eaic’s investigation findings on the death...

SURUHANJAYA INTEGRITI AGENSI PENGUATKUASAAN ARAS 5, BLOK MENARA, BANGUNAN MENARA USAHAWAN NO. PERSIARAN PERDANA, PRESINT 2 6 62652 PUTRAJAYA, MALAYSIA

Tel: 03-8888 1904 / No. Faks: 03-8888 6526 LAMAN WEB: www.eaic.gov.my

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EDITOR, NEWSROOM FOR IMMEDIATE RELEASE

PRESS RELEASE

EAIC’S INVESTIGATION FINDINGS ON THE DEATH OF N. DHARMENDRAN IN POLICE CUSTODY

Putrajaya 28 April 2016 – The Enforcement Agency Integrity Commission (EAIC) in

pursuant to section 30(5) of the Enforcement Agency Integrity Commission Act 2009

[Act 700], hereby announces the findings of its public hearing on the investigation

into the death of Dharmendran a/l Narayanasamy (N. Dharmendran, the deceased)

in the police custody at the Special Crime Investigation Division (D9) Lock-up,

Criminal Investigation Department (CID), Kuala Lumpur Police Contingent

Headquarters (IPK Kuala Lumpur) on 21 May 2013.

Five (5) sessions of public hearings were held, the first three sessions were held at

Menara TH Perdana, Kuala Lumpur on 27 to 31 July 2015 (first), 17 to 21 August

2015 (second) and 14 to 18 September 2015 (third), while the fourth and fifth

sessions were held at Menara Usahawan, Putrajaya on 26 to 29 October 2015 and

16 November 2015.

The public hearings were co-chaired by Yang Arif Datuk Yaacob bin Haji Md. Sam

(Chairman of EAIC), members of EAIC’s Commissioner Dato' Sri Robert Jacob Ridu,

Mr. Vinayak Prabhakar Pradhan and Mrs. Leong May Chan assisted by three (3)

consultants, namely Tan Sri Dato' Seri Mohd Jamil bin Johari (Former Deputy

Inspector-General of Police), Professor Tan Sri Dato' Seri Dr. Sharifah Hapsah binti

Syed Hasan Shahabuddin (Former Vice-Chancellor of Universiti Kebangsaan

Malaysia) and Mr. Lim Chee Wee (Former President of Malaysian Bar Council). The

public hearings were also attended by watching brief counsels representing the

Malaysian Bar Council, counsels representing the families of the deceased and the

representatives from the police. The public hearing sessions were opened to media

representatives and public.



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The Commission would like to reiterate that the scope of the public hearing was

restricted to the issues within the terms of reference given by the Commission during

the setting up of the Task Force under section 17 of Act 700.

The Commission would like to express its gratitude to all witnesses and watching

brief counsels for their co-operation and assistance during the hearings, and

members of media, both online and print, for their coverage of the hearings.

A total of 62 witnesess were called to testify at the hearings. There were 72 exhibits

including post-mortem report and photographs of the deceased, pictures of the D9

Lock-up of IPK Kuala Lumpur, D9 Lock-up Diary [Polis 40 (Pin 4/890], official

directives and other relevant documents tendered in the course of the hearings.

In the course of the hearing, the Task Force of the Commission made two visits on

the D9 Lock-up and the Special Criminal Investigation Division’s office of IPK Kuala

Lumpur.

EAIC INVESTIGATION FINDINGS

The findings of the Commission are based on the testimonies of the witnesses and

the evidence presented before the public hearings. Hence, the Commission has

prepared a full report on the investigation and its findings.

The findings of the Commission are as follows:

1. THE DEATH OF THE DECEASED RESULTED FROM THE USE OF PHYSICAL

FORCE BY THE POLICE

(i) The Commission found the death of Dhamendran a/l Narayanasamy (I.C Num

811028-14-5551) on 21 May 2013 resulted from the use of physical force by

the police.



