Who killed Teoh Beng Hock? by NH Chan

Who killed Teoh Beng Hock?

The burden of proving that Teoh’s death was an accident lies on those who had held him at the MACC

By N H Chan

Recently (see my article “If you put the cart before the horse” or “Cart and Horse” depending on where you have read it), I wrote about the unfounded conclusion of a befuddled Royal Commission of Inquiry that Teoh Beng Hock was driven to suicide while he was in the custody of the MACC.

One still wonders how such a conclusion could ever have been reached by the RCI without any evidence to support it whatsoever! Such evidence requires the opinion of an expert – which is a relevant fact under section 45 of the Evidence Act – to say that Teoh was driven to suicide as a direct consequence of the third degree method of interrogation inflicted on him by the police while he was in the custody of the MACC. It is because the finding of the RCI that Teoh was driven to suicide was unsupported by any evidence that we all realized how silly had been those judges who sat on the Royal commission. Those three judges have since become the laughing stock of the nation!

This nursery rhyme from our early childhood immediately comes to mind:

Three blind mice, three blind mice
See how they run, see how they run.
They all ran after the farmer’s wife
Who cut off their tails with a carving knife.
Did you ever see such a thing in your life
As three blind mice?

Those three blind mice that ran after the farmer’s wife got their tails cut off.

Like the three blind mice, the three judges of the Teoh Beng Hock RCI were unable to see the wood for the trees in the forest of their task to enquire into the death of TBH. Because they were blinded by the confusion of their task they could only manage to come out with an unfounded opinion.

Have you ever seen such a thing in your life as three blind judges? Were our judges incompetent? Or were they interested in the pursuit of their own aggrandizement? “Judges are not interested in the pursuit of power. If they were, they would not have become judges” said Lord Nolan in his lecture “Certainty and Justice: The Demands on the Law in a Changing Environment” at The Sultan Azlan Shah Law Lectures, Thomson/Sweet & Maxwell, at pages 312-313. Undoubtedly judges who are interested in the pursuit of power are corrupt; for power corrupts and absolute power corrupts absolutely. So now you know. They are either incompetent or corrupt.

Now is an opportune moment to discuss further. Since Teoh did not commit suicide as there was no evidence to support such a conclusion, then how did he fall from the window on the 14th floor to his death?

How did Teoh fall to his death?

We all know that Teoh fell from the MACC building to his death when he was in the custody of the MACC. We also know that he was subjected to cruel and unrelenting interrogation by the police officers at the MACC who wanted to extract a confession from him so as to implicate the Selangor state government with alleged wrongdoings. He was found dead from a fall from a window on the 14th floor of the MACC building. All these happenings cannot be denied because it has been revealed at the hearing of the RCI.

One should also know that section 106 of the Evidence Act 1950 says the burden of proving any fact especially within the knowledge of any person lies on him. So that in the TBH case, the burden of proving how TBH died lies on the MACC. This is because only the MACC and its personnel knew how TBH was killed. His death occurred when TBH was in the custody of the MACC. That is why the Malaysian Bar said “that full responsibility for Teoh Beng Hock’s death lies squarely and solely on the MACC”. This is what section 106 says:

106. Burden of proving fact especially within knowledge

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

ILLUSTRATIONS
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

This is what the Malaysian Bar said (see loyarburok.com on “Teoh Beng Hock: the search for justice and truth must continue):

It is very clear to the Malaysian Bar that full responsibility for Teoh Beng Hock’s death lies squarely and solely on the MACC, and that immediate action must be taken to hold the culpable officers accountable for their behaviour. … The authorities should investigate the relevant MACC officers for possible offences under sections 304 and 304A of the Penal Code, namely for culpable homicide not amounting to murder and for causing the death of TBH by negligence, respectively.

Actually the Malaysian Bar was being polite for suggesting an investigation by the authorities on possible offences under sections 304 and 304A of the Penal Code. Unquestionably a crime was committed. The authorities are duty bound to prosecute the perpetrators who have become common criminals irrespective of their rank in the police force! The ball is now in the court of the Public Prosecutor, who, as we all know, is the Attorney-General, to do his duty.

What then are the crimes these policemen of the MACC were supposed to have committed? As suggested by the Malaysian Bar, they are sections 304 and 304A of the Penal Code and, I would add, even murder under section 302 of the same Code. It doesn’t matter which is the section applicable as the burden is on the accused persons to prove the facts which are in their knowledge to try to reduce the charge to a lesser one.

It is murder (section 302) if TBH was dropped from the 14th floor to his death by his captors.

It is culpable homicide not amounting to murder (section 304) if TBH was taken to the window to frighten him but his captors somehow lost their grip and he fell to his death.

