RM 1.4 Million Human Rights victory for death in police custody victim Anuar Bin Sarip

This morning the Kuala Lumpur High Court delivered an unprecedented decision of RM 1.4 Million in the case of death in police custody of Anwar Bin Sarip in police custody in 1999. P. Uthayakumar submitted in court that this case involved the first of the series of public interest cases of death in police custody by HRP which at it’s height was at the rate of one person killed in police custody in every two weeks. (An estimated 90% of the Malaysian victims are ethnic minority Malaysian Indians who disproportionately are only 8% of the total Malaysian population.

P. Uthayakumar submitted the brief facts that in this case the deceased Anuar bin Sarip was sleeping with his wife and children in his family home.

The police suddenly stormed into his house, kicked open the deceased room door, abruptly awoke arrested and procured a remand order for 14 days in a row. On the tenth day a policeman left a note on the door of the deceased home that the deceased had died and the family was welcome to collect his dead body.

P. Uthayakumar submitted that the learned High Court Judge Dato Kang Hwee Gee had on 20/10/2009 decided liability against the Inspector General of Police and the Government of Malaysia and fixed damages to be assessed by the Senior Assistant Registrar Puan Faerah Nurul Ainni binti Izany. I also accept the evidence of Dr. Michael Devaraj Jeyakumar that pleural effusion secondary to bronchopneumonia is not a terminal disease and had the police acted responsibly and had sent the deceased to hospital earlier he could have been treated and saved. (See soalan 2 and soalan 3 of his Witness Statement).

The evidence shows that the defendants were in breach of that duty. Having taken the deceased into their custody it was incumbent upon the police to ensure that the health and well – being of the deceased were taken care of. Whether or not he was being brought at all to the Pusat Kesihatan Rawang to be attended to by the hospital assistant was doubtful as the person who brought him there D/ Kopral 98010 Sulaiman bin Abu Bakar (DW7) could not remember which hospital assistant attended the deceased. In any case even if he had in fact brought to see a hospital assistant this would not have been enough to discharge that duty considering the seriousness of the deceased’s condition. It was reasonably foreseeable that a failure to properly and adequately attend to the deceased’s serious condition would result in serious injury to his health. His later complaint of stomach ache and loss of appetite after the first episode underscores the failure on the part of the police to discharge that duty of care.

The fact that the deceased had been suffering from tuberculosis before he was taken into custody would not exonerate the defendants from liability as they would have to “take their victim as they him under the egg – shell skull principle”. (See Azizi Amran v Hizzam Che Hassan [2006] 2 CKL 821 paragraphs 8 and 9).

I am therefore convinced that the police was negligent in having failed to take reasonable care of the deceased while in its custody and should therefore be liable in negligence for the death of the deceased. Accordingly I allow the plantiff’s claim against the 3^rd and 4^th defendants with costs

As agreed loss and damages are to be assessed by the Registrar.

On 26/04/2010 the senior Assistant Registrar Puan Faerah Nurul Ainni binti Izany decided a sum of RM 137, 200. 00 as the damages.

The Federal Council’s appeal to the High Court Judge on this award was dismissed and the Kuala Lumpur High Court Judicial Commissioner Yang Arif Lee Swee Seng allowed the Plaintiff’s appeal as follows:-

1) Dependency for Anwar bin Sarip’s two children aged 16 and 9 @ RM200, 000.00 totaling RM 400, 000.00

2) Aggravated Damages RM 500, 000.00

3) Exemplary Damages RM 500, 000.00

Total RM 1, 400, 000.00

4) Interest at the rate of 8% per annum from the date of cause of action (death) to date of realization.

The learned Kuala Lumpur High Court Judicial Commissioner further held that death in police custody is disturbing. Drug addicts should if at all be treated with greater care.

The court message to the police is that any more deaths in police custody is unacceptable as it has been one too many. Steps must be taken that basic human rights be respected by the police.

P. Uthayakumar represented the Plaintiff and the Defendants the Inspector General of Police and the government of Malaysia was represented by Federal Counsel Wan Roslan Wan Ismail.

S. Jayathas

Information Chief