The government has succeeded in obtaining leave to appeal damages awarded to death in custody victim A Kugan.

 

The Federal Court today granted the inspector-general of police (IGP) Khalid Abu Bakar and the government leave to appeal the Court of Appeal and High Court decisions, which ruled for damages be paid to A Kugan's mother.

Today's decision was made by a three member Federal Court bench, led by Chief Justice Arifin Zakaria.

 

The other two judges were Federal Court judges Justices Azahar Mohamed and Zaharah Ibrahim.

 

Kugan died in police custody in 2009 at the Tai-Pan police station while he was being held for suspected car theft.

 

The apex court allowed three questions posed by the senior federal counsel Alice Loke, in representing Khalid, the police and the government.

 

One question was whether Section 8(2) of the Civil Law Act 1956 which bars the awarding of exemplary damages in an estate claim, is applicable where the death of the deceased is a result of breach of his constitutional right to life.

The second question was for the purpose of an estate claim under Section 8 of the Civil Law Act, whether the acts that make up the tort of misfeasance in public office must be acts that occurred before the death of the deceased. 

The final question was whether a separate award for misfeasance in public office can be made in favour of the estate when the injury caused to the deceased is the exact injury for which an award for assault and battery had already been made to the estate.

R Sivarasa ( photo ) who represented Kugan's family, had opposed the leave application on the ground that there was no flaw in the Court of Appeal's decision.

 

Khalid is being sued by Kugan's mother N Indra as he was Selangor police chief then.

 

Also named in the suit are former policeman V Navindran and former Subang Jaya district police chief, the late Zainal Rashid Abu Bakar, the police and the government, for breach of their duties.

In 2013, The Kuala Lumpur High Court had awarded RM801,700. which included RM100,000 for the false imprisonment claim.

However the Court of Appeal in its ruling on Aug 8 last year, waived the false imprisonment claim sought by Indra but allowed the family of Kugan RM701,700 in damages for his death.

In the appellate court's decision, it also adopted a zero tolerance for custodial deaths.

Lawyer R Ramesh Sivakumar who appeared for Navindran today withdrew his client's application for leave which the apex court allowed with costs.