By Marcus van Geyzel (loyarburok.com) | July 25, 2011
The Malaysian Insider

JULY 25 — As the news filtered in on Thursday that the Royal Commission of Inquiry into the Death of Teoh Beng Hock (“the TBH RCI”) had issued its findings, the conclusions seemed simple enough. The TBH RCI concluded that Teoh Beng Hock had been driven to commit suicide due to interrogation by 3 MACC officers in a manner that was “aggressive, relentless, oppressive and unscrupulous”. It seemed straightforward.

The newspaper reports of the findings were simple — after considering the evidence (70 witnesses, 750 pages of written submission, 19,200 pages of written testimonies, and 256 exhibits) before them, these learned members of the TBH RCI had come to this clear conclusion.

Minister in the Prime Minister’s Department, Nazri Aziz, added that the TBH RCI findings were supported by psychiatric forensic expert Paul Edward Mullen, hired by the Bar Council as part of the proceedings. When announcing the findings, Nazri was quoted as calling Teoh Beng Hock a “weak character” and that “Professor Mullen said that Teoh Beng Hock had truly committed suicide based on his character…”

If I had stopped at reading those reports linked above (and many similar reports in other media sources), I would think that the TBH RCI findings had finally cleared up the mystery. Further, Nazri Aziz’s seemingly helpful extraction of the findings of a psychiatric forensic expert would have solidified the conclusion that yes, Teoh Beng Hock committed suicide after all. And previous RCIs have resulted in findings and recommendations that seemed very reasonable based on the known facts — the Anwar black-eye incident, the nude squat fiasco, the revamp of the police force, and of course VK Lingam’s infamous “correct correct correct” video clip. The individuals who make up RCIs are respected and assumed to be independent and knowledgeable. They could be trusted to reveal the truth.

But I did not stop at reading these convenient summaries.

A blatant deception of the Malaysian public

I downloaded and read the full report by the TBH RCI (please download it here and read it for yourself). I researched the numerous articles and reports that had been written about the proceedings. I discussed the matter with many friends, some of whom had been very closely following the twists and turns since Teoh was found dead on July 16, 2009.

Having done all that, it appeared obvious that things were not as simple as they seemed. It is not an exaggeration to say that the seemingly straightforward conclusion that Teoh had committed suicide is in fact blatantly deceiving the Malaysian public.

Before going into the reasons why I firmly believe that the conclusion of the TBH RCI that Teoh committed suicide was wrong, allow me to give a brief summary of some of the findings of the TBH RCI for the benefit of those who have not been following the proceedings, or the report.

Some conclusions from the TBH RCI

The TBH RCI made the following findings:

1. It rejected the suicide note because it was from the chain of evidence an “afterthought” and further, not authenticated to have been written by Teoh.

2. It rejected the evidence of Arman and Ashraf, Teoh’s interrogators at the 2nd “interview” (July 15: 10 pm to 12/1 am).

They said they only asked Teoh basic questions, and did not threaten or abuse him. The Commission found that “threats of physical harm were most probably used by Arman and Ashraf when interrogating” Teoh.

3. It rejected the evidence of Nadzri, the Recording Officer who recorded Teoh’s written statement (July 16: 1.30 to 3.30 am). The Commission found that the session “turned out to be another forum of interrogation”.

4. It rejected the evidence of Anuar, the Investigating Officer of the 52/2009 operation regarding the use by Ean Yong of his allocations. Anuar said he was sleeping at a sofa in front of his room from about 1.30 to 3.35 am, and then at the surau to 5 am, and then at the bilik tamu next to the main lobby from 5 to 8.30 am. The Commission found that Anuar’s alibi “had been proved to be false”, and continued to say:

Further, Anuar lied about the role he had played in order to cover up for HH [Hishamuddin Hashim]. 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.

5. It rejected the evidence of Hishamuddin, the leader of the 52/2009 operation and the highest-ranking officer in the premises that night.