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(ii) Evidence of the pathologist from Forensic Department of Hospital Kuala

Lumpur (HKL) who conducted the post-mortem on the body of the deceased

on 22 May 2013 revealed that the cause of death was due to “diffuse soft

tissue injuries due to multiple blunt force trauma". The post-mortem conducted

also confirmed the injuries of the deceased as follows:

(a) A total of 52 bruises on the deceased caused by a blunt force object (blunt

force trauma) causing acute massive loss of blood into the tissues causing

hypovolemic shock.

(b) The injuries were estimated between 2 to 3 days prior to the post mortem,

but not more than 4 days.

(c) There were two staples found embedded on the deceased’s ears, one on

the right ear and the other on left ear causing puncture wounds on both

ears. The pathologist confirmed the deceased’s ears were stapled while

he was alive estimated between 2 to 3 days prior to the post morterm.

(iii) The Commission found the physical force that had caused injuries and the

death of the deceased while in the custody and during interrogation has

violated the Para 33 of Inspector General of Police’s Standing Order (IGSO)

Part A '118' which prohibits the use of physical force against detainee during

interrogations.

2. FALSE / MISREPRESENTATION OF ENTRIES IN D9 LOCK-UP DIARY

(i) The Commission found the last six (6) entries in the D9 IPK Kuala Lumpur

lock-up diary i.e. entry 3150, 3151, 3152, 3153, 3154 and 3155 written by the

two lock-up sentries (SP24 and SP25) were false / misrepresentation.

(ii) The Commission also found the following entries 3156, 3157, 3158, 3159,

3161 in the lock-up diary were written in an unusual manner by the lock-up

sentry (SP25) in which the entries were not written in contemporaneous while



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he was on duty, but only after two or three days after the death of the

deceased.

(iii) The Commission also found that entries 3150 to 3153 were jointly made-up

(fabricating) by the senior officers of the police, comprising the Deputy Head

of the Criminal Investigation of Intelligence and Operations Department

(SP60), the Officer in-charge of D9 IPK Kuala Lumpur (SP27), the Deputy

officer in-charge of D9 IPK Kuala Lumpur (SP39) and the officer of D9 IPK

Kuala Lumpur (SP44) (at that time) by instructing the two lock-up sentries

SP24 and SP25 respectively to write false entries into the lock-up diary

(Exhibit P32) on the night of 21 May 2013.

(iv) It is also the findings of the Commission that entries 3154 to 3161 were jointly

made-up (fabricating) by the senior officers of the police comprising the

Deputy Head of the Criminal Investigation Department of Intelligence and

Operations IPK Kuala Lumpur (SP60), the Officer in-charge of D9 IPK Kuala

Lumpur (SP27), the Deputy Officer in-charge of D9 IPK Kuala Lumpur (SP39),

SP41, SP42 and SP43 of the D9 IPK Kuala Lumpur by instructing the two

lock-up sentries SP24 and SP25 respectively to write false entries into the

lock-up diary (Exhibit P32) after two or three days after the death of the

deceased.

(v) The Commission found a serious misconduct have been committed by the

senior officers of the police in making-up those false entries in order to cover-

up the actual fact surrounding the death of the deceased preventing a fair and

just investigation of the death.

(vi) The Commission found in providing the false or incorrect information /

misrepresentation as stated above, SP60, SP39, SP27 and SP44 may have

committed an offence under sections 192, 201 and / or 203 of the Penal

Code.



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3. THE TAMPERING OF TIME IN D9 LOCK-UP DIARY (EXHIBIT P32)

(i) The Commission found two entries in D9 Lock-up Diary (Exhibit P32) i.e entry

3149 and 3150 had been tampered from the original entries by SP24 upon the

instructions of SP60, SP39, SP41 dan SP43 in order to synchronize with the

time stated in the rearrest report of the deceased (Exhibit P50).

(ii) The Commission found that the act of tampering an official document that is

the D9 Lock-up Diary by SP60, SP39, SP41 dan SP43 is an offence under

section 177 or section 182 of the Penal Code.

