The Kuala Lumpur High Court today dismissed an application to compel the University Malaya Medical Centre (UMMC) to conduct a post-mortem on Ho Kwai See, who died on Aug 4 while being held in Sungai Buloh prison on a drug-related charge.

Judicial commissioner Wan Afrah Wan Ibrahim said the plaintiff had failed to satisfy the requirements under the Special Relief Act 1950 for the court to order UUMC to perform the post-mortem.

Kwai See's brother, Kooi Sang, had applied for the order as he was not satisfied with the findings of the first post-mortem done at Kuala Lumpur Hospital.

The report said Kwai See, a 28-year-old coconut trader, had died of a 'perforated ulcer', but the family suspected he had been assaulted as there were bruises on his body.

"While I sympathise with the family, the plaintiff fell short of satisfying two provisos of the Act. Therefore, I have no choice but to dismiss the application," Wan Afrah said in delivering her decision.

Section 44 and 45 of the Special Relief Act gives power to the court to order public servants and others to do certain specific acts, subjected to certain conditions.

The disputed condition requires that any application made for such orders should be done by a person whose property, franchise or personal right would be injured by the forebearing or doing of the act.

Hearing for damages

Yesterday, Wan Afrah deferred her decision in order for the point of law to be further argued by the lawyers.

Lawyers for the plaintiff said Kooi Sang (photo) was the right person to bring the application as the next-of-kin of the deceased. Counsel M Manoharan also said it was the family's personal right to find out the cause of death of one of its members.

However defence counsel PS Ranjan disagreed. He said the family only had the right to bury or cremate the body, but not the right to seek the cause of death. The latter right was described as belonging to the police or magistrate.

Although dismissing the application for an immediate post-mortem, Wan Afrah said this morning that other claims for damages filed by the plaintiff would be heard on Nov 6.

Kooi Sang had also filed for compensation of RM500,000 for each day that the post-mortem was delayed and RM1 million for the "pain and suffering" suffered by the family.

Deep disappointment

Speaking to reporters later, Kooi Sang said he was deeply disappointment with the court's decision.

"I am still not satisfied because I believe my brother was beaten to death. My brother could not have died of illness because he was an active and healthy person. The case dragged on for so many days...and now this," he said.

He said the family could no longer afford to pursue the case.

"My brother's body will be moved to the crematorium at Kampung Tunku, Petaling Jaya. There will be prayers there tonight and he will be cremated tomorrow morning."

His lawyers Manoharan and P Uthayakumar expressed "surprise" and "sadness" over the verdict. They said an appeal would be filed with the Court of Appeal tomorrow.

"We accept and respect the decision of this court but we will file an appeal as this is a matter of serious public importance. We want the higher court to make a proper judgement on this. This could affect all future (custodial death) cases," said Uthayakumar..

"The family has suffered agony, pain and sorrow. The authorities are iron-fisted towards the small man...even in death. They have not given us even the first post-mortem report."

Uthayakumar said that, while a successful appeal under section 335 of the Criminal Procedure Code could still allow a post-mortem to be conducted on an exhumed body, this option was not open to the family for financial reasons.

"The family cannot afford to pay for a burial plot, so they have no choice but to cremate the body," he said.

In a related development, supporters and friends of the family have planned to march with the body tomorrow, from the UMMC to the crematorium.

'Contractually bound'

Meanwhile, Manoharan (photo) said the decision was unlikely to affect the family's claims for damages.

"The family is still entitled to damages for the delay suffered. We will also be going for other declarations as well since the doctor was contractually bound to perform the post-mortem," he said.

UMMC forensic pathologist K Nadesan had earlier agreed to perform the post-mortem on Kwai See, but declined later following a dispute with the family's lawyers.

UMMC asked the family to present a magistrate's order or a police permit for the second post-mortem to be carried out. The family then applied to the High Court to overrule the hospital's decision.