A Ganapathy, S Sivabalan, S Surendran, R Karnagaran.
These are names of those who died whilst under police custody this year. The Rights group Suara Rakyat Malaysia (Suaram) disputed the number of death-in-custody cases reported by home minister Hamzah Zainudin contending that for the year 2021 up until August, there were at least 7 deaths in custody rather than 6 deaths as reported by Hamzah to the Dewan Rakyat.[1] One death in police custody is already one too many.[2]
“The dead cannot cry out for justice; it is a duty of the living to do so for them”, a famous quote by Lois McMaster Bujold.[3] With so many deaths in police custody, it highlights the desperate need of law governing coroners or specifically in this area.
Section 334 of the Criminal Procedure Code (“CPC”) held as follow:
“When any person dies while in the custody of the police or in a mental hospital or prison, the
officer who had the custody of that person or was in charge of that mental hospital or prison, as
the case may be, shall immediately give intimation of such death to the nearest Magistrate, and
the Magistrate or some other Magistrate shall, in the case of a death in the custody of the police,
and in other cases may, if he thinks expedient, hold an inquiry into the cause of death.”
In other words, an inquest must be held as an official and public inquiry into the cause of a sudden, unnatural, unexplained or violent death by the Magistrate. Purpose of an inquest is to determine the identity of the deceased (if unknown), how, when, where and the cause or circumstances the deceased came by his/her death.[4] Cause of death is specifically defined in s.328 of the CPC as:
“…include not only the apparent cause of death as ascertainable by inspection or post
mortem examination of the body of the deceased, but also all matters necessary to enable
an opinion to be formed as to the manner in which the deceased came by his death and
as to whether his death resulted in any way from, or was accelerated by, any unlawful act
or omission on the part of any other person.”[5]
Death inquest is governed by Chapter XXXII of the CPC and also Practice Note 2/2019 which seeks to supplement the procedure of inquest in the CPC. An inquest will be held in open court unless the Magistrate exercises its discretion to exclude the public on the special grounds of public policy and expediency.[6]
Pre- Inquest
Before an inquest is conducted, the Magistrate/ Coroner[7] should examine the body of the deceased and take note of any injury, marks or other information pertaining to the discovery of the body. The Magistrate/Coroner shall, with the assistance of the police, inform as soon as possible the family or next of kin or other interested persons about the death of the deceased and post mortem that is to be carried out. Post mortem shall be conducted by a Government Medical Officer who shall draw up a report of the apparent cause of death, injury or marks relating to the cause of death or if any, the person who caused the death and the manner of causing it.[8]
Inquest
During inquest, the Magistrate/Coroner has control over the proceedings to examine witnesses. Since it is an inquest, there will be no “parties” but only “interested persons” to examine the witness at the discretion of the Coroner. “Interested persons” are such as: (i) family or personal representative of the deceased; (ii) person whose act or omission or that his agent or servant, have caused or contributed to the death; (iii) inspector appointed by a government department to attend the inquest; (iv) any person who, in the opinion of the coroner, is a properly interested person.
The Magistrate/Coroner is assisted by the Prosecuting Officer and has the discretion on disclosure of documents.[9]
Conclusion in Inquest
In the conclusion of the inquest, a decision will be made on the identity of the deceased (if unknown), how, when, where, what and who, if any, caused the death of the deceased. The Magistrate/Coroner can then give a verdict on the inquest comprising of an open verdict, a verdict of misadventure, death by person or persons unknown, suicide or natural death. It is important to note that an inquest is merely a fact-finding process where there is no accusation against any person, hence does not amount to a conviction in the event that the death is caused by others.[10]
If the family members or person interested are not satisfied with the inquest finding, pursuant to Section 341A CPC read together with Chapter XXXI, revision application can be made so that the High Court can examine the record of the inquiry into the death of the deceased for the purpose of satisfying the High Court as to the correctness, legality or propriety of the finding of the Magistrate Court.[11]
Need for Change
In Singapore, Section 27(2) of the Coroners Act implicitly allows coroners to make recommendations when delivering their verdict.[12] This could also be seen in Section 44(2) of the Hong Kong’s Coroners Ordinance where it empowers coroners to make recommendation to prevent similar fatalities, prevent other hazards to life disclosed by the evidence at the inquest and to bring the attention of the relevant person deficiencies in a system or method of work which are disclosed by evidence at the inquest and which is of public concern.[13] In Malaysia, our CPC and Practice Note are silent on the Magistrate/Coroner’s power on giving recommendations, this is a major flaw in our system as constructive opinions are needed to improve the current proceedings and to prevent future similar fatalities as it would call for specific authority or organization to respond and bring a change.[14]
Therefore, despite having the CPC and the Practice Note, the Malaysian Bar nevertheless urges the Government to introduce the Coroners Act to strengthen the role of coroners and give more clarity in its inquiry process.[15] The Malaysian Bar also calls to establish the Independent Police Complaints and Misconduct Commission (“IPCMC”) --- an empowered independent and external oversight body to investigate complaints against the police force.[16] This could also help to ensure genuine, independent transparency and accountability in the force.[17]
Justice must not only be served, but must be seen to be served.[18]
[1] The Sun Daily, “Numbers of deaths in police custody by Home Ministry Misleading, says Suaram”, 21 September 2021 [2] A.G. Kalidas, President, Malaysian Bar Press Release, “Firm Action Must Be Taken to End Deaths in Police Custody”, 24 May 2021 [3] Olayinka Oyegbile, The Nation, “On Justice Oluwa”, 17 May 2020 cited in University of Malaya Law Review, “The Quest for Coronial Recommendation: A Sought-After Voice in Malaysian Death Inquest Verdicts”, 6 October 2020 [4] Section 337 Criminal Procedure Code [5] Section 328 Criminal Procedure Code [6] Section 338(2) Criminal Procedure Code [7] “Coroner” is defined under Practice Note 2/2019 as Sessions Court Judge [8] Practice Note 2/2019, Appendix A (4) [9] Practice Note 2/2019, Appendix A (5) [10] University of Malaya Law Review, “The Quest for Coronial Recommendation: A Sought-After Voice in Malaysian Death Inquest Verdicts”, 6 October 2020 [11] Inquest into the Death of Rumie bin Mahlie [2007] MLJU 280 [12] Section 27(2) Coroners Act 2010 (Singapore) [13] Section 44(2) Coroners Ordinance (Hong Kong) [14] University of Malaya Law Review, “The Quest for Coronial Recommendation: A Sought-After Voice in Malaysian Death Inquest Verdicts”, 6 October 2020 [15] Surindar Singh, Vice-President, Malaysian Bar Press Comment “Malaysian Bar Calls for Coroners Act to Enable Greater Clarity in Inquests”, 11 March 2021 [16] A.G. Kalidas, President, Malaysian Bar Press Release, “Firm Action Must Be Taken to End Deaths in Police Custody”, 24 May 2021 [17] A.G. Kalidas, President, Malaysian Bar Press Release, “Reform Police Custody Practices Now”, 1 May 2021 [18] A.G. Kalidas, President, Malaysian Bar Press Release “Another Death in Custody: A National Affliction That Must Be Eliminated”, 29 May 2021
Authored by Loh Yi Qing and Tan Yi Xuan
Kindly note that this legal article does not, and is not intended to, constitute formal legal advice by the Firm, instead all information, content and materials available on this site are for general informational purposes only. If readers require further clarification or legal advice, please email office@kevinwuassociates.com.
