Family of factory worker who died in Tapah Prison under unlawful detention win suit

IPOH, Aug 13 — The family of a general worker in a sugar refinery factory in Penang, who died in police custody five years ago, has won their civil suit against 12 individuals and the government.

Judicial Commissioner Anselm Charles Fernandis said in his judgment that all defendants were liable for the negligence that caused the death of Kamarulnizam Ismail in the Tapah Prison between March 7, 8.30pm to March 8, 2.30am.

He ordered that Kamarulnizam’s family be paid RM100,000 for unlawful detention, RM50,000 for misfeasance in public office, RM12,000 for the full trial cost and RM2,000 for funeral expenses.

Justice Anselm ruled the police’s action to keep Kamarulnizam in the Seberang Prai police station lock-up for two days despite the court order to send him to the Tapah Prison on March 3 as unlawful detention.

He said he is agreeable with the plaintiff that under Section 282 of the Criminal Procedure Code, it is mandatory whenever there is an order, police officers must act within a reasonable time to transport those found guilty to the prison, and not after two days.

He also said that the Tapah Prison personnel should have kept an eye on the deceased and been more vigilant as the latter was on medication for diarrhoea.

However, on the cause of death, Justice Anselm said he was agreeable with the pathologist’s findings upon examination of the body, and post-mortem results that he had died of a lung infection.

Lawyer M. Visvanathan represented the deceased’s family, while Federal Counsel Shaiful Nizam Shahrin represented all the defendants.

Kamarulnizam was arrested under the Penal Code and the Minor Offences Act on Feb 13, 2014.

On March 2014, he pleaded guilty for possessing stolen goods and was fined RM800 or sentenced to 14 days imprisonment, if he failed to pay the fine.

Kamarulnizam chose to serve the jail term as he needed the money to repair his car, despite his 80-year-old father Ismail Ahamad showing up at the Bukit Mertajam court to settle the fine.

The court ordered Kamarulnizam sent to the Tapah Prison on March 3.

However, the police only sent him there two days later, where he died on March 8, 2014. The death was also reported to Suara Rakyat Malaysia (Suaram).

Kamarulnizam Ismail’s mother, Rahaya Salleh, speaks to reporters at the Ipoh High Court August 8, 2019. — Picture by Farhan Najib

On March 2017, his mother, Rahaya Salleh, 69, filed a suit at the Ipoh High Court against the government.

In the statement of claim, the family sought for dependency, misfeasance of public office, aggravated, special damages and exemplary.

Twelve individuals, including Inspector-General of Police and Tapah Prison Chief, and the government were named as defendants.

When met outside the court, Rahaya who was in tears said it was not about the money, but that she wanted justice for her son.

The deceased’s older brother Kamaruzzaman, 51, said the family were not happy with the ruling that his brother had died of lung infection, ignoring the fact that he was beaten while in custody.

Visvanathan also said that they would also be filing an appeal to seek dependency claim.