Deceased police detainee Kugan Anathan's mother suffered a setback today when the High Court allowed a preliminary objection by the government against returning the post-mortem samples which police had confiscated from the Universiti Malaya Medical Centre (UMMC).
With the preliminary objection allowed, the court decided not to hear the merits of the case but allowed the mother to file a proper fresh application.
Judge Ghazali Cha allowed the preliminary objection by the police on a technicality when he ruled that the application should not have been filed via a notice of motion.
Lawyer N Surendran said they could appeal against today's decision.
Kugan, 22, who was detained in January for alleged involvement in car theft, died after five days in police custody.
His family had rejected the initial post-mortem conducted by Dr Abdul Karim Tajuddin of the Serdang Hospital, which stated that the Kugan had died from "fluid accumulation" in his lungs.
A second autopsy was done at UMMC at the request of the family, after which pathologist Dr Prashant N Sambekar Prashant concluded that Kugan was severely beaten resulting in kidney failure and death.
Indra named four police officers in this action, including inspector-general of police Musa Hassan and criminal investigation department director Mohd Bakri Zinin, as respondents.
The other two are Petaling Jaya district police chief Arjunaidi Mohammed and the officer who raided the pathologist's office, ACP Mohd Marzukhi Mohd Mokhtar.
Application did not state provision
In his decision, Justice Ghazali said Indra's notice of motion did not state under which provision the court had the jurisdiction to hear the application.
"I agree with the respondents (represented by the Attorney General's Chambers) that the applicant should state under which provision this notice was filed. This is to facilitate the court to study the relevant provision.
"Without stating the proper and correct intitulements, it would result in the court to question or be kept guessing on which law provision and Act is being referred to," he added.
He said because the proceeding started with this notice of motion, and an accompanying affidavit, it must follow the provision which supports civil proceedings in nature, by stating the correct and accurate intitulements to prevent confusion.
"Although this may be technical, it is emphasised by the court to ensure a just hearing. Intitulements is not only important for the court but also to the opposing side to prepare its reply or for them to prepare their case," he added.
He pointed out that the counsel for the applicant had argued that the court has revisionary powers.
"The court does not deny its revisionary powers to call up papers from the lower courts in exercising this jurisdiction. However, when I studied the prayers sought, its title and the contents in the notice of motion and the affidavit, there was no mention of 'revisionary'.
"It is only when submission was made by the counsel, he mentioned revisionary. It is clear that the absence of the intulement has confused me," he said.
"Following this, I am satisfied with allowing this preliminary objection by the respondents and this notice of motion is hereby struck out with liberty to file afresh," he added.
Commenting the decision, Surendran said they have two options - make a proper revision application or appeal today's decision at the appellate court.
"I will discuss this with my client before deciding on the next course of action," he said.
"We want the samples for a toxicology test to be done to determine what is the cause of Kugan's death. Was he poisoned or anything. That is why Indra is seeking the samples," he added.
Deputy public prosecutor Noorin Badaruddin represented the police.
With the preliminary objection allowed, the court decided not to hear the merits of the case but allowed the mother to file a proper fresh application.
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Lawyer N Surendran said they could appeal against today's decision.
"The decision would not stop us in seeking the samples and also seeking justice for Kugan," he added.
N Indra is seeking the return of her son's post-mortem samples, including bodily fluids and tissue samples, photographs, documents and other materials relating to the procedure done by a UMMC pathologist.
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His family had rejected the initial post-mortem conducted by Dr Abdul Karim Tajuddin of the Serdang Hospital, which stated that the Kugan had died from "fluid accumulation" in his lungs.
A second autopsy was done at UMMC at the request of the family, after which pathologist Dr Prashant N Sambekar Prashant concluded that Kugan was severely beaten resulting in kidney failure and death.
Indra named four police officers in this action, including inspector-general of police Musa Hassan and criminal investigation department director Mohd Bakri Zinin, as respondents.
The other two are Petaling Jaya district police chief Arjunaidi Mohammed and the officer who raided the pathologist's office, ACP Mohd Marzukhi Mohd Mokhtar.
Application did not state provision
In his decision, Justice Ghazali said Indra's notice of motion did not state under which provision the court had the jurisdiction to hear the application.
"I agree with the respondents (represented by the Attorney General's Chambers) that the applicant should state under which provision this notice was filed. This is to facilitate the court to study the relevant provision.
"Without stating the proper and correct intitulements, it would result in the court to question or be kept guessing on which law provision and Act is being referred to," he added.
He said because the proceeding started with this notice of motion, and an accompanying affidavit, it must follow the provision which supports civil proceedings in nature, by stating the correct and accurate intitulements to prevent confusion.
"Although this may be technical, it is emphasised by the court to ensure a just hearing. Intitulements is not only important for the court but also to the opposing side to prepare its reply or for them to prepare their case," he added.
He pointed out that the counsel for the applicant had argued that the court has revisionary powers.
"The court does not deny its revisionary powers to call up papers from the lower courts in exercising this jurisdiction. However, when I studied the prayers sought, its title and the contents in the notice of motion and the affidavit, there was no mention of 'revisionary'.
"It is only when submission was made by the counsel, he mentioned revisionary. It is clear that the absence of the intulement has confused me," he said.
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Commenting the decision, Surendran said they have two options - make a proper revision application or appeal today's decision at the appellate court.
"I will discuss this with my client before deciding on the next course of action," he said.
"We want the samples for a toxicology test to be done to determine what is the cause of Kugan's death. Was he poisoned or anything. That is why Indra is seeking the samples," he added.
Deputy public prosecutor Noorin Badaruddin represented the police.
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