EAIC’S INVESTIGATION FINDINGS ON THE DEATH OF N. DHARMENDRAN IN POLICE CUSTODY
Putrajaya 28 April 2016 – The Enforcement Agency Integrity Commission (EAIC) in pursuant to section 30(5) of the Enforcement Agency Integrity Commission Act 2009 [Act 700], hereby announces the findings of its public hearing on the investigation into the death of Dharmendran a/l Narayanasamy (N. Dharmendran, the deceased) in the police custody at the Special Crime Investigation Division (D9) Lock-up, Criminal Investigation Department (CID), Kuala Lumpur Police Contingent Headquarters (IPK Kuala Lumpur) on 21 May 2013.
Five (5) sessions of public hearings were held, the first three sessions were held at Menara TH Perdana, Kuala Lumpur on 27 to 31 July 2015 (first), 17 to 21 August 2015 (second) and 14 to 18 September 2015 (third), while the fourth and fifth sessions were held at Menara Usahawan, Putrajaya on 26 to 29 October 2015 and 16 November 2015.
The public hearings were co-chaired by Yang Arif Datuk Yaacob bin Haji Md. Sam (Chairman of EAIC), members of EAIC’s Commissioner Dato' Sri Robert Jacob Ridu, Mr. Vinayak Prabhakar Pradhan and Mrs. Leong May Chan assisted by three (3) consultants, namely Tan Sri Dato' Seri Mohd Jamil bin Johari (Former Deputy Inspector-General of Police), Professor Tan Sri Dato' Seri Dr. Sharifah Hapsah binti Syed Hasan Shahabuddin (Former Vice-Chancellor of Universiti Kebangsaan Malaysia) and Mr. Lim Chee Wee (Former President of Malaysian Bar Council).
The Commission would like to reiterate that the scope of the public hearing was restricted to the issues within the terms of reference given by the Commission during the setting up of the Task Force under section 17 of Act 700. The Commission would like to express its gratitude to all witnesses and watching brief counsels for their co-operation and assistance during the hearings, and members of media, both online and print, for their coverage of the hearings.
A total of 62 witnesess were called to testify at the hearings. There were 72 exhibits including post-mortem report and photographs of the deceased, pictures of the D9 Lock-up of IPK Kuala Lumpur, D9 Lock-up Diary [Polis 40 (Pin 4/890], official directives and other relevant documents tendered in the course of the hearings.
In the course of the hearing, the Task Force of the Commission made two visits on the D9 Lock-up and the Special Criminal Investigation Division’s office of IPK Kuala Lumpur.
EAIC INVESTIGATION FINDINGS
The findings of the Commission are as follows:
1. THE DEATH OF THE DECEASED RESULTED FROM THE USE OF PHYSICAL FORCE BY THE POLICE
(i) The Commission found the death of Dhamendran a/l Narayanasamy (I.C Num 811028-14-5551) on 21 May 2013 resulted from the use of physical force by the police.
(a) A total of 52 bruises on the deceased caused by a blunt force object (blunt force trauma) causing acute massive loss of blood into the tissues causing hypovolemic shock.
(b) The injuries were estimated between 2 to 3 days prior to the post mortem, but not more than 4 days.
(c) There were two staples found embedded on the deceased’s ears, one on the right ear and the other on left ear causing puncture wounds on both ears. The pathologist confirmed the deceased’s ears were stapled while he was alive estimated between 2 to 3 days prior to the post morterm.
(iii) The Commission found the physical force that had caused injuries and the death of the deceased while in the custody and during interrogation has violated the Para 33 of Inspector General of Police’s Standing Order (IGSO) Part A '118' which prohibits the use of physical force against detainee during interrogations.
2. FALSE / MISREPRESENTATION OF ENTRIES IN D9 LOCK-UP DIARY
(i) The Commission found the last six (6) entries in the D9 IPK Kuala Lumpur lock-up diary i.e. entry 3150, 3151, 3152, 3153, 3154 and 3155 written by the two lock-up sentries (SP24 and SP25) were false / misrepresentation.
(ii) The Commission also found the following entries 3156, 3157, 3158, 3159, 3161 in the lock-up diary were written in an unusual manner by the lock-up sentry (SP25) in which the entries were not written in contemporaneous while he was on duty, but only after two or three days after the death of thedeceased.
