KOTA KINABALU, Oct 26 — Five prison personnel escaped the capital punishment after the High Court here on Thursday freed them from a murder charge while the other five personnel were fined RM1,500 each, in default, one month’s jail for lesser charges of negligent actions which had caused the death of an inmate in 2019.

The 10 prison personnel were previously jointly charged with murdering the prisoner in Gemilang isolation cell number 11 at the Gemilang block of Kota Kinabalu Central Prison at Jalan Kepayan at about 4.20pm between October 2 and 4, four years ago.

In an open court proceeding, Justice Datuk Christopher Chin Soo Yin acquitted and discharged warden Barry Jipmon, 35, Inspector Mohd Dzulfikri Mohd Safri, 32, Sergeant Ab Mutalib @ Talib Ab Rasul, 44, Corporal Zerry Maidin, 37, and warden Shahryll Nazry Wan Sofian, 29, without calling for their defence after he ruled that the prosecution had failed to establish a prima facie case against them.

In his reserved ruling, the judge held that his decision took into account three indisputable facts.

"Firstly, a prisoner has died and his death was not due entirely to natural causes, the post-mortem report certified the cause of death as Sequelae (consequence) of multiple blunt force injuries in a man with encephalitis (inflammation of the active tissues of the brain caused by an infection of an autoimmune response).

"Secondly, that Kepayan Prison which is built and designed for 1,500 inmates currently is home to in excess of 3,000 inmates is thus woefully overcrowded,” he explained.

The judge further ruled that thirdly, any prisoner stepping out of line will be dealt with severely and not surprisingly physically, so that the wardens are always kept on top of any situation.

"This court does not and will not condone any form of unwarranted or unlawful violence committed on a prisoner but also cannot at the same time be blind to the circumstances existing in our over-crowded prisons.

"These circumstances require the hopelessly out-numbered prison wardens to be ever vigilant of any misconduct by any prisoner. They are in prison for the very fact they have been found to have a disregard of the law in some respect,” he said.

The judge further held in his Synopsis of Findings for this case, he found that as the prosecution’s case unfolded his suspicion became increasingly proven that the death of the victim Shainal Muktar was caused by a poor standard operating procedure in the Prisons Department in dealing with ill patients, exacerbated by the slip-shod manner bordering on negligence, in the way victim was treated and discharged by the Neurology Ward of Queen Elizabeth Hospital 1 (QEH1) in Kota Kinabalu.

"This was barely four days prior to his demise. On the way to this hospital, the victim suffered convulsions and was foaming in the mouth while the victim was in Kem Paradise in Kota Belud which is a prison facility for rehabilitation of prisoners, while there the victim suffered bouts of aggression, fainting and other behavioural changes. He was thus brought to Kota Belud Hospital.

"That the victim was suffering from Viral Meningitis as diagnosed by third prosecution witness (PW3) Dr Rahimah Rasali in the Kota Belud Hospital on September 30, 2019, four days before his demise,” he said.

The judge further explained his findings that PW3 Dr Rahimah had referred the victim to QEH 1. PW3 Dr Rahimah’s diagnosis was not confirmed by 27th prosecution witness (PW27) Dr Ananda A/L Arumugam of QEH1.

"However, this diagnosis was finally confirmed by 28th prosecution witness (PW28) Dr Murali A/L Narayansamy in his post-mortem report upon dissection of the victim’s brain,” said the judge.

The court further held that;

(1) That a person inflicted with Viral Meningitis would suffer character behavioural changes such as aggression;

(2) When QEH 1 discharged the victim one day after admission it was without any prescription for any medication or of any report to suggest or alert Kepayan Prison of the ailment of the victim or of his likely behavioural changes or directions of how to manage such a patient;

(3) Owing to the manner in which the victim was discharged from QEH1, no one in Kepayan Prison knew that the victim had Viral Meningitis nor that he would suffer behavioural changes to his character;

(4) Owing to the nature of Viral Meningitis affecting the brain tissue, a subsequent blow or blows to the head of such person has an increased propensity to cause of death;

(5) When the victim started to cause a nuisance owing solely to his altered mental state brought about by his illness, the prison wardens assumed that the victim was misbehaving and critically, they were not aware that such altered character of the victim was due to his altered state of mind brought about by his illness;

