Wednesday, August 12, 2009


InquestA coroner’s inquiry, or inquest, is the term used in England for proceeding to discover the cause of death. In Malaysia, the similar procedure is provided in our Criminal Procedure Code ("CPC") at Chapter 32. The procedure is called “Inquiry of Death”. The Chapter comprises comprehensive code of conduct and procedure to be adopted when death occurs in suspicious circumstances. The police officer not below the rank of sergeant shall make an investigation and draw up a report of the apparent cause of death. Having completed the report, the police in charge of the police district shall forthwith forward such report to the Magistrate within the local limits of whose jurisdiction the body of the deceased was found. If the Magistrate is not satisfied with the cause of death so reported, he SHALL proceed to hold an inquiry, except when there is prosecution against a person connected to the death. Hence, it is the Magistrate statutory duty to hold an inquiry, if he disagrees with the cause of death reported by the police. His primary duty is to inquire into when, where, how the deceased came by his death and whether any person is criminally concerned in his death. It must be stressed that cause of death as defined in s. 328 of CPC is not confined to apparent cause of death. It also include all matter necessary to enable an opinion to be formed as to the manner in which the deceased came by his death, and as to whether his death resulted in any way from any unlawful act.Since the announcement by the government to hold an inquiry of death of Teo Beng Hock, much controversy has arisen especially concerning the power of the Magistrate in an “Inquiry of Death” and the role played by him. Arguments have been put forth that the Magistrate in an inquiry of death has very limited power comparing with the Commission of Inquiry constituted under the Commission of Inquiry Act 1950, or more commonly called “Royal Commission”.An inquiry of death is not a trial (see Public Porsecutor v Seeralan [1985] 2 MLJ 30). In a trial, the Magistrate by convention take a passive role by holding the balance ring between the conflicting parties, although he too has power to question the witnesses. The Magistrate in an inquiry is not a judicial officer to make finding on the right of a party by reliance on the evidence presented by the Prosecutor and defence counsel. He is not passing judgment against anyone. He is the investigation officer. The process being an inquisitorial process (R v South London Coroner; ex parte Thompson [1982] 126 SJ 625), the Magistrate is expected to be inquisitive. The prosecuting officer is usually present in the inquest, but not to prosecute anyone but to assist the court with the examination of witnesses for the purpose of giving evidence. The Magistrate's finding after inquiry is mere opinion, and is not binding. Swinfen Eady MR remarked in Bird v Keep [1918] 2 KB 692 at 698, 699: “The coroner’s inquisition is not like a judgment in rem. Nothing is done which is conclusive upon any person affected by it…An inquiry before a coroner is merely in the nature of a preliminary investigation. It is not of any binding force… I am of opinion that the result of an investigation conducted by the coroner, however valuable for certain purposes, cannot in law be treated as prima facie evidence against any person of the facts found by the jury”.A Magistrate holding an inquiry of death has all the powers which he would have in holding an inquiry into an offence (see Section 335(1) of CPC). This would include power provided in Section 425 of the Criminal Procedure Code : “Any Court may at any stage of any inquiry, trial or other proceeding under this Code summon any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine any person already examined, and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case”. The plain reading of this section is this : it is imperative for a Magistrate to summon any person who may assist the Court to reach a just decision. In fact, the Magistrate fails in his duty if he does not summon an important witness. The Magistrate holding an inquiry of death does not have any lesser power then a “Royal Commission” to summon relevant witnesses.The Magistrate may also order a medical officer to examine the body to discover the cause of death, whether or not a post-mortem examination has been made. He may proceed to view the body. The whole of the proceeding shall be open to public, unless for any special ground of public policy or expediency he may exclude public access.As stated above, an inquiry of death is not a trial to determine the right of the party. Hence, the Magistrate is not required to follow strict procedural and evidential rule as in a trial. Sometimes, the Magistrate may even take into account hearsay evidence to support his finding (See Re Loh Kah Kheng [1990] 2 MLJ 126). For instance, if the Magistrate came about information which is confidential or privilege, he can, notwithstanding the confidentiality, required the information to be supplied to him for personal consumption. This was held by Mohamed Dzaiddin to be correct approach in Re Loh Kah Kheng [1990] 2 MLJ 126.In addition, like the Royal Commission, the Magistrate holding an inquiry of death may also punish a person for contempt of court (see Public Porsecutor v Seeralan [1985] 2 MLJ 30).Usually, the deceased representative would attend the inquiry for watching brief. A counsel attending for watching brief has no right to address the Court or examine the witnesses without permission. Nevertheless, the Magistrate may allow the counsel to participate in the inquiry if the participation would assist in the finding. This is particularly desirable in relation to counsel retained by the deceased family. The Supreme Court in Public Porsecutor v Seeralan [1985] 2 MLJ 30 remarked “a defence counsel present at an inquest is not there to defend anyone, but only to look after the interests of those who engage him. Whilst he has no right to speak as of right, this right seldom becomes an issue because the court normally gives such indulgence whenever it is asked….”