Media Statement – 2/7/2024
Home Minister should stick to FACTS, and not prematurely conclude that the police are NOT criminally liable for the deaths in custody – Wait for the Coroner’s decision
We do not want to simply know what the police, the Minister or the detaining authorities concluded with regards to death in custody. We want to know what the Coroner decided after an inquest on the cause of death, and whether anyone is criminally liable for the death. Even Coroners can get it wrong.
Section 334 of the Criminal Procedure Code emphasizes the need for an inquiry into the death in cases of death in custody, where it states, ‘When any person dies while in the custody of the police or in a psychiatric hospital or prison, the officer who had the custody of that person or was in charge of that psychiatric hospital or prison, as the case may be, 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.’
In the inquiry by the Coroner, he also decides on criminal liability ‘whether his death resulted in any way from, or was accelerated by, any unlawful act or omission on the part of any other person.’
No Torture – But Police May Still Be Criminally Liable for the Death
The police may not beat or torture him/her to death, but they may still held to be criminally liable for the death. The failure to monitor the person in detention, and the failure to ensure healthcare of the person in custody makes the police officer criminally liable for the death of a detainee.
On 20/5/2024, the High Court here ruled that the death of a detainee at a Penang police lock-up five years ago was due to negligence by the police, who failed to prevent his suicide. His failure was not doing needed patrol and monitoring the detainee. HC Judge Anand Ponnudurai said that, ‘The argument that the detainee was not a ‘suicide risk’ was shot down “The defendants owed a duty of care and it is wrong to say Fadzrin was not a suicide risk. Under the lock-up rules, that risk should have been assessed through a mandatory health check,”. The judge also said that ‘the timestamps of the CCTV footage were highly suspicious, with a discrepancy of 25 to 30 minutes.” The coroner had previously ruled the cause of death was “consistent with hanging” (FMT,20/5/2024)
In another case, at the Kuantan Coroner’s Court, the Coroner Ahmad Zamzani said ‘that Hidayat’s death could have been prevented if the police had taken him to seek medical treatment. During the proceedings, the court heard that Hidayat complained to the officers on duty that he was not well, and that he had also vomited. The officers gave him a Panadol to ease his pain. Hidayat died the following day.’ (FMT, 7/2/2024)
In both the above cases, the police officer at the very least could have been charged for the criminal offence of causing death by negligence (sec.304 Penal Code), and if convicted ‘shall be punished with imprisonment for a term which may extend to two years or with fine or with both.’
Home Minister Should Not Prematurely Tell Parliament Police Not Criminally Liable
Hence, MADPET(Malaysians Against Death Penalty and Torture) is appalled at the audacity of Home Minister Saifuddin Nasution Ismail for him to ‘proudly’ say in Parliament, as reported, that ‘…there has been no death in police custody that was inflicted by the authorities since he took over the office’ in December 2022 until May 2024. Is he relying on police or detaining authorities investigations, when at the very least he should be saying such things until the Coroner makes know his/her findings.
“…the minister said there were 24 deaths recorded at police lockups between 2022 and May this year, while 40 inmates had died in prisons. "The deaths in police lockups were due to health issues such as Covid-19, tuberculosis, heart attack and pneumonia. There were no cases of suicide or death due to injuries inflicted by the police…’ He added, that ‘…20 deaths were recorded at immigration detention depots between Jan 1 and June 18 this year…’.(Malaysiakini, 1/7/2024) However the media report provided no details about deaths in prison or other places of Detention.
Covid-19, Tuberculosis, etc – Quarantine and Breach of Duty to other Detainees?
Were the detainees who died of Covid-19 and/or Tuberculosis QUARANTINED? If not, the police would have failed in their duty of care with regard other detainees?
Did those who died by reason of illness die in the police lockup, or in the hospital? If they died in the place of detention, then a crime may have been committed by the police officers. Why were they not send to the hospital? It is time for a mandatory health check-up on detention, so that any disease can be speedily detected, and hopefully no one will even die in custody in the future by reason of Covid-19, Tuberculosis or even Pneumonia.
