Police must pay RM357,500 damages over 2012 custodial death - Federal Court

 

The police and government have to pay RM357,500 in damages over the 2012 death-in-custody case involving lorry driver P Chandran.

The Federal Court made the ruling today in relation to a lawsuit by the deceased's family.

The 6-1 majority decision, read out by Federal Court judge Rhodzariah Bujang, ruled that although the family are not entitled to exemplary damages per Section 8(2) of the Civil Law Act 1956, they are still entitled to aggravated damages.

On Jan 9, 2017, the Kuala Lumpur High Court allowed legal action taken by the deceased’s widow N Selvi, 50, and daughter C Rita, 27.

At the time, Chandran's family were awarded a total of RM357,500 in damages, comprising RM200,000 for exemplary damages, RM144,000 for loss of income, RM10,000 for loss of dependency, and RM3,500 in special damages for funeral expenses.

In May 2017, the Court of Appeal upheld the ruling on damages when it dismissed the appeal by the police.

Besides Rhodzariah, the verdict came from other members of the apex panel, namely Court of Appeal President Rohana Yusuf who chaired the panel, Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim, and Federal Court judges Abdul Rahman Sebli, Zabariah Yusof, and Hasnah Mohammed Hashim.

The dissenting ruling was delivered by bench member P Nallini, who allowed the family to claim exemplary damages over the deceased's death.

In the decision, Rhodzariah said that a plaintiff is only entitled to exemplary damages if he or she is the victim of the punishable behaviour.

This is because the object of the law is not to compensate the victim but to punish the defendant and to deter him (defendant) and others from committing such wrong, she added. 

“Secondly, there is nothing in the Federal Constitution that provides in any direct way the right of a deceased’s estate to exemplary damages,” Rhodzariah said.

She noted nevertheless that the bench is not minded to set aside the quantum of damages awarded by the High Court.

She explained that it is because both aggravated and exemplary damages are intertwined and that the deceased’s family had initially sought aggravated damages but this was not awarded by the High Court.

“We have decided to set aside the quantum of exemplary damages ordered by the learned High Court judge and to substitute the same with that under aggravated damages.

“That quantum is more than justified and is reflective of this court’s abhorrence against the negligent conduct of the appellants which had resulted in the death of the deceased,” she said.

Rhodzariah said this is so even though the degree of its seriousness is not on the same footing as the infliction of abuse on some other detainees by their custodians which brought about their demise. She added that the majority verdict makes no order to cost.

'Custodial deaths one of the most reprehensible wrongs in society'

Meanwhile, in the dissenting ruling which dismissed the appeal, Nallini ruled that the deceased’s family is still entitled to damages over Chandran’s death.

She pointed out that custodial deaths are one of the most reprehensible of wrongs in a civilised society governed by the law.

“All the more so, when those conferred with the responsibility of protection and care on behalf of the state, like the appellants here, are themselves the perpetrators of inhumane acts and omissions or neglect or violence, resulting in the detainee’s death.

“The sanctity of human life is the most cherished value of an evolved society.

“Unfortunately, Chandran was deprived of his fundamental right to life while being held in custody. He died while in police custody at the detention facilities of the Dang Wangi police station,” she said.

Nallini said she departs from the majority ruling through her finding that every High Court has the jurisdiction and power to afford relief to a citizen who has suffered from an infringement of his fundamental rights.

“There can be no right without redress. Rights and remedies are inextricably interwoven. Otherwise, these rights are nothing more than a series of lofty ideals with no hope of enjoying such illusory rights. Justice would not be served.

“The courts should be vigilant to protect the rights of those in custody to ensure that they are not subject to custodial violence, but they should be equally vigilant to ensure that falsely motivated and frivolous claims are rejected.

“This is in the interests of society and to enable the police to discharge their duties fearlessly and effectively,” she said, adding that the present appeal is a fit and proper case for the deceased’s estate executors to bring action against the police and government.

When met after the Federal Court proceedings, the family’s counsel M Visvanathan confirmed that they are set to receive RM357,500 in compensation for Chandran’s death.

The lawyer said the ruling basically found that if one seeks to file legal action over death in custody, then the lawsuit must seek aggravated damages rather than exemplary damages.  - Mkini