SUSHILA RANI A/P RAMASAMY v Kerajaan Malaysia (J-01(NCvC)(W)-163-03/2023)

3.KETUA PENGARAH JABATAN PENJARA KLUANG, JOHOR RESPONDEN-RESPONDEN ``````````````````````````````````````` [Di Dalam Perkara Mahkamah Tinggi Di Johor Bahru Dalam Negeri Johor Darul Takzim Guaman No. JA-21NCVC-14-05/2018 Antara Sushila Rani a/p Ramasamy (Nenek yang sah mendakwa sebagai tanggungan Kepada Sasikumar a/l Selvam, Simati)

1.Kerajaan Malaysia 2.Menteri Dalam Negeri Malaysia 3.Ketuan Pengarah Jabatan Penjara Kluang, Kajang Defendan-Defendan] ```````````````````````````````````````````` 06/01/2026 11:14:40 J-01(NCvC)(W)-163-03/2023 Kand. 65 Page 2 of 13 CORAM RAVINTHRAN A/L N. PARAMAGURU, JCA CHOO KAH SING, JCA AHMAD KAMAL BIN MD. SHAHID, JCA Page 3 of 13 GROUNDS OF JUDGMENT (Decision delivered on: 24.9.2025) Introduction [1] This is an appeal against the decision of the High Court dated 28.2.2023 dismissing the appellant’s suit against all the respondents. For ease of reference, the parties shall hereafter be referred to as they were at the court below. [2] The plaintiff, the grandmother of the deceased, Sasikumar a/l Selvam (hereafter “the deceased”), brought a dependency claim against the defendants. The plaintiff’s dependency claim stemmed from the fact that the deceased was found dead in the Kluang prison while in the custody of the 3rd defendant, the Malaysian prison authority, on 22.5.2015. The plaintiff mounted her cause of action on tort of negligence against the 3rd defendant, and on vicarious liability against 1st and 2nd defendants. [3] Essential, the High Court found, after a full trial, that the 3rd defendant was not negligent or liable for the death of the deceased while he was under its custody and control. [4] After having considered the submissions, both oral and in writing, of the parties’ respective counsels, and also after having scrutinized the appeal records, below are the reasons for the decision of this Court. Page 4 of 13 The salient facts [5] The deceased was convicted for the offence of gang-robbery and sentenced to 10 years’ imprisonment. On 13.6.2013, the deceased was placed under the custody and control of the 3rd defendant in the Kluang prison. On 20.5.2015, the deceased was found in possession of illicit drugs in prison. Whist pending investigation, the deceased was ordered to be placed in an isolated cell (Cell 87) for seven days effective from 20.5.2015 to 26.5.2015. [6] On 22.5.2015, approximately 10.25 p.m., the deceased was found hanging (by the neck) on the iron grill of the window in Cell 87 by Sergent Najib B. Selamat (SD5). SD5 called the deceased, but there was no response. SD5 immediately alerted the officer in-charge, Inspector Joshua B Jimit (SD7). SD7 instructed SD5 to break a sealed packet which contained a knife and a key to Cell 87 to enter the cell. SD5 did according to the instruction given, and brought down the deceased by cutting loose a pair of trousers which was used to hang around the deceased’s neck. The deceased was immediately sent to the Emergency Unit, Hospital Kluang, around 11.47 p.m., and the deceased was pronounced dead by the doctor who attended to the deceased. [7] An autopsy was performed on the deceased on 23.5.2015 by Dr. Mohd Irfan B. Abd Rahman and supervised by Dr. Rohayu Binti Shahar Adnan (SD6) to determine the cause of death of the deceased. The finding of the Post-Mortem Report (No. HEBHK 59-15) concluded that the cause of death was “hanging” (see E6 RR, pdf pg. 202/203). Page 5 of 13 [8] An initial investigation revealed that the deceased’s death was a result of him hanging himself using a pair of inmate long trousers (with a piece of string on it) in the isolated Cell 87. Therefore, the deceased’s death was classified as a case of an inmate who had committed suicide in a lockup cell. [9] An Inquest (or inquiry) was held before a Sessions Court judge Kamarudin B. Kamsun who acted as the coroner in the inquiry proceedings. The inquiry was held over several days. At the conclusion of the inquiry, the coroner found, on the balance of probabilities, that the deceased’s death was “caused by a person or persons unknown.” The coroner then directed the matter to the police for further investigation on the identity of the relevant person(s) be held responsible for the death of the deceased, particularly any inmate(s) or prison warden(s) who were involved in distributing/trafficking prohibited drugs in the prison (see E7 RR, pdf pg. 9/186). Findings of the High Court judge [10] The learned High Court judge, after having examined the testimony of Dr. Rohayu Binti Shahar Adnan (SD6), accepted that it was a fact that the deceased had committed suicide in the custody of the 3rd respondent, and the learned High Court judge did not find any foul play in the deceased’s cause of death (see paragraphs 17 to 19 of the Grounds of Judgment). [11] The learned High Court judge went on to examine whether there was any suicide risk that the deceased could have faced before he Page 6 of 13 committed suicide while in prison. This is to establish the element of “foreseeability”, which if found to be present, there could be a breach of duty by the 3rd respondent for failure to prevent the deceased from taking his own life. The learned High Court judge was satisfied that there was absence of any history