BY V. ANBALAGAN, ASSISTANT NEWS EDITOR
Published: 6 September 2014
The Court of Appeal judges hope that there will be closure for Teoh Beng Hock’s family. – The Malaysian Insider file pic, September 6, 2014.
In a unanimous landmark judgment delivered in the Teoh Beng Hock case yesterday, the Court of Appeal ruled that only a lower standard of proof, which is the balance of probabilities, is required in an inquest to find out the cause of death.
Datuk Mah Weng Kwai, who delivered the main judgment, said the “beyond reasonable doubt” test which is a higher burden of proof, was only applicable in criminal trials and not in inquests.
However, Mah and the chairman of the three-man bench, Datuk Mohamad Arif Md Yusof, said a coroner could deliver an open verdict, as was in Teoh’s case.
Judge Datuk Hamid Sultan Abu Backer dissented, saying there was no provision in the Criminal Procedure Code for a coroner to come to such a verdict.
However, based on the overwhelming evidence during the inquest in Teoh’s case, the three-man bench said the coroner was not correct to follow the “beyond reasonable doubt” test in the inquiry.
The court substituted the open verdict to that of death caused by person or persons unknown.
The ruling has clarified the legal position in Malaysia and now provides guidance to Sessions Court judges who sit as coroners.
Below are excerpts of the judgments:
Datuk Mah Weng Kwai
Datuk Mah Weng Kwai says ‘beyond reasonable doubt’ is only applicable for criminal trials and not in an inquest. – September 6, 2014.
Section 328 of the Criminal Procedure Code (CPC) speaks of opinion. Although that section is silent on the standard of proof, it cannot be said that there is no standard to be applied.
I am of the view that all that is required of the magistrate is to arrive at an opinion applying the balance of probabilities (civil) standard test on an objective basis.
It must be understood that being criminally concerned in the death of a deceased does not necessarily mean being criminally liable.
Criminally concerned or reasonable suspicion imports a lower threshold of proof than criminal liability.
There is no provision in the CPC for an open verdict to be made.
However, I am of the view that the return of open verdict has been part of the established jurisprudence under Common Law. Accordingly, an open verdict is a lawful verdict.
Teoh Beng Hock died while under the custody of the MACC (Malaysian Anti-Corruption Commission).
Thus, it was incumbent on the magistrate to have treated Teoh’s death as custodial death when arriving at an opinion.
This verdict (of misadventure) can be completely ruled out simply because there was no evidence whatsoever to suggest that Teoh had accidentally fallen out of the window on the 14th floor of the MACC office (in Plaza Masalam, Shah Alam).
I will also rule out the verdict of suicide for the following reasons:
(The judge then outlined nine reasons, chief among them was that Teoh was a young man of 30 years, gainfully employed, about to be married and to be a father within a matter of months).
Thus, without any findings of culpability on the part of MACC officers, I do not think Teoh would have been driven into a state of mind to want to kill himself to end everything.
As all evidence points towards homicide, the correct verdict is death caused by a person or persons unknown.
From the evidence of three pathologists, it can be concluded that some force/trauma must have been applied to the neck of Teoh, such as a stranglehold which could cause an interruption to the supply of oxygen to the brain.
As a result, he lost some consciousness and thereby became disorientated.
The bruise mark on the neck was categorically stated by (Thai pathologist) Dr Porntip Rojanasunam to be a pre-fall injury.
I am of the view that Teoh fell out of the window of the 14th floor when he was alive and was either fully unconscious or semi-conscious at the least.
Every effort must be made to track down the perpetrator/s in a thorough police investigation.
No one should be spared so that there will be no cover-up. And with that hopefully, there will be some closure of the case for the family of Teoh.
Datuk Hamid Sultan Abu Backer
Datuk Hamid Sultan Abu Backer says there is no provision for a coroner to deliver an open verdict. – September 6, 2014.
There is no provision in the Criminal Procedure Code (CPC) for a magistrate to act as coroner to deliver an open verdict.
In addition, the CPC does not require the magistrate to place a high threshold standard of proof to arrive at a finding.
The magistrate under the CPC has no obligation to state who is criminally liable.
The threshold for the magistrate to determine the issue is low and reasonable suspicion itself is sufficient as opposed to beyond reasonable doubt or balance of probabilities as it relates to who is criminally concerned.
The learned magistrate in the instant case had assumed the role of a coroner and proceeded to deliver an open verdict, relying much on the erroneous Practice Direction No 1 of 2007 relating to guidelines on inquest which is inconsistent with the provisions of the CPC.
When the statute (CPC) is clear in its application, common law principles cannot be imported.
The failure to follow the relevant provisions of the law has resulted in erroneous results which have caused the need to appoint a Royal Commission and have also attracted undue condemnation by the public of our criminal justice system.
This has led to a miscarriage of justice to the family members of the deceased.
Dictionary meaning defines “open verdict” to mean verdict of a coroner’s jury affirming the occurence of suspicious death but not specifying the cause.
However, Section 328 (of the CPC) specifically requires the cause of death or apparent cause of death to be identified and entrusted, adding responsibility on the magistrate in contrast to coroners or the jury.
In England, the position of the coroner or jury is to find who is criminally liable and a high threshold is placed.
In Malaysia, the role of a magistrate is to find who is criminally concerned and the CPC caters for a low threshold.
MACC cannot disclaim liability when its officers had taken the deceased to custody which resulted in his death.
In ordinary circumstances, if the oppressors had been lay persons, they would have been charged with murder with common intention. That was not done, which resulted in a public outcry.
In my view, such failure breached the rule of law and breached several provisions of the Federal Constitution.
The magistrate on the available evidence ought to have identified the person who is criminally concerned but it was not done in this case.
Datuk Mohamed Arif Md Yusof
The magistrate, sitting as a coroner, is required to only inquire “when, where, how and after what manner the deceased came to his death and whether any person is criminally concerned in the cause of the death”.
There is no statutory requirement for the magistrate/coroner to determine the criminal or civil liability of any person.
Whatever may be the legal rules obtained in England and Wales, ultimately we have to be governed by our own statutory provisions.
Under our law, the magistrate is merely required to form an opinion as to the cause of death.
I am also in agreement with my learned brothers that the proper standard of proof in death inquiries should be on the balance of probabilities.
The criminal standard of proof beyond reasonable doubt can come later when a charge is preferred and a criminial trial proceeds.
I share a different view from that expressed by my learned brother (Datuk Hamid Sultan Abu Backer) that there cannot be an open verdict entered in our law.
The open verdict is part of the established jurisprudence here and other parts of the Commonwealth.
I do not believe it should be removed from our law without a compelling justification.
The learned magistrate has placed insufficient emphasis on the strong circumstantial evidence by inordinately insisting on direct substantive proof.
The strong, compelling evidence of the pre-fall injuries point to some unlawful act/assault by a person or persons unknown on the 14th floor of Plaza Masalam.
The failure by the magistrate and the High Court judge to properly evaluate the conduct of the MACC officers and the evidence of “cover up” led to a serious miscarriage of justice. – September 6, 2014.
– See more at: http://www.themalaysianinsider.com/malaysia/article/reasonable-suspicion-is-enough-to-start-investigation-say-judges-in-teoh-be#sthash.W9eozb9J.dpuf