. This is not much different from an inquiry held under the Commission of Inquiry Act, where the panel usually allow the interested parties to hold watching brief and cross-examine the material witnesses.What if the finding is not satisfactory? An inquest is subject to judicial revision by the High Court. This is provided in Section 341A of the CPC. The object of a revision is to examine and ascertain the correctness, legality and/or propriety of any finding. In the case of Re Derek Selby, Deceased, [1971] 2 MLJ 277, the deceased’s wife was unsatisfied with the finding of the learned Magistrate, filed a petition for revision to the High Court. The High Court quashed the decision of the finding of the Magistrate of “suicide” with open verdict. There are many cases where the records or finding of Magistrate in an inquest was called up for revision by the High Court Judge (see for instance Re Loh Kah Kheng [1990] 2 MLJ 126, Public Prosecutor v Shanmugam & Ors [2002] 6 MLJ 562). Besides subject to High Court’s revisionary power, the Public Prosecutor may also direct the Magistrate to reopen the inquiry and make further investigation. In this respect, an inquiry of death is subject to better check and balance. It is not only subject to scrutiny of the Public Prosecutor, the Magistrate’s finding may also be revised by the High Court, either upon the High Court’s own motion or petition of the deceased’s family. Nevertheless, the “finding” of Royal Commission” is not subject to any revision or challenge by any other authority. This is quite clear from the High Court’s refusal to entertain judicial review sought by VK Lingam to quash the finding of the Royal Commission in their inquiry into the “Lingam Tape” scandal.Both the Magistrate conducting an inquiry of death and the Panel appointed by Yang Dipertuan Agong pursuant to Commission of Inquiry Act 1950 have all the necessary power to conduct a proper and efficient inquiry. It is a fallacy to argue that Magistrate is quite incompetent in law to conduct the inquiry. The only difference between these two bodies, perhaps, is the impression of highly independent character of the Royal Commission. Now that the Magistrate is armed with tool and tooth, he must demonstrate his ability to find the truth. I fear the atmosphere created by the public opinion that the Magistrate is lacking in power to conduct an inquiry would impede the inquiry. If the public is taking the course that the Magistrate does not have sufficient power to find the truth, the Magistrate may be swayed by treating the inquiry like a trial (where he act passively), but not a real inquiry (where he act actively). He may choose not to exercise the power he has, deliberately or unintentionally, as that seems to fit the public’s opinion. At least the public would excuse him for inherent lack of power, not his incompetence. The public taking such wrongful course does not serve justice for Teo. What the public need to do is to recognize that the Magistrate has all the necessary power to properly and effectively conduct an inquiry. The public is watching closely how the Magistrate is to exercise his power. Any dereliction of duty will not escape the public scrutiny. Any failure to summons material witness or superfacial examination of material witness will not be excused. If the truth is not out, it is the quality of the Magistrate in questioned, but not the lack of power conferred upon him.
Posted by Yap Boon Hau at 12:19 AM

林猷荃 said...
1. There is one article in Merdekareview explaining the difference between our Death Inquiry and English Coroner's court. You may want to comment on that.2. I think have point out one important difference between Death Inquiry and RCI ie the review by High Court. May I ask, is the High Court BOUND to review if there is an application by aggrived party? Or is there a discretion. If one High Court Judge refuse to review, can the party try another Judge, and another one and another one till one that is willing to review?3.You mentioned both in the article and NTV7 interview main difference between Death Inquiry and RCI is public perception that RCI is constituted by more qualified and independent members. Relatively speaking, isn't this not mere perception, but also a matter of fact based on the way the member is appointed?4.Even if the difference is only a matter of public perception, isn't this sufficient to tip the balance over to favour RCI to investigate Teoh's death now that this case has caused serious crisis of confidence in the system?5.May I know who can decide which Magistrate to conduct the Death Inquiry? Under the Subordinate Court Act 1948, each Magistrate (Court) has designated territorial jurisdiction conferred by the Yang Dipertuan Agong. Does this mean the Shah Alam Magistrate Court will have to conduct the Death Inquiry?6.You expressed your worry that the Magistrate may fail to appreciate his power in a Death Inquiry. I think it is important to avoid that. May I suggest you to write in one of the English paper on this to serve as a reminder to all including the Magistrate concerned?7.You also mentioned you are worried current public view that Magistrate is incompetent to investigate Teoh's death, may become a self fulfilling prophecy. You may have a point. However, from anothre angle, can we not say that such public pressure may have an opposite effect? I mean to say that when the Magistrate concerned know that his every move will be subjected to public scrutiny, he may want to be extra careful and understand well his power before going into the Death Inquiry? Of course, if there is any behind the scene hanky panky, whether there is public pressure or otherwise, it will not affect the outcome.Hope you can answer my querry, FOC.