or any tendency that the deceased would injure himself or attempt to take his own life during the past two years in prison. The learned High Court judge concluded as follows: “[29] Oleh yang demikian saya berpandangan tindakan membunuh diri oleh simati secara munasabah bukanlah sesuatu yang boleh dijangkakan oleh sesiapa pun termasuklah pihak penjara. Ini dengan sendirinya menolak dakwaan Plaintif bahawa wujudnya kegagalan Defendan-Defendan dalam menjalankan kewajipan berjaga-jaga mereka.” [12] The learned High Court judge held that the appellant had failed to prove that the death of the deceased was caused by a person or persons from the prison authority. The learned High Court judge was satisfied through the testimony of SD5 that it was not possible that someone or anyone could have access to the cell where the deceased was kept at the time of his death (see paragraphs [30] to [37] of the Grounds of Judgment). [13] Insofar as the findings of the inquest were concerned, the learned High Court judge held that the outcome of the inquiry was not binding in the court of law, relying on several established case law of higher authority as his basis of reasoning (see paragraphs [38] to [43] of the Grounds of Judgment). Page 7 of 13 [14] Based on the above findings, the learned High Court judge dismissed the appellant’s claim. Analysis and Finding of this Court [15] The parties’ counsels were in consensus that the respondents owed a duty of care to the deceased whilst the deceased was under the 3rd respondent’s custody and control as an inmate serving his term of sentence in its premises. However, the respondents denied that they were in breach of that duty of care. [16] The respondents’ counsel submitted that there was no breach of duty of care in the present case because the deceased’s death was a suicide case, and that the act of suicide committed by the deceased was unforeseen or unforeseeable. Hence, it would be unreasonable for the court to find that the respondents were in breach of their duty of care owed to the deceased when the act of suicide was not foreseen or foreseeable. [17] On the element of “foreseen” or “foreseeable”, this Court echoes the view of the English authority Orange v Chief Constable of West Yorkshire [2002] QB 347 in that it would be unfair, unjust and unreasonable to impose upon the prison authority, in our present case the 3rd respondent, a general obligation to treat every prisoner as if he or she were a suicide risk. Prisoners committing suicide in prison is not unheard off. However, the suicide risk of a prisoner has to be apparent and known to the authority in order to establish an obligation on the prison authority to avoid or prevent that foreseen or foreseeable risk from happening. Page 8 of 13 [18] In the present case, SD5 testified that he was instructed by SD7 to break the sealed packet which contained keys and a knife to access or open the cell. SD5 did according to what he was instructed; SD5 went into the cell. He said, “saya ikut arahannya dan buka bilik 87 dan memotong seluar dan menurunkan banduan tersebut” (see E.5 RR, Q&A 10, pdf pg. 48/61). SD5 further testified as follows: “Beliau berseorangan di dalam Bilik 87 itu. Beliau di dalam keadaan tergantung. Setelah dipotong seluar yang terikat dilehernya, saya turunkan banduan di lantai. Beliau berada dalam keadaan tidak sedarkan diri. Saya menurunkan beliau seorang diri.” (see E5 RR, Q&A 12, pdf pg. 48/61) [19] SD7 in his witness statement confirmed his instruction given to SD5, and he stated as follows: “Saya mengarahkan Kpl 13127 Najib bin Selamat untuk pecahkan seal packet yang mengandungi (1) kunci bilik dan (1) pisau, untuk buka pintu bilik No 87 dan menyelamatkan banduan dengan memotong seluar yang digunakan untuk menggantung diri.” (see E5 RR, Q&A 4, pdf pg 57/61) [20] This Court observes that the presence of a knife in the packet with the key could suggest an element of foreseeable risk of an inmate attempting to injure or attempting to commit suicide in an isolated cell. This foreseeable risk can be postulated from the fact that the sealed packet contains a knife for emergency use, particularly for the purpose of Page 9 of 13 severing or cutting an object, such as an object used to injure the prisoner, which in the present case was a pair of trousers (with a string in it). [21] The SOP (Standard Operating Procedure) of the sealed packet is found in E6 RR, pdf pg. 136/203. The sealed packet is required to contain

a knife or a pair of scissors, (ii) cell key, and (iii) the sealed packet itself which has a window to see through into the contents. [22] However, this Court is of the view that the foreseeable suicide risk suggested by the presence of the knife in the sealed packet is a general one, and is not specifically directed to the suicide risk of the deceased. The suicide risk has to emanate from the past history of the deceased; only then could a specific foreseeable risk be established. Preventive measures are required to be in place to avoid or prevent the suicide risk from happening. In the present case, the 3rd respondent was not aware that the deceased had any such suicide risk based on his past history. Hence, the 3rd respondent could not be imposed a burden or obligation to avoid a risk which was not foreseen or