Time for Full-Time Coroners, Coroner’s Department and Coroner’s Courts
In Malaysia, all deaths have to go to the Coroner, who will independently make a finding on the cause of death. Section 333 of the Criminal Procedure Code states that ‘(1) If the Magistrate shall be satisfied as to the cause of death without holding an inquiry under this Chapter, he shall report to the Public Prosecutor the cause of death as ascertained to his satisfaction with his reasons for being so satisfied and shall at the same time transmit to the Public Prosecutor all reports and documents in his possession connected with the matter.(2) In all other cases the Magistrate shall proceed as soon as may be to hold an inquiry under this Chapter…’
Thus, the Coroner has a lot of work just dealing with all these deaths. Even if the Coroner ultimately decides not to have an inquest, a public inquiry, he/she still has to consider and inquire into various reports, and then report to the Public Prosecutor why he/she will not be holding an inquest.
As it is, Magistrates have a lot work with regard their court matters. As such, MADPET calls for Malaysia to have full-time Coroners, and needed support staff. The idea of establishing a Coroners Department should be considered, and probably a Coroners Court. A new law may need to be enacted for this.
MADPET calls for immediate mandatory health check ups for all detainees in police lock ups and other detention facilities when they first get detained. Not only is it a question of determining the health of the detainee fast, but it is also to protect other detainees from infectious diseases.
MADPET urges that police, who are not doctors, do not make a decision on the health condition of any detainee who complains of symptoms or is observed as being sick. Send them to hospital.
MADPET reiterates the call for full-time Coroners, Coroners Department and Coroners Courts. In 2019, for example, there were the total number of deaths in Malaysia was 173,746. Full-time Coroners will be able to expedite inquests as now it simply takes too long.
When it is death in police custody or custody of other law enforcement bodies, it is best that an INQUEST be held by the independent Coroner. Likewise, for cases of extrajudicial killing by police and/or other law enforcement officers.
Even the recent Kuantan’s Coroner Court decision that the police were responsible for the death of a detainee at the Pekan police station three years ago. Hence, how can the Home Minister Saifuddin Nasution even say no police officers are responsible for the death in custody since he came into office. Have even all the Coroner’s inquests into these deaths in custody been completed. MADPET urges the Minister to just state the FACTS as to number of deaths in custody were there, and not prematurely conclude whether the police are criminally responsible or not.
MADPET calls for the ratification of the United Nations Convention against Torture (UNCAT). The excuse for not doing so by the Home Minister given in Parliament on 1/7/2024 is unacceptable. One must remember that Malaysia has the ability to place conditions/reservations when ratifying or signing a UN Convention, like maybe excluding the Syariah Courts. We must ratify UNCAT now, amendments to law can always come later. It is time to end torture in the penal system, in schools and in Malaysia.
Charles Hector
For and on behalf of MADPET (Malaysians Against Death Penalty and Torture)
PARLIAMENT | Home Minister Saifuddin Nasution Ismail said there has been no death in police custody that was inflicted by the authorities since he took over the office.
According to Saifuddin, all the deaths recorded in prisons, police lockups and Immigration Department depots since 2022 were related to health issues.
In his speech at the Dewan Rakyat today, the minister said there were 24 deaths recorded at police lockups between 2022 and May this year, while 40 inmates had died in prisons.
"The deaths in police lockups were due to health issues such as Covid-19, tuberculosis, heart attack and pneumonia. There were no cases of suicide or death due to injuries inflicted by the police.
"They involved a range of health problems. Most of the cases involved drug addicts who were detained in lockups," Saifuddin said in his winding-up speech on Suhakam annual report.
Saifuddin added that 20 deaths were recorded at immigration detention depots between Jan 1 and June 18 this year.
"The 20 incidents involved detainees from Bangladesh, India, Iraq, Myanmar, the Philippines, Thailand and Indonesia.
"Based on post-mortem reports, all the deaths were caused by health issues," he said. - Malaysiakini, 1/7/2024
Court holds police responsible for construction worker’s death in custody
Hidayat Abdul Halim was arrested by police for allegedly consuming drugs and died 48 hours later while in detention.
