The Case of R. Gunasegaran
I was recently exposed to the case of R. Gunasegaran through a course in Legal Studies in my college. At first, it appeared to be just another usual case study for me. However, further reading and thinking showed me the otherwise. Dozens of questions are in my head. I have attempted to compile everything I could find and to come out with an amateur analysis which is done to the best of my knowledge.
Introduction to the Case
On November 3, 2010, the family of R. Gunasegaran, most notably his sister Ganga Gowri Rajasundram, has applied to the High Court to review the open verdict handed down at the inquest investigating his death.[1] It had been more than one since Gunasegaran s/o Rajasundram’s “sudden death” as classified by the police, but the family is still waiting for the truth of R. Gunasegaran’s demise to see the light of day. A total of 23 witnesses have testified but yet, the truth was still unacceptable by the family of Gunasegaran. [2]
On October 25, 2010, in the “open verdict” delivered by the coroner’s court in the inquest to determine the cause of Gunasegaran s/o Rajasundram’s, the coroner Siti Shakirah binti Mohtarudin found insufficient evidences to record a conclusion to the case.[3] Open verdict, according to the Collins English Dictionary, means a finding by a coroner's jury of death without stating the cause. In other words, Gunasegaran’s death was deemed suspicious by the jury but none of the other verdicts open to them could be reached.[4]
The counsel representing the family of R. Gunasegaran, M. Visvanathan stated that the family would file an application for a judicial review at the High Court soon, as mentioned earlier. Many questions remained in their head. Ganga Gowri asked for a review of the coroner’s decision that the injuries sustained by Gunasegaran could have come from attempts to resuscitate him. She also questioned the decision of the coroner that Gunasegaran had consumed drugs beyond lethal levels. [5]
Gunasegaran s/o Rajasundram, 31, a toddy shop assistant, collapsed while his thumbprint was being taken between 6.45pm and 7pm on July 16, 2008 at the Sentul police headquarters and was pronounced dead at 7.40pm at the Kuala Lumpur Hospital the same day. [6] The deceased was arrested in a drug bust on the day of death although the fact as to whether he possessed the drug remains unproven. His family members were later informed that Gunasegaran had, that same day, died, due to drug abuse-related causes. Similarly, a copy of the burial permit, issued by the hospital authorities states that Gunasegaran died from drug-related causes.
However, the family believed in another version of truth, that the death was due to police brutality instead of the reported drug abuse. Upon learning of the death, the family have since been in contact with eye-witnesses to Gunasegaran’s arrest and detention by the police and have been informed that at the time of his arrest, Gunasegaran was physically assault by Lance Corporal Mohd Faizal; and that, at the Sentul police station, Gunasegaran was subjected to further assaults by the same police officer causing Gunasegaran to lose consciousness which he never regained until his death.[7]
This case has drawn the attention of many parties including the likes of The Malaysian Bar, World Organization against Torture (OMCT) and so on. In its statement on October 29, 2010, The Malaysian Bar questioned the effectiveness of the inquest [8]when the coroner failed to reach a definitive finding in the case despite the strength of the evidences pointing towards the culpability of the police: testimonies of the three witnesses and the second autopsy report which found a 28cm long, 8cm width and 5cm depth scar on R. Gunasegaran’s chest.[9]
World Organization against Torture (OMCT) also expressed its deep concern when one of the key witnesses in the case, K. Selvachandran was detained under the two-year detention order under the Dangerous Drugs (Special Preventive Measures) Act 1985 (DDA), which provides for detention without trial for up to two years. During the arrest, Mr. K. Selvachandran was allegedly beaten by the police in front of his wife and children before he was taken to the Kuala Lumpur police contingent headquarters. He would suffer from hearing problems due to the beatings.[10]
The 11 Non-Governmental Organizations, which included The People's Parliament, SUARAM, Jemaah Islah Malaysia (JIM), Centre for Policy Initiatives (CPI) and Writers Alliance for Media Independence (WAMI), also released a joint statement on August 17, 2009 requesting a standard operating procedure (SOP) for investigations into cases of death in custody. [11]
The reason why the case of R. Gunasegaran is crucial to our discussion on police practices is that it highlights several issues with the policing of our country: the safety of whistleblower, the human rights during police custody, the procedures of inquests, the questionable practices in the police force and so on. Understanding this case could bring us to find out what more could be done to better the policing system of our country.
A Deeper Look at the Court Proceedings
Understandably, Gunasegaran case was brought to the Coroner’s Court since his demise was questionably in suspicious circumstances, in prison or police custody and the deceased was not previously ill or had not seen a doctor within 14 days before the death.[12] Moreover, the cause of death is unknown or uncertain as highlighted in the judgment report.
