-mana fakta yang diplidkan dalam pernyataan
tuntutan.
7.
Segala tindakan defendan pertama, ketiga, keempat dan
kelima dalam penahanan reman adalah di bawah satu
perintah Mahkamah yang sah. Permohonan untuk mencabar
perintah reman merupakan satu permohonan jenayah dan
bukan melalui permohonan di Mahkamah Slvil.
8.
Plaintif tidak berhak untuk semua ganti rugi yang dituntut.
23
1
2
4.
By the Statement of Defence dated 29.5.2012 (Enclosure 30), the second defendant
has pleaded, inter alia and briely, as follows:-
3
4
5
1.
Simati telah ditangkap bagi membantu siasatan di bawah
s.395/397 Kanun Keseksaan dan penahanan simati adalah
munasabah (reasonable), teratur (proper) dan mengikut
undang-undang.
2.
Sepanjang temp oh simati ditahan iaitu pada 14.1.2009 hingga
20.1.2009, simati berada dibawah tahanan, jagaan dan
tanggungjawab anggota dan pegawai polis yang berlainan dan
6
7
8
9
10
11
12
13
14
15
idak berada dalam jagaan dan kawalan defendan kedua secara
ekslusif. (tekanan oleh Mahkamah ini).
3.
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
Selepas reman, simati telah ditahan dan disoal siasat di
Pejabat D9 Balai Komuniti Taipan atas arahan pegawai polis
benama D/SL Loh 66501. Oleh yang demikian, kebajikan,
kesihatan dan keselamatan simati adalah dibawah tanggung
jawab D /SL Loh dan bukan defendan kedua. (tekanan oleh
Mahkamah ini).
4.
Semasa dalam tahanan di Balai Polis Taipan, simati telah disoal
siasat selama 24jam setiap hari secara bergilir-gilir oleh
pegawai dan anggota yang bertugas. (tekanan oleh Mahkamah ini).
5.
Semasa simati dalam jagaan defendan kedua:a.
Simati dalam keadaan baik dan tidak
mengalami apa-apa kecederaan;
b.
Defendan kedua tidak menggunakan apa
apa kekerasan atau paksaan terhadap
simati
c.
Defendan kedua tidak pernah secara
sengaja mahupun cuai menyebabkan
kecederaan fizikal dan emosi terhadap
simati
6.
Defendan kedua tidak mempunyai akses atau diberikan
kepada simati pada bila-bila masa sebelum atau selepas
waktu bertugas.
7.
Defendan kedua telah didakwa atas sebab dan asas yang
munasabah di bawah s.330 dan s.331 Kanun Keseksaan
walaupun terdapat bukti bahawa simai telah dikawal dan
disoal siasat secara bergilir-gilir selama 24jam bermula dari
14.1.2009 hingga 20.1.2009. (tekanan oleh Mahkamah ini).
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
5.
The Statement of Agreed Facts as agreed by all the parties are as follows:a.
Plaintif adalah ibu dan pentadbir estet Kugan a/I Ananthan si
mati, beralamat di P2-B-07-10, Apartment Sri Lamel, )alan
Sepakat Indah 3, 43000 Kajang, Selangor dan memuIakan
tindakan ini untuk faedah tanggungan-tanggungan si mati di
bawah S eksyen 7 Akta Undang-Undang Sivil 1956 dan untuk
faedah estet si mati di bawah Seksyen 8 Akta Undang
Undang Sivil 1956. Surat-surat pentadbiran teIah diberikan
kepada plaintif daripada Pendaftar Mahkamah Tinggi di
Kuala Lumpur pada 3hb Ogos 2011.
b.
Defendan pertama adalah pada masa material tersebut
seorang Timbalan Pesuruhjaya Polis dan Ketua Polis
Selangor yang mempunyai bidang kuasa aas, inter alia, Balai
Polis Taipan. (tekanan oleh Mahkamah ini).
C.
Defendan kedua adalah pada masa material tersebut seorang
polis konstabel yang bertugas di Balai Polis Taipan beralamat
di Balai Polis US) 10/1D, 47620 Subang )aya, Selangor
(selepas dari ini dirujuk sebagai "Balai Polis Taipan") pada
masa material tersebut. (tekanan oleh Mahkamah ini).
d.
Defendan keiga adalah pada setiap masa material, seorang
Penolong Pesuruhjaya Polis dan Pegawai Pemerintah Daerah
(OCPD) Subang )aya, Selangor. Defendan ketiga telah
meninggal dunia.
e.
Defendan keempat pada seiap masa material, mengawas dan
mengawal inter alia kakitangan polis yang bertugas di Balai
Polis Taipan dan juga defendan-defendan perama dan keiga
dalam melaksanakan tugas-tugas dan tanggungjawab mereka.
Alamat penyampaian defendan keempat di Ibu Pejabat Polis
Bukit Aman, )alan Bukit Aman, Tasik Perdana, 50560 Kuala
Lumpur. (tekanan oleh Mahkamah ini).
f.
Defendan kelima adalah kerajaan Malaysia dan pada seiap
masa material, majikan dan/atau prinsipal kepada defendan
defendan pertama, kedua, ketiga dan keempat dan juga polis
yang bertugas di Balai Polis Taipan. Alamat penyampaian
defendan kelima adalah di bawah jagaan ) abatan Peguam
Negara, No. 45, Persiaran Perdana, Presint 4, 62100
Putrajaya. (tekanan oleh Mahkamah ini).
g.
Pada atau lebih kurang 14hb )anuari 2009, Kugan a/I
Ananthan, si mati, telah ditangkap oleh anggota polis.
h.
Pada 15.01.2009 si mati telah di bawa untuk perintah reman
di Mahkamah Majistret Petaling )aya dan perintah reman
dikeIuarkan mulai 15 )anuari 2009 sehingga 2 1 )anuari 2009.
25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
i.
Pada 20.01.2009, pada atau lebih kurang 9.00 p.m, seorang
pegawai polis memberitahu kepada plaintif bahawa anaknya,
si mati Kugan a/I Ananthan, telah mati semasa dalam
tahanan polis.
j.
Si mati telah berada dalam ahanan pihak polis dari
14.01.2009 sehingga 20.01.2009. Si mai telah berada dalam
tahan, jagaan dan tanggungjawab anggota dan pegawai polis.
(tekanan oleh Mahkamah ini).
k.
Mayat si mati telah di bawa oleh polis ke Hospital Serdang di
Jalan Puchong, 43000 Kajang, Selangor.
I.
Badan si mati mengandungi tanda-anda pukulan yang luas
dan serius. (tekanan oleh Mahkamah ini).
m.
Satu otopsi telah dijalankan oleh pakar bedah siasat Serdang
Hospital, Dr. Abdul Karim bin Haji Tajudin pada 21.01.2009
lebih kurang 3.00 p.m. Otopsi tersebut (report otopsi
perama) menyenaraikan 22 kategori kecederaan luaran dan
kelukaan yang dialami oleh si mai. Pakar bedah siasat
tersebut walau bagamanapun menyatakan bahawa sebab
kematian tersebut adalah 'pulmonay edemo'. (tekanan oleh
Mahkamah ini).
n.
Plaintif tidak berpuas hati dengan kesimpulan pemeriksaan
otopsi pertama tersebut dan melantik Dr. Prashant
N Samberkar dari Pusat Perubatan Universiy Malaya
(PPUM) untuk menjalankan satu pemeriksaan otopsi kedua
diatas si mati.
o.
Si mai mengalami kecederaan diri yang serius yang
mengakibatkan kemaian. (tekanan oleh Mahkamah ini).
p.
Pada 1.10.2010, defendan kedua telah dituduh di Mahkamah
Sesyen, Petaling Jaya di bawah Seksyen 330 dan 331 Kanun
Keseksaan kerana telah menyebabkan kecederaan parah
kepada si mati.
q.
Defendan kedua telah disabitkan dengan kesalahan tersebut
dan telah dihukum penjara.
r.
Defendan kedua telah merayu ke Mahkamah Tinggi terhadap
sabitan dan hukuman dan rayuan tersebut masih tertangguh
di Mahkamah Tinggi.
26
1
2
6.
The Issues to be Tried as agreed by all the parties is as foIlows:-
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
a)
Sama ada defendan-defendan gagal untuk memastikan
keselamatan, kesihatan dan kebajikan si mati semasa dalam
tahanan polis dari 14.01.2009 hingga 20.01.2009;
b)
Sama ada defendan-defendan gagal untuk menyediakan satu
sistem yang selamat untuk menyoal dan mengendali suspek
dalam tahanan polis;
c)
Sama ada defendan-defendan gagal untuk memastikan akses
untuk simati kepada peguam dan keluarganya atau
memaklumkan kepada plaintif dan keluarganya tentang
lokasi dan keadaan kesihatan si mati;
d)
Sama ada defendan-defendan melaksanakan tugas mereka
dengan cuai, tidak berperhatian dan tidak cekap dengan
tanpa perhatian yang wajar terhadap hak untuk hidup (right
to life), keselamatan dan kesihatan si mati;
e)
Sama ada defendan-defendan gagal untuk memerhati dan
bertindak secara konsisten dengan hak-hak undang-undang
dan perlembagaan ke atas orang yang ditahan.
)
Sama ada plaintif dan estet si mati mengalami kehilangan
dan kerugian (loss and damage) atas kecuaian defendan
defendan dan layak untuk gantirugi seperti yang dituntut
dalam Pernyataan Tuntutan.
For the Second Defendant
1.
Siapakah yang telah menyebabkan kecederaan kepada Kugan
a/I Ananthan semasa beliau berada dalam tahanan polis dari
tarikh beliau ditangkap sehingga ke tarikh beliau meninggal
dunia;
2.
Sama ada defendan kedua orang yang bertanggungjawab
menyebabkan kecederaan kepada Kugan a/I Ananthan
semasa Kugan a/I Ananthan berada dalam tahanan polis dari
tarikh beliau ditangkap sehingga ke tarikh beliau meninggal
dunia.
27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
For the First, third, fourth and Fith defendants
27
At he rial:
28
7.
1.
Sama ada tindakan defendan kedua merupakan tindakan
yang melibatkan tindakan peribadi dan defendan pertama,
defendan ketiga, defendan keempat dan defendan kelima
dilindungi di bawah Seksyen 5 dan Seksyen 6 Akta Pro siding
Kerajaan 1956.
2.
Sama ada defendan pertama, defendan ketiga dan defendan
keempat telah memecah kewajipan statutori yang
menjustikasi satu kausa tort kecuaian di bawah dalam
tindakan ini.
3.
Sama ada defendan pertama, defendan ketiga, defendan
keempat dan defendan kelima dilindungi oleh Seksyen 32(1)
Akta Polis 1967 bahawa segala tindakan berhubung dengan
tahanan reman adalah di bawah perintah Mahkamah yang
sah pihak polis tidak boleh dipertanggungjawabkan atas apa
apa yang berhubungan dengannya.
4.
Sama ada plaintif berhak untuk mendapatkan kesemua ganti
rugi khususnya ganti rugi teladan, ganti rugi teruk dan ganti
rugi "vindicatory" memandangkan tindakan di bawa
mengikut Seksyen 7 dan 8 Akta Undang-Undang Sivil 1956.
Three (3) witnesses had testified on the plaintiffs behalf:-
29
30
31
32
33
34
35
36
37
38
39
40
1.
PWl
-
En. N Surendran a/I K Nagarajan,
An Advocate and Solicitor of the
High Court, Malaya
2.
PWl
-
Pn. N. Indra a/p P. Nallathamby
The plaintiff and the mother of the deceased
PW3
-
Pn. Renuga a/p Subramaniam
The deceased's aunt
3.
8.
The second defendant is the sole witness on his behalf.
41
42
43
44
28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
9.
Six (6) witnesses for 01, 03, 04 and 05 had testified on their behalf:1.
OWl (for defendants 1, 3, 4 and 5)-
Tan Sri Dato' Seri
Khalid bin Abu Bakar
(the first defendant and
the Chief Police Officer of
Selangor at the material
time)
2.
OW2 (for defendants 1, 3, 4 and 5)-
Inspektor Faaezal
bin Monir
(the Pegawai Operasi of
D9, Ibu Pejabat Polis
Daerah Subang jaya at
the material time)
3.
OW3 (for defendants 1, 3, 4 and 5)-
Detektif SubInspektor Loh Voon
Chye
(Penyelia Oetektif at
Balai Polis Taipan a t the
material time)
4.
OW4 (for defendants 1, 3, 4 and 5)-
ASP Rodney Pasla
Haris
(Senior Investigating
Officer of D9 at Ibu
Pejabat Polis Subang
jaya at the material time)
5.
OW5 (for defendants 1, 3, 4 and 5)-
DSP Mohd Marzukhi
bin Mohd Mokhtar
(the Senior Investigating
Officer at Ibu Pejabat
Polis Daerah Petaling
jaya at the material time)
6.
OW6 (for defendants 1, 3, 4 and 5)-
Lans Koperal Mohd
Haizan bin Hamid
(Lans Koperal at Balai
Police Taipan at the
material time)
45
46
47
48
49
29
1
2
Submissions
3
10.
In contesting the plaintiffs claim, the learned Senior Federal Counsel for the irst,
4
third, fourth and fifth defendants (hereinafter referred to as "01, 03, 04 and 05") has
5
submitted, inter alia, and briefly, as follows:-
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
Liabiliy
1.
The second defendant had committed the offence and an
investigation had been carried out with regard to the offence
committed by the second defendant. The second defendant
was then charged and convicted by the criminal court.
2.
From the evidence of DW6, the second defendant had
entered and assaulted the deceased. DW6's evidence has
been accepted by the criminal court.
3.
The second defendant's action was in his personal capacity
(on a frolic of his own) and therefore, D1, D3, D4 and D5 are
protected under s.5 and s.6 of the Government Proceeding
Act 1956.
4.
There was no cover-up by D1 as D2 was charged and
convicted.
5.
The second defendant's allegation that he was only the
'scapegoat' is an afterthought and hearsay on the following
grounds:a.
It was only raised during the trial in the
Civil Court
b.
It was never pleaded in his Statement of
Defence;
c.
It was never raised as part of his defence
during the criminal trial
d.
Investigation has been carried out by the
police.
e.
He was charged and convicted at the
criminal court
30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
Damages
6.
As for the damages claimed by the plaintif, the learned
Federal Counsel for Dl, D3, D4 and DS has submitted as
follows:a.
The plaintiff had failed to prove the actual
amount given by the deceased. Therefore, the
plaintiff is only entitled to get 1/3 for the loss
of support as the reasonable amount that is
RM300.00 (based on 1/3 from RM1000.00) x
16 x 12 RM57,600.00
=
b.
The funeral
expenses
amounting
to
RM9,702.70 is not disputed by 01,03, 04 and
05.
c.
The plaintiff is not entitled for bereavement as
the deceased died at the age of 23 years old
and was unmarried.
d.
For the claim of pain and suffering, it is the
discretion of this court, but the amount should
be around RM10,OOO.OO
e.
Assault and battery could only be claimed by
the deceased himself and cannot be claimed by
the estate or dependency.
.
The plaintiff is not entitled to get damages for
false imprisonment on the following grounds:-
g.
a.
the deceased had been lawfully
remanded by the Magistrate under
s.117 of the Criminal Procedure
Code.
b.
Police are protected under s.32(l) of
the Police Act 1957 for the immuniy
in carrying out their duy.
c.
The deceased was under the custody
of the 09 Police Officer. 01,03, 04
and 05 did not involve in giving such
instruction and is protected under
s.s and s.6 of the Government
Proceedings Act 1956.
d.
Any allegation related to the issue of
lockup must be alleged against the
tortfeasors,
The plaintiff is not entitled for damages for
misfeance of public office, aggravated
damages, exemplary damages and vindicatory
damages as it is not claimable under 5.7 and
s.8 of the Civil LawAct 1956.
31
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
7.
1 1.
h.
The plaintiff has failed to prove special
damages i.e. deceased's belongings which
were lost during the arrest.
i.
There are no lawful recipients to accept the
declaration that the defendants had willfully
and maliciously breached the fundamental
liberties of the deceased. It is not provided
under s.7and s.S of the Civil Law Act 1956.
j.
Costs of RM20,OOO.OO is reasonable
The claim against Dl, D3, D4 and DS be dismissed with costs.
In support of his submissions, the learned Senior Federal Counsel for Dl, D3, D4 and
D5, had referred to the following authorities:-
1.
Yap Ami &Anor v Tan Hui Oang [1 982} 2 MLl 316
2.
Sambu Penas Construction &Anor v Pitchakkaran [1 982}
l MLl269
3.
Section 7 Civil Law Act 1956
4.
Chan Chin Ming v Lim Yoke Eng [1 994} 3 MLl 233
5.
Ali Tan & Ors v Mazlan Bidin &Anor [2012} 4 CLl 736
6.
Takong Tabari v Govenment of Sarawak & Ors [1 996} 5
MLl 435
7.
Esah bte lshak & Anor v Kerajaan Malaysia & Anor [2006}
6 MLl l
8.
Section 8 Civil Law Act 1956
9.
Thangavelu v Chia Kok Bin [1 981} 2 MLl2 77
10.
Madjai Sanusi v Pengarah lmigresen Negeri lohor & Ors
[1 999J 7 CLl 569
11.
Kerajaan Malaysia & Ors v Lay Kee Tee & Ors [2009} 1 CLI
663
12.
Lo Foi v LeeAh Kong & Ors [1998} 1 C] 244 Supp 259
13.
Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors v Karpal
Singh [1 992} 1 MLl 147
32
1
2
3
4
5
6
7
12.
14.
Goh]oon v Kerajaan Negeri]ohor & Ors [1 999] 5 CL] 335
15,
Ahmad ]efri bin Mohd ]ahri @ Md ]ohari v Pengarah
Kebudayaan & Kesenian]ohor & Ors [2010] 3 ML] 145
On the other hand, in contesting the plaintiffs claim against the second defendant,
8
(hereinafter referred to as "02"), the learned counsel for the second defendant had
9
submitted as follows:-
10
11
Liabiliy
12
13
14
15
16
17
18
19
20
21
22
23
a.
The root cause of the deceased's death is the recklessness,
carelessness, negligence or conduct of Dl, D3, D4 and D5.
b.
ASP Rodney Pasla Haris (DW4), Inspector Faaezal bin Monir
(DW2), Inspector Wan Zahurin bin Zaharin and Detective
Sub Inspector Loh Voon Chye (DW3) (hereinafter referred to
as "the superior oficers") were under the control and
command ofDl, D3, 04 and D5 .
c.
The superior oficers had ordered the deceased to be
detained in a building which has no security features and
lockup facilities.
d.
The superior officers had ordered the second defendant and
13 other Iow ranking police oficers who were under their
supervision to interrogate the deceased for 24hours non stop
for 6 days without proper food, drink, rest and sleep.
e.
The superior oficers had authorized the offensive practice to
the deceased's health, well being, legal and constitutional
rights during his detention.
f.
The superior oficers had failed to lodge a police report in
respect of the alleged assault or remedy and were equally
responsible and liable for the deceased's death.
g.
The superior officers had failed to supervise their
subordinates misbehavior and had caused or contributed to
that conduct.
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
33
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
h.
The second defendant did not cause the deceased's death on
the following grounds:i.
The second defendant was never investigated
or charged for murder.
ii.
There was no inquest held into the death of
the deceased
iii.
The second defendant was picked out and
made to face a criminal charge
i.
The deceased died under mysterious circumstances
j.
The deceased's death requires further investigation
k.
The police had rushed to judgment and had engaged into a
conspiracy to frame the second defendant due to massive
public outcry
Damages
13.
I.
The second defendant adopts 01, 03, 04 and 05 submissions
on quantum of damages.
m.
Therefore, the plaintiffs claim against the second defendant
should be dismissed and if liability is found against the
second defendant, 01, 03, 04 and 05 is to be made
vicariously liable to the plaintiff
In support of his submissions, the learned counsel for D2 had referred to the
following authorities:-
33
34
35
36
37
38
39
40
41
42
1.
S, 5 o/the Govenment Proceedings Act, 1956
2.
Clerk & Lindsell on Tors 1 7 Bd. London, Sweet & Maxwell,
1 995 at para. 2-24
3.
Billion Origin Sdn Bhd v Newbridge Networks Sdn Bhd &
Anor (Yap Burgess Rawson Intenational Sdn Bhd, third
party) (2006) 6 ML] 768
43
44
45
46
34
1
2
14.
In support of the plaintiffs claim, the learned counsel for the plaintiff has submitted,
inter alia and briely, as follows:-
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
Liability
a.
Kugan was entirely under the custody, care and
responsibiliy of the defendants. The defendants owe
duy of care to Kugan, the deceased while he was in
custody of the police. Each and every person had the
close proximity to Kugan is responsible to ensure
safety and wellness of him while he was in custody.
b.
The cause of death of the deceased was as a result of
beating by the police personnels at Taipan Police
Station.
c.
Apart from the second defendant, the other
personnel of the police who were in charge of the
custody of the Kugan are also equally responsible for
the injuries sustained by Kugan for the following
reasons:-
d.
i.
DW6 saw the second defendant beating
Kugan only on 16.1.2009;
ii.
45 categories of injuries could not possibly
be caused in one session of beating
iii.
Kugan was under the supervision and close
proximity of the police personnel and must
be responsible for the injuries sustained by
Kugan
The second defendant's tortious act is notfroUe afhis
own on the following grounds:i.
The second defendant was the authorized
personnel to record Kugan's statement,
ii.
The second defendant discharged his
official duy as a police oicer under the
control of Dl, D3, D4 and D5
iii.
The criminal charge against the second
defendant was for causing grievous bodily
harm in order to extract confession from
Kugan
35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
iv.
e.
The second defendant had committed the
said tortious act and D1, D3, D4 and D5 are
vicariously liable for the tortious act of the
second defendant.
D1, D3, D4 and D5 had concealed the truth behind the
death of Kugan on the following grounds:i.
Prior to his death, the Police unlawully,
deliberately and maliciously withheld the
information with regard to Kugan's arrest
from the plaintiff and her family.
ii.
Upon the death of Kugan on 20.1.2009 at
about 9.00am, the plaintiff and her family
members were denied access to the body of
Kugan and were only allowed viewing the
body of Kugan at about 1.00am on
2 1 .1.2009 upon intervention of the lawyers
and opposition politicians.
iii.
D1 had issued a false statement to the
media stating that Kugan 'had asked for a
glass of water and then collapsed and died'.
He then issued another media statement
that the cause of death 'was due to water in
the lungs' despite having full knowledge of
the injuries of Kugan and circumstances of
his death.
iv.
Unoficial meeting was conducted by the
third defendant upon the death of Kugan
and the third defendant had requested
police personel to volunteer to accept the
blame. The second defendant was then
asked to accept the blame on behalf of
everyone in causing injuries to Kugan on
condition his future will be taken care off.
v.
The entire station diary was fabricated to
conceal the truth behind the death of Kugan
vi.
D1 in the cause of the trial made malicious
allegation against the family that the
injuries bore by Kugan could also be
tempered by the family members.
36
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
Damages
.
Loss of Support Kugan's earnings was RM3,000.00
per month and he had contributed RM1,000.00 per
month to the family. As such, the RM1,000.00 is
proven to be the multiplicand in arriving at loss of
support. The multiplier is 16 years as he is 21 years
old at the time of his death. (RM1000.00
(multiplicand) x 12 months x 16 (Multiplier)
= RMl92,OOO.OO).
g.
Funeral Expenses
h.
Pain and Suffering
i.
Assault and Battery
j.
False imprisonment
k.
the police try to cover
up the events connected to Kugan's death. The police
force ought to be more transparent in revealing the
culprit responsible for the death of Kugan. It is
dubious to say that only the second defendant is
responsible for the death of Kugan in the light of
multiple injuries sustained by Kugan. Pray for
RM1 Million for misfeasance in public ofice.
I.
Aggravated damages
-
-
RM9,709.70
the administratrix of the Kugan's
estate is entitle to damages for pain and suffering as
Kugan was tortured continuously for a period of
seven days prior to his death. Pray for RM1 Million
for pain and suffering.
-
Kugan was killed by a tortious
assault and the cause of action survives the death and
remains vested in the estate and the plaintiff
representing the estate is entitled for compulsory
damages. Pray for RM1 Million under this head of
claim
-
the detention was unlawful as
the police did not comply with the lockup rules. Pray
for
RMSOO,OOO.OO
as
damages
for
false
imprisonment.
-
Misfeasance in Public Oice
-
the plaintiff can be awarded
with aggravated damages and entitled to be awarded
in the light of defendant's conduct in failing to make
correction or retraction of media statement given on
21.1.2009 in relation to Kugan's death despite having
full knowledge of the circumstances of Kugan's death.
Pray for a sum of RMSOO,OOO.OO having regard to the
seriousness of the police act in concealing the truth
behind the death of Kugan.
37
-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
15.
the court ought to take into
account not only the interest of the plaintiff but also
the interest of the public as a whole with a view to
ensure public bodies or officials do not act unlawfully
and do perform their public duties properly,
particularly, where the fundamental right of the
citizen is concerned. Pray for RMl Million having
regard to the degree of injuries suffered by Kugan
and attempts of police in concealing the truth behind
the death of Kugan.
m.
Exemplary damages
n.
A declaration and vindicatory damages
o.
The plaintif's claim ought to be allowed and pray for
RM300,OOO.OO as costs.
-
this is to
uphold or vindicate the constitutional rights which
have been contravened. This reliefs is important to
reflect the sense of public outrage, to emphasis the
importance of the constitutional right and the graviy
of the breach and to deter breaches.
-
In support of his submissions, the learned counsel for the plaintiff has referred to
the following authorities:
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
1.
Ashley v Chief Constable of Sussex Police (Sherwood
Intervening) [2008] 2 WLR 975
2.
