PUTRAJAYA: The Federal Court has granted leave to the Government to appeal against the award given to the family of suspected car thief A.Kugan, who died while in police custody six years ago.
Chief Justice Arifin Zakaria, who chaired a three-man panel, allowed three questions of law to be heard on merits during the appeal proper.
The apex court will decide whether Section 8(2) of the Civil Law Act 1956 which bars the awarding of exemplary damages in an estate claim is applicable where the death of the deceased is as a result of a breach of his constitutional right to life.
The court will also determine on the purposes of an estate claim under Section 8 of the Act, whether the acts that make up the misfeasance in public office must be the acts that occured before the death of the deceased.
It will also deliberate and decide on whether a separate award for misfeasance in public office can be made in favour of the estate when the injury caused to the deceased is the exact injury for which an award for assault and battery had already been made in favour of the estate.
Senior federal counsel Alice Loke Yee Ching on Monday argued that the Court of Appeal has no jurisdiction to award RM300,000 in exemplary damages to Kugan's family.
Among others, she said award for misfeasance can only be given for acts prior to death.
"It does not extend to allowing the estate to sue for causes of action that arise post-deceased's death," she said.
She said it would be of public advantage for the apex court to answer three questions in the case.
SFC Loke said the award of RM100,000 for misfeasance in public office for Kugan's injuries would be tantamount to compensating the estate twice for the same injuries as RM50,000 in general damages has already been given over his assault and battery.
On Jan 13, 2012, Kugan’s mother N. Indra filed a RM100mil suit seeking damages over alleged negligence, assault, false imprisonment and misfeasance of public office as well as breach of statutory duties.
Indra, 47, had named then Selangor police chief Tan Sri Khalid Abu Bakar, now Inspector-General of Police, former constable V. Navindran, former Subang Jaya OCPD Asst Comm Zainal Rashid Abu Bakar (deceased), the Inspector-General of Police and Government as defendants.
Lawyer R.Sivarasa objected to questions stating that no flaw in the appellate court's reason has been identified for leave purposes.
At the outset of Monday's proceedings, Navindran's lawyer R.Ramesh Sivakumar applied to withdraw's his client's application for leave to appeal on liability and it was struck out by the court with costs.
Ramesh Sivakumar applied to be made a party in the Government's appeal but Justice Arifin said he has to file his proper application later as he has no legal rights to do so now.
In a landmark ruling, the Court of Appeal on Aug 8, last year ruled that a public independent inquiry must follow cases of custodial death.
In another landmark ruling on June 26, 2013 a High Court had awarded Kugan’s family RM801,700 in damages after finding police and the Government liable for his death while being remanded.
In August last year, Court of Appeal judge Justice David Wong Dak Wah, who read out a summary of the court's decision, said there should be zero tolerance to custodial deaths in remand centres in the country.
The Court of Appeal, chaired by Justice Mohamad Ariff Md Yusof, affirmed the High Court ruling on all important parts but set aside an award of RM100,000 given to the family over false imprisonment. In the coram was Justice Mah Weng Kwai.
In his ruling, then High Court judge Justice V.T. Singham (now retired) said Khalid was liable to misfeasance of public office, adding that Khalid had never clarified the cause of death to the media after giving a statement on Jan 21, 2009 that Kugan had died due to water in his lungs.
Justice Singham found the police and the Government liable for Kugan’s death from grievous injuries at the Taipan police station on Jan 20, 2009.
He said the court was unable to accept that the grievous injuries found on Kugan,22 were solely based on an assault incident by Navindran on Jan 16, 2009.
Justice Singham said the nature of injuries on Kugan who sustained 45 categories of external injuries on his body and wide range of internal injuries, spoke volumes of what had happened during his detention.
Navindran,35 will serve three years in prison after his final appeal against conviction for causing hurt to Kugan was dismissed by another Court of Appeal on May 22.
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