People are dying in our lock-ups, but here's how Malaysian law tries to prevent it

Thomas Orhions Ewansiha wasn’t just a husband and a father to 2 kids, he was also pursuing a PhD in Management in Lim Kok Wing University. We may think that someone with Thomas’ credentials would have a pretty uneventful and drama-free life, but on 9^th July 2019 he died while he was detained in an immigration detention centre.

(too stereotypical) This story of people dying in the custody of Malaysian authorities is nothing new. In fact we may be so used to it (abit too ganas), we may not know that on the 30^th of July another man named Gopal Krishnan Rajalinggam died in a PDRM lock-up in Sungai Petani.

(be more sensitive here)Honestly, we may even think this isn’t too big of a deal because these people are probably bad anyways (if not why would they be in a lock-up, right?). But we have to keep in mind that these people are technically innocent and they’re not convicted prisoners. More likely than not, they’re detained to assist the PDRM in investigations or they’re awaiting trial.

(people think that nothing happens after)

That’s why when someone dies in PDRM custody, it’s an issue that the law looks into seriously and certain procedures must be followed. Thus when someone dies in the custody of PDRM or other authorities the first thing that must be done is….

Inform a judge

Normally, the investigation of deaths are done by the PDRM. But given that these deaths sometime happen in PDRM lock-ups, it’s probably better investigated by someone independent. That’s why when someone dies in a lock-up, the PDRM must immediately inform the nearest Magistrate (explain what’s a Magistrate) as stated in Section 334 of the Criminal Procedure Code:

The section also says that once the Magistrate has gotten the info about the death, he has to then decide whether or not to have an inquiry. And if he chooses to have an inquiry, the next thing he must do is decide whether or not a doctor should conduct an autopsy on the body. After all that, the magistrate can proceed to conduct his inquiry (basically examining witnesses, etc) to determine…

What are the circumstances that caused the death

The purpose of the inquiry isn’t to just determine the medical cause of death, but the circumstances that caused it. While a doctor examining the body may say “the victim died due to blunt force trauma to the head”, the Magistrate is more concerned with what are the circumstances that caused the ‘blunt force trauma to the head’. 

So to find that answer the Magistrate must ask a few questions, and these questions were laid out in the Inquest into the Death of Chandran Perumal (explain) (show that this isn’t the “authority”, but it’s an example) :

1. When did the deceased die?
2. Where did the deceased die?
3. How did the deceased die?
4. In what way did the deceased die?
5. Is anyone criminally responsible for the deceased’s death?

Once the Magistrate has gotten the answers to these 5 questions, the Magistrate can then come up with a conclusion. So just the like how a judge decides in a criminal trial whether a person is ‘guilty’ or not ‘guilty’, in an inquiry the Magistrate has an option of coming up with 3 types of answers according to the case of Teoh Meng Kee v PP which actually concerned the famous inquiry into the death of Teoh Beng Hock (who died during an MACC interview). And that inquiry said that these 3 answers are:

1. An open verdict; which basically means that the judge acknowledges the death was suspicious but he can’t come to other conclusions
2. A verdict of misadventure; which means that the circumstances of death was caused willingly (eg. the deceased took drugs on his own and overdosed)
3. Death caused by person(s) or person(s) unknown

In Teoh Beng Hock’s inquiry, the Magistrate went ahead with exercising the option of giving an open verdict. And once the verdict is given, Section 338 of the Criminal Procedure Code says that the Magistrate should pass the decision to the Public Prosecutor along with all the other info the Magistrate collected (what happens next). 

But as you can see in Teoh Beng Hock’s inquiry, an open verdict leaves a lot of things unanswered and family members might not get the closure they need. That’s why an inquiry doesn’t just end with the Magistrate.

The High Court can take over the matter

If someone isn’t satisfied with an inquiry decision by a Magistrate, they can refer the matter to the High Court. But mind you this really isn’t an appeal but a revision. In an appeal, usually one of the parties isn’t satisfied with a trial decision and he goes through a formal application to get an appeal. 

(explain the processes first before giving the example)

(cohesion, dont know why Teoh Beng Hock is suddenly here)

For revision, things are a little more laid back and anyone can ask the High Court to revise the matter through a simple letter. (explain only when miscarriage of justice) In fact, that’s what Teoh Beng Hock’s brother did after the Magistrate gave out an ‘open verdict’. Unfortunately, the High Court didn’t want to revise the matter and confirmed the Magistrate’s decision. Fortunately, he appealed against that refusal to a higher court (the Court of Appeal) and they accepted the appeal. The Court of Appeal said that because Teoh had bruises before his death, the Magistrate should have given the verdict of ‘death caused by person(s) or person(s) unknown’.

So it goes to show that when a death happens in a lock-up, there MAY be an independent body who will be a Magistrate to look into the matter. And even so, there may be higher authorities to make sure that the Magistrate conduct those inquiries properly.