According to the six-page judgment report done by the coroner Siti Shakirah Mohtarudin, there were two versions of how Gunasegaran had died based on the testimonies of witnesses. Gunasegaran died on July 16, 2009, between 6.45pm and 7.20pm while his thumbprints were being taken by police for processing.
The Open Verdict & the Post-mortem Reports
The first version is that the deceased fainted when police were processing his thumbprints and then, he died on the way to the hospital due to drug-related issues as testified by both post-mortem reports. On the other end, following the testimonies of the three eye-witnesses, the second version was that the deceased had been kicked and beaten by a police officer who arrested him that caused his death. Both versions can be accepted in her opinion but a post-mortem report is an undisputed prima facie evidence.[13] Prima facie, in common law jurisdiction, denotes legal presumption on the face of evidence or at the first sight, unless rebutted.[14]
The solicitors acting on behalf of Gunasegaran’s family did rebut on the admissibility of the first post-mortem report. Indeed, in an inquest, post-mortem reports are extremely important to establish the cause of death. Only if the post-mortem does not reveal the cause of death, or in certain other circumstances (industrial disease, violent or unnatural death, or death in prison), will there be an inquest. However, as we have seen from the difficulties in claiming a copy of the post-mortem report of the next of kin in Gunasegaran’s case, the cooperativeness of the related parties is questionable.
The family has been told that the post mortem report will only be made available after Gunasegaran’s body is removed from the mortuary and after an application has been made to the hospital. The family has been told that the report will be made available two months after their application. Solicitors representing Gunasegaran’s family had written 4 letters to several parties involved including Kuala Lumpur Subordinate Courts to request for an inquest, Jabatan Perubatan Forensik of Kuala Lumpur Hospital to formally request for a copy of the post mortem report, OCPD of the Sentul police station to confirm that the police had no objections to a second post mortem on the remains of Gunasegaran. No response had been heard in at least a month. Only the letter requesting Pusat Perubatan Universiti Hospital (PPUH) for a second post mortem to be performed was replied. However, PPUH replied such a post mortem can only be undertaken if the police authorities confirmed their agreement to the same in writing.
Such policy is valid as the same was requested in similar cases such as A. Kugan’s and Krishnan’s. As what Bukit Aman legal division chief assistant director Razali Basri said, for any case of death in police custody, a court order must first be obtained for a post-mortem to be conducted on the deceased and any cost involved must be borne by the family.[15] However, we question the efficiency in delivering the post-mortem report. Deference in the delivery of the post-mortem report to the next-of-kin, in “death in police custody” cases, until after the body has been buried and or cremated, is unacceptable. The family should be privy to the information.
The issue of deferring the delivery of post-mortem report arose again when Dr. Prashant of the PPUH (who is also responsible for the second postmortem reports in Teoh Beng Hock case and A. Kugan case.) was informed by the police that the medical officer who performed the first post mortem must be present when the second procedure is performed. As to when this medical officer will avail himself so that the second post mortem may proceed without any further delay, no one can say. We are also concerned about the responsibility for the family of the deceased to bear the cost of autopsy. This is especially true in the case of Gunasegaran’s family. To assist with their financial situation, famous legal blogger, Haris Ibrahim, initiated a campaign through his personal website, The People’s Parliament. The commendable part in this case is that the police, in the end, registered the body for postmortem and hence, shouldered the cost.
On August 18, 2009, the High Court allowed the request by R Ganga Gowri, 32, for the post mortem to be conducted on Gunasegaran at the PPUH. Justice Datuk Mohamad Zabidin Mohd Diah also ordered a copy of the report on the first post mortem conducted at the Kuala Lumpur Hospital (HKL) to be handed over to the applicant’s counsel within two weeks from the date. [16] In the second postmortem, the 18th and 19th witness at the court, the forensic investigator Nurulhasanah Mustapar and Dr. Prashant have reported the 28cm by 8cm by 5cm scar on Gunasegaran’s chest. This finding contradicts the first postmortem report. The second postmortem report also supports the testimonies done by the three witnesses, S. Ravi, S. Suresh and S. Selvachandran that Gunasegaran was subjected to physical assault during the arrest and custody.
