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Friday September 5, 2014 MYT 11:15:00 AM
Friday September 5, 2014 MYT 8:20:54 PM
by m. mageswari
PUTRAJAYA: In a landmark judgment, the Court of Appeal has set aside the coroner's open verdict in the inquest of Teoh Beng Hock.
In a unanimous decision on Friday, the panel held that Teoh's death was caused by multiple injuries from a fall from the 14th floor of Plaza Masalam as a result of, or which was accelerated by an unlawful act or acts of persons unknown, inclusive of Malaysian Anti-Corruption Commission (MACC) officers who were involved in his arrest and investigation.
Court of Appeal judge Justice Mohamad Ariff Md Yusof, who chaired a three-man panel, allowed the appeal by Teoh's brother, Teoh Meng Kee, against the decision of the Shah Alam High Court which had on Dec 1, 2011 dismissed their application for a revision into Teoh's inquest and upheld a coroner's open verdict.
Justice Mohamad Ariff said the interest of the family members and the public requires that the case be further investigated by the police.
"This further investigation should include a more thorough examination of the alleged suicide note by a handwriting expert with a clear expertise in Chinese handwriting and with sufficient copies of the deceased's original sample handwriting be made available," he said.
Justice Mah Weng Kwai, reading one of the three judgments, said that the open verdict in the inquest was incorrect, ruling out that the political aide had committed suicide.
He said that the correct and proper verdict to be returned in the inquiry is one of death caused by person or persons unknown.
"Every effort must be made to track down the perpetrator or perpetrators in a thorough police investigation. No one should be spared in the investigations so that there will be no allegations of a cover up," Justice Mah said.
He added that it was incumbent on the magistrate in the inquiry of death to have treated Teoh's death as a "custodial death".
Court of Appeal judge Justice Dr Hamid Sultan Abu Backer, who read out a separate judgment, directed the Inspector-General of Police and Attorney General's Chambers to commence investigation under the Criminal Procedure Code (CPC) and prefer appropriate charges as they deem fit.
In his 30-page judgment, Justice Dr Hamid said that the magistrate in Teoh's case had assumed the role of a "coroner" and proceeded to deliver an open verdict, relying much on the erroneous practice direction relating to Guidelines on 'Inquest', which is inconsistent with the provisions of the CPC.
He said that there is no provision under the CPC or any other provision in 'Malaya' for the magistrate to act as a 'coroner' to deliver an open verdict; or a verdict of misadventure or death by person or persons unknown.
"The failure to follow the relevant provisions of the law has resulted in erroneous result which has caused the need to appoint a 'Royal Commission' and has also attracted undue condemnation by the public of our criminal justice system.
"This has also led to a miscarriage of justice to the family members of the deceased," he said.
He said that Section 328 of the CPC specifically requires the cause of death or apparent cause of death to be identified.
"The magistrate is obliged to say who are 'criminally concerned' and not who are 'criminally liable pursuant to sections 328 and 337 of CPC. This was not done in this case," he said.
He also noted that Teoh was not accused of any crime but held in custody of 'MACC' in the late hours of the night, as well as early morning, which resulted in his death.
"The MACC's position has always been that he was a potential witness and not a suspect.
"I do not see how our legal system based on Rule of Law as well as our country being a signatory to Human Rights Convention will permit a witness to be oppressed in the manner that has been done to the deceased.
"Such a conduct will also be clearly in breach of several provisions of the Federal Constitution," he said.
Justice Dr Hamid said that he did not see how any reasonable tribunal or investigating or prosecuting agency, would not take appropriate action against relevant officers for causing the death of a witness in custody.
"This case relating to a 'witness in custody' will stand as a 'blot' on our criminal justice system if remedial measures are not taken to uphold the integrity of our criminal justice system," he said.
He said that there is clear evidence to show Teoh was escorted to the MACC's office by its officers in his car.
"Technically there is an arrest. Whether it is actual or constructive or the arrest was unlawful or illegal (since he was only a witness) has little significance in an inquest hearing save to show conduct of abuse from the start," he said.
He said that the fact that the injury has been identified on Teoh's neck was sufficient to attract some level of criminal liability against MACC officers who were involved.
"A proper police investigation would have been warranted under the CPC taking into consideration that 'MACC' officers are not immune to such investigation under the law or Federal Constitution," he said.
He said that MACC or the relevant officers being a responsible body simply could not disclaim liability when its officers had taken Teoh to custody and kept the witness throughout, engaging in oppressive conduct which resulted in Teoh's death.
"The law in Malaysia does not permit a witness to be arrested and oppressively interrogated for long hours of the night and early morning; and at the end to send the dead body to the family without admission of liability; and also for the investigating authority to take a unilateral position that everything done which led to the death of the deceased was done 'prim and proper' and assert that the investigating authority is not liable," he said.
In his decision, Shah Alam High Court judge Justice Abd Rahim Uda said that while there were suspicious grounds that could lead to a conclusion, but based on the law, suspicion alone was not enough.
Justice Abd Rahim said the court had gone through the documents and found the coroner had evaluated the testimonies and observed the witnesses in the inquest.
Teoh, 30, the political secretary to Selangor executive councillor Ean Yong Hian Wah, was found dead on July 16, 2009 on the fifth floor corridor of Plaza Masalam in Shah Alam after he had given a statement at the office of the Selangor branch of the commission on the 14th floor of the building.
Coroner Azmil Muntapha Abas had given an open verdict on Jan 5, 2011, that the death of the political aide was not a suicide, nor was it a homicide.
The much-awaited Royal Commission of Inquiry (RCI) report had concluded in July 2011 that Teoh was driven to commit suicide and blamed intensive interrogation by three MACC officers.
High Court Judge Justice Rohana Yusuf had on October 2011 dismissed the family's leave application for a judicial review to nullify the RCI's findings, saying that the High Court was bound by the Federal Court's ruling in the Datuk V.K. Lingam's video clip case on Sept 13.
The Apex court had ruled in the Lingam case that the RCI's findings were not reviewable.
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