4. FALSE CONTENTS OF POLICE REPORT REGARDING THE DEATH OF THE

DECEASED

(i) The Commission found the police report on the death of the deceased lodged

by SP25, the D9 Lock-up Sentry made upon the instructions of the Deputy

Head of the Criminal Investigation Department of Intelligence and Operations

IPK Kuala Lumpur (SP60) and written by Sergeant Major Ali (D9 personnel)

contained false / misrepresentation of actual state surrounding the death of

the deceased.

(ii) Lodging a false police report is an offence under section 177 or section 182 of

the Penal Code.

5. THE ABUSE OF POWER IN RELATIONS TO THE RE-ARREST OF THE

DECEASED ON 21 MAY 2013 (LAST DAY OF REMAND)

(i) The Commission found the re-arrest of the deceased by the D9 members

SP41 and SP43 at 1.00 p.m. of 21 May 2013 was made upon the instructions

by the Officer in-charge of D9 IPK Kuala Lumpur (SP27) and the D9 Officer

(SP44). The re-arrest was made based on the Police Report

Petaling/001384/13 (Exhibit P71) taken at random from the Police Reporting

System (PRS), which has nothing to do with the deceased in which the



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investigation paper of the said police report has been ordered as No Further

Action (NFA) by the Deputy Public Prosecutor on 17 May 2013.

(ii) The Commission found the Officer in-charge of D9 IPK Kuala Lumpur (SP27)

and the D9 officer (SP44) has committed a serious misconduct of abuse of

power by instructing the re-arrest of the deceased on the 21 May 2013 (who

was scheduled to be released on that day after the expiry of his remand

period) without a just and valid justification.

6. INOPERATION OF D9 CCTV LOCK-UP SINCE 2009

(i) The Commission found the CCTVs in D9 Lock-up and the D9 Office has not

been in operation since 2009 during to the construction and renovation works

of the IPK Kuala Lumpur new building. The CCTVs remained inoperation

even after the completion of the construction. The CCTVs were put into

operation only after the death of the deceased.

(ii) Due to the inoperation of the CCTVs, the movement of detainees as well as

the D9 personnels went unmonitored and not recorded. As such, the

Commission has been denied with the best evidence on how the deceased

was taken back into the D9 Lock-up during the absence of the D9 Lock-up

Sentries (SP24 and SP25) after he was taken out at 2.20 p.m. on 21 May

2013, the fatal day.

(iii) The Commission found the Officer in-charge of D9 IPK Kuala Lumpur (SP27)

and the Logistic Unit of IPK Kuala Lumpur, (knowing the inoperation of the

CCTVs) have not taken sufficient effort in ensuring the CCTVs of D9 Lock-up

and D9 Office be put back into operation.

7. BREACH OF LOCK-UP RULES 1953 AND HUKUMAN TETAP KETUA POLIS

DAERAH CAMPBELL KUALA LUMPUR BIL. 1/89 TUGAS PENGAWAL

LOKAP IPK, KUALA LUMPUR

(i) The Commission found that the deceased was taken back into the D9 Lock-

up by D9 personnel during the absence of lock-up sentries (SP24 and SP25).



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As a result, the entry of the deceased into the lock-up was not recorded in the

lock-up diary (Exhibit P32).

(ii) The Commission found that the failure of the two D9 Lock-up Sentries on duty

(SP24 and SP25) at the lock-up between 2.30 p.m. until 4.30 p.m on 21 May

2013 has allowed the D9 personnel to place the deceased into the lock-up

without a need to comply with the required procedures on entry of detainee

into the lock-up.

(iii) The admission of detainee into the lock-up without being recorded in lock-up

diary and leaving lock-up unattended is a serious breach of the Lock-up Rules

1953, Hukuman Tetap Ketua Polis Daerah Campbell Kuala Lumpur Bil. 1/89

Tugas Pengawal Lokap IPK, Kuala Lumpur and IGSO Part A '118'.