It may be a case of causing the death of TBH by negligence under section 304A if TBH had tried to escape by climbing out of the window and fell to his death in the attempt. The negligence is for leaving the window on the 14th floor conveniently open.

The above are the possible scenarios for the reduction of the crime from murder. But it is on the accused to prove the exculpating factors.

I use the word “captors” decidedly. A witness is never restrained and he is interviewed. He is free to leave at any time. A suspect is restrained and he is interrogated. He has no freedom of movement. He is held in custody. That is why in the coroner’s inquiry into the death of Selangor Customs assistant director Ahmad Sarbaini we get this kind of answer from a witness:

Awtar: What is the reason for him to climb out of the window? Why didn’t he use other ways?
Dr Shahrom: From what I was told by the police, he had a visitor’s pass, which only allowed him to go up the building, not down.
[see the New Straits Times, Thursday, August 4, 2011]

Could Teoh have accidentally fallen to his death?

We have ruled out suicide for the reasons stated above. Was his death accidental then? Of course, if the accused persons could show that TBH’s death was an accident then the culprits would get off scot free.

I think it is most unlikely that such a defence can succeed. How could TBH or anyone fall out of a window by accident, meaning by chance or without apparent cause? There was no reason or cause for TBH to climb out of the window on the 14th floor. Unless he was trying to escape from his captors in which case it would not be an accident at all. But, in any case, there was never any suggestion that Teoh tried to escape through the window before the RCI. Therefore, such a defence if raised could only be an afterthought. As such it is no defence at all.

An accident is an incident that happens by chance or without apparent cause. An incident that is happening by chance is a fortuitous happening – an accident.

In any case, I think, section 15 of the Evidence Act is worth considering when there is a trend of people falling to their deaths when they were held by the MACC as witnesses. Section 15 reads:

15. When there is a question whether any act was accidental or intentional or done with a particular knowledge or intention, the fact that the act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

Could homicide be ruled out?

There was a suggestion from some forensic pathologist that there were no injuries on Teoh’s body not related to the fall to show that there was a struggle or resistance to being pushed or carried to the window. Since there was also no sign of damage to the window sill to show any sign of a struggle, homicide, according to their cloistered mind, was ruled out.

It doesn’t take a kung fu or karate exponent to know that a person could be disabled in such a way that he would not be able to put up any resistance or struggle against his captors.

Speaking from my own experience as a criminal lawyer in my younger days at the Bar, I know that most suspects when subjected to intense and prolonged interrogation were generally docile and would not put up a struggle when asked to perform certain tasks like being asked to remove their pants and to sit on ice.

Also, because I have done it myself, I know it is not difficult to subdue a person to do as he is told with very little physical effort on my part. The easiest thing that I have used when I was set upon by a thug when I was a student in London who had grasped my throat was to grab the little finger of the hand that grabbed my throat with my hand and by bending the finger upward the pain inflicted on my assailant was so excruciating that I could make him do anything. It would not take much effort to snap his little finger but there was no need. I made him kneel to say he was sorry. He never tried to bully me again.

The easiest way to make a person do as he is told is to use an arm lock on him from behind. On the other hand a policeman would simply put a pair of handcuffs on his wrists behind his back. He can then be led to the window without a struggle. In most cases the suspect is docile so that you don’t even have to disable him. There are other methods but any trained policeman would know how to do it.

In a disabled state the suspect with some assistance from his captors could even be made to climb onto the window sill without a struggle and made to sit there.

malaysiakini: Suaram demands Coroner's Act

Suaram demands Coroner's Act

Jan 6, 11 3:45pm

Suaram wants a royal commission to investigate the death of Teoh Beng Hock and other deaths in custody, as well as to address "gaps in the current law enforcement system".

The human rights NGO expressed disappointment over Coroner Azmil Muntapha Abas' open verdict yesterday on the death of the DAP aide.

"The verdict... failed to determine the cause of death of Teoh Beng Hock (left) and bring those responsible to justice for the death of Teoh. Suaram remains concerned over the process of inquests into deaths in custody.

"Suaram calls for a royal commission to investigate all other cases of death in custody, including the recent death of Teoh Beng Hock, and to address gaps in the current law enforcement system with the view of providing critical reform and change in our system, especially in ensuring human rights values in law enforcement initiatives and investigations."

The NGO attacked the credibility and independence of the inquest, and is pressing for the establishment of a Coroners Act as well as a Coroner's Court as recommended by the parliamentary select committee on the Penal Code and Criminal Procedure Code in 2006.

"It has become critical for the government to implement the Coroners Act to provide an accountability mechanism to ensure human rights compliance by law enforcement agencies," the NGO said.

