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LongBench v2 / 66f6b623bb02136c067c2646 / What was the primary cause of Teoh Beng Hock's death, according to the initial…
Problem
Answer published by the source. Consult the official source to check your work against its answer.
choice A
Accidental fall from a building
choice B
Homicide by unknown assailants
choice C
Suicide due to stress from interrogation
choice D
Natural causes unrelated to interrogation
context · full text (210,397 characters)
Teoh Beng Hock
Traditional Chinese
趙明福
Simplified Chinese
赵明福
[show]
Transcriptions
Bar Council of Malaysia
(headquarters in Kuala Lumpur)
showing a banner 'Teoh Beng
Hock dalam kenangan' (Teoh
Beng Hock in memoriam).
[show]
v ·
t ·
e
From Wikipedia, the free encyclopedia
In this Chinese name, the family name is Teoh (赵).
Teoh Beng Hock (20 April 1979 – 16 July 2009) was a Chinese Malaysian journalist
and political aide to Ean Yong Hian Wah, a member of the Selangor state legislative
assembly and state executive council. On 15 July 2009, the Malaysian Anti-Corruption
Commission (MACC) took Teoh into custody for questioning about allegations of
corruption. Teoh was found dead the next morning on the rooftop of a building adjacent
to the MACC offices. Pakatan Rakyat leaders and a number of federal government
officials called for a Royal Commission of inquiry into Teoh's death.[1]
Family
[ edit ]
Teoh was the third child of Teoh Leong Hwee (born 1953). He had an elder brother; Teoh Beng
Kee (Chinese: 赵铭基) (born 1976), elder sister; Teoh Lee Jun (Chinese: 赵丽君) and a younger
sister; Teoh Lee Lan (1980,Chinese: 赵丽兰). His father was a taxi driver, and his mother, Teng
Shuw Hor (1953) is a housewife.
Teoh was engaged to 28-year-old teacher Soh Cher Wei after a two-year courtship, and had been
planning to register his marriage with her the day following his death. A photo shoot on the same
day, followed by a honeymoon and wedding reception in October had also been planned. At the
time of Teoh's death, Soh was two months pregnant; she told the press she intended to keep the child.[2] National Registration
Department regulations only allow a father's name to be included on the birth certificate if he is physically present at the time of birth;
after this was publicised through the press, Women, Family and Community Development Minister Shahrizat Abdul Jalil said she
would ask the NRD to look into the matter. Shahrizat also stated her ministry would assist in transferring Soh from her current school
to one closer to her hometown, and look into assisting Teoh's family since he was their sole breadwinner.[3]
Prime Minister Najib Razak later met with Teoh's family to express his condolences. Najib told them he would direct the Attorney-
General and relevant government departments to look into Teoh's family's wish that his child bear the Teoh surname.[4] On 15 August
2009, Soh completed the traditional Chinese marriage ceremonies, together with Teoh Lee Lan, Beng Hock's younger sister, acting as
a proxy. Kerk Kim Hock, a distant uncle of Teoh and the family's acting spokesperson, told the press that completion of the marriage
rites now entitled Soh to have her name engraved on Teoh's gravestone as his wife.[5]
Sequence of events
[ edit ]
MACC officials claimed that the interrogation had lasted for about 9 hours. According to the MACC also, Teoh was freed at 3.45 am—
however without proper explanation, his possessions, including his mobile phone, remained in MACC custody. MACC officials also
claimed that Teoh asked to stay the night at the MACC office, and was claimed to be last seen alive around 6 am. Teoh was found
dead at 1.30 pm later in the day. The investigation had been into allegations that Ean Yong had paid RM2,400 for flags to be used in
Merdeka Day celebrations, but not taken delivery of the flags. Teoh's colleagues who had also been questioned claimed that they
were put under pressure from MACC officers, including being denied access to legal counsel and food or drink.[6] Teoh's mobile
phone was still in the possession of MACC officials when he was found dead at 1.30 pm despite the MACC's claims that Teoh was
released at 3.45 am. The mobile phone was later handed to the police for investigation.[7]
One of Teoh's colleagues, Tan Boon Wah, later filed suit against the MACC for false imprisonment. In the case, Tan Boon Wah v.
Datuk Seri Ahmad Said Hamdan, Ketua Suruhanjaya, Suruhanjaya Pencegahan Rasuah Malaysia and Others, the High Court ruled
that because Tan was interrogated after normal working hours, he had been subject to false imprisonment, and ordered the MACC to
pay him damages. Tan's lawyer, Karpal Singh, said that Teoh's family could also sue the MACC for damages, citing this ruling.
Democratic Action Party Parliamentary leader and former Opposition Leader Lim Kit Siang lamented that "Teoh Beng Hock would not
have died if MACC had followed the law" and interrogated him during the day.[8]
Teoh's family and others have called the MACC's version of events into question. When the investigating officer involved briefed the
MACC's advisory board, several members of the board "asked why he chose to stay back. Any detainee would have run for his life!
The investigating officer replied that since Teoh wanted to stay back, he allowed it." During this briefing it also emerged that no official
records of Teoh's detention or his release existed.[9] In August, a video of men in uniform assaulting a man in their custody began
circulating as a supposed video of Teoh's interrogation. The Bukit Aman federal police headquarters denied the men were police
personnel. The video had previously been circulated in June as a supposed example of police interrogation techniques, ruling out the
possibility of it involving Teoh. A political observer attributed the video's popularity to the government's failing to provide adequate
clarification about the circumstances of Teoh's interrogation: "The authorities are shedding little light about what happened to Teoh.
This allows rumour mongers to spread ridiculous things."[10]
Response to death
[ edit ]
Some lawyers have argued that the law does not authorise the MACC to hold witnesses in custody, and that since Teoh was not a
suspect, he should not have been held in custody. The Malaysian Human Rights Commission (SUHAKAM) called the duration of
Teoh's questioning "inhumane and cruel."[1] The president of the Bar Council, K. Ragunath, said the MACC had contravened the
Federal Constitution by denying Teoh legal counsel during questioning, as well as the Lockup Rules 1953, which require all detainees
to be locked up between 6.30 pm and 6.30 am to rest. Ragunath called Teoh's interrogation tantamount to torture.[11] Ean Yong's
lawyer insisted that as "Teoh's movement was restricted, this amounts to an arrest," despite the MACC's insistence that Teoh was
only a voluntary witness.[12] Mohamad Ramli Manan, a senior official who retired from the Anti-Corruption Agency (before it became
the MACC), agreed:
It is against established law and practice to interrogate them (suspects) in the night. The lock-up rules demand that they be
sent to a lock-up by at least 8 pm... Witnesses are sent back to their offices or homes and asked to be present at another
appointed date. I don't know why they had to call Teoh at 5 pm. This may be due to poor planning or some evil intention or
evil purpose on their part. ... The rights of a witness are protected more than that of a suspect, who is under detention...the
person can demand that the interview be adjourned to the next morning. ... The examining officer has to oblige, failing which
this becomes an (unlawful) detention or arrest. ... This shows that Teoh was definitely in the custody of the MACC. Under
Section 15 of the Criminal Procedure Code, an arrest occurs when you confine the person (physically). Thus, there was
unlawful detention or arrest of Teoh.[13]
Another former ACA official, Abdul Razak Idris, disputed Ramli's view of the interrogation process, saying: "The Act provides that we
can interview anytime. Investigators are supposed to work 24 hours."[14]
In response to calls from civil society and political leaders for a Royal Commission, Deputy Prime Minister Muhyiddin Yassin stated
the Cabinet would consider setting up a Royal Commission of inquiry.[15] Initial police findings suggested foul play was not involved in
Teoh's death, but his friends and relatives insisted Teoh had not committed suicide, pointing to the fact that he was to be married, and
that his fiance was pregnant.[16] Teoh's family lawyers claimed that during questioning by the police, his family had been asked
questions suggesting that they were primarily interested in "[absolving] MACC officers from liability" by pursuing the possibility of a
suicide. A week after Teoh's death, his family vigorously insisted there was no possibility he had killed himself: "Teoh was joyful and
had no problems at work. Teoh had no financial issues, got along well with everyone and was preparing for his wedding." One detail
which seemed to strike the police was Teoh's shoes; when his body was discovered, his shoes were apparently significantly damaged
and worn. Teoh's fiancee "said that Teoh had several pairs and seldom changed them unless they were damaged, but on that fateful
day, he wore a new pair."[17]
The United Malays National Organisation (UMNO)-owned newspaper Berita Harian published an op-ed by New Straits Times Press
managing editor Zainul Ariffin Isa criticising the response to Teoh's death, stating that criticisms of the MACC were an attempt to
undermine Malay institutions. Zainul was particularly critical of Selangor Menteri Besar Khalid Ibrahim for his criticism of the MACC
officers' handling of the case, saying it was not right for Khalid to question "those of the same race as him."[18]
At the weekly Malaysian Cabinet meeting on 22 July following Teoh's death, the Cabinet transferred all MACC officers involved in the
probe of graft allegations against the Selangor government to other assignments, pending the official police inquiry.[18] The Cabinet
also decided to establish a Royal Commission of inquiry into the MACC's interrogation procedures, but not Teoh's death, allowing the
standard inquest to pursue the matter.[19]
Royal Commission of inquiry
[ edit ]
In a joint statement, Pakatan Rakyat leaders called the Royal Commission's terms of reference insufficient, saying that the "question
[of how Teoh died] cannot be separated from the more general issue of how the MACC conducts investigations."[20] The Pakatan
Rakyat statement insisted that the Commission probe the following questions:
*why was Teoh's case allegedly involving an amount less than RM2,500 is [sic] pursued with such aggression and urgency?
why was Teoh and another so-called "witness" kept overnight and interrogated with such oppression?
why was Teoh's hand phone in the custody of the MACC when the MACC insisted that he was only a witness; why did
the MACC initially deny they took his handphone?
why would Teoh spend the night at the MACC's office if he was free to go especially since he was scheduled to be
married the next morning?
why would Teoh commit suicide (as alleged by MACC and others) in these circumstances, when he is about to get
married, with his fiancé expecting their child, and with no sign or history of depression or mental illness?[21]
Robert Phang, a member of the MACC advisory board, suggested that "Though the royal commission's scope is wide, it can be
opened up further to dig deeper into issues not cleared by the inquest," such as establishing a reason for Teoh's death.[9] Also being
investigated is a mystery letter written on the letterhead of MACC, alleging MACC, Hishamuddin bin Hashim was involved with the
torture of Teoh Beng Hock and former Menteri Besar Khir Toyo had prior knowledge of it.[22][23]
The Royal Commission of Inquiry concluded that Teoh was not murdered but had committed suicide due to the aggressive
interrogation tactics by three MACC officers.[24] Teoh's family have rejected the RCI's findings and insisted that Teoh was
murdered.[25] The Bar Council of Malaysia have also questioned the RCI's findings.[26] A coalition of 126 NGOs have called the
Commission's findings a whitewash as it did not address the concerns regarding the interrogation methods by the MACC.[27] Prime
Minister Najib Tun Razak has defended the RCI's findings and called on all quarters not to question the findings.[28] The Malay daily
Utusan Malaysia, which is owned by UMNO, defended the MACC and blamed DAP for Teoh's death.[29]
The three MACC officers involved in interrogating Teoh have been suspended pending an investigation by the police.[30]
Further developments
[ edit ]
On 10 February 2012, Teoh Meng Kee, Beng Hock’s elder brother filed an application at the Court of Appeal to review the open
verdict stating that Teoh Beng Hock committed suicide delivered by the Coroner’s Court in 2011, after his application was rejected by
the High Court on 1 December 2011.[31] The Court of Appeal on 5 September 2014 set aside the open verdict stating that "a person
or persons were responsible" for Teoh's death.[32][33]
See also
[ edit ]
Kugan Ananthan
Tan Boon Wah v Seri Ahmad Said Hamdan
Gunasegaran Rajasundram
Ahmad Sarbani Mohamed
Royal Commission Watch
References
[ edit ]
1. ^ a b Musa Kamal, Ayu; Muzliza Mustafa; Pearl Lee; Teoh El Sen;
Aizat Sharif (17 July 2009). "DEATH OF TEOH BENG HOCK: A
mystery waiting to be solved"
. The Malay Mail. Archived from
the original
on 20 July 2009. Retrieved 20 July 2009.
2. ^ Mahmood, Mazlinda (18 July 2009). "Teoh's fiancee to keep
baby"
. The New Straits Times. Archived from the original
on
22 July 2009. Retrieved 22 July 2009.
3. ^ "Ministry to look into welfare of Teoh's family"
. The Star. 22
July 2009. Archived from the original
on 23 July 2009.
Retrieved 22 July 2009.
4. ^ "Najib meets the Teohs"
. The Malaysian Insider. 28 July
2009. Archived from the original
on 31 July 2009. Retrieved
28 July 2009.
5. ^ Chong, Debra (15 August 2009). "The bride wore black"
. The
Malaysian Insider. Archived from the original
on 16 August
2009. Retrieved 15 August 2009.
6. ^ Yeoh, Tricia (17 July 2009). " 'Who will fall prey next?' "
.
Malaysiakini. Retrieved 20 July 2009.
7. ^ "Cops step up probe into Teoh's death"
. Malaysian Insider. 21
July 2009. Archived from the original
on 22 July 2009.
8. ^ Chong, Debra (19 November 2009). "MACC can't quiz
witnesses beyond office hours, High Court rules"
. The
Malaysian Insider. Archived from the original
on 20 November
2009. Retrieved 19 November 2009.
9. ^ a b Ong, Andrew (1 August 2009). " 'No in-out record', MACC
advisor raises eyebrows"
. Malaysiakini. Retrieved 3 August
2009.
10. ^ Ong, Andrew (4 August 2009). "Assault video linked to Teoh
sparks frenzy"
. Malaysiakini. Retrieved 4 August 2009.
11. ^ "Teoh 'the first political death' under Najib"
. Malaysiakini. 18
July 2009. Retrieved 20 July 2009.
12. ^ Spykerman, Neville (22 July 2009). "Ean Yong: Teoh was
arrested"
. The Malaysian Insider. Archived from the original
on 23 July 2009. Retrieved 22 July 2009.
13. ^ Kuek Ser, Kuang Keng (28 July 2009). "Former ACA official:
Teoh held unlawfully"
. Malaysiakini. Retrieved 28 July 2009.
14. ^ Yip, Ai Tsin (31 July 2009). "Ex-ACA top gun: Stop showering
criticism on MACC"
. Malaysiakini. Retrieved 31 July 2009.
15. ^ "Muhyiddin: Cabinet to consider setting up royal panel"
.
Malaysiakini. 18 July 2009. Retrieved 20 July 2009.
16. ^ "Cops rule out foul play, friends rule out suicide"
.
Malaysiakini. 17 July 2009. Retrieved 20 July 2009.
17. ^ Ghazali, Rahmah (22 July 2009). " 'Police tried absolve MACC
officers from liability' "
. Malaysiakini. Retrieved 22 July 2009.
18. ^ a b "Cabinet orders suspension of MACC officers"
. The
Malaysian Insider. 22 July 2009. Archived from the original
on
23 July 2009. Retrieved 22 July 2009.
19. ^ "Cabinet approves royal commission"
. Malaysiakini. 22 July
2009. Retrieved 22 July 2009.
20. ^ "Pakatan wants more from royal commission"
. Malaysiakini.
23 July 2009. Retrieved 23 July 2009.
21. ^ name="pr_statement"
22. ^ "THE SHIT HAS HIT THE FAN"
. 20 August 2009. Archived
from the original
on 21 August 2009.
23. ^ "Senior MACC man denies forcing Teoh onto ledge |
Malaysians for Beng Hock"
. Teohbenghock.org. 2 April 2011.
Archived from the original
on 30 August 2011.
24. ^ "RCI: 'Weak-willed' Teoh committed suicide"
. Archived from
the original
on 23 July 2011. Retrieved 24 July 2011.
25. ^ [1]
Archived
23 July 2011 at the Wayback Machine
26. ^ "freemalaysiatoday.com"
. Archived from the original
on 8
March 2012. Retrieved 24 July 2011.
27. ^ [2]
Archived
23 July 2011 at the Wayback Machine
28. ^ "Najib: Don't dispute RCI report on Teoh"
. Archived from the
original
on 5 February 2012. Retrieved 24 July 2011.
29. ^ Chooi, Clara (24 July 2011). "Utusan defends MACC, holds
DAP responsible for Teoh's death"
. The Malaysian Insider.
Archived from the original
on 15 October 2012.
30. ^ Teoh El Sen (23 July 2011). "Teoh's suicide: MACC suspends
three officers"
. Free Malaysia Today.
31. ^ Ida Lim (5 September 2014). "Beng Hock's death not suicide,
caused by 'unknown' persons and MACC, court rules"
. The
Malay Mail.
32. ^ V. Anbalagan (5 September 2014). "Court of Appeal reverses
open verdict ruling in Teoh Beng Hock's death"
. The Malaysian
Insider. Archived from the original
on 6 September 2014.
33. ^ Lim, Ida (5 September 2014). "Beng Hock's death not suicide,
caused by 'unknown' persons and MACC, court rules"
. Malay
Mail. Retrieved 8 July 2018.
Anti-Chinese sentiment (Sinophobia)
Categories: 1979 births
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REPORT OF THE ~
-
ROYAL COMMISSION OF ENQUIRY
INTO THE DEATH OF TEOH BENG HOCK
PRESENTED TO SERI PADUKA BAGINDA
YANG DI-PERTUAN AGONG ON
THE 22"° JUNE 2011
BY
COMMISSIONERS
TAN SRI DATUK SERI JAMES FOONG CHENG YUEN
[CHAIRMAN]
DATO’ HAJI ABDUL KADIR SULAIMAN
DATO’ SELVENTHIRANATHAN THIAGARAJAH
DATO’ DR BHUPINDER SINGH JESWANT SINGH
PROFESSOR DR MOHAMED HATTA SHAHAROM
THE COMMISSIONERS
From left
: YBhg Dato’ Dr Bhupinder Singh, YABhg Dato’ Haji Abdul Kadir Sulaiman,
YBhg Dato’ Selventhiranathan Thiagarajah, YBrs Professor Dr Mohamed Hatta Shaharom
Sitting: YA Tan Sri Datuk Seri James Foong Cheng Yuen
TABLE OF CONTENTS
Page
Introduction
1
Royal Commission of Inquiry
2
_ Representation
2-3
Procedure adopted
4-5
The standard of proof
5
Second term of reference
5
Facts
5-8
Events in the SUK building
8-10
TBH at the Selangor MACC
10-11
“Calming therapy”
11-13
Interview by Arman and Ashraf
13-14
Meeting with Lee Wye Wing
14-15
Recording of statement
16-17
Events after 3.30am on the 16"
17-18
Discovery of body
18-20
Police investigation - “the note”
20-23
Tan Boon Wah
24-29
Lee Wve Wing ["Lee’]
29-35
Lee Kee Hiong [“Ms Lee’]
35-36
Mohd Harun Abdullah ["Harun’]
36-37
Page
Decision on the second term of reference
Forensic pathological aspects
Chronology
Time of death
Position of the body when found
Pattern of injuries
Clothing and personal belongings
Conclusion on forensic pathologists’ evidence
Interrogation
First interrogation
second interrogation
Third interrogation
TBH was not released after his statement was
recorded
KIH’s active participation and involvement
Anonymous fetter
Fourth interrogation
Raymond
Forensic psychiatric aspects
The psychiatrists
Character of TBH
Psychological changes
Contributing factors
Conclusion on forensic psychiatric aspects
vi
37
38
38-39
39-40
40-44
41-44
44-45
45
45
45-46
46-49
49-52
52-54
54-57
58-60
60-62
62-64
64-65
65-67
67-68
68-71
71-72
72
Page
First term of reference
Search warrant
Recommendations on powers of search
Applicable standing orders
Breaches of applicable standing orders
Treatment of witnesses and suspects
Proposed improvements
Qualification and training
Infrastructure
Calling up witnesses
Witnesses to be accompanied
interviewing and statement-recording
Limitation on seizure
Separation of prosecutorial and
investigative functions
Maintenance of records
Prevention of abuse of powers
Complaints
Training by MACA
vil
72-73
13-77
77-80
80-83
83-85
85-86
86-87
87
87-89
89-90
90
90-93
94-95
95-96
96-97
97-99
99-103
104-105
Page
Interview standards
The PEACE model
Facilities for interviewing
Recommendations
Status of Invited persons
Cooperation with other authorities
Investigations relating to accomplices
Alternative methods of gaining evidence
Document examination
Recruitment of professionals
Review of abused processes
Integrated approach
Recommendations for change of attitudes
of MACC officers
Conclusion
Acknowledgement
viii
105
105-107
107-108
108
109-112
112-113
113-114
114
114-115
115
115
115-116
-
416-118
118-120
123-124
REPORT OF THE ROYAL COMMISSION OF INQUIRY INTO
THE DEATH OF TEOH BENG HOCK
Introduction
(1]
On the
16" July 2009
[“the
16"”],
at about 1.30pm
a security
guard attached to a commercial company occupying premises in a multi-
storey building known
as Plaza Masalam [“Plaza Masalam”]
in Shah
Alam, Selangor, discovered the body of a male person lying face down
on the 5" floor exterior landing of the building. He was later identified
as Mr Teoh Beng Hock [“TBH”],
a Malaysian Chinese who was
the
political secretary to an executive councillor of the State government
of Selangor.
[2]
A day earlier, on the 15'July 2009 [“the 15"”], TBH was taken
in
by officers
of the Selangor Malaysian Anti-Corruption Commission
[“the Selangor MACC”] for questioning
at
its headquariers located on
the 14" floor of Plaza Masalam.
[3]
Police who arrived at the scene on the 16" confirmed that TBH
was dead.
The police investigating officer for this case was one ASP
Ahmad
Nazri
Zainal [ASP
Nazri”].
Since
he classified
this case
as
one of sudden death, a coroner’s inquest proceeded under section 337
of the Criminal Procedure Code. After interrupted hearings stretching
over seventeen months, the coroner on the 5"January 2011
returned
an open verdict. He was unable to rule out either suicide or homicide
as the cause of death.
[4]
There was
a public outcry over this decision, particularly from
the family members of TBH who demanded that a Royal Commission
of Inquiry be set up to investigate
into the death of TBH while
in the
custody of
a law-enforcement agency, namely, the Selangor MACC.
