No exemplary damages in Kugan’s custodial death case, court rules

The Federal Court ruled today that no exemplary damages shall be awarded to family members of individuals who die in custody as a result of police action, in relation to the case of A Kugan.

A majority of the panel, including Chief Judge of Malaya Ahmad Ma'arop, as well as judges Suriyadi Halim Omar and Azahar Mohamed, ruled in favour of the police, who appealed the decision to award damages to Kugan’s mother.

Justice Zainun Ali dissented, arguing that Sections 7 and 8 of the Civil Law Act 1956 – which pertain to the compensation to the families of persons for loss occasioned by their deaths – predated Merdeka, and that the violation of Kugan's constitutional right to life should be taken into account.

Lawyer Sivarasa Rasiah (right in photo), who appeared for Kugan’s family, said the Federal Court judgment today is a step backward for justice, because it now means that only those who survive police beatings while in custody are entitled to exemplary damages.

"If you are alive, you are entitled to get exemplary damages as a result of the beating you suffered.

"This court is sending the wrong message to the police and public," said Sivarasa, adding that Zainun’s decision should have been the correct one.

Lawyer L Bani Prakash appeared alongside Sivarasa.

Kugan, a tow truck operator, died as a result of severe beating suffered while held at the Taipan police station in Subang, Selangor.

The High Court and Court of Appeal had granted his family exemplary damages as well as compensation for tort of misfeasance in public office, which amounted to RM701,000.

With today’s decision, however, Kugan's mother N Indra will only receive RM450,000 for general damages and compensation for misfeasance in public office.

The judgment comes over a year after the appeal was initially heard at the Federal Court in June last year, specifically on the matter of exemplary damages.

Justice Zaharah Ibrahim, who wrote the majority judgment, pointed out that Section 8(2) of the CLA states that the damages recoverable by the estate of a deceased person “shall not include any exemplary damages.”

She said the High Court and the Court of Appeal took the position that this bar does not apply where there has been a breach of one's fundamental liberty of right to life under the Federal Constitution.

“However, the claim of the person on behalf of the estate of a deceased person under Section 8, must ‘stand to fail’ on the basis of Section 8(2),” Zaharah said.

Senior federal counsel Alice Loke and Zuhrin Elina, who appeared for then Selangor police chief Khalid Abu Bakar, three policemen, and the government had said families of deceased are not entitled to such claims.

‘Clear violation of fundamental liberty’

Zainun described the death of an individual while in police custody as a clear violation of the most fundamental liberty as enshrined in Part II of the Federal Constitution.

Article 5(1), she said, guarantees the right to life, adding that in the field of granting damages, as in other areas of the law, labels are not conclusive.

“The role of the court is to examine the award against the totality of the circumstance in which it was awarded, having regard to the conduct of the tortfeasor.”

Zainun said that since common law recognises the violation of a constitutional right, it should entitle the court to make an award of damages.

“A victim of a constitutional violation has the right to be compensated by an award of punitive, exemplary or aggravated damages, that in itself translates into a right guaranteed under Article 5(1) of the Constitution.

“Where a wrong is committed by the state or an instrument of the state which has the effect of depriving the victim of his life, the victim is entitled to an award of exemplary, or aggravated damages,” she said.

As Section 8 is a pre-Merdeka law, Zainun said it is inconsistent with the constitutional article, which made it the duty of the court to read the law in accordance with Article 162(6), which pertains to existing laws.

Zainun then explained how Section 8 (2) (a) of the CLA should read, with suggested modifications.

“Custodial death should not ever become a new normal, for something is seriously wrong with a society if it does not find the senseless loss of lives abhorrent,” she added.

The bench also allowed the police appeal against Abd Jaafar Abdul Mutalib's family, who was gunned down by police in 2008.

The apex court also took out the RM300,000 exemplary damages awarded out of the initial RM351,000 awarded by the Court of Appeal.

The family was represented by lawyer V Rajadevan.

The same bench also allowed the appeal by the Home Ministry secretary-general and five others over the death of M Ghaur Chandran in the Sungai Buloh Prison nine years ago, setting aside the RM100,000 general damages awarded to the family.-Mkini

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