PETALING JAYA: The Kuantan coroner’s court has ruled that the police were responsible for the death of a detainee at the Pekan police station three years ago.
Construction worker Hidayat Abdul Halim was arrested by police at his home on Oct 8, 2021, after allegedly consuming drugs.
He was taken to the Pekan police station and died 48 hours later. He is survived by his wife and six children.
An inquest was held to determine Hidayat’s death, with coroner Ahmad Zamzani Zain finding that Hidayat died of internal bleeding in his brain.
Ahmad Zamzani added that Hidayat’s death could have been prevented if the police had taken him to seek medical treatment.
During the proceedings, the court heard that Hidayat complained to the officers on duty that he was not well, and that he had also vomited.
The officers gave him a Panadol to ease his pain. Hidayat died the following day.
His family contended that the officers in charge should have consulted their supervisors on what to do when a detainee fell sick.
Lawyers Haijan Omar and Nik Zarith Nik Moustapha held a watching brief for Hidayat’s family while deputy public prosecutor Syarifah Nursyuhada Tuan Mat was the inquest conducting officer. - FMT, 7/2/2024
Court finds police negligent over man’s death in custody
The High Court says police could have prevented his suicide if they had carried out patrols as required.
GEORGE TOWN: The High Court here has ruled that the death of a detainee at a Penang police lock-up five years ago was due to negligence by the police, who failed to prevent his suicide.
In finding the police and the government liable, the court ordered them to pay RM197,600 in damages and costs to the family of Fadzrin Zaidi, 29.
Justice Anand Ponnudurai said the police had breached the duty of care owed to Fadzrin, a gravedigger, by failing to carry out regular patrols which could have prevented his death.
He said such patrols were a requirement under the 1953 Lock-Up Rules.
“The defendants owed a duty of care and it is wrong to say Fadzrin was not a suicide risk. Under the lock-up rules, that risk should have been assessed through a mandatory health check,” he said.
Fadzrin was detained during a drug raid in 2019 and 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”.
A coroner previously ruled that he had committed suicide, citing CCTV footage and testimony from nine witnesses. His mother, Fadhelah Othman, later sued the police and government for negligence.
Footage from an inquest showed Fadzrin wandering in his cell while his cellmates slept at 1.05am before he hanged himself at 1.51am. Paramedics pronounced him dead at 2.55am.
Anand said the timestamps of the CCTV footage were highly suspicious, with a discrepancy of 25 to 30 minutes.
“The footage should have been monitored by the duty policeman in charge. But here there are just small screens hung up on the ceiling, serving just as a playback device. It is shocking.”
He also noted that a logbook for lock-up patrols contained an entry claiming that a patrol was made coinciding with the time of Fadzrin’s death.
“In the logbook, a remark saying ‘buat rondaan’ (patrol) was added at the time of the deceased’s death. It is highly suspicious as it was the only entry of such nature. It is a cover-up, taking advantage of the discrepancy in CCTV timestamps,” he said.
The judge also found the government, as the employer of the police force, vicariously liable for negligence.
He ordered Putrajaya to pay RM57,600 in dependency costs, RM30,000 in bereavement costs, RM50,000 in aggravated damages, special damages of RM10,000 and costs of RM50,000 to Fadhelah.
Fadhelah told reporters outside the courtroom she was happy with the verdict but still grieving over her son’s death.
“My husband passed away heartbroken over our son’s death,” she added.
Lawyers M Visvanathan, V Sanjay Nathan and V Pushan Qin Nathan appeared for the family. Senior federal counsel Nur Ezdiani Roleb and federal counsel Syafiq Affandy Hasan appeared for the police and the government.
Coroner Norsalha Hamzah previously found that Fadzrin had wanted to take his own life, based on video footage shown in court.
She said there were no criminal elements
leading to his death, and that Fadzrin was likely “ashamed to have been
caught by police as he was about to get married soon”.- FMT,20/5/2024
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