Sangaiyya Versus State of Tamil Nadu rep. by its Chief
Secretary, Chennai-9 and Others [2011] 1 MLJ 280
3.
Attoney General of Trinidad and Tabago v Ramanoop
[2005] 2 WLR 1324
4.
Section 7 Civil Law Act 1956 (Revised 1972) Act 67
5.
Section 8 Civil Law Act 1956 (Revised 1972) Act 68
6.
Abd Malek bin Hussin v Borhan bin Hj Daud & Ors [2008] 1
MLJ 368
7.
Suzana bt Md Aris (claiming as administrator of the estate
and a dependant of Mohd Anuar bin Sharip, deceased) v
DSP Ishak bin Hussin & Ors [2011] 1 MLJ page 107
38
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16.
8.
Dunlea v. Attoney-General [2000} page 136
9.
S. Anand Versus State of Tamil Nadu rep. by is Secretary
to Government, Department of Home, Chennai-9 and
Others [2012} 5 MLJ 772
10.
Shri D.K. Basu, Ashok .Johri versus State of West Bengal,
State of West Bengal, State of U.P. LNIND [1 996} SC 2177
11.
Comman Cause, A Registered Society v. Union of India &
Ors [1999} 4 LRI 12
12.
Lai Hie Hua v Lim Teong Yu &Anor [2008} MLJU 856
In reply to the list of authorities handed by the plaintiffs counsel on the morning of
16
29.5.20 1 3, learned Senior Federal Counsel for Dl, D3, D4 and D5 relied on his
17
previous submissions and he applied to further submit and submitted inter alia, as
18
follows:-
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
17.
a.
The court ought not to award damages for False
imprisonment, misfeasance of public ofice,
exemplary damages and aggravated damages.
b.
However, the learned Senior Federal Counsel agreed
with the amount claimed for funeral expenses and
parties agreed to RM9, 709. 70 as funeral expenses. He
undertook to send to the court a copy of the order of
the Court of Appeal in both the cases of Borhan bin
Hj Daud & 2 lagi v Abd Malek bin Hussin (Civil
Appeal No.W-01-122-2007) and Suzana bt Md Aris
(claiming as administratrix of the estate and a
dependant of Mohd Anuar bin Sharip, deceased) v
DSP Ishak bin Hussin & Ors (Civil Appeal No. W-Ol402-2009) as this court was informed that there
were no grounds of judgments provided when both
the decisions were given and the appeal was allowed.
c.
As to the costs, the learned Senior Federal Counsel
proposed the a sum of RM20,OOO.00.
As to costs, the learned counsel for the second defendant, had proposed a sum of
42
RM40,OOO.00 in view of the numbers of days the trial had proceeded and the
43
numbers of witnesses who had testified on behalf of Dl, D3, D4 and D5.
44
39
1
18.
On 14.6.2013, this case was called up for further clarification as a result of further
2
submissions and authorities submitted by the learned counsel for the plaintiffs on
3
7.6.2013 and the Senior Federal Counsel on 3 1.52013. Learned counsel for the
4
plaintiff had submitted inter alia and briefly, as follows:-
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
a.
The detention of the deceased become unlawful on the
grounds that:i.
He was detained in an ungazzetted lockup and had
breached the lockup rules.
ii.
Severe assault and battey inflicted were inflicted on
the deceased in the course ofinterrogation.
b.
The application to challenge the legality of detention by
habeas corpus is not relevant to the case as the deceased had
died in police custody. There is no necessiy to challenge the
legality of the detention by was of habeas corpus.
c.
The injuries and unlawful killing took place in the course of
the deceased's detention and investigation by D2 and other
police officers as the degree of the injury sustained by the
deceased shows that the deceased was subjected to
numerous acts of torture by D2 and other personnels of D9 of
Taipan Police Station.
d.
The entry in the station diary was clearly fabricated by all
personnels of D9 of Taipan Police Station including D2. This
could not be done without sanction
e.
There is no case law that the plaintiff cannot claim for
exemplay damages under s.7 of the Civil Law Act, 1956 since
the plaintiff has claimed as the dependent ofthe deceased.
f.
A copy of the grounds of judgment of the Court of Appeal in
Borhan bin Hj Daud & 2 lagi v Abd Malek bin Hussin (Civil
Appeal No. W-Ol·122-2007) which is dated in 25.3.2010 did
not decie on the award for exemplary damages.
40
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
19.
20.
Learned counsel for the plaintiff has referred to the following additional
authorities:1.
Rajeshkanna Marimuthu v Tn. Hj. Abd Wahab Hj. Kassim
(2004) 5 CLI 328
2.
Sunil Batra v Delhi Administration (1 978) Cri LI 1 741
3.
Three Rivers District Council & Ors v Bank of England
(2001) 2 ALL ER 513
4.
In the High Court of Sabah dan Sarawak at Kuching Suit
No. 22-218-98-11, Riga Sdn Bhd v Hj Awang Sepian & 2
Ors.
Learned co- counsel, Mr. Bani Prakash for the plaintiff informed this court on
17
14.6.2013 that a copy of the Grounds of judgment dated 25.3.2010 in Borhan bin Hj
18
Daud & 2 lagi v Abd Malek bin Hussin (Civil Appeal No. W-01-122-2007) was only
19
discovered when a search was done by the plaintiffs solicitors at the Registry of the
20
Federal Court in reference to the Notice of Motion for leave to appeal to the Federal
21
Court against the decision of the Court of Appeal given on 25.3.2010.
22
23
DECISION
24
25
1.
Having heard and seen the witnesses closely giving evidence and having examined,
26
considered and evaluated the totaliy of the written and oral evidence with the
27
documentary evidence which were admitted and upon considering the submissions
28
with the authorities and the research carried out by this court, the decision ofthis
29
court is:-
30
31
2.
Briefly, the plaintiffs claim arose out of the death of her son, named Kugan a/I
32
Ananthan, (deceased) who died on 20.1.2009 at about 9 .00am at Taipan Police
33
Station. The deceased was arrested on 14.1.2009 by a team of police oicers from
34
Taipan Police Station upon the instruction of Inspector Faaezal bin Monir (DW2). He
35
was detained at Taipan Police Station, in the district of Subang jaya from 15.1.2009
36
until his death on 20.1.2009 for investigation for alleged offence under s.395 and
41
1
s.397 of the Penal Code. The plaintiff or the family members of the deceased were
2
not informed of the whereabout of the deceased or that he was detained at Taipan
3
Police Station, from the time of his arrest on 14.1.2009 but only after his death on
4
20.1.2009. As stated, the family of the deceased was only informed of the deceased's
5
whereabout after his death at the Taipan Police Station on 20.1.2009 at about
6
9.00am.
7
8
3.
The assault and battery was committed by D2 on the deceased on 16.1.2009 at
9
about 7.00am and it was witnessed by Lans Koperal Mohd Haizan bin Hamid (DW6).
10
However, the incident of assault and battery on 16.1.2009 at about 7.00am or
11
between 4.00am to 8.00am was not recorded in the station diary (Exhibit D23 [Dl,
12
D3, D4 and DS]). For the purposes of this case, this court is unable to accept and it
13
cannot be regarded as the only incident and consequently, limit the injuries found
14
on the deceased and the cause of death to that particular incident committed by D2.
15
The exernal injuries as stated in the first post mortem report (Exhibit P7) and both
16
the external and internal injuries as stated in the second post mortem report
17
(Exhibit PS) speaks of volume upon considering the totality of the evidence. This
18
court finds the evidence of D1 (DW1), Sub Inspector Loh Voon Chye (DW3), ASP
19
Rodney Pasla Haris (DW4) and Lans Koperal Mohd Haizan bin Hamid (DW6)
20
contradictory, unreliable and inconsistent.in several material aspects of the case.
21
22
4.
Having taken into consideration the totality of the evidence, the reasonable
23
inference to be drawn under the circumstances is that, there has been a systematic
24
series of assault and battery which had proceeded and continued over the period of
25
the deceased's detention and possibly had continued after the assault and battery on
26
the deceased on 16.1.2009 at about 7.00am (between 4.00am till 8.00am) as
27
witnessed by DW6 until his death on 20.1.2009. The grievious injuries on the
28
deceased could not have been caused by D2 only but possibly by other officers and
29
policemen who had access and assigned to interrogate the deceased in accordance
30
with their duty roaster. This court is unable to accept that the injuries inflicted on
31
the deceased and supported by the post mortem reports, particularly, when the
42
1
second post mortem is taken into account that it was caused solely by D2 on
2
16.1.2009 at about 7.00am or between 4.00am till 8.00am but must necessarily have
3
been caused by other officers or policemen assigned to interrogate the deceased in
4
accordance with their shift duties under the pretext of 'intensive inteogation'. On the
5
totality of the evidence, this court find there is considerable persuasive force in the
6
submissions of learned counsel for the plaintiff that this case has disclosed a
7
systematic ill treatment, torture and grievious injuries inlicted on the deceased
8
which had caused his death on 20.1.2009 for which the defendants must be found
9
liable.
10
11
5.
On the factual matrix and the circumstances of the present case, this court finds that
12
the deceased died while he was in the police custody at the Taipan Police Station;
13
due to the grievious injuries inflicted on him as a result of custodial violence during
14
his detention between 15.1.2009 until his death on 20.1.2009. The findings of the
15
Pathologist, Dr. Prashant N Samberkar with regard to the second post mortem
16
report that the deceased suffered 45 external wounds all over the body, and found
17
several internal injuries and his findings on the cause of death would further
18
corroborate the plaintiffs case that the deceased was brutally assaulted and
19
tortured not just by one officer or D2 alone or due to the one isolated incident, of
20
the tortious act that had occurred on 16.1.2009 at about 7.00am or on the two
21
occasions namely, at 7.00am and 4.00pm on 16.1.2009 as contained in the charges
22
against D2 at the criminal trial, (where D2 had been found gUilty and convicted of
23
the criminal offence) but series of assault and torture during the period of his
24
detention. D l who was then the Chief Police Officer of Selangor and D3 as the OCPD
25
of Subang Jaya, now deceased, must take responsibility and cannot be permitted to
26
plead ignorance or disclaim knowledge and place the entire blame for the cause of
27
the deceased's death on D2 as that would be mischievous, unacceptable and against
28
the weight of the evidence. (Rule 3 of the Lockup Rules 1 953). In fact, Dl has
29
reiterated that he had directed investigation to be carried out and had limited the
30
investigation to an offence under s.330 of the Penal Code and it was only against D2.
31
Therefore, the contention by learned Senior Federal Counsel for Dl, D3, D4 and D5
43
1
that the act of D2 was a folic of his own' in order to escape vicarious liabiliy is
2
unacceptable and ought to be rejected. In any event, even if the cause of the
3
deceased's death is related to the tortious act committed by D2, which in the
4
considered view of this court cannot be the case on the totality of the evidence, this
5
court cannot absolve Dl, D3, D4 and D5 from liabiliy when considering the totality
6
of the evidence.
7
8
6.
Be that as it may, notwithstanding the assault and battery by D2 on 16.1.2009 at
9
about 7.00am as witnessed by DW6 and the particulars of the offence as contained
10
in the first charge, in respect of the criminal case, this court finds there are
11
compelling reasons to find that the entries recorded in the station diary (Exhibit
12
D23[D1,3,4,5]) between 15.1.2009 till 16.1.2009 and thereafter from 16.1.2009 till
13
the deceased died on 20.1.2009 is a fabrication and a dishonest act on the part of
14
the oficers or policemen who had recorded in the station diary that the deceased
15
was in good health ('da/am keadaan baik1 is a criminal offence for which no action has
16
been taken against the officers or policemen. The false entries recorded in the
17
Station Diary demands thorough and detailed investigation to be carried out against
18
all the oicers who had made and abetted the false entries from 15.1.2009 till
19
20.1.2009, especially, when there is admission by D1 that there was no formal
20
departmental enquiry or an inquest held for reasons best known to Dl and D3 and,
21
his officers. In this respect, it is important to state that the evidence adduced at the
22
criminal trial must be confined to the date and time framed against D2 as per the
23
charge and evidence involving other officers or incidents of other dates between
24
15.1.2009 till the deceased's death on 20.1.2009 could not have been successfully
25
admitted in that trial. Merely framing a criminal charge against D2 alone for an
26
offence under s.330 and. S.331 of the Penal Code does not relect the reality of what
27
had happened to the deceased during the period he was in police custody,
28
especially, when considering the grievious injuries found on the deceased and the
29
inconsistent entries as found in the station diary. The entries in the station diary did
30
not relect the true position, particularly, the entries made after 16.1.2009 till his
31
death on 20.1.2009. The cumulative effect of the cause of death as contained in the
44
1
second post mortem report and all this conduct would show that the entries made
2
in the station diary, particularly, between 16.1.2009 till 20.1.2009 cannot be the
3
true state of affairs as to the physical and mental condition of the deceased.
4
Therefore, Dl, D3, D4 and D5 cannot disclaim liability or plead ignorance by
5
contending that since D2 was charged in court for the criminal offence, the police
6
authorities had completed their investigation on the cause of death of the deceased
7
which is not the case, and is an attempt 'to pool the wool over the eyes' of this court.
8
Dl had admitted that the investigation which he had directed to be carried out
9
under s.330 of the Penal Code was not for the purposes of finding out the cause of
10
the deceased's death but for the criminal act committed by D2 on 16.1.2009 where
11
he had said and Dl's evidence is reproduced:-
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
Peguam Plaintif:
Jadi Tan Sri setuju dengan saya memandangkan tidak ada apa-apa siasatan
dibawah Seksyen 302 atau 304 Kanun Keseksaan, maka tidak diketahui
apakah yang telah menyebabkan kenatian Kugan semasa beliau berada di
dalan tahanan polis.
DW1:
Siasatan terhadap Navin telah dibuka di bawah Seksyen 330 Yang Arif bukan
dibawah 302 atau 304. Kita di dalam kes ini, kita tidak mencari or3ng yang
membunuh Kugan. (Emphasis by this court).
Peguam Plaintif:
Jadi yang nenbunuh Kugan adalah tidak diketahui sehingga hari ini,
betul?
DW1:
Yang Arif, tidak ada keterangan yang nenunjukkan dia dibunuh sebab itu
tidak ada kertas siasatan dibawah 302 dibuka.
Peguam Plaintif:
Tan Sri, adakah sebab-sebab tertentu disebabkan sekarang, Defendan
Kedua berdepan dengan satu pertuduhan di Mahkanah Sesyen dan kini
beliau berdepan dengan satu tuntutan di Mahkanah Tinggi berkenaan
dengan kematian Kugan. Adakah terdapat apa·apa sebab tertentu
mengapa pihak polis tidak menbuka apa-apa siasatan di bawah Seksyen
302 dan 304 sedangkan telah berlaku satu kenatian? Sudah berlaku satu
kenatian, sepatutnya dibuka jika pihak polis ingin tahu siapakah yang
menyebabkan siapa menyebabkan kematian ini, sepatutnya dibuka satu
sisatan dibawah Seksyen 302 and 304 tapi tidak dibuka. Adakah sebab
tertentu mengapa di dalan kes ini kenapa tidak dibuka siasatan dibawah
Seksyen 302 dan 304?
DW1:
Yang Arif, sebab tidak ada keterangan menjuruskan bahawa simati ini
dibunuh untuk kita nembuka siasatan dibawah 302 atau 304.
45
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
Peguam Plaintif:
Tadi Tan Sri l(ata siasatan telltang Ites kenatiall Kugan tnt diklaslfikasikal1
sebagai seksyen 330 Kanun Keseksaan. (Emphasis by this court).
DWl:
Sukan kes kematian Kugan, tetapi siasataD terhadap salab laku polis dalan
Ites Kugan into (Emphasis by this court).
Peguan Plaintif:
Saya terpaksa cadangkan kepada Tan Sri, Tan Sri boleh sahkan atau tidak
pada 23.1.2009, Peguan Negara sendiri telah nengeluarkan kenyataan
awan dan penyataan kes kenatian Kugan akan diklasifikasikan di bawah
s.302 Kanun Keseksaan.
DWl:
Saya ingat, ya.
Peguan Plaintif:
)adi apa penjelasan Tan Sri Kbalid? Pegllan Negara sendiri telah keluarkan
dengan kenyataan awam.
DWl:
Perkara ini telah kita bawa kepada Peguam Negara dan dia setuju untuk
siasatan dijalankan di bawah 330 dan bukan 302.
Mahkanah:
Tadi peguam tanya ada arahan dari Peguam Negara, kertas siasatan dibuka
di bawah s.302
Plainiffs counsel interjected:
"Kenyataan oleh Peguam Negara Sendiri"
Mahkanah:
Dinyatakan bahawa siasatan dibuka di bawah Seksyen 302. Adakah
arahan, Peguam Negara seperti dikatakan oleh peguam plaintif bahawa
satu siasatan akan dibuka di bawah Seksyen 302 Kanun Keseksaan
DWl:
Ada
Mahkanah:
Telah dipatuhi? Ada dibuka kertas?
DWl:
Tidak dibuka.
Mahkamah:
Tidak dibuka? So tidak dipatuhi arahan Peguam Negara?
DWl:
Bukan tidak dipatuhi. Selepas dia membuat pengunuman itu, pegawai saya
telah berunding dengan pihak Peguam Negara supaya siasatan tidak
dilakukan di bawah 302 teapi di bawah Seksyen 330 dan pendakwaraya
bcrsctuju dan itu sebabnya kita membllka siasatan di bawah 330.
(emphasis by this court)
Mahkamah:
Pada masa arahan diterima, siasatan telahpun dijalankan di bawah
Seksyen330 is it?
46
1
2
3
4
5
6
OWl:
Saya. Lepas ia berul1ding balik dengan Peguam Negara, mereka
bersetuju supaya Idta meneruskan siasatan di bawah 330. (Emphasis by this
court).
7.
The deceased was detained for investigation in respect of theft of a motorcar
7
pursuant to a lawful remand warrant granted by the Magistrate of the Magistrate's
8
Court, Petaling jaya under s.117 of the Criminal Procedure Code. However, the
9
remand warrant was abused where the deceased who was taken in police custody
10
pursuant to the lawful remand warrant was beaten and assaulted by police oicers
11
or policemen who had access to the deceased during the intensive interrogation and
12
the grievous injuries must have been deliberately inflicted on the deceased as
13
shown by the post mortem report. Consequently, the detention must be unlawful
14
and necessarily result in false imprisonment as the purpose of the remand warrant
15
had been abused to such an extent that grievous injuries were inflicted on the
16
deceased by the policemen while the deceased was in police custody which had
17
resulted in the deceased's death. It is important to stress that the plaintiff is not
18
questioning the validiy of the remand warrant which at the time had been obtained
19
lawfully but the challenge is on the subsequent events when the tortious act were
20
committed and grevious injuries were inlicted on the deceased under the pretext of
21
using the lawful remand warrant and which had resulted in the death of the
22
deceased. If the lawful remand warrant is subjected to abuse and the abuse was to
23
such an extent that there is an element of criminal and tortious acts having been
24
committed during the period of his detention as it happened in the present case,
25
which had resulted in the deceased's death, then the detention, as contended on the
26
plaintiffs behalf would become unlawful. Accordingly, the detention would result in
27
false imprisonment and the plaintiff is entitled to damages when death occurs in
28
police custody as it has, as a matter of fact in the present case.
29
30
8.
It is important to observe that it is not only to the deceased's family and the public
31
at large that the police officers and the defendants are responsible, but they are also
32
responsible and answerable to the court under whose remand order the deceased
33
was held in police custody to carry out investigation in a lawful manner against the
47
1
deceased who was suspected of committing theft and surely not to inflict grievious
2
injuries or to cause death to the deceased as it happened in the present case. In this
3
respect, a police officer or for that matter an Investigating Oicer who is able to
4
persuade a Magistrate to exercise his or her discretion to grant the remand warrant
5
under s. 1 1 7 of the Criminal Procedure Code is subsequently found to have abused
6
his or her power and use the remand warrant to cause injuries or death to the
7
suspect, in the present case, the deceased, it may tantamount to contempt of court
8
because the remand warrant was issued by the Magistrate for a lawful purpose as
9
provided under the law, namely, s.117 of the Criminal Procedure Code but however,
10
if it is found the remand warrant which is a judicial order obtained by an
11
investigating officer from
12
answerable to the Magistrate and may tantamount to committing contempt of court.
13
In fact the remand warrant dated 15.1.2009 issued by the Magistrate of the
14
Magistrate's Court Petaling Jaya had directed the deceased to be detained at the
15
police lockup Petaling Jaya and not at the Taipan Police Station which admittedly
16
did not have a lockup, be it any lockup or gazetted lockup. Therefore, and on the
17
factual matrix of this case, this court finds there is a course of action of action for
18
false imprisonment which the defendants are liable to the plaintiff. Accordingly,
19
s.32(1) of the Poice Act 1967 does not assist the defendants as the acts committed
20
was not done in obedience of the remand warrant issued by the Magistrate.
a
magistrate is abused, the investigating officer may be
21
22
9.
While it is not the function of this court to take upon itself and direct on the manner
23
as to how the interrogation, investigation and operation and management of police
24
stations or lockups should be handled or supervised, but, that does not mean that
25
this court must abdicate its judicial function and seen to be wearing blinkers despite
26
the glaring evidence that the cause of the deceased's death in the police custody was
27
caused by brutal and unlawful act by police oicers or policemen assigned and
28
entrusted with responsibility to interrogate or investigate a crime under the pretext
29
of having obtained a remand warrant. In this respect, it is important to stress that
30
when this court considers the evidence produced against the police oficers who
31
were responsible for the tortious act resulting in the custodial death, it does not do
48
1
so with a confrontational mind but only to ensure that the statutory duty entrusted
2
to police officers are strictly complied and the due observance of the 'rule of law' and
3
to protect the victims against violation of their basic and fundamental rights and to
4
assist in the realization of the fundamental constitutional justice. 'Custodial torture or
5
death' is a naked violation of human dignity and degradation which destroys, to a
6
very large extent, the individual personality. It is a calculated assault on human
7
digniy and whenever human dignity is wounded especially when it occurs in a
8
police lockup or station and committed by the police oicers who are in charge of
9
the law and order, "civilization takes a step backward -lag of humaniy must on each such
10
occasion ly ha-mast".
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
In D.K. Basu v State of West Bengal AIR (1 997) S.C. 610 at p. 615, the
Supreme Court said:"Tortures in police custody, which of late are on the increase,
receive encouragement by this type of an unrealistic
approach of the Courts because it reiuforces tbe belief iu the
mind of the police hat no harm would come to hem if an odd
prisoner dies in the lockup, because there would hardly be
and evidence available to the prosecution to directly implicate
hem with the torture. The Courts, must not loose sight o f the
fact that death in police custody is perhaps on of the worst
kind of crime in a a civilised society, governed by the rule of
law and poses a serious thereat to an orderly civilised
society. (Emphasis by this court).
The Courts are also required to have a change in their outlook
and attitude, particularly in cases involving custodial crimes
and they should exhibit more sensitivity and adopt a realistic
rather than a narrow technical approach, while dealing with
the case o f custodial crime s o that as far as possible within
their powers, the guilty should not escape s o that the victim of
crime has the satisfaction that ultimately the Majesty o f Law
has prevailed.
Police is, no doubt, under a legal duty and has legitimate
right t o arrest a criminal and to interrogate him during the
investigation of a an offence but it must be remembered that
the law does not permit use of third degree methods or
torture of accused in custody during interrogation and
investigation with that view to solve the crime. End cannot
justiy the means. The interrogation and investigation into a
crime should be in true sense purpose full to make the
49
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
investigation effective. By torturing a person and using their
degree methods, the police would be accomplishing behind
the closed doors what the demands of our legal order forbid.
No. society can permit it.
How do we check the abuse of police power? Transparency of
acion and accountabiliy perhaps are two possible safeguards
which this Court must insist upon. Attention is also required
to b e paid to properly develop work culture, training and
orientation of police force consistent with basic human
values. Training methodology of the police needs
restructuring. The force needs to be infused with basic
human values and made sensitive to the Constitutional ethos.
Efforts must be made to change the attitude and approach of
the police personal handling investigations so that they do
not sacrifice basic human values during interrogation and do
not resort to questionable form of interrogation. With a view
to bring in transparency, the presence of the counsel of the
arrestee at some point of time during the interrogation may
deter the police from using third degree methods during
interrogation." (Emphasis by this court).
10.
On the claim of tort of misfeasance, this court finds, there is suicient evidence to
find the tort of misfeasance against the Dl and D3 on the following grounds:-
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
a.
First, there is evidence that D1 had never at any time
clarified or corrected his previous statement as to the cause
of death of the deceased to the media on 20.1.2009 and
21.1.2009 as contained in The Star and Ma/aysiakini.
b.
Secondly, the tortious act was committed by D2 and/
possibly by other oficers who had access to the deceased on
15.1.2009 till the deceased's death on 20.1.2009. D1 and D3
could not plead ignorance and disclaim knowledge as to the
grievious injuries that have been inflicted on the deceased
during the period of his detention and this inaction
tantamount to abdicating their public duy and attempting to
protect the officers and the policemen who had committed
tortious act on 15.1.2009 until the deceased's death on
20.1.2009 where no departmental enquiry was held or any
inquest to inquire into the death of the deceased. (Rule 3 of
the Lockup Rules 1 953).
50
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
c.
Thirdly, there has been no disciplinary action taken against
oficers who had made and abetted entries in the station
diary every four hours of their rotation duy between
15.1.2009 till 16.1.2009 and between 16.1.2009 and
20.1.2009. The entries which have been found to be false it
must have been made with the knowledge or instructions of
the superior officers in charge of the Taipan Police Station.
d.
Fourthly, the entries in the station diary by the oicers
during rotation of their duty every four hours have been
found to be inconsistent and flies on the face of the grievous
injuries found in both the post mortem reports.
e.
