The court established that police are liable for death in custody due to negligence and breach of statutory duty, leading to joint and several liability for damages.

Su Tiang Joo J:

INTRODUCTION

[1]This is yet another case of a detainee who died whilst under the custody of the police. After a trial on liability by His Lordship Justice Ahmad bin Bache (‘LTJ’), judgment was entered against the defendants on 30 August 2022 for liability with damages to be assessed. Dissatisfied, the defendants appealed to the Court of Appeal.

[2]I took over the conduct of the action upon my transfer to the High Court at Kuala Lumpur on 28 February 2023.

[3]On 16 November 2023, the Court of Appeal allowed the appeal on liability in part by rejecting the dependency claim of the alleged wife and child under s 7Civil Law Act 1956Court of Appeal (W-01(NCvC)(W)-727–09 of 2022) upheld the judgment on the claim by the estate of the deceased under s 8CLACourt for assessment of damages.

[4]During the hearing of the assessment of damages on 30 May 2024, I decided as follows:

(a)RM16,000 was awarded for special damages;

(b)RM100,000 for general damages;

(c)the claim for exemplary damages was dismissed;

(d)RM200,000 for aggravated damages;

(e)RM22,000 for costs which included the disbursements of RM7,000 to obtain the letters of administration of the estate of the deceased; and

(f)although all the defendants are jointly and severally liable the estate of the deceased detainee, the judgment creditor is to first seek to secure satisfaction of the judgment debt in whole or in part from the primary tortfeasor (the second defendant) who had been found to have assaulted the deceased whilst under detention, with the post mortem report showing that the deceased had suffered 20 injuries from multiple blunt-force trauma, before seeking to secure satisfaction of the balance judgment debt in whole or in part from the other judgment debtors.

[5]Dissatisfied, [all] the defendants appealed. Two notices of appeal both dated 4 June 2024 were filed, one (encl 91) was against the whole of the decision and another (encl 93) against part of the decision but without setting out which part is being appealed against. These are the grounds of my decision pronounced on 30 May 2024.

PARTIES

[6]The deceased detainee who was found by the LTJ to have been beaten to death at the hands of the police is Balamurugan.

[7]The first plaintiff, Natthanan Yoosomchuk, is a Thai national. She is one of two co-administrators of the estate of the Balamurugan. She claimed to be the lawful wife and dependant of Balamurugan and brought a dependency claim under s 7CLAs 8CLA

[8]The second plaintiff, Balraj a/l Suppiah is the younger brother of Balamurugan. He is the other co-administrator.

[9]The first defendant is Inspector Mohd Noor Husri bin Johari.

[10]The second defendant is Inspector Mohaneswaran a/l Thigarajah.

[11]The third defendant is ASP Norsanizam bin Hj Nordin.

[12]The fourth defendant is ASP Muhammad Khuzairi bin Abd Wahab.

[13]The fifth defendant is the Ketua Polis Negara, Malaysia.

[14]The sixth defendant is the Kerajaan Malaysia (Government of Malaysia).

SECTIONS 7 AND 8 OF THE CLA

[15]For ease of reference, ss 78CLA Section 7 Compensation to persons for loss occasioned by death (1) Whenever the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured,