Friday, April 29, 2022

8 deaths Sungai Bakap Immigration Detention Depot incident - Coroner's silence? Government's criminal liability?


Media Statement – 29/4/2022

Silence of the Coroner about the 8 deaths following the Sungai Bakap Immigration Detention Depot incident disturbing

Death of detainee at detention facility by reason of Covid may make government criminally liable

MADPET (Malaysians Against Death Penalty and Torture) is concerned about the silence of the Coroner on the recent 8 deaths, including one that allegedly died by reason of Covid-19. The Coroner must state whether he/she has decided to have an inquest or otherwise. Death by reason of Covid in a detention facility may place criminal liability on the government, Commandant of Detention facility, Minister and other relevant public officers.

At about 4am last Wednesday(20/4/2022), 528 Rohingya detainees, being men, women and children, escaped or broke out  from the Sungai Bakap Immigration Detention Depot in Penang. 7, including 3 children, were killed when hit by a car while crossing the North-South Expressway at Kilometer 168. The seventh – a 14-year-old girl – succumbed to her injuries yesterday (NST, 27/4/2022).

Another died, allegedly because of Covid-19. Kedah police chief Commissioner Wan Hassan Wan Ahmad was reported saying, that the ‘…Police have ruled out foul play behind the death of a Rohingya detainee at the Temporary Immigration Detention Depot near Bandar Baharu last Wednesday. "The detainee's death was a separate matter. We have classified the case under a sudden death report (SDR) case. He had died from virus infection after contracting Covid-19," Wan Hassan told reporters…(New Straits Times, 28/4/2022). It looks like the detainee died at the depot, not at some hospital where he was admitted for treatment.

When a detainee is in a government detention facility dies by reason of Covid, the government including the Minister of Home Affairs, Director General of Immigration and the Commandant of the Immigration Detention facility may be criminally concerned or liable for the death.

Unlike a person not under detention, who can freely do the needful including compliance with Standard Operating Procedures (SOP) to prevent being infected by Covid-19, which include doing the needed self-tests and seeking necessary healthcare, a person under detention is denied many of these freedoms, and the duty to keep free a detainee from being infected by Covid, and also getting the needed healthcare, reasonably falls on the detaining authority.

It has been more than 2 years since Malaysia been affected by Covid-19, and the question is whether the relevant authorities are making sure that detainees in government facilities are complying with the SOPs to prevent infection, detect infections and provision of the necessary speedy healthcare if found to be infected. Were there regular temperature checks, Covid testing and medical check-ups done at the Sungai Bakap Immigration Detention Depot? The fact that the detainee died in detention, not in some hospital whilst receiving necessary medical attention raises questions?

The Coroner is supposed to determine also ‘whether any person is criminally concerned in the cause of the death’ (Section 337 Criminal Procedure Code/CPC).

Criminal liability arises not simply by reason of actions, but also omissions. The failure to ensure detainees in a detention facility are not infected by Covid-19, the failure to detect infection amongst detainees and/or the failure to provide speedy healthcare to the infected are possible reasons why the government and/or other responsible persons may be found criminally liable and/or concerned with the death.

The Coroner must forthwith have an INQUEST(or inquiry into deaths) into this death in custody allegedly by reason of Covid-19, and also the other 7 deaths that resulted by reason of allegedly a vehicular incident.

In the currently applicable Practice Direction issued by the then Chief Justice of Malaysia Tan Sri Datuk Seri Panglima Richard Malanjum [Arahan Amalan Bil 2 Tahun 2019, Pengendalian Laporan Mati Mengejut Dan Siasatan Kematian Oleh Mahkamah Sesyen Koroner] it was emphasized that cases classified as ‘sudden deaths’ must be investigated by the Coroner, and, if need be, it should be reclassified as a case requiring inquest, or a death in custody case. The Coroner ought not simply or blindly accept police classification of ‘sudden deaths’.

All 8 deaths that happened, in MADPET’s view, are deaths in custody.

Noting that whilst the Coroner in Malaysia, now a Sessions Court Judge, is duty bound to determine the cause of death of all deaths in Malaysia, with or without an inquest. Section 334 CPC re-emphasizes the need for an inquest for deaths in custody, and this includes deaths of persons who were in custody at the Sungai Bakap Immigration Detention Depot.