Royal Commission of Inquiry
[5]
Acceding
to
this request,
the Yang di-Pertuan Agong,
acting
pursuant to section
2 (1) (d) and section
3 (1) of the Commissions of
Enquiry Act 1950 [“COE Act”], on the 26" January 2011 appointed
us
_
as Commissioners for this Royal Commission of Inquiry [“the RCI”] with
|
the following terms of reference:
1.
“to enquire whether or not there was any impropriety
in the
conduct of the examination of Teoh Beng Hock in the course
of an investigation into a Shah Alam report number 0052/2009
by the Malaysian Anti-Corruption Commission
in
relation
to
its standing
orders
and
practices
and
to recommend
any
appropriate action, where necessary; and
2.
to enquire
into
the
death
of Teoh
Beng
Hock
and
the
circumstances surrounding and contributing to his death.”
[6]
The timeframe mentioned in our letter of appointment to complete
this inquiry and to render a report to the Yang di-Pertuan Agong was
three months from the date of the issuance of our commission. This
was
the 25" April
2011.
But pursuant
to
our request
to
the Yang
di-Pertuan Agong, this period was extended to the 25" June 2011.
Representation
[7]
We commenced taking evidence in this inquiry on the 14" February
2011, after settling preliminaries and procedures
in meetings from the
29" January 2011 onwards. Aside from the conducting officers assisting
the RCI, four parties sought representation by advocates under section
18 of the COE Act. They were:
1,
the Bar Council of Malaysia;
2.
the MACC;:
3. the State government of Selangor;
4. the family of TBH.
|
[8].
Soon after their application was allowed, counsel for the family
of TBH, Mr Karpal Singh and Mr Gobind Singh Deo, requested for an
adjournment of the inquiry due to their engagement as counsel
in the
trial of the former deputy prime minister Dato’ Seri Anwar Ibrahim on a
criminal charge for sodomy in the High Court at Kuala Lumpur. Further,
both were
of the view that the conducting
officers assisting
the RCI
would
be biased since they were officers from the Attorney-General’s
Chambers.
[9]
Mr Malik Imtiaz Sarwar [“Mr Malik Imtiaz’], counsel representing
the State government of Selangor, appeared to share this view. When
we decided against granting the adjournment and the discharge of the
conducting officers as we found
no basis of their being biased
or to
have a tendency towards bias at that stage, Mr Karpal Singh and Mr
Gobind Singh Deo informed
us that they had instructions to subject
our decision to judicial review by the High Court.
[10]
Subsequently, when this did not materialise, further arguments
were submitted
to
us
by these counsel
that there was
a pending
application by the Attorney-General of Malaysia to have the decision of
the coroner reviewed.
According to them, this should be disposed of
before the RCI continued with its task.
In addition, there was a demand
by them that the Chairman of the RCI should recuse himself since he
is
a sitting judge of the Federal Court of Malaysia. We believed that
the primary objective for raising these grounds was to compel the RCI
to adjourn its proceedings. When this was turned down, both Mr Karpal
Singh and Mr Gobind Singh Deo on the 16" February 2011 declared that
they would not be participating
in this inquiry since they did not wish
“to lend legitimacy” to
it. The next day, Mr Malik Imtiaz followed
suit,
citing as an additional reason that the RCI should not hear evidence
afresh but adopt that disclosed
at the coroner’s inquest, an approach
with which we disagreed.
Procedure adopted
[11]
The procedure adopted by the RCI during this inquiry was similar
to that
of previous
Royal Commissions
of Enquiry. The conducting
'
Officers
after consulting
us
and
the remaining
represented
parties,
provided
a
list of witnesses
to be called.
All these witnesses turned
up
to
testify. They were questioned extensively and intensely
by
us
and counsel for the represented parties. Some of them were examined
against statements made by them
to the police, investigation diaries,
declassified investigation papers and other documents requested by us
and provided
for by the Malaysian Anti-Corruption Commission
[“the
MACC”] and police as well as exhibits tendered during the coroner's
inquest. We must state that to a large extent the MACC was cooperative
in supplying the materials we requested.
[12]
Though counsel representing the remaining parties were supposed
to be impartial
in assisting us to arrive at the truth of what happened
to TBH on that fateful night of the 15 and early morning of the 16",
except for the conducting officers, each side took a diagonally opposite
approach
in their questioning of the witnesses and submissions made.
Dato’ Sri Muhammad Shafee Abdullah, counsel for the MACC, defended
the MACC officers called to testify, while the team of lawyers from the
Malaysian Bar [“the Bar’] questioned them extensively, protractedly and
relentlessly to ensure that “no stone was left unturned” to arrive at the
truth. This mode of questioning was beneficial
to us since
it enabled
us to view the evidence from different perspectives.
[13]
To assist us in our own investigation was Mr Michael Leslie Squires
["the
investigator’] whose services were secured through
the public
prosecutor under section
16 (2) of the COE Act. He was an ex-police
officer from Liverpool, England and was the former chief investigator of
the Independent Commission Against Corruption [the ICAC”] of Hong
Kong. Mr Squires was able to conduct some investigations which were
of assistance to us but of greater importance to us was
his input on
the investigation and interrogation procedures and practices adopted
in other jurisdictions. This enabled us to understand how questioning
should
be conducted
to
get maximum
results
properly and
lawfully
rather than to employ unscrupulous techniques to obtain the same.
The standard of proof
[14]
To come
to
a finding
of fact by
us, there must be
a particular
level of proof to satisfy us. For the standard of proof required, we have
based our finding on a balance of probabilities sliding to proof beyond
reasonable doubt [see Briginshaw v Briginshaw and another (1938)
60 CLR 336, 362].
[15]
We adopted this approach for the reason that our finding may
cause serious damage
to the reputation
of some individuals but this
must be measured against the death of a person while
in the custody
of a law-enforcement agency, where the only witnesses are persons
whose conduct is being investigated. Further, there are the inherent and
harsh realities of meeting “a blue wall of silence” based on brotherhood
ties among officers of the organisations involved.
Second term of reference
[16]
Of the two terms of reference referred
to us, the first
is much
dependent on our investigation and findings on the second. And since
there will be
a substantial degree of overlapping between the two, we
approach our report by dealing first with the second term of reference
before returning to the first.
[17]
To fully appreciate our finding, we propose to illustrate the facts
before proceeding to give our decision with reasons therefor.
Facts
[18]
The State government of Selangor at the time of TBH’s death was
controlled by the Pakatan Rakyat,
a coalition
of parties
in opposition
at the Federal government level. Each state assemblyman
in the State
of Selangor was granted
an allocation
of RM500,000.00
per annum
from the state coffers for projects and programmes carried out
in
his
constituency.
But not all state assemblymen were allowed
to decide
on how this should
be applied.
Such privilege was only reserved
to
those from the party
in power of the day.
A Selangor state executive
councillor had an additional allocation of RM100,000.00 per annum on
top of his standard allocation.
[19]
There was no uniform approach on how to spend this allocation.
Much depended on the preference of the entitled state assemblymen
to decide on how this was to be used. But
it must be borne
in mind
that any expenditure incurred on
a single project was not to exceed
a
sum of RM20,000.00.
[20]
The expenses for the projects undertaken were paid out by the
respective
District Office
or Land
Office where the constituency was
located.
[21]
In the constituency of Seri Kembangan, the state assemblyman
at the material time was Yang Berhormat [“the Honourable”] Ean Yong
Hian Wah [“YB Ean’]. He was and is also an executive council member
of the
State government
of Selangor.
During
our
inquiry,
we were
informed
that he elected
to spend
his allocation
on “small
projects”
and “programmes” for the years 2008 and 2009.
[22]
Small projects involved civil construction works such as repairing
damaged drains, fences, retaining walls and the like. Programmes involved
the staging of events to foster better understanding and rapport among
persons residing
in the area. An example was the “Pesta Tanglung”
[Lantern Festival] and another was the promotion of the release of a
certain member
of the Pakatan Rakyat who was
in detention under
the Internai Security Act [“the ISA”] at the material time as well as for
the abolition of that Act [though we find
it strange that such a struggle
should fall within the ambit of “mesra rakyat” (citizens’ gathering)).
[23]
From June 2009 right up to the
1% March 2010 [when he was
transferred out], the deputy director of the Selangor MACC was one
Hishamuddin Hashim [“HH”]. As deputy director,
he was
in charge of
investigations and intelligence-gathering by the Selangor MACC
in the
State
of Selangor.
It
is
of interest
to note that he appeared
to have
absolute authority
to
investigate anyone whom
he suspected
to
be
involved
in any corrupt practice
in
the
state without even
informing
or obtaining the consent of his superiors
in the MACC headquarters
in Putrajaya [“HQ”] or his superior on the ground, the director of the
Selangor MACC. Fortunately, we were informed by the current deputy
chief commissioner of the MACC that this shortcoming has been rectified
and that certain categories
of cases dealt with
by the MACC
in any
state now require approval and consent from HQ before investigations
can commence.
[24]
Around the 21* June 2009, HH said that he received information
from a source which alleged that Selangor state assemblymen entitled
to the use
of the allocation were engaged
in submitting false claims
and that certain Pakatan Rakyat state assemblymen were using the
allocation
in
the
interest
of their
political
parties
instead
of for
the
benefit of the public. The source suggested that claims submitted by
these
state assemblymen
be
investigated.
This information
received
by HH was reduced into writing and tendered as an exhibit marked
|
207.
[25]
Acting on this information, HH ordered his subordinate, Mohamad
Anuar Ismail [“Anuar”’] on the 24" June 2009,
to file a formal written
complaint to say that the state assemblymen of Selangor had filed false
claims to the District Office for programmes which did not take place
and suggested action be taken to ascertain whether any offences set
out in the Malaysian Anti-Corruption Commission Act 2009 [“MACC Act’]
had been committed. Anuar filed this complaint on the 13" July 2009
[exhibit
| 61].
[26]
Following
from this, numerous documents from various District
Offices and Land Offices in Selangor where such claims were managed
were seized. This attracted much publicity and was extensively reported
in the local media.
i27]
_ Then on the 14 July 2009, HH gave
a briefing to his officers
outlining
the
plan for an operation.
He focused
on
two areas:
Seri
Kembangan which
is the constituency of YB Ean and another known as
Kampung Tunku which is under a different state assemblyman. He then
directed that there should be nine teams, each engaging
in different
activities,
for example, one to check with the registry of businesses to
ascertain who the proprietors of the firms were which had made claims
for projects or programmes while another was to search various targeted
premises for incriminating evidence.
[28]
Facing insufficient manpower, HH requested for officers from other
MACC branches
in Selangor as well as from HQ to assist. Anuar was
appointed by HH as the investigating officer [“the [O”] for this operation
despite there being available another more senior officer, Hairul Ilham
Hamzah
[“Hairul
llham”], who was the head
of investigations
in the
Selangor MACC.
All
in
all, thirty-three officers were involved and on
the morning
of the
15", HH commanded them
to proceed.
Further,
HH decided that Anuar was to take on Seri Kembangan whilst Hairul
Ilham was to concentrate on Kampung Tunku.
Events in the SUK building
[29]
_
Anuar and his team of four officers first went to the service centre
of YB Ean
in Seri Kembangan. On being informed that the claims
in
question were dealt with
by YB
Ean’s
office
at the
state secretariat
building [“the SUK building’]
in Shah Alam, Selangor, he together with
his men proceeded there on the same afternoon of the 15".
At about
3.00pm at the 15" floor office of YB Ean they met TBH. According to
Anuar,
after identifying
himself he requested TBH
to
deliver
to him
and his team documents concerning claims under the allocations for
the years 2008 and 2009. He and
his team intended
to check these
against four suspicious documents which they had extracted from the
files taken from the District Office and Land Office. TBH complied and
provided
the documents required.
However,
instead
of limiting
their
investigation
to this, one accompanying officer by the name of Mohd
Najeib Anmad Walat
[“Najeib”] probed into the laptop of TBH. He found
four suspicious documents [D94, D95, D96 and D97
in exhibit
|
197,
ie exhibits D94
to D97]. These were said
to be drafts and involved
quotations for projects paid out under the allocation.
[30]
Soon thereafter, YB Ean, upon being
notified
by TBH through
the mobilephone
of the presence
of MACC
officers,
rushed
to
his
office from a sitting of the Selangor state assembly to meet with Anuar
and
his team.
He was accompanied
by
a large number of reporters.
A heated exchange
of words took place between YB Ean and Anuar
centred mainly on the MACC’s right of entry without a search warrant.
Intimidated
by the presence
of the reporters
in YB Ean’s office who
were roaming around
freely, Anuar and
his team
left and withdrew
to the
car park
of the SUK building.
He then
met Hairul Ilham who
happened
to
be
also there on
his assigned
mission. After receiving
further instructions from HH
as
to what
to
do, Anuar and
his team,
accompanied by
Hairul
Ilham, returned
to YB Ean’s office. There he
met TBH again.
Not long thereafter YB Ean came back
to the office,
and this time he requested
his lawyer to be present.
Mr Manoharan
s/o Malayalam [“Manoharan’], his lawyer, arrived shortly thereafter and
further verbal arguments ensued, centring on the demand by Anuar to
bring
in TBH
for questioning
at the Selangor MACC office. A picture
depicting this scene was captured by a newspaper reporter from “The
Star’ and was published the next day.
[31]
Eventually
a compromise was
reached whereby TBH was
encouraged to go with Anuar and
his team. According to Manoharan,
Anuar had promised him that he, Manoharan, could accompany TBH to
be interviewed but was later “played out” or deceived by Anuar when
he was not even allowed to see TBH
in the Selangor MACC office.
[32]
According to Anuar, when he met TBH
in YB Ean’s office, TBH
was restless and walking
up and down. This view was supported by
the testimony of Najeib who was examining TBH’s computers.
in the
opinion of Manoharan,
TBH
at that material time was shocked to see
all the compuiers seized. But after speaking with and requesting TBH
to cooperate with the MACC officers, Manoharan observed that TBH
was more cheerful and ready to go with Anuar and his team.
[33]
TBH left with Anuar’s team shortly before 6.00pm on the 15" in
his own car. He was in fact escorted by two MACC officers. One Mohd
Hafiz Izhar Idris [“Hafiz’] carried the central processing unit [“CPU”] of
the computer seized from YB Ean’s office and sat at the rear of TBH’s
car. The other was Mohamad Azhar Abang Mentaril [“Azhar’] who carried
TBH’s laptop and sat next to TBH who drove the car.
Though Anuar
and Hafiz insisted that TBH had kept his laptop with him throughout
the journey,
this was contradicted
by video pictures captured on the
closed-circuit television camera [“cctv’] at the entrance to Plaza Masalam
on the fourth floor. They explicitly showed Azhar carrying
a bag with
TBH’s laptop
inside,
while TBH
had
nothing
in
his hands except
a
mobilephone which he was speaking into.
‘TBH at Selangor MACC
[34]
At about 6.15pm
at the reception area
of the Selangor MACC
office, Anuar met TBH.
Obviously TBH was brought there
to await
Anuar’s direction. Here, Anuar again observed that TBH was walking
up and down as
if he was looking for something. This prompted Anuar
to inquire of TBH whether he [Anuar] could be of help. We found this
rather strange when
it was Anuar who had insisted that TBH be brought
in for questioning. Then, according to Anuar, TBH inquired whether he
could contact
his lawyer through
his mobilephone. This request was
10
acceded
to and TBH made
a
call. When
this was completed, Anuar
‘demanded that TBH switch off his mobilephone. To ascertain whether
this was complied with, Anuar took TBH’s mobilephone
to examine
it
but returned the same to him with instructions to keep
it
in
his bag.
Hafiz, who was also at the reception area at that time, observed the
first part of what took place but was uncertain whether or not Anuar
returned the mobilephone to TBH.
[35]
This aspect of the evidence was crucial when
it became apparent
that TBH was one
of those who are addicted
to this modern means
of communication and who, when deprived of his mobilephone, would
become completely disorientated and helpless in the situation he was in.
His obsession with this gadget is confirmed by his very close colleague
Miss Ooi How Oon [“Mandy”] and his fiancée Ms Soh Cher Wei ["Ms
Soh’]
as well
as
by
his family members. Mandy described TBH
as
a person who could
not
live without
his mobilephone.
And Ms Soh
added that TBH spent a lot of time on
his mobilephone talking to
his
family and friends. An illustration of his need to communicate through
this means was when he called YB Ean
to inquire where Manoharan
was. Soon after, he contacted Manoharan to find out where he was.
“Calming therapy”
[36]
Perceiving
it as an excellent idea
to “calm” TBH down, Anuar
placed TBH
in a section of the Selangor MACC office called Bahagian
Pendidikan Masyarakat, commonly known as “Pen Mas”. There were
some
sofas:
two single-seaters and
a three-seater.
But instead
of
allowing TBH to be alone to collect himself, Anuar ordered some officers
to be his “companions”.
There were six to seven of them at one time,
beginning with Hafiz, followed by Azhar and others. Occasionally, Anuar
would come around to watch over the situation. The instruction by Anuar
to one of these officers, Azhar, was to collect information from TBH of
his background: whether he was married, his educational qualifications,
his previous employment and the like. This was completed
in just ten
11
minutes. Surprisingly, Hafiz also asked the same questions but confessed
that this was done with the intention of getting to know TBH. In addition,
another officer Sachianandan
a/l Krishnasekar [“Sachi”] also repeated
this line of questioning.
[37]
TBH was kept
in
this situation from approximately 6.30pm
to
-10.40pm. But most of the officers who were there to “accompany” him
recalled that TBH kept very much to himself, he was quiet, tired and
only answered questions when asked.
In fact, at one stage, TBH asked
-- Sachi as to when he would be able to go home. Sachi informed him that
this would presumably be after his statement had been recorded.
[38]
Also during this time at the Pen Mas area, TBH was approached
by Najeib who had discovered the four allegedly incriminating documents
in TBH’s laptop while
in the SUK building. Intending
to access TBH’s
email account
to again
have access
to these
four documents,
he
required TBH
to type his password into the laptop. TBH complied and
these four documents were subsequently downloaded and printed
by
Najeib and given to Anuar.
[39]
In the meantime, at another part of the office, Hairul Ilham, having
taken over the IO’s job temporarily from Anuar [since Anuar had
left
after 8.00pm
to attend to his personal domestic affairs,
ie to fetch his
maid from the airport and take her to his house], ordered one officer
by the name of Arman Alies [“Arman’] to examine four files containing
documents obtained from
the
District Office and
Land
Office. They
related to claims made under YB Ean’s allocations for the years 2008
and 2009. Arman was from HQ and was brought
in specially for the
purpose of this operation. The relevance of Arman to this inquiry is that
he subsequently “interviewed” TBH
in relation
to these documents.
[40]
According to Arman, he looked through some of the documents and
singled out those that appeared suspicious. Not long after, Hairul Ilham
gave him another four documents [exhibits D94 to D97] and requested
12
him to check on how the prices of the items
in those documents were
determined and whether the firms which made the claims from the
allocation actually did exist. Instead of carrying out this task by himself,
Arman asked TBH to assist. Further, he also made a request for another
officer to help out. Hairul Ilham agreed and assigned him one Selangor
MACC officer by the name of Ashraf Mohd Yunus [“Ashraf"].
“Interview” by Arman and Ashraf
[41]
TBH was called
in for this “interview” before these two officers
at about 10.45pm on the
15".
It took place
in
a large meeting room
close to HH’s office. Instead of going through the documents and asking
questions, Arman reversed
the method
and adopted
an
inquisitorial
approach. He gave the documents he had to TBH and demanded that
TBH
search
the
four
files
to
locate documents which corresponded
with
the exhibits D94
to D97. According
to
both Arman
and Ashraf,
TBH was unable to locate them. Then, exceeding their specific scope
of duty, they grilled TBH on
all those documents
in the four files,
nit-
picking
as
to why TBH had signed
on some approval. forms
for the
claims against YB Ean’s rubber stamp. This was done despite TBH’s
name
being
legibly written
on
the documents
to show
that
he was
signing for and on behalf of YB Ean. Questions were directed to TBH
on the alleged non-compliance with certain Treasury directives on the
award of contracts, namely, that there should be at least three separate
quotations before
a contract could be awarded and that the amount
for the contract should
not exceed RM10,000.00 [as both Arman and
Ashraf feigned
ignorance
of this amount having
been
increased
to
RM20,000.00 by a Selangor government circular which also permitted
direct awards of such contracts].
[42]
Another important aspect of this “interview”
is that both these
officers extracted from TBH the password to his private email account,
a matter which vexed TBH very much, causing him great concern and
distress. We will discuss this later
in this report.
13
[43]
Both Arman and Ashraf agreed that TBH was unable to answer
many of the questions asked. Most of the time, according to these two
officers, TBH was silent and just flipped through the documents
in the
four files given.
[44]
This so-called interview did not terminate until 12.45am on the
16". So the entire time taken by Arman and Ashraf to question TBH was
about two hours. Notes made of this “interview” were handed over to
Hairul Ilham but mysteriously they could not be located for production
in this inquiry for us to examine.
[45]
Ashraf maintained that throughout this “interview” he played no
part in questioning TBH. During the entire two hours, aside from going
out to collect
a copy of the Treasury directives [which were no more
applicable] and fetching TBH a glass of water to drink, he was tagging
documents referred to him by Arman.
[46]
While TBH was being “interviewed”
by Arman and Ashraf, YB
Ean turned
up
at the
14" floor of Plaza Masalam
at about 11.45om
with
a lady lawyer. They demanded to see TBH.
Hairul Ilham refused
the request but assured them
that TBH would
be released
at about
5.00am the following morning. Feeling frustrated YB Ean left.
Meeting with Lee Wye Wing
[47]
After the “interview”, Ashraf ied TBH back to the Pen Mas area.
There TBH was surprised
to meet
a person
called
Lee Wye Wing
[“Lee"], whom he knew. Lee had also been brought in for questioning.
His episode in the encounter with the Selangor MACC will be elaborated
upon
later. However,
at this stage, we shall focus on what transpired
between the two of them
in the early hours of the 16" at the Pen Mas
area. According to Lee, the meeting between them lasted approximately
ten to fifteen minutes. Strangely, they were allowed to be alone together
and
during
this time they exchanged experiences
on how they had
been taken
in. They had to speak softly for fear that officers passing
through the area could listen
in.
