KOTA KINABALU: Five prison personnel charged with murdering an inmate at the central prison in Kepayan here four years ago, were freed by the High Court today.
Judge Datuk Christopher Chin Soo Yin discharged and acquitted Barry Jipmon, 34, Mohd Dzulfikri Mohd Safri, 32, Ab Mutalib @ Talib Abd Rasul, 44, Zerry Maidin, 37, and Shahryll Nazry Wan Sofian, 29.
Another five personnel- Farizan Mokri, 45, Mohd Saiful Saidin, 38, Amran Yasik, 29, Tomy Momoh, 40 and Muhammad Fazi Lakui, 36, were ordered to enter their defence on a reduced charge of causing death by negligence under Section 304A of the Penal Code.
The quintet, however, pleaded guilty and were each fined RM1,500 in default one-month imprisonment.
The amended and reduced charge stated that the five accused persons through rash behaviour and negligence caused the death of Sainal Mukhtar, 36, in cell number 11, at the Gemilang block of Kota Kinabalu Central Prison at Jalan Kepayan between October 2 and 4, 2019.
The 10 were all jointly charged under Section 302 of the Penal Code in 2019.
In his judgement, Chin held that the prosecution has failed to prove the charge of murder beyond reasonable doubt under section 302 of the Penal Code against all the 10 accused.
He said that the victim was suffering from viral meningitis as diagnosed by a medical officer at Kota Belud District Hospital on Sept 30, 2019. As the Kota Belud District Hospital lacks testing facilities, the victim was referred to the neurological Ward of the Queen Elizabeth Hospital 1 (QE 1) for treatment but the diagnosis could not be confirmed and thus the inmate was discharged.
The court added that there was nothing in the discharge note to caution the prison to avoid blows to the victim's head nor on the possible misbehaviour and aggression due to the initial diagnosis.
On Oct 2, 2019, the victim was noted by the investigation officer as disturbing other inmates and did not give full cooperation resulting in the decision to have the victim physically restrained by wearing a straitjacket and placed in the isolation cell.
The victim was beaten and at some stage, the victim took blows to his head.
"The manner the victim was discharged from QE 1 and the procedures in the medical facility in the prison were such that there was 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.
"However, this court cannot be blind to the fact that the victim has died and the blows he received, which were intended to discipline the victim, eventually led to his death.
"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 accused believed they were doing their duties but they were negligent in doing so."
In sentencing Farizan, Saiful, Amran, Tomy, and Fazi, the judge said the court took into account that the maximum penalty of imprisonment under Section 304A of the Penal Code is two years with a fine.
He said that all the accused have effectively been in prison for four years which is double the penalty stipulated by law.
"I conclude by hoping that this case will result in some change in the standard operating procedure both in the General Hospital as well as in the Prisons so that prison wardens can be alerted as to the expected symptoms of any prisoner who is found to be ill," he said and reminded that while the accused perform their jobs, they have to be mindful of their duty to the prisoners under their watch.
Sabah Prosecution director Mohd Taufik Mohd @ Mohd Yusoff, Deputy Public Prosecutors Rustam Sanip and Bryan Francis appeared for the prosecution.
Counsels PJ Perira, Dominic Chew and Ariel Dasan represented Dzulfikri, Farizan, Saiful, Mutalib and Zerry.
Counsels Hairul V Othman and Luke Ressa Balang represented Barry, Amran, Tommy, Shahryll and Fazi.
The prosecution had called 28 witnesses to testify against all the accused.
The five accused paid their fine.