(iii) The Commission also found that entries 3150 to 3153 were jointly made-up (fabricating) by the senior officers of the police, comprising the Deputy Head of the Criminal Investigation of Intelligence and Operations Department (SP60), the Officer in-charge of D9 IPK Kuala Lumpur (SP27), the Deputy officer in-charge of D9 IPK Kuala Lumpur (SP39) and the officer of D9 IPK
Kuala Lumpur (SP44) (at that time) by instructing the two lock-up sentries SP24 and SP25 respectively to write false entries into the lock-up diary (Exhibit P32) on the night of 21 May 2013.
(iv) It is also the findings of the Commission that entries 3154 to 3161 were jointly made-up (fabricating) by the senior officers of the police comprising the Deputy Head of the Criminal Investigation Department of Intelligence and Operations IPK Kuala Lumpur (SP60), the Officer in-charge of D9 IPK Kuala Lumpur (SP27), the Deputy Officer in-charge of D9 IPK Kuala Lumpur (SP39),SP41, SP42 and SP43 of the D9 IPK Kuala Lumpur by instructing the two lock-up sentries SP24 and SP25 respectively to write false entries into the lock-up diary (Exhibit P32) after two or three days after the death of the deceased.
(v) The Commission found a serious misconduct have been committed by the senior officers of the police in making-up those false entries in order to coverup the actual fact surrounding the death of the deceased preventing a fair and just investigation of the death.
(vi) The Commission found in providing the false or incorrect information /misrepresentation as stated above, SP60, SP39, SP27 and SP44 may have committed an offence under sections 192, 201 and / or 203 of the Penal Code.
(i) The Commission found two entries in D9 Lock-up Diary (Exhibit P32) i.e entry 3149 and 3150 had been tampered from the original entries by SP24 upon the instructions of SP60, SP39, SP41 dan SP43 in order to synchronize with the time stated in the rearrest report of the deceased (Exhibit P50).
(ii) The Commission found that the act of tampering an official document that is the D9 Lock-up Diary by SP60, SP39, SP41 dan SP43 is an offence under section 177 or section 182 of the Penal Code.
4. FALSE CONTENTS OF POLICE REPORT REGARDING THE DEATH OF THE DECEASED
(i) The Commission found the police report on the death of the deceased lodged by SP25, the D9 Lock-up Sentry made upon the instructions of the Deputy Head of the Criminal Investigation Department of Intelligence and Operations IPK Kuala Lumpur (SP60) and written by Sergeant Major Ali (D9 personnel) contained false / misrepresentation of actual state surrounding the death of the deceased.
(ii) Lodging a false police report is an offence under section 177 or section 182 of the Penal Code.
5. THE ABUSE OF POWER IN RELATIONS TO THE RE-ARREST OF THE DECEASED ON 21 MAY 2013 (LAST DAY OF REMAND)
(i) The Commission found the re-arrest of the deceased by the D9 members SP41 and SP43 at 1.00 p.m. of 21 May 2013 was made upon the instructions by the Officer in-charge of D9 IPK Kuala Lumpur (SP27) and the D9 Officer (SP44). The re-arrest was made based on the Police Report Petaling/001384/13 (Exhibit P71) taken at random from the Police Reporting System (PRS), which has nothing to do with the deceased in which the investigation paper of the said police report has been ordered as No Further Action (NFA) by the Deputy Public Prosecutor on 17 May 2013.
(ii) The Commission found the Officer in-charge of D9 IPK Kuala Lumpur (SP27) and the D9 officer (SP44) has committed a serious misconduct of abuse of power by instructing the re-arrest of the deceased on the 21 May 2013 (who was scheduled to be released on that day after the expiry of his remand period) without a just and valid justification.
6. INOPERATION OF D9 CCTV LOCK-UP SINCE 2009
(i) The Commission found the CCTVs in D9 Lock-up and the D9 Office has not been in operation since 2009 during to the construction and renovation works of the IPK Kuala Lumpur new building. The CCTVs remained inoperation even after the completion of the construction. The CCTVs were put into operation only after the death of the deceased.
