The High Court in Kuala Lumpur has dismissed a suit brought by Aleyasak Hamid @ Hassan, 39, over injuries allegedly caused by the police during the first Bersih rally in 2007.

Judicial Commissioner Azizul Azmi Adnan ruled that Aleyasak's statement of claim was defective because he could not identify the assailant.

Aleyasak had claimed that he was assaulted by Federal Reserve Unit (FRU) personnel, resulting in a broken knee, but the FRU commander at the scene testified that his men never broke formation, and thus could not have injured him.

"There is a possibility that Aleyasak could have mistaken the assault being done by the police Light Strike Force.

"However, as the court is bound by the pleading he had made and his failure to identify the assailants, the court has to dismiss the suit," Azizul Azmi said.

However, the judge did not make an order on the cost to paid by Aleyasak.

Aleyasak, who is self-employed, claimed that he was a bystander during the rally. He claimed that a police personnel stepped on his knee and assaulted him.

Aleyasak was in the crowd that ran from Jalan Tun Perak after police used a water cannon to spray chemical-laced water on the protesters as they made their way to Dataran Merdeka.

Aleyasak, who is now a father of four, said he is disappointed with today's decision.

“I cannot recognise the police officers as I was assaulted by them and one of the policeman stepped on my leg, after which I held my injured leg.

“I will discuss with my lawyer on whether to file an appeal,” he said when met by reporters outside the courtroom.

His lawyer, Latheefa Koya ( photo ) said she would seek further instructions from Aleyasak and study the judgment before deciding on filing an appeal.

Aleyasak had testified during the trial that his aunt dropped him off, outside the Kamdar store on Jalan Tuanku Abdul Rahman, to watch the rally that day.

Later, as he was walking with the crowd towards Dataran Merdeka, he heard shouts of ‘run, run!’ and watched the members of the Federal Reserve Unit (FRU) approaching.

"Then the FRU officers surrounded me and kicked at my ribs. They stepped on my left knee and then I heard a ‘pop’ sound - I knew then that my knee was fractured," he testified.

Aleyasak named the Kuala Lumpur police chief, Dang Wangi OCPD, the inspector-general of police and the government as defendants.

Officer involved was not identified

Azizul in his judgment today said the police officer responsible for the injury should have been identified before vicarious liability could be claimed from the government.

In the case before the court, the judge said, it was proven from the testimony that the KL police chief, OCPD and IGP were not involved in the physical assault.

“Despite them holding the posts as those responsible and in charge of those under their command, it is not sufficient for the court to determine that they were directly responsible for the act.

“Two elements need to be proven for vicarious liability. The first is whether the person responsible was truly responsible for the act and for the second, the plaintiff must prove the agent or principal worker was involved.”

“In this case, the plaintiff could not identify which police officer assaulted him, despite him confirming it was the police. However, the responsible officer should be named, based on the case of Lay Kee Tee,” judicial commissioner Azizul pointed out in dismissing the suit.

Senior federal counsel Andi Razalijaya A Dadi represented the defendants.