8. CONNECTION OF THE D9 PERSONNEL WITH THE DEATH OF THE

DECEASED

The Commission found that SP41, SP42, SP43 and SP44 (the D9 Project Team

members) assigned for the investigation and interrogation of the deceased have

a close connection with injuries and the death of the deceased. This is based on

the testimonies and documents which showed that the deceased was under the

sole custody of the D9 Project Team commencing from 13 May 2013 to 21 May

2013. The evidence also disclosed that only the D9 Project Team has an access

over the deceased during that period.

9. ABSENCE OF INVESTIGATION / INTERROGATION ON THE DECEASED BY

D9 PROJECT TEAM FROM 13 MAY 2013 TO 19 MAY 2013

(i) The Commission found that there was no investigation / interrogation carried

out by the D9 Project Team on the deceased from the date of his admission

into the D9 Lock-up up to the afternoon of 19 May 2013. It remained

unexplained by the Project Team and the officer in-charged of D9 (SP27) on

why no investigation / interrogation taken place on the deceased during that

period.



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(ii) The Commission is of the view that with the short period of remand left, (in

this case the deceased’s remand was due to expire in two days time) has

placed the Project Team in the ‘last ditch’ situation in obtaining information

from the deceased, resulted to the use of force on the deceased.

(iii) In the absence of explaination of the D9’s officers and the Director of CID of

Bukit Aman, it remained unresolved whether the investigation / interrogation

on the deceased has no priority or the Project Team was occupied with heavy

workload.

(iv) The Commission observed that a subpoena had been issued and delivered to

the Director of CID Bukit Aman in order to get clarification over the workload

faced by the Criminal Investigation Department. However, it is disappointed

that notwithstanding the two sessions allotted, the Director has failed to

appear at the hearings.

10. DELAYED IN GIVING ACCESS TO FAMILY MEMBERS ON THE DECEASED

DURING DETENTION PERIOD

(i) The Commission found there was a delay in access to the deceased by family

members (SP2 and SP16) which was only given on 19 May 2013, that was 8

days after the deceased was placed under remand commencing from 12 May

2013 to 15 May 2013 (first remand) and further extended from 16 May 2013 to

21 May 2013 (second remand).

(ii) It is observed that both the Officer in-charge of D9 IPK Kuala Lumpur (SP27)

and D9 Officer in-charge of the Project Team (SP44) had no valid justification

in denying early access on the deceased by his family members, in particular

the deceased wife (SP2).

(iii) Unreasonable delay in giving an access of family member to the detainee or

detainee to his family member contravenes the provision of section 28A (2) of

the Criminal Procedure Code and Para 8.2.1 of the IGSO Part A '118'.



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11. EXCESSIVE OF DETAINEES IN D9 LOCK-UP

(i) The Commission found that not less than 4 detainees have been placed in D9

lock-up since 13 May 2013 until 20 May 2013. In specific, on 14 May 2013

there were 16 detainees placed in the D9 Lock-up of IPK Kuala Lumpur as

recorded in the D9 Lock-up Station Diary (Exhibit P31/32).

(ii) In placing of more than 4 detainees at one time in D9 Lock-up has infringed

Article 2 of Hukuman Tetap Ketua Polis Daerah Campbell Kuala Lumpur Bil.

1/89 and D9 Lock-up Gazette which clearly stated the maximum number of

detainee allowed in the D9 Lock-up shall only be four (4).

(iii) It is observed by the Commission that on the 21 May 2013, the fatal day, only

the deceased remained in D9 Lock-up.

12. LACK OF KNOWLEDGE ON SOP AMONGST THE D9 PERSONNELS

(i) Based on testimonies of D9 personnels and admission at the hearing, it is

observed that certain officers and members of D9 neither had no knowledge

of nor had seen the contents of IGSO Part A ‘118’ and Hukuman Tetap Ketua

Polis Daerah Campbell Kuala Lumpur Bil. 1/89 governing the management

and administration of D9 Lock-up which are still in force.

(ii) As a result, detainees have been handled based on the D9 own practices

ignoring the requirements and existence of SOPs.

