A former Court of Appeal judge said he was startled by the recent majority judgment by the Federal Court which decided not to award exemplary damages of RM300,000 to the mother and family of A Kugan who died in custody nine years ago.
The damages awarded by the High Court were upheld by the Court of Appeal.
Commenting on the verdict, Mohd Hishamudin Mohd Yunus said he agreed with the dissenting judgment given by Justice Zainun Ali on applying common law principles.
“I wholeheartedly agree with the dissenting judgment of Justice Zainun that the violation of a constitutional right (which is the case here) entitles the court to award exemplary damages against the tortfeasor," he said.
“The learned judge stated the law correctly. This has always been the position under the common law.
"I am startled and deeply saddened by the majority decision of the Federal Court,” he told Malaysiakini, adding an injustice has been occasioned here to the late Kugan and his family.
Kugan, 22, died in early 2009, after being beaten while on remand at the Taipan police station in Subang, Selangor. He was arrested on suspicion of stealing several motor vehicles.
The court judgment
Justice Zaharah Ibrahim, who wrote the majority judgment at the apex court, pointed out that Section 8(2)(a) of the Civil Law Act 1956 (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),” Justice Zaharah said in the judgment that was supported by three other judges.
Justice Zainun in her dissenting judgment described the death of an individual in police custody as a clear violation of the most fundamental liberty as enshrined in Part II of the Federal Constitution.
“Custodial death should not ever become a new norm, for something is seriously wrong with a society if it does not find the senseless loss of lives abhorrent,” she added.
Article 5(1) of the Federal Constitution, she said, guarantees the right to life, and 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.
Justice Zainun added that since common law recognises the violation of a constitutional right, it should entitle the court to make an award of damages.
“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 added.
Lawyer M Visvanathan on Tuesday described the apex court decision as a sad day for justice.
Puchong MP Gobind Singh Deo has called for an amendment of the CLA.