PUTRAJAYA – The Court of Appeal has awarded RM302,800 in damages, including for negligence and dependency claim, to the mother of Kamarulnizam Ismail, a factory worker who was found dead in Tapah Prison in 2014.
A three-member bench of the Court of Appeal led by Justice Datuk Yaacob Md Sam awarded RM250,000 in general damages for negligence and RM40,800 for dependency claim to Kamarulnizam’s 71-year old mother, Rahaya Salleh, during a proceeding which was conducted online today.
The court also allowed a four percent interest on general damages from the date of the filing of the writ of summons on March 3 2017 until the Court of Appeal’s decision and five percent interest on dependency claim from today until full settlement of the amount.
Justice Yaacob, sitting with Justices Datuk Wira Ahmad Nasfy Yasin and Datuk M.Gunalan, also granted RM5,000 in costs to Rahaya.
Rahaya’s counsel M. Visvanathan, when contacted, said the total sum that his client would get amounted to RM337,800 not including interest which is inclusive of special damages of RM10,000, RM2,000 for funeral expenses, RM30,000 in cost for High Court proceeding and RM5,000 costs for Court of Appeal proceeding.
During the court proceedings on June 24, the court had partly allowed Rahaya’s appeal for dependency claim and also the government’s appeal to set aside the Ipoh High Court’s decision to award the family RM100,000 in damages for unlawful detention and RM50,000 for misfeasance in public office.
Besides awarding damages for negligence and dependency claim, the court also granted Rahaya special damages, funeral expenses and increased the costs for High Court proceedings from RM12,000 to RM30,000.
The court, however, upheld the High Court’s decision in finding the police, prison officials and government liable for negligence and subsequently fixed today to decide on the quantum of damages for negligence and dependency claim to be awarded to Rahaya.
Justice Ahmad Nasfy, who delivered the decision today, said RM250,000 is an appropriate sum to be awarded as general damages for negligence as the deceased was subjected to a long detention and interrogation which affected his mental and health condition.
He said Kamarulnizam, 39, was placed under remand from one lockup to another lockup and was subjected to long process of interrogation by different team of investigators.
He said Kamarulnizam’s health condition deteriorated and nobody at the police lock up in the police cared about it, adding that his illness of “radang paru-paru” (lung inflammation) ncould not just developed in one night and he was also deprived of medical attention.
Kamarulnizam was charged on March 4, 2014 in a Magistrate’s Court in Penang during which he pleaded to committing offences under Section 29 of the Minor Offences Act 1957 and Section 89 of the Police Act 1967and was fined RM800, in default 14 days’ jail.
Kamarulnizam, who was working in a sugar refinery in Penang, chose to serve the jail term as he needed the money to repair his car, despite his father showing up at the court to settle the fine.
He was placed in a lock-up before taken to Tapah prison a day later and the High Court held that Kamarulnizam’s stay in the lock-up was unlawful detention because under Section 282 of the Criminal Procedure Code it was mandatory, whenever there is an order, for police officers to act within a reasonable time to transport those found guilty to the prison.
Rahaya, 71, filed the suit against the police, the prison officials and the government on March 3, 2017 and sought for dependency claim, misfeasance of public office, aggravated, exemplary and special damages.
In Aug 2019, the High Court held the defendants were liable for negligence and awarded Kamarulnizam’s family RM100,000 for his unlawful detention and RM50,000 for misfeasance of public office.
Also representing Rahaya was lawyer Sanjay Nathan, while senior federal counsels Azizan Md Arshad, Andi Razali Jaya A. Dadi and Mohd Ashraf Abd Hamid appeared for the police, the prison officials and the government.