The Commission found Hishamuddin to be “arrogant, given to falsehoods, untruthful and uncompromising in his stand”. Despite his denials, Hishamuddin conducted cross-checking of witness statements obtained and actively interrogated Teoh in a 4th interrogation session from 3.30 am onwards. He only left the building at about 6.15 am on July 16 and returned at about 7.55 am. Hishamuddin is to “be held responsible for the actions taken by him and his officers which propelled TBH to commit suicide”.

6. It rejected the evidence of Raymond, a MACC officer who said he saw Teoh at about 6 am lying on the sofa outside Nadzri’s room.

The Commission found that Raymond “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 16th but was also resting comfortably and peacefully on the sofa outside Nadzri’s room”.

7. It rejected the MACC’s contention that Teoh was free to leave the building at about 3.30 am but Teoh wanted to stay behind to rest.

The Commission found that the MACC, through Hishamuddin, Anuar and Ashraf continued to interrogate Teoh post-3.30 am.

8. It accepted the Bar’s theory that cross-checking (or the cross-interrogation of suspects/witnesses) occurred in the early hours of the morning of July 16. Teoh was not released after his statement was taken by Nadzri at about 3.30 am, but was interrogated further. The respective statements of Teoh, Tan Boon Wah and Lee Wye Wing were being cross-checked and cross-referred during that time.

9. It accepted the evidence of two MACC officers, Azian and Azeem, who revealed that Hishamuddin attempted to cover up his actual role in the 52/2009 operation by directing his officers to say he was not involved. In fact, he was “the one who gave all the instructions and directions on how the witnesses were to be interviewed and interrogated and by whom”.

10. It accepted that the MACC erected a “blue wall of silence” in the spirit of brotherhood between the MACC officers that hindered the Commission’s work:

The characteristics of this “blue wall of silence” came amply into play in the present case as evidenced by the untruths spouted by the MACC officers to cover up the nefarious activities that took place on the 15th and the 16th. This clinging to brotherhood ties by those officers has resulted in our facing extreme difficulties in gathering evidence to arrive at the truth.

Did the Commission make these mistakes by design, or through sheer inadvertence?

The TBH RCI, to its credit, adopted a purposeful and unflinching attitude when it came to the extraction of information at its hearings. During the course of proceedings, the media played its part in highlighting important issues and inconsistencies in the MACC’s version of events.

Why then did the TBH RCI commit unforgivable errors of fact and further, decided not to consider or appreciate the “killer points”? Consider at least 10 of these for yourself:

1. Time of death

The Commission held that Teoh’s death occurred from 7.15 to 11.15 am (July 16) relying on the evidence of Dr Prashant and Dr Khairul. Estimating the time of death is not an exact science but Dr Khairul actually said the time could be narrowed down to as early as 6.30 to 7.00 am. In fact, the MACC’s expert, Dr Vanezis said that it could have been as early as 11 pm to 12 am (July 15).

Why did the Commission then say the earliest time of death was to have been 7.15 am? Was it to “match” its theory that Teoh was driven to suicide after the 4th interrogation session after Hishamuddin and Ashraf had left the MACC building?

2. Raymond’s evidence as to the sighting of Teoh at 6 am

The Commission rejected Raymond’s evidence that he saw Teoh at 6 am:

If this was true, then TBH must have committed suicide after 6.00 am on the 16th. This would fit into the estimated time of death of TBH which was between 7.15am and 11.15am on the 16th as determined by the forensic pathologists. However, despite this, we entertained grave reservations over Raymond’s evidence.

With the rejection of Raymond’s evidence, it must follow that there is little to suggest consistency with the time of death between 7.15 and 11.15 am, as the Commission itself points out in the paragraph above. Without any further record of Teoh’s movements after 6 am, how could the Commission then reject Raymond’s evidence yet say Teoh died after 6 am?