28/7/09 10:43 AM
Yap Boon Hau said...
1. is the High Court BOUND to review? Chapter XXX1 confer a discretionary power to revive. HC may refuse. However, he must exercise his discretion judiciary having regards to the circumstances of the case. If one High Court Judge refuses to review, then no other Judge’s should, this is to preserve consistency in decision. It is noted that the HC Judge has very wide power in revision, including, order further inquiry, receive additional evidence and vary the decision of Magistrate.2.Public perception : perception of independence and actual independence are distinct. The process of appointment in RC is to satisfy the public perception of independence, and true, in view of its appointment, most of RC are independent. That does not deprive a lower rank officer (like Magistrate) from acting independently. See in Anwar Ibrahim 2nd sodomy trial, a Sessions Court Judge was brave enough to dismiss the certificate of transfer signed by her boss (AG), but unfortunately, overturned by HC and COA. That is why Anwar wants his case to stay in Sessions Court Judge, not with the High Court Judge who supposed to be more independent then the Sessions Court in terms of legal protection given to the later. Similarly, in Nizar v Zambry, a High Court Judge gave a celebrated ruling, while the Court of Appeal overturned it.3.Public perception is sufficient to tip the balance over to favour RCI to investigate : I haven’t expressed my view on this. I intended to but after AG published his view, I decided not to as I don’t want to be seen licking up. My view is : it is not an option to have RC to investigate the cause of Teo’s death. It touches the legality issue. S. 2 of Commission of Inquiry Act 1950 provides 4 circumstances to direct RC inquiry : conduct of public officer, management of public service, management of public service not solely maintained by state fund and public welfare. The cause of Teo’s death, despite much of public’s concern and interest, does not fall under any of the purpose under which a RC can properly and legally constituted to investigate. If I am asked to draft the “terms of reference” to RC with regard to Teo’s death, I can only ask the RC to investigate “whether Teo’s death is contributed by any public officer” in order to make the inquiry intra-vires. However, I must confess that this reference does not answer the wider question of “what is the cause of death of Teo”. If the question is answered negatively, then, there is still questions of how his death comes about, whether any other person (other than public servant) involved in causing his death. The question would still have to be answered by Inquiry of Death. 4.Who can decide which Magistrate to conduct the Death Inquiry? I think the Chief Registrar of Federal Court. 5. Is the Shah Alam Magistrate Court will have to conduct the Death Inquiry? Yes. 6. To write in one of the English paper? That was my plan, but since then, there have been many publications about that, I doubt my writing would contribute further to better understanding.7. Public pressure may have an opposite effect? It may be true, what I was trying to convey is : “hey duke, you have all the powers to do proper investigation, don’t just sit there acting like copying machine. Be inquisitive. This is our expectation”. This would place the right pressure on him, rather then : “hey duke, you are just a toothless tiger, and low rank officer, and since you (or other Magistrate) haven’t done a good job previously, I don’t expect you doing a good one now.” (which is what the public opinion now). 8. hanky panky? Nothing we can do until the next GE. Thanks to intelligence and mental-provoking questions.
28/7/09 12:28 PM
林猷荃 said...
I think your point no.3 ie on S2 of the Commision of Inquiry Act 1950 finally convinced me on why Death of Inquiry is legally more appropriate. I do not see such argument in Chinese paper and online media. You mentioned there is a lot of writings in English paper, but I seldom read those. Maybe someone has indeed mentioned it.But I still feel that the gravity of the issue warrants something more than an ordinary Inquiry of Death. Perhaps the term of reference should investigate whether any public official act has directly and indirectly contributed to Teoh's death. At the same time Death of Inquiry still goes on simultaneously to look at cause of death whether due to public official act or otherwise. Not sure such overlap is appropriate. By the way, I referred to some historical material on the Warren Commision on the Investigation on The Assasination of President John F Kennedy. It I have not understood erroneously, US president can simply set up a commission of inquiry without authority from any statute. The both Houses merely pass a resolution to allow the comission to compel attendance of witness and production of evidence. I wonder whether this is because the check by the Legislature is very effective they are not worried the Executive also has very wide powers generally. I suppose Malaysian PM has no such power. Just an idea, if our Parliament can pass a statue (Teoh Beng Huat Act 2009) to set up a specific commission with enough power to ascertain the various issues surrounding Teoh's death, this may be the ideal way to deal with the issue. But then, politically, this is impossible.
28/7/09 4:34 PM
李晓蕙 said...
Yap Boon Hau, do Malaysians a favor by publishing your writtings in our local papers, both in mandarin and english papers. (but you may need to simplify it and only focus on those points which have not been mentioned so far)
29/7/09 8:01 PM

No comments: