PUTRAJAYA: The Court of Appeal has allowed an appeal by the mother of a factory worker who died at the Tapah prison seven years ago to obtain damages for dependency claim and negligence.
However, the three-member bench chaired by Yaacob Md Sam has given the parties involved up to June 30 to file written submissions on the quantum of damages to be awarded.
Lawyer M Visvanathan, who is appearing for Rahaya Salleh, said he indicated to the bench that his client was asking for RM250,000 for the negligence claim.
“We will also file submissions to obtain compensation for dependency claims,” he told FMT.
Visvanathan said the bench will deliver its verdict on July 7 for both these awards.
In a virtual hearing today, judge Ahmad Nasfy Yasin also allowed the government appeal to set aside the High Court ruling for awarding Rahaya RM100,000 for unlawful detention and RM50,000 for misfeasance in public office.
Nasfy, who delivered the oral decision, said it was wrong for the trial court to award these damages.
“However, the plaintiff (Rahaya) has proved negligence as the police and prison lock-up rules have not been adhered to,” Nasfy said. The other judge on the panel is M Gunalan.
The bench also increased the costs of RM12,000 awarded at the High Court to RM30,000 as the amount was “manifestly inadequate”. It also maintained the RM2,000 payment in funeral expenses.
In March 2017, Rahaya had filed the suit for assault and negligence against the government after her son, Kamarulnizam Ismail, was found dead in the prison.
The 39-year-old is said to have died between 8.30pm on March 7 and 2.30am the following day in 2014.
Apart from the dependency claim, Rahaya appealed to the court to award her aggravated damages because her son’s right to life under the Federal Constitution was breached.
Government lawyers representing the police and the Prisons Department have asked that the appeal be dismissed outright as negligence was not proven.
Two years ago, High Court judge Anselm Charles Fernandis dismissed the dependency claim and the aggravated damages although he found that the death was due to negligence and assault.
In 2014, Kamarulnizam was fined RM800 or jailed for two weeks by the magistrates’ court after he pleaded guilty to committing offences under the Penal Code and the Minor Offences Act.
His father, Ismail Ahmad, came to the Bukit Mertajam court to settle the fine but Kamarulnizam wanted to serve the jail term as he wanted to use the money to repair his car.
He never came back alive. The parents collected Kamarulnizam’s body from the Tapah Hospital mortuary in March 2014.
The parents had been depending on his income for their living expenses.
Kamarulnizam, who had been employed as a general worker at a sugar refinery in Penang, was said to have been earning RM2,500 a month.
In her statement of claim, Rahaya, a housewife, said Kamarulnizam gave the family RM1,300 a month. Rahaya said her son was arrested by police on Feb 22, 2014 together with three others.
She alleged that Kamarulnizam was assaulted by three policemen during detention at the Seberang Perai Tengah district police headquarters in Bukit Mertajam.
After the court’s decision, Kamarulnizam was sent to Tapah prison in Perak to serve the jail term on March 3.
Fernandis said the two days Kamarulnizam spent in the police lock-up were unlawful because it was mandatory for police officers to act within a reasonable time to transport those found guilty to the prison.
“While at prison, he was given medication for diarrhoea after he complained of not feeling well. Knowing that the deceased was not well, the prison wardens should have kept an eye on him, and be more vigilant towards a prisoner under their care,” he said.
The judge said he was agreeable with the pathologist’s findings and post-mortem results that Kamarulnizam had died of a lung infection.