KUALA LUMPUR, Nov 6 — The family of A. Kugan will not be receiving exemplary damages amounting to RM300,000 over his 2009 death in police custody, the Federal Court ruled today.
The Federal Court’s five-man panel reportedly gave a majority decision against the award of exemplary damages to Kugan’s family, with one judge Tan Sri Zainun Ali giving a dissenting judgment.
According to news portal Malaysiakini, Zainun said the breach of Kugan’s right under the Federal Constitution to life should be taken into account, and that Sections 7 and 8 under the Civil Law Act 1956 which touch on compensation to families over loss due to individuals’ deaths was pre-Merdeka law.
Sivarasa Rasiah, the lawyer for Kugan’s family, was also reported by Malaysiakini as saying that today’s majority decision by the Federal Court sends the wrong message as it indicates only those who are still alive after beatings in police custody are entitled to receive exemplary damages.
During the hearing last June 28, senior federal counsel Alice Loke Yee Ching had argued on whether Section 8(2) of the Civil Law Act 1956, which bars the awarding of exemplary damages in an estate claim, was applicable in a matter where the death was the result of a breach of his constitutional right to life.
Loke had argued that Section 8(2) expressly bars the award of exemplary damages in a lawsuit by the estate of a deceased person.
In the civil suit by Kugan’s family against the police and government, the High Court had on June 26, 2013 held former police constable V. Navindran liable for the suspected car thief’s custodial death and awarded RM801,700 in damages which he had to pay in entirety.
But the Court of Appeal in August 2014 reduced the portion that Navindran had to pay to 45 per cent and with liability to be shared by the police and federal government, also reducing the total compensation to RM701,700 by setting aside the RM100,000 awarded for Kugan’s alleged false imprisonment.
The rest of the award was maintained in 2014, including RM192,000 for loss of support, RM9,700 for funeral expenses, RM50,000 for pain and suffering, RM50,000 for assault and battery, RM100,000 for misfeasance of public office and exemplary damages of RM300,000.
Kugan died in police custody at the USJ Taipan police station on January 20, 2009, six days after his arrest to assist in investigations into a luxury car theft syndicate.
In May 2015, Navindran was ordered to serve a three-year prison term after the Court of Appeal upheld his conviction for causing hurt to Kugan.