The family of dead detainee Ho Kwai See had their hopes dashed yet again when the Kuala Lumpur High Court deferred to tomorrow its decision on whether a second post-mortem should be done on the deceased, whom his family suspects was assaulted in custody.

Earlier, Judicial Comissioner Wan Afrah Ibrahim had said a decision would be made this afternoon. Later, however, she called the lawyers into chambers and asked them to present their arguments on another point of law.

The family wants the court to order the Universiti Malaya Medical Centre (UUMC) to conduct the second post-mortem.

Kwai See, a 28-year-old coconut trader, died in the Sungai Buloh prison on Aug 4, after he was arrested for a drug-related offence about a week earlier.

The disputed provision that led to the deferment was section 44(1)(a) of the Special Relief Act.

The Act gives the right to the court to order public servants and others to do certain specific acts, provided that the application is made by a person whose property, franchise or personal right would be injured by the forebearing or doing of the act.

The court was not satisfied on whether the plaintiff, Ho Kooi Sang (photo) - the brother of the deceased - was the right person to make the application.

The hearing began this morning after Wan Afrah determined she had the right to hear the application.

Her decision was in response to a question posed by UUMC's lawyer PS Ranjan last Friday on whether the court had the jurisdiction to hear the matter. He had argued that the proper procedures were not adhered to in filing the application.

Personal right

In his argument, the plaintiff's lawyer M Manoharan said Kooi Sang was the right person to make the application as he is the nearest next-of-kin to the deceased.

Manoharan said his client was the recipient of the burial permit for the deceased and that he was also the administrator of the latter's property.

"The defendant had recognised the plaintiff's right as they had earlier agreed to do the post-mortem and accepted the deposit from him. They have only refused on the pretext that a permit is needed," he said.

The lawyer said Kooi Sang had suffered injury to his personal right as he had a right to know the cause of his brother's death.

"This right is different from legal or proprietary right. As a brother, it is his personal right to know under what circumstances and in what manner his brother had died. This right will be injured if the second post-mortem is not performed," he said.

In addition, Manoharan said the family had suffered injury to their reputation as the deceased had died under uncertain circumstances while in police custody.

He added that UMMC's refusal to conduct the second post-mortem also resulted in an injury to Kooi Sang's property as he is required to pay a fee of RM30 for each day that his brother's body remains in the morgue.

'Intimidatory' acts

In response, Ranjan said the burial permit only gave Kooi Sang the right to bury or cremate the body but did not confer the right on family members to seek the cause of death.

"The right to seek the cause of death belongs to the authorities - that is the police or the magistrate. The burial permit does not give one a right to seek the cause of death of (the deceased)," he said.

Ranjan said even if there was a right by the plaintiff to an independent and impartial post-mortem, this right had been lost by the conduct of the plaintiff and his lawyers in taking "intimidatory" acts against UMMC pathologist K Nadesan.

The defence counsel referred to several letters sent by the plaintiff's lawyers pressing for Nadesan to carry out the post-mortem and the subsequent lodging of five police reports against Nadesan and UMMC director Prof Mohd Amin Jalaluddin over their refusal to allow the post-mortem.

"What if the second post-mortem is carried out and the same cause of death is found as in the first post-mortem? Will the plaintiffs accept this or will they seek a third or fourth post-mortem?" he asked.

Furthermore, Ranjan said there is no law in Malaysia allowing any person to seek redress for an injury to their reputation or feelings of family members of a prisoner by reason of the prisoner's death.

He added that Kooi Sang was not a dependant of the deceased and therefore did not have the right to his property.

Precedent sought

Wan Afrah enquired if the lawyers found any case authorities from Indian common law as no cases touching on this specific provision had been recorded in Malaysian common law. The Special Relief Act was adapted from the Indian legal system.

However, both the plaintiff and defence counsels could not cite any cases during the hearing.

The initial post-mortem conducted by Hospital Kuala Lumpur revealed the cause of death to be from a "perforated ulcer" but his family members suspected foul play after seeing bruises on the body.

The body was then taken to UMMC on Aug 6 for a second post-mortem. The family has since vowed not to remove the body until the second post-mortem is done.