Did the relevant officers/authorities adhere to the law, and immediately informed the Coroner of the deaths – ‘…shall immediately give intimation of such death to the nearest Magistrate, and the Magistrate or some other Magistrate shall, in the case of a death in the custody of the police, and in other cases may, if he thinks expedient, hold an inquiry into the cause of death…’.(s.334)

While public attention is now on the case of Sam Ke Ting who was recently sentenced to six years in prison for reckless or dangerous driving, resulting in the death into eight teenagers riding their bicycles on a road. The High Court allowed the appeal overturning the Magistrate’s Court decision to acquit and discharge the 27-year-old woman last October 2021. Will the driver/s of the car/s that caused the death of the 7 that ‘escaped’ from the Immigration detention facility be similarly charged?

What was the protest or grievance of the detainees the Sungai Bakap Immigration Detention Depot that led them to run away from detention? Was it simply a ‘riot’ or an exercise of the right to peaceful assembly that led these 500 plus to escape? Is there a need for an independent inquiry by a Royal Commission of Inquiry, a Parliamentary Committee, SUHAKAM(Malaysia’s Human Rights Commission), EAIC(Enforcement Agency Integrity Commission) or some other independent body. MADPET calls for an independent public inquiry into the incident at Sungai Bakap Immigration Detention Depot that to date has resulted in at least 8 deaths.

MADPET calls for a report by the Coroner as to his/her findings, including as to whether a public inquest will be done. If the government and/or relevant persons are criminally liable for the deaths, action including criminal prosecution must be taken without fear or favour, and indiscriminately as stated in Article 8(1) of the Federal Constitution, ‘All persons are equal before the law and entitled to the equal protection of the law.’

MADPET also reiterates the call for enacting of a law that clearly recognizes the asylum seeker and/or refugees, as current law only recognizes foreigners in Malaysia with the proper documentation and those without. As such, asylum seekers and/or refugees may be treated the same as any foreigners found in Malaysia without proper documentation, and this is not just.


Charles Hector

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

Depot escape: No foul play behind detainee death; police probing all angles, including negligence

GURUN: Police have ruled out foul play behind the death of a Rohingya detainee at the Temporary Immigration Detention Depot near Bandar Baharu last Wednesday.

Kedah police chief Commissioner Wan Hassan Wan Ahmad said a post-mortem examination conducted on the detainee revealed that the he had died from Covid-19 infection.

However, Wan Hassan stressed that investigations into the rioting incident was still ongoing and this includes possible elements of negligence by the depot management.

"Our investigations are taking into account all possible elements. How it happened, why it happened, who were the masterminds in the rioting element, we take into account everything and will submit the investigation papers to the Deputy Public Prosecutor's Office.

"It is up to the DPP or the state Prosecution director to decide whether it is proper to charge anyone (for negligence).

"The detainee's death was a separate matter. We have classified the case under a sudden death report (SDR) case. He had died from virus infection after contracting Covid-19," Wan Hassan told reporters after launching the state-level Op Selamat for the Hari Raya festive season at the North-South Expressway rest area in Gurun here today.

He explained that was why police had classified the case under Section 223/224 of the Penal Code for escape from confinement negligently suffered by a public servant and also under Section 147 of the Penal Code for rioting.

"We are probing from all possible angles. I have called for a meeting earlier today and we have identified a few things that need to be done and follow up actions.

"We have also recorded a statement from the depot management. If there is an element of negligence, we will zoom on to establish how bad it was but for now I can't divulge the details as investigations are still underway," he said.

In a related development, Wan Hassan said the number of escapees still at large remained at 61 as of today.

Yesterday, he was reported as saying police believed the Rohingya detainees had made their way to Seberang Perai Selatan in Penang.

In the 4am incident last Wednesday, 528 Rohingya detainees staged a riot before breaking out from the depot.

However, six of them including two children were killed when they were hit by a car while crossing the North-South Expressway near Jawi in their attempt to flee. A seventh – a 14-year-old girl – succumbed to her injuries yesterday.

Police have since recaptured over 400 of the detainees with 61 more still at large.

It was reported that several hours prior to the rioting incident, one of the detainees, in his 30s, had died in the depot.

The detainees had claimed that the camp management had failed to provide medical treatment for the sick detainee.- NST, 28/4/2022


Another Rohingya detainee in NSE crash dies

GEORGE TOWN: The death toll from last week's North-South Expressway crash that saw several escapees from an Immigration temporary detention depot in Kedah killed increased to seven yesterday.

This was as a 14-year-old girl who was seriously injured in the crash succumbed to her injuries at the Seberang Jaya Hospital.

State police chief Datuk Mohd Shuhaily Mohd Zain confirmed the victim's death, adding that another victim, a 21-year-old man, was still being treated at the same hospital.