14
[48]
TBH, according to Lee, complained that the MACC officers had
taken away
his mobilephone and
laptop.
He
also lamented
that
he
should
not have disclosed
to
the officers
his password
to
his email
account. Then he inquired from Lee whether there was any necessity
to have three quotations before a contract could be awarded. Further,
he complained that he had requested for his lawyer to be present but
did not manage to meet him. Generally, Lee observed that TBH had
many things on
his mind. From Lee’s perception,
this could also
be
due to the uncertainty of what was going to happen to them next and
concern over the claim by the MACC officers on the requirement for
three quotations before a contract could be awarded. Lee disclosed that
TBH would not have known of such
a requirement since his work did
not involve such things.
In fact Lee said that he [Lee] would
be
in
a
-
better position to explain this since
it was within the scope and ambit
of his work [a matter upon which we shall elaborate later]. The meeting
ended when TBH was taken away for his statement to be recorded.
[49]
Anuar returned
after completing
his domestic chores
at about
mid-night on the 15",
ie going
into the morning
of the
16". He was
then
told
by
Hairul
Ilham
to hand
over the
four
files,
the exhibits
-
-D94 to D97, the notes taken by Arman during his “interview” of TBH,
and another set
of documents marked as exhibits
| 206A,
| 206B,
|
206C and
| 206D [which we
shall
clarify
later as
to how they were
secured] to one officer by the name of Nadzri Ibrahim ["Nadzri"], who
was directed
by Hairul Ilham
to record TBH’s statement.
Nadzri had
complied accordingly but instead
of following
Hairul
lIlham’s direction
immediately after receiving
it at 12.30am on the 16", Nadzri took his
time and only commenced recording TBH’s statement one hour later at
1.30am. This process was only completed at 3.30am. TBH purportedly
signed the statement. This statement, which is only a photocopy of the
purported original,
is marked as exhibit
| 69. We did not have sight of
the original. According to Nadzri, there was a toilet break
in the midst
of recording this statement. The toilet break took five to ten minutes.
15
Recording of statement
[50]
We were enlightened
by Nadzri
that the recording
of TBH’s
statement took the form
of questions and answers. A question would
be posed
by Nadzri with documents shown
to TBH
and TBH would
answer
it. The answers given by TBH would then be keyed into the
computer by Nadzri
in the form
of a narrative and shown
to TBH
to
approve before the next question was asked.
[51]
Nadzri observed that during this exercise TBH was serious and
was constantly looking down.
His hands were
in between
his thighs.
He was quiet and yawned frequently. He also sighed repeatedly and
hardly moved.
[52]
According
to
Nadzri, Anuar
did
enter the room while TBH’s
statement was being recorded. Anuar did not say anything of significance
except to inquire casually whether things were “OK”.
[53] _-The other thing
that happened during
the recording
of TBH’s
statement was the admission
by Nadzri that he had raised
his voice
at TBH and remarked: “Kalau you penat, saya pun penat juga sebab
saya
taip statement”
[“/f you are
tired,
| am also tired since
| have
to type the statement”]. We find this outburst rather unnecessary and
uncalled for. First,
it is from an officer carrying out his duty. He should
have been more professional
in
his approach. And
if he was indeed
tired,
he should have asked to have been relieved and to have been
replaced by another officer. Second, TBH was not
a suspect. He was
a witness called
in
to assist the Selangor MACC
in
its investigation.
Courtesy should have been accorded to him. Thus, such treatment
of
him by Nadzri was certainly unwarranted. Further,
if this process was
tedious,
it could easily have been adjourned to another day unless,
of
course, there was an agenda to put pressure on TBH by continuing to
record his statement in these circumstances.
16
. [54]
After the recording of TBH’s statement, Nadzri had gone searching
for Anuar, Hairul Ilham having gone home at about 3.00am on the 16".
Nadzri found Anuar sleeping
in the prayer room [surau] which was
situated next to the meeting room. He was instructed by Anuar to leave
the documents and TBH’s statement on his [Anuar’s] table, and to inform
TBH to go home. According to this witness, when he told TBH of this,
TBH requested to be allowed to remain in the office to rest. Nadzri then
agreed to this but warned TBH not to wander around. Nadzri claimed
to have told Anuar of this and that the latter had agreed.
Events after 3.30am on the 16
[55]
Ashraf said
that,
at about 4.40am
on
the
16",
while
he was
walking past the waiting area outside Nadzri’s room, he noticed TBH
lying on a sofa. TBH had requested for a drink and Ashraf had fetched
it for him from the pantry. After this, Ashraf claimed to have departed
for home leaving TBH where he was, lying on the sofa
in this area.
[56]
Then there was another officer called Raymond Nion anak John
Timban [‘Raymond”] who affirmed that he saw TBH lying on the sofa
in this location when he was about to leave for home at about 6.00am
on the 16".
[57]
Anuar, though being the
IO for the operation, elected
to sleep
until the next morning
in an area supposedly most accessible to the
public:
at the reception partitioned
by
a screen.
He did
not wake up
until 8.30am on the 16 when many of the staff had reported for work.
Anuar explained that he had chosen this area because
it was easily
accessible
to
his officers
to consult him.
Strangely,
however, many
officers who passed this area did not even see him there.
[58]
At about 8.30am on the 16", after waking up from his slumber,
Anuar declared that he was informed
by a lady officer called Norsiah
of a bag she noticed at the sofa
in front of Nadzri’s room. When Anuar
17
subsequently returned to his room, he saw this bag which he believed
had been brought
in by TBH the day before.
It was on the floor by
the side of the sofa
in the area as described by Norsiah. Beside this
bag was a mobilephone. He took possession of these and placed the
mobilephone on his table and the bag on a chair in his room. He did not
check the contents of the bag. We are puzzled by this rather careless
and indifferent attitude adopted by Anuar in relation to the bag and the
mobilephone.
[59]
We would have thought that Anuar as the IO should have been
more vigilant and concerned with what was
in the bag. For ail intents
and purposes
it might have been packed with explosives to blow the
Selangor MACC office up as the office would no doubt be stored with
incriminating evidence against suspects. Further,
it defied logic not to be
curious particularly when the purported owner of this bag was nowhere
to be seen. A look
at
its contents may have given some clues as to
who he was and where he could possibly be.
[60]
But believing
that TBH may
still
be
in
the
office, Anuar went
around looking for him. He was later joined by Hairul Ilham who had by
then turned up for work. They could not find- TBH but took no further
steps
to determine where
he was. We would have thought that
the
following elementary steps would have been adopted
to locate TBH:
first, of course, was to look inside his bag; second, was to contact the
night security guard, one Mohd Khairudin Denan [“guard Khairudin’] and
inquire whether he had seen TBH leaving; third, was to contact Nadzri
[the officer who recorded TBH’s statement] to ascertain whether TBH
actually stayed the night.
Discovery of body
[61].
At about 1.30pm on the 16", an officer by the name of Azeem
Hafeez Jamaluddin [“Azeem”] heard someone shouting from below the
MACC office that
a person
had fallen from
the building.
He rushed
18
down accompanied by some other officers. The body was lying on the
landing at the 5" floor of Plaza Masalam.
[62]
Soon thereafter Anuar and Hairul Ilham were informed and Anuar,
‘upon seeing the body, ascertained that
it was that of TBH. When. they
contacted HH, who was at HQ at that time, they were told by HH to go
immediately to HQ for a briefing on the incident. When they arrived at
‘the car park of HQ, they were told by HH on the mobilephone to turn
back and proceed straight to the Shah Alam police station to make a
report of the incident.
But when they reached the police station, HH
commanded them to return to the Selangor MACC office. So until this
day no police report has been made
by any Selangor MACC officer
concerning the death of TBH.
[63}
Both Anuar and Hairul Ilham, instead of going straight back to
the office from the police station as ordered, called for an escort from
the Selangor MACC. According
to them, they feared for their safety.
Apparently, a large crowd had gathered at the Selangor MACC premises
demanding an explanation as to how this could have happened to TBH
who was supposed
to have been
only interviewed
by
the Selangor
MACC as a witness but instead had been found dead.
[64]
Anuar was even more paranoid
in
his reaction. On his way to
HQ with Hairul Ilham as instructed by HH, he instead deviated home to
inform
his wife of the incident and for her to take safety precautions.
He said he felt vulnerable since “The Star’ newspaper had his picture
published
that morning arguing
with Manoharan
in
the presence
of
TBH. Counsel for the Bar however interpreted the deviation to his home
as an act of repentance for Anuar to confess to his wife for whatever
unlawful actions he had taken against TBH.
[65]
The police commenced their investigation not long after TBH’s
body was discovered. This included forensic work on the premises as
well as on the deceased. The latter was done by forensic pathologists. A
detailed account of their work will be disclosed and discussed later.
19
[66]
That evening, ie on the 16", all relevant personnel of the Selangor
MACC involved
in the operation remained
in the premises. But before
that, the top brass of the MACC in the person of Dato’ Seri Abu Kassim
Mohamed, the then deputy chief commissioner, and Datuk Mohd Shukri
Abdul
[“Datuk Shukri’],
the then
national
director
of investigations,
were present at the Selangor MACC office. They were briefed on the
situation.
Dato’ Seri Abu Kassim Mohamed
in
fact instructed
all the
MACC personnel involved to speak the truth and to cooperate with the
police in their investigation. The police recorded cautioned statements
on the evening
of the 16" and the days that followed from
all those
involved.
Police investigation
- “the note”
[67]
—
In the course of police investigation into the death of TBH, ASP
Nazri took. possession
of TBH’s bag. The contents
of this bag were
emptied. Among
the things found were sheets
of paper which ASP
Nazri considered to be not significant at that time. He did not carry out
further investigation into these sheets of paper until prompted to do so
by Dr Badi’ah Yahya [“Dr Badi’ah”],
a forensic psychiatrist appointed
to assist the MACC
to ascertain the state
of mind
of TBH from
the
psychological aspect.
Dr Badi’ah had
inquired
of ASP Nazri whether
there had been anything
left behind
by TBH which may amount to
a
suicide note, having regard to her experience in similar cases involving
sudden. death suspected to be suicidal.
But only much later did ASP
Nazri take a look again
at the documents found
in the bag. When
he
found
a note written primarily
in Chinese characters, he requested
a
colleague to translate
it to him. When
he realised that the note may
be of significance, he brought
it to the attention
of his superior who
then ordered him to send
it to the chemistry department for analysis of
- the handwriting. The note was only produced at the inquest before the
coroner on the 9 August 2010, after the inquest had commenced. We
marked this note [“the note”] as exhibit
| 168 (a)
in the inquiry before
us.
20
[68] _ The note was on of an A4-sized sheet of paper and on
it were
writings
in Chinese characters and
a few Bahasa Malaysia words.
A particular part had been scratched out
in the note. At the inquest
before the coroner,
a Chinese interpreter had translated this note as
follows:
|
“Ou Yang
Dalam keadaan tidak menyalin fail dalam computer saya, mereka
telah mengambil semua computer itu. Mereka asyik menyalahkan
kamu.
Minta maaf.
Tidak mengerti
tapi pura-pura mengerti, akhirnya menyusahkan
kamu.
Saya kata, ‘mendapat kelulusan YB’
Mereka berdegil menaip jadi ‘mengikut arahan YB’
Saya tidak dapat membantu kamu, maaf.
Minta maaf, saya sangat penat, selamat tinggal.”
[Translated freely from Bahasa Malaysia into English by us
it
reads:
“Ou Yang
In
a situation without having copied the files into my computer,
they took all the computers. They keep on blaming you.
Sorry.
Do not understand but pretend to understand, ending up in making
it difficult for you.
| said, ‘Obtained YB’s approval’
They were stubborn and typed
it to become ‘according
to YB’s
direction’
| am unable to assist you, sorry.
Sorry,
| am very tired, goodbye.”]
21
[69]
The request made by ASP Nazri to the chemistry department was
to determine whether the note could have been written
by TBH.
For
the purpose of analysis, aside from the note, ASP Nazri also handed
the following documents
to
the chemistry department
to be used
as
samples of TBH’s handwriting:
1.
a photocopy
of
a statement recorded
by Nadzri from TBH
_with
the bottom
part
of each page containing
a purported
signature of TBH:
2.
a photocopy of TBH’s national registration identity card [“NRIC”]
where he had purportedly initialled on the side;
3.
an original visa credit card with TBH’s name printed thereon
and bearing on the reverse side a signature purported to be
that of TBH;
4.
a notebook containing the purported handwritings of TBH.
[All of these are collectively referred to as “samples”].
[70]
On the 14" October 2009, a chemist from the chemistry department
by the name
of Wong
Kong Yong
[“Mr Wong’,
after examining
the
writing on the note and comparing
it with the samples, proffered the
following opinion:
_ “The Chinese handwriting
in documents BH
1
[ the note
] and
BH 4
[ the notebook of TBH
j were probably written by the same
person and the examination of [the] Bahasa Malaysia handwriting
on documents BH
1 and the notebook BH 4 were written by the
same person. The
initials on document BH
1
and BH
2 [TBH’s
statement] were most probably written by the same person.”
[71]
Suspecting
Mr Wong may have erred
in
his opinion,
the
Bar
questioned Mr Wong protractedly until Mr Wong had to admit that his
examination of the note was handicapped by the following.
22
[72]
First, the standard used for comparison had not been proved
to be the handwriting of TBH.
In short, the handwriting
in the samples
used
for comparison
had
not been proved
to
be
that
of TBH.
For
this reason,
his opinion
at best was that the writing on the note was
purportedly that of TBH and not that
it was that of TBH.
[73]
Second, the first and second samples [TBH’s statement and his
NRIC respectively] were photocopies. They were not originals. According
to Mr Wong,
a photocopy of any document may leave marks such as
dark smudges, dots and even
lines on
the document, depending
on
the generation of the photocopy. And
in respect of the signature ofa
person, one could not tell from a photocopy the strength,
shading, and
pressure applied
by the author which was necessary for comparison
‘work.
[74]
Though we accept that there are natural variations in the writing
and signature of a person, the shortcomings highlighted by Mr Wong,
which handicapped him, cast grave doubts on the value of his opinion.
These shortcomings touched
on
the fundamental requirements
to
determine the authenticity of TBH’s writing on the note. And without the
original of TBH’s writing, we were unable to accept Mr Wong’s opinion
that
it was indeed TBH who wrote the note.
[75]
In addition to this, the undue delay in tendering the note at the
first available opportunity created suspicion of its authenticity. The note
was first brought to the attention of the coroner more than a year after
it was purportedly found by ASP Nazri. His indifferent attitude, despite
being prompted by Dr Badi’ah earlier [who had given him a checklist to
investigate whether there was a possible suicide note as a person who
commits suicide may most likely leave behind such
a note] cannot be
translated as mere carelessness or neglect. In faci, this created mistrust
in us on the authenticity of this document,
ie the note.
In the light of
these circumstances and the shortcomings
in Mr Wong’s opinion, we
attached no weight to the note
in our deliberations.
23
Tan Boon Wah
[76]
Tan Boon Wah was the de facto proprietor of a firm known as
Merit Link Enterprise [“Merit Link”]. The proprietor was his wife. Merit
Link. supplied one thousand
five hundred
pieces
of Malaysian
flags
intended
for
a programme staged
by YB
Ean
in 2008. The cost
of
these flags was RM2,400.00. Payment
for this was made from
the
allocation entitlement
of YB Ean. Suspecting
that the flags had
not
been supplied, the Selangor MACC officers searched Tan Boon Wah’s
house
in Cheras, Kuala Lumpur,
at about 4.00pm on the
15". When
Tan Boon Wah informed them that he had to fetch his wife from work
as well as
his child, they
left but returned an hour later at 6.45pm
to
continue with their search. There was no search warrant for this exercise.
Finally at 7.45pm, they took Tan Boon Wah to their office on the 14!
floor of Plaza Masalam. They also seized his mobilephone, passports,
bank books and Merit Link’s rubber stamp.
[77]
. When they arrived at the office at 8.45pm, Tan Boon Wah was
placed
in
a small room measuring
10’ x 10’. The light in the room was
not switched on. There was a single chair with one of the roller wheels
missing. The only other piece of furniture was a drawer cabinet. As the
light was not turned on, the only light coming into the room was from
the outside where a pingpong table was placed. He was kept here for
an hour. Then, suddenly,
he heard
his name being called
out aloud
and the light in the room was turned on. Two officers came in. One of
them was identified as Bulkini Paharuddin [“Bulkini’].
[78]
.
At forty-eight years
of age,
Bulkini was much
older than
the
other officers involved
in this operation. He was not from the Selangor
MACC
but was one
of those who had been brought
in from HQ
for
the operation. We believe that he considered himself an
old hand
in
interrogation techniques, or “interviews” as the Selangor MACC officers
involved
in this operation constantly called
it.
According to Tan Boon
Wah, Bulkini and his team employed various methods to intimidate him
24
and
to try and make him admit that he did not supply the goods but
had received and pocketed the money instead. Methods employed were
mostly psychological, ranging from keeping the room dark, belittling him
for producing one child only after five years of marriage, threatening to
-bring his child into the office so she would cry upon seeing the pathetic
state
her father was
in, accusing
him
of being unkind
to
his family
by not wanting to return home early by cooperating with the MACC,
threatening
to strike him with
a pouch, forcing him
to stand
straight
without moving and made to look afar [and while this was happening
he was ridiculed by other officers playing pingpong outside the room],
calling him “Cina bodoh” [“stupid Chinese’], pointing
a finger cirectly
‘at him and close to the bridge of his nose, deriding
his position as a
municipal councillor, and threatening to hit him if he refused to cooperate.
At one time,
Bulkini even
sat on the floor to question him while Tan
Boon Wah was directed
to
sit on the damaged chair. Another method
employed was to try and pressure him to work with the Selangor MACC
so as not to make Bulkini angry. Of course,
all these assertions were
denied by Bulkini and the officers involved.
[79]
Another aspect of the evidence was that Bulkini said that at about
2.30am
on the 16" after he had finished questioning Tan Boon Wah
and briefed HH of Tan Boon Wah’'s recalcitrant attitude, he had told Tan
Boon Wah to go home and
to bring the relevant documents required
the following day,
ie on the 16. Tan Boon Wah instead had chosen
to stay
in the office to wait for his wife to produce these documents.
This was after Bulkini had allowed Tan Boon Wah to communicate with
his wife.
This assertion of Bulkini that Tan Boon Wah was free to go
was contradicted by the following evidence.
[80]
First,
Bulkini
had
not consulted anyone
in
authority
to
permit
Tan Boon Wah
to leave. Second, though
Bulkini had briefed HH
on
Tan Boon Wah’s refusal to admit the accusation levelled at him, there
was no evidence that HH had permitted
Bulkini
to release Tan Boon
Wah. Third,
if Tan Boon Wah had been released
but had chosen
to
25
stay instead, then there was no reason why Tan Boon Wah should
have remained
to have
his statement recorded on the 16"
up
to as
late as 11.30am. His statement could have been recorded much earlier.
Fourth, why had Tan Boon Wah not been issued
a demand notice to
produce documents when he had supposedly been released by Bulkini
whereas in fact he was furnished with such demand notice in the late
. morning of that day after his statement had been recorded?
If this was
the requirement, Bulkini did not comply with
it when he had offered to
release Tan Boon Wah.
Fifth, Tan Boon Wah only had
his belongings
returned
to him
on
the
16"
after
his statement had
been
recorded.
And Tan Boon Wah had
to acknowledge receipt for them.
If he could
have been released
earlier, there would have been
no necessity
for
these subsequent actions.
Sixth,
if Tan Boon Wah’s wife was to have
brought those documents, should Bulkini then not have been interested
to examine them to ascertain whether Tan Boon Wah had been telling
the
truth
after he
had
been accused
of lying
over so many hours?
Instead,
Bulkini chose
to leave
at 3.30am and Tan Boon Wah's wife
never appeared with the documents, which could only mean that Bulkini
fabricated this piece of evidence.
[81]
Apart from this, there were two important aspects of Tan Boon
Wah’s and
Bulkini’s confrontation pertinent to our inquiry.
First
is the
claim
by Bulkini that
at about 2.15am on the
16",
after questioning
Tan Boon Wah, and allowing him
to remain
in the small room which
Bulkini claimed that Tan Boon Wah preferred
to be
in [something we
find hard to comprehend], Tan Boon Wah went searching for Bulkini at
the pantry of the office. He requested for a drink and to be allowed to
ease himself in the toilet. Since the toilet was right next to the pantry,
Bulkini accompanied him there despite the fact that he was in the midst
of his meal.
Bulkini asserted that at the entrance of the toilet, he saw
a male Chinese about the same height as Tan Boon Wah who was also
about to enter the toilet. After Tan Boon Wah had gone
in but before
the toilet entrance door was shut, he heard Tan Boon Wah shouting
in
Mandarin “Ni loh!”, translated by Bulkini to mean “You fah!”. Deciding
that his meal took priority over what these two might be talking about,
26
Bulkini returned to the pantry to finish his meal. Tan Boon Wah went
back to where he had come from.
Bulkini never saw the other male
Chinese again.
[82]
Some three weeks after the death
of TBH,
Bulkini decided
to
make
a further police statement
on
the 20" August 2009,
the
first
having been recorded on the 31% July 2009.
In this further statement
he claimed that the person whom Tan Boon Wah had shouted at on the
morning of the 16" was in fact TBH. Though admitting that he had not
at the material time known TBH, he said that he had recognised him
from
a picture shown on the television news broadcast at 8.00pm on
the 16", lying dead
in Plaza Masalam.
What prompted his recollection
that
it was the same man he met at the toilet were the clothes worn
by TBH on that day: white pants and a dark jacket. He explained that
he had not mentioned this earlier for the reason that he needed to be
certain.
But as time went by
it became apparent to him that
it must
have been TBH who Tan Boon Wah saw at the toilet and had shouted
at.
[83]
Tan Boon Wah, though admitting that he did see Bulkini
at the
pantry that evening at about the time stated, denied that he either saw
TBH or spoke to him.
Instead, Tan Boon Wah affirmed that he met TBH
on his second visit to the toilet. However, he could not recall the exact
hour but claimed that no officers were there then. On this occasion, he
uttered to TBH: “Beng Hock, you are still here?”
