A technicality caused a snag to court proceedings on whether a second post-mortem should be conducted on the body of dead police detainee Ho Kwai See, whom his family suspects was assaulted in custody.

An hour into the hearing today, the case took an unexpected turn when the counsel for the defendant - Universiti Malaya - questioned the Kuala Lumpur High Court's jurisdiction.

Lawyer PS Ranjan raised two points to support his view that the case should not be heard before the court.

He said the plaintiff, Ho Kooi Sang - the brother of the deceased - had to first apply for leave from the High Court before an application for judicial review can be made.

Rajan said this requirement was expressly stated under Section 53 of the High Court rules.

Wrong law

Furthermore, he said the applicable law regarding post-mortem examinations was the Criminal Procedure Code (CPC) and not the Specific Relief Act as applied by Ho's lawyers P Uthayakumar and M Manoharan.

He referred to Section 335(ii) of the CPC that any party seeking a second post-mortem must first apply for an order from a magistrate.

Should there be any dispute over the magistrate's decision, Ranjan said the next recourse for the family was to the criminal High Court and not the civil courts.

"The CPC does not provide for a contract on a private basis by a public authority for a post-mortem examination to be undertaken on request by a private person," he said to refute the plaintiff's application asking the court to order Universiti Malaya Medical Centre (UMMC) to perform the post-mortem.

Judicial commissioner Wan Affrah Wan Ibrahim later said she would announce her decision on the issue of jurisdiction next Tuesday.

Not relevant

In his responding argument, lawyer M Manoharan said the originating summons issued to UMMC was submitted upon Section 44 of the Special Relief Act which provides the court the power to order public servants (and others) to do certain specific acts, including a post-mortem.

"Under this section, it is clear that we do not need to apply for leave from the court first. Section 44 prevails over the provision in the High Court rules raised by the defendants," he added.

On the applicability of the CPC, Manoharan said it was not relevant in this case as there was no on-gong inquiry or inquest on-going into the death.

"If there is an inquiry, we can go to the magistrate to request for a permit but this is not the case here. There is no inquiry into the matter and so there is no magistrate for us to go to," he said.

He also questioned the defence counsel's decision to invoke the jurisdiction issue only an hour into the hearing.

"The defense had submitted an affidavit in reply to our affidavit. If they felt that there was no case, they should have applied to have the case struck out before we started," he said.

Intimidatory letter

Earlier, Manoharan said UMMC forensic pathologist K Nadesan had agreed to perform the post-mortem and only refused to do it after finding offence with the plaintiff's other lawyer Uthayakumar.

According to him, Uthayakumar had contacted Nadesan with the intention of pressing for a post-mortem to be carried out on Aug 6, when the body was first transferred from Hospital Kuala Lumpur (HKL) to UMMC.

Later, Nadesan wrote a letter ( right ), a copy of which was forwarded to Uthayakumar's office, saying that he no longer wanted to perform the post-mortem.

"Out of sympathy for the family, I had agreed...but because of the intimidatory tone of the letter (by Uthayakumar), I decline," the doctor had allegedly said in his letter.

Defense counsel Ranjan denied these allegations against Nadesan and said the latter should not be brought into the case as he was not made a party of the proceedings.

"We submit that the wrong procedure has been applied by the plaintiff," he said.

The family of the deceased suspected foul play after discovering bruise marks on his body. The 28-year-old coconut trader died at the Sungai Buloh prison on Aug 4, a week after he was arrested over a drug related offence.

The initial post-mortem conducted by HKL revealed that the cause of death was a 'perforated ulcer'.

However, dissatisfied family members applied for a second post-mortem to be carried out at UMMC, which had agreed to do so.

However, the medical centre later told the family that it would carry out the post-mortem only if they could produce a magistrate's order or police permit.