foreseeable, specifically in reference to the deceased, to avoid or prevent such suicide risk (of the deceased) from happening. On this score, this Court agrees with the finding of the learned High Court judge that the respondents did not breach their duty of care owed to the deceased or the appellant. [23] This Court observes that Dr. Rohayu Binti Shahar Adnan (SD6) had testified that hesitation marks were found on the deceased’s body, which indicates that the deceased had (at some point in time) attempted to inflict injury to himself (see E4 RR, pdf pg. 138/185). SD6 also agreed that there was a need to pay attention to the deceased since he had a self-inflict injury behavior. This Court is of the opinion that this evidence is Page 10 of 13 insufficient to impose an obligation on the 3rd respondent to prevent or avoid the deceased from committing suicide based on the element of “foreseen” or “foreseeable” suicide risk. The hesitation marks or self-inflicted injury did not happen in the custody of the 3rd respondent. No records were found that the deceased had attempted to commit self-injury while in prison. For that reason, the element of “foreseen” or “foreseeable” suicide risk could not be established to find the 3rd defendant had breached its duty of care owed to the deceased. [24] The appellant’s counsel raised the issue that the 3rd respondent failed to provide sufficient protection for the deceased although the authority knew that the deceased’s life could be in danger after he had revealed information about drug trafficking activity in the prison. We find this submission to be unsustainable. First, the High Court judge has found that the ultimate cause of death is “hanging” vis-à-vis the deceased was alone in the cell and had committed suicide. Therefore, the deceased’s death was not caused by an external element that could threaten the life of the deceased. Second, the High Court judge has ruled out the possibility that someone had gained access to the deceased’s cell on that fateful night. Lastly, placing the deceased on an isolated cell and separating him from other inmates to prevent others from access to him was to secure his safety from harm from any third party. This Court finds that the learned High Court judge did not commit any error in his findings. [25] With regard to the coroner’s report, this Court agrees with the finding of the learned High Court judge that the upshot of the inquest could not bind the court. Although the coroner’s reports and notes of proceedings were admitted as part of the trial documents, the admission of those documents could not be construed as the facts stated in them were Page 11 of 13 proven. At best, they could assist the court in making its own findings for the case before it. The coroner’s report could only serve as a basis for further investigation. [26] The pivotal issue at the court below was not who took the deceased’s life. The issue was whether the respondents were liable for the death of the deceased in the realm of the law of tort of negligence. The coroner’s finding, i.e., the cause of death was “caused by a person or persons unknown”, could not be construed as if the appellant’s case has been proven on the balance of probabilities in that the respondents are liable under the law of tort of negligence. The court was entitled to revisit the evidence and testimonies of the witnesses and make its own informed findings and decision because the evidence and testimonies would have been tested and scrutinized properly through the exercise of cross-examination before the court. [27] The appellant’s counsel complained that no doctor or medical personnel was present at the prison on that fateful night. On this complaint, this Court finds the testimony of Mohd Alif B Izzuddin Rusdi (SD4), (Assistant Medical Officer - Penolong Pegawai Pembantu Perubatan), is compelling. In re-examination, SD4 explained that even if he was present at the prison to attend to the deceased, he could not be sure he could resuscitate the deceased because based on the condition of the deceased, a person has only a window of 4 to 5 minutes’ survival chance, and thereafter, the person would suffer irreversible brain death which was considered biological death. SD4 also said that even if CPR (Cardiopulmonary Resuscitation) was administered to the person, that could not revive (or save) the person (see E4 RR, pdf pg. 109-110/185). Page 12 of 13 [28] This Court has considered other issues raised, and is of the view they are not material in nature and could not affect the main findings above. On the whole, this Court agrees with the decision of the learned High Court judge. Conclusion [29] For the above reasons, and among others, this Court finds the High Court judge’s reasoning and finding did not fall into error, either in law or fact, nor was the decision plainly wrong. Hence, this Court finds the appellant’s appeal has no merits. As such, the appellant’s appeal is hereby dismissed with no order as to costs. -sgd- (CHOO KAH SING) JUDGE COURT OF APPEAL, PUTRAJAYA Page 13 of 13 Counsel(s) for the appellant: GK Ganesan (Karthigesan Shanmugam, Lheela, Thamayanthy Rajasekaran, Miraj Kaur Gill and Gheeta with him) Messrs Karthig Shan Counsel(s) for the respondents: Zahilah Binti Mohammad Yusof, SFC Suhana Binti Sabil, SFC