Custodial death: Court allows mum’s appeal for damages for negligence, dependency claim

In today’s proceedings conducted virtually, the Court of Appeal bench allowed the government’s appeal to set aside the Ipoh High Court’s decision to award the family RM100,000 in damages for unlawful detention and RM50,000 for misfeasance in public office. — Reuters pic
In today’s proceedings conducted virtually, the Court of Appeal bench allowed the government’s appeal to set aside the Ipoh High Court’s decision to award the family RM100,000 in damages for unlawful detention and RM50,000 for misfeasance in public office. — Reuters pic

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PUTRAJAYA, June 24 — The Court of Appeal today allowed the appeal for damages for negligence and dependency claim filed by the mother of a general worker, Kamarulnizam Ismail, who was found dead in Tapah Prison in 2014.

A three-member bench led by Justice Datuk Yaacob Md Sam, however, deferred to July 7 to decide on the quantum of damages for negligence and dependency claim to be awarded to the family to enable parties in the appeal to file further written submissions on the matter by June 30.

Lawyer M. Visvanathan is representing the mother, Rahaya Salleh, while senior federal counsels Azizan Md Arshad, Andi Razali Jaya A. Dadi and Mohd Ashraf Abd Hamid appeared for the police, the prison officials and the Malaysian government.

In today’s proceedings conducted virtually, the panel allowed the government’s appeal to set aside the Ipoh High Court’s decision to award the family RM100,000 in damages for unlawful detention and RM50,000 for misfeasance in public office.

Justice Yaacob, presiding with Justices Datuk Ahmad Nasfy Yasin and Datuk M. Gunalan, awarded the family special damages of RM10,000 and increased the legal costs for the lower court’s proceedings awarded to the family from RM12,000 to RM30,000.

The court also upheld the High Court’s decision to find the respondents liable for negligence.

Earlier, Visvanathan told the court that the deceased’s family is seeking RM71,400 for dependency claim and RM250,000 as damages for negligence.

Azizan, however, said that the damages for the dependency claim should be RM27,685.44.

In August 2019, the High Court held the defendants were liable for negligence and awarded Kamarulnizam’s family RM100,000 for his unlawful detention and RM50,000 for misfeasance of public office.

Then Judicial Commissioner Anslem Charles Fernandis (now High Court Judge) said Kamarulnizam, 39, was kept at the Seberang Prai police station lock-up for two days before being transported to the Tapah Prison.

The judge described Kamarulnizam’s stay in the lock-up as unlawful detention because under Section 282 of the Criminal Procedure Code it was mandatory, whenever there is an order, for police officers to act within a reasonable time to transport those found guilty to the prison, and not after two days.

Justice Fernandis also said warden officers in Tapah prison should have kept an eye on Kamarulnizam and be more vigilant after he was given medication for diarrhoea.

The Magistrates’ Court in Penang had given Kamarulnizam a fine of RM800 in default 14 days’ jail after he pleaded guilty to committing offences under Section 29 of the Minor Offences Act 1957 and Section 89 of the Police Act 1967.

Kamarulnizam, who was working in a sugar refinery in Penang, reported that he chose to serve the jail term as he needed the money to repair his car, despite his father Ismail showing up at the court to settle the fine.

Rahaya, 71, filed the suit against the respondents on March 3, 2017, and sought for dependency claim, misfeasance of public office, aggravated, exemplary and special damages. — Bernama

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