Police, gov't appeal 'wrongful award' in Kugan's case

The police and government are not only appealing against the judgement that found them liable for A Kugan's death in 2009 but also the Kuala Lumpur High Court decision to award punitive and exemplary damages to the family's estate.

According to the memorandum of appeal of the police, government and the former constable implicated in the death, the Kuala Lumpur High Court's decision in awarding the tort for misfeasance of public office was wrong and went beyond the Civil Law Act 1956.

They argued there is a limitation to Kugan estate's claim as stated under the Act but the court acted beyond that in awarding malfeasance of public office as damages.

The lawyers for the police and government along with former constable V Navindran (right) argued that Kugan's mother filed the action under Section 7 and 8 of the Act.

"Misfeasance of public office is not a statute provided for under the Civil Law Act.

"Section 7(3) of the Act states damages which the estate sought to compensate is for loss of support or any reasonable expenses incurred as a result of the wrongful act, neglect or default of the party liable under subsection," their memorandum of appeal stated.

The police and government were represented by senior federal counsel Azizan Md Arshad and lawyer Ramesh Sivakumar appeared for Navindran in today's proceeding.

According to their memorandum, Kugan's case is the first case in Malaysia where an award for misfeasance of public office was made and the decision sought on this matter is pivotal as it is seen as a precedent for other cases.

Justice V T Singham had awarded RM300,000 for tort of misfeasance of public office and another RM50,000 for punitive damages, from the total RM801,700 granted to the family.

Kugan's mother won the suit against the former Subang Jaya OCPD, Navindran and then Selangor police chief Khalid Abu Bakar, Inspector-General of Police and government.

Appeal hearing on Feb 28

Indra filed a RM100 million claim against the police and government in 2012 over her son’s death at the Tai Pan police station in 2009.

Kugan had died while in remand at the police station in the morning of Jan 20, 2009 where his body had shown signs of beatings.

The first post-mortem which showed that the cause of death was due to fluid in the lungs was rejected by the family and a second examination was done.

The second post-mortem done at the University Hospital showed that he died due to tissue failure as a result of the excessive beatings.

Today was fixed for the government and Navindran's appeal over Singham's decision.

However, Court of Appeal judge Mohamad Arif Md Yusof, who was leading the three- member bench, noted that this was a public interest matter and decided not to listen the case today and fixed Feb 28 to hear the appeal.

"Since this is a public interest matter, we will hear the appeal for one or two days. You can take your time," said Mohamad Arif.

The other judges on the bench were Justices Mah Weng Kwai and David Ong.

Earlier, Ramesh applied for an extension of time to better prepare the submission but he and Azizan indicated they were willing to go on with the appeal today.

Appearing for Kugan's family was Sivarasa Rasiah, who is also Subang MP.

Sivarasa also pointed out that the notice of appeal and memorandum of appeal filed by the government and lawyer were wrong.

This follows that the government's appeal record’s front cover stated Navindran's name and Navindran's appeal record also stated the other defendants besides him.

"This is to further avoid confusion in this matter as there are two appeals one by the police and government and another by Navindran," said Sivarasa.

Justice Mohd Ariff then asked the parties to rectify this by a notice of motion before the next hearing date.