It also wants the Enforcement Agencies Integrity Commission Act (EAIC) to be implemented without further delay.

The EAIC bill was tabled in Parliament in 2009 and passed, but it has yet to be enforced to date, said Suaram.

Yesterday, in the closing chapter of the inquest that began on July 29, 2009, the coroner had ruled out both suicide and homicide and settled for an open verdict.

On July 16 last year Teoh had been called in to assist in investigations against his boss, Selangor state exco member Ean Yong Hian Wah, regarding allegations of misappropriation of funds.

He was questioned overnight at the MACC headquarters at Plaza Masalam in Shah Alam, and was found dead on the fifth floor landing of the building the next afternoon.

'MACC accountable'

Meanwhile, the Bar Council in a press statement today also supported the call for a Royal Commission.

Bar Council president Ragunath Kesavan (right) said such indecisive findings cast grave doubts on the effectiveness of the inquest mechanism and rendered the whole process meaningless.

"The coroner failed to consider a vital aspect of the matter: Teoh was under the custody of the Malaysian Anti-Corruption Commission (MACC) when he died, which invariably places the burden on the MACC to account for his death.

"In addition, the coroner ought to have reprimanded the conduct of the investigating officer in respect of the introduction of the handwritten note midway through the inquest, and ordered further investigation into his conduct."

Shocked, Outraged, Saddened (SOS): Royal Commission of Inquiry Now!!!...

It appears that Malaysians are perennially bombarded by shocks and shock waves, since the epic March 8, 2008 general elections.

One after torrential one, political shenanigans and Machiavellian trickery appear to jolt our sense of justice, equanimity and sense of belonging, of our shaky if aspired to patriotism.

It shatters the already nebulous myth of the jingoistic "1 Malaysia" which continues to belie the unvarnished disarray that consumes our politically-fractured citizens. Sadly, most if not all of these inane happenstances are self-inflicted by unthinking members of an administrative branch run amok, which appear increasingly aloof and out of touch with reality and changing times.

On many occasions too, politicians on either side have been trading body blows of razor-edge brinkmanship, which totters on mutual self-destruction. In its wake, these cheap point-scoring exercises continue to drag some of us, the more rabble-roused citizens deeper into the morasses of futility and despair! No, it's not our fault per se, but it most certainly underscores the pathetic state of justice and sense of fair play in the country.

Political aide, Teoh Beng Hock's untimely and truly unnecessary death has put yet another damper on the institution of justice and law enforcement in the country. This time the hurriedly cobbled together MACC must bear the brunt of this senseless and tragic exercise of unfettered power play and what appears increasingly as blatant one-sided prosecution, perhaps even shameless persecution!

Sadly, the officers in charge appear nonchalantly oblivious that what they have been doing, is anything but impartial or even neutral. Their blinkered attempts to push what must be undisguised probes into so-called complaints of misallocation of funds only of oppositionist lawmakers, surely must be from partisan directives! For fair-minded citizens, there appears not to be any modicum of decency to do the 'right' thing, even if only for show!

Instead, in one fell swoop, officers of the much maligned MACC have destroyed every thinking Malaysian's dream of civility, personal human rights, justice and modern democracy. Their arrogating of power to enforce their duties without regard to natural justice and proper rules of engagement, debases most thinking citizens.

It continues to disabuse us of our fanciful notions that perhaps some semblance of innovation and justice may indeed be the better modus operandi of the new leadership under Prime Minster Najib Razak. If for nothing else, this blatant misuse of the machinery of power, reinforces the need for a more enlightened, a more responsible and accountable system of justice and law. I continue to believe and hope that this new administration can do better and rise above such unnecessary if arrant negative publicity.

It is sad that in the process of trying to enforce the 'law', a young man with so much potential has been so ruthlessly cut down, his life truncated so prematurely, that he had now left behind a bride and his orphan child to be!

This cynical loss of life, so senseless and so unnecessary, points to perhaps another growing culture of arrogance when another's life was dehumanised and cheaply disposed of... Power of authority was all that mattered. This is indeed not something isolated, indeed it is now appearing to be a pattern of ingrained autocracy, unchallenged power among enforcement agencies such as the police and now the MACC, with no foreseeable oversight in place...

Custodial 'torture', unregulated investigation methods, custodial injuries and deaths, now appear to be commonplace, and are occurring with a regularity that showcase our enforcement agencies' callous disregard for human lives and their imperious unconcern for human rights.

When will our helpless, disempowered citizens get justice? When will our Kugan Ananthan, Letchumanan Kathan, Ravindran Alagiry, S Henry, A. Gnanapragasam, and now Teoh Beng Hock, get their justice? When will their true stories be told? When will their loved ones find closure and meaning in such senseless premature loss?