"Investigations into the incident are ongoing. We have recorded statements from several witnesses to assist investigation into the crash," he said after the launch of the state-level Op Selamat at the Bayan Baru Ramadan bazaar here this afternoon.

About 4.30am last Wednesday, 528 Rohingya detainees broke out from the detention centre in Bandar Baharu after staging a protest.

Local villagers managed to recapture 88 of them before surrendering them to the Immigration Department.

Subsequently, Penang police managed to rearrest 229 of them at Km168 of the NSE.

In their haste to flee, a group of Rohingya attempted to rush across the NSE, and a passing vehicle rammed into them, leading to six being killed and several injured.

The dead were two men aged 20 and 36, two women aged 14 and 18, a 9-year-old boy and a girl, 8.

Meanwhile, Shuhaily said police are still on the hunt for another 61 Rohingya detainees who fled, with the latest two arrests made in the state on Monday.

Asked if that meant the detainees may have fled from Penang, Shuhaily said there was a possibility as the borders of the neighbouring states were nearby.

"What I am concerned about is the possibility that the Rohingya detainees may have assimilated with the locals.

"It has been one week after their escape and they may have gotten help in terms of food, which is why they are able to resist being arrested," he added.- NST, 27/4/2022

Woman previously acquitted of reckless driving now gets six years’ jail for mowing down eight teens on JB road

Sam Ke Ting is pictured at the Johor Baru High Court April 13, 2022. — Picture by Ben Tan
Sam Ke Ting is pictured at the Johor Baru High Court April 13, 2022. — Picture by Ben Tan

JOHOR BARU, April 13 — Sam Ke Ting was today sentenced to six years in prison by the High Court for crashing into eight teenagers riding their bicycles on a road here about five years ago.

The decision was made by High Court Judge Datuk Abu Bakar Katar after the prosecution succeeded in their second appeal against the Magistrate’s Court decision to acquit and discharge the 27-year-old woman last October last year.

Sam had been charged with reckless or dangerous driving, resulting in the death of eight cyclists on Jalan Lingkaran Dalam, Johor Baru on February 18, 2017.

Sam, a clerk, was also ordered to serve six months in prison if she did not pay a RM6,000 fine, apart from being disqualified from driving for three years effective after the completion of her prison sentence.

In his judgment, Abu Bakar said the Magistrate’s Court has erred in failing to decide the respondent’s defence without being under oath.

“The respondent, in her defence, stated that she did not see the group of cyclists at the scene of incident and there were other vehicle that hit the deceased bicycles and drove away. This version had never been raised by the respondent during the prosecution case.

“The Magistrate’s Court made a mistake when it accepted the respondent’s defence for not knowing there would be ‘basikal lajak’ activity during the time of the incident as an excuse to drive dangerously, which resulted in the victims’ deaths.

“The respondent should have drove carefully instead driving fast, causing the incident and she should have realised that the area’s lighting was not bright at around 3.20am,” he said before sentencing.

Sam had earlier appeared at the Johor Baru High Court compound at about 9am wearing a white striped shirt and brown long pants. She looked calm after the sentence was handed down.

Defence counsel Muhammad Faizal Mokhtar urged the High Court to grant a stay of execution on Sam as they would be appealing the case at the Court of Appeal.

However, Abu Bakar rejected Sam’s appeal for stay of execution as they have yet to receive approval from the Court of Appeal.

Johor prosecution director Tengku Amir Zaki Tengku Abd Rahman and deputy public prosecutor Muhammad Syafiq Mohd Ghazali prosecuted the case.

On October 10 last year, the Johor Baru Magistrate’s Court upheld the decision of the accused to be acquitted and acquitted of the charges which occurred on February 18, 2017.

Based on the charge sheet, Sam who at the time of the incident was 22-years-old, was accused of driving a car with registration number JQB 9984 along Jalan Lingkaran Dalam recklessly or dangerously resulting in the death of eight cyclists at 3.20am.

The eight victims involved were Mohamad Azrie Danish Zulkefli, 14 (at the time of the incident);  Muhamad Shahrul Izzwan Azzuraimie, 14;  Muhammad Firdauz Danish Mohd Azhar, 16;  Fauzan Halmijan, 13;  Mohamad Azhar Amir, 16;  Muhammad Harith Iskandar Abdullah, 14;  Muhammad Shahrul Nizam Marudin, 14 and Haizad Kasrin, 16.- Malay Mail, 13/4/2022


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