Viewpoint: Cart And Horse - By NH Chan

The MACC knew at the outset that without a confession from Teoh Beng Hock they would be unable to prove any wrongdoing against the state government of Selangor.

However, the RCI concluded that the MACC tried to extract a confession from Teoh Beng Hock but the ruse backfired when instead the RCI pointed its finger at the perpetrators at the MACC with a finding that it was the MACC’s own personnel who had driven Teoh Beng Hock to suicide.

Don’t you think this looks like a scenario for a whodunnit or a Hollywood movie?

One wonders how silly can the three judges get, when they should have known better? There were three superior court judges in the panel of the Royal Commission of Inquiry – in fact the RCI was headed by a Federal Court judge! All that the judges have to do – when they have to deal with expert witnesses - is to refer to section 45 of the Evidence Act 1950. It is as simple as that.

Section 45 of the Act reads:

45. Opinions of experts.

(1) When the court has to form an opinion upon a point of foreign law or of science or art, … the opinions upon that point of persons specially skilled in that foreign law, science or art, … are relevant facts.

(2) Such persons are called experts.

ILLUSTRATIONS

(a) The question is whether the death of A was caused by poison.

The opinions of experts, as to the symptoms produced by the poison by which A is supposed to have died are relevant.

Section 45 of the Evidence Act is plain enough. It means that the opinions of experts are relevant facts. Without any relevant fact, that is to say, without an opinion from an expert, a court is unable to form an opinion upon, in this instant, the scientific point that Teoh Beng Hock took his own life. In this case, none of the experts gave the opinion that Teoh took his own life.

Yet the RCI took the view that Teoh took his own life. But the RCI had no business to reach such a conclusion. Such a conclusion that Teoh took his own life could only be made by an expert. The RCI was not such an expert! The Commissioners must not substitute their own opinion for that of the experts! Yet this was precisely what the RCI did! By assuming the mantle of a forensic psychiatric expert it came to the conclusion that Teoh took his own life. At paragraph [233] of the report of the RCI it spoke as if it was an expert and gave its opinion on how Teoh was driven to suicide. This is how it reads in the report:

'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 all intolerable. Finally precipating the irreversible crisis that happened to him between 3.30am and 7.00pm on the 16th, was the last straw that broke the camel’s back. Finding no viable strategies to surmount the hurdle of accusations leveled, 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 14th floor was either open or could easily be opened and it was conspicuous and easily accessible near where he was on the sofa outside Nadzril’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.'

So that with such an unfounded opinion we are none the wiser as to how Teoh died!

In fact the finding that Teoh was driven to suicide by the MACC is also unfounded.

Three judges who were like three blind mice. Perhaps the coroner at the inquest was wiser.

* N H Chan is a retired Court of Appeal Judge.

Disclaimer: The views expressed in this article are the views of the author(s) and do not necessarily reflect the views or policies of the Catholic Lawyers Society Kuala Lumpur. CLS makes no representation concerning, and does not guarantee the source, originality, accuracy, completeness or reliability of any statement, information, data, finding, interpretation, advice, opinion, or view presented.

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