— NH Chan
(www.loyarburok.com)
Jul 31, 2011 JULY 31 — 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.
#1 by vsp on Sunday, 31 July 2011 - 1:43 pm
Maybe the scenario might be this: the RCI originally found that the MACC was 100% culpable of murdering Teoh Beng Hock. The majority opinion of the RCI panel was tilted more on the side for MACC’s culpability of homicide but this decision was a hot political potato. The MACC’s higher-ups were not happy and threatened to reveal the whole truth that this was a priority directive from the executive to bring down the Selangor state government. So there was an ultimatum: either watered down the report and blamed the murder on some sacrificial goats to fool the public or the whole truth would be out. The RCI dithered and decided to please everyone. The report was withheld for one month, edited and rewritten to reflect the new “reality”. There you go: it took the real culprits off the hook and hope that the public would accept it hook, line and sinker.
The truth is dangling out there and hope Justice Foong will reveal this on his deathbed or he will rot in hell.
#2 by boh-liao on Sunday, 31 July 2011 - 2:27 pm
Rakyat knew what MACC officers did 2 summers ago
Judges did not know or no eyes 2 C [‘moh ngan tai’ blind mice]
Where r without fear or favor judges nowadays
RCI rpt a beautified/politically sanitised report
#3 by monsterball on Sunday, 31 July 2011 - 5:08 pm
The horse is weak.
The cart is empty.
Cannot move…nothing to make the weak horse move forward.
#4 by Tom Peters on Sunday, 31 July 2011 - 5:40 pm
Safe to assume that Justice Chan is no longer on Justice Foong’s Christmas cards list. The underlying question in Justice Chan’s article is no longer ‘who’ killed Teoh Beng Hock but ‘what’ killed Teoh Beng Hock.
#5 by ENDANGERED HORNBILL on Sunday, 31 July 2011 - 8:56 pm
In Latin legalese, three blind mice (what species?) would appear as:
“Tres caecus Mus musculus” (Three blind house mice) – open to correction by Latin expert!
This one is clearer:
“qui sibi semitam non sapiunt, alteri monstrant viam.”
Translation: “The blind leading the blind.”
Is there any Google translator for English-Latin/Latin-English, anyone?
We need a LOrd Denning in Malaysia, not any Datuk Conning.
#6 by ENDANGERED HORNBILL on Sunday, 31 July 2011 - 9:06 pm
Mr NH Chan, but I thought there were other members on the RCI, some forensic psychiatrist or something like that.
An RCI doesn’t operate fully like a court and therefore could follow procedures as in the Evidence Act but is not precluded from opinions like from those non-judicial members of the RCI, right?
In any event, the REPORT is a consensus report and therefore vetted by those judicial members but it is NOt a court judgement, right? SO is there some leeway for RCI members’ opinion.
In any case, the findings are subject to review and so….
Well, I am trying to understand how this really works, being a legal observer.
#7 by sad country on Sunday, 31 July 2011 - 11:17 pm
My mum used to said ‘study for what’ if we have such kind of grey matter. It’s a failure.
#8 by Jeffrey on Monday, 1 August 2011 - 1:00 am
Based on its terms of reference TBH RCI has 2 roles: (i) advisory, in relation to policy needs of MACC and (ii) investigative, to determine cause of TBH’s death. Whilst Bar Council concurred with the TBH RCI findings on need for policy changes in MACC in relation to (i) Lim Chee Wee disagreed with RCI’s findings of suicide in relation to (i) and described it as “a leap in logic and an assumption of facts not in evidence”. Now ex judge NH Chan opines that findings of suicide can only be deduced from evidence of experts per section 45 of the Evidence Act 1950: since no expert testimony including Professor Paul Mullen’s has supported suicide (Nazri’s spin notwithstanding), the finding is unsupportable in law.
#9 by Jeffrey on Monday, 1 August 2011 - 1:01 am
(Continuing from preceding post under current moderation) – As that part of RCI’s findings on suicide has a major negative (slanderous) effect on TBH’s reputation (LGE describes it as murdering him twice) which the law ought to protect, then the TBH Family members have every right to apply to court for judicial review of and a declaration that the RCI has made an error of law in that part of its findings relating to suicide, which should appropriately be struck down as void. That the Court as a right to review an RCI’s decision is supported by Common wealth judicial decisions and vindicated by our appellate courts recently granting VK Lingam the right to apply for review of the RCI’s findings relating to his video scandal. The fact is the RCI’s decision on suicide cannot be allowed to stand in law, without challenge.
#10 by waterfrontcoolie on Monday, 1 August 2011 - 7:41 am
Based on the Opinion of our LEARNED Retired Judge, what is going on? They have not even get the definition correct???
#11 by Bigjoe on Monday, 1 August 2011 - 8:38 am
From the onset, the RCI panel was obviously designed to provide excuses – Najib consistently created these things to avoid reform because he has decided long time ago he is not going to take it on. The problem with that he decided it all by himself – not by facts, not by debate, not by concensus – he decided that is it and he is not going to deal with it no matter who or what.
His excuse? “Its sensitive” – as if the rakyat are children that don’t know how to behave. His biggest problem is that Bersih proved him wrong – that even when the people are mixed in with large dose of opposition support, they showed incredibly high discipline and care. In fact, I am surprised its not discussed more about how the behaviour of everyone who participated was EXEMPLARY. Few mass movement who have felt unjustly treated has behaved so well. Something Malaysian should be proud off. Even as UMNO/BN keep breaking the laws and insitutions, Malaysian stuck to it – keeping it peaceful as required by the constitition. The rakyat showed they were truly the bosses or the bosses, the big cheese, the bucks stops with them even if the PM doesn’t.
The RCI panelist should have taken note of Bersih – their bosses are not UMNO/BN..
#12 by sheriff singh on Monday, 1 August 2011 - 10:46 am
Reading 233, I find it a very fanciful and simplistic conclusion bordering a fairy tale story.
It relied mainly on ‘psychiatric’ aspects only presumably from a foreign expert(s). Does this expert have deep knowledge of the workings of an Asian mind? Would a person who is due to get married that day and an expectant father commit suicide even under tremendous stress? I would not do such a thing if I was under such circumstances but to hold on and most people, if not all, would do so too I think.
The RCI believes that it HAS to come out with a conclusion no matter what. Consequently, even a far fetched and implausible one will do.
Sadly, this is how our institutions and its people seem to work these days – decisions, conclusions and statements are clouded in mystery, are dubious, unconvincing etc which leaves everyone shaking their heads in wonderment and disbelief.
There is just no finality.
#13 by Loh on Tuesday, 2 August 2011 - 11:44 am
///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.///–NH Chan
Do we believe that the superior court judges do not know this particular section of the Evidence Act? It might be possible that they seldom come across cases which involved experts giving opinion, and the only their opinion counts all the time. But since they spend months as member of the RCI, and they needed expert opinion to know how TBH died, can we believe that not one among the judges, including the serving Federal Court judge does not know that their opinion did not count on this particular matter.
Why did they ignor section 45?