The Court of Appeal has come down hard on the
police, accusing them of acting as both “judge and jury” when
investigating the police officers and men in their probe into the death
of A Kugan.
In his written judgment on the case, Justice David Wong Dak Wah expressed concern over the admission of former Selangor police chief Khalid Abu Bakar that he negotiated with the attorney-general for investigations into the death to be confined to Section 330 of the Penal Code for voluntarily causing hurt.
Justice Wong described Khalid's actions as an affront to fair play and transparency.
“What appears to have happened was that the police had become the judge and jury of a complaint made against their behaviour in relation to the death-in-custody case.
“This conduct, with respect, misses the point completely and that is the police force at that point in time was ‘on trial’ and to allow the police to determine what ought to be done was simply asking the wrongdoers to do their own investigations and determine the appropriate actions.
“Common
sense militates against such a course of action,” he said in the
51-page judgment based on Khalid's testimony in the High Court in Kuala
Lumpur.
Khalid is now the inspector-general of police.
The appellate court had on Aug 8 waived the false imprisonment claim and allowed a reduction in the quantum of damages by RM100,000 in relation to the Kugan's death in police custody and awarded his family RM701,700.
The court also called for “zero tolerance” of custodial deaths and recommended that independent public inquiries be held for all such cases.
Besides Justice Wong, the other judges in the unanimous decision were Justice Mohd Arif Mohd Yusof and Justice Mah Weng Kwai.
Why no inquest into death?
The court also questioned why there was no inquest done into Kugan's death when it was found that there were discrepancies in the first post-mortem, with the second post-mortem finding the cause of death to be otherwise.
“We are perturbed by the fact that no inquest was held as permitted by Section 334 of the Criminal Procedure Code, when the second autopsy by itself should have warranted a full investigation of the circumstances in which the deceased met his death.
“We must also not forget that where there is a custodial death, the family of the deceased is entitled to know the truth as to what had happened during the detention. That is their intrinsic right to know.
“This
entitlement to know can be easily understood by just asking the simple
question - what if it is your 22-year-old son who had died in custody,”
the judment says.
To add credence to the call for an inquest or a public inquiry, the unrebutted allegation of the second defendant, Constable V Navindran (left), that he was made “the fall guy”, raises more questions.
Justice Wong said a full public and independent inquiry may have given insight into this matter.
The court also questioned the Taipan police station lock-up diary, which showed Kugan was in a good condition and looking at the testimonies of the police witnesses, the judiciary had the impression that they were not willing “to spill the beans”.
“Common sense and common decency demand that a full public inquiry be initiated, which would have served both the private and public interests in a manner demanded in a civil society,” Justice Wong.
He added that the judges agreed with the KL High Court judge's findings leading to the irrefutable conclusion that Khalid, Navindran and former Subang Jaya district polic chief, the late Zainal Rashid Abu Bakar, breached their duties.
The
judge further described the police action fell far short of the
standard operating procedure which require more disclosure than what had
happened in this case.
In upholding the exemplary damages for public misfeasance, Justice Wong said they found there is a breach of Kugan's constitutional right by a public authority and that the courts cannot be barred from awarding this damages.
The Court of Appeal also agreed with the High Court judge's findings in affirming the quantum of exemplary damages awarded.
In his written judgment on the case, Justice David Wong Dak Wah expressed concern over the admission of former Selangor police chief Khalid Abu Bakar that he negotiated with the attorney-general for investigations into the death to be confined to Section 330 of the Penal Code for voluntarily causing hurt.
Justice Wong described Khalid's actions as an affront to fair play and transparency.
“What appears to have happened was that the police had become the judge and jury of a complaint made against their behaviour in relation to the death-in-custody case.
“This conduct, with respect, misses the point completely and that is the police force at that point in time was ‘on trial’ and to allow the police to determine what ought to be done was simply asking the wrongdoers to do their own investigations and determine the appropriate actions.
“Common
sense militates against such a course of action,” he said in the
51-page judgment based on Khalid's testimony in the High Court in Kuala
Lumpur.Khalid is now the inspector-general of police.
The appellate court had on Aug 8 waived the false imprisonment claim and allowed a reduction in the quantum of damages by RM100,000 in relation to the Kugan's death in police custody and awarded his family RM701,700.
The court also called for “zero tolerance” of custodial deaths and recommended that independent public inquiries be held for all such cases.
Besides Justice Wong, the other judges in the unanimous decision were Justice Mohd Arif Mohd Yusof and Justice Mah Weng Kwai.
Why no inquest into death?
The court also questioned why there was no inquest done into Kugan's death when it was found that there were discrepancies in the first post-mortem, with the second post-mortem finding the cause of death to be otherwise.
“We are perturbed by the fact that no inquest was held as permitted by Section 334 of the Criminal Procedure Code, when the second autopsy by itself should have warranted a full investigation of the circumstances in which the deceased met his death.
“We must also not forget that where there is a custodial death, the family of the deceased is entitled to know the truth as to what had happened during the detention. That is their intrinsic right to know.
“This
entitlement to know can be easily understood by just asking the simple
question - what if it is your 22-year-old son who had died in custody,”
the judment says.To add credence to the call for an inquest or a public inquiry, the unrebutted allegation of the second defendant, Constable V Navindran (left), that he was made “the fall guy”, raises more questions.
Justice Wong said a full public and independent inquiry may have given insight into this matter.
The court also questioned the Taipan police station lock-up diary, which showed Kugan was in a good condition and looking at the testimonies of the police witnesses, the judiciary had the impression that they were not willing “to spill the beans”.
“Common sense and common decency demand that a full public inquiry be initiated, which would have served both the private and public interests in a manner demanded in a civil society,” Justice Wong.
He added that the judges agreed with the KL High Court judge's findings leading to the irrefutable conclusion that Khalid, Navindran and former Subang Jaya district polic chief, the late Zainal Rashid Abu Bakar, breached their duties.
The
judge further described the police action fell far short of the
standard operating procedure which require more disclosure than what had
happened in this case.In upholding the exemplary damages for public misfeasance, Justice Wong said they found there is a breach of Kugan's constitutional right by a public authority and that the courts cannot be barred from awarding this damages.
The Court of Appeal also agreed with the High Court judge's findings in affirming the quantum of exemplary damages awarded.
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