PUTRAJAYA: The police have become the judge and jury of a complaint made against them, said Justice David Wong Dak Wah.
The Court of Appeal judge, in a 51-page written landmark judgment in the A Kugan case, said this was an affront to the concept of fair play and transparency.
He said the Bench was perturbed by the admission of Tan Sri Khalid Abu Bakar, then Selangor police chief, that he had negotiated with the Attorney-General for the investigation be confined to an offence under Section 330 of the Penal Code (causing hurt to extort confession).
"What appears to have happened was that the police had become the judge and jury of a complaint made against their behaviour.
"This conduct with respect misses the point completely and that is the police 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.
Kugan, a suspected car thief, died while in police custody on Jan 20, 2009.
On Jan 13, 2012 Kugan's mother, N.Indra filed the RM100mil suit over alleged negligence, assault, false imprisonment and misfeasance of public office as well as breach of statutory duties.
Indra, 47, had named Khalid, former constable V.Navindran, former Subang Jaya OCPD Asst Comm Zainal Rashid Abu Bakar (deceased), the Inspector-General of Police and the Government as defendants.
On June 26, last year, High Court judge Justice V.T. Singham found the police and Government liable for Kugan's death while under remand at the USJ Taipan police station.
Justice Singham, who found Khalid liable to misfeasance of public office, had awarded damages for loss of support, funeral expenses, pain and suffering, assault and battery, false imprisonment, misfeasance and exemplary damages.
On Friday, the three-member panel of the Appellate Court, chaired by Justice Mohamad Ariff Md Yusof with Justice Wong and Justice Mah Weng Kwai, unanimously affirmed a High Court ruling on all important parts but set aside an award of RM100,000 given to Kugan's family over false imprisonment.
Justice Wong said there was also no evidence that Khalid, now Inspector-General of Police, or Zainal (deceased) had asked the author of the first autopsy report the obvious question of whether the cause of Kugan's death was consistent with his numerous injuries.
"Surely that is the least Khalid and Zainal should have done.
"It cannot be that the law requires no inquiries from Khalid and Zainal when an autopsy report appears to be inconsistent to the external of the deceased (Kugan).
"Further, to state the obvious, there has been a custodial death and that should have rung "alarm bells from the word go" so to speak," he said.
Fortunately, Justice Wong, said that a second autopsy was conducted with the insistence of the Kugan family and legal adviser.
"With the release of the second autopsy report, Khalid instead of calling for an independent inquiry to find out what happened during the seven-day detention (Kugan's detention) conducted an internal investigation," he said.
He said an independent inquiry should have initiated in view of the circumstance in Kugan's case.
He said the Bench was also perturbed by the fact that no inquest was held when the second autopsy report by itself should have warranted a full investigation of the circumstances in which Kugan met his death.
Justice Wong said that the information of Zainal as the OCPD given to Khalid that Kugan collapsed after drinking water, was also "either wholly reckless or purely and simply untrue."
"We say that for the simple reason that from the second autopsy report, there were apparently some 45 external injuries on the body of the deceased (Kugan), meaning that they are visible to the naked eye," he said.
He said that those apparent injuries surely raise the question as to whether Zainal had made any serious enquiry as to how Kugan succumbed to his death or there was as the High Court judge's finding an attempt to cover up as to what really happened during his seven days of detention.
He said that the police force as a public professional body exist duties of care in their discharge of their powers.
"In the context of police force, it is their standard operating procedure (SOP) and that should be subject to scrutiny by the court of law," he said.
On the incorrect entries in the lock-up diaries, Justice Wong said that the testimonies of the witnesses of the defence, caused them to have the impression that "they were unwilling to 'spill the beans' so to speak on their fellow officers."
He said the wilful disregard to ensure the truth behind Kugan's death is made known together with other undisputed evidence was enough to satisfy a case of public misfeasance (public officers exercising their powers wrongly).
"It is a tragic case which could have been avoided had proper due care and adherence to the law been followed by the defendants," said Justice Wong.
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