What about the other 1535 custodial deaths that had occurred between 2003 and 2007? Surely these numbers are shockingly high by any standards; they are shameful and unacceptable, and point to a systemic failure of our custodial service, our law enforcement agencies.

Can there be any doubt that these should never have happened, nor must they be allowed to continue? How many more nameless and unnumbered detainees beyond 2007 were there, who have suffered, been injured and who might or might not have perished?

In the 2005 Royal Commission Report for Police Reform, 3 major concerns from the public were identified:

* High incidence of crime and widespread public concern regarding personal safety.
* Public perception of widespread corruption within the police force.
* Extensive and consistent abuse of human rights and non-compliance with prescribed laws.

The report acknowledges that because of the above challenges, there is a growing breakdown of public trust and confidence in the police force. Increasingly the police force is “generally viewed as inefficient, uncaring, unable to prevent or check crime.” Worse, the police is seen to condone widespread “infringements of human rights... and the PDRM is not seen as being transparent or accountable to the public.”

In the light of these weaknesses, a resounding recommendation was made that an Independent Police Complaints and Misconduct Commission (IPCMC) be set up urgently. This is the proposed external oversight body to be established through an Act of Parliament, and which must be vested with powers to receive and investigate complaints regarding alleged police misconduct and to impose sanctions against any found guilty of such misconduct.

That appears to be the crux of the matter. As of right now, the police force and now the MACC appears to be 'above the law', answerable only to the Home Minister, if that was at all, evident.

There appears to be no oversight body to determine if there have been abuse or misuse of their powers and worse, if they had engaged in criminal activities including custodial abuses of detainees, unlawful taking of lives, any life without justification! There have been instances where, the police had acted as judge, jury and executioners as well, e.g. shooting deaths of groups of so-called armed criminals.

Has there ever been any review of such extrajudicial shootings by any independent police or watchdog Internal Affairs Department, as exist elsewhere? From 2001 to 2003, there were just 6 coroner's inquests, out of 80 reported custoidal deaths—were the other 72 deserving of their untimely deaths?

SUHAKAM (Human Rights Commission of Malaysia) has on several occasions, been promoting the continuing education of human rights to the public—its purpported "work to nurture, develop and advance a human rights culture within Malaysia".

My belief is that the public does need some reminder of their human rights, every now and again. We often take this too much for granted. Sadly, most of us are now fully aware, when tragedies such as Teoh's shocking death, happen. It reminds us that perhaps, these can happen to us too, without rhyme or reason—too chancy, too unbelievably unjust, too unpredictably senseless and too iffy!

Of greater concern is to remind and educate the enforcement agencies such as the police, the military and now the MACC, to be not only mindful of their duties, but to demand their strict adherence to human rights dictates in each of their engagement with the public.

Detainees, witnesses, suspects, prisoners, whoever they are, must be accorded due respect and fairness, until all their legal rights have been exhausted. There should be greater move toward painstaking gathering of evidence, rather than resorting to coercing and extracting confessions, which have been identified as a faulty barbaric mandate preferred by some of our law enforcement officers.

A recent NST editorial "Death of a Witness" makes a logical if grudging apologia for some form of closure to this debacle:

"In the face of a sceptical public which is over-receptive to any and all allegations of bias and subterfuge, and unwilling to give the MACC the benefit of the doubt, while it must be bold and resolute in investigating and prosecuting cases without fear or favour, it must also not abandon due process.

"This makes respect for human rights as critical as the selection process for investigations and the impeccable credentials it must establish for itself if the MACC is to enjoy the wholehearted confidence and close cooperation of the public."

A Royal Commission Inquiry is now mandatory to appease the ghosts of all these custodial deaths, which must now include the MACC. In the interim, the MACC must suspend all its activities pending this full inquiry. Its due processes and rules of engagement must be reviewed and spelt out clearly, with no ambiguity as to which investigative techniques are illegal, and these should be fully subject to oversight sanction.

Legal representation, and continuous videotaping of all suspects and witnesses should be mandatory without exemption. Selection of officers must be entrenched with human rights education and inculcation, and those with wrongful attitudes or aptitudes must be removed or redeployed to other areas which do not interact with the public, lest they resort to actionable if delinquent activities. In other words, it must undergo a total revamp and complete overhaul, if it should ever wish to regain any semblance of credibility, at all...

Teoh's untimely demise must not be in vain! Our shock, our outrage and our sadness must be translated into a meaningful revamp of our enforcement agencies, and hopefully reignite some new belief and help reclaim some confidence in our badly bruised civic institutions...


----------------oooooooooooo000000000000oooooooooooo----------------------