Families not entitled to exemplary damages over custodial deaths — Federal Court
PUTRAJAYA: Families of persons who died in custody will have less rights in claiming damages as the Federal Court, in a majority decision yesterday held that they were not entitled to claim for exemplary damages.
The decision was delivered by a Federal Court five-man panel in a 4-1 majority verdict after allowing the appeal brought by the police and government against the families of three deceased persons.
Justice Tan Sri Zaharah Ibrahim who read the court’s majority decision held that the award of exemplary damages under section 7 of the Civil Law Act 1956 was contrary to the legislature’s intention in enacting that section.
She said the High Court had erred in taking the position that the bar set by Section 8 (2) of the Civil Law Act 1956 against the awarding of exemplary damages did not apply when the death was the result of a breach of the victim’s constitutional right to live.
Justices Tan Sri Ahmad Maarop, Tan Sri Suriyadi Halim Omar, Tan Sri Azahar Mohamed concurred with Justice Zaharah while Tan Sri Zainun Ali dissented.
In the case involving A. Kugan who died in police custody in 2009, the Federal Court today set aside the sum of RM300,000 in exemplary damages which meant his mother, N. Indra would get a reduced sum of award of RM401,700, instead of RM701,700.
On Jan 13, 2012, Indra, a housewife, filed a RM100 million suit seeking damages over alleged negligence, assault, false imprisonment and misfeasance of public office as well as breach of statutory duties.
Kugan, 22, was arrested in Puchong on Jan 14, 2009, and held overnight at the Puchong Jaya police lock-up before police obtained a remand order. He was taken to the Taipan USJ, Subang Jaya police station two days later for questioning and was found dead on Jan 20, 2009.
The second case involved the family of Abdul Jaffar Abdul Mutalib, a car repossessor, who was allegedly shot dead by police in 2008. The Federal Court set aside the sum of RM300,000 in exemplary damages; thus, his three daughters are only entitled to get RM51,000 in damages for loss of dependency.
Nurasmira Maulat Abdul Jaffar, Siti Asma Abdul Jaffar and Siti Fatimah Abdul Jaffar, filed the suit against the police and government asking for damages for the alleged wrongful death of their father.
In the third case, Uthayachandran a/l Gaur Chandram died on May 18, 2008 while in remand in Sungai Buloh, pending trial for a drug trafficking charge after sustaining severe injuries following a fight which broke out amongst several prisoners during the distribution of food.
His father would only get about RM105,000 as the Federal Court today set aside the RM100,000 in general damages.
The father, M. Ghaur Chandram, filed a suit claiming the appellants, including the Home Ministry Chief Secretary, Sungai Buloh Prison director, medical officer in charge of the Sungai Buloh Prison failed in their duty to ensure his son’s safety while in their custody.
In her decision, Zainun said the death of an individual in police custody was a clear violation of the fundamental liberty entrenched in Article 5 (1) of the Federal Constitution which guaranteed the right to live.