(6) Such altered character and nuisance was evidenced by the fact that the victim was put into a straitjacket (baju pasung) as well as being placed in Blok Muhibah an isolation block in Kepayan Prison;

(7) The victim was assaulted by prison wardens to discipline him owing to what they perceived as the victim’s aggression and misbehaviour;

(8) Such assault included blows to the head, likely knocking the victim’s head against the cell wall;

(9) Owing to the blows to the head received by the victim in an act of disciplinary action by the wardens, the victim’s brain condition was severely aggravated resulting in his death, this is confirmed by the cause of death in the post-mortem report of PW28 Dr Murali.

"At the outset, this court finds unaccustomed comfort in accepting the evidence of PW3 Dr Rahimah, the young 25-year-old medical officer at the Kota Belud Hospital’s Emergency Ward. Her evidence was clear, unhesitant and displayed a clear meticulous manner of the discharge of her medical duties. She administered tranquilliser to the aggressive victim to calm him down, took blood and found him to suffer from ‘kuman pada selaput otak’,” said the judge.

Chin held that PW3 Dr Rahimah’s observations and her report were thorough and he found that she is a pleasant credit to her profession and to her alma mater, University Malaysia Sabah.

"PW3 Dr Rahimah suspected the victim to be suffering from Viral Meningitis but as the Kota Belud Hospital lacked testing facilities, she had the victim referred to the Neurology Ward at QEH1 for treatment.

"Her suspicions as to the ailment plaguing the victim was not confirmed by the Neurology Ward of QEH1 but ultimately confirmed by PW28 Dr Murali, the forensic pathologist in his post-mortem report.

"Tragically, a contributory cause of death was the manner which the victim was discharged the day following his admission, there is nothing in the discharge note to caution Kepayan Prison to avoid blows to the victim’s head,” said the judge.

He further explained that critically, there was nothing to alert Kepayan Prison that the victim would be given to behavioural changes such as misbehaviour and aggression.

"Unfortunately, the victim suffered episodes of aggression owing to the illness and condition of his brain.

"On October 2, 2019, two days before he died, the victim was noted by 26th prosecution witness (PW26) an investigation officer of this case as disturbing other inmates, making noise, did not give full cooperation resulting in the decision to have the victim physically restrained by causing him to wear a straitjacket and placed in the isolation cell.

"The prison wardens made up of the ten personnel were not aware of the illness of the victim and sought to discipline the victim after interpreting the victim’s behavioural changes as insubordination. The victim was beaten and at some stage the victim took blows to his head,” he said, adding that the blows to the head by themselves were not fatal but because of the victim’s re-existing full-blown Viral Meningitis it aggravated his brain condition resulted in the victim’s tragic death.

The judge said principally based on the testimony of the witnesses who were doctors, he found that the two ingredients, that the victim died as a result of the injuries inflicted on him by the ten personnel was not proven beyond reasonable doubt.

"There is hence no prima facie case of murder proven against the ten personnel. The manner the victim was discharged from QEH1 and the procedures in medical facility in the prison was such that there is no process or system to alert all the prison wardens that because of his illness, the victim was susceptible to behavioural changes and that although externally or physically, the victim looked normal, he was in fact very ill,” the judge added.

However, Chin said that the court cannot be blind to the fact that the victim had died and the blows he received, which were intended to discipline the victim eventually led to his death as discussed above.

"The 17th prosecution witness (PW17) Prison Officer Danny Roland testified that when he was standing outside cell no. 11, he saw the fourth accused Corporal Mohd Saiful Saidin, 38, punch the victim several times.

"PW17 also testified that, when the 10th accused Corporal Muhammad Fazi Lakui, 36, arrived at cell no.11 and he also immediately punched the victim on his body for several times. Of all the prosecution witnesses from the prison, I found PW17 to be the most reliable. I recorded in my notes that he answered spontaneously, seems honest, deliberate, believable.

"The 25th prosecution witness (PW25) Arsit Indanan, a detainee, who was locked in a cell directly opposite cell no. 11 where the victim was held.

