Murder in custody?


(Updated )

COMMENT S Balamurugan, aged 44, from Kapar, died in police custody at the North Klang police headquarters. He was arrested on Feb 6 and brought before a magistrate for his remand hearing on Feb 7. It was reported that his mouth was bleeding and he vomited blood in court. The magistrate quite correctly rejected the remand and ordered that he be released immediately and taken to the hospital.

Both Balamurugan’s family and his lawyer Gerard Lazarus filed police reports after seeing bruises on his body.

In apparent defiance of the court order, the police took him back to the police station. Reports state that at about 11.30pm on Feb 7, police noticed that he was unconscious while in a room and called an ambulance. Paramedics pronounced him dead when they arrived. Police then classified the case as sudden death.

In his affidavit, the brother of the deceased stated that the family received a phone call only at 6am the next day from the police, asking them to go to Tengku Ampuan Rahimah Hospital where they were informed that Balamurugan had died.

The first post-mortem reportedly found that Balamurugan died of a heart attack. The family of the deceased then applied to the High Court for, and the judge ordered, a second post-mortem. The second post mortem concluded on Feb 18 that the cause of death was “coronary artery disease with multiple blunt force injuries” (emphasis mine).

I confirm sighting a copy of the document entitled ‘Perakuan Pegawai Perubatan Mengenai Sebab-Sebab Kematian (Post-mortem)’ that contain these findings.

The police response

On Feb 11, it was reported that North Klang police chief ACP Mohd Yusoff Mamat said that more than 10 policemen at the North Klang district police headquarters were under investigation following Balamurugan’s death.

However, not a single policeman was suspended pending investigation despite the seriousness of the possible offences committed. Further, the investigations appear to be headed or conducted by the police chief of the very station where the incident had occurred.

After the disclosure of the second post-mortem by the deceased’s lawyers, police chief ACP Mohd Yusoff Mamat was reported to have said that once the results of the second post-mortem were reviewed, police would question the pathologists involved.

The problem of deaths in custody

The problem of deaths in custody has been with us for far too long.The 2015 Suaram Human Rights report shows that there have been 250 deaths in police custody in the last decade. That is 250 too many.

In the yet unsolved case of Teoh Beng Hock, the Court of Appeal found that his death was caused by multiple injuries from a fall from the 14th floor due to or accelerated by the unlawful act or acts of those including the relevant Malaysian Anti-Corruption Commission (MACC) officers.

In his judgment Justice Mah Weng Kwai said: “The MACC owed Teoh Beng Hock a strict duty of care to ensure that he was kept safe at all times while under their custody and that he did not come into harm’s way such as from beatings and assault by anyone.

“The Court must deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may lose faith not only in the police force but in the judiciary itself (see State of Madya Pradesh vs Shyamsunder Trivedi & Ors [Appeal (crl) 217 of 1993]” (emphasis mine).

Justice Dr Hamid Sultan in his judgment said: “As the deceased was in the custody of the ‘MACC’ officers followed by the evidence of injury in his neck, and the fact that he was subsequently found dead will prima facie attach culpability to the relevant officers of ‘MACC’...” (emphasis mine).

There is therefore a strict duty of care upon any enforcement agency to ensure the safety of the person in their custody. Once an arrest is made and a person is in custody and injuries are found where death follows, there is prima facie evidence of the culpability of the relevant officers concerned.

In the case of Balamurugan, given the visual evidence, the vomiting of blood by the deceased, and the pathologists’ report in the second post-mortem, I would argue that there is indeed a prima facie case to pursue a prosecution against the officers concerned. This is the legal basis for immediate action to be taken against the perpetrators of what is clearly a heinous crime.

But there is a moral dimension that we must not lose sight of. Balamurugan was a powerless man at the mercy of those who have sworn to protect us. And he is not the only victim. His family must now struggle with his death in the hope that they will get closure when the culprits are brought to book. Sadly there are many, including Teoh Beng Hock’s family, who have not had closure yet.

The pathologists concerned must also be allowed to carry out their tasks without fear or favour. At the time of the death in custody of A Kugan, the then-president of the Malaysian Medical Association (MMA), Khoo Kah Lin, decried deaths in custody, and reminded doctors to always be objective when conducting examinations and not be influenced by any authority.

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