<figure id="attachment_2715231" aria-describedby="caption-attachment-2715231" style="width: 1600px" class="wp-caption aligncenter"><img loading="lazy" class="wp-image-2715231 size-full" src="https://media.freemalaysiatoday.com/wp-content/uploads/2024/03/4233a51a-mahkamah-rayuan-fmt-210324-1.webp" alt="Court of Appeal Mahkamah rayuan" width="1600" height="1000" /><figcaption id="caption-attachment-2715231" class="wp-caption-text">The Court of Appeal reduced the damages payable by the government to Fadhelah Othman to RM97,600 for the death of her son, Fadzrin Zaidi, in custody at the Kepala Batas police station in 2019.</figcaption></figure>
PUTRAJAYA: The Court of Appeal has affirmed a Penang High Court ruling that the government was vicariously liable for the death of a gravedigger in police custody seven years ago.
A three-member appellate bench, chaired by Justice Azimah Omar, however allowed the government’s appeal in part, striking out an award for aggravated damages of RM50,000 made in favour of the deceased’s mother, Fadhelah Othman.
The ruling reduced the damages awarded to Fadhelah for the death of her son, Fadzrin Zaidi, to RM97,600 – comprising RM57,600 for dependency, RM30,000 for bereavement and RM10,000 in special damages.
Delivering the grounds of judgment, Justice Lim Hock Leng said there was no evidence of egregious conduct by six policemen at the Kepala Batas police station to justify the award of aggravated damages.
&#8220;The negligence of the tortfeasors caused the deceased&#8217;s untimely demise, but usually only general damages will be considered,&#8221; the judge said.
Lim said negligence alone did not, as of right, warrant an award of aggravated damages.
Also on the panel hearing the appeal was Justice Azizul Azmi Adnan.
Lawyers M Visvanathan and V Sanjay Nathan acted for Fadhelah while senior federal counsel Nur Ezdiani Roleb appeared for the government.
In 2024, the High Court found the police negligent for failing to prevent Fadzrin, 29, from committing suicide while in custody. Justice Anand Ponnudurai awarded his mother a total of RM147,600 in damages, inclusive of aggravated damages, and costs of RM50,000.
On appeal today, Lim noted that Fadzrin had been held in the lock-up for two days prior to his death. He said the station’s policemen had breached their duty of care by failing to conduct regular patrols, which could have prevented the tragedy.
Lim said that such patrols were expressly required under the Lock-Up Rules 1953.
&#8220;Rule 10 requires an inmate to be examined by a medical officer as soon as possible after admission to determine if he is fit to be imprisoned,&#8221; the judge said.
Lim also said standing orders dated Dec 4, 2017 issued by the Seberang Perai Utara police chief imposed a duty on policemen to check on detainees at hourly intervals.
&#8220;It also makes the officer in charge of a police station (in the district) responsible for monitoring the closed-circuit television (CCTV) when suspects are detained,&#8221; he said, adding that the standing orders were there to prevent inmates from self-harm.
The judge further observed that instructions by the officer-in-charge of the Kepala Batas police station – contained in a memo dated Oct 11, 2019 – that the CCTV system must be operational at all times had been disregarded.
Lim said in the present case, the CCTV recording for the entire duration of Fadzrin&#8217;s detention was not made available.
&#8220;Only parts of it, as recorded on a mobile phone, were produced,&#8221; he said, adding that there appeared to be a deliberate withholding of the entire recording.
As such, the High Court was right to draw an adverse inference under Section 114(g) of the Evidence Act 1950, he said.
The bench also upheld the High Court ruling that investigating officer Winston Anak Raip could not be held responsible for Fadzrin&#8217;s death.
Fadzrin was detained during a drug raid in 2019. He was found dead in his cell at the Kepala Batas police station two days later. His death certificate stated that the cause of death was consistent with hanging.
Following an inquest, coroner Norsalha Hamzah ruled that Fadzrin had committed suicide, citing CCTV footage and testimony from nine witnesses.
She said there were no criminal elements leading to his death, and that Fadzrin was likely ashamed to have been caught by the police as he was going to get married soon.

MatchPoint Times

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