By Rita Jong
Malaysia's national police chief was responsible for the death of detainee A. Kugan who was physically tortured during interrogation by police four years ago, the Kuala Lumpur High Court ruled today in a civil suit.
High Court judge Datuk V. T. Singham said Inspector-General of Police Tan Sri Khalid Abu Bakar, who was then the Selangor police chief, is liable to misfeasance in the case.
The judge's decision is expected to open the floodgates to possibly many other civil suits against the police.
Singham, in allowing the negligence suit, said he also believed that the injuries Kugan suffered could not have been done by one officer and that the senior officers cannot plead ignorance.
"This court also finds several glaring material contradictions between Khalid and other witnesses in respect to the investigation into the death of the deceased," he said.
"No person in any position or rank, when testifying in court, should take this court for granted and attempt to suppress the truth to escape liability."
Singham commended human rights lawyer N. Surendran who brought up this case and helped pursue a second postmortem which later showed abuse.
"If not for him, this matter would have been swept under the carpet." Singham awarded Kugan's mother, N. Indra, RM851,700 in assault and battery, false imprisonment, misfeasance, and pain and suffering damages.
Kugan's family has filed a RM100 million claim against the police and the government, but specifically against Khalid, alleging that he tried to cover up the cause of death.
She also named interrogating officer, former constable V. Navindran, as a defendant, among others. The mother alleged that the defendants failed to ensure the safety, health and welfare of Kugan while he was in custody.
Kugan, then 22, was arrested in Puchong on Jan 14, 2009, and held overnight at the Puchong Jaya police lock-up before police obtained a remand order.
He was taken to the Taipan USJ, Subang Jaya police station two days later for questioning and was found dead four days after that.
Navindran was the only one held responsible for Kugan's death after he was found guilty of causing hurt. He was convicted and sentenced to three years' jail. He is appealing his conviction.
Singham said there were elements of a cover-up by Khalid during investigations. He pointed out that the case was classified as causing hurt and not murder, or culpable homicide, two offences which carry heavier sentences.
"Why didn't he (Khalid) comply with the Attorney-General to open up investigation papers for murder and why did he not direct formal departmental inquiry bearing in mind the nature of the injuries and the cause of death?" asked Singham.
"Why was there no action taken to ensure at least an inquest was held? Why did he not clarify his first statement to the media?"
In his first statement to the media after Kugan's death, Khalid had said that Kugan collapsed and died after drinking water. In the next media statement, Khalid had said that Kugan died of water in the lungs.
The second postmortem, however, revealed Kugan had 45 external injuries and a wide range of internal injuries. His cause of death was due to acute renal failure due to blunt force trauma.
Yet, the judge said, Khalid did not make any attempt to clarify this.
He said there was sufficient evidence against Khalid for misfeasance as a public officer.
"At the time of the incident, Khalid was the Selangor police chief. When he testified in court, he was the deputy Inspector-General. And as I am delivering this judgment, he is now the IGP.
"He cannot plead ignorance and disclaim knowledge as to the acts by the second defendant (Navindran) and possibly other officers who had access to the deceased, including the investigating officer.
It would have been better for Khalid, Singham said, to clarify his statement than to persist or maintain his version as to the cause of death.
"The lies are not in the core print of the statutes book but in the integrity of the police officer, whatever his rank."
Singham said investigations and recommendations of a case are matters for the investigating officer and the AG to decide, not Khalid.
He said the court found several glaring material contradictions between the defendants' testimonies on the investigations into Kugan's death.
He also said the officer at the Taipan police station where Kugan was held had also made entries in the station diary with the standard phrase "suspect in good condition", must have been made with the knowledge or instructions by the officers in charge at the police station.
"These entries have been found to be inconsistent and flies in the face of the injuries found on the postmortem reports," the judge said.
"The torturous act by Navindran was condoned by the officers in charge. These injuries could not have been inflicted by Navindran alone. They were over a period of time, over a series of assault and battery by officers who had access to Kugan.”
He said Navindran had assaulted Kugan in his scope of duty to gain a confession for the benefit of his superiors.
Singham also rapped the investigating officer for abusing the remand order issued against Kugan and said his action was tantamount to contempt of court.
"No doubt, the warrant of arrest was issued against Kugan by the Petaling Jaya magistrate under a lawful purpose but this order was abused by the investigating officer. The order clearly stated that Kugan was to be detained at the Petaling Jaya police station but he was instead detained at Taipan with no gazetted lock-up," he said.
"Police lock-ups and police stations must be a safe place for every human being and should not be turned into a crime scene. The police must regain the public's respect and their interrogation approach must change in accordance with the times. They must step out of their brutality.
"They should investigate criminals and not turn themselves into criminals."
Singham also said there was an urgent need to consider implementing the proposed Independent Police
Complaints and Misconduct Commission (IPCMC) for police reform due to the sharp rise in torture and death in custody cases.
Recommendations of the Royal Commission, he said, should not be kept in cold storage.
"It must be acted upon immediately so that the victim's family can be assured that the commission was looking into it," he said.
"The setting up of IPCMC would be of public good and money well spent to eliminate horror stories of deaths in custody."
Singham, however, clarified that his condemnation was only based on the factual matrix of this case and not the entire force as a whole.
"Police officers should be disciplined individually. One isolated incident should not reflect negatively on the entire police force. There are still many officers who act professionally and rise up to expectations of the public," he said.
"It must be clear that the act at Taipan police station does not and should not cast any negative light on the entire police force, as that is not fair.” - 26 June, 2013.