In response Tan Boon
Wah recalled that TBH could have replied by uttering, “Em”. However
he was not certain of this. Since he was in a hurry to ease himself he
did
not engage
in further conversation with TBH.
But when he came
out of the toilet, TBH was gone. He then went back to the small room
to sleep until 10.00am on the16".
[84]
Though we are still narrating the facts of this case here, we think
it appropriate at this stage to express our view on the issue of whether
there was such an encounter between TBH and Tan Boon Wah and
that Tan Boon Wah had indeed uttered the words “Ni /oh!” at TBH.
27
[85]
The purpose of Bulkini introducing this alleged piece of evidence
was basically to support the theory that some parties involved
in the
claims under YB Ean’s allocation were blaming TBH for disclosing the
scheme of.arrangement between suppliers of goods and YB Ean which
the Selangor MACC was investigating.
[86]
Having considered the evidence,
it is our view that this assertion
of Bulkini was fabricated. The reasons now follow.
[87]
First, Bulkini never mentioned this meeting of TBH and Tan Boon
Wah in the toilet as witnessed by him in his first police statement made
soon
after the event.
By that time
he would have seen
the picture
of TBH
lying dead
on the
5" floor
of Plaza Masalam.
Instead,
this
disclosure was left to be made almost three weeks later. The lapse of
time renders this contention dubious.
[88].
|
Second,
in order for Bulkini to recognise TBH by the clothes he
wore there should have been
a full-length picture of TBH
lying dead.
We are doubtful whether such
a picture disrespectful of the deceased
would have been telecast
in any
of our national television networks,
_
bearing
in mind the sensitivities involved.
[89]
Third,
Bulkini’s description
of TBH
as
being almost the same
height as Tan Boon Wah was contradicted
by
a photograph tendered
as exhibit
| 219.
it showed TBH and Tan Boon Wah together with TBH
standing
a head taller over Tan Boon Wah.
'
[90]
Fourth, we are unable to accept Bulkini’s claim that his recollection
of the incident and recognition
of TBH could improve with time. This
is contrary to normal human recollection of events past.
[91]
Fifth,
the
toilet was
located just outside
the
pantry. Some
simple direction from Bulkini would have sufficed. Tan Boon Wah has
no physical infirmities and as such there was no need for Bulkini to
28
have interrupted
his meal
to accompany Tan Boon Wah
to the toilet.
Additionally,
Bulkini occupied
a superior position
in the investigation
vis-a-vis Tan Boon Wah.
[92]
Sixth, given that Bulkini was an experienced officer as proved by
“his long service with the MACC, we were surprised that Bulkini made
no attempt
to
pick
up any continuation
of the alleged conversation
between TBH and Tan Boon Wah
in the toilet. This was compounded
by four factors: one, Bulkini speaks and understands Chinese, having
been educated
in
a Chinese school up to primary six level where the
medium of instruction in Chinese schools in this country is in Mandarin.
And both TBH and Tan Boon Wah were conversing
in Mandarin. Two,
as an experienced officer and given the circumstances of an ongoing
operation, he should have been more interested in gathering intelligence,
more so when such a golden opportunity presented itself in the form of
these two witnesses who were perhaps sharing vital information which
could have assisted the investigation. Three, the alleged exclamation
of “Ni
loh!?
by Tan
Boon Wah
to TBH
should have piqued
Bulkini’s
curiosity to follow up with what was
to continue between the two
of
them.
But, instead,
his preference to finish
his meal took precedence
over the likelihood
of
a scoop.
Four,
he was already
in front
of the
entrance
of the toilet and
it would
not have been
difficult for him
to
have remained there
a
little longer to
listen
in. Any reasonable man
would have done so given the circumstances at that time.
193]
Having
regard
to these numerous contradictions
and
those
previously highlighted, we hold that this piece of evidence from Bulkini
is unworthy of credit and should be rejected.
Lee Wye Wing [“Lee’]
[94]
Lee was a project and programme agent. He arranged and put
together different parties to carry out projects and programmes funded
under YB Ean’s allocation.
In the course of doing so, he also prepared
29
the documentation to secure the approval and payment of the completed
works. He worked closely with YB Ean and inevitably with TBH, as the
political secretary to YB Ean.
[95]
On the 15", he received instructions to be present at the Selangor
MACC office. He arrived at 4.30pm the same day and met Sachi, who
was presumably
in charge
of questioning him. When
he saw Sachi,
the first thing Sachi did was to demand that he place his mobilephone
on Sachi’s table. And then Sachi directed him to sit at an area where
there was
a
sofa.
Sachi
proceeded
to
interrogate
him
by informing
him that the Selangor MACC had enough evidence to charge him with
an offence. He was then shown
a number of documents. He recalled
two programmes associated
with these documents:
Pesta Tanglung
[Lantern Festival] and the campaign
to abolish the ISA. According
to
Sachi, the things ordered for these programmes had not been supplied
but money had been claimed and collected in respect of them. Further,
Sachi accused Lee of using the allocation for political purposes. Sachi
then demanded that he produce documents such as receipts for the
purchases he had made for the programmes. Though Sachi did not use
violence on him,
he had raised
his voice and acted
in an aggressive
manner when questioning him.
[96]
. Between 6.00pm and 8.00pm on the 15", Lee was kept
in the
pantry. There he met his partner Wong Hong Chae, the proprietor of
Syarikat Hong Chae,
a firm which had undertaken some projects and
‘programmes for YB Ean. He was not permitted to speak to him. And
then
at or about 8.00pm,
he was driven
by
a team
of the Selangor
.MACC officers to his home in Seremban to collect documents. He was
supposed
to hand over
to them
receipts which supported
his claim
that the work under the programmes and projects had been carried
out. These officers did
not search
his house. He provided them with
receipts, bank books and statements. His computer CPU was however
seized.
30
[97]
A-set of documents given by Lee to these officers that evening
were the first pages
of exhibits
| 206A,
| 206B,
| 206C and
| 206D.
These were four sheets of handwritten notes depicting the distribution
of funds received from
the four programmes completed and claimed
for under YB Ean’s allocation. Accompanying each of these four pages
were supporting documents such as approval letters, confirmation of the
jobs completed, invoices, approvals by the District Office for payments
and photographs taken of the events.
[98]
After this exercise was completed, Lee was taken back to the
14 floor of Plaza Masalam. They arrived around midnight. He was then
placed at the Pen Mas area where he met TBH who was already there.
There
is no necessity for us to repeat what transpired between them
as this has been discussed earlier. Lee was kept there
until 2.00am
on the 16" when his statement was recorded.
[99]
The recording
of Lee’s statement took three hours.
It
did
not
finish until 5.00am on the 16". Then at about 6.00am he had breakfast
at the pantry and there he met Tan Boon Wah for the first time. Though
he had heard
of Tan Boon Wah and knew that he had provided the
sound system for some of the programmes, Lee had not met him before.
They spoke but were reprimanded by officers accompanying them and
told to use only Bahasa Malaysia to converse. Lee stayed there until
40.30am when one of the officers received a phone call to say that he
was to be released. He then
left Plaza Masalam immediately.
[100]
Except for the ten to fifteen minutes spent with TBH at the Pen
Mas area around 12.00am
on the
16",
Lee
did
not see TBH again.
He learned from his niece Lee Kee Hiong at about 5.00pm on the 16"
that TBH was dead.
[101]
Subsequently, after the investigation
into the use
of YB Ean’s
allocation was taken over by HQ from the Selangor MACC, Lee provided
further documents to the new investigating officer, Anmad Shafik Abdul
31
Rahman [“IO Shafik”), to justify that the claims and payments for the
programmes and projects were aboveboard.
[102]
What
is significant
in Lee’s testimony was the insight into the
arrangement for the expenditure of YB Ean’s allocation for projects and
programmes. Lee first explained the difference between a project [which
he termed
a “small project”) and
a programme,
as described earlier.
Then he elaborated that for small projects, because of the requirement
to use Class F contractors who could be bumiputras only, he arranged
with a Malay friend of his, one Mohd Harun Abdullah [“Harun”], to set
up
a number of bumiputra firms. When YB Ean required certain
civil
works to be done
in
his constituency or for the constituency that he
had adopted [since opposition state assemblymen were not provided
with the allocation, assemblymen from the ruling party in the State of
Selangor would adopt their constituencies
so that residents
in these
constituencies would also benefit from the allocation], he would prepare
for submission
a form known
as “Borang
A”. YB
Ean was required
to sign on this.
It was
a request for the required works to be carried
out.
[103]. According to Lee, TBH did assist him in preparing some of these
forms
by filling
in the particulars
into
a template
he had provided
to
TBH. This was to save time since TBH could complete this and give
it
to YB Ean
to sign immediately. This form would then be forwarded to
the respective District Office or Land Office for processing. Work would
not start until the approval from one of these offices was obtained. And
when the works were completed, Lee would prepare the invoice for the
contractor concerned to request for payment. YB Ean would then have
to sign a form known as “Borang B” to confirm that the works requested
had been completed. Payment would
not be made
until the technical
siaff of the respective District Office or Land Office had inspected the
works and confirmed that the costs for the items specified
in the claim
were in accordance with the standard amount set down by regulations.
Only when the respective officer was satisfied as to this would payment
be made from these offices to the contractor.
32
|
[104]
. As for programmes, though the procedure was somewhat similar
to small projects, the amount to be spent depended on YB Ean’s budget.
. When YB Ean decided to stage, for example, the Pesta Tanglung at a
~
cost of RM10,000.00, Lee had to work within this budget. Documentation
leading to this claim was found in exhibit
| 206C. For programmes there
was no necessity to use a bumiputra firm since
it did not involve civil
Works.
[105]
We noticed some shortcomings in this procedure. There was no
quotation tendered prior to the approval for a programme. Though Lee
[and
Lee Kee Hiong whose role we shall discuss shortly] confirmed
that he had to work within the budget, there was no one to verify as
to whether the goods and services supplied for the programme were of
the value claimed. At least for a small project, there were the standard
charges
laid down
by regulations
to gauge the cost
of works carried
out. But none of this applied to programmes.
[106]
According to Lee, TBH had signed on behalf of YB Ean on some
of the Borang
B. He had typed his name on these forms and put his
signature on them except that he had affixed YB Ean’s rubber stamp
on the place where he had signed. Since there had been no express
declaration that he had signed this document for and on behalf of his
principal YB Ean, we were of the view that the MACC officers seized
upon
this
to capitalise
on
their threat that TBH
had committed
an
offence.
[107]
The next area
of contention was the first page
of each
of the
exhibits
| 206A,
| 206B,
| 206C and
|
206D.
All these concerned
programmes.
In fact one
of them
[exhibit
| 206D] had nothing
to do
with YB
Ean.
It was
for
a
different constituency,
namely, Kampung
Tunku. The state assemblyman there had also engaged the services
of Lee and he had used
a firm known as WSK Services fo carry out
the programme. The proprietor of WSK Services
ai the material time
was Lee’s wife.
33
[108]
The distribution
of the proceeds
listed
out on these four first
pages
of the
said documents attracted some
interest
in
the MACC
Officers, particularly the consistent payments
to DAP Serdang Aman
in three of these [exhibits
| 206A,
| 206B and
! 206C] and another to
“DAP Malaysia” [exhibit
| 206D]. Lee and Lee Kee Hiong subsequently
.
explained
that these were
for repayment
of advances made
by this
political organisation
for the respective programmes.
In
the case
of
repayment to the DAP Serdang Aman, we were told that YB Ean had
a service centre there. He had used the DAP set-up for this purpose.
Apparently, contractors and suppliers for the small projects or programmes
would go there
to request
for payment
first since the
District Office
or Land Office would take one to two months to process their claims.
Thus, when payment was finally received from
the
District Office
or
Land Office, reimbursement had to be made
to the political
party,
ie
‘the DAP.
[109]
We find this rather odd when the parties involved in this process
were unable to exclude political parties from involvement in government
projects. The allocation was from the budget of the state government.
lt was supposed
to
be spent
for the
residents
living
in
a
particular
area
in the state. A political party should not be involved
in assisting
financially
in such activities. Otherwise
it would attract accusations, as
it did
in this case,
that such fund
or part of
it was channelled back
to the political party. We are unable to comprehend here as to why a
contractor or an agent undertaking to stage
a programme or to carry
‘out a small project required the financial assistance of a political party
to tide him over for the period while awaiting payment from the District
Office or Land Office. Surely anyone doing business should have capital
of his own
or should
make arrangements for the same.
[110]
Further, Lee had subsequently provided to
1O Shafik a number
of receipts issued
by the DAP
for the reimbursement
of the monies
advanced after HQ had taken over the investigation of the case.
But
none of the receipts was an exact match to the amount reimbursed to
the DAP as listed out
in the first page of each of the exhibits
| 206A,
34
| 206B,
| 206C and
| 206D.
Nevertheless, despite this and based on
‘the explanation provided
by
Lee, and the non-availability
of TBH
as
an important witness,
the MACC decided
that the
investigation
into
the suspected impropriety as
to the use
of YB Ean’s allocation
be
stopped.
Lee Kee Hiong [“Ms Lee”]
[111]
Ms Lee
is the niece of Lee. She
is a Klang municipal councillor
and an active member of the DAP. She was the general manager of
DAP Malaysia from 2003 to 2008.
[112]
Ms Lee described herself as a programme co-ordinator and had
worked as part-time staff in her uncle’s set-up WSK Services and Hong
Chae Enterprise [in the latter of which Lee and Wong Hong Chae were
~
in some sort of partnership]. She focused only on programmes where
payments were made from
the allocation. We believe that while Lee
took care of the paperwork,
Ms Lee did the groundwork,
like getting
the suppliers, arranging for services, ensuring attendance of participants
and arranging
the
publicity
for the programmes. When YB Ean
had
an idea for a programme with
a budget, she would be contacted and
would
try to work within the amount allotted
for
it. She claimed that
she also prepared
the accounts for the programme that was carried
out. She was also the author of the first page of each of the four sets
of documents [exhibits
| 206A,
| 206B,
| 206C and
| 206D).
[113]
Although
Ms
Lee
insisted
that
she
did
not
solicit
for these
programmes, records showed that most of them were given
to either
Hong Chae Enterprise or WSK Services.
[114]
Ms Lee said that she had known TBH when he was
a reporter
and was instrumental
in getting
him
to join the DAP
as
a member.
Though Ms Lee maintained that she did
not discuss the price of the
programmes with TBH, she contradicted
herself when she said
that
TBH
had given
his
opinion
at times
that some items charged were
excessive.
35
[115]
Counsel for the MACC suggested that there were improprieties in
the staging of the programmes where there could have been kickbacks
to the DAP from the expenditure incurred. He applied to us to demand
from Lee receipts
to match each advance made by the DAP and the
Subsequent reimbursement
for
it. We refused
his application
on
the
ground that this was not within our terms of reference. Further,
if the
MACC had desired to pursue
its investigation into this,
it could have
exercised
its discretion to do so rather than to make use of the RCI.
Mohd Harun Abdullah [“Harun”
{116]
Harun was candid enough
to admit that he had arranged with
Lee for the use of a number of bumiputra firms to carry out projects
under the allocation. To this end he had set up firms where his wife and
relatives were proprietors. He could not be a proprietor because he was
blacklisted by the banks from operating a bank account. The operators
of the bank accounts for these firms were the actual proprietors but
in
- practice Lee controlled the bank accounts. The proprietors would sign
blank cheques which Harun would then hand over to Lee. None of the
proprietors or Harun himself had carried out any of the works awarded.
As consideration for this arrangement, Harun would receive 5% to 10%
of the amount paid for each project as commission. Examples of this
were reflected
in exhibits | 206A,
| 206B,
| 206C and
| 206D, though
involving different firms.
[117]
At the request of the Selangor MACC, Harun arrived at the 14"
floor of Plaza Masalam
at about 3.00pm on the 15". He was made to
wait in the waiting room while the officer in charge seemed to “keluar
masuk, keluar masuk” [“moving
in and out”] except to engage with him.
He could not understand this when
it was the Selangor MACC which
had wanted him to be present for questioning.
He felt very anxious.
It
was not until after some four hours later at 7.00pm that he was called
in for questioning. This only took an hour.
It was finished by 8.00pm.
The officer who recorded his statement did not tell him to leave. Instead,
36
he was informed to wait for Lee to come back from Seremban before
he could go. This was a clear and obvious indication of cross-checking
one witness's statement with that of another which was being carried
out by those involved
in the operation on the evening of the 15" and
into the 16".
[118]
After Harun’s statement was recorded, he was asked to wait
in
an area outside Nadzri’s room where there was a sofa. At about 2.00am
on the 16" when there was still no indication that he would be released,
he used his mobilephone [which surprisingly was not confiscated] to call
a friend who worked
in HQ. He related his predicament to her,
a lady
by the name of Saemah. Saemah asked to speak directly to any of the
officers
in the premises. Harun then opened the door to a room nearby
and found TBH having
his statement recorded. The officer recording
TBH's statement asked him to look for another officer to attend to him.
-He then found another officer who happened to pass by and handed
him
his mobilephone
for the
officer
to speak
to Saemah. After
this
conversation between the officer and Saemah,
Harun was released.
This was further confirmation
that
a witness was
not allowed
to
go
home after his statement had been recorded.
In Harun’s case,
if not
for the intervention of Saemah, Harun would have been forced to wait
into the morning
of the 16", as happened with the other witnesses.
Decision on the second term of reference
[119]
Having considered
all
the evidence
in
its
entirety, we found
that TBH was driven
to commit suicide by the aggressive, relentless,
oppressive and unscrupulous interrogation to which he was subjected
by certain
officers
of the MACC who were involved
in
the ongoing
operation by the Selangor MACC on the night of the 15" and into the
morning of the 16".
[120]
Our reasons to support this finding are as follows.
37
Forensic pathological aspects
Chronology
[121]
Soon after the body of TBH was discovered, forensic pathologists
Dr Khairul Azman Ibrahim [“Dr Khairul’] from Hospital Tengku Ampuan
~ Rahimah, Klang [“the Kiang hospital’] and Dr Prashant Naresh Samberker
[“Dr Prashant’] from the University
of Malaya Medical Centre were
called
in to assist in the investigations.
[122]
Dr Khairul
and
Dr Prashant examined the body
at the scene
at 7.30pm on the 16. Rigor mortis was established
in
all the limbs.
The body was then transferred
to the Klang hospital
for postmortem
examination at 9.10pm on the 16". They jointly conducted the autopsy
on TBH at 12.00pm on the 17" and a joint report was produced by them
on the 24'July 2009. That report was produced before us as exhibit
|
42.
[123]
During the inquest the coroner, prompted
by an opinion given
on
the
first postmortem
examination
by one
Dr Khunying
Porntip
Rojanansunan
[“Dr
Porntip”],
a forensic
pathologist from Thailand,
who was engaged
by the State government of Selangor, ordered
Dr
_Shahidan Mohd Noor [“Dr Shahidan’] to conduct a second postmortem
examination on TBH. Dr Porntip had opined that TBH had been beaten
with a piece of wood over the back of the thighs, an object had been
thrust up his anus and that he had been manually strangled.
[124] However,
it must be emphasised that Dr Porntip was not present
at the first postmortem examination conducted at the Klang hospital and
she based her opinion on photographs and the first postmortem report
which had been sent to her. These photographs had been taken by the
police and were somewhat lacking in clarity. Dr Prashant had taken his
own photographs at the first postmortem examination but these were
~
not tendered at the inquest. We came to know of their existence when
38
Dr Prashant informed
us during this inquiry that he had, on
his own,
taken photographs as well. By consent of all parties, the photographs
taken by Dr Prashant were tendered in evidence before us and marked
as exhibit
| 190. The importance of these photographs became evident
during
the testimony
of the forensic pathologists before
us and
will
be elaborated upon later
in this report. The photographs taken
by Dr
Prashant were admittedly clearer and of better quality than those taken
by the police and sent to Dr Porntip.
[125]
Dr Shahidan conducted the second postmortem
at the Sungai
Buloh Hospital on the 22" November 2009. He produced an undated
report which we marked as exhibit
| 82.
[126]
Present at the second postmortem examination was Professor Dr
Peter Vanezis [“Professor Vanezis”] from the United Kingdom [“the UK*]
who attended the examination as an observer on behalf of the MACC.
He later produced
a report dated the 16" December 2009 which was
marked
as exhibit
|
90.
Dr Porntip was also present as an observer
on behalf of the State government of Selangor. She later produced
a
report dated the 25" January 2010.
This was marked as exhibit
| 89
in the inquiry before us.
[127]
At the coroner’s inquest,
a barrage
of questions was directed
at the forensic pathologists we have mentioned above,
exploring
in
minutiae the various possibilities of how the death of TBH could have
come about. They verged on the realm of speculation which we should
avoid. We had instead focused on probabilities based on the evidence
before us and not on possibilities. For this we shall deal with the various
aspects of the case.
Time of death
[128]
Except
for
Dr Porntip,
all
the other forensic pathologists who
testified
before
us agreed
that the estimated
time
of death
of TBH
39
was between 7.15am and 11.15am
on the
16".
Dr Porntip said
that
she was unable to give her views on this because she had not been
physically present
at the
material time
to see the body
of TBH. As
both
Dr Prashant and
Dr Khairul were at the scene not long after
its
discovery we considered that the time of death of TBH was as stated
~
by them.
Position of the body when found
[129]
The position of TBH’s body when found on the 5* floor of Plaza
Masalam
on the
16" was eight feet
six inches from
the wall
of the
building and three feet six inches from the outer boundary wall.
[130]
According to the evidence of all the forensic pathologists taken
together with the pattern of injuries sustained by TBH, which we shall
discuss
shortly,
the injuries sustained
by TBH were consistent with
those
of a person falling from
a height.
Further, one
Dr Sallehuddin
Muhamad [“Dr Sallehuddin”], an associate professor at the University
of Technology Malaysia, who had carried out simulation tests at Plaza
Masalam on falling objects, also confirmed that based on the position
-
where TBH’s body was found, TBH would have fallen from
a height
and from
a window above, which was believed to be the one marked
as.| 63j on the sketch plan [exhibit
| 63] of the Selangor MACC office
on the 14" floor of Plaza Masalam. The height of the window on the
14" floor from the level at which TBH’s body was found on the 5" floor
measured one hundred and eight feet.
