The family of Ho Kwai See, a coconut trader who died on Aug 4 while in police custody, has filed a civil suit against Universiti Malaya (UM) after failing to convince the UM Medical Centre to approve a second post-mortem on the body.

The deceased's brother Ho Kooi Sang also applied for an order to compel the defendant to carry out the post-mortem within 12 hours of the court's decision, and to complete a report on the findings within the next 12 hours.

The Kuala Lumpur High Court has fixed the case to be heard tomorrow by Judicial Commissioner Wan Affrah Wan Ibrahim.

The plaintif, represented by lawyer P Uthayakumar, sought damages in excess of RM5 million for the UMMC's refusal to carry out a second post-mortem to which it had apparently earlier agreed.

"We have said that this is an urgent matter. The court can order the post-mortem to be carried out tomorrow and leave issues of damages for another date," Uthayakumar said when contacted.

The lawyer added that the summons was served on UMMC's legal representative, P S Ranjan and Co, at 4.30pm today.

Compensation for delay

In the originating summons, Kooi Sang sought compensation of RM500,000 for each additional day that the post-mortem has been delayed, with effect from Aug 6.

In addition, he asked for RM1 million to compensate for "pain and suffering" experienced by the family as a result of the delay and RM10,000 for the cancellation of funeral arrangements which had been scheduled to take place on Aug 7.

Kwai See, 28, died after spending just over a week in police custody. He had been arrested on a drug-related offence and then sent to the Sungai Buloh prison.

According to the findings of the first post-mortem carried out at Hospital Kuala Lumpur, Kwai See died of a 'perforated ulcer'. However, his family suspected foul play after seeing his body covered with bruises, and decided to arrange for a second investigation to be carried out.

The case took an unexpected twist after UMMC authorities refused to carry out the post-mortem.

In a letter to the family, the hospital's lawyers said that authorisation had to be first obtained from a police officer or magistrate, as required under the Criminal Procedure Code.

'Irrational' refusal

In his supporting affidavit, Kooi Sang said UMMC forensic pathologist Prof Kasinathan Nadesan had initially agreed to perform the post-mortem on condition that the body was registered with the Accident and Emergency department and a deposit of RM1,000 was placed with the hospital.

"We did this immediately on Aug 7. We paid by cash and were given a letter from the defendant dated Aug 7 together with a burial permit and a receipt for the deposit," said the affidavit.

"Then, in an irrational, uncompromising and abusive manner, they decided not to carry out the post-mortem although they had earlier agreed to do it and accepted our payment."

Kooi Sang asked the court to declare that a magistrate's order is not required for a second post-mortem to be carried out.

"The defendant does not have the jurisdiction to determine whether or not to do a second post-mortem because it is a public institution and operates on public funds," said the affidavit.

It noted that the same department had performed a second post-mortem in three earlier cases without invoking the requirement of a magistrate's order.

'Beaten and punched'

Meanwhile, Kooi Sang said the family had good reason to believe that Kwai See had been tortured by the police or prison authorities while in their custody.

"On inspecting the body of the deceased, we noticed blue-black marks believed to be the result of torture by the police or Sungai Buloh prison authorities. We believe his hands were bound with a rope from the roof and that he was hit under the armpit on the left side," his affidavit said.

"He was also poked with a wooden or steel rod causing injuries to his right shoulder and back. His stomach was also punched till it turned blue-black."

Several earlier attempts by the family to appeal against the UMMC's decision not to carry out the second post-mortem had produced no results.

Yesterday, Kooi Sang had submitted an appeal letter to UM Vice-Chancellor Prof Hashim Yaacob. A similar letter was also submitted to Health Minister Chua Jui Ming.

The family has filed five police reports to date over the custodial death and the hospital's refusal to carry out a second post-mortem. They have further refused to claim the body until the post-mortem is carried out.