(ii) Due to the inoperation of the CCTVs, the movement of detainees as well as the D9 personnels went unmonitored and not recorded. As such, the Commission has been denied with the best evidence on how the deceased was taken back into the D9 Lock-up during the absence of the D9 Lock-up Sentries (SP24 and SP25) after he was taken out at 2.20 p.m. on 21 May 2013, the fatal day.
(iii) The Commission found the Officer in-charge of D9 IPK Kuala Lumpur (SP27) and the Logistic Unit of IPK Kuala Lumpur, (knowing the inoperation of the CCTVs) have not taken sufficient effort in ensuring the CCTVs of D9 Lock-up and D9 Office be put back into operation.
7. BREACH OF LOCK-UP RULES 1953 AND HUKUMAN TETAP KETUA POLIS DAERAH CAMPBELL KUALA LUMPUR BIL. 1/89 TUGAS PENGAWAL LOKAP IPK, KUALA LUMPUR
(i) The Commission found that the deceased was taken back into the D9 Lockup by D9 personnel during the absence of lock-up sentries (SP24 and SP25).As a result, the entry of the deceased into the lock-up was not recorded in thelock-up diary (Exhibit P32).
(ii) The Commission found that the failure of the two D9 Lock-up Sentries on duty (SP24 and SP25) at the lock-up between 2.30 p.m. until 4.30 p.m on 21 May 2013 has allowed the D9 personnel to place the deceased into the lock-up without a need to comply with the required procedures on entry of detainee into the lock-up.
(iii) The admission of detainee into the lock-up without being recorded in lock-up diary and leaving lock-up unattended is a serious breach of the Lock-up Rules 1953, Hukuman Tetap Ketua Polis Daerah Campbell Kuala Lumpur Bil. 1/89 Tugas Pengawal Lokap IPK, Kuala Lumpur and IGSO Part A '118'.
8. CONNECTION OF THE D9 PERSONNEL WITH THE DEATH OF THE DECEASED
9. ABSENCE OF INVESTIGATION / INTERROGATION ON THE DECEASED BY D9 PROJECT TEAM FROM 13 MAY 2013 TO 19 MAY 2013
(i) The Commission found that there was no investigation / interrogation carried out by the D9 Project Team on the deceased from the date of his admission into the D9 Lock-up up to the afternoon of 19 May 2013. It remained unexplained by the Project Team and the officer in-charged of D9 (SP27) on why no investigation / interrogation taken place on the deceased during that period.
(iii) In the absence of explaination of the D9’s officers and the Director of CID of Bukit Aman, it remained unresolved whether the investigation / interrogation on the deceased has no priority or the Project Team was occupied with heavy workload.
(iv) The Commission observed that a subpoena had been issued and delivered to the Director of CID Bukit Aman in order to get clarification over the workload faced by the Criminal Investigation Department. However, it is disappointed that notwithstanding the two sessions allotted, the Director has failed to appear at the hearings.
10. DELAYED IN GIVING ACCESS TO FAMILY MEMBERS ON THE DECEASED DURING DETENTION PERIOD
(i) The Commission found there was a delay in access to the deceased by family members (SP2 and SP16) which was only given on 19 May 2013, that was 8 days after the deceased was placed under remand commencing from 12 May 2013 to 15 May 2013 (first remand) and further extended from 16 May 2013 to 21 May 2013 (second remand).
(ii) It is observed that both the Officer in-charge of D9 IPK Kuala Lumpur (SP27) and D9 Officer in-charge of the Project Team (SP44) had no valid justification in denying early access on the deceased by his family members, in particular the deceased wife (SP2).
(iii) Unreasonable delay in giving an access of family member to the detainee or detainee to his family member contravenes the provision of section 28A (2) of the Criminal Procedure Code and Para 8.2.1 of the IGSO Part A '118'.
11. EXCESSIVE OF DETAINEES IN D9 LOCK-UP
(i) The Commission found that not less than 4 detainees have been placed in D9 lock-up since 13 May 2013 until 20 May 2013. In specific, on 14 May 2013 there were 16 detainees placed in the D9 Lock-up of IPK Kuala Lumpur as recorded in the D9 Lock-up Station Diary (Exhibit P31/32).