[131] The window on the 14" floor was directly above the place where
TBH’s body was found. The window had a width of two feet ten inches
and opened out swivelling upwards from the bottom.
It opened out to
a maximum extent of three feet eight inches when fully extended to an
angle of forty-five degrees. According
to Professor Vanezis,
a person
would have been able to climb out of this window when
it had been
opened and extended.
Since
this window was
directly above where
40
TO
a
TBH’s body was found, we believe that TBH must have exited from
this
site.
Further, various MACC
officers who were familiar with
the
area had testified that this window was never locked.
It was frequently
opened by officers for ventilation when smoking
in the area.
Pattern of injuries
[132]
TBH suffered fractures of the bones of the legs and feet. Some
of these fractures were seen on x-rays
to be overlapping each other
in that the bones were out of their natural alignment as a result of the
fall from
a height which TBH sustained, as agreed by all the forensic
pathologists who testified before us. When TBH fell, he landed feet first
on the ground, leading to severe fragmented fractures of the bones of
the feet with overlapping fractures of both lower limb bones.
It was also
agreed
by them that TBH was conscious when
he fell. According
to
Professor Vanezis, TBH was consciously trying to absorb the pressure
of the
fall as an instinctive reaction. We are
in complete agreement
with this view and conclude that TBH fell from the window on the 14"
floor and was conscious when he fell.
[133]
TBH also suffered fractures in the pelvic region. They were mainly
of the sacrum
and
the coccyx.
In respect
of these,
all
the forensic
pathologists agreed that they were due to the initial impact of the fall
when TBH landed on his feet and buttocks almost simultaneously.
[134]
Further injuries suffered by TBH were fractures of the ribs and
manubrium
sterni [chest bone]. However,
the x-rays
of the chest by
themselves did not reveal
a fracture of the manubrium sterni. But Dr
Prashant maintained that such fracture was due to the bending outwards
at the junction of the manubrium and sterni and would not have shown
up on the x-rays. We agree with him since the junction of the manubrium
and
sterni
is
a cartilage and
it would have caused
a sublaxation
in
this region, resulting
in
a fracture. Such a fracture together with those
of the
ribs
in our opinion was consistent with TBH having falien from
41
a height owing
to the force transmitted upwards from the legs to the
chest when the body hit the ground.
[135]
TBH also had linear fractures
of the skull and haemorrhaging
on the surface of the brain. According to Dr Prashant and Dr Khairul,
these fractures were due to the transmitted forces from the legs upwards
through the mandible [jaw bone] and into the skull as a result of the
fall. Professor Vanezis was more general
in his opinion and explained
that these fractures were due to secondary impact as a consequence
of the fall. Dr Porntip, however, attributed this to a pre-fall injury,
ie of
TBH having been
hit by a blunt object before he fell.
[136]
We disagree with
Dr Porntip.
If TBH
had been
hit
by
a blunt
object and had suffered such severe injury of the head, he could
not
have consciously walked
to the window to exit therefrom. And
if,
on
the other hand, TBH
had
been unconscious and thrown
out
of the
window,
he would
not have landed
first on
his feet and then on
his
buttocks almost simultaneously, and finally on his hands. According to
Professor Vanezis, the duration TBH to impact the ground in a
fall from
a height of one hundred and eight feet would have been
at a rate of
approximately thirty-two feet per second. This would
not have given
him sufficient
time
to
recover consciousness
to take
the
instinctive
defensive action that he took
in attempting to break his fall.
[137]
On the other hand,
if TBH had been conscious and forced out
of the window, there would most probably have been
a struggle with
his aggressors.
Inevitably,
this would
have resulted
in TBH having
defensive
injuries on
his body,
indicating
a struggle. There were
no
such injuries found by the forensic pathologists. Then there would also
possibly have been foreign sources
of deoxyribonucleic acid ["DNA’]
transmitted onto his body and clothing by the aggressors. But Dr Seah
Lay Hong [“Dr Seah’], a forensic scientist from the chemistry department
who conducted the DNA analysis on TBH and his clothing, detected no
foreign sources
of DNA in the fingernail clippings
of TBH and on the
42
back outer side of his jacket except for one which later turned out to
be that of a person known as Gopala. This person had died as a result
of a road accident and
a postmortem examination was carried out on
him just prior to that on TBH. Hence, there had been contamination of
that portion of TBH’s jacket as a result of the transmission thereon of
Gopala’s DNA, owing to the postmortem table not having been scrubbed
clean completely.
{138]
When Dr Prashant and Dr Khairul conducted the first postmortem
-examination on TBH, they found a fracture of the mandible [jaw bone] with
bruising
in the region. From the photographs taken at this postmortem
by
Dr Prashant,
they noticed
a very
light pink stain over the neck
region. Dr Prashant, Dr Khairul and Professor Vanezis attributed this to
hypostasis,
ie postmortem staining. Dr Porntip, however, held the view
that this was due to manual strangulation. Based on the evidence
of
the other forensic pathologists, we were unable to accept her view as
the clear photographs taken by Dr Prashant were proof that the blood
in this area had seeped into the muscles as a result of the fracture of
the mandible, leading to postmortem staining.
[139]
We found
Dr Porntip’s view
to
be extremely speculative
and
therefore unacceptable.
In our opinion, this light pink stain on the neck
was most certainly due to postmortem staining.
It could not have been
the result of a bruise as claimed by Dr Porntip since
it was not seen
by
Dr Prashant and
Dr Khairul
at the
first postmortem examination.
This stain was due to the blood from the fracture of the mandible [jaw
bone] seeping
into the region
of the neck, simulating
a bruise
after
TBH had died.
{140]
Our view
is further reinforced
by Professor Vanezis who said
that
if TBH
had
been strangled
before
his death,
there would
have
been
petechial haemorrhages
in the eyes [pinpoint bleeding
spots].
Such spots were completely absent in TBH’s eyes, a fact that even Dr
Porntip admitted.
43
[141]
Another factor that ruled out manual strangulation was the absence
of a fracture of the hyoid bone and laryngeal cartilages [structures in the
neck]. These would have been damaged had strangulation occurred.
[142]
From the photographs taken at the first postmortem examination,
there were tramline abrasions measuring
two centimetres
by
a_
half
centimetre found over the chest region
of TBH. The Bar voiced
its
suspicion that this could have been caused by physical abuse inflicted
on TBH
before he died. But this suspicion was demolished when both
Professor Vanezis and Dr Porntip said that these tramline abrasions
were caused
by the folding and creasing of the clothes worn by TBH
at the time when he fell.
Clothing and personal belongings
[143]
Photographs taken at the scene where TBH fell and during the first
postmortem examination showed a number of tears on TBH’s trousers.
The first was right across the buttock region. Another was at the knee
area. The third was beside the zipper of the trousers. According to all
the forensic pathologists,
such damage
to
the clothing
is commonly
seen
in cases of a
fall from
a height. This would have included the
belt which TBH was wearing which was severed near the buckle.
[144]
The
Bar further voiced
its suspicion
that this tear on the
belt
could have been caused by TBH being held dangling by the belt out
of the window on the 14" floor and that the
belt snapped under
his
weight. We do not believe this was the case as there was no evidence
in support of this, and further both Professor Vanezis and Dr Porntip
acknowledged that such tear in the belt would be common
in cases of
_
falls from heights resulting from forces exerted during the fall.
[145]
Still on the belt, Dr Seah found three contributors of male DNA
types on it. Two of the contributors were identified. One was TBH himself
and another was Gopala. Then there was the third which Dr Seah said
she could not identify against all those whose DNA samples she had
44
taken. This included all the MACC officers who had been involved in the
case as well as the police officers and hospital personnel who had come
into contact with TBH after his death.
By this process of elimination,
we exclude the possibility of any of the MACC officers involved in this
case from having resorted to such techniques as holding TBH by the
belt and dangling him from a height.
Conclusion on forensic pathologists’ evidence
[146]
Having considered
the evidence as
a whole on
this aspect of
the case, we hold the view that TBH fell out of the window on the 14!
floor of Plaza Masalam on the morning
of the 16" directly above the
place where his body was found later.
Interrogation
[147]
TBH was taken to the Selangor MACC office for questioning just
before 6.00pm
on the
15".
His attendance, though purportedly upon
invitation, was secured through
insistent pressure
unlike
Lee’s
and
Harun’s attendance where they turned up voluntarily as requested.
In
_TBH’s case, he was accompanied by the MACC officers to the Selangor
MACC office after a commotion and some unpleasant exchanges and>
arguments
at the SUK building.
In
fact,
he was escorted there. We
were not surprised that given the harassed condition he was in, he was
unsettled when he met Anuar in the reception area on the 14 floor of
Plaza Masalam. He was forced to go immediately and his mobilephone
was confiscated by Anuar. To add to this, Manoharan who did turn up
at the Selangor MACC was not allowed to see TBH as promised. TBH
was kept in the dark of this fact by the MACC officers.
First Interrogation
[148]
Then TBH was taken to the Pen Mas area. There he underwent
a so-called “calming therapy” designed
by Anuar.
Instead
of leaving
TBH alone to ease his nerves as
a reasonable man would
left him
to
45
do, TBH was verbally assaulted by a pack of officers numbering six to
seven at one time or other during this period who were told to “chat”
with
him “to calm
him down”.
Repeated questions from them
of his
background were asked. This could have been easily secured by Azhar
who was officially told by Anuar to carry out this task.
[149] Though Anuar, the creator of this method of interrogation, pleaded
ignorance
of this inhume treatment, we
are
of the view
that
it was
done with a particular objective:
to break down TBH’s resistance and
to force him to say what they wanted.
An indication of this was what
happened
at the time when TBH
first arrived
at the Selangor MACC
office. Anuar who met him
at the reception area immediately asked
TBH what he could do to help. This
is something unusual to do when
you invite someone to your premises.
[150]
To our mind,
this was
a tacit invitation
by Anuar hinting
that
TBH should “rat” on his boss, YB Ean, so that TBH would be able to
extricate himself from the oppressive atmosphere that he found himself
in, having regard to the fact that TBH had already had had a run-in with
Anuar at the SUK building when the intention of the Selangor MACC
to target YB Ean had become apparent.
[151]
The therapeutic treatment designed by Anuar to calm TBH down
through a “chat” at the Pen Mas area must have had a profound effect
on him. He had to endure this torture for four hours. As observed by
his “companions” of this “chat”, TBH was reserved, quiet most of the
time, kept to himself, and only answered questions when asked. Such
a description
of TBH’s mocd
fits the characteristics
of a person who
was being intimidated.
Second Interrogation
[152]
The second stage
of the
interrogation came from Arman
and
Ashraf. Though these MACC officers attempted to describe this process
46
as an interview we find
it to be more
like an inquisition.
Arman and
Ashraf assumedc the role of inquisitors. They turned the four files over
to: TBH and demanded that he find for them matching documents
to
those obtained from TBH’s laptop. They then went further by picking out
suspicious documents from the four files and demanded an explanation
from TBH without first investigating into the matter themselves.
In fact,
they exceeded the instructions given to them by Hairul Ilham to only
find documents in the four files which corresponded to those from TBH’s
laptop.
[153]
Further,
during
this process, Arman and Ashraf would
have
instilled doubts and fear into TBH by declaring that Treasury directives
require
for the
calling
of three tenders before
a contract could
be
awarded. There was also
a claim by them that some of the contracts
had exceeded the permitted limit of RM10,000.00. Of course this was
not true. Under
a Selangor government circular dated the 13' August
2008, namely, Surat Pekeliling Perbendaharaan
Bil
6 Tahun 2008
[in
English, Treasury Circular Letter No
6 of 2008], YB Ean could award
a contract directly
to
any contractor without
the need
for
a tender
exercise, and further the permitted maximum
price for each
of these
contracts had been increased to RM20,000.00.
[154]
Perhaps, to give them the benefit of the doubt, both Arman and
Ashraf may not have known of this. But, as responsible MACC officers
they should have ascertained what the real position was before making
such accusations. On the other hand,
if both Arman and Ashraf had
known about
this, then they were intentionally exploiting TBH’s
lack
of knowledge
or ignorance with false information deliberately aimed
at confusing him. This was deplorable and must have caused severe
anxiety to TBH as reflected in his conversation with Lee soon after this
interrogation session. According to Lee, TBH would not have been in a
position to know the detailed requirements for projects and programmes
and
that
he,
Lee, would
have been
the
best person
to have been
questioned about this.
47
[155] Another aspect of this interrogation
of concern was the
ability
of Arman and Ashraf to extract from TBH
his password
to his private
email account. To many of us, this may be equivalent to disclosing our
pin number of our ATM card. At least in the case of an ATM card, the
extractor may be allowed to withdraw a limited amount of our money at
any one time before such unauthorised access
is reported. But
in the
case of an email account,
all our personal information and data would
be exposed immediately and permanently. This
is
a gross violation of
a person’s rights. TBH would have been very disturbed over this and
his disappointment and regret
in divulging his password to Arman and
Ashraf was further mirrored
in his conversation with Lee.
[156]
We are
of the view that this regret and concern
of TBH over
these matters remained festering within him. An indication of this could
be seen from his behaviour when his statement was being recorded by
Nadzri. This was further reflected in his being silent and being
deep in
thought when he met Tan Boon Wah near the toilet. Instead of being
excited and surprised to see a fellow individual
in a similar distressful
situation,
he maintained
a distance and was virtually silent.
[157] From
the evidence adduced, we
are
of the opinion
that both
Arman and Ashraf were specially selected
by HH
[though disguised
as instructions coming from Hairul Ilham] to carry out this interrogation
of TBH. They did not ostensibly happen
to be there and available as
everyone else was busy.
In fact there was an excess of officers that
evening, so much so that many were told
to go home after a certain
time. But Arman and Ashraf were instructed to remain for this special
task despite both having
prior engagements
to attend court hearings
the next day.
[158]
HH must have realised that this was an important and delicate
task to
be performed
since TBH was most
likely the “go-between”
person
of YB Ean
in relation
to the contractors or suppliers. And
for
HH to find evidence to prove his suspicion, he had to focus on TBH to
- disclose any irregularities or perceived irregularities that may have been
48
committed by YB Ean regarding the allocation. Arman was certainly a
bully and Ashraf, going by past records, was known to be successful in
securing evidence, according to his superior Hairul Ilham. Furthermore,
.
_Arman and Ashraf knew each other well and had worked very well
together previously as stated by Arman. From police records tendered
in this inquiry by one DSP Kamaruddin Awang from the Selangor police
criminal investigation section, out of the twenty cases reported against
the Selangor MACC officers for assault, Ashraf was involved in fourteen
of them and was positively identified by
a majority
of those who had
made the reports against him.
[159]
From
this, we doubt Ashraf’s
role that evening was limited
to
that of an office boy, just tagging documents shown to him by Arman,
and that he took no part in questioning TBH. Such perfunctory work,
in
our opinion, did not require one person specifically to perform. Arman
could have done this himself since he had handed over the four files
to TBH
to do the work for him. There was no need for Ashraf to be
present unless he had a more active role to play. From the way Ashraf
answered questions by giving selective answers due to feigned memory
loss at appropriate times, we found his evidence most unreliable. Having
taken into account all the relevant facts, we conclude that though no
force involving physical violence may have been applied
to TBH that
evening, threats of physical harm were most probably used by Arman
and Ashraf when interrogating him.
Third Interrogation
[160]
The
third
stage
of the
interrogation
kicked
in when
Nadzri
recorded TBH’s statement.
Initially, we thought
this process would
have
involved TBH
repeating
the answers that
he had
given
to
the
questions which
Arman and Ashraf had asked of him. And, therefore,
Nadzri would have just repeated
the same questions and typed
out
those answers as previously given. But this turned out to be another
forum of interrogation. Nadzri started afresh and questioned TBH
all
49
over again. This covered even
his background which TBH had spent
-
four hours earlier repeatedly relating
to the
six to seven
officers
at
- the Pen Mas area where he was first taken. Proof of this can be seen
from TBH’s statement [exhibit
| 69] recorded by Nadzri. Though Nadzri
may have been assisted by Arman’s notes taken during Arman’s and
Ashraf’s interrogation of TBH, yet Nadzri took two hours to accomplish
his mission which often times as disclosed previously was very tiring for
both parties. In fact we were puzzled over this inordinate length of time
taken.
If Arman and Ashraf had asked
all the pertinent questions and
TBH had provided the answers
[if we are to believe Hairul IIham who
Stated that he was satisfied that TBH was ready to have his statement
recorded], then this process should have been over in next to no time
unless of course: (a) Arman and Ashraf had not been asking questions
directly related to the documents, thus requiring Nadzri to start afresh,
or (b) Nadzri deliberately prolonged this process to torture TBH mentally
and disorientate him to agree to turn against his boss out of despair.
[161]
In the course
of examining
this
aspect
of the evidence, we
failed
to understand why the Selangor MACC adopted this approach
of assigning
a first
set
of officers
to do the preliminary interview
or
interrogation
of TBH
at the
Pen Mas area, followed
by another set
of officers,
ie Arman and Ashraf,
to interview or interrogate him
in
a
separate room, and yet have another officer,
ie Nadzri,
to repeat the
same process but this time also
to record
his statement. This
is
not
only duplicitous of work but contravenes sections 30 (1) (a) and 30 (8)
of the MACC Act.
[162]. Section 30 (1) (a)
of the MACC Act provides:
“An officer of the commission investigating an offence under this
~ Act may order any person to attend before him for the purpose
of being examined orally
in relation to any matter which may,
in
his opinion, assist in the investigation into the offence.”
50
[163]
Section 30 (8) of the MACC Act says:
“An officer of the commission examining a person under paragraph
(1) (a) shall record
in writing any statement made by the person
and the statement so recorded shall be read
to and signed by
_
the person, and where such person refuses to sign the record,
the officer shall endorse thereon under his hand the fact of such
refusal and
the reasons therefor,
if any,
stated
by the person
examined.”
[164]
From a perusal of these sections, we are of the opinion that the
law requires an
officer who calls
in
a person
for examination before
_
him
to also complete the task
of recording
his statement. Based
on
this interpretation of the above provisions, we are of the view that what
Anuar did by sending in a group of interrogators under the pretence of
calming TBH, followed by Arman’s and Ashraf’s interrogation or inquisition
of TBH, was against the law. Such unlawful intimidatory tactics would
have had grave consequences upon his mind and would have been
a
culminating factor that drove him to suicide.
[165]
Returning to Nadzri’s recording of TBH’s statement, we find that
this process added further strain and duress on TBH. This, as we have
said, was the third occasion that TBH was questioned. This time
it was
worse. His answers were vetted by Nadzri who then restructured them
before typing them into his computer for TBH to approve. As we have
observed, this exercise was demanding with documents having
to be
referred
to and checked.
And for TBH, we find that he would have
had to be careful with his answers since they were reduced to writing
and could be used to incriminate him as well as others. Taken
at this
time of the night and soon after the tormenting repeated interrogating
experiences, TBH had reacted aggressively to cause Nadzri to remark,
“Kalau you penat, saya pun penat juga sebab saya taip statement” ["/f
you are tired,
| am tired also because
| am typing the statement’). This
must have been the reaction of Nadzri
in response to some words or
51
acts by TBH. From this we can gather that TBH was utterly frustrated,
disappointed and angry. Further with such an utterance from Nadzri
in
the form
of a rebuke, TBH could have been driven further to want to
“escape” from
it all.
_ {166]
What we have described up to this stage are without doubt,
in
our opinion, factors contributing immensely to TBH’s decision
to take
his. life. However, we believe that there must have been something that
_
happened between 3.30am [after the recording of TBH’s statement was
completed] and 7.00am
[the earliest estimated time
of his death] on
the 16' that broke the camel's back, so to speak, that propelled TBH
to commit suicide.
TBH was not released after his statement was recorded
[167].
Contrary to what various officers, particularly Anuar and Nadzri,
portrayed to the effect that TBH chose to remain in the Selangor MACC
office after
his statement had
been
recorded, we
hold
a completely
different view. We believe that he was not released. He was still under
detention by the Selangor MACC.
[168]
Our reasons are these. First, TBH’s attendance at the Selangor
MACC office was practically effected by force. He had no choice as to
the time of the “interview” and if it was convenient for him. Evidence has
shown that he had no choice but to follow Anuar and his men immediately.
On top of that, he was also escorted. Under such circumstances we
cannot for a moment perceive that TBH would have desired to remain
a single minute longer
if he was indeed free to go.
In fact this desire
of his was made known to Sachi when he asked Sachi at the Pen Mas
area as to when he could go back after having waited for a long time
there.
.
[169]
Second,
since cross-checking
of witnesses’ statements was
practised
at the material time, TBH would have had
to remain
in the
52
premises
to wait
for
Lee’s
and Tan
Boon Wah’s statements
to
be
recorded. Lee only had the recording
of his statement completed
at
5.00am on the 16" and Tan Boon Wah at 11.30am also on the 16".
[170]
Third, none of the material witnesses such as Lee, Tan Boon
-Wah and even Harun was allowed
to go home after their statements
had been recorded. As for Harun, he had to use his “connection” to the
officer at HQ to secure his release. So this effectively demolishes the
so-called common practice
in the Selangor MACC that once a witness’
statement has been recorded, the witness
is free to go.
[171]
Fourth,
if TBH
had
actually been
allowed
to leave
by Nadzri
on the purported instruction
of Anuar, there was no reason why TBH
should not have been issued with an official notice to bring
in further
supporting documents demanded by Nadzri as was done with Tan Boon
Wah. This would have completed the formality for the exercise of his
release.
[172]
Fifth, there was a written memo issued by HH to all his officers in
June 2009 that an officer should always accompany a guest or witness
while he remains on Selangor MACC premises. This came about after
a previous incident where a visitor at the 14" floor of Plaza Masalam
had wandered unauthorised into Anuar’s room. Nadzri would not have
gone against this memo unless he had secured a replacement to keep
a watch over TBH
until he left.
[173]
Certain Selangor MACC officers who testified before us were at
pains to create an impression that their office was much sought after as
a place of refuge, for example,
in the case of Lee to wait for his wife
to bring documents while lying down uncomfortably on the sofa where
he just could not sleep due
to stress; Tan Boon Wah
not wanting
to
go home because he had had an argument with his wife and preferred
to remain
in
his small room and sleep on the floor; TBH not wanting
to leave because he was too tired or too embarrassed to face YB Ean
and preferred again the comfort of the sofa outside Nadzri’s room.
