A senior federal counsel representing the police and the government told the Federal Court today that the families of A Kugan and Abdul Jaffar Abdul Mutalib are not entitled to receive exemplary damages.

This is because Section 8 and 8(2) of the Civil Law Act, as in Kugan's case, bars the estate of the deceased from seeking such compensation, senior federal counsel Alice Loke argued.

She added that the High Court and Court of Appeal had erred in granting exemplary damages to the two families.

“It is clearly stated under Section 8 (2) (a) that the estate is not entitled to exemplary damages if the victim had died. Hence, the courts were wrong in giving out the award,” Loke (photo) said.

She also said that in Kugan's case, although the court awarded RM100,000 for misfeasance in public office, the award can only be given pre-death and not as a result of actions post-death, such as not having an inquest into the death.

“Hence, the appellant proposes that the damages for misfeasance in public office be reduced to RM50,000 and not RM100,000 to accommodate (the situation) before Kugan's death,” Loke said.

The government is not appealing the facts of the case but the quantum of RM351,000 in total damages that was awarded to the family of Abdul Jaffar and a total of RM701,000 to Kugan's estate.

Kugan, who worked as a car repossessor, died as a result of beatings he suffered at the hands of the police at the Taipan police station in Subang Jaya in early 2009.

Similar arguments were made in the case of Abdul Jaffar, who also worked as a car repossessor and died after police shot him as he was seated in the front passenger seat of a Proton Waja car in 2008.

The appeal is being heard before a five-member bench chaired by Justice Suriyadi Halim Omar.

The other judges are Federal Court judges Ahmad Maarop, Zainun Ali, Azahar Mohamed and Zaharah Ibrahim.

Court reserves judgment

Lawyer Sivarasa Rasiah, for Kugan’s family, told the court that the estate should get exemplary damages as it is within the court's jurisdiction to grant them.

This is because the police action resulting in his death had violated the victim's right under Article 5 of the Federal Constitution, which states no person shall be deprived of his life or personal liberty, save in accordance with the law, he said.

Sivarasa (photo) said there is an explicit jurisdiction for the court to grant exemplary damages following the violation of one’s constitutional rights.

This is what the Court of Appeal recognised, he added, when awarding exemplary damages to Kugan's estate and this also follows a case law adopted in the United Kingdom.

Sivarasa, who is also Subang MP, said the award of misfeasance in public office should be maintained.

The court reserved its decision on Kugan's case.

In the Court of Appeal decision on Kugan, Justice David Wong Dak Wah said that there should be zero tolerance for custodial deaths.

The same Federal Court panel today also reserved judgment for the case involving Abdul Jaffar.

Loke said Abdul Jaffar’s case is different from Kugan's as the exemplary damages were awarded under Section 7 of the Civil Law Act.

“It’s already a decision of the Federal Court as to whether exemplary damages can be claimed,” said Loke.

Acting on behalf of Abdul Jaffar’s family, lawyer V Rajadevan adopted the argument that Sivarasa had submitted earlier.

The Court of Appeal, in October 2014, had awarded Abdul Jaffar’s family exemplary damages of RM300,000 and RM51,000 for dependency damages.

In Abdul Jaffar's case, Court of Appeal judge Hamid Sultan Abu Backer ruled that the police are paid through public funds with their primary duty being to arrest criminals and put them up for trial.

"They cannot be allowed to roam trigger-happy as this will be in violation of rule of law and the relevant authorities must seriously seriously check such violation," Justice Hamid had ruled.