13. LACK OF BLOOD SAMPLING FOR DNA ANALYSIS

(i) The Commission found although two staplers (Exhibit P54 pic. no. 8 and 9)

from the D9’s office (based on the two staples found on the deceased’s left

and right ears) were seized by the investigating officers (SP53 and SP54),

however no DNA samples that obtained from any of the D9 personnels who

have an access over the deceased for purposes of DNA analysis and

comparison.



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(ii) The lack of blood sample has caused the DNA comparison analysis unable to

be done in order to ascertain the identity of "Male 1" found on the stapler

(“K5(a)”) by an expert from the Malaysia Chemistry Department to resolve the

issue whether the Male 1 identity belongs to any of D9 personnels.

EAIC RECOMMENDATIONS

Based on the findings as stated above, the Commission recommends the following:

1. DISCIPLINARY ACTION BY THE DISCIPLINARY AUTHORITY OF PDRM

AGAINST:

(i) The Deputy Head of the CID (Intelligence and Operation) of IPK Kuala

Lumpur (SP60), Officer in-charge of D9 (SP27), Second Officer in-charge of

D9 (SP39) and D9 Officer (SP44) for jointly or abetting in fabricating false

information / misrepresentation of the entries in D9 Lock-up Station Diary

(Exhibit P32) in relation to the fact surrounding the death of the deceased.

(ii) The Deputy Head of the CID (Intelligence and Operation) IPK Kuala Lumpur

(SP60) and the two members of the Project Team (SP41 and SP43) for

instructing the lock-up sentry personnel SP24 to tamper times in entries 3149

and 3150 of the the D9 Lock-up Station Diary (Exhibit P32).

(iii) The Deputy Head of the CID (Intelligence and Operation) IPK Kuala Lumpur

(SP60) and Sergent Major Ali of D9 for jointly or abetting in making false

police report (Exhibit P38) by using SP25 as the complainant of the report

pertaining to the death of the deceased.

(iv) The Officer in-charge of D9 (SP27) and the Project Team Leader (SP44) for

an abuse of power or position in instructing the re-arrest of the deceased on

21 May 2013 without any valid justification (Exhibit P50).

(v) The Officer in-charge of D9 (SP27) and Project Team Leader (SP44) for

unreasonable delay in giving an access of family member to the deceased



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which has violated the provision of section 28A of the Criminal Procedure

Code.

(vi) The Officer in-charge of D9 (SP27) and Project Team Leader (SP44) for the

failure to supervise the members of the Project Team (SP41,SP42 and SP43)

in conducting prompt investigation / interrogation on the deceased which was

only carried out on the seventh day (19 May 2013) of the remand.

(vii) The D9 Lock-up sentry personnel (SP24) for leaving the lock-up unattended

between 2.30 p.m to 3.00 p.m on 21 May 2013.

(viii) The D9 Lock-up sentry personnel (SP25) for failure to station himself at the

lock-up between 3.00 p.m to 4.30 p.m on 21 May 2013.

2. ADHERENCE / REVIEW OF SOPs / STANDING ORDERS

PDRM should review the existing supervising and monitoring mechanisms in

relation to:

(i) Compliance of the IGSO / SOPs

PDRM to ensure the understanding and strict compliance of the IGSO

including Part A "118" and Standard Operating Procedures (SOPs) by all

members of the police force.

(ii) Compliance of Lock-Up Management SOP

PDRM to make compulsory that every officers in-charge of the police lock-up

and lock-up personnel including any member of the police who has an access

over the detainee to adhere to the Police’s Lock-up Management SOP /

Standing Orders issued by Bukit Aman on 21 April 2014 and the Lock-up

Rules 1953, including on the limit of the number of detainee that can be

placed in a cell or lock-up and prohibition of use of force on detainee.



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(iii)Use of Pocket Book / Diary and Its Supervision / Monitoring

PDRM to review and provide effective supervision / monitoring on the use of

pocket book / diary and its up-dating including its safekeeping. Any loss or

damage of the same should be reported promptly to the immediate officer in-

charge of the said police personnel.