3. The death window, and avoidance of it from 3.30 am onwards

The Commission held that there was a 4th interrogation session of Teoh after about 3.30 am. The interrogation was conducted by Hishamuddin, Anuar and Ashraf. What the Commission failed to do was to buttress this finding by also holding that every MACC officer, for the strangest of reasons, “avoided” the window from which Teoh fell from 3.30 am onwards. For example, one officer whose room was near the window said he cramped into and slept with another officer in the latter’s room that was far away from the window.

The Commission failed to hold that pursuant to the 4th interrogation, Teoh was brought to the window for whatever that might have taken place there that led to him falling, by design or accident, from the window. Otherwise, why would everyone distance themselves from the window in the wee hours of July 16?

4. Cause of death: the 4th interrogation session

On the evidence of the MACC, Hishamuddin left the building at about 6.15 am (and returned at about 7.55 am), Anuar was sleeping throughout until 8.30 am and Ashraf left at about 5 am. If so, then surely Teoh would have been free to go by 5 am when Ashraf left or 6.15 am when Hishamuddin left. Would any person who was finally relieved and free to leave the building exit vide the window in a sudden act of suicide or walk out to his car and drive home? The Commission does not deal with this but assumes that after the 4th interrogation, Teoh suddenly gives up, and jumps.

Surely if the Commission held the view, as it had done in this case, that the 4th interrogation occurred, something must have happened to Teoh directly caused by his interrogators for him to have fallen either by design or accident, i.e. it was murder or homicide, and not suicide whether driven or voluntary.

The time of death of about 6.30 – 7 am (allowing for a small margin of error) corroborates this argument because the Bar had pointed Hishamuddin as the main culprit, and he left the building at 6.15 am without stamping his punch card.

5. Role of Zulkefly Aziz

On July 15, a MACC Klang officer by the name of Zulkefly Aziz was one of those specially called in by Hishamuddin to assist in the 52/2009 operation. Zulkefly is Hishamuddin’s junior in the MACC.

At about 9.45 to 10 pm, Zulkefly along with Bulkini and Hadri brought Tan Boon Wah back to the MACC Selangor office. Zulkefly then returned to his MACC Klang office at about 10.15 pm to collect his car, and drove to the MACC Selangor office. He reached at 11 pm and went to sleep at the surau. (One wonders why Zulkefly was back in the office only to go to sleep.)

At about 3.15 am on July 16, Zulkefly woke up only to go to another surau on the 13th floor to change his trousers, and stayed there. In his earlier statement to the police (taken shortly after Teoh’s body was found), Zulkefly said he had gone home at about 3.15 am. Zulkefly had to change his story before the Commission because the Bar revealed CCTV footage showing Zulkefly only leaving the MACC Selangor office at 7 am.

So what was Zulkefly actually doing from about 3.15 to 7 am on the 16th? Why did he lie to the police that he went home by 3.15 am? And notice that key suspects Ashraf left the building at 5 am, followed by Hishamuddin at 6.15 am, and finally, Zulkefly at 7 am.

6. Time the MACC knew of Teoh’s death: Zulkefly Aziz

The significance of Zulkefly’s role in the puzzle is much clearer after he left the MACC Selangor office at 7 am. On oath, he testified that he went back to his office, stamped his punch card and immediately returned home. He did not return to work the whole of the 16th. To-date, Zulkefly has not explained why he did not work that day.

The MACC official line is that Teoh’s body was only found at about 1.35 pm on July 16. But the evidence presented at the RCI TBH showed that MACC officers namely, Azhar, Amin, Fauzi Shadollah had already been speaking about Teoh’s death before or about 1.00 pm! How could MACC Klang officers at the MACC Klang office be talking about a death in another office miles away even before Teoh’s body was found?

The answer lies here. Amin in particular said that at about 12.45 pm, he overhead a group of officers at the MACC Klang office talking about Teoh’s death. He said that the information about Teoh’s death came from a MACC Klang officer who was at the MACC Selangor office on the morning of July 16 and returned to the MACC Klang office that morning. Zulkefly is as described. By 7 am, he already knew that Teoh fell from the window and died.