However, the coroner decides that she could not conclude if it was true that the injuries found in the post-mortem were due to beatings. M. Visvanathan submitted that there was a “conspiracy” by certain quarters to conceal the truth, by using post-mortem photographs that were insufficient to show a wound measuring 28cm x 8cm x 5cm, which was recorded in the second post-mortem.[17] On December 5th 2009, both forensic photographers (Lance Corporal Admi Baharom and Mohd Zukri Ismail) who testified on the court admitted that of the total of 26 photos taken, none of the photos showed details of external anatomy before dissection, explicitly the chest and the head. [18]This, to us, is not in line with the general guidelines for forensic photography. In fact, forensic photographs must demonstrate a fair and accurate representation of the scene, object, situation, or event and be able to be analyzed for information required by the courts.[19]
The Questionable Practices during the Arrest and Custody
Throughout the period of custody, as now it is reconstructed through the court proceedings, some of the police practices are highly questionable in terms of human rights. At the sight of the collapse of Gunasegaran, no emergency assistance was given by the police officers. As testified by Sergeant Subari Sarno, Sergeant Major Rajinder Singh and other personnel did not provide any emergency assistance but just splashed water on Gunasegaran[20] for about 10 minutes[21] on the excuse that suspects usually feign unconsciousness during detention. In our opinion, the element of negligence is simply not ignorable. This is not to mention the consistent testimonies pointing out that Lance Corporal Mohd. Faizal physically assaulted the deceased. In our opinion, Gunasegaran’s death could have been partly due to the negligence of the officers in charge. 
Counsel M. Visvanathan.
According to the verbatim account of closing submissions done by M. Visvanathan on 13th September, M. Visvanathan condemned the police’s recording of witness’s conversation in the midnight without informing as a violation of privacy. However, we conclude that the action of police officers, not only unethical, was against the provision of Section 112 (4) of Criminal Procedure Code (CPC) which states that “A police officer examining a person under subsection (1) shall first inform that person of the provisions of subsections (2) and (3).” In this subsection, investigating officers should inform the person involved that he or she is liable to answer all the questions and that his or her statements are legally bound to be true. Even when the person is not informed, under subsection 112(5) of CPC, the statement made must be read to him in the language in which he made it and he should be given an opportunity to make any corrections he may wish.
The judgment of the investigating officers who record witnesses’ statements is questionable as they are the accused. Besides, the investigating officers, as pointed out by M. Visvanathan, are from the same police station with those involved in the arrest of the deceased on July 16th, 2009. In our opinion, the wisest decision back then was to have police officers from other police stations who have no conflict of interest to be in charge of the investigation into Gunasegaran’s case.
The statements made by the police officers testifying in the court are not consistent among each other. In stark contrast, the statements made by the three witnesses (Ravi s/o Subramaniam, Suresh a/l M Subbaiah and Selvach Santhiran a/l Krishnan) who were detained together with Gunasegaran are coherent. While the others testified that it was Lance Corporal Mohd Zahir Ismail who sprinkled water on Gunasegaran, Zahir claimed that it was SM K.S. Rajinder Singh who did so.
There were also questions regarding the procedure of documenting cases. In the arrest report, only 4 suspects were named. Gunasegaran was omitted due to alleged case of drug possession. This fact is consistent with Rajinder’s testimony. Zahir explained that a separate arrest report for Gunasegaran was not made because of the unavailability of his urine sample. However, when questioned whether urine test is relevant in drug possession case, Zahir could not explain. The third report stating the possession of drug at 8.27 p.m. was made only an hour after the death. Yet, there was no mention of death in the late report.
One noticeable part about this case is that Sergeant Rajinder, when questioned by M. Visvanathan, answered that he did not know the whereabouts of the drug that Gunasegaran allegedly possessed at the time of arrest. As one of the arresting officers, he should have known what happened to the drug. To the best of our pursuit and research, there is no further news regarding the whereabouts of drug. We think that this issue should be further pursued as the allegation that Gunasegaran possessed drug could have been proven false IF there was no drug to start with.
It is also a mystery that, to this date, the report of Gunasegaran’s death is still not made when it is, in fact, required by law, as what ACP Zakaria Pagan testified. [22] According to the Star, in the court, Lance Corporal Norazman Mohamad, 45, said Sergeant Major Rajinder Singh was the officer in charge when the incident happened but he (Rajinder) should be blamed because he may have forgotten. However, when cross-examined by Counsel M. Visvanathan who represented the family of Gunasegaran, Norazman said he only expressed his opinion and did not blame Rajinder. Nevertheless, he agreed with the counsel that reporting the death was very important and should have been done.[23] In Tuesday’s proceedings (dated January 19th 2010), Subari denied an allegation by counsel, M. Visvanathan, who is representing the deceased, that he and other police personnel did not make a report of Gunasegaran’s death and tried to delay the report of his arrest to close the case.[24] He explained that the delay was due to the chaos when the deceased fainted. In our opinion, however the death report was delayed; the police officers should have informed Gunasegaran’s family of his death as soon as possible instead of 2 days after the incident. The family was informed on 18th July, Saturday, about 2 days after the death.