Fithly, there are compelling reasons and inference to be
drawn that the tortious act committed on the deceased, be it
by D2 or other oficers responsible was condoned by the
officers in charge of the police station and could not have
been so openly and boldly written the false entries without
the knowledge of the oicers. The entries must have been
made with the knowledge of Sub Inspector Loh Voon Chye
(DW3), D3 and ASP Radhuan and other oficers or policemen
who had made the entries between 15.1.2009 until the
deceased's death on 20.1.2009.
f.
Sixthly, there is clear admission by DW6 that although he
claimed to have witnessed the assault and battery committed
by D2 on the deceased on 16.1.2009 ater hearing the
deceased's scream, he did not enter the incident of assault
and battery by D2 in the station diary. In fact he had still
continued to write that the deceased was 'dalam keadaall baik'.
g.
The grievous injuries found on the deceased as contained in
both the post mortem reports, particularly, the second post
mortem report could not have been inlicted as a result of the
assault and battery by D2 alone on 16.1.2009 but it must
have occurred over the period of his detention by a series of
assault and battery, be it by D2 and or the other oicers who
had access to the deceased.
h.
The particulars of the charge expressly states that the serious
injuries which was inflicted on the deceased was to obtain
confession which confession was for the beneit of the
defendants to implicate the deceased with the offence for
which he was suspected to have committed.
i.
Admittedly, there is a breach of the Lockup Rules 1953, as
the Taipan Police Station did not have lockup or a gazzetted
lockup.
51
1
2
3
4
5
6
7
8
9
10
11
12
13
14
11.
j.
The remand warrant which was obtained rom the
Magistrate for the purposes of investigation has been
subjected to abuse of power and wih intent to harm he
deceased involving malice, knowledge and intention and had
caused grievous bodily injuries on the deceasaed which had
caused his death.
k.
There has been unlawful act in the exercise of power of
public oficer as an abuse of power and the injuries were
inflicted in bad faith, the tortious act had caused the death of
the deceased.
Departmental enquiry or an inquest was necessary so as to ensure that all relevant
15
facts are fully, fairly and fearlessly' investigated and all the relevant facts discovered
16
are exposed to public scrutiny. In he circumstances, it cannot be disputed that
17
whatever investigation, if it was carried out as to how the deceased came about his
18
death would have been 'superficial and slipshod'. Merely changing the duties of officers
19
responsible for the interrogation of the deceased during the custodial period which
20
had resulted in his death to a desk job, with respect, is a mechanical and routine
21
kind of departmental action, if at all it is a departmental or disciplinary action which
22
is ineffective and tantamount, with respect, to hoodwink the deceased's family and
23
members of the public to show that action had been taken against the officers
24
responsible which in fact is ineffective and unreasonable. The action is if at all it was
25
taken to transfer the officer or officers to desk job is irreconcilable when
26
considering the chronology of events and upon considering the gravity of the
27
tortious act and the non-disclosure or suppression of material evidence as stated
28
above. Such mechanical method or routine action even if it is accepted as a
29
disciplinary action, flies in the face of or appears to run flatly counter to the
30
seriousness of the brutal attack and the nature of the grievous injuries inflicted on
31
the deceased and the cause of death as found and contained in the post mortem
32
reports. (5.74, 5.78 o/ the Poice Act, 1967). Further, the entries that had been made in
33
the station diary by the oficers who were on routine 4 hourly duty did not relect
34
the true state of the deceased's physical condition and the fact that the family
35
members were not informed of the where about of the deceased that he had been in
36
police custody after his arrest on 14.1.2009 and subsequently detained at the
52
1
Taipan Police Station until he was found dead on 20.1.2009. The family or the
2
deceased was only informed that the deceased was in police custody at Taipan
3
Police Station after the deceased was found dead on 20.1.2009.
4
5
12.
Therefore, all these matters aforesaid required full investigation and should have
6
been fully explored so as to ascertain the flaws and to eliminate recurrence of such
7
unlawful act by police officers. It is no excuse or defence to say that since the second
8
accused has been charged at the Session Court for a criminal ofence under s.330
9
and s.331 of the Penal Code, there is no requirement or purpose for a departmental
10
enquiry or for that matter, at the very least, there ought to have been an inquest as
11
provided under the Criminal Procedure Code. The reason given for not conducting a
12
departmental enquiry or recommendation for an inquest is not reasonable and is
13
based on a frivolous ground and with respect, coming from the State Chief Police
14
Officer cannot stand scrutiny when considering the factual matrix of the present
15
case. Failure on the part of the superior police oicers in the present case, be it, D1
16
and D3 to recommend departmental enquiry or an inquest is not open to rationality
17
in terms of responsibility and public duty. A Coroner's inquest is conducted in a
18
transparent fashion to ascertain and ensure that the controversial death, as in the
19
present case, were independently and fully investigated in a public forum and it
20
would be a flexible process. CR v Inner West London Coroner Ex-p Dallaglio (1 994) 4
21
ALL ER 139, R (Middleton) v West Somerset Coroners (2004) 2 AC 182).
22
23
13.
The nature and scope of the criminal trial against D2 and a formal diSciplinary and
24
departmental enquiry and an inquest has different and separate functions.
25
Therefore, the fact that D2 had been charged for an offence under s.330 and s.331 of
26
the Penal Code for the incident on 16.1.2009 is not a good ground to dispense with
27
formal diSciplinary and departmental and enquiry or an inquest which would
28
prevent recurrence of such fatality. Had an inquest or department enquiry been
29
held, it could have been directed to an investigation agency to ascertain 'by what
30
means the deceased came by his death or how the deceased came by his death and when and
31
how the injuries were inlicted and whom and how both the intenal and extenal injuries as
53
1
found in the post mortem reports' could have been determined. Being complacent by
2
merely framing a criminal charge under s.330 and s.331 of the Penal Code against
3
D2 alone in respect of the incident on 16.1.2009 is not sufficient to deal with the
4
cause of death of the deceased which flies in the face of several injuries and the
5
findings of the Pathologist which no doubt must have been to quieten the public
6
outcry that there was supposedly no cover up . . In a cases of a custodial death and
7
where the deceased is found to have died as a result of the injuries inflicted on him
8
voluntarily and as a deliberate act, it calls for a full departmental enquiry or at the
9
very least an inquest provided under the Criminal Procedure Code and nothing less
10
or short of that will eliminate the distrust and conidence in the police officers that
11
'something was rotten' at Taipan Police Station between 15.1.2009 until the time of the
12
deceased's death on 20.1.2009 and to assert and testiy in court that there was no
13
cover up is another attempt to ask this court to cover up the evidence in court which
14
has to be rejected outright as it is against the weight of the evidence.
15
16
17
18
In Ashley v Chief Constable of Sussex Police [2007J 1 WLR 398,
Lord Newberger of Abbotsbury observed:
19
20
21
22
23
24
25
26
27
28
29
30
31
Unfortunately, none of this course as in Ashley v Chief Constable of Sussex Police was
32
taken by the police authorities in the present case.
a.
There were two inquiries into the shooting of
the deceased, one was carried out by an
independent police force under the Police Act
1996 and the other by the Sussex police
authority itself for the benefit of the
deceased's family.
b.
There was also an unqualified public apology
to the deceased's family delivered in person
by the Chief Constable and the Chairman of
the authoriy.
33
34
35
54
1
14.
In so far as this court is concerned, it is plain and simple that had only the plaintiff
2
not been able to have the second post mortem conducted on the deceased and
3
obtain the said post mortem report through the timely intervention of Mr. N.
4
Surendran (PW1), the truth of the deceased's physical condition and the cause of
5
death would not have surfaced or come to light and probably swept below the 'blue
6
carpet' and that would have resulted in a black day for justice. If 01 had genuinely
7
intended to be transparent in his action and there was no cover-up as he seems to
8
have repeatedly said to the media, surely, he should have been the first person to
9
initiate detail investigation to inquire into the cause of the deceased's death which
10
occurred on 20.1.2009 at Taipan Police Station and not wait until the plaintiff had
11
lodged the police report on 21.1.2009 and be selective in his action. Further, 01
12
should have taken the initiative to clariy his previous two statements to the media
13
as to the cause of the deceased's death. In addition, this court inds that 01 had
14
also:-
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
a.
Unilaterally and arbitrarily directed to open up investigation
papers under s.330 of the Penal Code which has no direct
relevance to the cause of death of the deceased.
b.
Further and admittedly, D1 had through the assistance of D3
managed to persuade the Attorney General to confine the
investigation for an offence under s.330 and not s.302 of the
Penal Code when the investigation ought to have been
commenced under s.302 or at leaast s.304 of the Penal Code.
c.
As admitted by Dl, the Attorney General had directed that
the investigation with regard to the deceased's death be
carried out under s.302 of the Penal Code. However, D1 had
testified that upon negotiaion with the Attorney General, the
investigation was confined to s.330 of the Penal Code.
(EmphasiS by this court).
d.
Despite the grievous nature of the injuries inflicted on the
deceased and the cause of death of the deceased as found by
Dr Prashant N. Samberkar the Pathologist, D1 had arbitrarily
and at his whim and fancy directed investigation to be
carried out under a lesser offence under s.330 and not even
s.331 of the Penal Code.
40
55
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
For easy reference, the relevant offences under the Penal Code are reproduced:299 Culpable homicide.
Whoever causes death by doing an act with the intention of
causing death, or with the intention of causing such bodily
injury as is likely to cause death, or with the knowledge that
he is likely by such act to cause death, commits the offence of
culpable homicide.
300 Murder.
Except in the cases hereinater excepted, culpable homicide
is murder'
(a) if the act by which the death is caused is done with
the intention of causing death;
(b) if it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the
death of the person to whom the harm i s caused;
(c) if it is done with the intention of causing bodily injury
to any person, and the bodily injury intended to be
inlicted is sufficient in the ordinary course of nature
to cause death, or
(d) if the person committing the act knows that it is
imminently dangerous that it must in all probabiliy
cause death, or such bodily injury as is likely to cause
death, and commits such act without any excuse for
incurring the risk of causing death, or such injury as
aforesaid.
302 Punishmentfor murder.
Whoever commits murder shall be punished with death.
330 Voluntarily causing hurt to extort confession or to compel
restoration ofpropery.
Whoever voluntarily causes hurt for the purpose of
extoring from the sufferer, or rom any person
interested in the sufferer, auy confession or any
informaion which may lead to the detecion of an
ofence or misconduct, or for the purpose of
constraining the sufferer, or any person interested in
the sufferer, to restore or to cause the restoration of
any property or valuable securiy, or to satisy any
56
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
claim or demand, or to give information which may
lead to the restoration of any property or valuable
security, shall be punished with imprisonment for a
term which may extend to seven years, and shall also
b e liable to fine. (emphasis by this court)
331 Voluntarily causing grievous hurt to extort confession or to
compel restoration o/propery.
Whoever voluntarily causes grievous hurt for the purpose of
extorting from the sufferer, or from, any person interested in
the sufferer, any confession or any information which may
lead to the detection of an offence or misconduct, or for the
purpose of constraining the sufferer, or any person
interested in the sufferer, to restore or to cause the
restoration of any property or valuable securiy, or to satisy
any claim or demand, or to give information which may lead
to the restoration of any property or valuable securiy, shall
be punished with imprisonment for a term which may extend
to ten years, and shall also be liable to fine.
15.
Upon considering the conduct of Dl from the time he gave the first statement to the
24
media on 20.1.2009 and the second statement on 21.1.2009 as to the cause of the
25
deceased's death, his direction to confine the investigation to an offence under s.330
26
and not s.302 as directed by the Attorney-General or s.304 or even s.3 3 1 of the
27
Penal Code, his unwillingness to correct or clariy his two previous statements to the
28
media and upon examining his evidence in court, the cummulative efect would be
29
that Dl had right from the beginning showed no genuine interest or sympathy to
30
find out the truth as to who was responsible for the deceased's death on 20.1.2009
31
when the deceased was in police custody at the Taipan Police Station where he was
32
the State Chief Police Oficer except to have provided 'lip sevice' that a thorough
33
investigation will be carried out on the death of the deceased. In fact under cross
34
examination by learned counsel for the plaintiff, Dl had said, where the relevant
35
part of his evidence is reproduced:-
36
37
38
39
40
41
42
43
44
Peguam Plaintif:
Now Tan Sri, kita berdepan dengan satu insiden dimana terdapat kematian
dalam tahanan. Adakah sebab tertentu mengapa pillak polis tidak
membuka kertas siasatan dibawah Seksyen 302 atau 304 kanun
keseksaan?
57
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
OWl:
Yang Arif, apa juga tindakan kita, membuka kertas siastan adalah
berdasarkan kepada laporan pegawai perubatan. Post mortem. ladi
kebiasaanya apabila mendapat laporan post mortem yang mengesahkan
sebab·sebab punca kematiannya, kertas siasatan mengejut akan dibuka
apabila tidak ada unsur-unsur jenayah yang dilaporkan di dalam post
mortem.
Peguam Plainif:
Jadi Tan Sri setuju dengan saya memandangkan tidak ada apa-apa siasatan
dibawah Seksyen 302 atau 304 Kanun Keseksaan, maka tidak diketahui
apakah yang telah menyebabkan kematian Kugan semasa beliau berada di
dalam tahanan polis.
OWl:
Siasatan terhadap Navin telah dibuka di bawah Seksyen 330 Yang Arif
bukan dibawah 302 atau 304. Kita di dalam kes ini, kia tidak meneari
orang yang membunuh Kugan.
Peguam Plaintif:
ladi yang membunuh Kugan adalah tidak diketahui sehingga hari ini,
betul?
OWl:
Yang Arif, tidak ada keterangan yang menunjul<kan dia dibunuh sebab itu
tidak ada kertas siasatan dibawah 302 dibuka.
Peguam Plaintif:
Tan Sri, adakah sebab-sebab tertentu disebabkan sekarang, Defendan
Kedua berdepan dengan satu pertuduhan di Mahkamah Sesyen dan kini
beliau berdepan dengan satu tuntutan di Mahkamah Tinggi berkenaan
dengan kematian Kugan. Adakah terdapat apa-apa sebab tertentu
mengapa pihak polis tidak membuka apa-apa siasatan di bawah Seksyen
302 dan 304 sedangkan telah berlaku satu kematian? Sudah berlaku satu
kematian, sepatutnya dibuka jika pihak polis ingin tahu siapakah yang
menyebabkan siapa menyebabkan kematian ini, sepatutnya dibuka satu
sisatan dibawah Seksyen 302 and 304 tapi tidak dibuka. Adakah sebab
tertentu mengapa di dalam kes ini kenapa tidak dibuka siasatan dibawah
Seksyen 302 dan 304?
OWl:
Yang Arif, sebab tidak ada keterangan menjuruskan bahawa simai ini
dibunuh untuk kita membuka siasatan dibawah 302 atau 304.
Peguam Plaintif:
Baik, saya terpaksa eadangkan kepada Tan Sri, Tan Sri boleh sahkan atau
tidak pada 23.1.2009, Peguam Negara sendiri telah mengeluarkan
kenyataan awam dan meyatakan kes kematian Kugan akan
diklasifikasikan di bawah 302 Kanun Keseksaan.
OWl:
Saya ingat, Yang Arif. Ya.
54
Re examinaion
55
56
57
58
59
60
Peguam RaDan Persekutuan:
Dan Tan Sri juga telah ditanya bahawa berdasarkan report tersebut
seolah-olah Tan Sri telah cuba untuk membuat satu cover up atas tindakan
pihak polis dan jawapan Tan Sri adalah tidak setuju. Boleh Tan Sri jelaskan
kenapa?
58
1
2
3
4
5
DW1:
Tidak sekali·kali saya pernah membuat apa·apa cover up terhadap apa-apa
perkara Yang Arifterutamanya melibatkan pegawai polis, Yang Arif.
16.
Based on the factual matrix, and upon considering the chronology of events in
6
respect of both pre and post second post mortem until the quick and timely
7
intervention of Mr. N Surendran (PW1), who must be co mm ended for being
8
instrumental and protector of human rights, especially, when emotions and
9
anxieties was so obvious and high at the material time. In this respect, it is also
10
important to reiterate that the remand warrant issued by the Magistrate has
11
ordered the deceased to be detained at the lockup, Petaling Jaya and not at the
12
Taipan Police Station and there is a clear breach of the remand warrant and
13
arguably the detention at the Taipan Police Station would also tantamount to an
14
illegal detention. In fact the Magistrate is entitled to demand for the progress of the
15
investigation for which the Magistrate had issued a remand warrant to carry out
16
investigation.
17
18
17.
It is interesting to note that 01 seems to have assumed the function of the
19
investigating oficer, by insisting that there is no evidence to show that the deceased
20
was murdered. In order to ascertain whether the deceased was murdered and who
21
was responsible for his death and how the death had occurred in police custody at
22
Taipan Police Station, surely, there must be an investigation carried out under s.3 0 2
23
of the Penal Code based on the second post mortem report. Accordingly, it is only
24
after an investigation had commenced that the investigating officer may be able to
25
collect evidence to find out if there is a case for an offence under s.302 of the Penal
26
Code and upon completion of the investigation, he would be able to refer the
27
investigation papers to the Public Prosecutor for directions in respect of any
28
possible criminal prosecution on the deceased's death in police custody and 01
29
cannot at his whim limit the investigation to an offence under s.330 of the Penal
30
Code. In the present case, there is no reasonable explanation for the following
31
matters:-
32
59
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
a.
Why Dl had limited the investigation to an offence under
s.330 of the Penal Code?
b.
Why Dl did not comply with the direction of the Attorney
General to open up investigation papers under s.302 of the
Penal Code?
c.
Why Dl did not direct a formal departmental enquiry into
the death of the deceased bearing in mind the nature of the
injuries and he cause of his death?
d.
Why was there no positive action taken to ensure there is at
least an inquest held to inquire into the cause of death of the
deceased and the person or persons responsible for the
death?
e.
Why D l did not clariy his previous two statements to the
media supposedly the deceased died of a natural cause
despite the second post mortem report which had disclosed
45 external injuries and other internal injuries and the cause
of death which is due to the grievous injuries found on the
deceased. Surely, the cummulative effect and the
combination of the above matters would have required a
thorough and detail investigation to be carried out to
ascertain who had caused the deceased's death and not to
brush aside the possibility of an offence under s.302 or s.304
of the Penal Code which are matters for the investigating
oficer and the Attorney-General and it is not for Dl to
perform the function of the investigating officer or Attorney
General as it happened in the present case except for the
reason to cover-up the truth of the cause of action of the
deceased's death in police custody?
.
Dl was even able to say that the other oficers or the
policemen did not contravene any regulations and therefore
no action was taken against any other oficer or policemen
who were involved in the interrogation of the deceased.
g.
Why the deceased was detained in Taipan Police Station
when there is no gazetted lockup or lockup and bearing in
mind that the remand warrant issued by the Magistrate was
to detain the deceased at the lockup, Petaling jaya?
h.
Why was there no investigation carried out against the
policemen who had made the entries in the station diary that
the deceased 'dalam keadaan baik' until his death on 20.1.2009
considering the grievous nature of the injuries and the cause
of death as per the second post mortem report?
60
1
2
3
4
5
6
7
8
9
10
11
18.
i.
Why DW6 did not record in the station diary that he had
witnessed D2 assaulting the deceased on 16.1.2009 at about
7.00am?
j.
Why DW6 did not inform his superior oficers or Sub
Inspector Loh Voon Chye (DW3) immediately of he assault
and battery by D2 and there is no criminal proceeding
against DW6 for failing to lodge a police report of the crime
committed at the Police Station by D2?
In the circumstances and on the factual matrix of the present case, this court is not
12
persuaded to accept or find that there is no cover up as to the cause of the deceased's
13
death for the reasons stated above. In fact it would appear that to date Dl or any of
14
the defendants have not been able to inform the plaintiff as to how the deceased
15
died while in police custody. On the other hand, there is a chain of evidence to draw
16
an inference coupled with the findings of the Pathologist in the second post mortem
17
report that on the balance of probabilities it was not only D2 who had inflicted the
18
grievous injuries on the deceased but possibly other policemen or officers who were
19
involved in the intensive interrogation and on other dates following the duty roaster
20
during the period when the deceased was in police custody at Taipan Police Station.
21
Police officers who are custodian of law and order should not violate with impuniy
22
and stoop to such brutal attack on a defenseless detainee as in the present case, the
23
deceased, who was in the hands of police officers. Police officers should also not be
24
seen to remain as silent spectators or pervert the truth to save their colleagues as is
25
likely to bring discredit on the reputation of the police force who perform public
26
service.
27
28
19.
As for Dl, if he was truly serious in his statement to the media on 2 1.1.2009 that
29
there will be no cover up he should have rightfully, with respect, called or
30
recommended for a formal departmental enquiry to probe into the custodial death
31
of the deceased, especially, when he already had the information of the serious and
32
grievous nature of injuries inlicted on the deceased after the second post mortem
33
report was available which he ought to have known. This course of action would
34
have enabled the investigation agency to probe into the cause of the custodial death.
61
1
In addition, it would have been able to ascertain the role and duties performed by
2
each and every officer assigned to the investigation and interrogation and who were
3
in charge or had conducted the interrogation and those responsible for the false
4
entries recorded in the station diary between 16.1.2009 till the deceased's death
5
20.1.2009 irrespective of their rank, where the entries did not reflect on the true
6
state of the deceased's physical condition as found by the Pathologist, Dr. Prashant N
7
Samberkar. This departmental enquiry or inquest, perhaps, would have cleared the
8
dust which remains unsettled.
9
10
20.
Be that as it may, on the totality of the evidence, and considering the extent of the
11
cover-up and the fact there had been no formal disciplinary enquiry or disciplinary
12
action taken against the officers or the policemen who had made and abetted the
13
false entries in the station diary, there are compelling reasons on the balance of
14
probabilities that the false entries in the station diary had been authorized or
15
condoned by the superior officers. In the circumstances, this court finds that D1 and
16
D3 have committed the tort of misfeasance and must be prepared to accept
17
responsibility for the intended tortious act of misfeasance in public ofice. (Three
18
Rivers District Council and Others v Bank of England (No. 3) (2001) 2 ALL ER 513 and
19
applied in Riga Sdn Bhd v Haji Awang Sepian Haji Awang Joini (Kuching High Court,
20
Civil Suit No. 22-218-1998-11) (Unreported). The evidence of D2 that he had been
21
made 'the scapegoat' by D3 cannot be totally rejected as not probable. On the other
22
hand, the fact remains that D2 did not disclose this incident of the private meeting
23
held at the instance of D3 during his trial at the criminal case. However, the
24
unofficial meeting which was called by D3 is supported by the evidence of DW6 but
25
for his reluctance and fear to disclose to the court what had transpired, discussed
26
and the instruction given by D3 at the meeting which has been conveniently
27
forgotten by DW6.
28
29
30
62
1
21.
Suppression or withholding of material evidence, to cover u p an unlawful act or
2
series of unlawful act, particularly, at the police station or lockup in any trial or
3
proceeding which may assist the court, if it is disclosed to ascertain the truth and to
4
arrive to at a just decision, would be the worst tainted evidence in any trial or
5
proceeding. What matters most to this court is the manifest truth and not
6
suppression or withholding of material evidence as it violates the fundamental
7
principles of justice and smacks of dishonesty and unprofessionalism of the highest
8
order. On the factual matrix of the present case, it would have been better for Dl to
9
have corrected or clarified the versions given by him to the media on 20.1.2009 and
10
on 21.1.2009 than to persist and maintain his version as given to the media as the
11
cause of death which was apparent and ought to have known to him that the version
12
given by him to the media was not worthy of consideration and flies across the
13
truth. Dl's statement to the media on 20.1.2009 and as published in The Star
14
newspaper on 21.2.2009 (Exhibit P29) was that 'the deceased had asked for a glass of
15
water and then collapsed and died'. Whereas the irst post mortem report dated
16
24.2.2009 from Dr. Abdul Karim bin Hj. Tajuddin the Pathologist from Serdang
17
H ospital contain 22 categories of external wounds and the cause of death is stated
18
'pulmonary edema' (Exhibit P7). The second post mortem report of Dr. Prashant
19
N Samberkar of the University Hospital (Exhibit PS) contains 45 categories of
20
external injuries and also internal injuries. In the second post mortem report
21
(Exhibit PS), the cause of death is stated as 'acute renalfailure due to rhabdomyolysis due
22
to blunt trauma to skeletal muscles', in other words, failure to the renal system.
23
Whereas the second statement by Dl to the media on 21.1.2009 is that the deceased
24
died due to water in the lungs. Further, the charge framed against D2 is limited to an
25
offence under s. 330 and s.331, in brief, for causing hurt and grievous hurt
26
respectively to extract confessions on 16.1.2009 at 7.00am and at 4.00pm.
27
28
29
30
63
1
22.
The inevitable effect of suppressing the truth from this court would be to undermine
2
the judicial authority and ability of this court in performing its judicial function to
3
ascertain the truth on the plaintif's claim and upon considering the defences
4
pleaded and to arrive at a just inding. Therefore, the evidence of Dl when
5
considered together with the evidence of DW3, DW4 and DW6 tantamounts to
6
suppression of evidence which has its legal consequences but perhaps, in the belief
7
or hope that his evidence will not find place on the findings of this court. This court
8
wishes to state that no person, be it in any position, status or rank, when testiYing
9
in court should take this court for granted and attempt to suppress the truth with
10
the view to escape liability just because the witnesses, being interested persons, will
11
not meet the deceased 'with a lie in their mouth' as there is no opportunity of testing
12
the truth. However, the officers and Dl must be reminded that their conduct and
13
solution "lies not in the cold print of the statute book but in the integriy and conscience of
14
evey police oficer", whatever be his rank.