Why did the MACC hide the fact they knew of Teoh’s death by 7 am? The Commission failed to appreciate and deal with this crucial area that nails the MACC coffin of its suicide story.

7. The MACC cover up started by 7 to 8.30 am: Anuar and Hairul

Lee Wye Wing testified that between 7 and 8.30 am, he went to Sachi’s room at the MACC Selangor office to ask for his handphone and if he could return home. Sachi was asleep. Wye Wing then proceeded to Hairul’s room to ask the same of him. He saw both Anuar and Hairul in discussion over a computer. But Anuar at all times at the hearings said he was sleeping at the particular time.

If one accepts that Zulkefly already knew of Teoh’s death as early as 7 am and Anuar was part of the 4th interrogation, coupled by Anuar having to lie that he was sleeping at that time, the only available inference to be drawn is that Anuar and Hairul were discussing about Teoh’s death between 7 and 8.30 am.

8. The MACC cover up blown

The Commission disappointingly failed to act on the clear instances of cover up by the MACC of Teoh’s death alluded to by MACC officers’ own testimonies.

Among others, evidence elicited at the TBH RCI hearings showed how the MACC and AG top brass had meetings to “streamline” the statements of MACC officers and “coach” them, to build a wall of silence (i.e. not to freely offer information and not to reveal too much) and to distance Hishamuddin from the 52/2009 operation. The extent of the cover up initiated by the MACC even had its own officers, namely Azian and Azeem, expressing their unhappiness and uneasiness at the state of affairs.

Why did the MACC plan this elaborate cover up?

9. Misadventure not explored

The Bar’s alternative theory of misadventure by accident finds support in Dr Vanezis’ testimony who said:

• That he could not rule out that Teoh was held by a neck hold with the forearm.

• That such a neck hold may not show bruising.

• That one could be restrained without having obvious marks on the body.

• That without marks found on the window, one could exclude the possibility that Teoh climbed out the window himself.

The Commission failed to consider that Teoh may have been asked to and/or helped onto the ledge of the window as a means to threaten him into confessing during the 4th session. Held by a neck hold, an accident occurred which led to his death. DNA evidence of an unknown person was found subsequently.

10. Positive factors to live “transformed” into negative factors to die

It does not take a rocket scientist to surmise that Teoh had everything going for him in terms of his personal life — a baby was on the way, he was getting married, he was planning to leave his job to move back to Malacca and spend more time with his family, he had no history of mental illness, he was of strong character, organised and had a good relationship with his employer and friends, etc.

In relation to the 52/2009 operation, he as a seasoned political activist was prepared to be investigated and had by then also informed his colleagues to be ready with documents. The positive list in favour of Teoh goes on.

Mullen unequivocally said that suicide is a rare cause of death and Malaysia has a particularly low rate being one of few countries where the rate is lower than for homicide. His opinion was that Teoh was firmly in the lowest risk group where the chances of suicide are extremely small.

How the TBH RCI construed to pick and choose Mullen’s report to fit its pre-judgment theory of “driven suicide” is most unprofessional. Even Badi’ah and Nor Hayati’s report showed how hard-pressed they were to conjure up reasons for Teoh to commit suicide without implicating the MACC.

I leave you to decide if the TBH RCI deliberately or by design chose to ignore the 10 points above.

The big question — murder or suicide?

The MACC argued that it was “voluntary suicide”. The Bar argued that it was murder or at least homicide not amounting to murder, by causing Teoh’s death by misadventure during the interrogation.

Looking at the conclusions of the TBH summarised in the previous section, the TBH RCI had completely rejected the version of events given by the MACC’s key personnel regarding what happened on the evening July 15, 2009 and the wee hours of July 16, 2009. The MACC’s defence of “voluntary suicide” — which had rested on the testimonies of its officers — was therefore completely demolished.

Neither the MACC nor the Bar at any time pursued the “driven suicide” theory.

