Court of Appeal judge Datuk Wong Dak Wah, who delivered the court's unanimous judgment, said custodial deaths should not happen in this country and there must be zero tolerance.
"An independent and public inquiry must be held to commensurate the right of the deceased family," he said in affirming the findings of the then High Court judge, Datuk V. T. Singham, last year
Wong, who sat with Datuk Ariff Mohd Yusof and Datuk Mah Weng Kwai, said in this case, the burden was shifted to the family of Kugan to prove their claim in court. He said the court had to take a proactive role in custodial deaths because there was no independent body to monitor detaining authorities.
Singham in his judgment on June 26 last year said there were overwhelming evidence to establish a claim of assault, referring to the nature of injuries which "spoke volumes."
Kugan's mother N. Indra, filed a RM100 million suit against Khalid, then the Selangor police chief, former constable V. Navindran, former Subang Jaya OCPD Assistant Commissioner Zainal Rashid Abu Bakar (deceased), the Inspector-General of Police, and the government.
Khalid was subsequently promoted IGP.
Indra alleged that the defendants failed to ensure the safety, health and welfare of her son was while in custody.
She also filed a claim of misfeasance in public office against Khalid which the Court of Appeal agreed.
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 on January 20, 2009.
Singham, who has since retired, said Khalid was also liable for misfeasance as he failed to carry his duty required of a senior civil servant.
In allowing the suit, Singham had said the injuries Kugan suffered could not have been done by one person and that the senior officers could not plead ignorance.
Wong, however, allowed Navindran's appeal and ruled that he was not solely responsible for Kugan's death.
He then attributed liability at 55% for the death of Kugan against the police, and 45% against Navindran.
The appellate court also set aside the award for false imprisonment which Singham had awarded at RM100,000.
"This court is of the view that the detention order was made by a magistrate and it is valid until and unless challenged and set aside," Wong said.
The court also maintained the exemplary damages to Indra although the Civil Law Act 1956 did not allow.
"The Federal Constitution is supreme and the court will interpret all legislations in line with the supreme law of the land," he said.
Singham had awarded Indra RM851,700 in assault and battery, false imprisonment, misfeasance, as well as pain and suffering damages.
Navindran (pic, left) was the only one held responsible for Kugan's death and was found guilty of causing hurt. He was sentenced to three years' jail and 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.
He said Khalid did not follow the instruction of the Attorney-General to investigate the case as murder, and did not direct a formal departmental inquiry on the incident.
The judge had also questioned Khalid for his failure to hold an inquest into Kugan's death and clarify his first statement to the media.
In his first statement, Khalid had said that Kugan collapsed and died after drinking water. Subsequently, Khalid said that Kugan died of water in the lungs.
The second post-mortem, 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.
Singham said it would have been better for Khalid to clarify his statement than to persist or maintain his version as to the cause of death.
"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," he said.
He also said the station diary at the Taipan police station where Kugan was held revealed the "suspect in good condition", but it flies in the face of the injuries revealed in the post-mortem reports.
Singham also said there was an urgent need to consider implementing the proposed Independent Police Complaints and Misconduct Commission (IPCMC) for police reforms due to the sharp rise in torture and death in custody cases.
He said recommendations of a Royal Commission of Inquiry should not be kept in cold storage. - August 8, 2014.