15
16
23.
In addition, this court finds that there are several glaring material contradictions
17
between Dl and Pemangku DSP Mohd Marzukhi bin Mohd Mokhtar (DWS) in
18
respect to the investigation which was carried out upon the death of the deceased.
19
Dl's evidence is reproduced:-
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
a.
there was no investigation papers opened under s.302 or s. 304 of
the Penal Code (tidak ada kertas siasatan dibawah 302 atau 304 dibuka), .
b.
Investigation against the second defendant was carried out under
s.330 of the Penal Code and not under s.302 or s.304. Further, in the
present case, the police did not look for the person who had
murdered the deceased. (Siasatan terhadap Navind telah dibuka dibawah
s.330, bukan dibawah 302 atau 304. Kita di dalam kes ini, kita tidak mencari
orang yang membunuh Kugan).
c.
There is no evidence to show that the deceased was murdered and
that was the reason why no investigation papers was opened under
s.302. (Tidak ada keteranganyang menunjukkan dia dibunuh sebab itu tidak
ada kertas siasatan dibawah 302 dibuka).
d.
Investigation was not carried out under s.302 and s.304 of the Penal
Code. (Sebab tidak ada keterangan menjuruskan bahawa si mati ini dibunuh
untuk kita membuka siasatan di bawah 302 atau 304).
64
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
24.
e.
After he was informed of he police report lodged by the deceased'
mother, the plaintif, he had directed investigation to be carried out
under s. 330 of the Penal Code (selepas laporan ibu.. selepas saya
dimaklumkan ten tang laporan ibu mendiang, saya telah mengarahkan
siasatan di bawah s. 330 Kanun Keseksaan djalankan).
f.
He had directed an investigation to be carried out under s.330 of the
Penal Code about one day after he was informed of the police report
lodged by the deceased's mother, the plaintiff.
In answer to further cross-examination by Mr. R. Sivarasa, the learned lead counsel
for the plaintiff, Dl had testified as follows:Peguam plaintif:
Tadi Tan Sri kata siasatan tentang kes kematian Kugan ini diklasiflkasikan sebagai
seksyen 330 Kanun Keseksaan
OWl:
Bukan kes kematian Kugan, tetapi siasatan terhadap salah laku polis dalam kes
Kugan ini
Peguam plaintif:
Saya terpaksa cadangkan kepada Tan Sri, Tan Sri boleh sahkan atau tidak pada
23.1.2009, Peguam Negara sendiri telah mengeluarkan kenyataan awam dan
penyataan kes kematian Kugan akan diklasifikasikan di bawah s.302 Kanun
Keseksaan.
OWl:
Saya ingat, ya.
Peguam plainif:
Jadi apa penjelasan Tan Sri Khalid? Peguam Negara sendiri telah keluarkan dengan
kenyataan awam.
OWl:
Perkara ini telah kita bawa kepada Peguam Negara dan dia setuju untuk siasatan
dijalankan di bawah 330 dan bukan 302.
Mahkamah:
Tadi peguam tanya ada arahan dari Peguam Negara, kertas siasatan dibuka di
bawah s.302
Plaintiffs counsel interjected:
"Kenyataan oleh Peguam Negara Sendiri"
Mahkamah:
Dinyatakan bahawa siasatan dibuka di bawah Seksyen 302. Adakah arahan, Peguam
Negara seperti dikatakan oleh peguam plaintif bahawa satu siasatan akan dibuka di
bawah Seksyen 302 Kanun Keseksaan
OWl:
Ada
Mahkamah:
Telah dipatuhi? Ada dibuka kertas?
65
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
DW1:
Tidak dibuka.
Mahkamah:
Tidak dibuka? So tidak dipatuhi arahan Peguam Negara?
DW1:
Bukan tidak dipatuhi. Selepas dia membuat pengumuman itu, pegawai saya telah berunding
dengan pihak Peguam Negara supaya siasatan tidak dilakukan di bawah 302 teapt di bawah
Seksyen 330 dan pendakwaraya bersetuju dan itu sebabnya kita membuka siasatan di bawah
330. (emphasis by this court)
Mahkamah:
Pada masa arahan diterima, siasatan telahpun dijalankan di bawah Seksyen330 is it?
DW1:
Saya. Lepas kita berunding balik dengan Peguam Negara, mereka bersetuju supaya kita
meneruskan siasatan di bawah 330
25.
Whereas Acting DSP Mohd Marzuki bin Mohd. Mokhtar CDW 5) under cross
22
examination by Cik Latheefa Koya, learned co counsel for the plaintiff had testiied
23
and his evidence is reproduced:·
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
PEGUAM PLAINTlF (L):
Selain daripada ACP Omar ada ak DSP perlu membuat laporan siasatan
ataupun melaporkan kepada mana-mana pihak atau pegawai yang lain?
DW5:
Dari semasa ke semasa sekiranya diminta oleh pegawai atasan
PEGUAM PLAINTlF (L):
Adakah DSP sendiri terus maklumkan kepada Datuk Sarta ini ataupun
melalui ACP Omar?
DW5:
Ada kalanya ACP Omar ada kalanya secara terus apabila ditanya.
PEGUAM PLAINTIF (L):
DSP telah mengatakan bahawa DSP diminta untuk membuat siasatan
terhadap Kugan ini. Apakah asas penyiasatan ini? Adakah menerusi arahan
dari pegawai atasan ataupun berdasarkan satu laporan?
DW5:
Berdasarkan pada arahan yang diterima.
PEGUAM PLAINTlF (L):
Siapa yang memberi araban tersebut?
DW5:
ACP Omar Mahmah.
PEGUAM PLAINTIF (L):
Apakah arahan tersebut? Bagaimanakah arahan tersebut berbunyi?
DW5:
Untuk saya mengamil alih kertas siasatan daripada pegawai siasatan yang
asal.
66
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
PEGUAM PLAINTIF (L):
Beliau yang memberi arahan bahawa siasatan in harus dilakukan di bawah
Seksyen 330?
DW5:
Saya percaya sebegitu.
PEGUAM PLAINTlF (L):
Saya merujuk kepada jawapan kamu di ms 3 jawapan kepada soalan 13.
Kamu telah menyatakan bahawa "Saya telah jumpa ASP Zainal & boleh OSP
beritahu apakah dokumen-dokumen yang dimaksudkan?
DW5:
Ookumen yang dimaksudkan adalah kertas siasatan bagi kes tersebut.
PEGUAM PLAINTlF (L):
Apa yang terkandung dalam kertas siasatan tersebut?
DW5:
Laporan PoUs kematian Kugan.
PEGUAM PLAINTlF (L):
Oleh siapa laporan polis tersebut?
DW5:
Saya tak ingat
PEGUAM PLAINTlF (L):
Saya cadangkan adakah ini laporan polis yang dibuat oleh ASP Rodney?
DW5:
Ya.
PEGUAM PLAINTlF (L):
DSP beritahu bahawa OSP telah membuat siasatan dibawah Seksyen 330.
B oleh OSPberitahu apakah dapatan dalam proses siasatan itu?
DW5:
Sewaktu siasatan dijalankan saya
telah
menerima arahan untuk
meriklasifikasikan kes tersebut dibawah Seksyen 302 kanun keseksaan
dan meneruskan siasatan dibawah Seksyen 302.
PEGUAM PLAINTlF (L):
Siapa yang memberi arahan itu?
DW5:
Arahan diterima daripada Ketua Jabatan Siasatan Jenayah lbu Pejabat Polis
Kontigen Selangor, Data Hasnan bin Hassan
PEGUAM PLAINTIF (L):
Bila arahan tersebut dibuat?
DW5:
Exact date saya tak ingat. Kalau tak silap 23hb JanuarL
PEGUAM PLAINTlF (L):
Apa sebab arahan itu dibuat untuk direklasifikasikan kepada Seksyen 302?
DW5:
Untuk menyiasat jika terdapat unsur-unsur bunuh di dalam kes tersebut.
67
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
PEGUAM PLAINTlF (LK):
Saalan saya, dalam proses membuat siasatan bawah Seksyen 330, kamu
tiba-tiba dapat arahan untuk menukar kepada Seksyen 302_ Apa yang
menyebabkan kamu terpaksa membuat siasatan, apakah bukti-bukti yang
menunjukkan ..
Mahkamah:
Saksi sudah cakap dia dapat arahan daripada Data Hasnan.
PEGUAM PLAINTlF (LK):
Apa yang kamu telah lakukan setelah mendapatkan arahan untuk
meriklasiikasikan?
DW5:
Saya siasat kes tersebut dibawah Seksyen 302. (emphasis by this court)
PEGUAM PLAINTIF (LK):
Apa yang telah kamu lakukan?
DW5:
Mendapatkan keterangan-keterangan bagi menentukan sekiranya
mendapatkan unsur-unsur Seksyen 302 Kaoun Keseksaan di dalam kes
tersebut
PEGUAM PLAINTIF (LK):
Bagaimana kamu mendapatkan keterangan-keterangan?
DW5:
Daripada saksi-saksi di tempat kejadian dan juga dakumen-dakumen.
PEGUAM PLAINTlF (L):
Balehkah DSP beritahu siapakah saksi-saksi yang telah kamu saalsiasat
atau dapatkan keterangan?
DW5:
Saksi-saksi yang bertugas di cawangan D9 IPD Subang Jaya dan saksi
yang menerima Kugan sewaktu di dalam lockup. Saksi di Mahkamah
sewaktu proses remand. Dan ramai saksi lagi saya tak dapat ingat
semua sekali.
PEGUAM PLAINTlF (LK):
Dalam proses siasatan tersebut berapa ramaikah saksi yang telah
menyoal siasat Kugan?
DW5:
Anggata Cawangan D9 IPD Subang Jaya, kalau tak silap saya 11 arang.
PEGUAM PLAINTlF (L):
Merujuk balik kepada Dl, Ikatan warna Oren. Sila lihat m/s 1. Dan
seterusnya lihat m/s 2 terdapat jadual anggata-anggata. Mukasurat 2
secara khusus ada tarikh-tarikh jadual saal siasat. Apakah DSP telah
menyoal siasat kesemua nama-nama pegawai-pegawai yang terlibat
dalam soal siasat Kugan yang tersenarai seperti di sini.
DW5:
Ya. Semua
PEGUAM PLAINTlF (L):
Apakah hasil dapatan daripada saal siasat tersebut?
DW5:
Hasil daripada siasatan yangn dijalankan dapati Kanstable Navindran ada
mendatangkan cedera kepada Kugan pada tarikh 16hb Januari 2009.
68
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
PEGUAM PLAINTIF (L):
Bagaimana DSP terus mendapati bahawa
mendatangkan cedera kepada Kugan?
Konstable Navin yang
DW5:
Berdasarkan siasatan saya keatas anggota-anggota yang bertugas di
cawangan D9.
PEGUAM PLAINTIF (LK):
Selain daripada diberitahu oleh anggota-anggota lain yang bekerja di D9,
apakah yang menyebabkan DSP terus mendapati Konstable Navin yang
telah mendatangkan kecederaan?
DW5:
Berdasarkan kesiasatan saya ke atas anggota-anggota cawangan D9.
PEGUAM PLAINTIF (L):
Soalan saya, selain daripada mendapat keterangan daripada anggota
anggota D9 apakah keterangan-keterangan lain yang menyebabkan DSP
terus menjurus kepada constable Navin.
DW5:
Tidak ada keterangan lain
PEGUAM PLAINTIF (L):
Hanya pada keterangan pegawai-pegawai lain?
DW5:
Ya.
PEGUAM PLAINTIF (L):
Boleh DSP beritahu apakah keterangan yang dimaksudkan daripada
pegawai anggota-anggota lain?
DW5:
Secara spesifik saya tidak ingat apa yang dikatakan. Tetapi mereka
mengatakan bahawa mereka ada nampak Konstable Navindran memukul
Kugan.
PEGUAM PLAINTIF (L):
DSP sebagai seorang pegawai penyiasat ditugaskan untuk menbuat satu
dapatan sebelum menghantar untuk kertas pertuduhan?
DW5:
Ya.
PEGUAM PLAINTIF (L):
Jadi selain daripada keterangan daripada pegawai lain adakah DSP melihat
apa jenis kecederaan yang dilakukan, apa sebenarnya kecederaan yang
dibuat atau dituduh terhadap Navin. Apakah kecederaan yang dilakukan
terhadap Kugan?
DW5:
Melihat pada gambar, ya.
PEGUAM PLAINTIF (L):
Gambar apa yang dilihat?
69
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
PEGUAM PLAINTIF (LK):
Luka jenis apa? DSP saya merujuk juga kepada m/s 5 - 7 Bundle B di
mana tertera pertuduhan terhadap Konstable Navin. Cuba lihat
pertuduhan "bahawa kamu pada 16hb telah dengan sengaja menyebabkan
kecederaan parah "Soalan saya ialah apa dia kecederaan parah? Dan
cedera di mana?
DW5:
Di bahagian belakang badan ada kesan kecederaan
PEGUAM PLAINTIF (L):
Kesan-kesan luka? Terangkan, butirkan apa jenis kecederaan kesan-kesan
luka tersebut? Kamu siasat dan pertuduhan telah dilakukan bahawa
terdapatcedera parah. jadi boleh ceritakan?
DW5:
Kesan luka yang dalam pada badan oleh senjata yang tidak diperolehi
PEGUAM PLAINTIF (LK):
Adakah kecederaan itu dilakukan dengan tangan?
DW5:
Siasatan mengatakan bahawa ada senjata yang digunakan tetapi tidak
ada senjata yang diperolehi.
PEGUAM PLAINTIF (LK):
Apa jenis senjata?
DW5:
Mengikut keterangan dari pakar pathology. berkemungkinan sesuatu
seperti getah paip yang digunakan.
PEGUAM PLAINTIF (LK):
Saya tidak tanya soalan apa yang didapati oleh pakar patholoqy. Saya
tanya kamu sebagai pegawai penyiasat yang telah mengambil
keterangan daripada pegawai- pegawai terlibat yang mengatakan telah
melihat bahawa Konstable Navin telah melakukan kecederaan. jadi
apakah senjata yang digunakan terhadap Kugan?
DW5:
Getah paip.
PEGUAM PLAINTIF (LK):
Adakah kamu telah diberitahu bagaimana dan sehingga berapa kali
getah paip itu digunakan terhadap Kugan? Sehingga menyebabkan
cedera parah.
DW5:
Tidak.
PEGUAM PLAINTIF (LK):
Dan kamu tidak mendapati jawapan?
DW5:
Ada kepelbagaian dalam jawapan dan masing-masing tidak dapat
menyatakan secara spesifik berapakah pukulan telah diterima dan telah
dibuat
70
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
PEGUAM PLAINTIF (L):
Merujuk kepada D1, senarai jadual penugasan anggota. Siapakah
pegawai-pegawai yang telah melihat Kugan telah dicederakan?
DW5:
Saya tidak ingat keempat-empat orang. Tetapi yang pastinya Haizan
anggota polis di m/s 2. Kalau tak silap saya Junit, tapi tak pasti
sekarang. Saya tak nyatakan, tak ingat lagi tiga orang itu siapa.
PEGUAM PLAINTIF (LK):
Apa telah dicadangkan oleh DSP dalam kertas siasatan? Apa jenis
kesalahan yang telah dicadangkan?
DW5:
Tak dapat saya ingat apa yang saya tulis dalam minit itu. Tetapi setelah
cadangan diberikan pertuduhan telah mendapat arahan untuk
menuduh Navindran di bawah Seksyen 331 Kanun Keseksaan.
PEGUAM PLAINTIF (L):
Menerima arahan daripada siapa?
DW5:
Jabatan Peguamcara Negara.
PEGUAM PLAINTIF (LK):
Kamu adalah pegawai penyiasat dan kamu telah membuka siasatan di
bawah Seksyen 302 dan setelah mendapat maklumat dan sebagainya
apakah yang dicadangkan. Kenapa kamu cadangkan Seksyen 331,
setelah kamu membuat penyiasatan di bawah Seksyen 302?
DW5:
Tidak ada sebarang unsur Seksyen 302 dalam siasatan saya untuk saya
cadangkan di bawah Seksyen 302 sebab itu saya menjalankan siasatan.
PEGUAM PLAINTIF (L):
Apa jenis unsur yang kamu perlukan untuk membuat cadangan
Seksyen 302? Adakah terdapat kematian?
DW5:
Bagi menerangkan bahawa terdapatnya sesuatu tindakan yang
menyebabkan kematian keatas Kugan. Dalam siasatan tidak menunjukkan
ada sebarang tindakan yang dibuat oleh mana-mana pihak dan
menyebabkan kematian Kugan.
PEGUAM PLAINTIF (LK):
Rujuk kepada laporan Bedah Siasat m/s 18 Bundle C secara spesifik ini
adalah dapatan daripada post mortem yang kedua. Cuba lihat dapatan di
ayat terakhir sebelum tandatangan. Cuba DSP beritahu maksud dapatan
tersebut
DW5:
Kegagalan fungsi buah pinggang kerana eropto milasys. Kerana blunt
trauma to skeletal muscles
PEGUAM PLAINTIF (L):
Siasatan tidak membawa kepada kematian, menunjukkan?
DW5:
Sesiapa menyebabkan
kecederaan
kematian
71
tetapi
siapa
yang
menyebabkan
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
PEGUAM P LAINTIF (LK):
Kamu tidak tanya apa�apa soalan berkenaan itu?
DW5:
Saya tidak dapat ingat semua saalan yang saya tanya pada pakar
pathalagi pada masa itu
PEGUAM P LAINTIF (LK):
Adakah mereka mendera Kugan?
DW5:
Tidak.
PEGUAM P LAINTIF (LK):
Setiap pegawai yang kamu tanya saal siasat menjawab tidak?
DW5:
Saya tidak ada tanya secara spesifik perkataan dera di situ, saya bertanya
adakah kamu ada pukul atau tidak.
PEGUAM PLAINTIF (LK):
Dan kamu tanya setiap pegawai yang disoal siasat termasuk Konstable
Navin?
DW5:
Ya.
PEGUAM P LAINTIF (LK):
Dan apa jawapan?
DW5:
Tidak.
PEGUAM PLAINTIF (LK):
Kesemua?
DW5:
Ya.
PEGUAM PLAINTIF (L):
Termasuk Konstable Navin?
DW5:
Ya.
PEGUAM PLAINTIF (L):
Adakah mereke sedar ataupun kamu tanya bagaimanakah kecederaan
tersebut timbul ke atas Kugan kalau sebenarnya bukan mereka yang
lakukan. Adakah kamu tanya saalan tersebut?
Mahkamah:
Mereka katakan bahawa mereka nampak Navin pukul.
PEGUAM PLAINTIF (L):
Saya balik kepada Dl, dan merujuk kepada catatan harian yang dimasukan
aleh pegawai-pegawai yang bertanggungjawab dari hari ke hari. Secara
rambang saya melihat pada tarikh 16hb Januari di m/s 22 terus ke m/s 23
dan ms 24. Cuba lihat catatan yang bernambar siri. 232. Nampak tak?
DW5:
Nampak.
72
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
PEGUAM PLAINTIF (L):
Kalau maksud yang telah dicatatkan, bagaimana pulak terdapat
pertuduhan bahawa ada cedera parah terhadap Kugan? Apakah
persoalan yang dibuat kepada pegawai-pegawai yang telah
memasukkan catatan bahawa Kugan berada dalam keadaan baik
sedangkan terdapat seorang constable yang telah cederakan secara
parah. Boleh terangkan kepada Mahkamah? Apa yang telah didapati
daripada hasil siasatan?
DW5:
Siasatan didapati bahawa Kugan telah mendapat kecederaan akibat
dipukul oleh Konstable Navindran.
PEGUAM PLAINTIF (L):
Adakah kamu setuju catatan yang dimaksudkan bahawa kugan berada dalam
keadaan balk adalah satu catatan yang palsu? (emphasis by this court)
DW5:
Tidak. (emphasis by this court)
PEGUAM PLAINTIF (L):
Kamu telah membuat siasatan bahawa pada 16hb januari 2009 pada pukul
7pg dan 4ptg, Konstable Navin telah melakukan cedera parah terhadap
Kugan. Itu siasatan kamu?
DW5:
Ya.
PEGUAM PLAINTIF (LK):
Tetapi hasil siasatannya, tetapi pada tarikh 16, 17 dan seterusnya terdapat
catatan daripada pegawai-pegawai soal siasat 09 bahawa Kugan berada
dalam keadaan baik. Persoalan saya, bagaimanakah terdapat catatan
keadaan baik sedangkan beliau telah dicedera parah? Adakah catatan
tersebut satu catatan yang palsu?
DW5:
Saya tidak tentu dalam catatan saya atau catatan itu adalah catatan palsu
ataupun tidak.
PEGUAM PLAINTIF (L):
Saya cadangkan kepada kamu catatan tersebut adalah satu catatan yang
tidak menunjukkan keadaan yang sebenar terhadap Kugan. Setuju atau
tidak?
DW5:
Tak setuju.
PEGUAM PLAINTIF (LK):
Saya balik kepada siasatan klasifikasi 302, setelah kamu mendapat alasan
untuk menyiasat di bawah Seksyen 302, kamu teruskan dengan siasatan
tersebut dan hasil daripada siasatan tersebut boleh kamu beritahu apakah
cadangan yang diberikan "epada pihak Peguam Negara?
DW5:
Cadangan yang diberikan adalah tidak ada keterangan bagi menunjukkan
bahawa terdapat unsurMunsur Seksyen 302 dalam siasatan saya dan saya
dicadangkan di bawah Seksyen 331 Kanun Keseksaan.
PEGUAM PLAINTIF (LK):
Saya merujuk kamu kepada m/s 20 21 Bundle C yang merujuk kepada
senarai kecederaan yang diperolehi atas badan Kugan. Nampak?
•
73
1
2
3
4
5
6
7
8
9·
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
DW5:
Nampak
PEGUAM PLAINTIF (L):
Terdapat lebih kurang 45 kecederaan yang boleh dikatakan
kecederaan luaran sahaja dan di m/s 22, terdapat senarai kecederaan
dalaman. Hasil daripada dapatan laporan bedah siasat ini, adakah
kamu masih mengatakan bahawa hanya terdapat kecederaan sahaja di
bawah Seksyen 330 ataupun seharusnya terdapat siasatan di bawah
Seksyen 302?
DW5:
Siasatan dilakukan dibawah Seksyen 302 Kanun Keseksaan tetapi
dalam menjalankan siasatan tidak ada keterangan bagi menyatakan
bahawa terdapat unsur-unsur Seksyen 302 dan pertuduhan dibuat
bawah seksyen Seksyen 331 Kanun Keseksaan.
PEGUAM PLAINTIF (L):
Jadi berdasarkan perbezaan itu, apa yang telah dibuat oleh kamu sebagai
pegawai penyiasat? Adakah kamu telah menunjukkan perbezaan tersebut
kepada Jabatan Peguam Negara?
DW5:
Ada dinyatakan.
PEGUAM PLAINTIF (L):
Apa yang kamu nyatakan?
DW5:
Tentang adanya dua laporan bedah siasat dan saya menggunakan laporan
bedah siasat yang pertama yang mana telah dipohon oleh pihak polis untuk
menjalankan bedah siasat ke atas Kugan dalam menjalankan siasatan.
(emphasis by this court)
PEGUAM PLAINTIF (L):
Boleh kamu ulang balik, kamu kata kamu menggunakan laporan siastan
pertama. Kenapa kamu tidak merujuk kepada ataupun menggunakan laporan
siasatan kedua? (emphasis by this court)
DW5:
Laporan bedah siasatan pertama adalah laporan yang telah dipohon oleh
pihak polis untuk jalankan bedah siasat atas Kugan. (emphasis by this court)
PEGUAM PLAINTIF (L):
Soalan saya kenapa kanu tak menggunakan laporan bedah siasat yang kedua7
(emphasis by this court)
DW5:
Kerana bukannya satu bedah siasat yang dipohon oleh pihak polis ke atas
Kugan. (emphasis by this court)
PEGUAM PLAINTIF (L):
Itu alasan kamu?
DW5:
Ya.
PEGUAM PLAINTIF (L):
Kamu tidak menggunakan laporan kedua kerana ia tidak diminta oleh polis7
(emphasis by this court)
74
1
2
3
4
5
6
7
8
9
10
11
12
13
-
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
DW5:
Ya. (emphasis by this court)
PEGUAM PLAINTIF (LK) :
Siapa yang memberitahu kamu agar tidak merujuk kepada laporan kedua?
DW5:
Tidak ada siapa.
PEGUAM PLAINTIF (L):
Saya mencadangan kepada kamu bahawa kamu telah gagal untuk
melakukan siasatan secara professional dengan tidak mengambil kira
laporan-Iaporan penting termasuk laporan kedua yang menunujukkan
bahawa Kugan sebenanya dimati akibat pukul dan didera. Setuju atau
tidak?
DW5:
Tidak
PEGUAM PLAINTIF (LK):
Seterusnya saya mencadangkan kepada kamu, kamu sebenarnya telah
dilantik untuk memastikan tiada pihak polis ataupun pegawai, mana
mana pegawai akan dipertanggungjawabkan atas pembunuhan Kugan.
Setuju atau tidak?
DW5:
Tidak.
PEGUAM PLAINTIF (L):
Saya juga cadangkan kepada kamu, walaupun kamu telah diarahkan
untuk melakukan siasatan di bawah Seksyen 302, untuk pembunuhan
Kugan kamu telah ingkar dan terus menggunakan Seksyen 330 untuk
menutupi kebenaran yang telah dilakukan?
DW5:
Tidak.
PEGUAM PLAINTIF (L):
Saya juga cadangkan kepada kamu sebenarnya daripada hasil siasatan
kamu tahu bahawa dari mula Kugan ditangkap sehingga akhir hayat
beliau pada 20hb Kugan sebenarnya telah dipukul, didera ketika disoal
siasat yang menyebabkan beliau mati. Setuju atau tidak?
