Who killed Teoh Beng Hock?

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

By N H Chan

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

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

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

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

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

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

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

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

How did Teoh fall to his death?

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

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

106. Burden of proving fact especially within knowledge

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

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

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

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

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

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

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

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

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

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

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

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

Could Teoh have accidentally fallen to his death?

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

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

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

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

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

Could homicide be ruled out?

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

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

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

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

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

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

  1. #1 by ENDANGERED HORNBILL on Monday, 8 August 2011 - 5:39 pm

    RCI – and that is a Royal Commission of Inquiry.
    God help those judges for bringing the name of HRH into disrepute.

    Now we have a classic statement about what judges ought not to do in an RCI. A new textbook case that will long preserve the ignominy of the 3 blind mice.

  2. #2 by sheriff singh on Monday, 8 August 2011 - 5:42 pm

    One of my Chinese friends told me the way to find out the truth is to get into contact with the late TBH’s spirit through a medium and to ask him for information as to what really happened.

    This is of course unscientific and abnormal and the information obtained definitely not admissible as evidence. However, the current dead-end situation and the inconclusiveness of this death might warrant abnormal steps to be taken.

    The point is that the ‘conversation’ with his spirit would shed new light and provide crucial information and leads for further investigations which might lead to the knowing of what really happened and culprits being found out and charged.

    I have no experience in this sort of things but my Chinese friend says he has experienced several of these contacts and conversations which made his hairs stand up on ends, and is amazed at the accuracy of things that were ‘said’ which only the deceased would know.

    Maybe those who want finality might have to go this route. This is after all the Ghost Month and the gates to the other world are open. Anyone wants to give it a shot?

    Writing this makes me shiver.

  3. #3 by Cinapek on Monday, 8 August 2011 - 5:49 pm

    Excellent!! A well reasoned analysis both from a layman’s and legal standpoint.

    But alas! In this country, logic and truth takes second place to political expediency. The truth about TBH’s death and those really responsible must stay hidden or it will open up a Pandora’s box. Ditto the murder of a certain Mongolian lady with C4.

    And it surely is a sad day when prominent people who are entrusted to get at the truth chose to close their eyes because they are suspected of being “interested in the pursuit of their own aggrandizement? ” I hope this is not the case and only incompetence is the reason.

  4. #4 by boh-liao on Monday, 8 August 2011 - 5:52 pm

    There in NO CLOSURE yet on d death of TBH!
    He was driven 2 suicide, dat’s what d gomen wanted us 2 believe
    Blind justice is no justice n we can’t even trust an RCI, how very sad n rotten dis nation

  5. #5 by megaman on Monday, 8 August 2011 - 5:58 pm

    To Sheriff,

    Might as well set Beng Hock’s ghost on the perpetrators and scare them to death or even better, to scare them into telling the truth.

    Then we would easily know who did it … Correct ?

  6. #6 by k1980 on Monday, 8 August 2011 - 6:13 pm

    taoist bomohs no clever one… singh should recommend a punjabi bomoh.

    why no mention at all in the media about the 7 kedah kampung gamblers who drowned in a sungai while evading arrest by a police raiding party? would james foong also classify their deaths as ‘forced suicide’?

  7. #7 by undertaker888 on Monday, 8 August 2011 - 6:50 pm

    Our police and MACC are good at killing its own citizen for their master. Other than that the rest are just makan suap. showing their ketuanan bully antics are their pastimes. Overtime work is for watching porno. All paid for by the taxpayers.

  8. #8 by mauriyaII on Monday, 8 August 2011 - 9:00 pm

    Rule of law is no more valid in a country where the guardians of law take the law into their hands to subvert the very law they are professionally and morally bound to uphold.

    When avarice and aggrandisement become more powerful than the moral values that the religion and upbringing of the lawmaker and law enforcer, he succumbs and sells his soul to the devil; in this case the executive of the country.

    When judges from their lofty pedestal fall for corrupt practices and wealth, they become worse than the paraiah mongrel. They become blood brothers of Augustine Paul.

  9. #9 by dagen on Tuesday, 9 August 2011 - 3:45 pm

    /// Who killed Teoh Beng Hock? ///

    Oh, umno of course!

  10. #10 by good coolie on Tuesday, 9 August 2011 - 9:57 pm

    At least there are no more deaths of witnesses/suspects in MACC. If there is one more before the general elections, baby-face is doomed.

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