53
[174]
This
did
not make sense
to
us. Photographs tendered
of the
premises revealed that
it was
a working
office.
It was government
premises where security and safety should have been paramount.
it did
not have the trimmings of a hotel or even
a resthouse. And given the
mental condition of these witnesses who were accused of wrongdoing
instead
of being asked
to assist
in clarifying matters, we believe that
none of them would have preferred to stay a single minute longer if they
have been released. The impression given
by these Selangor MACC
officers was certainly not acceptable
to us and
is an extremely poor
excuse to support their contention that TBH, Lee and Tan Boon Wah
were
at liberty to leave but were so enamoured
of the MACC office
and the treatment they received that they chose not to leave despite
being free to do so.
HH’s active participation and involvement
[175]
HH had, from his own testimony and that of many of his officers,
been conspicuously absent from
all
the ongoing
activities that went
on
in
his office throughout the evening
of the 15 and early morning
of the 16". The impression given was that he stayed cloistered
in his
office appearing only on one occasion to go to the toilet and common
prayer room [surau] and then leaving for home at about 6.26am on the
16" to take his children
to school and returning to the office at about
8.30am that day. According
to him, he did
not take an active part
in
this operation except to act as a mentor to his subordinates. He did not
give directions on the mode and form of the interviews or interrogations
nor did he have knowledge of whe conducted them and
in respect of
- whom. He asserted definitely that he did not cross-check on the results
from the interviews or interrogations at that material time.
{176]
We found him to be arrogant, given to falsehoods, untruthful and
uncompromising
in
his stand.
His falsehoods, particularly
of his non-
active involvement
in
the entire operation
at the material time, were
exposed from the contradictory statements he made before us. But more
54
compelling was the confirmation from two of his own officers, namely,
Azeem and Azian who were brave enough to reveal towards the later
part of our proceedings the actual role of HH
in this operation despite
the fact that HH was their superior and
stiil holds
a senior position
in
the MACC as director of the MACC Negeri Sembilan.
[177]. According
to
them,
HH
was
actively
involved
in
the
entire
operation from
the very
start.
He was the
one who gave
all
the
instructions and directions on how the witnesses were to be interviewed
and interrogated and by whom. HH had attempted to exclude himself
from this responsibility and instead shift
it all to Anuar. He had called
for
a meeting on the evening
of the 16" [after the death
of TBH was
discovered] of officers from the Selangor MACC who were involved
in
the operation to brief them on this. We find no reason to doubt these
two witnesses.
In fact, there
is contemporaneous evidence to support
this where Azian, worried about this deceit, had texted
a message to
Anuar on his mobilephone to urge Anuar to expose the truth of HH’s
actual involvement.
[178]
We will now point out some discrepancies
in HH’s evidence of
his
purported
non-active involvement.
First, Anuar
as
the
10
of the
operation did not even know that Tan Boon Wah had been brought
in
for questioning. This
is unusual since Anuar was supposed
to be the
coordinator.
[179]
Second, Bulkini reported to HH directly of the negative result of
his interrogation of Tan Boon Wah. According to the chain of command
and for the purpose of co-ordinating the entire operation, Bulkini should
have told Anuar, and not HH,
of this.
[180]
Third, Anuar was purportedly sleeping
the entire early part
of
the morning of the 16 away despite being
in charge of synchronising
the results of the interrogation of the witnesses [TBH, Lee, Tan Boon
Wah and Harun] who were stil! being detained on the 14" floor of Plaza
Masalam.
55
[181]
Fourth, HH had claimed that he did
not know that the person
_ whom he saw at the pantry at 5.45am on the 16" was Tan Boon Wah
and did not question him about his presence there at such an unearthly
|
hour. This was most unusual when, just a month earlier in June 2009,
HH had himself issued a written circular to all his officers that witnesses
and visitors
in the Selangor MACC office should
be accompanied
at
all times.
This purported
indifferent attitude
of HH
in
relation
to the
presence
of Tan Boon Wah at the pantry implies that he must have
_
known that Tan Boon Wah was
still around because
of the ongoing
operation and he would have
in fact given direct instructions that Tan
Boon Wah should not be released.
[182]
Sixth, HH admitted that cross-checking of information extracted
from various witnesses
in
the Selangor MACC
office was
a norm.
If
‘ Hairul I|ham had gone home at around 3.00am and Anuar was sleeping
throughout the early part of the morning of the 16" and information from
TBH and Lee and perhaps Tan Boon Wah
[if he decided to change his
mind to bend to the wishes of the Selangor MACC officers] was coming
in, who was then doing the cross-checking? With HH remaining
in his
room and being
passionately involved
in this operation,
it would have
been he who was doing this job. While doing this, he would have also
given instructions to various officers involved to do what he considered
appropriate.
[183]
We
did describe
HH
as
being
passionately involved
in
this
entire operation. From the start we observed that he was convinced
of the truth of the information he had received. However, he was fully
aware of the fact that the information was grounded on the belief of
the informant that Selangor state assemblymen were receiving monies
from the allocation without the programmes being held or the projects
being carried out.
|
[184]
| As the information was grounded on
a mere belief and without
supporting
facts,
HH
should
have exercised
every caution
as
the
56
complaint was serious in nature and involved the State government of
Selangor because, as practised, the allocation was not available to the
state assemblymen in the opposition. Instead of carrying out some basic
groundwork to satisfy himself as to the veracity of that information, he
launched a
full-scale operation involving
a large number of witnesses
and mobilised the whole Selangor MACC and sought manpower support
from other MACC offices as well for this purpose. Though documents
related to claims on the allocation were previously secured from various
District Offices and Land Offices, these were not thoroughly checked
as could be seen from the instructions given by Hairul Ilham to Arman
to check the four files
for incriminating evidence when
this should
have been carried out much earlier. Other examples of an absence of
groundwork were the instances where Bulkini and Sachi accused Tan
Boon Wah and Lee respectively of not carrying out certain programmes
or projects when this ought to have been first verified.
[185]
An elementary approach would have been to have interviewed
various independent persons who had attended the organised functions
for the programmes
to check
if the programmes were
held
or
to
have visited the project sites to check whether the projects had been
completed. Such an approach could have also involved the questioning
of the officers of the District Office or the Land Office who had certified
that the programmes were held and the projects were carried out.
[186]
Next, questions were directed at witnesses pulled in that evening
of the 15" on the suspected inflated price of items supplied. We are at
a loss to understand why the Selangor MACC did not check this out
earlier with various suppliers for such items to find out their market price.
And even on the suspicion that there were kickbacks to the DAP from
these programmes and projects, common sense would have dictated
that
it would have been prudent to demand from the DAP
a
reply
to
these allegations and
to require the production of relevant receipts
if
the monies paid
out to the DAP were indeed the reimbursements
of
advances made earlier.
5/
Anonymous letter
[187]
In
the course
of the
inquiry,
an anonymous
letter dated
the
5" August 2009
on the letterhead
of HQ came
to
light. Purportedly
written
by
the MACC
officers
of Malaysia
it was addressed
to
the
chief commissioner
of the MACC.
It alleged
the corrupt practices,
misconduct and abuse
of power committed
by HH
in connection with
the cases involving TBH and Dato’ Seri
Dr Mohamad Khir Toyo, the
former menteri besar [chief minister] of the State of Selangor. HH was
said to be directly involved
in the investigation
in connection with the
alleged misuse of funds allocated
to YB Ean. The letter was marked
as exhibit} 256 in this inquiry.
[188]
HH,
in the course of the inquiry, testified that he was shown the
letter and
it was clear that
it had received the attention of his superior,
the chief commissioner. However, there was no evidence to suggest that
a formal investigation on the matter had been carried out, given that
the MACC has very wide powers to set
its investigation machinery
in
motion. By section 29 of the MACC Act, a report may be made orally or
in writing, and in the present matter before this RCI, the information that
set the investigation machinery of the MACC in motion had purportedly
been conveyed to HH merely over the telephone.
[189]
HH
had been with the MACC
for about nineteen years
at the
material
time and,
as
stated
earlier, was the deputy director
of the
Selangor MACC at the time of the incident, holding the rank of senior
assistant commissioner 1.
Based on the evidence gathered during this
_ inquiry,
it was clear indeed that HH was in full control of the investigation
in
this case, and
he was
not merely giving formal directions
in
the
capacity of a superior over his subordinates in the organisation. During
_the period
of the operation, twice
in
a day, once
in the morning and
again
in the late evening or at night, officers involved
in the operation
would brief him of the progress made and he on his part would give
specific directions
as
to
the further conduct
of the operation.
Even
58
when the officers were on the ground,
they would
call him
on their
mobilephones for directions should they encounter any problem
in the
operation, or he would call them to give directions.
[190]
In amplification
of these
facts,
it must be noted that HH
had
received the information of the alleged corruption involving the Selangor
state assemblymen
at
least
by
the 21* June
2009,
after which
he
_
directed Anuar to formally lodge
a report to initiate investigations into
the matter and appointed
him
as the
IO.
On
13" July 2009, Anuar
lodged the report adverted to earlier, which sparked off the operation in
question.
It was HH who directed Anuar and Hairul to obtain documents
from the District and Land Offices. According to the evidence, on the
15" he was in his room throughout the day ostensibly doing his normal
work while at the same time directing the operation from 5.00pm that
evening. He never left his room except to go out to the toilet and the
prayer room [surau] for prayers.
[191]
Around 5.45am on the 16", he left his room and then for home
and returned to the office at 7.15am. He attended the daily briefing by
the officers involved
in the operation
at 8.30am. Around 11.30am,
he
left the office for HQ for a discussion on purported unrelated matters
with
officers there,
and
after that
he
left
for the Attorney-General’s
office
in relation
to other matters.
En
route, around 2.00pm,
he said
he received a call from Anuar informing him of the death of TBH. He
directed Anuar and Hairul
to join him immediately
at HQ. But before
they arrived, he and the deputy chief commissioner ieft for the Selangor
MACC office.
[192]
We were unable to accept the testimony of HH as related above
as the truth, taking into account the activities that were going on during
the evening of the 15" right up to the morning of the 16" on the 14"
floor of Plaza Masalam just outside HH’s room. No reasonable man
would
be able to accept as true the story
of HH
that he was not
at
all concerned with what was actually happening
on
the premises
of
59
the Selangor MACC right under his nose and which involved several
witnesses, including TBH, who had been summoned or brought
in by
his officers under his direction and were in their care and custody. No
person in his right mind would believe that HH would have been content
to just remain
in
his room on the same floor where
all the activities
referred
to in this report were going on and was merely waiting to give
directions
to the officers involved
in the operation as and when they
needed his advice. Such a stance was contrary to his action
in leaving
for home
in the early morning hours of the 16" to take his children to
school and then rushing to be back in the office for the morning briefing
on the operation by his officers. This certainly was not the action of
a man who had no personal interest
in the ongoing operation, having
regard to the further fact that he had virtually gone without sleep the
_ whole of the 15" and the morning of the 16".
[193]
On
the testimony adduced before
us, however,
there was
no
direct evidence to prove that HH had a hand
in the death of TBH. But
as the seniormost officer involved
in the operation and being physically
present
in the office when the officers involved
in the operation were
interrogating TBH virtually without
let,
he should
be held responsible
for the actions taken by him and
his officers which propelled TBH
to
commit suicide. We shall elaborate further on this aspect of the evidence
under the heading “Fourth interrogation” which now follows, apart from
what has been stated above.
Fourth Interrogation
[194]
We agree with the submissions of the Bar that HH was just too
stubborn [such trait was also displayed when he gave evidence before
us] to retreat from his mistake
in mounting such
a massive operation,
particularly when
it had received wide and extensive press coverage.
To overcome his disappointment at the negative results obtained from
these witnesses up to that stage, he must have resorted to a personal
and more aggressive interrogation
of TBH
since TBH,
as we have
60
explained,
held
the
vital
link between YB
Ean and
the suppliers
or
contractors, and
if anything were to be made to “stick” on YB Ean,
it
would have to be through TBH.
[195]
We believe that he must have been assisted upon this foray by
- Anuar and Ashraf. We name Anuar because his alibi had been proved
to be false. As disclosed, hardly anyone saw him sleeping at the place
he claimed to be at between the hours after 3.30am and 7.00am on the
16". Even guard Khairudin who said that he saw Anuar sleeping
in the
visitor's area [ruang fefamu] pointed out an area which was different
from the area where Anuar claimed to have slept at. The evidence of
guard Khairudin
itself was not credible as he was found
to have with
him
a prepared script while testifying
in the witness box which proved
beyond peradventure that he had been coached.
Further, Anuar
lied
about the role he had played in order to cover up for HH. And on top of
these factors, he was a trusted senior officer of HH who was prepared
to sacrifice himself for HH, the other such officer Hairul Ilham having
gone home by that time.
[196]
As for Ashraf, we found
it most unusual for him
to fetch TBH
a glass
of water at about 4.40am on the 16". This established three
things.
First, Ashraf was around during this time. Second, though TBH
knew where the pantry was and could have gone there himself to get
a drink of water, yet he demanded Ashraf’s services. This was most
extraordinary
in view of Ashraf’s poor track record on physical abuse
of suspects, which made
it unlikely that he would entertain
a demand
from a person who was inferiorly situated in relation to him at that point
in time.
Though TBH was termed
a “witness”,
he was treated more
like a suspect. Third, was the rather impolite and demanding nature of
-
the request: “Hoi! Saya mahu minum air” [“Hoi!
/ want to drink water’).
This could be said
to be downright rude, yet Ashraf complied. From
this we drew the inference that Ashraf was not thoughtful and generous
in performing
this service
but had done so out of remorse for some
of the improper things that he and those involved had done
to TBH
during the hours of 3.30am fo 7.00am on the 16".
61
[197]
The acts committed by these three persons, namely HH, Anuar
and Ashraf, were most probably in the form of another round of intensive
interrogation
of TBH
to coerce him
into making
a statement
that
it
was YB Ean who directed
him
to commit unlawful
acts
in handling
the allocation. This session must have been very taxing on TBH both
physically and mentally. He had been deprived of sleep throughout that
night and into the morning and had had to endure persistent, aggressive
and unscrupulous questioning. His physical condition as described by
Ashraf when fetching him the glass of water was that TBH had moved
to sit in an upright position very slowly. This fourth interrogation session,
to our minds, must have been the final straw that broke the camel’s
back.
Raymond
[198]
Before we came
to this finding, we did take into consideration
the evidence of Raymond who had testified that he saw TBH at 6.00am
on the 16" lying on the sofa outside Nadzri's room.
If this was true,
then TBH must have committed suicide after 6.00am on the 16. This
would
fit into the estimated time of death of TBH which was between
7.15am. and
11.15am
on
the
16",
as determined
by
the forensic
pathologists.
However, despite this, we entertained grave reservations
over Raymond’s evidence.
In our opinion, he was not a reliable witness
and was used by those responsible for TBH’s death to distance them
from
their wrongdoings
by creating
an impression that TBH was
not
only alive at 6.00am on the 16" but was also resting comfortably and
peacefully on the sofa outside Nadzri’s room.
[199]
Raymond
had
said
that
he
recognised TBH
at 6.00am
that
morning because
he had
first seen him
prior to this
in the Pen Mas
area around 12.00am on the 16" talking to one other Chinese person.
At that time he had happened to pass by that area on his way to the
administrative section
to get some writing paper.
Next,
he had said
that he recognised TBH from “The Star’ news printout shown to him by
62
Anuar earlier, of the latter arguing with Manoharan with TBH standing
in the. middle. This had been taken at the SUK building. We found this
claim of Raymond difficult to accept for the following reasons.
First,
when Raymond purportedly saw TBH at the Pen Mas area, he did not
know who TBH was.
He only had had
a glance
at the two Chinese
persons sitting
in this area. He had not looked directly at their faces.
He had only seen their backs and their heads. Second, even though
TBH’s face appeared
in the internet news which was downloaded and
shown
to him
by Anuar
prior
to
his coming
to know that TBH
had
died, we doubt that he would have taken particular notice of TBH. The
focus then was on Anuar who took pains to show off to his colleagues
that he was being featured
in the media. Third, the particular location
where Raymond
said
he had seen TBH
at 6.00am was dark. And
if
he had
not got close to TBH,
he could not have been certain that
it
-
was indeed TBH. Fourth, what had brought Raymond to the area was
the coincidence that he was on his way out of the 14 floor of Plaza
Masalam from his room. This was not his usual route. He said that he
had
to come this way because he had forgotten
to bring his access
card that was required to open some doors along his normal route. We
found this strange when other MACC officers informed us that almost
all the internal doors of the office that evening were disarmed for the
purpose of the operation
in order to facilitate the movement of officers,
including those not from the Selangor MACC office, to enable them to
move about freely. So this excuse of Raymond to use a different route
to leave his room was highly suspicious.
[200]
Raymond
in our opinion was used as
a time-marker by those
concerned with TBH’s death. Aside from all the contradictions exposed
to
support
our view,
there was another factor:
his punch
card
to
indicate the time of his entry into and exit from the office.
His punch
card indicates that he had punched out at 6.04am on the 16" and then
virtually immediately at 6.05am on the same day,
it shows that he had
punched
in again. When questioned on this rather curious act of his,
he explained that he did so with the intention of not returning
to the
63
office that day. We found this most illogical.
First,
if he was going
to
attend court that day during office hours, there was no necessity for
him to have punched in since
it would have been physically impossible
for him to come back to the office while he was in court. Second,
if he
had punched
in to indicate that he was in the office at 6.05am on the
16", when would he then punch out since he did not intend to return
to the office that day? We were
in agreement with the Bar that this
punching
in and punching out almost simultaneously was to create the
firm impression that he was
in the office at the material time.
[201]
As
it became obvious
to
us
that Raymond’s evidence was
tailored
to
fit certain objectives, which
in
this case dovetailed those
of the MACC officers responsible
for TBH’s death, we rejected
his
evidence as being unworthy of any weight or consideration
in respect
of the time he claimed to have seen TBH
at 6.00am on the 16".
Forensic psychiatric aspects
[202]
To understand the probability that TBH took
his own
life,
the
traits of his character and the changing states of his mind as a result of
what he underwent on the 15" and the 16" must be first understood.
[203]
Character comprises the aggregate features and traits that form
the individual nature of a person or thing.
It is also defined as a moral
and ethical quality of a person.
It
is sometimes used interchangeably
with the term personality which is the sum total of the physical, mental,
emotional, and social characteristics of the individual: see
Dictionary.
com.
[204]
State of mind
is defined as:
-
(a)
a temporary psychological state; and
(b)
the state of the person’s cognitive processes:
see Dictionary.com.
64
[205]
An
individual's
state
of mind
is
related
to
his character and
personality. Despite the term “mind” which denotes mental status, the
function and influence of the emotion [which would influence the mind
in many conditions] must not be ignored. This state of mind
is most of
the time predictable, especially in normal and in expected situations. But
in trying times and when severely-negative life events are experienced,
such
as when
stress
[physical, emotional
or mental,
or
all
of them
together] is overwhelming, the state of mind of the individual could not
only undergo profound changes but would become unpredictable: see
Social and Emotional Influences
on Decision Making and the Brain,
by Maurico R Delgado & James G Dilmore, 9(2) Minnesota Journal
of
Law, Science & Technology, 899-912 (2008); Study: Emotion rules the
brain’s decisions [http:/Awww.usatoday.com/tech/science/discoveries/2006-
08-06-brain-study_x.htm].
[206]
lt must
be mentioned
at
this juncture
that the
state
of mind
of an
individual
held
in custody should
be
of utmost concern
to
his
custodians. Their sensitivity towards
the psychological
state
of their
detainee reflects a humanely commendable attitude. This should prevent
abuse of those held in custody by detainers: see Liability and Wrongful
In-Custody Deaths by Darrell
L. Ross,
in Sudden Deaths in Custody
by Darell
L Ross & Theodore C Chan, ed 2006, Totowa, New Jersey,
Humana Press: 173-202.
The psychiatrists
[207]
To enlighten
us
on
the psychological aspects
of TBH’s
mind,
were three psychiatrists. They were supplied with relevant documents
tendered
during
this
inquiry
and
had
interviewed
family members,
friends and colleagues of TBH. Each of the psychiatrists gave us his/
her expert opinion on the matter and these were tendered to us.
The
three psychiatrists who submitted their reports to us were:
(a)
Dr Badi’ah,
a forensic psychiatrist and
Dr Nor Hayati
Ali
[‘Dr Hayati"],
a community psychiatrist from
the Ministry
of Health
of Malaysia, who prepared
a joint report at the
request of the MACC; and
65
(b)
Professor Paul Edward Mullen [“Professor Mullen”], Emeritus
Professor of Forensic Psychiatry, Monash University, Australia,
who was brought
in by the Bar and prepared
a report at
their request.
[208]
In. his report, Professor Mullen furnished the following opinion
and, made the following observations, which we summarise and also
-
quote below.
[209]
TBH, according to Professor Muilen, “...was firmly
in the lowest
risk group for suicide when he was taken
into MACC custody.” And
if TBH
“...did
kill
himself,
things were
likely
to have occurred
both
to undermine
his psychological
stability and
to frighten
him
literally
to death. Also,
his concern for his family, and for his future wife and
mother of his child, could have been turned into a weapon against him
by a totally unscrupulous interrogator, as could
his loyalty and sense
of responsibility to his colleagues.”
[210]
Professor Muilen then stressed that certain interrogation techniques
would turn “...a law-abiding citizen with no prior experience of being
in
the power of apparently unconstrained authority, particularly if they were
cut
off from
all contact with sources
of help and support...” suicidal
as “[p]Jeople do
not
kill themselves because they have
a method
to
hand,
they use
the methods
at hand
if they have become
suicidal.
The window from which TBH
fell would have presented an obvious
and easily accessible method. That there
is such
a jarge window so
easily opened on the 14" floor of any offices, let alone an interrogation
centre,
is to me extraordinary.”
[211]
Professor Mullen was of the further opinion that “...it would be
remarkable for anyone to voluntarily remain
in
a place where he had
been interrogated for eight hours in preference to returning home. TBH
could
not
but have been aware
of the anxiety
of friends and family
about his state. Given his enthusiasm for texting and phoning
it is very
66
difficult to understand that he would
not have immediately reassured
them, whatever the time.”