DW5:
Tidak.
PEGUAM PLAINTIF (LK):
Saya juga mencadangkan kepada kamu, rekod harian yang kononnya
kamu merujuk adalah mengandungi catatan-catatan palsu bagi tujuan
menutupi perkara yang sebenarnya berlaku terhadap kematian Kugan.
Setuju atau tidak?
DW5:
Tidak
PEGUAM DEFENDAN KEDUA (RS):
Dengan izin Yang Arif. DSP Marzuki ya, DSP Marzukhi merupakan pegawai
siasatan dalam kes ini ya? Jadi soalan saya mengikut siasatan yang
dilakukan oleh DSP Marzuki adakah terdapat apa-apa bukti yang
menunjukkan bahawa Defendan Kedua, iaitu Navindran telah
menyebabkan kematian Kugan?
75
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
DW5:
Tidak
PEMERIKSAAN SEMULA
PEGUAM KANAN PERSEKUTUAN:
Dengan izin Yang Arif, pada perbicaraan IaIu ketika ditanya oleh peguam
Plaintif bahawa kita telah ditanya sama ada kita telah membuat
perbandingan ke atas "post mortem" pertama dan kedua dan kita jawab
kita telah membuat perbandingan. Boleh jelaskan kepada Mahkamah
apakah perbandingan yang kita telah buat?
DW5:
Perbandingan yang telah dibuat berkaitan post mortem pertama dan
kedua adalah saya telah merujuk kedua-dua laporan yang diterima
daripada kedua-dua hospital kepada pihak Jabatan Peguam Negara dengan
keputusan keputusan yang ada di dalam laporan tersebut
DW5:
Perbezaan daripada .. sebab kematian .
Mahkamah:
Slowly_ Yes.
DW5:
Perbezaan tentang penulisan berkaitan kecederaan yang ada pata badan
simati.
Mahkamah:
Yes.
PEGUAM KANAN PERSEKUTUAN:
Dan ketika soalan juga ditanya pada kamu dicadangkan ya bahawa kamu
hanya mengambilkira "
Mahkamah:
Better make sure dicadangkan oleh mana sebab ada dua ..
PEGUAM KANAN PERSEKUTUAN:
Dicadangkan oleh peguam Plaintif bahawa kamu telah tidak
mengambilkira post mortem yang kedua di dalam membuat siasatan
kamu. Boleh jelaskan kepada Mahkamah kenapa kamu tidak bersetuju
pada jawapan tersebut.
DW5:
Sewaktu saya menjalankan siasatan, saya telah menggunakan keputusan
kedua-dua laporan post morten sebagai rujukan di dalam penyiasatan.
Kedua-duanya telah saya nyatakan dalam cadangan sewaktu merujuk
kertas siasatan tersebut.
Mahkamah:
Ok
PEGUAM KANAN PERSEKUTUAN:
Dan kepada satu soalan juga yang dicadangkan peguam Plaintif bahawa
sebenarnya yang kamu tahu yang Kugan ini telah dipukul dan didera
sehingga meninggal dan jawapan kamu "tidak dalam pengetahuan kamu".
Boleh kamu jelaskan kenapa tidak dalam pengetahuan kamu?
76
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
DW5:
Di dalam siasatan yang dijalankan, terdapat kesan kecederaan kepada
Kugan akibat dipukul dan didera tetapi tidak menyatakan bahawa
kecederaan .. di dalam siasatan itu tidak dinyatakan bahawa kecederaan
dan pukulan-pukulan yang ada, yang kena pada Kugan menyebabkan
.
kematiannya.
Mahkamah:
Tidak terdapat?
DW5:
Keterangan.
Mahkamah:
Sebab kematian adalah diatas pukulan dan kecederaan yang dialami?
DW5:
Yes.
Mahkamah:
Mahkamah ada satu soalan. Apabila DSP Mohd Marzuki mengatakan tidak
ada keterangan untuk mengatakan kematian adalah disebabkan pukulan
dan diatas kecederaan, sama ada ini jawapan tidak terdapat dalam laporan
post mortem? Dua-dua post mortem. You said you look at both post
mortem, tidak ada atau ada?
DW5:
Laporan post mortem menyatakan bahawa terdapat kesan kecederaan.
Mahkamah:
Laporan post mortem yang mana satu?
DW5:
Kedua-dua laporan post nortem.
Mahkamah:
Dua-dua hanya .. sebab kematian apa dia kata?
DW5:
Sebab kematian bagi post mortem yang pertama menyatakan bahawa
'pulmonary edema' ataupun paru-paru berair. Yang kedua menyatakan
bahawa kidney failure due to blunt trauma due to " kalau saya diizinkan
saya ingin merujuk semula ..
Mahkamah:
I
think the witness should rujuk kepada dua-dua laporan tersebut.
PEGUAM KANAN PERSEKUTUAN:
Dengan izin Yang Arif.
Mahkamah:
Which bundle are you referring Tuan SFC?
PEGUAM KANAN PERSEKUTUAN:
lkatan C
DW5:
Post mortem yang pertama sebab kematian adalah "pulmonary oedema".
Post mortem yang kedua sebab kematian adalah acute renal failure due to
"rhabdomyolysis" due to blunt trauma to skeletal muscles
77
1
26.
Based on the totality of the evidence, it is inconceivable and incredible the other
2
officers involved in the investigation and interrogation which includes Sub
3
Inspector Loh Voon Chye (DW3), ASP Radhuan and ASP Rodney Pasla Haris (DW4)
4
could have remained in total ignorance as to what had happened to the deceased
5
during the period of his detention at the Taipan Police Station and the entries made
6
in the station diary and despite the continuous intensive interrogation for 2 4 hours
7
as instructed by ASP Radhuan by a team of interrogators who changed every 4
8
hours until the deceased had died on 20.1.2009. (Lockup Rules 1953).
9
10
27.
Police lockups and police station must be a safe place for every human being and
11
should not be converted into a crime scene. If a police officer forfeits the confidence
12
of the public as an institution to protect the safety and life of every person, law and
13
order, 'it may not be able to regain their respect and esteem until and unless their
14
approach in conducting investigation and interrogation has changed in accordance
15
with modern times and public awareness of police function. The observation of this
16
court has become necessary to impress upon police officers and the police force in
17
general of the urgency of stamping out the brutal methodology from the
18
investigative armory of the police. (Ragbir Singh v State of Haryana (1 980) AR 1087).
19
The duty of police officers including the officer in charge of the Taipan Police Station
20
who are entrusted with the custody, life and health of the deceased ought to have
21
taken reasonable care for his safey while he remained in their custody and surely
22
not to intentionally and deliberately inlict injuries on the person who was taken
23
into police custody under the pretext of investigation and interrogation. A Police
24
officer's function is to investigate persons suspected of crime or alleged to be
25
criminals and not to turn themselves to be in the position of criminals or to turn the
26
police lockup or police station as a crime scene as if that is permitted to happen, it
27
will no doubt destroy the reputation of other innocent oicers. In the present case, a
28
proper surveillance and supervision by the officers of the Taipan Police Station
29
would have prevented D2 and any other oficers responsible from inflicting the
30
brutal injuries on the deceased for which D l and D 3 should be held liable. (Lai Kim
31
Hon & Ors v pp (1 981) 1 ML] 84).
78
---.--.�-��
�
1
28.
It cannot be gainsaid that the nature of the tortious act in the present case will cast a
2
serious aspersion on the police force affecting the integrity and professionalism. On
3
the other hand, it must be made clear that this tortious act by the police officers at
4
the Taipan Police Station does not and should not necessarily cast aspersion on the
5
entire police force as that is not fair and just to cast aspersion and invent a negative
6
perception on the entire police force. It is important to reiterate that one isolated
7
incident should not be made to reflect negatively on the entire police force as there
8
are also many dedicated officers who have
9
investigations professionally and rise up the expectation of the public. (Tan Sri
10
(sekarang Tun) Mohd Raniff Omar Kepolisian dan Keselamatan by TPP Mohd. Reduan
11
Aslie). In so far as this court is concerned, the findings and decision of this court is
12
based and confined to the factual matrix of the present case and in reference to the
13
officers named in this suit including the witnesses who had testified on the
14
defendants' behalf notwithstanding that there are possibly other officers who
15
should have been called to testiy to disclose the truth in this trial but were not
16
called to testiy and no disciplinary action taken against them.
17
18
29.
contributed and conducted
In custodial deaths, evidence of proof are not easy to come in at the trial as there
19
seems to be an emergence, common pattern for officers and colleagues who are
20
responsible for custodial death or brutal attack on detainees to quickly deny the
21
allegations of torture and suppress the actual cause of death which makes it difficult
22
for claimants and family members to establish their case as to what had happened at
23
the lockup or at the police station during the time the detainee is under the police
24
custody. Therefore, "public interest litigation, as in the present case, which is part of the
25
process of participate justice and standing in civil litigation of that patten must have liberal
26
reception at the judicial doorsteps". (Fertilizer Corporation Kamgar Union v Union of
27
India AR (1 981) S.c. 344 at p. 355, P-, Kapoor v Union of India (1992) Cri L.,. 128 at
28
p. 134 (Dal). This is also another case which concerns a matter of legitimate public
29
interest and grave concern to society, especially, and in view of accusations thrown
30
at police officers whenever there is a death in police lockup or stations. Custodial
31
death i s serious crime violence. Therefore, as soon as such incident i s reported or
79
1
has become public knowledge, the higher authorities in the police force, in the
2
present case, Dl should act promptly, be transparent and must ensure that the
3
investigation is conducted with promptitude by an independent investigation
4
agency or the least to ensure that an inquest is held to determine the cause of death
5
of the detainee who had died in police custody.
6
7
30.
On the other hand, this court finds that the evidence given on the defendants' behalf,
8
indicating the circumstances leading to the death of the deceased is not truthful, an
9
exaggeration and unreliable and is a case of not disclosing the true events of what
10
had occurred during the time of the deceased's detention at Taipan Police Station
11
from 15.1.2009 till his death on 20.1.2009. On the factual matrix and the
12
surrounding circumstances of the present case and having observed the demeanor
13
of DW1, DW3, DW4 and DW6 and based on the totality of the evidence, be it direct
14
or circumstantial, there is compelling reason to find that the version given on behalf
15
of Dl, D3, D4 and D5 is most unreliable and not probable under the circumstances.
16
On the totality of the evidence, this court finds there is sufficient evidence, be it
17
direct or circumstantial to find that the plaintiff has established her claim on the
18
balance of probabilities against the defendants, for which D4 and D5 must be
19
vicariously liable. As for D3, it is unfortunate that he has passed away on 8.10.2011
20
and was not able to testiy as to his role and the purpose of calling the oicers of
21
Taipan Police Station for a meeting at the Contingent Police Head Quarters, Shah
22
Alam when in fact his office was at all material time at Subang Jaya Police Station
23
and not at the police Contingent Head Quarters at Shah Alam where Dl was
24
positioned.
25
26
3 1.
This court would think it is a lesser evil to allow a suspect who is accused of a crime
27
and is guilty in the eyes of police oficers to be freed due to lack of admissible
28
evidence to support the crime than to have a confession extorted or forced out
29
through unlawful means or by brutal acts resulting in custodial death, as in the
30
present case, which is a greater evil committed by a group of policemen from an
31
institution who is expected to be in charge of law and order and national security.
80
1
Such unlawful acts resulting in death in police locks up or stations will defeat the
2
rights and liberty of a person guaranteed under the Federal Constitution and
3
destroy them altogether which is unacceptable in a civilized society. This kind of
4
unlawful act by oficers of the same institution who are in charge of the law and
5
order and national security will no doubt result in the confidence eroding and may if
6
not attended' to on an urgent basis diminish the trust and confidence in the
7
institution which I personally have respect as there are many good and professional
8
police officers who carry out their duties professionally and within the powers
9
entrusted to them by law and this includes some past National, State and District
10
Police Chiefs and Investigating Officers. However, it is most unfortunate to find that
11
what had happened in the present case, is that, the violators of the crime who had
12
caused the death of the deceased are those, who had been entrusted by law with the
13
duy to protect this rights. This case demonstrates an instance of clear
14
contravention or Article 5 of the Federal Constitution as the right to live must include
15
the right to live with human digniy. This court has to protect fundamental rights of
16
every citizen to live and the right to life is a natural right embodied in Article 5 of the
17
Federal Constitution.
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
Article 5 of the Federal Constitution provides:A . 5 Liberty of the person.
(1) N o person shall b e deprived o f his life o r personal liberty
save i n accordance with law.
In Laim Kim Hon & Ors v pp (1981) 1 MLJ 84, Tun Suffian, Lord President
of the Federal Court said at p. 92:" .....Malaysia should not be allowed to develop into a police
state ....
"
"Members of the Force who d o their duty in accordance with
the law will receive our and public support and
encouragement; but those who treat suspects in a cruel
manner can expect to receive only very severe punishment
from the courts. Parliament and the public will not allow a
Savak to be established here, bringing disrepute to those
81
responsible for the government and for the administration of
justice."
1
2
3
4
32.
Be that as it may, enlarging the phrase that 0 2 had acted on a frolic of its own' when
5
he committed the acts on 16.1.2009 would be too far fetched. Further if that
6
contention is accepted, it could arguably mean that 02 had carried out the
7
interrogation in his private capacity at the Taipan Police Station which had about 15
8
oicers including Sub Inspector Loh Voon Chye who was in charge of preparing the
9
duty roaster. Further, if that contention that 0 2 had acted on a frolic of its own' and
10
that his entry to the third floor and access to the deceased on the date and time
11
being 16.1.2009 was unlawful, it would be an alarming and dangerous state of
12
affairs as the police station should be the safest place for members of public to be
13
present including detainees and should be free of crime. Therefore, the contention
14
on behalf of 01, 03, 0 4 and 05 that the act of 02 was a frolic of is own' is untenable
15
and a desperate attempt to escape liability. By some mysterious dispensation, the
16
truth seems to have been hidden from this court, but however, this court is not
17
persuaded on the factual matrix of the present case to absolve 0 1 and the other
18
defendants from any civil liability. This court is satisfied that the police authorities
19
at the Taipan Police Station were indeed in breach of their public duty in not having
20
provided and protected the life and safety of the deceased who was detained
21
pursuant to a remand warrant granted by the Magistrate and who was in the
22
custody of the police, between 15.1.2009 and 20.1.2009 until his death, even if the
23
deceased is a suspected criminal. (Lockup Rules 1 953).
24
25
26
27
28
29
30
31
32
33
Abraham Lincoln, said:"if you once forfeit the confidence of your fellow citizens
(which must necessarily include police officers) you can
never regain their respect and esteem. It is true that you can
fool all the people some of the time, and some of the people
all the time, but you cannot fool all the people all the time"
(Ragbir Singh v State of Haryana (1 980) AIR 1087).
34
35
82
1
33.
In the circumstances, this court finds that this is a case of lack of responsibiliy,
2
professionalism, breach of public duty and gross violation of the constitutional
3
rights accorded to any individual or detainee, in the present, the deceased, which
4
must not be violated as public interest demand their safety while in police custody.
5
(Osman v United Kingdom (1 998) 28 EHRW 245). The tortious act of the defendants
6
had been 'deliberate, conscious and unjustfiable' and is an actionable infringement of
7
the deceased's constitutional rights which has been committed by oicers of the
8
institution which was legally obliged to protect the rights of the deceased.
9
10
34.
Vicarious liability means that a person, free from blame, may be held liable for the
11
torts of another. The principle is exceptional in the law of tort, with its historical
12
emphasis on a philosophy of individualism, personal freedom and personal
13
responsibility for the consequences of one's conduct and is thus conined to a few
14
specific relationships. Most notable of these is the employer/employee relationship.
15
In this context, the imposition of vicarious liability is acknowledged as performing
16
important social and economic functions, equally from the perspective of
17
distributive and corrective justice. An employer is vicariously liable only for those
18
employee torts committed in the course of employment. The generally accepted
19
formulation defining the course of employment, attributed to ProfessorJohn Salmond
20
in the 1t Edition of his book, the 'Law of Tors', has stood irmly and weathered
21
almost a century of judicial scrutiny. The accepted formulation is surprisingly and
22
perhaps unfortunately concise. An employer has been held to be vicariously liable
23
for the intentional wrongdoing of his employee in wide varieties circumstances. The
24
circumstances in which an employer may be vicariously liable for his employees
25
intentional misconduct is not closed.
26
27
28
29
30
31
" An employer will be liable not only for a wrongul act of an
employee that he has authorized, but also for " a wrongful
and unauthorized mode of doing some act authorized by the
master. "
32
83
1
35.
Despite, or perhaps because of, the simplicity of the Salmond formulation, in
2
application it has proved to be somewhat less than precise, dependent on
3
judicial attitudes in changing times. As such, it is, in application at least, an
4
evolving concept that must be kept in check, to ensure that it continues to meet
5
the needs of those changing times. This is particularly so given the range of
6
different employment situations that exist in a modern, sophisticated economy,
7
not to say the nature of different forms of wrongful conduct in which employees
8
are capable of engaging. The 'one size its all' approach is unlikely to achieve just
9
results in all of the circumstances that can potentially give rise to claims for
10
vicarious liability. It is also necessary to consider whether an action for
11
vicarious liabiliy (which means employer will be liable for employees'
12
negligent act) could be established in regard to the breach of a duty of care. In
13
order to hold an employer vicariously liable for the tort committed by the
14
employee, the plaintiff must establish three elements:
15
16
17
18
19
20
21
22
23
24
36.
(1)
that the employee (tortfessor) is under the employment of
the defendant;
(2)
that the employee had committed a tort; and
(3)
the employee had committed the tort during the course of
employment.
There can be little doubt that the introduction of the concept of vicarious liability
25
into the law of tort was largely driven by the pragmatic consideration of finding a
26
'deep pocket' to ensure that compensation is paid. Since, the employer takes the
27
benefit from the enterprise in which the employee was engaged when the tort was
28
committed; it is only fair that the employer be made liable (in addition to the
29
employee). After all the employer has introduced the risk of the incident through his
30
enterprise and perhaps, more to the point, the employer is in the best position to
31
exert influence over employees and modiy techniques of performance of public
32
duty such that the occurrence of similar incident can be better avoided in future. In
33
other words, the employer is in the best position to respond to the deterrence
34
function of an award of damages. The decisive feature in the present case was that,
84
1
in obtaining the confession from the deceased, D2 had used an improper method or
2
means of obtaining the confessions for his superior which was for Dl, D3 and D4.
3
There is closeness of the connection between the duties which D2 was instructed to
4
perform and which resulted in the death. D4 and D5 are vicariously liable. D2 was
5
not engaged 'on rolic of his own' or not acting as an employee or had departed from
6
the course of his duty. Vicarious liability of the employer for the tortious act of his
7
employee or servant which liability is derived from the doctrine 'respondent superior'
8
'qui facit per alium facit per se'. Basically, it means 'he, who employs another to do
9
something, does it himsef or 'he would does an act through another is deemed in law to do it
10
himsef, so long it is done 'within the course of employment'. By exercise of reasonable
11
care, proper steps taken to supervise, monitor and obtaining report or the outcome
12
on a regular basis of the progress of the intensive interrogation of the deceased,
13
would have avoided the fatal harm caused to the deceased for which the defendant
14
must be found liable. (Green v DB Group Services (UK) Ltd (2006) EWHC 1898 QB,
15
Lockup Rules 1 953). Accordingly, there was breach of duty for which the defendants
16
must be found liable.
17
18
37.
It is a question of fact in each case whether the tortious act committed by the
19
servant or employee relates to the sphere of the employment or to the mode or
20
method of performance. The court must look at the circumstances broadly without
21
dissecting the employees' duty or task into component activities. (lkiw v Samuels
22
(1 963) 1 WLR 991 at p. 998). It is the cummulative effect of the conduct which is
23
important and has to be taken into consideration rather than individual incidents.
24
Mere prohibition of the mode of performing his job while in the employment cannot
25
be used as a defence in the award of exemplary damages as the court must take into
26
account not only the interests of the deceased and his family and the defendants but
27
also the interests of the public as a whole with the view to ensuring that the public
28
bodies or officials do not act unlawfully and abuse their powers but to carry out
29
their public duties properly and lawfully. (s.20 of the Police Act, 1967, Nilabaty
30
Beraha v States of Orissa, (1 995) 2 East Cri C 281 (S..)). In this respect, this court
31
must play an important and vital role in not only preventing and remedying the
85
1
abuse and misuse of powers but also to eliminate any exploitation and prevent
2
injustice. Uanata Dal v H.s. Chowdhary AR 1 993 S.c. 892, AIR 1996 Cal 181 at p. 219).
3
38.
In the present case, scope of the duty of 02 to obtain or extort information or
4
confession from the deceased was to facilitate the investigation for his superior
5
oficers, in the present case, the investigating officer and it was within the scope of
6
his employment. If in the course of his employment and duty and during the
7
intensive interrogation, 02 had acted in excess of what was necessary in carrying
8
out his duty, and in the course had inflicted the injuries to the deceased which had
9
resulted in the death, it does not necessarily mean the act is outside the class of
10
authorized acts. Upon considering the extent of the instruction given to 02, be it
11
authorized, express or implied and although the acts committed by 02 were
12
unlawful and wrongful, it is clear that the performance of his duty was done in the
13
course of his employment. The extortion of the confession from the deceased by 02
14
was in any event for the benefit of his superior officers, the investigating officers and
15
the other defendants. On the other hand, even if his performance was done in a high
16
handed fashion and was unlawful or wrongful, the fact remains that the end result of
17
the extortion of the confession which was done in the course of his employment was
18
for the benefit of his superior officers and the defendants. In the circumstances,
19
when the evidence is considered cummulatively, this court is satisfied that the acts
20
committed by 0 2 were done in the course of his employment and that 0 1, 03, 04
21
and 05 are not permitted to conveniently and unfairly disclaim liability by merely
22
saying that the acts of 0 2 were committed outside the scope of his employment or
23
that the act of 0 2 was committed on a frolic a/his own'which is untenable. The acts of
24
02 was done in the course of his employment with 04 and 05 and that the duty 02
25
had performed was for his superior officers and for the defendants for which 0 2 is
26
found liable and accordingly, 04 and 05 are vicariously liable for the act or acts of
27
02. (Plumb v Gobden Flour Mills Ltd (1 914) AC 62 at p. 67, Lloyd v Grace Smith & Co
28
(1912) AC 716, Limpus v London General Omnibus Company 1 H&C, Goh Choon Seng v
29
Lee Kim Soo (1925) AC 550, Keppel Bus Company Ltd v Sa'ad bin Ahmad (1974) 1 MLJ
30
191 (distinguishable on the factual matrix and circumstances of that case), New South
86
1
Wales v Lepore (195) ALR 412, Saheli, A Women's Resources v Commissioner of Police,
2
Dehli (1 990) AIR 513).
3
4
39.
In fact, attempts were also made to introduce evidence on behalf of 01, 03, 0 4 and
5
05 that 02 had entered the third floor of the Taipan Police Station where the
6
deceased was detained on 16.1.2009 and that his entry to the third loor was not
7
permitted at the time. H owever, it must made clear that the defendants cannot
8
appobate and reprobate and if that evidence is accepted so as to place the entire
9
blame on 02 and to absolve the other defendants from liability, it will be a sad day
10
for the detainees held in police lockup or stations that their safey is compromised
11
and it will reflect on lack of security system, supervision or management by the
12
officers manning the police station and that it is not monitored by the officer in
13
charge at the police lockup or station. It is important to make it clear at this stage
14
that causing assault and battery or grievous hurt to the deceased is obviously not
15
within the scope of 02's employment but however, the acts committed were
16
certainly done during the course of his employment and the extortion of the
17
confession was for the benefit of his superior officers and the investigation team.
18
While the acts committed by 02 was unlawful and wrongful or the extraction for the
19
confession from the deceased was through wrong mode or method which 0 2 was
20
expressly or impliedly authorized or employed to obtain from the deceased, it was
21
still part of 02's duty to his master, in this case, 01, 03, 04 and 05 to ensure that the
22
extraction of the confession from the deceased was carried out in the course of his
23
employment. As stated above, and even if 02 had acted in a very high handed
24
manner, the fact remains that he was acting in the course of his employment or in
25
the course of his performance of his duties. However, and even if the interrogation
26
or the information sought to be extracted was carried out by 02 in the manner
27
which is unacceptable and the force used was excessive, it may arguably amount to
28
merely acting in excess of what was necessary in carrying out his duty to obtain the
29
confession which 0 2 was authorized to do, which in any event, it still does not
30
absolve 01, 03, 04 and 05 from vicarious liability. (Scrutton LJ in Polland vJohn Parr
31
& Sons (1926) 1 KB 236).
87
1
40.
There is also suficient evidence that would justiy the ascription of the act of D2 to
2
the authority impliedly vested in D2 by his superior officers, inter alia, ASP Radhuan,
3
ASP Rodney Pasla Haris (DW4), Inspector Faaezal bin Monir (DW2) and Detective
4
Sub Inspector Loh Voon Chye (DW3). While D2 may not have been expressly
5
authorized to conduct himself in the unlawful manner, but however, D2 had been
6
placed in the position to carry out the interrogation and extract the confession for
7
which D1 and D3 must be answerable for the manner in which D2 had conducted
8
himself in carrying out his duties. Had there been proper and regular supervision
9
and monitoring system in place, ASP Radhuan or Inspector Faaezal or Detective Sub
10
Inspector Loh Voon Chye would have discovered the unlawful act or the grievous
11
hurt much earlier or on 16.1.2009 that it is, in the event they have no knowledge of
12
the deceased's condition prior to his death as which have been claimed which this
13
court is unable to accept the plea of ignorance. Consequently, D4 and D5 must be
14
found vicariously liable. (Barwick v English Joint Stock Bank L.R. 2 Ex 259).