(ii) In placing of more than 4 detainees at one time in D9 Lock-up has infringed Article 2 of Hukuman Tetap Ketua Polis Daerah Campbell Kuala Lumpur Bil.1/89 and D9 Lock-up Gazette which clearly stated the maximum number of detainee allowed in the D9 Lock-up shall only be four (4).
(iii) It is observed by the Commission that on the 21 May 2013, the fatal day, only the deceased remained in D9 Lock-up.
12. LACK OF KNOWLEDGE ON SOP AMONGST THE D9 PERSONNELS
(i) Based on testimonies of D9 personnels and admission at the hearing, it is observed that certain officers and members of D9 neither had no knowledge of nor had seen the contents of IGSO Part A ‘118’ and Hukuman Tetap Ketua Polis Daerah Campbell Kuala Lumpur Bil. 1/89 governing the management and administration of D9 Lock-up which are still in force.
(ii) As a result, detainees have been handled based on the D9 own practices ignoring the requirements and existence of SOPs.
13. LACK OF BLOOD SAMPLING FOR DNA ANALYSIS
(i) The Commission found although two staplers (Exhibit P54 pic. no. 8 and 9) from the D9’s office (based on the two staples found on the deceased’s left and right ears) were seized by the investigating officers (SP53 and SP54), however no DNA samples that obtained from any of the D9 personnels who have an access over the deceased for purposes of DNA analysis and comparison.
(ii) The lack of blood sample has caused the DNA comparison analysis unable to be done in order to ascertain the identity of "Male 1" found on the stapler (“K5(a)”) by an expert from the Malaysia Chemistry Department to resolve the issue whether the Male 1 identity belongs to any of D9 personnels.
Based on the findings as stated above, the Commission recommends the following:
1. DISCIPLINARY ACTION BY THE DISCIPLINARY AUTHORITY OF PDRM AGAINST:
(i) The Deputy Head of the CID (Intelligence and Operation) of IPK Kuala Lumpur (SP60), Officer in-charge of D9 (SP27), Second Officer in-charge of D9 (SP39) and D9 Officer (SP44) for jointly or abetting in fabricating false information / misrepresentation of the entries in D9 Lock-up Station Diary (Exhibit P32) in relation to the fact surrounding the death of the deceased.
(ii) The Deputy Head of the CID (Intelligence and Operation) IPK Kuala Lumpur (SP60) and the two members of the Project Team (SP41 and SP43) for instructing the lock-up sentry personnel SP24 to tamper times in entries 3149 and 3150 of the the D9 Lock-up Station Diary (Exhibit P32).
(iii) The Deputy Head of the CID (Intelligence and Operation) IPK Kuala Lumpur (SP60) and Sergent Major Ali of D9 for jointly or abetting in making false police report (Exhibit P38) by using SP25 as the complainant of the report pertaining to the death of the deceased.
(iv) The Officer in-charge of D9 (SP27) and the Project Team Leader (SP44) for an abuse of power or position in instructing the re-arrest of the deceased on 21 May 2013 without any valid justification (Exhibit P50).
(v) The Officer in-charge of D9 (SP27) and Project Team Leader (SP44) for unreasonable delay in giving an access of family member to the deceased which has violated the provision of section 28A of the Criminal ProcedureCode.
(vi) The Officer in-charge of D9 (SP27) and Project Team Leader (SP44) for the failure to supervise the members of the Project Team (SP41,SP42 and SP43) in conducting prompt investigation / interrogation on the deceased which was only carried out on the seventh day (19 May 2013) of the remand.
(vii) The D9 Lock-up sentry personnel (SP24) for leaving the lock-up unattended between 2.30 p.m to 3.00 p.m on 21 May 2013.
(viii) The D9 Lock-up sentry personnel (SP25) for failure to station himself at the lock-up between 3.00 p.m to 4.30 p.m on 21 May 2013.
2. ADHERENCE / REVIEW OF SOPs / STANDING ORDERS
(i) Compliance of the IGSO / SOPs
PDRM to ensure the understanding and strict compliance of the IGSO including Part A "118" and Standard Operating Procedures (SOPs) by all members of the police force.