[212]
According
to
Dr Badi’ah
and
Dr
Hayati, TBH came
from
an
intact family and had a stable job. Having no history of mental illness,
impulsivity or substance abuse, TBH would be in the low-risk category for
suicide.
In fact, he was looking forward to his wedding and his fiancée
was then pregnant. However, both Dr Badi’ah and Dr Hayati were quick
with their reservation that nevertheless, “literature review for suicide
in
custody showed
that the protective factors
in the general population
may not have the same effect compared to people
in custody.”
[213]
Dr Badi’ah and Dr Hayati further pointed out that during the few
weeks
prior to TBH
being questioned
by the MACC,
he had
had
to
face and deal with two life-impacting events which could have added
stress to his life. These would have changed his habits and demeanour
subsequently. They were:
(a)
the bringing forward
of the date
of his wedding from the
original
set date
in 2010
to
the
13" October 2009 upon
discovering that his fiancée was pregnant; and
(b)
the gathering of the documents by the Selangor MACC from
the District and Land Offices insinuating a misappropriation
of the allocation by his boss YB Ean.
According to these two doctors, these could be regarded by TBH as a
potentially threatening situation.
Character of TBH
[214]
From his family members and friends, we were able to have
a
clear description of TBH’s character traits. He was hardworking, diligent,
responsible, devoted
to
his family, loved children, and was faithful
to
his boss YB Ean.
He appeared
to
be cruising along fine
in
life, and
67
there was good reason to believe that the future appeared promising.
As
a member of the DAP and the political secretary of YB Ean, TBH
must have been devoted to its cause. His friends and family members
found him trustworthy and pleasant. He was seen
to become angry
if
and when the situation warranted
it. Not known to demonstrate extreme
emotions,
he was never seen to succumb to rage.
Psychological changes
[215]
Psychologically, although
a wedding and the preparation for
it
could have been a positive life event for TBH, it could also have brought
stress to him: see Holmes-Rahe Social Readjustment Rating Scale
in
Journal of Psychosomatic Research, (1967) Vol. 11, pp 213-218. Adding
this to the negative
life events,
it could have been worse.
[216]
. However, despite the Selangor MACC commencing inquiries and
| investigation
in June 2009,
of which TBH must have become aware,
he was
still able
to take things
in
his stride and manage the usual
stresses and challenges of tife.
[217]
But when
he was taken
in
by Anuar on the
15", TBH shifted
psychologically from the low-risk group to the high-risk group for suicide.
We shall now proceed
to deal with the events which,
in our opinion,
pushed him into that stage.
[218]
When the MACC officers raided YB Ean’s office and started
a
search there, the first person he wanted to contact after communicating
with his boss, YB Ean, was his lawyer, Manoharan. TBH appeared to
have been propelled into a fear-inducing situation as shown by the pattern
of calis that he made when the MACC officers were conducting their
investigation in the office. He needed reassurance from his colleagues,
hence the calls he made. He was pacified when given the chance by
Anuar to discuss his concerns privately for a few minutes with both YB
Ean and Manoharan
in the SUK building before he was taken away to
68
the Selangor MACC office. But when he was not allowed
to see both
of them after that when he was
in the Selangor MACC office,
he was
cut off from the outside world. The sense of isolation was intense as
was demonstrated by his behaviour as described by all those who came
into contact with him on the 15" and the 16". Added to this was the
deprivation of the use of his mobilephone.
[219]
It was an accepted fact that TBH found companionship
in
his
mobilephone. It was also an instrument most often used by him to relieve
his stress. The analysis made on TBH’s mobilephone-call pattern showed
that he would call his friends and family at regular daily intervals. Taking
his mobilephone away would have meant robbing him of his means to
reality and sanity. And the MACC officers did just that. Thus, for the
first time
in his life, TBH found himself totally and completely isolated
from the outside world and thrust into desolation.
[220]
Another factor which had serious implications
on TBH was the
surrendering of his laptop to the officers of the MACC, and worse than
this was being forced to divuige to the MACC officers the password to
his email account. As this held the key to many things private, TBH must
have felt that his privacy was violated under duress, and the secrets of
his life were in the open. This was a gross violation of TBH’s personal
right, which would have compounded
his anxiety and worry.
[221]
TBH must have arrived at the Selangor MACC a harassed and
unsettled man. This turn
of events
in
his
life was very sudden.
But
before he was able to recover, other devastating situations were foisted
upon him that precipitated him beyond the threshold of his tolerance.
[222]
TBH underwent four stages of interrogation as related earlier. His
interrogators later claimed that these were interviews to extract information
from witnesses like TBH. But other witnesses testified that techniques
employed would range from mild interviews to harsh interrogation. All
these interrogators were known to have applied intimidating approaches
during the interrogation they carried out.
69
[223] Even at the outset, the first stage of interrogation was proven to
be already a psychological burden on TBH. This “therapy” created by
Anuar lasted for four hours, during which TBH was found to be reserved
and quiet. Keeping to himself, he was only answering questions when
asked.
[224]
Arman and Ashraf behaved like inquisitors in an inquisition at the
second stage of the interrogation. They instilled doubts and fear into
TBH as regards the Treasury directives that required for the calling of
at least three tenders before a contract could be awarded. But
if both
of them intentionally exploited TBH’s ignorance or iack
of knowledge
of the new set
of rulings and directives
of the State government
of
Selangor on this matter,
their effort to confuse and cause anxiety to
TBH was most deplorable indeed.
[225]
During
his interrogation, TBH
had
to face MACC interrogation
heavyweights like Arman the bully [who would manipulate his witness
to obtain evidence], Ashraf the abuser [who was Machiavellian
in
his
method
to secure evidence] and HH the arrogant leader [who would
have no qualms in lying as long as his ends were achieved, regardless
of the means employed].
[226]
HH was described by MACC officer Azian as a workaholic. As a
boss, he also instilled fear in his officers. Opportunities for promotion
.
rested mainly
in his hands. The whole range of interview-interrogation
techniques would have been employed by his officers and himself to
satisfy his desire to obtain results
in the shortest possible time. Thus,
it was not
at
all surprising that most of his officers, save two strong
souls [Azeem and Azian] who pointed out the truth, had the inevitable
habit of lying.
[227]
The third stage of interrogation by Nadzri only worsened TBH’s
plight. This stage only served
to demonstrate how unscrupulous the
interrogator could be. Nadzri repeated the whole process of the previous
70
stages
of questioning
and
interrogating TBH.
He took two hours
to
complete an excruciatingly laborious session which proved to be trying
for both parties. TBH had
to bear the weight of abusive and intense
interrogation because he was the vital and sole link between YB Ean
and
the contractors and suppliers
for the projects and programmes.
Breaking TBH would mean the attainment of a much sought after result
to get at YB Ean.
[228]
Despite the habitual denials by the MACC officers-cum-interrogators,
it could be safely concluded that their interrogation methods ranged from
earnest and intensive questioning to outright psychological intimidation
and physical threats. Since this had been their approach, there was no
reason to believe that TBH had received different and less aggressive
treatment as compared with the rest.
[229]
By the time the fourth
or final stage
of the interrogation was
over, TBH would have been almost a mental and physical wreck. When
Ashraf fetched him
a glass
of water [demanded
impolitely by TBH],
TBH was
said to have sat up very slowly.
[230]
These intense stages of interrogation must have created serious
doubts
in TBH’s mind as regards
his actions
in relation
to his duties
as YB Ean’s political secretary. Signing his name but affixing YB Ean’s
seal, the absence of at least three quotations before the awarding of
a project or programme, the alleged kickbacks to the DAP, the direct
awards of projects, and fixing prices to goods required for projects also
weighed heavily on his mind.
Contributing factors
[231]
We note that TBH’s relationship with
his boss, YB Ean, was
a
mutually cordial and respectful one. TBH had never been found by his
family members and close friends to have complained about the latter.
Thus, attempts
to plant ideas
of betrayal
of his superior would have
been very stressful to TBH.
71
[232]
There were also other contributing factors such as:
(a)
sleep deprivation;
_(b)
an uncomfortable and unfamiliar environment; and
(c)
being held
in custody for a long time.
Conclusion on forensic psychiatric aspects
[233]
Tormented
by this predicament, TBH experienced
a change
in
his state of mind. And
in
a matter of hours, this change transformed
him from being in the low-risk group for suicide into the high-risk group.
The doubts, extreme emotional
conflict and
the immense feeling
of
guilt were ail intolerable. Finally, precipitating the irreversible crisis that
happened
to him between 3.30am and 7.00am
on the 16, was
the
last straw that broke the camel’s back. Finding no viable strategies to
surmount the hurdle of accusations levelled, he found himself unable to
escape from the suffocating quagmire in which he was trapped. Losing
all hope, TBH would have felt trapped and have succumbed to despair.
Since the window on the 14" floor was either open or could be easily
opened and
it was conspicuous and easily accessible near where he
was on
the sofa outside Nadzri’s room, TBH would have found that
the only way for escape from the torment he was undergoing was by
jumping out of the window, even though
it meant taking
his own
life.
First term of reference
[234]
In relation to our terms of reference, as stated earlier, we have
approached the issues by dealing with the second term
of reference
first and then with the first.
To recapitulate, the first term of reference
reads as follows:
—
“1.
to enquire whether or not there was any impropriety
in
the
conduct of the examination of Teoh Beng Hock in the course
of an investigation into a Shah Alam report number 0052/2009
72
by the Malaysian Anti-Corruption Commission
in relation
to
its standing
orders and
practices and
to recommend
any
appropriate action, where necessary.”
[235] The facts relating
to the taking
of TBH from
his office on the
15" floor of the SUK building to the Selangor MACC office on the 15'
has. been dealt with earlier in this report and we shall not repeat those
facts here except to allude to them where necessary.
{236]
During the course of the inquiry the MACC made available
to
this Commission
its applicable standing orders at the material time of
the investigation.
[t also answered certain questions posed and explained
certain aspects of its operations.
Search warrant
[237]
It was the stand
of the Selangor MACC that
all the persons
who were questioned or interviewed in the investigation then underway
were called
in for questioning or interviewing as witnesses and not as
suspects. However, we note with concern that officers
of the MACC
involved in the investigation acted under a misapprehension of the law
when they purportedly exercised their powers under the MACC Act.
[238]
In
carrying
out
their
raids
on
the various places referred
to
earlier in this report for the purposes of their investigation, the officers
purported
to invoke sections 30 and
31
of the MACC Act as well as
other provisions
in the Act.
It was not denied that the officers raided
the various places without any form of authorisation as required under
section 31(1) of the MACC Act. For convenience, we reproduce hereunder
the whole of section 31 which reads as follows:
“31.
Power of search and seizure
(1)
Whenever
it appears
to
the public prosecutor
or
an officer of the commission
of the rank
of chief senior
73
_ assistant commissioner or above as authorized by the public
prosecutor upon information, and after such inguiry as he
_thinks necessary, that there is reasonable cause to suspect
that in any place there
is any evidence of the commission
of an offence under this Act, he may by written order direct
an officer of the commission to
—-
(a)
(b)
(c)
(d)
(e)
enter any premises and there search for, seize and
take possession
of, any book, document, record,
account or data, or other article;
inspect, make copies of, or take extracts from, any
book, document, record, account or data;
search any person who is in or on such premises,
and for the purpose of such search detain such
person and remove him to such place as may be
necessary to facilitate such search, and seize and
detain any article found on such person;
break open, examine, and search any article, container
or receptacle; or
stop, search and seize any conveyance.
(2)
Whenever
it
is necessary so
to
do,
an
officer of the
commission exercising any power under subsection
(1)
may-
(a)
(b)
break open any outer or inner door or window of any
premises and enter therein to, or otherwise forcibly
enter the premises and every part thereinto;
remove by force any obstruction
to such entry,
search, seizure or removal as he is empowered to
effect; or
74
(c)
detain any person found in
or on any premises,
or in any conveyance, searched under subsection
(1),
until such premises or conveyance has been
searched.
(3)
Whenever it appears to an officer of the commission that
there is reasonable cause to suspect that there is concealed
or deposited in any place any evidence of the commission of
any offence under this Act and such officer has reasonable
grounds for believing that, by reason of delay in obtaining
a written order of the public prosecutor or an officer of the
commission of the rank of chief senior assistant commissioner
or above under subsection
(1),
the object of the search
is
likely to be frustrated, he may exercise in and in respect of
such place, all the powers mentioned in subsections (1) and
(2) as if he were directed to do so by an order issued under
subsection (1).
(4)
No person shalf be searched under this section except
by a person who is of the same gender as the person to be
searched.”
[239]
Section 31(1) enables the public prosecutor [which would include
a deputy public prosecutor],
or an officer of the MACC of the rank of
chief senior assistant commissioner or above who has been authorised
to that effect by the public prosecutor,
to empower an
officer of the
MACC
to act under section 31.
It
is to be noted that the officer who
purports to act under section 31
must
in the first place be authorised
by the public prosecutor to do so only upon information which
is to be
conveyed to the public prosecutor and after such inquiry as the public
prosecutor thinks necessary to satisfy him that there is reasonable cause
to suspect that
in any place there
is any evidence of the commission
of an offence under the MACC Act. Then the public prosecutor may
by written order direct that officer to do any of the things specified
in
the various paragraphs of section 31(1) enumerated above.
75
[240]
It therefore becomes crystal clear that an officer of the MACC
cannot exercise the powers
of search and seizure under section
31
without a written order from the public prosecutor, or an officer of the
MACC of the rank of chief senior assistant commissioner or above who
was been authorised so to do by the public prosecutor.
[241]
In the course of the inquiry before this Commission, Hairul IIham
as well as HH were questioned as to where they derived their powers
of search and seizure. They glibly answered
that
it was pursuant
to
section 31.:-We note with concern
that there was
a purported claim
that oral authorisation by a deputy public prosecutor in the misty past
had been given and that this
in turn had devolved upon the Selangor
MACC officers.
But on further questioning, we were unable
to
elicit
from any officer the name of the deputy public prosecutor concerned.
Furthermore, on his own testimony, HH held the rank of senior assistant
commissioner oniy
at the material time and
not that
of chief senior
_
assistant commissioner so as to bring him within the ambit of section
31(1) for any authorisation from any deputy public prosecutor to have
legal effect.
[242]
In the
light of the foregoing, the purported exercise of powers
under section 31
by the MACC officers was fatally flawed
in that they
had
not been authorised
by
a deputy public prosecutor or
a lawfully
authorised chief senior assistant commissioner to exercise the powers
conferred by section 31
as such authorisation must of necessity be
in
writing to circumvent any challenge that may be raised
in relation
to
the authenticity of the authorisation. Furthermore, even
if HH [despite
the
lack of rank and
the absence
of any written authorisation]
had
been
so authorised
by
a deputy public prosecutor,
he
still needed
to
give
a written order to his officers to act under section 31. This was
not done.
[243]
On
the other hand,
the officers
of the MACC contended
that
when they act under section 31(3), the authorisation and the written
76
order under section 31(1) do not come into play. Therefore, by invoking
section 31(3), they said that they could proceed to act off their own bat
as
it were without any referral back to a deputy public prosecutor or an
officer of the MACC of the rank of chief senior assistant commissioner
or above who had been accordingly authorised
by
a deputy public
prosecutor pursuant to section 31(1).
[244]
We are unable to accept such
a distorted interpretation
of the
provisions of section 31. Section 31(3) can only come into play where
officers
of the MACC enter premises
as properly authorised under
section 31(1) and then a situation arises where,
in the premises under
search, there
is reasonable cause to suspect that there
is concealed
or deposited
in those premises any evidence of the commission of an
offence under the MACC Act. Again, the officer having such reasonable
cause
to suspect must base his suspicion on reasonable grounds for
believing that, by reason of the delay in obtaining a written order under
subsection (1), the object of the search
is likely to be frustrated. Then
only,
and
only then,
may
he exercise
all
the powers mentioned
in
subsections (1) and
(2) of section 31
as
if he had been appropriately
directed pursuant to an order issued under subsection
(1).
Recommendations on powers of search
[245]
In this context, we wish to stress our concern over the cavalier
attitude exhibited by the MACC officers in disregarding the intention of
parliament embodied
in section 31(1) of the MACC Act and arrogating
to themselves a power that the law did not, and does not, confer. As
the
officers
of the MACC
are involved
in
investigating offences
not
only under the MACC Act but also under various other laws which may
have somewhat similar provisions as section 31, we recommend that
all officers of the MACC should have a sound grounding in the various
facets
of the applicable laws and
in the interpretation
of those laws
before they are allowed to venture into the field of active operations.
17
[246]
Officers of the MACC conduct searches under the provisions of
section 31
of the MACC Act which are similar to the search provisions
found
in many other jurisdictions throughout
the world
in
that they
require the prior authorisation of a judicial authority of that of a senior
officer to-conduct searches.
In certain exigencies, this requirement
is
waived and a search may be conducted on the officer's own authority
in order to preserve evidence which might otherwise be destroyed and
the search frustrated by the delay
in applying for a search warrant or
such authorisation.
[247]
In fact the MACC
is
in
a better position than most other law-
enforcement agencies [*LEA’] around the world in that
it is maintaining
the authority of a senior officer to issue warrants in the form of written
orders
to search. This
is not usually the practice and the issuing
of
such warrants
is largely reserved to the judiciary.
[248]
In the investigation
in question,
it was admitted by a number of
the MACC officers that there were no written orders in existence under
section 31(1) of the MACC Act for any of the searches conducted. This
was despite the fact that such authorisation could have been obtained
from
a deputy public prosecutor attached
to
the MACC
or
a senior
officer of the MACC who was of or above the rank stipulated
in section
31(1). Rather the officers relied on their perceived powers under section
31{3) to conduct the searches. The searches conducted were clearly an
abuse of those powers as there was no reason to believe that
there
was any likelihood of the searches being frustrated on account of any
delay
in obtaining the required authorisation.
[249]
In addition, two senior officers,
namely, HH and
Hairul
Ilham,
relied
on the existence
of a chief secretary’s circular of 1984 which,
they alleged, allows the search of government offices without warrant
or authorisation.
Even
if this were
true,
the
circular requires
the
_issuance of an official letter from the chief commissioner of the MACC
authorising the search
[a more onerous requirement than obtaining
a
78
~
search authorisation by way of a written order under section 31(1)] and,
in any event, such an administrative circular was clearly superseded
_ by the MACC Act and the provisions of section 31.
[250]
More disturbingly, the MACC officers indicated
in evidence that
this was the usual
practice,
and
it would appear that
this
is
not an
unusual practice in the MACC as a whole. Parliament clearly intended
that the provisions
of section 31(3) were only for emergency use
in
exigent circumstances. However,
it would appear that the MACC officers
have adopted them
as common
practice,
fostering
a view
that the
MACC can search without warrant or authorisation. Other LEA which
also have such provisions include the Malaysian
police,
the ICAC
of
Hong Kong, the UK police, and other LEA around the world. However,
in
all circumstances the
use
of these powers generates
a
report
to
justify that use.
[251]
We therefore recommend the following in relation to the standard
operating procedures [“SOP”] of the MACC regarding search:
(a)
that
the commonplace
use
of
section
31(3)
cease
forthwith;
(bo)
that the use of the alleged authority under the chief secretary’s
circular of 1984 cease forthwith;
(c)
that, in general, properly issued warrants or written authorisations
be used as the basis for all searches by MACC officers;
(d)
that,
the issue of those warrants or written authorisations
be properly justified
in writing;
(e)
that
the
use
of section
31(3)
be
restricted
to ongoing
operational circumstances where there is a real and present
belief that failure to act will result in the destruction or loss
of evidence. The use
of section 31(3) should be confined
to exceptional circumstances
to emphasise
the
rule
that
79
(f)
(g)
(h)
a written order should always be obtained, save
in clear
instances where evidence may be
in the process of being
tampered with, removed and/or destroyed;
that,
if possible, time should be taken to advise the relevant
senior officer [or deputy public prosecutor] of the requirement
by telephone in order that he may issue a verbal authority and
a written authority may be quickly brought into existence;
that, in either case, immediately after the search, and, in any
event within twenty-four hours, a full written justification for
the search and use of section 31(3) powers [or telephone
justification] be made to the relevant senior officer [or deputy
public prosecutor] who
will then
indicate
a
retrospective
agreement
in writing;
that a record be kept of such occurrences which are to be
reviewed regularly by a deputy public prosecutor at senior
level
in the Attorney-General’s Chambers.
[252]
. These suggested amendments to procedures can be accomplished
by the issue of new SOP regarding searches and incorporated into the
training programme
for officers.
If this
is
not considered appropriate,
then consideration might be given
to additional legislation through an
amendment to the MACC Act.
Applicable standing orders
[253]
The applicable standing orders at the relevant time when TBH
and the other witnesses were required
to assist
in the investigation
were the following:
(a)
Perintah
Tetap
Ketua Pengarah BPR Malaysia Bab
B
(Siasatan) Bil 2/1998
- Prosedur Memerintah Kehadiran dan
Merekod Pernyataan Saksi Di Bawah Subseksyen 22(1){a)
dan Subseksyen 22(8) Akta Pencegahan Rasuah 1997 [“SO
No 2/98”]
80
(b)
(Cc)
[Standing Order of Director General of ACA Malaysia Chapter
B (Investigation) No 2/1998 — Procedure on Order to Attend
and
Recording
of Statement
of Witness under Subsection
22(1)(a) and Subsection 22(8) of the Anti-Corruption Act 1997
(“SO No 2/98”)]
Perintah Tetap Ketua Pengarah BPR Malaysia Bab B (Siasatan)
Bil 7/1998 — Prosedur Penggeladahan Di Bawah Seksyen 23
Akta Pencegahan Rasuah 1997 [“SO No 7/98”)
[Standing Order of Director General of ACA Malaysia Chapter
B (Investigation) No.7/1998
— Procedure
on Search
under
Section 23 of the Anti-Corruption Act 1997 (“SO No 7/98”)]
Perintah
Tetap
Ketua Pengarah BPR Malaysia
Bab
B
(Siasatan)
Bil 12/1998 Prosedur Penyitaan Harta Alih [*SO
No 12/98”]
[Standing Order of Director General of ACA Malaysia Chapter B
(Investigation) No12/1998 — Procedure on Seizure of Movable
Property (“SO No 12/98”)]
[254]
Subsequent to TBH’s death, the MACC made improvements to
its standing orders pertaining to the treatment of witnesses through the
introduction of the following:
(a)
Perintah Tetap Ketua Pesuruhjaya Suruhanjaya Pencegahan
Rasuah Malaysia (SPRM) Bab B (Siasatan) Bil 2 Tahun 2010
Prosedur Memerintahkan Kehadiran dan Merekodkan Pernyataan
Orang Yang Diperiksa (Saksi)
Di Bawah Subseksyen 30(1)
(a)
dan Subseksyen 30(8) Akta Suruhanjaya Pencegahan
Rasuah Malaysia 2009.