3. REFRESHER COURSE

PDRM to carry out continuous training (i.e refresher course and refresher

training), including on job training and to issue constant reminders on all police

personnels involved in law enforcement activities on the requirement and

compliance of the SOPs / Standing Orders.

4. WHISTLEBLOWER / COMPLAINT MECHANISM

PDRM should review the existing procedure or mechanism to allow its personnel

to file or to lodge a complaint or report of any illegal instructions / orders /

directions by the superior officer that against the SOPs / Standing Orders or laws.

Investigation on the complaint shall be carried out by an independent special

committee within the PDRM.

5. INVESTIGATION ON CUSTODIAL DEATH

It is recommended that all cases involving death in custody shall be investigated

by an independent and experienced investigating officer who is holding an office

not from the same state police contingent where the death occured. This is to

ensure transparency and credibility of the investigation.

6. COMPLIANCE OF RULE 10 OF PRISON REGULATION 1953 AND PARA 24

OF IGSO A '118'

PDRM to adhere strictly on the compliance of Rule 10 of the Prison Regulation

1953 and the para 24 of IGSO Part A '118' requiring detainee to undergo medical

examination by a medical officer upon his/her entry into the lock-up.



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7. ROLES OF THE MINISTRY OF HEALTH (MOH)

MOH should review and amend its existing SOP in relation to the following:

(i) Coordination Between MOH and Enforcement Agencies Particularly

PDRM

MOH to coordinate with enforcement agencies especially the PDRM on the

proper implementation of Rule 10 and Para 24 of the IGSO Part A '118'

requiring detainee to undergo medical examination by a medical officer upon

his/her entry into the agencies’ lock-up. The implementation shall take into

consideration the safety of all parties including the medical staffs.

(ii) MOH’s Procedure / Method of Examination

MOH to provide a comprehensive guidelines and procedures including

method of examination involving custodial deaths for medical officers /

assistants / personnels guidance with emphasizing on body inspection, photo

/ image recording, examination kit and the preservation of the evidence at the

scene / lock-up (not contaminated or tampered).

(iii) Guideline on the Preparation of Post-Mortem Report

MOH to formulate a comprehensive guideline by taking into considerations of

the international standards on preparation of post-mortem report by

pathologist, and in particular the cause of the death must be stated precisely.

8. GUIDELINES FOR THE MAGISTRATE / CORONER

The Chief Registrar of the Federal Court is urged to provide comprehensive

guideline to be used by Magistrate / Coroner on examination of the deceased

body involving custodial death.



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9. CONSIDERATION OF CRIMINAL CHARGE

The Commission recommends that the Attorney General Chambers (AGC) to

consider criminal charge to be filed against the police personnels identified in this

report for committing an offence of fabricating false information /

misrepresentations and tampering of the D9 Lock-up Station Diary (Exhibit P32).

10. AMENDMENT OF PENAL CODE (ACT 574) AND EVIDENCE ACT 1950

The Commission recommends that the AGC and Ministry of Home Affairs (KDN)

to amend the Penal Code (Act 574) and Evidence Act 1950 to provide for a

provision of presumption that placed the burden of proof on the enforcement

agencies personnel who has a custody of the detainee to be liable for any injury

or death occured on detainee while in custody, until proven otherwise.

The recurrence of deaths in custody and the use of force against detainee is A

SERIOUS VIOLATION OF LAW AND INTEGRITY AND DEEPLY REGRETTED.

EAIC urges all findings and recommendations in the report to be considered and

serious actions to be taken by all parties, particularly the PDRM in order to prevent

the recurrence of such cases in future.

Members of the public may log on to www.eaic.gov.my to download the full report of

the investigation.

-ENDS-

DATUK YAACOB BIN HAJI MD. SAM Chairman

Enforcement Agency Integrity Commission (EAIC)

28 April 2016

eaic’s investigation findings on the death...

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