Cue the findings of the TBH RCI then — driven suicide. The TBH RCI somehow concluded that Teoh had committed suicide, having been driven to do so by the intense interrogation tactics employed by the MACC’s officers. As I mentioned, the MACC did not run the “driven suicide” theory during the TBH RCI proceedings. The MACC must be as baffled as the Bar and any reasonable person as to how the TBH RCI managed to come up with that conclusion.

The applicable standard of proof in these RCI proceedings is on a balance of probabilities tilting towards beyond reasonable doubt. Looking at how the TBH RCI had rejected the MACC’s version of events, it should have had no other option other than to adopt the Bar’s contention of murder, or homicide not amounting to murder.

The MACC’s evidence was demolished, and there was therefore no evidence — absolutely none — to support a finding of any kind of suicide. In criminal proceedings, once the evidence of the accused (in this case the MACC, as Teoh’s captors) is not accepted, there is no doubt that the conviction of the accused must follow.

This common practice was, shockingly, not followed by the TBH RCI. It is completely illogical how the TBH RCI came to the “driven suicide” conclusion — it appears to have invented it out of thin air, or the collective imagination of each of the Commissioners.

The way it was worded certainly sounds like bad fiction. Here is the relevant paragraph:

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, precipitating the irreversible crisis that happened to him between 3.30am and 7.00am 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 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 the window, even though it meant taking his own life.

Wow. Read that again. Consider all the facts that had been accepted. Consider that the MACC’s version of events had been rejected. Consider that no one had suggested “driven suicide”. And read that paragraph again. The Bar issued a press statement saying that the conclusion “requires a leap in logic and an assumption of facts not in evidence.” This is a stylish way of saying that the finding of “driven suicide” was make-believe. It appeared out of thin air.

The Bar’s press statement also reveals the misleading nature of Nazri Aziz’s summary of the findings of the psychiatric forensic expert. Professor Mullen did not say that Teoh had a “weak character” — in fact, he said that “in [his] opinion, what we learned of Teoh Beng Hock’s personality and behaviour do not suggest any increased risk of suicide” and that the events were not such “which, in [his] experience, leads to suicide in custody”. This is not slightly different from what Nazri said — it is completely different. One of these parties is lying.

What happened?

The purpose of the TBH RCI was to reveal the truth. Looking at the chronology of events, and the findings of fact made along the way, and the sudden and inexplicable conclusion, it is obvious that it has failed to reveal the truth behind the death of Teoh Beng Hock.

I am in shock. The five Commissioners are respected experts in their fields, and are held in high regard. There seems to be no reason to doubt their integrity. The way the report was written points to only one logical conclusion — murder, or at the very least culpable homicide not amounting to murder due to an accident during the interrogation process. But suddenly, without any basis, without any evidence (and in fact with evidence pointing to the contrary), the TBH RCI turns all its key findings on its head with one fanciful, speculative, fantastical — and fictional — paragraph.

No reasonable person of the calibre of those five Commissioners could possibly have come up with that. It beggars belief.

In the spirit of the TBH RCI report, perhaps I should try my hand at a fanciful conclusion. Here we go.

Maybe there was a political intervention — or at least some heavy influence.

Maybe the Government would not have been able to cope with the backlash that would have resulted from a finding of murder. Perhaps, having been pre-informed that the TBH RCI was going to conclude that Teoh was murdered, someone somewhere forced the TBH RCI to invent this “middle ground” — this cop out solution which has cheated Malaysia of the truth. Do you find this theory unbelievable? Well, it is no more unbelievable than the ridiculous finding of “driven suicide” that was contained in that report.

Malaysia is going through some interesting times. Our Judiciary is failing us. Our Government is failing us. Our politicians and leaders are failing us. Our police force are failing us. So many of our institutions are failing us.

With their finding of “driven suicide”, the TBH RCI has most certainly failed us. It was supposed to reveal the truth, but instead has thrown up even more deception and doubt. — loyarburok.com