15
Accordingly, D1, D3, D4 and D5 must be prepared in the circumstances of the case to
16
be answerable and responsible in law and on the factual matrix of the case for the
17
acts committed by D2 and they are found vicariously liable for the tortious act of D2.
18
19
41.
Be that as it may, this court finds that the cummulative effect of the entire evidence
20
produced on behalf of D1, D3, D4 and D5 is inconsistent, contradictory, unreliable
21
and is against the weight of the totality of the evidence which favours the plaintiffs
22
case and the evidence on the defendants' behalf cannot succeed as rebuttal
23
evidence. The fact remains that the deceased died as a result of the injuries inflicted
24
on him while he was in the police custody. The extent of injuries found on the
25
deceased as stated in the first port mortem report dated 24.2.2009 (Exhibit P7) and
26
both the internal and external injuries has found in the second post mortem report
27
dated 25.1.2009 (Exhibit PS) of Dr. Prashant N Samberkar, the Pathologist from
28
Universiy Malaya Medical Centre was in all probability inlicted when the deceased
29
was in the custody of the police officers at the Taipan Police Station between
30
1 5.1.2009 and until his death on 20.1.2009 and the grievous injuries cannot possibly
31
be confined to the incident on 16.1.2009. In so far as D1, D3, D4 and D5, they have
88
1
failed in their public duty to protect the fundamental and constitutional rights of the
2
deceased while in the custody of the police as at 14.1.2009 and at Taipan Police
3
Station between 15.1.2009 till 20.1.2009. Is this not a case of the deceased having
4
been taken into police custody alive on 14.1.2009 but regrettably, the plaintiff was
5
handed a dead body of the deceased by the police with external and internal injuries
6
as found in the post mortem report for which D4 and D5 cannot disclaim liability
7
and attempt to relinquish their responsibility by looking for exits. In the present
8
case, this court finds there is no denial that the first time the family of the deceased
9
was informed of the deceased's whereabouts was after his death on 20.1.2009 at
10
9.00am although he was in police custody from 14.1.2009 till his death on
11
20.1.2009. There has been no explanation or reasons given for not informing the
12
deceased's family that the deceased was in police custody from 14.1.2009.
13
Therefore, D4 and D5 cannot escape liabiliy and must be prepared to accept their
14
responsibility for which they are found vicariously liable.
15
16
42.
It is not disputed that the fatal injury which the deceased had sustained arose out of
17
and in the course of D2's employment with D4 and D5. The submission of the
18
learned Senior Federal Counsel, with respect appears to be inconsistent, perhaps, in
19
his desperate attempt to absolve Dl, D3, D4 and D5 from vicarious liability. On one
20
hand, it is submitted by the learned Senior Federal Counsel in his written
21
submissions dated 18.3.2013 and his oral submissions on 29.5.2013 that the
22
tortious act committed by D2 on 16.1.2009 was a frolic of his own' and D4 and D5
23
cannot be found vicariously liable for the tortious act of D2. On the other hand, the
24
learned Senior Federal Counsel when pressed by this court, during further
25
clarification on 14.6.2013 in respect of the new set of authorities submitted to the
26
court by him on 3 1.5.2013 and on 7.6.2013 by the plaintiffs solicitors, the learned
27
Senior Federal Counsel has submitted that D4 and D5, if at all could only be found
28
vicariously liable for the tortious act committed by D2 on 16.1.2009 as per the
29
particulars of the offence included in the charge in respect of the criminal case. The
30
learned Senior Federal Counsel has contended on 14.6.2013 that D4 and D5 cannot
31
be found vicariously liable for the other tortious acts if the court so inds to have
89
1
been committed on other instances during the period of the deceased's detention or
2
subsequent to 16.1.2009. However, on the factual matrix in this case, this court finds
3
that D4 and D5 are vicariously liable for the tortious act or neglect of D2. Custodial
4
death during investigation and interrogation by the police officers while the
5
detainee is in their custody, be it in the lockup or police station will certainly give
6
rise to liability in damages. Consequently, in the present case, D4 and D5 are
7
vicariously liable for the tortious act of D2 or the officers responsible for the
8
interrogation and stationed in the Taipan Police Station or part of the team of the
9
officers involved in the intensive interrogation during the period of the deceased's
10
detention.
11
12
43.
In the circumstances, this court is unable to accept the arguments advanced on
13
behalf of Dl, D3, D4 and D5 that they are not liable. As stated above and based on
14
the grievous nature of the injuries inlicted and found on the deceased the
15
defendants' case itself is contradictory, inconsistent and unreliable that the
16
deceased was assaulted only on 16.1.2009 but must have occurred on other dates
17
and by the other oficers or policemen as well during the period the deceased was in
18
their custody. It is their duty, at the least, the officer in charge of the Taipan Police
19
Station to take all the necessary precautions for the care and safety of the deceased
20
when he was in police custody. Therefore, if damages are awarded by this court in
21
respect of the plaintiffs claim it must be recoverable and enforceable against D4 and
22
D5. The D3, D4 and D5 or D3 cannot shift the legal responsibility of the unlawful
23
tortious act onto the shoulders of another person, in the present case, D2 alone and
24
plead to this court not to impose liability against Dl, D3, D4 and D5. Based on the
25
evidence and the circumstances of this case, it would not be in the public interest for
26
D4 and D5 to be permitted to disclaim liability for the death of the deceased when
27
he was in the custody of the police officers at the Taipan Police Station between
28
15.1.2009 until his death on 20.1.2009 as it would be grossly unfair, unjust and
29
would lead to a travesty of justice to deny the plaintiffs claim and absolve D4 and
30
D5 from vicarious liable. There is no evidence to support that D2 had used his
31
position or had carried out the extraction of confession from the deceased for his
90
1
private advantage. This court is of the considered view, with respect, that this is a
2
case of the learned Senior Federal Counsel trying his every best as desperate
3
attempt not so much to assist the court on the evidence and for the court to arrive at
4
a just decision but to persuade this court not to find 01, 04 and 05 liable to the
5
plaintiffs claim. However, this court is not prepared to yield to his persuasion to
6
find for the defendants as that will be contrary to the totality of the evidence which
7
supports the plaintiffs case. (Maslinda lshak v Mohd Tahir Osman & Ors (2009) 6 CLI
8
653).
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
In Roshairee Abd. Wahab v Mejar Mustafa Omar & Ors (1 997) 1
CLI Supp 39, the court said:The facts in that case as reported is as foIlows:1.
By this claim, the plaintiff sought damages in relation to 2
alleged incidents of assault, supposedly committed on him
by the first and second defendants. The plaintiff also
claimed for damages against the third respondent, i.e. the
government, by way of vicarious liability for the actions of
the first and second defendants.
2.
The plaintiffs case was that he was ragged and assaulted by
the first two defendants while undergoing an orientation
programme shortly after reporting for duy with the Royal
Malay Regiment. The second incident alleged was that while
the plaintiff was on the loor doing some push ups, the first
defendant kicked and punched his right ear. The plaintiff
then attempted to escape by running but the first defendant
pursued him.
James Foong J (Later FC) said:"But a master, as opposed to an employer of an
independent contractor, is liable even for acts which he
has not authorised. provided they are so connected with
acts which he has authorised that they may rightly be
regarded as modes - although improper modes - of doing
them. Canadian Pacfic Railway Co v. Lockhart [1942] AC 591
@ 599, which adopted a passage from Salmond on Tos. In
turn, it is accepted by our Malaysian Courts in Keppe/ Bus
Co. Ltd. v. Saad bin Ahmad [1972] 2 MLJ 121 which was
airmed by the Privy Council in [1974] 1 MLJ 191.
In other words, a master is responsible not merely for
what he authorises his servants to do, but also for the way
in which he does it. On the other hand. if the unauthorised
and wronful act of the servant is not so connected with
the authorised act as to be a mode of doing it, but is an
91
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
independent act, the master is not responsible for in such a
case the servant is not acting in the course of his
employment, but has gone outside of it.
By this provision, the 3rd defendants claim that the
practice of such activities is and was unauthorised and will
not be tolerated.
Though this may be so, this Court has still to decide based
on the entire evidence whether the acts of the 1st and 2nd
defendants were carried out while they were in the course
of their duties, to the extent that they were so connected
with their authorised duties that they may be regarded as
a mode of doing them.
Though the 1st defendant's acts of assault were
unauthorised by the 3rd defendant, they were carried out
during the normal course of duy of the 1st defendant.
Such being the case, his unauthorised acts have become so
connected with his authorised acts that this Court finds
them to have become "modes - although improper modes of doing them." For this, the 3rd defendant must be held
vicariously liable for the unlawful actions of this
defendant.
44.
The law would be grievously defective if D4 and D5 are allowed to maintain that
28
they do not owe a duty of care for the safety of the deceased from the time he was
29
taken to police custody on 14.1.2009 and throughout the period of his detention at
30
the Taipan Police Station from 15.1.2009 until his death on 2 0.1.2009. Such an
31
argument on the factual matrix and the surrounding circumstances, with respect,
32
would be without proper basis and would be extremely far fetched and this court,
33
with respect, has no hesitation whatsoever to reject the proposition put forward by
34
the learned Senior Federal Counsel to absolve the defendants. Dl, D3, D4 and D5
35
cannot escape liability as they are under absolute duty to ensure the safey of the
36
deceased while he was in police custody and cannot look for exit, especially when
37
their function is to perform public duty and to ensure that police lockups and police
38
stations are not converted or into crime scene by their own officers. (5.20 of the
39
Police Act, 1 967 and Lockup Rules 1 953).
40
41
92
1
45.
Having found the defendants liable for the tortious act committed against the
2
deceased, it is important to reiterate that simply because the act or the statement
3
given to the media by some officers has given rise to dissatisfaction or suspicion or
4
lack of faith in the police force due to the tortious act of some individual oficers, it
5
should not place the entire police force in the bad light by making vague, reckless
6
and irresponsible sweeping allegation against the entire police force or damage the
7
faith of people who may still have faith and trust on many other officers and the
8
police force in general. It is also important to state that the findings of this court on
9
the tortious act is not against the entire police force but is limited or confined to the
10
officers named in the suit and the officers who were in charge ofthe interrogation at
11
Taipan Police Station during the time the deceased was in their police custody from
12
15.1.2009 until his death on 20.1.2009.
13
14
46.
Be that as it may, while the learned Senior Federal Counsel from the Attorney
15
General's Chambers has a duty to defend, and perhaps, to protect the integriy of the
16
Police Force and the defendants as in the present case, but he must be reminded
17
that he also owes a duty to this court. The duty to this court is paramount and is an
18
inescapable task to assist this court to arrive at a just decision. However, the learned
19
Senior Federal Counsel, with respect, cannot and should not be allowed to protect
20
the oicers responsible for the custodial death or any crime committed by them, in
21
the present case, the death of the deceased, or condone death in a police lockup or
22
police station which is committed by the officers, upon obtaining a remand warrant,
23
no matter what their rank is, especially when the evidence produced in the present
24
case and considered in its totality is overwhelmingly supportive of the plaintiffs
25
case. In the present case, it is unfortunate that this court has to make a finding
26
against Dl, who at the time of the deceased's death was the Chief Police Oficer of
27
the State Selangor, at the time of giving evidence in court, he was the Deputy
28
Inspector General of Police and presently, at the time when this court is to deliver its
29
decision he is the Inspector General of Police. In that respect and based on the
30
factual matrix of the case and for the reasons as stated above, it would have been a
31
better option to concede to liability on the defendants' behalf and particularly,
93
1
where D3, the OCPD of Subang jaya, Police Station had died after the deceased's
2
death and he is implicated where he had called for all the officers and the policemen
3
of Taipan Police Station for a private meeting at the Contingent Police Head
4
Quarters, Shah Alam and considering there is sufficient evidence of cover-up as to
5
the cause of the deceased's death. In addition, there is also evidence of Dl's refusal
6
to clariy his previous statements to the media and the protection given to other
7
officers involved in the death of the deceased and the false entries made in the
8
station diary as to the condition of the deceased.
9
10
47.
As stated above, in the present case, in so far as the plaintiffs claim against the
11
defendants, it is a tortious claim for negligence, breach of public duty, assault and
12
battery, misfeasance and false imprisonment during the period of the deceased's
13
detention which has no relevance or admissible at the criminal trial against the
14
particulars of the charges framed against D2. Consequently, and as the evidence
15
produced in this suit is so overwhelming that justifies admission of liabiliy for the
16
reasons stated above. In addition, Dl had testified with no uncertain terms that the
17
investigation against D2 under s.330 and s.331 of the Penal Code had nothing
18
whatsoever to do with the cause of the deceased's death and that the charges were
19
instituted because D2 had committed a criminal offence on 16.1.2009 and not
20
because of the deceased's death. For easy reference, Dl's evidence in this respect is
21
reproduced:-
22
23
24
25
26
27
28
29
30
Peguam plaintif:
Tadi Tan Sri kata siasatan tentang kes kematian Kugan ini diklasifikasikan
sebagai seksyen 330 Kanun Keseksaan?
DW1:
Bukan kes kematian Kugan, tetapi siasatan terhadap salah laku polis dalam
kes Kugan ioi.
31
32
33
94
1
48.
In the circumstances, this court wishes to reiterate that the fact of any concession on
2
the defendants' behalf in this civil suit will have no bearing or relevance to the
3
criminal charges against 0 2 as testified by 0 1 which is confined to the criminal
4
offence committed on 16.1.2009 as witnessed by OW6 and not in respect of the
5
tortious acts as pleaded against the defendants in the present suit. Therefore, the
6
concession would have saved the officers of Taipan Police Station and 0 1 from being
7
exposed to various other flaws and attack which has been revealed in this trial. In
8
addition, "Huge cost to public purse and substantial police time and resources being diverted
9
to prepare for and proceed with this trial could have been saved resulting in a significant
10
diversion of police man power and attention of their most important function being
11
suppression of crime".
12
13
49.
Be that as it may, it is not inappropriate to state at this stage, with respect, that
14
times have gone where legal officers of the Attorney General's Chambers, who will
15
stand up in court and graciously concede to some of the evidence or matters which
16
has emerged during the trial whenever it is disclosed the investigation had shown
17
flaws and was not carried out in accordance and in compliance with requirements of
18
the law. As an officer of the court, the learned Senior Federal Counsel, with respect,
19
is obliged and is expected to be candid and show utmost professionalism in carrying
20
out his duty. His or her paramount duty is to assist the court with the truth and to
21
introduce fairly and impartially all admissible evidence but surely, with respect, his
22
duty is not to cloud the relevant issues in order "to bolster a case for the defendans
23
which was clearly defective" right from the beginning or to protect the defendants from
24
the obvious flaws, irregularities, blunders and unethical practice and which is found
25
to be contrary to law. What this court has observed and commented should be
26
embraced in good faith and accepted only as a reminder to the legal officers that
27
they should have no personal interest in the outcome of the litigation which the
28
learned Senior Federal Counsel is aware but purely to ensure that a decision is given
29
in accordance with the true spirit of justice and fair play.
30
95
1
2
3
On his elevation ceremony as judge of Federal Court of Malaysia, Salleh Abas
F.j. (later Lord President) said:-
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
"I am now required to perform my job in an atmosphere of
calm and tranquility, free from inferences from any quarters.
Every conceivable point must be given due consideration,
and every aspect oflaw must be studied, or the decisions will
be out of line with the law. Needless to say, therefore these
onerous duties could not be performed without any the kind
assistance and co-operation of both members of the judicial
and Legal Service and the Bar, and in particular, the
advocates who will appear before me. When the excitement
and novelty of the appointment subsides, I look forward to
the pleasant relationship with the members of the legal
profession, be they in the Government service or in the
private sector, in common endeavors to dispense justice".
(1979) 1 MLj lxxxix-xc)
19
50.
In the present case, there are compelling reasons to ind that the tortious act on the
20
deceased was a continuing act till his death on 20.1.2009 and it is a reasonable
21
inferences to be drawn based on the direct and circumstantial evidence. The
22
cummulative effect of the facts and surrounding circumstances so established and
23
relied on by the plaintiffs is reasonable and capable of such an inference.
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
In/ones v Great Westen Railway Company [1930] AC 152 Lord
McMilllan said at p. 202:
'An inference in the legal sense is a deduction from the
evidence and if it is a reasonable deduction, it may have
the validity of proof:
In Caswell v Powell Duffryn Associates Collieries Ltd [1 940] AC 152
at pp. 186-170, Lord Reid said:
'Inference must be careully distinguished from
conjecture or speculation. There can be no inference
unless there are objective facts from which to infer the
other facts which it is sought to establish. In some cases
the other facts can be inferred with as much practical
certainty as if they had actually been observed. In other
cases the inference does not go beyond reasonable
probability but if there are no positive proved facts from
which the inference can be made the method of inference
fails and what is left is mere speculation or conjecture:
96
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
I n Maharashtra State Board of Secondary & Higher Secondary
Education v Gandhi & Ors [1 991J 2 sce 716 at p 748, the Supreme
Court said:
'Inference from the evidence and circumstances must be
careully distinguished from conjecture or speculation.
The mind is prone to take pleasure to adopt
circumstances to one another and even in straining them
a little to force them to form parts of one connected
whole. There must be evidence, direct or circumstantial,
to deduce necessary inference in proof of the facts in
issue. There can be no inference unless there are
objective facts directs or circumstantial from which to
infer the other facts which it is sought to establish. In
some cases the other facts can be inferred as much as
practical as if they had been actually observed. In other
cases the inferences do not go beyond reasonable
probabiliy. If there are no positive true facts, oral,
documentary or circumstantial from which the inference
can be made, the inference fails and what is left is mere
speculation or conjecture.'
51.
Be that as it may, proof of facts need not necessarily be obtained from the plaintiffs'
24
case but on the totality of the evidence before the court and this would also include
25
evidence of the defendants. In other words, evidence in support of the plaintiffs'
26
case need not necessarily be confined to what is adduced on the plaintiffs' behalf
27
but the whole of the evidence from whatever source, either by the plaintiffs' own
28
evidence or by cross-examination of the defendants or by admission and any
29
admission made by or on behalf of the defendants must also be taken into
30
consideration. (see Yew You & Anor v Mash Poay Loh & Anor (1970) 1 MLJ 57 at p.S9,
31
Neo Chan Eng v Koh Yog Yoe 1960 MLJ 291 atp.292).
32
33
34
35
36
37
38
39
40
41
42
43
" ... It is elementary law that the onus on the plaintiffs
is satisfactorily discharged once it appears to the
court on balance of probabilities that the
circumstances are more consistent than not with the
defendants' negligence. Evidence in support of the
plaintiffs' case is not necessarily confined to what is
adduced on their behalf, but the whole of the
evidence, from whatever source, must also be taken
into consideration." (Yew You & Anor v Mah Poay
Koh &Anor [1 970J 1 MLJ 57 at p 59, Ong Hock Thye
C) (Malaya))
97
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
Proof is required but proof of the fact depends upon
the degree of probability of its having existed. On the
other hand, proof does not mean proof to rigid
mathematical demonstration, because that is
impossible; it must mean such evidence as would
induce a reasonable man to come to a particular
conclusion as a fact. (see Fletcher Moalton L.]. in
Hawkins v Powells Tillery Steam Coat Co Ltd
(1 911) 1 K.. 988)
For weighing evidence and drawing inferences from
it, there can be no cannon. Each case presents its own
peculiarities and in each common sense and
shrewdness must be brought to bear upon the facts
elicited (see R v Madhub Chander (1874) 21 ,..
13)
"When it is said that a person who comes to the Court
for relief must prove his case, it is never meant that
he must prove it with absolute certainy. No fact can
be proved in this world with absolute certainty. All
that can be done is to adduce such evidence as that
the mind of the tribunal is satisied that the fact is so.
This may be done either by direct evidence or by
inference from facts. But the matter must not be left
to rest in surmise, conjecture, or guess." (per Buckley
L.C.). in Hawkins v Powells Tilley Steam Coal
Company Ltd (1 911) 1 KB 988 at p. 996).
52.
In so far as 5.5 and S.6 of the Government Proceedings Act 1956, the oficers
32
responsible for the custodial death of the deceased have been named and one of the
33
officers named had committed the tortious act on 16.1.2009 as witnessed by DW6
34
Therefore, liability has been established against D2 to trigger the provisions of
35
5.5 and S.6 of the 1956 Act.
36
37
38
39
40
41
42
43
44
45
46
47
s.5 and S.6 of the Government Proceedings Act 1956 provides:
5 Liabiliy of the Government in tort.
"Subject to this Act, the Government shall be liable for any
wrongful act done or any neglect or default committed by
any public officer in the same manner and to the same
extent as that in which a principal, being a private person,
is liable for any wrongful act done, or any neglect or
default committed by his agent, and for the purposes of
this section and without prejudice to the generaliy
98
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
thereof, any public officer acting or purporting in good
faith to be acting in pursuance of a duty imposed by law
shall be deemed to be the agent of and to be acting under
the instructions of the Government"
6 Limits ofiabiy of the Govenmen.
(2) No proceedings shall lie against the Government by
virtue of section 5 in respect of any act, neglect or
default of any public officer, unless proceedings for
damages in respect of such act, neglect or default
would have lain against such officer personally.
(3) Any written law which negatives or limits the amount
of the liability of any public oficer in respect of any
act, neglect or default committed by that officer shall,
in the case of proceedings against the Government
under section 5 in respect of such act, neglect or
default of such oficer, apply in relation to the
Government as it would have applied in relation to
such officer if the proceedings against the Government
had been proceedings against such oficer.
(4) No proceedings shall lie against the Government by
virtue of section 5 in respect of anything done or
omitted to be done by any person while discharging or
purporting to discharge any responsibilities of a
judicial nature vested in him, or any responsibilities
which he has in connection with the execution of
judicial process.
(5) No proceedings shall lie against the Government by
virtue of section 5 in respect of any act, neglect or
default of any public officer, unless that officer was at
the material time employed by the Government and
paid in respect of his duties as an officer of the
Government wholly out of the revenues of the
Government, or any fund certiied by the appropriate
financial oficer for the purposes of this subsection or
was at the material time holding an office in respect of
which the appropriate financial officer certifies that
the holder thereof would normally be so paid.
(6) For the purposes of subsection (4) the expression
"appropriate financial officer" means, in respect of the
Federal Government, the Minister of Finance, and in
respect of the Government of a State, the State
Financial Officer, and, in the case of the States of Sabah
and Sarawak, the State Minister responsible for
finance.
99
1
53.
Therefore, this court finds that the plaintiff has on the balance of probabilities
2
established the claim against the defendants and the defendants are found liable to
3
the plaintiffs claim.
4
5
54.
The object of awarding damages is two fold, whether for breach of contract or
6
tortious act, it is to compensate the plaintiff or the family for the loss suffered as a
7
result of the actions of the defendant. In some cases, the court has the discretion in
8
law where the conduct is sufficiently proved to be so an outrageous conduct of some
9
reprehensible kind, where the offender acts in contumelious disregard to the
10
plaintiffs rights, justice demands and merits punishment for which an award is
11
made which is recognized as 'exemplay damages'. (Mc Gregor on Damages 16th Edi at
12
p. 430, Sweet & Maxwe, Whitfleld v De Lauret (1920) 29 CLR at p. 79). There is also a
13
further category of damages which has been awarded and referred to as 'aggravated
14
damages' and it has been awarded in certain circumstances and it has been awarded
15
for tortious acts, to express the court's 'condemnation' and 'disapprobation' of the
16
offender's conduct. (Rookes v Banard (1 964) AC 1129 at p. 1221, Wilkes v Wood
17
Huckle v Money (1 763) loft, (1 763) 2 Wills B 205, Benson v Frederick (1 766) 3 Burr
18
1845, Drane v Evangelou (1 978) 1 WLR 455, Asghar v Ahmed (1 984) 1 7 HLR 25, Mc
19
Millan v Singh (1 984) 17 HLR 120, Millington v Dufy (1984) 17 HLR 232). It is the
20
gravity and the character and the outrage conduct of the defendants and the need
21
for deterrence where tortious act was inlicted and calculated to inlict injury
22
(Harris v Digital Pulse Pty Ltd (2003) 44 ALSR 370, Thomson v Commissioner of Police
23
for the Metropolice (1 999) 2 ALL ER 762, XL Petroleum (NSW) Ptd Ltd v Cultex Oil
24
(Australia) Ptd Ltd (1 985) 155 CLR 1 at p. 10, Lamb v Contugno (1 987) 164 CLR 1 at p.
25
10, 13, Alfred Templeton v Low Yut Holdings Sdn Bhd (1 989) 2 ML] 202, Afred
26
Templeton v Low Yut Holdigs Sdn Bhd (1993) 1 ML] 443, Cheng Guan & Ors v
27
Perumahan Farlim (Penang) Sdn Bhd & Ors (1993) 3 ML] 352).
28
29
30
31
32
100
1
55.
As to the quantum proposed by learned counsel for the plaintiff, the plaintiff cannot
2
expect this court to award damages as quantified, being, RM5 Million to play to the
3
public gallery because the defendants also expect justice from this court as much as
4
the plaintiff. In order to decide whether this court should award 'exemplay' or
5
'aggravated' damages, this court has to assess the conduct of the defendants, be it
6
individually or collectively in the context of all the circumstances and the
7
aggravating circumstances. In the present case, this court finds, first, the conduct of
8
D2 and other police officers is shockingly harsh, oppressive, reprehensible and
9
justice demands that the award for exemplary or aggravated damages will
10
necessarily reflect in the courts disapproval and condemn, particularly when the
11
conduct of D2 is so outrages and was in total disregard to the legal and
12
unconstitutional rights of the deceased. In other words, the award of punitive
13
damages in the law of tort and on the factual matrix and considering circumstances
14
of the case and the position of the defendants, the award of punitive damages ought
15
to be available when the conduct of the defendant was such as to merit
16
condemnation, for the cover up, the manner in which the injuries were inflicted on
17
the deceased.