"PW25 is himself charged with the murder of a Grab driver. Just before he gave evidence before me I was alerted and cautioned by the court staff of his erratic and unstable behaviour during his murder trial in a neighbouring courtroom.

"However, I recorded that he was somewhat hesitant and paused before answering some questions. He clearly understood and comprehended the proceedings and I find his deliberate answers to be consistent even during cross examination,” said the judge, adding that despite PW25 Arsit’s somewhat sinister demeanour, he believed that PW25 Arsit was speaking the truth before him.

The judge explained that while in the isolation cell, Arsit testified that he witnessed some of the ten personnel assault the victim and his identification was consistent with the persons he identified at an identification parade.

"PW25 Arsit saw the following assault the victim namely the third accused Sergeant Farizan Mokri, 44, fourth accused Mohd Saiful, fifth accused Corporal Amran Yasik, 29, and eighth accused Corporal Tomy Momoh, 40.

"While I can understand the need of prison wardens to maintain discipline in the hopelessly overcrowded Kepayan Prison, these five accused persons identified by PW17 Danny and PW25 Arsit went too far. While they had no intention to kill, they were assaulting a person wearing a straitjacket with no means to ward off the blows or defend himself.

"The assaults under these circumstances I find to be excessive. These five accused persons believed they were doing their duty but they were negligent in so doing, their negligent sense of balance and use of force resulted in the eventual death of the victim although this was never their intention.

"The five accused persons were unaware of the pre-existing or latent illness of the victim’s brain where a further blow may be fatal to the victim, which in this case it tragically was,” said the judge.

The court ruled that for the reasons discussed above and having considered all the evidence adduced before the court, the judge found that the prosecution had failed to prove the charge of murder beyond reasonable doubt under Section 302 of the Penal Code against all the ten personnel.

However, the judge found that the prosecution had established a prima facie case under Section 304A of the Penal Code against the following five accused persons namely Farizan, Mohd Saiful, Amran, Tomy and Muhammad Fazi, who were called to enter upon their defence upon such reduced charge under Section 304A of the Penal Code, an offence of causing death by negligence.

The indictment provides for a jail term of up to two years or a fine or both, upon conviction.

However, Farizan, Mohd Saiful, Amran, Tomy and Muhammad Fazi had pleaded guilty to the lesser charges on Thursday.

The five accused persons, who were previously Anugerah Perkhidmatan Cemerlang recipients, had admitted to their negligent actions which had caused death to the victim Shainal, 40.

The offence took place in Gemilang isolation cell number 11 at the Gemilang block of Kota Kinabalu Central Prison at about 4.20pm between October 2 and 4, 2019.

In passing the sentence, the court took into account that the maximum penalty of imprisonment under the said Section 304A of the said Code and all five accused persons had effectively been imprisoned for four years which was double the penalty stipulated by law.

"In fact, it is this very extended period of remand that cause me to force the early hearing of this trial even though my time in the judiciary is limited.

"Under this circumstances and taking into account all the usual concerns in relation to sentencing such as public interest, severity of the offence, and generally the circumstances of this case, and taking into particular the fact that these five accused persons have been in jail for four years already although they are presumed innocent until otherwise ordered by this court.

"I find the five accused persons had been punished by imprisonment already more than that prescribed by law. I agree with the prosecution that in this case a good behaviour bond is not appropriate especially since the offence has resulted in a death,” explained the judge.

Chin further said that in relation to a fine which the court entitled to impose, he again took into account the punishment that the accused persons had already undergone prior to this trial.

"However, the accused persons are reminded that while they do their jobs they have to be mindful of their duty to the prisoners under their watch.

"Accordingly, I impose RM1,500 fine each, in default, one month’s jail. I conclude by hoping that this case will result in some change of Standard Operation Procedures both in a general hospital as well as in a prison so that prison wardens can be alerted as to the expected symptoms of any prisoner is found to be ill,” said the judge.

The prosecution had called 28 witnesses to testify in this trial.

The ten prison personnel were represented by lead counsel PJ Perira and co-counsel Hairul V. Othman, Dominic Chew, Ariel Dasan and Luke Ressa Balang.

It was learnt that the five accused persons paid their fines. — Borneo Post