Friday, September 5, 2014

Court overturns open verdict on Beng Hock

10:22AM Sep 5, 2014
By Hafiz Yatim

The Court of Appeal in Putrajaya today unanimously overturned the coroner's open verdict following the inquest into the death of DAP political aide Teoh Beng Hock.

Due to the importance of the case, which has gripped public attention for the past five years, the court has written three separate judgments on its decision.

Justice Mah Weng Kwaiis first to read his judgment. The other two judges who sat with him and who will also read out their decisions are JusticeMohamad Ariff Md Yusof and Hamid Sultan Abu Backer.

Justice Mohamad Ariff heads the three-member bench.

All three judges ruled that, “The death of Teoh Beng Hock 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 the MACC officers who were involved in the arrest and investigations of the deceased.”


10.17am: Justice Mah rules that the magistrate (who sat as coroner) and the High Court in Shah Alam applied a wrong test of requiring Teoh's family to prove their claims (of the cause of his death) beyond reasonable doubt.

The correct test to be applied in a death inquiry or inquest is the balance of probabilities test.

He also says that Teoh's death was a custodial death when he was held by the Malaysian Anti-Corruption Commission (MACC).

He rules Teoh did not accidentally fall by himself and therefore ruled out suicide as the cause of Teoh's death.

10 30am: Casting doubts on the suicide note, Justice Mah says it was not confirmed that the note was written by Teoh, as ruled by the expert.

The judge says Teoh could not have climbed out of the window at the MACC office as it was high.

He therefore rules that Teoh's death was caused by a person or persons unknown.

10.45am: Referring to the bruised mark on Teoh's neck, Justice Mah is of the view that some person or persons may have made the mark.

"It could be stranglehold and deprivation, resulting in the loss of consciousness and fainting and lose motor control."

Witness pathologist Dr Peter Venezis, he says, also did not rule out this.

Thai expert Dr PornthipRojanasunand (right), Justice Mah says, ruled the bruise to be a pre-fall injury before he fell.

"I am of the view that Teoh, when he fell off the window, was still alive but could be semi-conscious."

The judge credits Pornthip for noticing the bruised mark, resulting in the second post mortem.

"Pornthip ruled there was blunt force trauma," says Mah.

10.57am: Justice Mah urges the police to investigate the male DNA found on Teoh, which was different from Teoh's body.

He said the conduct of the MACC officers is questionable, especially the investigating officer Anuar Ismail.

Justice Mah concludes that the beyond reasonable doubt test was wrongfully applied.

"I ruled the death is due to unlawful acts of persons unknown including the MACC officers."

"I urge the police to investigate further so no one would be spared and there be closure to the case," he said in allowing Teoh's family appeal.

Now it's Justice Hamid Sultan's turn to read his judgment.

11.03am: Justice Hamid Sultan says the victim was only a potential witness and the MACC officers had violated the law in causing the death of Teoh.

He also criticises MACC for not preserving the scene of crime before the arrival of the police.

Justice Hamid Sultan adds there is no provision for the magistrate to arrive to an open verdict.

"This is different from what is practiced in Commonwealth," he said, resulting in an erroneous result of having a Royal Commission of Inquiry and public inquiry."

This, he says, requires judicial intervention.

11.08am: Justice Hamid Sultan says there is no provision to return an open verdict because of an erroneous direction issued by the judiciary.

"The deceased was not accused of any crime but held as a MACC witness," he says.

"I do not see how any reasonable tribunal did not take action on the MACC officers. The criminal justice system have to be upheld," he said.

A total of 37 witnesses are called in the inquest.

11.12am: Justice Hamid Sultan rules the injury on Teoh's neck was done in MACC premises.

"Pornthip discovered it while lawyer M Manoharan for Teoh said he did not noticed the injury when Teoh went to the MACC premises."

In allowing the appeal, Justice Hamid Sultan says the attorney-general to find the purported culprit so there could be accountability, transparency, especially in cases of death in custody cases.

11.19am: Justice Hamid Sultan says there is clearest evidence where MACC was culpable and suggested that the culprit be charged under criminal negligence.

This, Hamid Sultan says, was not done in this case.

"As it stands, the law does not permit a witness to be interrogated for long hours and everything done be deemed proper," he says.

"Magistrate should have identified the persons responsible."

He sets aside the lower court's open verdict. He also rules that the death of Teoh could have been accelerated due to person or persons, including the MACC, and calls for the police to reinvestigate the case.

Now it's Justice Ariff's turn to read his judgment.

11.32am: Justice Ariff rules out death by misadventure due to the neck injury.

He says the appellate court is interfering the lower court's decision in the interest of justice.

Justice Ariff says magistrates are allowed to return an open verdict, but in departing from the views of the two other Court of Appeal judges he says magistrates cannot make such a decision.

However, he agrees with the other two judges to overturn the lower court's decision.

He also reiterates that the test to be correctly applied is the balance of probabilities and agrees with Teoh's lawyers the threshold of proof should be lower.

11.41am: Justice Ariff says the burden of proof of beyond reasonable doubt could be made when a criminal charge is imposed.

"I agree the High Court judge and magistrate apply the wrong standard and support the balance of probabilities test."

He backs the views provided by Justice Hamid Sultan that the long interrogation is a violation of constitutional rights of the person in custody.

11.44am: Justice Ariff says he allows the appeal and set aside the open verdict.

"There is ample circumstantial evidence and we agree the proper verdict should be the death of Teoh is due to a fall as a result or accelerated by person or persons, including MACC."

Consequently, he says, the appellate court sets aside the verdict of the lower courts.

The Court of Appeal judge calls for further examination of the case, including of the alleged suicide note.

"It will be the public prosecutor to decide whether it will charge anyone."

12.17am: Lawyer Gobind Singh Deo says this is a landmark decision as for inquests, it is now based on a lower threshold of balance of probabilities and not beyond reasonable doubt.

He says this should govern all present and future inquests and it may be also necessary to re-look at past inquests.

Teoh's younger sister Lee Lan says the family holds Prime Minister Najib Abdul Razak to his promise to take action on the matter.

"Now it is clear the court, in its final decision, says that the death is caused by unlawful acts of person or persons, including the MACC. His death is not due to suicide. We want the IGP (inspector-general of police) and AG (attorney-general) to re-open investigations to this case and charge those responsible."

"We give three days for Najib or AG and IGP to react or we will take appropriate action. Najib has made a promise and he should own it up now," she says.

Full judgment by Hamid Sultan Bin Abu Backer
~ Malaysiakini

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