(ii) Compliance of Lock-Up Management SOP
PDRM to make compulsory that every officers in-charge of the police lock-up and lock-up personnel including any member of the police who has an access over the detainee to adhere to the Police’s Lock-up Management SOP /Standing Orders issued by Bukit Aman on 21 April 2014 and the Lock-up Rules 1953, including on the limit of the number of detainee that can be
placed in a cell or lock-up and prohibition of use of force on detainee.
PDRM to review and provide effective supervision / monitoring on the use of pocket book / diary and its up-dating including its safekeeping. Any loss or damage of the same should be reported promptly to the immediate officer incharge of the said police personnel.
3. REFRESHER COURSE
PDRM to carry out continuous training (i.e refresher course and refresher training), including on job training and to issue constant reminders on all police personnels involved in law enforcement activities on the requirement and compliance of the SOPs / Standing Orders.
4. WHISTLEBLOWER / COMPLAINT MECHANISM
PDRM should review the existing procedure or mechanism to allow its personnel to file or to lodge a complaint or report of any illegal instructions / orders /directions by the superior officer that against the SOPs / Standing Orders or laws.
Investigation on the complaint shall be carried out by an independent special committee within the PDRM.
5. INVESTIGATION ON CUSTODIAL DEATH
It is recommended that all cases involving death in custody shall be investigated by an independent and experienced investigating officer who is holding an office not from the same state police contingent where the death occured. This is to ensure transparency and credibility of the investigation.
6. COMPLIANCE OF RULE 10 OF PRISON REGULATION 1953 AND PARA 24 OF IGSO A '118'
PDRM to adhere strictly on the compliance of Rule 10 of the Prison Regulation 1953 and the para 24 of IGSO Part A '118' requiring detainee to undergo medical examination by a medical officer upon his/her entry into the lock-up.
7. ROLES OF THE MINISTRY OF HEALTH (MOH)
MOH should review and amend its existing SOP in relation to the following:
(i) Coordination Between MOH and Enforcement Agencies Particularly PDRM
MOH to coordinate with enforcement agencies especially the PDRM on the proper implementation of Rule 10 and Para 24 of the IGSO Part A '118' requiring detainee to undergo medical examination by a medical officer upon his/her entry into the agencies’ lock-up. The implementation shall take into consideration the safety of all parties including the medical staffs.
(ii) MOH’s Procedure / Method of Examination
MOH to provide a comprehensive guidelines and procedures including method of examination involving custodial deaths for medical officers /assistants / personnels guidance with emphasizing on body inspection, photo/ image recording, examination kit and the preservation of the evidence at the scene / lock-up (not contaminated or tampered).
(iii) Guideline on the Preparation of Post-Mortem Report
MOH to formulate a comprehensive guideline by taking into considerations of the international standards on preparation of post-mortem report by pathologist, and in particular the cause of the death must be stated precisely.
8. GUIDELINES FOR THE MAGISTRATE / CORONER
The Chief Registrar of the Federal Court is urged to provide comprehensive guideline to be used by Magistrate / Coroner on examination of the deceased body involving custodial death.
9. CONSIDERATION OF CRIMINAL CHARGE
10. AMENDMENT OF PENAL CODE (ACT 574) AND EVIDENCE ACT 1950
The Commission recommends that the AGC and Ministry of Home Affairs (KDN) to amend the Penal Code (Act 574) and Evidence Act 1950 to provide for a provision of presumption that placed the burden of proof on the enforcement agencies personnel who has a custody of the detainee to be liable for any injury or death occured on detainee while in custody, until proven otherwise.
The recurrence of deaths in custody and the use of force against detainee is A SERIOUS VIOLATION OF LAW AND INTEGRITY AND DEEPLY REGRETTED.
EAIC urges all findings and recommendations in the report to be considered and serious actions to be taken by all parties, particularly the PDRM in order to prevent the recurrence of such cases in future.
Members of the public may log on to www.eaic.gov.my to download the full report of the investigation.
Enforcement Agency Integrity Commission (EAIC)
28 April 2016
Source: Official Website of Enforcement Agency Integrity Commission (EAIC)/ Suruhanjaya Integriti Agensi Penguatkuasaan