The Safety of Whistleblower
One reason why Gunasegaran’s case draws much attention is that one of the key witnesses, K. Selvachandran, was detained after testifying and was alleged physically assaulted by policemen. This is widely criticized by human rights groups across the globe like OMCT, as mentioned in the introduction to the case. In the joint statement by Lawyers for Liberty and SUARAM[25], they expressed deep disappointment at the arrest of K. Selvach Santhiran who testified against Lance Corporal Mohd Faizal in Gunasegaran case despite the threat from police. The 2 year detention order was under Dangerous Drug Act (Special Preventive Measures) 1985 at December 14th 2010. K. Selvach had then been detained in Batu Gajah detention camp.[26] Dangerous Drug Act (Special Preventive Measures) 1985 allows the police to detain a person for 60 days with no recourse to judicial safeguard and thereafter 2 years’ detention on the order of the Home Minister.
Selvach was one of three persons who were in police custody with R. Gunasegaran and they have consistently identified Lance Corporal Mohd Faizal as having physically assaulted the deceased. They did so despite threats to their safety by the police and despite the inducement that their cooperation would secure their immediate release. On the very day the verdict was delivered in the inquest, the police moved against Selvach and came to his home to arrest him. When Selvach’s children asked the police why their father was being dragged away, the police answered by beating Selvach in front of his own children. In a twisted perversion of conjugal love, the police tried to make Selvach’s wife S. Saraswathy kiss him before beating him up in front of her. [27] S. Saraswathy alleged that one of the policemen grabbed the house key when Selvachandran was trying to unlock the door, punched him and opened the door themselves.
To make the matter worse, Selvach’s family was not able to meet him although they were informed that they could visit him at IPK Kuala Lumpur at the morning before he was sent to Batu Gajah. Till the transfer to Batu Gajah, Selvach was without legal counsel. Besides, the detention of Selvach is gravely aggravated by the fact that he was arrested on the same day after the “open verdict” was delivered. Coincidence could not explain the suspicious proximity between the time of arrest and the announcement of the verdict.[28] Furthermore, if Selvach’s family statement was valid, the necessity of beating the man in front of his family after the arrest is questionable since K. Selvach was no longer a physical threat.
In our opinion, whistleblowers should be protected by the administration of law rather than punished by law enforcement officers. The blatant abuse of police power sadly pointed to police retaliation and clearly intended to intimidate those who speak up against injustices or wrongdoings perpetrated by members of the police force. Selvach Santhiran should be protected to speak about what he witnessed as that is his right. Concerned with the safety of K. Selvach under custody, a group of 70 people including representatives from several NGOs have had gathered under the watchful eyes of the police. The group demanded Selvach’s immediate release as well as a public apology. After handing in their memorandum, they then peacefully dispersed.[29]
I second the NGO’s suggestions on the approaches to deal with this issue as follows. Selvach should be released and a public apology should be done by the police. An independent investigatory body should be formed to investigate the drug charges against Selvach. An investigatory commission, which can be different from the one before, must be established to investigate the assault done to K. Selvach. The cases of Gunasegaran and K. Selvach have called for the establishment of the Independent Police Complaints and Misconduct Commission (IPCMC), to investigate complaints about police personnel. As aforementioned, the practice of neglecting detainees’ right for unimpeded and free access to legal counsels at all times is condemnable. To instill a higher level of respect of suspect’s human rights, I suggest that training program to be carried out in the police force. It is also my sincerest hope that the delays that happen to Selvach’s hearing (at least 3 times) does not happen again.
To learn more about police force, I would recommend you to read:
a) the Wikipedia page on Malaysian Police Act I created. (http://en.wikipedia.org/wiki/Police_(Malaysia)_Act_1967)
b) the following book
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To learn more about police force, I would recommend you to read:
a) the Wikipedia page on Malaysian Police Act I created. (http://en.wikipedia.org/wiki/Police_(Malaysia)_Act_1967)
b) the following book
Comments are welcomed and encouraged on ZewSays.com, but there are some instances where comments will be edited or deleted as follows:
1) Comments deemed to be spam or questionable spam will be deleted. Including a link to relevant content is permitted, but comments should be relevant to the post topic.
2) Comments including profanity will be deleted.
3) Comments containing language or concepts that could be deemed offensive will be deleted.
4) Comments that attack a person individually will be deleted.
The owner of this blog reserves the right to edit or delete any comments submitted to this blog without notice. This comment policy is subject to change at anytime.
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