[Standing Order of Chief Commissioner of the Malaysian Anti-
Corruption Commission (MACC) Chapter B (Investigation) No
2 of 2010 — Procedure on Order to Attend and Recording of
Statement of Person Examined (Witness) under Subsection
30(1)(a) and Subsection 30(8) of the Malaysian Anti-Corruption
Commission Act 2009].
81
This standing order repealed SO No 2/98.
(ob)
Perintah Tetap Ketua Pesuruhjaya Suruhanjaya Pencegahan
Rasuah Malaysia (SPRM) Bab B (Siasatan) Bil 7 Tahun 2010
— Prosedur Pengggeledahan
Di Bawah Seksyen
31 Akta
Suruhanjaya Pencegahan Rasuah Tahun 2009.
[Standing Order of Chief Commissioner of the Malaysian Anti-
Corruption Commission (MACC) Chapter B (Investigation) No
7 of 2010 — Procedure on Search under Section
31
of the
Malaysian Anti-Corruption Commission Act 2009}.
This standing order repealed SO No. 7/98.
(c)
Perintah Tetap Ketua Pesuruhjaya Suruhanjaya Pencegahan
Rasuah Malaysia (SPRM)
Bab
B (Siasatan)
Bil
17 Tahun
2010
- Prosedur Penyitaan Harta Alih Di Bawah Seksyen 33
Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009.
[Standing
Order
of Chief Commissioner
of the Malaysian
Anti-Corruption Commission (MACC) Chapter B (Investigation)
No 17 of 2010 — Procedure on Seizure of Movable Property
under Section 33 of the Malaysian Anti-Corruption Commission
Act 2009].
This standing order repealed SO No 12/98.
However SO No 2/98, SO No 7/98 and SO No 12/98 were
in force at
the time of TBH’s death.
[255]
When the MACC officers raided YB Ean’s office on the 15", they
seized
a laptop and
a CPU under section 33 of the MACC Act.
[256]
When TBH was brought to the Selangor MACC office at about
6.15pm
that day,
we observe
that
he was subjected
to what was
82
. euphemistically called an “interview” by various MACC officers
in four
different stages which culminated
in
the
recording
of
his
purported
statement under section 30(8) of the MACC Act between 1.30am and
3.30am on the 16". We note with concern the manner
in which TBH
was “interviewed”
in stages by the MACC officers. The various stages
of interrogation have been extensively dealt with
in the earlier part of
this report and we need not repeat them here.
Breaches of applicable standing orders
[257]
Among the submissions made by the parties was the submission
that “suspects under investigation by the MACC are granted more legal
rights than witnesses and that despite the limited scope of protection
afforded to witnesses, there were nevertheless several infractions of the
MACC’s standing orders.” We agree and
list the following infractions:
(a)
The search of YB Ean’s office and seizure of TBH’s laptop and
CPU without authorisation and a written order under section
31(1) of the MACC Act was in breach of orders 3.4, 4,
5 and
6 of SO No 7/98 and of order 4.2 of SO No 12/98.
(b)
As the operation had commenced sometime
in June 2009,
the failure of the MACC officers to obtain authorisation and
a written order under section 31(1) to seize the laptop and
the CPU was totally unjustifiable as there was no basis for
suspicion
that evidence would
be tampered with, removed
and/or destroyed.
In addition thereto, the failure of the MACC
officers to take photographs of and label the laptop and the
CPU, and the places from where these items were seized as
well as prepare a sketch plan of the same, was in breach of
order 4.4.2 of SO No 12/98.
(c)
Four documents
that were
printed
out from TBH’s
laptop
[exhibits
D94
to
D97] comprised
two quotations and
two
invoices which apparently formed the plank upon which the
suspicion of the MACC was launched that there was something
83
@)
{e)
ff
improper in the claims made. However, these four documents
were not printed out
in TBH’s presence for his verification.
Neither was he asked to sign any seizure list regarding the
four documents. This
is
in breach of orders 4.4.1 and 4.4.4
of SO No 12/98.
In these circumstances, the authenticity of
these four documents
is moot.
|
It was the contention of the MACC that TBH cooperated with
its officers voluntarily and therefore there was no requirement
for its officers to comply with the various standing orders as
well as the written
law applicable,
including section
31.
In
our view such
a contention should never be countenanced
for the simple reason
that authorities such
as
the MACC
when challenged as to their failure to comply with standing
orders and the law may then well say that as the witnesses
had cooperated
voluntarily,
there was
no requirement for
compliance with the standing orders and laws.
If witnesses
challenge this and say that they did not act voluntarily, the
MACC will be
in no position to defend
its stand.
The failure of the MACC to issue a written order to TBH to
be examined orally to assist in investigations was
in breach
of order 4.1
of SO No 2/98.
The MACC contended
that
legal counsel
for YB
Ean
and
TBH had advised them
to cooperate with the MACC as
its
officers were empowered under the law to do what they did.
Notwithstanding that advice,
it
is our view that the relevant
provisions of the law should have been observed and correctly
applied so that the public would be protected. Further, Arman
and Ashraf who had earlier “interviewed” [in fact interrogated]
TBH
pursuant
to
section
30(1)
of the MACC Act
did
not
subsequently record TBH’s statement under section 30(8).
It was Nadzri who did this and this was
in breach of order
4.2.1
of SO No 2/98.
84
(g)
The
use
of Nadzri’s own words when
recording TBH’s
statement without recording
the
latter’s own words gives
rise to uncertainty as to which parts of the statement were
the actual answers of TBH and which were not. This was
in
breach of order 4.2.5 of SO No 2/98.
(h)
The omission
of the words “Tandatangan
Pegawai Yang
Memeriksa” “Signature of Examining Officer’ on the last page
of TBH’s statement at the portion where Nadzri purportedly
signed
off as the recording
officer was
in breach
of order
4.2.9 of SO No 2/98.
Treatment of witnesses and suspects
[258]
We observe that TBH was originally “invited” to be a witness
in
the ongoing investigation
by the MACC. However, the circumstances
surrounding his decampment from the SUK
building, his being escorted
to the MACC
office,
his being interviewed/interrogated
by the MACC
officers, the recording of his statement immediately after such interview/
interrogation and his remaining
in the care, custody and control of the
MACC officers after the statement was recorded, all point to TBH being
transformed from being
a prospective witness to being
a prospective
suspect. The MACC officers contend that TBH was free to leave after
his statement had been recorded but that he elected to remain
in the
MACC office.
[259]
We find
it impossible
to believe that he would want to remain
in the MACC office after having being detained there for almost twelve
hours. We find the failure of the MACC officers to release TBH after his
statement had been recorded amounted to cruel conduct and punishment
inflicted on purpose. We would therefore recommend that all proceedings
in any MACC
office be recorded on closed-circuit television [cctv]
so
that there can
be no dispute whether witnesses are detained
or kept
in the offices of the MACC against their own free will or whether
it can
be said that they are “'voluntarily there as guests of the MACC’”.
85
[260]
We are of the view that the legal rights of both witnesses and
suspects should be enacted as part of the MACC Act because the same
will become transparent and accessible to the Malaysian public through
such enactment. Providing for these rights through the standing orders
would not safeguard the public as their observance would largely depend
on the absolute discretion of the MACC officers concerned and would
not be transparent in light of the usual classification of such standing
orders as “official secrets’,
to which the public will not be privy.
It
is
a cardinal principle of transparency and the democratic process for a
witness
or
a suspect
to know what
his rights are when
he
is called
upon to assist in an investigation or when he
is taken into custody.
[261]
In
the course
of the
inquiry, we were concerned
by the
total
lack of consideration for human sensitivities exhibited by the majority
of the MACC officers. We were shocked to hear that racial expletives
appeared to be the stock in trade of the interrogation procedure adopted
by certain of the MACC officers in this case and
in another. We hasten
to add that such usage was of course denied by the officers concerned
but we have no reason to doubt that the same had been uttered having
regard to the whole background circumstances in which the interrogation
took place.
[262]
We are of the view that the recruitment process of MACC officers
should include psychological evaluation
to assess their suitability for
investigative work
in the MACC and that they should further be given
psychological counselling to apprise them of racial and religious sensitivities
as well as the different levels of the breaking point which individuals
would have when subjected to severe or intense interrogation.
Proposed improvements
[263]
Submissions put
in included a non-exhaustive list of issues and
proposals
for our consideration
“as
a means
to improving
the
legal
protection to be afforded to witnesses assisting in an MACC investigation’.
86
We have taken note
of those submissions and reproduce below our
views on some of them as expressed during the course of this inquiry.
Some
of the proposals
in those submissions coincide with our views
and we reproduce them below with modifications.
Qualifications and training
[264]
(a)
(b)
(c)
All MACC officers who are to be employed and/or to carry out
functions as surveillance/raiding/enforcement and investigating
officers should
at the minimum
have completed
tertiary
education.
MACC officers who are to be employed and/or to carry out
functions as surveillance, raiding, enforcement and investigating
officers should undergo a more extensive and comprehensive
training programme. They ought to
be examined and only
enlisted
for service
if they meet
the
required standards.
Such examination and training should include psychological
evaluation and psychological counselling respectively.
The continuing education and training of all MACC officers
should be made compulsory.
infrastructure
[265]
(a)
(b)
The infrastructure of MACC premises and offices should be
improved and upgraded. Every MACC office should be equipped
with cctv, surveillance cameras to record the movements and
actions of every person who enters or leaves the office or
any of its rooms.
There should
be
a specified waiting room for witnesses
to
be placed in while waiting to be interviewed or to have their
statement recorded. Officers should wait with the witnesses
to prevent anything untoward happening and also to prevent
87
(c)
(d)
(e)
(f)
(9)
witnesses involved in the same investigation from communicating
with each other. Witnesses should
not be required
to wait
for more than thirty minutes except for good reason.
There should
be specified rooms for the interviewing and
recording of the statements of witnesses [“interview rooms’”].
Interviews should
only
be conducted
in these rooms
and
statements should also be recorded
in these rooms. They
should be located on the ground floor of the MACC office and
should not be locked during the interviewing
or statement-
recording session. This will enable the superior officers
of
the interviewing or recording officers to check on them from
time to time to ensure that the interview or the recording of
the statements
is done properly and
in accordance with the
law.
Interview rooms
should
be equipped
with one-way
glass
mirrors to promote transparency in the interview process and
to prevent allegations
of force
being
used,
having
regard
also
to our earlier recommendation that
all proceedings
in
MACC offices be recorded on cctv.
All interviews and recording of statements of witnesses should
be captured by way of video or audio recording and equipment
should be installed
in the rooms for this purpose.
There should be a computerised system recording the entry
and exit of all persons into MACC offices including details
such as the time, the purpose of the visit and details of the
person with whom he or she entered or exited the premises.
This system should be complemented by a witness logbook
which
must
be
signed
by
the witnesses and
the MACC
officers.
There should be proper rooms for MACC officers to rest and/
or sleep in
if work requires them to lengthen their stay in the
office. MACC officers should no longer be allowed to sleep
88
in their rooms. Evidence led during the proceedings was to
the effect that officers had
a rest area
in the office but
it
was not comfortable. They also slept wherever they could
when they needed to rest. This is not conducive to efficiency
at work as resting under the conditions they mentioned, for
example, sleeping on one’s work table, will not give proper
rest and put one
in the correct frame
of mind
to do one’s
work, thereby impacting
on how one deals with witnesses
and potential suspects.
Calling up witnesses
[266]
Section 30(1) of the MACC Act enables an MACC officer investigating
an offence under the Act to order any person to attend before him
to
be examined orally
in relation
to any matter under investigation or to
produce any book or other stipulated document which may be required
for the purpose of the investigation.
[267]
MACC officers are also given police powers under the Criminal
Procedure Code [the CPC”]. Section 111(1) of the CPC is so worded that
where a police officer investigating an offence requires the attendance
before him of any person, then he “may by order in writing” require
the attendance before him of that person [emphasis added].
[268]
We observed that during the operation
in question
the MACC
officers without exception relied on verbal! orders which were given to
require the attendance of witnesses at the Selangor MACC office. While
we recognise that the urgency of the matter may necessitate the giving
of verbal orders to attend, such practice must be observed with care.
In the inquiry before us, witnesses testified that when they questioned
the authority
of the MACC officers to do what they were doing, they
were informed very curtly that the law empowered them to do so. This
extended to the extent of the officers not even properly showing their
authority cards before proceeding to question the witnesses.
89
[269]
We are of the view that MACC officers should
in
all instances
produce their authority cards as required under section 8 of the MACC
Act when conducting
any operation
and
not
act
in
the high-handed
manner that they did in the present case by not even properly showing
their authority cards before proceeding to question the witnesses.
[270] We are also of the view that, except where the urgency of the
situation requires acting otherwise, atl MACC officers acting under section
30(1) of the MACC Act should issue
a written order for witnesses to
attend before them.
In the present case, witnesses testified that when
they questioned the authority
of the MACC officers
to do what they
were doing, they were informed very curtly that the
law empowered
the officers to do so.
Witnesses to be accompanied
[271]
Any witness or suspect under investigation by the MACC should
at
all times
be accompanied
and escorted
by
a designated MACC
officer who must regularly report the movement of the witness to the
investigating officer to ensure that he
is kept informed of the state and
movements of the witness. We cannot overstress the need for this as
events have shown that where witnesses or suspects are left to range
unattended in the MACC office, there would be the probability of untoward
incidents occurring. This practice would have the added advantage of
meeting challenges
of any physical
or mental abuse
inflicted on
the
witness as there would be a person unconnected with the investigation
who would have had the charge of the witness [except when interviews
or interrogation are
in progress] and who would then be
in
a position
to state what took place
in the event the question arises.
Interviewing and statement-recording
[272]
Aview was expressed that interviews and the statement-recording
of witnesses should
only
be conducted during
office hours,
namely,
between 9.00am and 5.00pm, and that each session must last for no
90
‘more than one hour at
a stretch, and breaks between each session
should
be
no
less than
fifteen minutes
each.
It was observed
that
even on the accounts of most MACC officers who conducted interviews
and recorded statements
in this operation, the officers said that they
| regularly stayed overnight and were tired as they had to work for long
hours.
[273]
The MACC, on the other hand, was of the view that the present
practice of the statement-recording of witnesses being continued beyond
working hours as necessitated by the circumstances of the case should
continue. Reliance was placed on the case of Datuk Seri Ahmad Said
Hamdan and others
v Tan Boon Wah [2010]
6 CLJ 142
in support
of its stand.
[274]
Tan Boon Wah who was the plaintiff
in the above case was
a
witness
in the inquiry before us and the case itself emanated from the
investigation carried out by the MACC pursuant to the complaint made
in Shah Alam report No 0052/2009.
[275]
We were apprised of facts in the inquiry which did not surface in
the proceedings
in the High Court and the Court of Appeal. We found
that Tan Boon Wah was kept at the MACC office for a lengthy period
of time
to
put pressure
on
him
and
to inconvenience
him.
He was
present
in the MACC office on the evening of the 15", ostensibly for
the purpose of his assisting
in the ongoing investigation as a witness.
However, we found that he was not only interviewed but was interrogated
in circumstances that should not be permitted. He was confined
in
a
room and
left there with no lights on,
left to sleep on the floor [when
not being questioned], and was not allowed
to go home even though
his presence at the Selangor MACC office was not required after about
2.30am on the 16".
[276]
We observed
that
he was subjected
to
intense pressure and
threat
of physical
violence,
and verbal
insults were heaped
on
him
which included racial slurs. We have no reason, having observed
his
91
demeanour,
to doubt that this was what happened and we therefore
reject the testimony of the MACC officers to the contrary
in the form
of denials.
His statement was only recorded
in the late morning of the
16", a long time after his interrogation by the MACC officers was over.
This gives the lie to the testimony of the MACC officers that he chose
to stay behind after being released as he wanted to wait for his wife
| to bring the required documents over to the Selangor MACC office. His
wife never came with the documents and despite that his statement was
recorded
later that morning. This can only mean that what Tan Boon
Wah said was true, namely, that he was purposely made to remain
in
the Selangor MACC office after the officers were done with him around
-2.30am that morning.
[277]
In situations
like this where
a decision has
to be made as
to
whether to accept the evidence of one witness while rejecting that of
others,
it would have helped immensely had there been cctv recording
of what took place. We would stress that any cctv recording system
that
is implemented
in MACC offices should
be tamperproof so
that
there can be no possibility of the recording being doctored.
[278]
While accepting
that the authorities have
to act
to investigate
cases
of corruption and other crimes
to protect society
at large,
the
gathering of evidence to so protect society should be done within the
law with sufficient safeguards to protect the rights of the individual.
[279]
In relation
to the recording
of statements outside office hours,
we would
propose
that
in
exceptional
circumstances,
where
the
discontinuance
of the recording
of the statement of a witness would
have an adverse impact on the investigation, the recording should be
allowed to continue beyond office hours but with sufficient rest periods
and attention being given to the witness’ physical and mental condition
and well-being. This
is important because,
as long as the witness
is
in the care
of the MACC,
the MACC
is liable for
his well-being and
‘should the witness be kept for long hours and suffer any deterioration
in his health, the MACC should be held accountable.
92
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MALAYSIA
Who was Teoh Beng Hock and why
is the probe into his death being
reopened 15 years later?
Teoh Leong Hwee holds a picture of his late son Teoh Beng Hock after meeting Prime Minister Datuk Seri Anwar
Ibrahim about his case at Perdana Putra, August 1, 2024. — Picture by Sayuti Zainudin
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latest news you need to know.
By Muhammad Yusry
Friday, 02 Aug 2024 5:19 PM MYT
KUALA LUMPUR, Aug 2 — Fifteen years after the 2009 death of Teoh Beng Hock in Shah Alam, the
government has agreed to reopen the investigation into his death, promising a transparent and
impartial process free from interference.
Teoh, a former journalist turned aide to former Selangor executive councillor Ean Yong Hian Wah, died
after being held for questioning overnight at the then Selangor Malaysian Anti-Corruption Commission
office in Plaza Masalam, Shah Alam on July 16, 2009.
He had been called to provide information as a witness and not a suspect into a suspected corruption
case.
In July 2011, a Royal Commission of Inquiry concluded that his death was a suicide.
However, in September 2014, the Court of Appeal ruled that Teoh’s death from a fall was caused by “an
unlawful act or acts by unknown individuals.”
Teoh’s family had long sought justice for his death, which occurred outside the Selangor office of anti-
corruption investigators in 2009.
So who was Teoh Beng Hock, and why is his case being reopened after 15 years?
UKM graduate and a former journalist
Teoh, born in 1979 in Melaka, graduated from Universiti Kebangsaan Malaysia and began his career as
a journalist at Sin Chew Daily.
Following the general election in 2008, Teoh transitioned to a political role where he served as a
political aide to DAP’s Ean Yong Hian Wah, the then Seri Kembangan state assemblyman and a member
of the Selangor State Executive Council.
Timeline of events
July 13, 2009: The Malaysian Anti-Corruption Commission (MACC) probed seven Pakatan
Rakyat Selangor state assemblymen in relation to the use of state funds in their respective
constituencies.
July 15, 2009: Ean’s office was raided by Selangor MACC officers and Teoh was detained
overnight for questioning as a witness at their headquarters on the 14th floor of Plaza
Masalam in Shah Alam.
July 16, 2009: Teoh was found dead on the fifth-floor landing of the Plaza Masalam building.
July 29, 2009: The inquest into the death of Teoh began before Coroner Azmil Muntapha
Abas.
January 5, 2011: The Shah Alam Coroner’s Court gave an open verdict for Teoh’s case and
said it was not due to suicide or murder and no third party was involved in his death.
July 21, 2011: The Royal Commission of Inquiry said Teoh’s death was due to suicide.
December 5, 2011: The Shah Alam High Court rejected Teoh family’s application for judicial
review, the judges maintained the inquest’s open verdict.
October 30, 2012: Four of Teoh’s family members filed a civil lawsuit claiming
compensation over sadness, loss of dependency and negligence by MACC and 13 others over
his death.
September 5, 2014: The Court of Appeal’s three-judge panel unanimously ruled 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 person or persons unknown,
inclusive of MACC officers who were involved in the arrest and investigation of the deceased.”
May 12, 2015: The defendants — 10 MACC officers, the MACC and the Malaysian government
— settled the civil lawsuit by agreeing to pay Teoh’s family RM600,000 in damages and
RM60,000 in cost and admitted to negligence on their part resulting in Teoh’s death.
January 4, 2022: Teoh’s parents filed a lawsuit through a judicial review application, to ask
the court to compel the police to complete investigations into his 2009 death.
June 6, 2022: The High Court granted leave for the lawsuit to be heard the next year.
July 15, 2024: Members of the Teoh Beng Hock Association for Democratic Advancement
arrived at Parliament following a three-day 96km walk for justice to hand over a
memorandum with a list of their demands. Prime Minister Datuk Seri Anwar Ibrahim agreed
to meet Teoh’s family.
August 1, 2024: Teoh’s family members met Anwar in a closed-door meeting. Anwar
announced the government agreed to reopen the investigation into Teoh’s death.
The Kuala Lumpur High Court has fixed October 29 to deliver a ruling on Teoh’s family’s application
for a judicial review on his death.
Recommended reading:
Family of slain DAP aide Teoh Beng Hock finally meet PM Anwar, father now in wheelchair
and son he never knew all grown up
Teoh Beng Hock’s family gets Oct 29 date for ruling on judicial review application over his
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MALAYSIA / 01 Aug 2024
Family of slain DAP aide
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PM Anwar, father now in
wheelchair and son he never
knew all grown up
MALAYSIA / 29 Jul 2024
Teoh Beng Hock’s family gets
Oct 29 date for ruling on
judicial review application
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MALAYSIA / 17 Jul 2024
PM Anwar says he will meet
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