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
"While considering the request for exemplay damages,
this Court must bear in mind that the objective for an
award under this category is to punish the defendants, and
to display the Court's indignant attitude towards the acts
committed by the defendants.
However, from the enlightening judgment of Lord Devlin
in Rookes v. Bernard [1964] AC 1 129, such damages must
be restricted to situations where there are:
"oppressive, arbitrary or unconstitutional
action by the servants of the Government"
or where "the defendant's conduct has
been calculated by him to make a profit
for himself which may well exceed the
compensation payable to the plaintiff.
It is the opinion of this Court that with what has transpired
after the incident, and the award of substantial
compensatory damages which includes aggravated
damages which the defendants would have to pay, the 1st
and 2nd defendants would be suiciently punished for
their irresponsible actions, without having to add on
further with exemplay damages.
101
1
2
3
4
5
6
It is also the aspiration of this Court that this award of
significant damages would also deter others rom
continuing or reviving the practice of such unlawful acts."
(Roshairee Abd. Wahab v Mejar Mustafa Omar & Ors (1997) 1
CLI Supp 39, Alfred Templeton & Ors v Low Yat Holdings Sdn
Bhd &Anor (1 9B9) 2 ML1 202).
7
8
5 6.
The award that is made for the loss of dependency and for pain and suffering under
9
s.7 and 8 of the Civil Law Act 1956 does not constitute sufficient public disapproval
10
unlike the exemplary damages to the particular form of the wrong doing namely, the
11
brutal and 'monstrous conduct' on the part of D2. The unlawful act could not have
12
been committed without the knowledge and tolerance of his superiors and other
13
officers involved in the investigation so as to deter the defendants and other oficers
14
from such conduct in the future and to 'mark' the courts disapproval of D2's conduct
15
in all the circumstances of the case. The conduct of D2 is an irresponsible behavior
16
as such that the level of conduct is outrages and flagrant disregard to the deceased's
17
safey meriting condemnation and punishment by way of awarding exemplary
18
damages. In fact, the award for exemplary damages has been awarded in other
19
jurisdictions which has affirmed the judicial power to 'mark' high handed heinous
20
conduct and in contumelious disregard of another rights through the award of
21
punitive damages without limitation to Rookes v Barnet (1964) AC 1129 which is a
22
narrow category in tort as part of common law. Punitive damages are also awarded
23
against the defendants, inter alia, for 'malicious, oppressive and high-handed'
24
misconduct that 'ofends the court's sense of decency'. (Hill v Church of Scientology of
25
Toronto (1 995) 2 S.C.R. 1130 at para 196).
26
27
28
29
30
31
32
33
34
35
36
37
"Exemplary damages are given in cases of conscious
wrongdoing in contumelious disregard of another's rights"
(Knox C,J. in Whit Field v De Lauret & Co.p. Ltd (1 920) 29
C.L.R. 71 at p. 7).
"Tortures in police custody, which of late are on the increase,
receive encouragement by this type of an unrealistic approach
of the Courts because it reinforces the belief in the mind of the
police that no harm would come to them if an odd prisoner
dies in the lockup, because there would hardly be and
evidence available to the prosecution to directly implicate
102
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
them with the torture. The Courts, must not loose sight of the
fact that death in police custody is perhaps on of the worst
kind of crime in a a civilised society, governed by the rule of
law and poses a serious thereat to an orderly civilised
sociey."
"The Courts are also required to have a change in their
outlook and attitude, particularly in cases involving custodial
crimes and they should exhibit more sensitivity and adopt a
realistic rather than a narrow technical approach, while
dealing with the case of custodial crime so that as far as
possible within their powers, the guilty should not escape so
that the victim of crime has the satisfaction that ultimately the
Majesty of Law has prevailed.
Police is, no doubt, under a legal duy and has legitimate
right to arrest a criminal and to interrogate him during the
investigation of a an offence but it must be remembered that
the law does not permit use of third degree methods or
torture of accused in custody during interrogation and
investigation with that view to solve the crime. End cannot
justiy the means. The interrogation and investigation into a
crime should be in true sense purpose full to make the
investigation effective. By torturing a person and using their
degree methods, the police would be accomplishing behind
the closed doors what the demands of our legal order forbid.
No. society can permit it.
How do we check the abuse of police power? Transparency
of action and accountability perhaps are tow possible
safeguards which this Court must insist upon. Attention is
also required to be paid to properly develop work culture,
training and orientation of police force consistent with basic
human values. Training methodology of the police needs
restructuring. The force needs to be infused with basic
human values and made sensitive to the Constitutional ethos.
Efforts must be made to change the attitude and approach of
the police personal handling investigations so that they do
not sacriice basic human values during interrogation and do
not resort to questionable form of interrogation. With a view
to bring in transparency, the presence of the counsel of the
arrestee at some point of time during the interrogation may
deter the police from using third degree methods during
interrogation. (D. K. Basu and another v State of West
Bengal and another(1 997) SCC (Cr) 92}.
103
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
The injuries sustained by the deceased cannot be disputed
because the deceased was inside the jail under the custody of
wardens, respondent Nos. 5 to 13 and the injuries were
sustained inside the jail and, therefore, there is no dispute
that the injuries sustained by the deceased were perpetrated
by the respondent Nos. 5 to 13. That the speciic averments
made in para 10 of the writ petition are not disputed by the
respondents. Therefore, it is accepted as gospel truth that the
injuries sustained by the deceased have been perpetrated by
the respondent Nos. 5 to 13 resulting in his death.
Of late a custodial death has become the rule of the day. It is
heinous crime perpetrated by the custodians of law. If
custodians of the law themselves indulged in committing
such crimes then no part of the society is safe and secured. If
the jail wardens whose duties are to provide securiy and
protection to the citizens indulged in such methods instead
of providing security and creating a sense of insecurity in the
minds of the citizens then the citizens will have no
confidence in the custodians of law. Such acts perpetrated by
the custodians of law are more heinous than he game keeper
becoming a poacher or a treasure guard becoming a robber.
If the above facts are established it is well substantiated that
there has been flagrant infringement of indefeasible right
guaranteed by Article 21 of the Constitution and in such a
situation the citizen has a right to get exemplay damages.
Now what remains to be decided is the quantum of
compensation. No amount of treasure on earth can be
substituted for the dear and loving one. Any amount of
compensation that may be awarded is only in the nature of
exemplay damages and in palliative. The deceased was
stated to be aged 24 years. If this is so, the petitioner has lost
his son at the prime of his life. However, as already observed
no amount of compensation can be adequate in terms of
valuable and precious life. (Ghotovi Sema vs State Of
Nagaland And Ors 1 996 Aj 996).
5 7.
While exemplary damages is seen to be an exceptional remedy and reserved for the
41
most reprehensible circumstances of civil wrongdoings and limited to three
42
categories test as in Rookes v Banet (1 964) AC 1129 but later cases have opened up
43
the categories for further evolution, where there are compelling authority including
44
circumstances on the wrongdoing by police oficers. (Kuddus v Chief Constable of
45
Leicestershire Constabulary (2001) 3 ALL ER 193, Huckle v Money 95 ER 768, Wilkes v
46
Wood (1 763), Lofft 1, 98 E.R. 489 (K.B.) at pp 498-99). In any event, Lord Devlin's irst
104
1
category as recognized in Rookes v Banet (1 964) AC 1129 fits the present case as
2
justiYing the award for exemplary damages and therefore is within the scope of the
3
first category.
4
5
58.
As to the award for aggravated damages, it would act as a sufficient deterrence to the
6
defendants, and other officers who seems to have the 'cultural habit' of being
7
oppressive and inlicting physical assault on suspects and detainees and it would
8
cause the officer in charge of arrest, interrogation and investigation and the
9
superiors to take adequate steps necessary to ensure that such oppressive and
10
unconstitutional misconduct offences will be unacceptable and objectionable
11
against those who act irresponsibly or contrary to the public interest so as to send a
12
reminder that they must treat suspects and detainees with the sense of decency and
13
professionally and it is an uncompromising duty.
14
15
59.
In fact, eminent judges have considered and accepted from very early years that
16
'exemplay damages' is available in certain circumstances, in torts, and 'to be punitive
17
for reprehensible conduct and as a deterrence' and have used the expression 'vindictive
18
damages', 'retributay damages' or 'punitive damages'. [Merest v Harvey 5 Taunt, 442 (in
19
1814), Amiable Nancy 3 Wheat, 546 atp. 558 (in 1818), Emblen v Myers 6 H & N 54 atp.
20
58 (in 1860), Bell v Midland Railway Company 10 .B. (NS.), 287 at p. 308 (in 1861),
21
Dreyus v Peruvian Guano Co. 42 Ch. D., 66 at p. 77 (in 1889), The Mediana (1900) A..
22
at p. 118, Anderson v Carlvert 24 T.L.R. 399 (in 1908), Smith v Streatfeild (1 913) 3 .B.
23
764 at p. 769 (in 1 913)] .
24
25
26
27
28
29
30
31
32
33
34
35
36
"Where a defendant with a cynical disregard for the
plaintiffs rights has calculated that the money to be
made out of his wrongdoing will probably exceed the
damages at risk ... This category is not confined to
moneymaking in the strict sense. It extends to cases
in which the defendant is seeking to gain at the
expense of the plaintiff some object-perhaps some
property which he covets-which either he could not
obtain at all or not obtain except at a price greater
than he wants to put down. Exemplay damages can
properly be awarded whenever it is necessary to
teach a wrongdoer that tort does not pay." (per Lord
105
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
Devlin at p . 1221.) (McMillan v Singh (1985) 1 7
H.L.R. 120)
In Drane v. Evangelou [1 978J 1 .L.R. 455 , the
Court of Appeal upheld an award of exemplay
damages in a case of eviction by a landlord. In that
case, however, the landlord was not convicted of any
offence under the Protection From Eviction Act 1977
before the civil action was decided. The present case
concerns an award of exemplay damages where the
landlord had been convicted and fined under the
1977 Act, and demonstrates that exemplay damages
may still properly be awarded in such a case.
The defendant appealed on the grounds:
•
•
(a) that there should have been no additional
award of aggravated damagesi
(b) that the judge failed to give suficient
regard to the fine and costs which the
defendant had been ordered to pay. with the
effects (i) that an award of exemplay
damages would punish the defendant twice,
and (ii) that the judge had failed to observe a
distinction between the present case and the
case of Drane v. Evangelou and (ili) that the
award of £1.000 had been adopted from
Drane v. Evangelou without considering
whether it was appropriate in the present
case; and
•
•
(c) that the judge paid insufficient regard to
the defendant's income, and to the fact that
he had been granted legal aid with a nil
contribution and, in relation to costs, that the
judge had regard to the income of the
defendant's son's business.
Held (dismissing he appeal)
•
•
(1) There was no basis for interfering with
the judge's award of aggravated damages; the
case was about as plain a case for aggravated
damages as one would expect to find;
(2) No material had been presented to the
court defining or describing the scope of the
facts in respect of which the defendant was
fined; in the award of exemplay damages, the
judge had had regard not only to the initial
eviction but to the fact that the plaintiff had
been dispossessed of his belongings, and to
the deliberate and unlawful refusal to admit
the plaintiff after the injunction was granted;
the judge had directed his mind to the fact
106
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
that the defendant had been fined for the
eviction, but there was a great deal more to
the conduct which followed the eviction
which justified the finding that this was an
outrageous
of
absolutely
example
persecution by a landlord of a tenant; there
was no basis for suggesting that the judge
had been unaware of the distinction between
the present case and Drane v. Evangelou , or
that the amount of £1,000 had been simply
plucked from the judgment in Drane v.
Evangelou and applied to different facts;
•
(3) The grounds of appeal related to the
means of the defendant were without
foundation because the judge found that the
defendant had tried to deceive him in what
he said about his means, and that the
defendant had deceived the legal aid
authorities when his means were assessed.
In Milington v Dufy (1985) 1 7 H.L.R. 232 the Court of Appeal
said:"In these circumstances, in my judgment, the
present case, and any case involving similar tortious
behaviour, falls neatly within the principles
enunciated by this court in Drane v. Evanglou [1978]
1 W.L.R. 455 , in which it was held that the plaintif,
also a tenant who had been evicted from his
premises by what the county court judge described
as the "monstrous behaviour" of the defendant, was
entitled to exemplay damages, assessed in that
instance at £1,000. I would refer to a passage in the
judgment of Lord Denning at p. 459, followed with
similar emphasis by Lawton L.J. and Goff L.J. Lord
Denning said:
"Lord Devlin, in Rooks v. Barnard [1964] A.C.
1129, 1226 , acknowledged that there are
some categories of tort in which exemplay
damages may still be awarded. This case
seems to me to come within the second
category. Lord Devlin said, at p. 1227: 'This
category is not confined to moneymaking in
the strict sense. It extends to cases in which
the defendant is seeking to gain at the
expense of the plaintiff some object
perhaps some property which he covets
which either he could not obtain at all or not
obtain except at a price greater than he wants
to put down. Exemplay damages can
properly be awarded whenever it is
necessary to teach a wrongdoer that tort
does not pay.' To my mind this category
includes cases of unlawful eviction of a
tenant The landlord seeks to gain possession
107
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
at the expense of the tenant-so as to keep or
get a rent higher than that awarded by the
rent tribunal-or to get possession from a
tenant who is protected by the Rent Acts. So
he resorts to harassing tactics. Such conduct
can be punished now by the criminal law. But
it can also be punished by the civil law by an
award of exemplay damages. In the recent
case of *236 McCall v. Abelesz ... it was held
that the provisions of the Rent Act 1965
against harassment only created a criminal
offence. But I said, at p. 594: 'I see no need to
give any new civil remedy for harassment As
I understand it, the law already gives a
perfectly good civil action for damages.' So in
a case of this kind damages can be awarded
not only by way of compensation but also by
way of exemplay damages."
Goff L./., at p. 462, also quoted from a further passage
in the speech of Lord Devlin: " 'Exemplay damages
can properly be awarded whenever it is necessary to
teach a wrongdoer that tort does not pay: and I add
'as it is in this case',"
"It is conceded that it was within the judge's
discretion to award exemplay damages. The
objection is that the discretion was exercised (Malo
v Adams [1 970) 2 .L.R. 72} (Guppys (Bridport)
Ltd v Brookling, Guppys (Bridport) Ltd v lames
(1 984) 14 H.L.R. 1)
"It must be remembered that in many cases of tort
damages are at large, that is to say, the award is not
limited to the pecuniary loss that can be specifically
proved. In the present case, for example, and leaving
aside any question of exemplay or aggravated
damages, the appellant's damages would not
necessarily be confined to those which he would
obtain in an action for wrongful dismissal. He can
invite the jury to look at all the circumstances, the
inconveniences caused to him by the change of job
and the unhappiness maybe by a change of
livelihood. In such a case as this, it is quite proper
without any departure from the compensatory
principle to award a round sum based on the
pecuniary loss, proved." (Rookes v. Banard [1964)
A.. 1129, 1221}
108
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
In Kuddus v Chief Constable ofLeicestershire Constabulay [2002J
2 A.. 122, the House of Lords said:The defendant Chief Constable admits the forgery
and thatthe oicer's conduct amounts to misfeasance
in a public oice. He successfully contended,
however, that exemplay damages are not
recoverable for the tort of misfeasance by a public
oficer so that that part of the claim should be struck
out. He accepts that there is a viable claim for
aggravated damages for such misfeasance.
The parties agree that an award of exemplay
damages may be made in appropriate cases in
English law even though, being punitive in nature,
such an award is inconsistent with the principle that
damages are intended to be compensatory. As the
law now stands that agreement in my view is well
founded.
In Rookes v Barnard [1964] AC 1129 , 1223 Lord
Devlin, with whom on this point other members of
the House agreed, having considered early cases
concluded:
"These authorities clearly justify the use of the
and for my part I should
not wish, even if I felt at libery to do so, to
diminish its use in this type of case where it
serves a valuable purpose in restraining the
arbitrary and outrageous use of executive
power."
exemplay principle;
Having reviewed further cases he said, at pp 12251226:
"These authorities convince me of two things.
First, that your Lordships could not, without a
complete disregard of precedent, and indeed
of statute, now arrive at a determination that
refused altogether to recognise the exemplay
principle. Secondly, that there are certain
categories of cases in which an award of
exemplay damages can serve a useful purpose
in vindicating the strength of the law and thus
affording a practical justification for admitting
into the civil law a principle which ought
logically to belong to the criminal. I propose to
state what these two categories are; and I
propose also to state three general
considerations which, in my opinion, should
always be borne in mind when awards of
exemplay damages are being made. I am well
aware that what I am about to say will, if
109
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
accepted, impose limits not hitherto expressed
on such awards and that there is powerful,
though not compelling, authoriy for allowing
them a wider range. I shall not, therefore,
conclude what I have to say on the general
principles of law without returning to the
authorities and making it clear to what extent I
have rejected the guidance they may be said to
afford. The first category is oppressive,
arbitrary or unconstitutional action by the
servants of the government. I should not
extend this category-I say this with
particular reference to the facts of this case
to oppressive action by private corporations
or individuals. Where one man is more
powerful than another, it is inevitable that he
will try to use his power to gain his ends; and
if his power is much greater than the other's,
he might, perhaps, be said to be using it
oppressively. If he uses his power illegally, he
must of course pay for his illegaliy in the
ordinary way; but he is not to be punished
simply because he is the more powerful. In the
case of the government it is different, for the
servants of the government are also the
servants of the people and the use of their
power must always be subordinate to their
duy of service ... Cases in the second category
are those in which the defendant's conduct has
been calculated by him to make a profit for
himself which may well exceed the
compensation payable to the plaintiff."
It is equally accepted by the parties that exemplay
damages are not precluded by the fact that
aggravated damages may be awarded though it is
clear that before the decision of the House in Rookes
v Barnard [1964] AC 1129 the distinction between
the two was not fully appreciated. In that case Lord
Devlin, at p 1228, drew attention to the difference of
purpose of compensatory damages and punitive or
exemplay damages:
"In a case in which exemplay damages are
appropriate, a jury should be directed that if,
but only if, the sum which they have in mind to
award as compensation (which may, of course,
be a sum aggravated by the way in which the
defendant has behaved to the plaintiff) is
inadequate to punish him for his outrageous
conduct. to mark their disapproval of such
conduct and to deter him from repeating it,
then it can award some larger sum,"
110
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
In Lavery v Ministry of Defence [1984] NI 99, in
awarding exemplay damages, after citing passages
from the speech of Lord Devlin in Rookes v Barnard
[1964] AC 1129 , KeUy LJ said [1984] NI 99 , 106107:
I ask the question what toal sum is
suficient not only to compensate the plaintiff
for the assault suffered in all the
circumstances, but to teach the defendant
that this sort of conduct does not pay and
hopefully deter its repetition. I think the
conduct of the soldier concerned, some of
which was acquiesced in by the other
members of the patrol, was a deliberate and
unjustifiable abuse of the lawful power to
stop and question a citizen. This power is a
necessary one, entrusted to the securiy
forces to aid their difficult task of maintaining
law and order in the streets of this city and
elsewhere throughout the Province. It is a
power which at times must be exercised
frequently to. maintain an efficient standard
of peace-keeping. Inevitably it involves
confrontation between soldier and citizen
and police oficer and citizen and a sensitive
confrontation at that with the power to stop
search and question delicately poised against
the rights of the citizen. The lawful exercise
of these powers demands moderation and
tact on the part of the securiy forces at all
times and when they seek to exercise them in
confrontation with unco-operative citizens in
hostile and dangerous areas, it demands
forbearance and disCipline, as well.
Nevertheless the securiy forces must be
reminded that these powers which
necessarily and lawfully reduce the freedom
and privacy of the subject must not be
abused. The present case was a blatant and
quite unjustified abuse of lawful powers. It
should not happen again, the defendants
should be told. I do not think that the award
of £1,000 by the learned couny court judge is
adequate to include the elements of
punishment or deterrence. My conclusion is
that a proper award to include exemplay
damages, should be £2,500."
In Pettigrew v Northen Ireland Ofice [1 990] NI
1 79, KeIly LJ said in giving jUdgment, at pp 181-182:
"In this case I consider that the conduct of the
dog handlers who deliberately did not
restrain their dogs from nipping or biting the
plaintif and the conduct of the prison officers
who kicked or punched the plaintiff was
oppressive conduct by servants of the
government. Notwithstanding that the prison
111
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
oficers had real and understandable grounds
for anger, it was their duy to restrain that
anger, and in my opinion their conduct calls
for an award of exemplay damages to mark
the disapproval of the court, to teach that
such conduct does not pay. and to act as a
deterrent against this ype of conduct against
prisoners being repeated in the future. Mr
Campbell submitted that as the purpose of
awarding exemplay damages is to punish a
defendant whose conduct was oppressive
and in the opinion of the court deserves
punishment, exemplay damages should not
be awarded against the Northern Ireland
Oice because it had done nothing deserving
of punishment. There could be nO suggestion
that the Northern Ireland Office connived at
or condoned the conduct of the prison
oicers responsible for the attacks on the
plaintiff, and when allegations were made of
attacks upon the prisoners the Northern
Ireland Office caused an investigation to be
carried out. I accept Mr Campbell's
submission that there are no grounds upon
which exemplay damages could be awarded
against the Northern Ireland Office in respect
of its own conduct as a government
department. But there are a number of
decisions in this jurisdiction which make it
clear that exemplay damages can be
awarded against a defendant where that
defendant is vicariously liable for the conduct
of its or his servants or agents and the
conduct of those servants or agents calls for
exemplay damages. These cases are Lavery v
Ministry of Defence [1984] NI 99 , Walsh v
Ministry of Defence [1985] 4 NIjB and
Hamilton v Chief Constable of the Royal
Ulster Constabulary [1986] 15 NIjB . The
same view of the law is implicit in the
judgments of the Court of Appeal in England
in Holden v Chief Constable of Lancashire
[1987] QB 380 ."
In my opinion the power to award exemplay
damages in such cases serves to uphold and
vindicate the rule of law because it makes clear that
the courts will not tolerate such conduct.
"Trespass, assault and imprisonment; issue joined
upon the general issue not guilty, tried before the
Lord Chief Justice, when it was proved for the
plaintif that he is a journey-man printer, and was
taken into custody by the defendant Ca King's
messenger) upon suspicion of having printed the
North Briton, Number 45; that the plaintiff kept him
in custody about six hours, but used him very civilly
by treating him with beef-steaks and beer, so hat he
112
suffered very little or no damages; the defendant
attempted to justiY under the general warrant of a
Secretary of State, to apprehend the printers and
publishers of the said North Briton, Number 45,
(which is before set forth at length in the case of The
King and Wilkes, Easter term, 3 Geo. 3,) by virtue of
the Stat. of jac. 1, and the Stat. 24 Geo. 2, cap. 44, but
was over-ruled by the Lord Chief justice; whereupon
the King's Counsel, who were advocates for the
defendant, tendered a bill of exceptions, which has
not yet been argued; the jury gave 3001 damages.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
These are the ideas which struck the jury on the trial;
and I think they have done right in giving exemplay
damages. To enter a man's house by virtue of a
nameless warrant, in order to procure evidence, is
worse than the Spanish Inquisition; a law under
which no Englishman would wish to live an hour; it
was a most daring public attack made upon the
liberty ofthe subject. I thought that the 29th chapt-er
of Magna Charta, NuIlus liber homo capiatur vel
imprisonetur, &c. nee super eum ibimus, &c. nisi per
legale judicium parium suorum vel per legem terree,
&c. which is pointed against arbitrary power, was
violated. I cannot say what damages I should have
given if I had been upon the jury; but I directed and
told them they were not bound to any certain
damages against the Solicitor-General's argument.
Upon the whole, I am of opinion the damages are not
excessive; and that it is very dangerous for the judges
to intermeddle in damages for torts; it must be a
glaring case indeed of outrageous damages in a tort,
and which all mankind at first blush must think so, to
induce a Court to grant a new trial for excessive
damages." (Huckles v Money 2 WILS. K .B. 206,
Manson v Associated Newspapers Ltd. [1 965] 1
.L.R. 1 038, Benson v Sir Thomas Frederick, Bart
(1 766) 3 Burrow 1845)
60.
With due respect to the learned Senior Federal Counsel whatever force there may or
42
may not be in his submissions and his reservation on the award of exemplay
43
damages, in particular, relying on s.8 of the Civil Law Act, 1956 has to be considered
44
on a case by case. The court's discretion should not be limited to s.8 of the Civil Law
45
Act 1956 as this court must be able to apply common law on the factual matrix in
46
the present case to award exemplary damages. As stated above, exemplary damages,
113
1
are given in cases of 'conscious wrongdoing in contumelious disregard of another's righs'
2
which has been described as vindictive, retributary, punitive (Whit Field v De Lauret
3
& Co.p. Ltd (1 920) 29 .L.R. 71 at p. 77) and the present case is one which fits well in
4
that category.
5
6
7
8
9
10
11
12
13
14
15
16
17
It is clear that Lord Devlin reference to exemplay damages is a sort of damages
18
referred to by Pratt q. in Wilkes v Wood (1 763), Lofft 1, 98 E.R. 489 (.B.) at pp 498-
19
99.
Lord Devlin in his speech in Rookes v Barnet (1964) AC 1129,
in his conclusion said:"There are certain categories of cases in
which the award of exemplay damages can
serve useful purpose in vindicating the
strength of the law and thus affording a
practical justification for admitting into the
civil law a principle which ought logically to
belong to the criminal"
20
21
22
23
24
25
"damages are designed not only as a satisfaction to the
injured person, but likewise as a punishment to the guilty, to
deter from any such proceeding for the future, and as a proof
of the detestation of the jury to the action itself'
61.
Therefore, in addition, to the 'monetay amends' in a civil action for damages for tort as
26
provided under s. 8 of the Civil Law Act 1956, (but in a broader sense), the court
27
must be able to award exemplary damages for the custodial death caused to the
28
deceased due to the breach of public duty in not protecting the fundamental rights of
29
the deceased while in the police custody where the brutal assault was carried out
30
and grievous injuries inflicted on the deceased under the pretext of intensive
31
interrogation to extract confession. Therefore, damages in the nature of exemplay
32
damages should be awarded against the wrongdoer.
33
34
35
36
114
1
62.
If police officers in a police station act mercilessly, torture and cause death to
2
detainees while under detention in lockup or police station, the defendants should be
3
ordered to pay exemplay damages to the claimant or the family members for the
4
deprivation of life of the deceased at the hands of the police officers. Custodial death
5
is perhaps one of the worst crime in a civilized sociey governed by the rule of law. If
6
police officers become law breakers, it is bound to breed contempt for law and would
7
encourage lawlessness and every man would have the tendency to become law unto
8
himself. No civilized nation can permit that to happen as the safety of the people is
9
the supreme law. (Salus Popoli Suprema Lex- the latin maxim). Public policy demands
10
that police officers who are found guilty and responsible for death in police custody
11
should be ordered to pay exemplay damages. The action of police officers who are
12
involved in interrogation must be right, just and fair as using any form of torture for
13
extorting any kind of information or confession would neither be right norjust orfair,
14
and must be viewed with contempt for being in violation of Article 5 of the Federal
15
Constitution.The quantum of exemplay damages will, of course, depend on the
16
peculiar facts of the case and there can be no 'straightjacketformula'.
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
In Mc Loughlin v O'Brian (1 983) 1 AC 410, the court said:"Their Lordships observed that common law should
not remain frozen but should consider in any given
case whether it is right to extend and the right to
consider what and where new limitations should be
placed upon the right to recover damages.
By analogy, the plaintif's right to claim for exemplay
damages and aggravated damages, the court must
proceed in the traditional manner of the common
law, from case to case, upon the basis of logical
necessiy to award exemplay and aggravated
damages in a given case. The law has advanced and
the floodgates must accordingly be opened and court
should not be over cautions and have any kind of
exaggerated fear."
36
37
115
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
"Law is not a mausoleum. It is not an antique to be
taken down, dusted admired and put back on the
shel. It is rather like an old but vigorous tree having
its roots in history, yet continuously taking new
grafts and putting out new sprouts and occasionally
dropping dead wood. It is essentially a social process,
the end product of which is justice and hence it must
keep on growing and developing with changing social
concepts and values. Otherwise, there will be
estrangement between law and justice and law will
cease to have legitimacy Though 'continuity with the
past is a historical necessity', 'conformity is not to be
turned into a fetish'. (Motilal Padampat Sugar Mills
v State of Uttar Pradesh and Ors (1 979) AR 621).
63.
In awarding exemplay damages, the court must take into account not only the
17
interests of the deceased and his family and the defendants but also the interests of
18
the public as a whole with the view to ensuring that the public bodies or officials do
19
not act unlawfully and abuse their powers but to carry out their public duties
20
properly and lawfully. (Nilabati Behera Alias Lalita Behera v State of Orissa and
21
Another (1993) AIR 1960). In this respect, this court must play an important and vital
22
rule in not only preventing and remedying the abuse and misuse of powers but also
23
to eliminate any exploitation and prevent injustice. Uanata Dal v H.s. Chowdhay AR
24
1993 S.. 892, AIR 1 996 Cal 1 81 atp. 219).
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
In Nilabati Behera Alias Lalita Behera v State of Orissa and
Another (1 993) AIR 1 960, the court said:"There is a great responsibiliy on the police or
prison authorities to ensure that the citizen in its
custody is not deprived of his right to life. His liberty
is in the very nature of things circumscribed by the
very fact of his confinement and therefore his
interest in the limited liberty let to him is rather
precious. The duy of care on the part of the State is
strict and admits of no exceptions.
The citizen complaining of the infringement of the
indefeasable right under Article 2 1 of the
Constitution cannot be told that for the established
violation of the fundamental right to life, he cannot
get any relief under the public law by the courts
exercising writ jurisdiction.
116
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
The primary source of the public law proceedings
stems from the prerogative writs and the courts have,
therefore, to evolve 'new tools' to give relief in public
law by moulding it according to the situation with a
view to preserve and protect the Rule of Law. [608 Cl
2.04. The old doctrine of only relegating the
. aggrieved to the remedies available in civil law limits
the role of the •courts too much as protector and
guarantor of the indefeasable rights of the citizens.
The courts have the obligation to satisY the social
aspirations of the citizens because the courts and the
law are for the people and expected to respond to
their aspirations. [608 H, 609 Al 2.05. The public law
proceedings serve a different purpose than the
private law proceedings. The relief of monetary
compensation, as exemplay damages, in proceedings
under Article 32 by this Court or under Article 226 by
the High Courts, for established infringement of the
indefeasable right guaranteed under Article 21 of the
Constitution is a remedy available in public law and is
based on the strict liabiliy for contravention of the
guaranteed basic and indefeasable rights of the
citizen.
Ordinary remedy of a suit if his claim to
compensation was factually controversial, in the
sense that a civil court may or may not have upheld
his claim. But we have no doubt that if the petitioner
files a suit to recover damages for his illegal
detention, a decree for damages would have to be
passed in that suit, though it is not possible to
predicate, in the absence of evidence, the precise
amount which would be decreed in his favour. In
these circumstances, the refusal of this Court to pass
an order of compensation in favour of the petitioner
will be doing mere lip-service to his fundamental
right to libery which the State Government has so
grossly violated. Article 21 'which guarantees the
right to life and libery will be denuded of its
significant content if the power of this Court were
limited to passing orders to release from illegal
detention. One of the telling ways in which the
violation of that right can reasonably be prevented
and due compliance with the mandate of Article 21
secured, is to mulct its violaters in the payment of
monetary compensation. Administrative sclerosis
leading to lagrant infringements of fundamental
rights cannot be corrected by any other method open
to the judiciary to adopt. The right to compensation is
some palliative for the unlawful acts of
117
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
instrumentalities which act in the name of public
interest and which present for their protection the
powers of the state as shield. If Civilisation is not to
perish in this country as it has perished in some
others too well-known to suffer mention, it is
necessary to educate ourselves into accepting that,
respect for the rights of in- dividuals is the true
bastion of democracy. Therefore, the State must
repair the damage done by its officers to the
petitioner's rights. It may have recourse against those
officers"
It is not our concern at this stage, however, to
determine as to which police oficer or officers were
responsible for the torture and ultimately the death
of Suman Behera. That is a matter which shall have to
be decided by the competent court.
This is not the task for Parliament. .... the courts must
do this. Of all the great tasks that lie ahead this is the
greatest."
64.
On the other hand, even if there is credible evidence that the deceased was a criminal
24
offender and which is based on mere allegations or suspicion or even if it is accepted
25
has having any basis for which there is no evidence before this court to support the '
26
same, it still does not vest the police or any officer in the police force with the power
27
to inlict injuries under any circumstances. In this case, inlicting multiple injuries on
28
the deceased and causing his death, in a manner that had been committed and
29
considering the nature of the injuries and the cause of death, D4 and D5 cannot and
30
should not be allowed to maneouver to escape liability but must be prepared to
31
accept the legal consequences. Consequently, there is legal obligation on their part to
32
pay all the compensation and damages over and above awarded under s. 7 and s.8 of
33
the Civil Law Act 1 956. (Ajab Singh v The State of Uttar Pradesh AR 2000 S.. 3421). In
34
cases of custodial death which is caused due to the act or omission of police oficers
35
who are responsible for the safety of the detainee in the police lockup or police
36
station, this court is serious and will not condone such inhuman and unprofessional
37
conduct, especially police officers who are responsible and in charge oflaw and order
38
irrespective of their rank in the police force and this is a true reflection of the
39
independence of judiciary and not just by providing 'lip sevice'.
118
1
65.
The court's reputation for honesty and impartiality which is important to the
2
judicial oah must be maintained at all times in the discharge of its judicial function
3
notwithstanding the rank of the police officer. This court cannot and will not
4
perform its judicial function under fear or favour but wholly and solely on the
5
totality of the evidence presented to this court. (Bala Krishnan a/I Appala Naidu v
6
Ketua Inspektor Prabakaran Shanmugam & 2 Ors (No. 2) [2011j 2 CLj 890).
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
Arthur T. Vanderbilt, the Chief justice of
The New jersey
Supreme Court in his series of lectures delivered in the University
of Virginia - (see ALJ Vol 28, 561-562):'It i s i n the courts and not i n the legislature that our
citizens primarily feel the keen, cutting edge of the law. If
they have respect for the work of the courts as it affects
them, their respect for the law will survive the
shortcomings of every other branch of government; but if
they lose their respect for the work of the courts, their
respect for law and order will vanish with it'
The Chief Justice also said:'judges learned i n the law, not merely the law i n books but,
something far more difficult to acquire, the law as applied
in action in the court-room; judges deeply versed in the
mysteries of human nature and adopt i n the discovery of
the truth in the discordant testimony of fallible human
beings; judges beholden to no man, independent and
honest and - equally important -- believed by all men to be
independent and honest; judges, above all, ired with
consuming zeal to mete out justice according to law to
every man, woman and child that may come before them
and to preserve individual freedom against any aggression
of Government;"
66.
Be that as it may, the learned Senior Federal Counsel sought to sustain the decision of
36
the Court of Appeal in Borhan bin Hj Daud & 2 lagi v Abd Malek bin Hussin (Civil Appeal
37
No. W-01-122-2007) and Suzana bt Md Aris (claiming as administratrix of the estate and
38
a dependant of Mohd Anuar bin Sharip, deceased) v DSP Ishak bin Hussin & Ors (Civil
39
Appeal No. W-01-402-2009), on the basis that the Court of Appeal had reversed the
40
decision and the indings of the High Court in respect of the award of exemplay
41
damages and damages for false imprisonment. With respect to the learned Senior
42
Federal Counsel, having read the Grounds of judgment of the Court of Appeal of His
119
1
Lordship Raus Sharif JCA (as he then was) (now President of the Court of Appeal) a
2
copy of grounds of judgment which was provided by the learned counsel for the
3
plaintiff to this court on 7.6.2013 for which this court is thankful, there is absolutely
4
nothing, with respect, where the Court of Appeal had dealt with the issue of quantum,
5
particularly, the award of exemplary damages as correctly submitted by the learned
6
counsel for the plaintiff. In Borhan bin Hj Daud & 2 lagi v Abd Malek bin Hussin (Civil
7
Appeal No.W-01-122-2007) the plaintiffs claim for exemplary and aggravated was
8
awarded by the High Court which found liability against the defendants. However,
9
the Court of Appeal on 25.3.2010 had reversed the finding on liability and set aside
10
the whole of the judgment. In this respect, it is important to reproduce the particular
11
paragraph of the judgment of the Court of Appeal which is relevant for the purpose of
12
considering the rival submissions of both learned counsel for the plaintiff and the
13
learned Senior Federal Counsel for the defendants which is reproduced:-
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In Borhan bin Hj Daud & 2 lagi v Abd Malek bin Hussin (Civil
Appeal No. W-Ol-122-2007), His Lordship Raus Sharif JCA (as he
then was) (now President of the Court of Appeal) said at para 55:"In our judgment, the indings of facts by the learned
High Court Judge that respondent had been assaulted
or tortured is not supported by evidence. The
indings were perverse and cannot be upheld. It must
be set-aside. As liability is not established against the
appellants, there is no question of awarding damages,
be it exemplay, aggravated or otherwise which the
respondent sought in the statement of claim."
67.
Therefore, from the close reading of the conclusion of the Court of Appeal in Borhan
29
bin Hj Daud & 2 lagi v Abd Malek bin Hussin (Civil Appeal No. W-Ol -122-2007), the
30
Court of Appeal did not agree with the reasoning of the High Court, with respect, in
31
respect of liability but nothing was said on the findings of the awards of damages
32
which included exemplary damages or that the High Court has no power to award
33
exemplary damages or damages for false imprisonment. The contention of learned
34
Senior Federal Counsel that the Court of Appeal has set aside the award of
35
exemplary damages or damages of false imprisonment in accordance with his
36
submissions that this court has no power to award exemplary damages cannot be
120
1
sustained and is a misreading of the judgment, and is misplaced. There is nothing in
2
the grounds of judgment of the Court of Appeal to state directly or impliedly that the
3
court cannot award exemplary damages or damages for false imprisonment or
4
misfeasance when there is claim for dependency pursuant to s.7 or a claim under
5
s.B. of the Civil Law Act 1956. At first sight it may be seen as if the Court of Appeal
6
had in fact disagreed with the reasoning of the High Court in awarding the
7
exemplary damages but however on close reading, with respect, it does not appear
8
to be and should not be read in that context or be read into the judgment as
9
intended by the learned Senior Federal Counsel. There was absolutely no finding or
10
ratio deciden di of the judgment in the Court of Appeal to say that the award of
11
exemplary damages is not allowed in law. In the circumstances, this court, with
12
respect, would follow the reasoning of the High Court on the award of exemplary
13
damages. (Abd Malek bin Hussin v Borhan bin Hj. Daud & Ors (2008) 1 MLJ 386 at p.
14
395-396).
15
16
68.
The function of the law is to enable rights or grievances to be vindicated and of
17
course and naturally to provide remedies whenever a tortious act is committed on
18
them. This court finds that the plaintiff has successfully established the tortious act
19
against the defendants and she has suffered losses as pleaded in the statement of
20
claim. On the factual matrix of the present case, this court wishes to reiterate 01, 02,
21
03, 04 and 05 cannot by any stretch of the imagination be permitted to disclaim
22
responsibiliy for the consequences of the tortious act committed by 0 2 and
23
possibly other officers who are responsible for the deceased's death while he was in
24
the police custody.
25
26
27
28
29
30
31
32
33
34
69.
As for the Issues to be Tried, the findings of this court are as follows:a.
Affirmative
b.
Affirmative
c.
Affirmative
d.
Affirmative
121
1
2
3
4
5
6
7
70.
e.
Affirmative
f.
Affirmative
As for the Issues to be Tried againt D2, the findings of this court are as follows:-
8
9
10
11
12
13
14
15
16
17
71.
19
20
21
22
23
24
25
26
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
Possibly the policemen or oficers who had accesss and
responsible for the interrogation of the deceased which
includes D2.
(2)
Yes, on 16.1.2009 and there is no evidence that he was solely
responsible from the date the deceased was arrested until he
died on 20.1.2009.
As for the Issues to be Tried against Dl, D3, D4 and D5, the findings of this court are
as follows:-
18
27
(1)
72.
(1)
Negative
(2)
Affirmative
(3)
Negative
(4)
Affirmative except for vindictory damages
As to the reliefs claimed under paragraph 3 5 of the Amended Statement of Claim,
the decision of this court is:a.
Damages under s.7 of the Civil Law Act, this court is satisied
that the deceased had contributed the sum of RM1,000.00
per month to the plaintiff. As the deceased was 23 years old
(below 3 0 yrs) at the time of his death, the multilier is
16 years (s.7(3) (iv) (d) Civil Law Act 1956. (RM1,000.00 x 12
month x 16 = RM192,000.00). The plaintiff is awarded the
sum of RM192,000.00
b.
Damages for uneral expenses under s.7(3)(ii) of the Civil
Law Act 1956, the plaintiff is awarded the sum of
RM9, 700.00 as agreed
c.
Damages for assault and battery being pain and suffering for
the grievious injuries during the period of the deceased's
detention until his death on 20.1.2009 the plaintiff is
awarded RM50,000.00. (s.8 of the Civil Law Act, 1956).
122
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
73 .
d.
Damages for False imprisonment for the period of the
deceased's detention, the plaintif is awarded the sum of
RM100,OOO.OO.
e.
Damages for misfeasance of public oice, plaintif is awarded
the sum ofRM50,OOO.OO.
f.
Aggravated damages, there is no award in view of the award
given for exemplay damages.
g.
Exemplay damages, the plaintiff is awarded the sum of
RM300,OOO.OO.
h.
There is no award for vindictory damages
i.
There is no award for special damages. There is no sufficient
evidence to support the claim under special damages except
for the police report lodged by the plaintiff
j.
In so far as this case and based on the factual matrix where
the interest of justice requires that the plaintifshould be able
to obtain the declaration, this court is agreeable to grant. The
declaration is allowed as it is appropriate on the factual
matrixs of this case.
k.
Interest is allowed on the judgment sum at the rate of 5% per
annum from the date this action was filed on 13.1.2012 until
satisfaction.
I.
Costs of RM50,000.00 is awarded to the plaintiff
For easy reference, the damages claimed, submitted by the parties and awarded by
this court is summarised as follows:-
35
36
No.
Pariculars of damages
claimed by the plaintif
1.
Loss of Support
Amount claimed
by the plainiff
First, third, fourth
and ifth
defendant's
submissions
which were
adopted by he
second defendant
RM1,OOO.OO x 12m
16yrs (multiplier)
= RM192,OOO.OO
RM300 (based on
1/3 from
RM1,OOO.OO) x 12m
x 16yrs (multiplier)
RM57,600.00
x
=
123
Award and
Decision of this
court
RM1,OOO.OO x 12m
16yrs (multiplier)
x
=
RM192,OOO.OO
2.
Funeral Expenses
RM9,702.70
As agreed
RM9,702.70
3.
Pain and Suffering
RM 10 Million
The amount should
be around
RM10,000.00
RM9,700.00
RM50,OOO.00
4.
Assault and Battery
RM10 Million
Not entitled
5.
False imprisonment
RMSOO,OOO.OO
Not entitled
RM1OO,OOO.OO
6.
Misfeasance of Public Oice
RM10 Million
Not entitled
RM1OO,OOO.OO
7.
Aggravated damages
RMSOO,OOO.OO
Not entitled
No award
8.
Exemplay damages
RM10 Million
Not entitled
RM300,OOO.OO
9.
Vindicatory damages
RM10 Million
Not entitled
No award
10.
Special damages
Not proved
No award (not
proved)
Costs
TOTAL
First, third, fourth
and fifth
defendants =
RM20,000.00,
RM801,700.00
11.
RM300,000.00
RM50,OOO.00
RM50,OOO.OO
Second defendant
=RM30,000.00
1
2
74.
Before concluding, this court should, perhaps, add a few words on the
3
recommendations of the Royal Commission for Police Reform. There is an urgent
4
need to seriously consider implementing the proposals, particularly the
5
Independent Police Complaint and Misconduct Commission (IPCMC) in respect of
6
discipline of police due to the sharp rise in custodial violence, torture and death in
7
police custody so that it could be incorporated as law. There is also justification for
8
the urgency to protect the interest of arrested persons who are taken into police
9
custody. Police officers, being custodian of law and safety of the public and the
10
nation as a whole are to protect the detainees and not to abduct by abusing their
11
statutory powers which would deprecate the liberties guaranteed by the
12
constitution. Therefore, if there is an abuse of power by certain police officer and if
13
his unlawful act is not checked and a long arm of law fails to apprehend them, the
124
1
belief of those police officers will forever be reinforced that no harm can be caused
2
to them by any authority, in which event, the people will loose faith in the prevailing
3
law as well as the enforcing machinery. (Siddhu v State ofU.P. (2002) Cri L.. 4546 ut p.
4
4549 (All)). In fact, it is desirable as well as in the interest of justice to entrust the
5
entire investigation whenever there are incidents of custodial deaths or torture in
6
police custody or other abuse of powers by police officers to an independent agency
7
forthwith,
8
recommendation of the Royal Commission should not be kept in 'cold storage' and
9
continue to freez but must be activated or implemented as soon as possible in order
10
to ensure that all concern members of society induding the family members of
11
deceased person or victims may feel, assured that the independent agency is looking
12
into the matter without any influence imposed by the local police officers. It is
13
important to state, with respect, that howsoever dutifully or faithfully the local
14
police officers may carry out the investigation against disciplinary offences
15
committed by police officers, the same will lack credibiliy since the allegations are
16
against their own officers or colleague. The power to investigate allegations against
17
police oficers, particularly, custodial torture or death must be exercised with great
18
care, caution and circumspection so as not to affect its eiciency, reliabiliy and
19
transparency and so as to eliminate any suspicion that some kind of influence is
20
being exerted by the police officers or the police authority. There is an urgent need
21
for such commission which has been clearly stated, namely:-
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
if possible,
as
recommended
Independent Police
Commission (IPCMC)
by the
Complaints
and
Royal
Commission. The
Misconduct
"This is the proposed external oversight body to be
established pursuant to an Act of Parliament vested with the
powers to receive and investigate complaints regarding
alleged police misconduct and to impose sanctions against
those found guilty of any misconduct. The need for such an
external discipline mechanism is clearly borne out by the
commission's observation at Page 122 that:
"
... When oficers act in contravention of laws and
regulations without fear of investigation or
reprimand, the culture of impuniy begins to
develop. Each wrongdoing that is not investigated
125
1
2
3
4
5
6
7
8
9
or punished or is supported by higher ranks
within the police leadership, leads to the
perception that such misconduct is permissible. As
each new generation of officers observes and
learns from their superiors, the culture becomes
embedded in all the ranks of the PDRM. "
75 .
As stated above, there is a real grievance, the recommendation by the Royal
10
Commission for improvement, particular the IPCMC should no longer remain in 'cold
11
storage' so that the time and money spend on the setting up of the Commission and
12
the production of the report will be put to public good being for the greater good of
13
the society and trust and to assure credibility to the action, to discipline and
14
improve accountability so that 'the rest would follow, as day follows the night' and the
15
credibility of the rule of law will not deteriorate It is important to be reminded that
16
"where there is will, there is way". "Will there is way would be found". The enforcement of
17
an independent body to investigate accusation or disciplinary offences by police
18
officers will eliminate accusations of 'horror stories' in some lockups and police
19
stations, where detainees are subjected to various forms of torture and physical ill
20
treatment by some officers under the pretext of intensive interogation which is a
21
continuous act, as in the present case, until death occurs. Custodial death should not
22
become the rule of the day. It is heinous crime perpetrated by the custodians of law.
23
If custodians of the law themselves indulged in committing such crimes then no part
24
of the sociey is safe and secured. (Ghotovi Sema v State of Nagaland and Ors (1996)
25
AJ 996).
26
27
76.
In the circumstances, perhaps it is timely that the recommendation of the Royal
28
Commission be implemented as soon as possible and within the context of the
29
issues in the present case as the public and the close family members of victim
30
deceased seems to have little confidents in the investigation carried out by police
31
oficers within the institution, no matter how honest and objective the investigation
32
is carried out. In this context, with respect, it is only appropriate to state that it is
33
not for the officers within the institution to decide whether to accept or reject the
34
recommendation of the Royal Commission in reference to disciplinary matters
35
committed by police officers as it involve the issue of impartiality and independence
126
1
of the investigation tribunal as 'no man can be a judge of his own course'. The oficers in
2
the institution, with respect, cannot be expected, at least in the eyes of the public to
3
be impartial, especially, when the investigation which is expected to be carried out
4
in respect of custodial death may in some cases implicate the State or district police
5
chief or even the Directors of certain divisions in the institution. Therefore, it is only
6
appropriate, with respect, and for the confidence in the investigation to be
7
enhanced, if the investigation related to disciplinary enquiry which concerns police
8
officers is conducted by an independent investigation agency.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
"A fair enquiry and a fair decision are both closely
interlinked and neither one nor the other can be sacrificed.
Sacriice of the one, in the generality of cases is bound to lead
to the sacriice of the other (Krishna Murthy v Abdul
Subban (1 965) 1 Cr LJ 565 at p 576).
"No man can be a judge in his own course governs the law on
the concept of impartiality of justice and is an intrinsic
requirement of the administration of justice and is equally
applicable to a decision making process by an investigation
or disciplinary tribunal or agency especially when it is
related to custodial death. The decision ofbias of the tribunal
or impartiality on the part of the adjudicating autho riy
would be regarded as a nullity and the inquest coram non
judis (Vassiliades v Vassiliades AIR 1945 PC38). In order to
secure justice is done, the idea of justice contemplates at
least an independent impartial and non partisan judge who
will act fairly, justly, reasonably and impartially (Sazali bin
Abdullah v Ketua Polis Negeri Perak & Ors (2009) 2 MLJ
370 at p. 381, 383). Due process is that which comport with
the deepest notions of what is fair and right and just (Solevee
v Balkon 330; US 9 (1 950)).
127
1
77.
In the circumstances, and in accordance with the rules of reason and justice, the
2
plaintiffs claim against all the defendants is allowed. Damages is awarded with costs
3
as above.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
Dated on this 26th day of June, 2013
•
ADIB
s.g.d.
UL KADIR
� AAN PENFTAR
AH NCC
AHAGIAN SIVIL
MHAAH TINGGI KUALA LUMPUi
(Y.A. DATa V.T. SINGHAM)
JUDGE
HIGH COURT (NCVC 5)
KUALA LUMPUR
Counsel for the plaintiff
En. Sivarasa Rasiah with
Cik Latheefa Koya and
En. Bani Prakash
(Mjs Edwin Un Suren & Soh)
For the first, third, fourth and fith
defendants
En.Azizan bin Md Arshad with
Cik Nur Aqilah lshak
(Attoney General's Chambers)
Counsel for the second defendant
En. Ramesh Sivakumar a/I R.Ramaveloo with
En. Mohd Nor bin Md Deros
(Mjs Ramesh & Loo)
23
128
Ammirul Aiman