PRACTICAL TRAINING REPORT I

(GLUX 2012)

BY:

MUHAMAD AKMALSAFWAN BIN MAJID

MATRIC NO: 251059

COLLEGE OF LAW, GOVERNMENT, AND INTERNATIONAL STUDIES

UNIVERSITI UTARA MALAYSIA

FEBRUARY 2019
 DECLARATION

I am fully responsible for the accuracy of all opinion, technical comment, factual report, data,

figures and tables in the report. I bear full responsibility for the checking whether material

submitted is subject to copyright or ownership right. UUM does not accept any liability for

accuracy of such comment, report and other technical and factual information and the copyright

or ownership right claims.

NAME: MUHAMAD AKMALSAFWAN BIN MAJID

MATRIC NO: 215059

DATE:
 ACKNOWLEDGEMENT

I am grateful to all those who had given their support and assistance, directly or indirectly

throughout writing of this final report, without the support of whom this report would not be a

reality.

My utmost gratitude goes to my supervisor Assoc. Prof./Dr./Mr./Mdm , College of Law,

Government and International Studies and Puan, Deputy Registrar, High Court of Ipoh,

for the guidance and assistance to the completion of this report.

I hereby certify that Muhamad AkmalSafwan Bin Majid , matric no: 251059 has completed

and submitted her final Practical Training Report I to me as her supervisor on the date as

specify by the Centre for University-Industry Collaboration (CUIC), Universiti Utara

Malaysia.

Assoc. Prof./Dr./Mr/Mdm

School of Law

COLLEGE OF LAW, GOVERNMENT AND INTERNATIONAL STUDIES

UNIVERSITI UTARA MALAYSIA

DATE:
 TABLE OF CONTENT

CHAPTER PAGE
1.0 Chapter One: Organisation Information

1.1 Organisation Background

History of the Perak Court

History of Justice In Malaysia

The judiciary of Malaysia is one of the governing bodies, namely the Legislation, Executives

and Judiciary that exists separately. The primary function of the judiciary is to ensure that the

Federal Constitution is adhered to and upholds justice in accordance with the provisions of the

law. Apart from being able to address any legal issues arising between individuals and

individuals as well as individuals and countries. Courts also play a role in interpreting the law.

The special task entrusted to the judiciary of the country is carried out in accordance with and

to uphold the Federal Constitution.

The Modern Judicial System of Malaysia began when the Royal Charter of Justice 1807 was

issued, it gave permission for the execution of a court in Penang. In 1808 a court was

established in Cornwallis City before moving to the Supreme Court building a year later. In

1825, Penang, Singapore and Melaka were merged into the Straits Settlements and under

British rule. The jurisdiction of the Penang Administrative Court, extended to Singapore and

Melaka. On the 1850's, Singapore succeeded in replacing Penang as the Main Trade Center in

the Straits Settlements. Thus, the Chief Justice has also moved to Singapore from Penang.

The British intervention in the Federated Malay States and the Unfederated Malay States as

well as Borneo in the late 19th and early 20th centuries led to the judicial system in the states.

The Judicial System in the region was then run and controlled entirely by British descent.

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Nevertheless, in 1939, King Musa Raja Bot became First Appointed Son of the Watan high in

the State Justice System. Although it was only appointed as a temporary incumbent on the

Federal Court of the Federated Malay States. The Courts in Malaya were still in the process of

being maliciously attacked by Japanese troops. However, these courts stopped functioning as

Japan managed to dominate the whole country.

The Federal Constitution of Malaysia 1963, repealed the existing Courts of the Agong at that

time. It was replaced by a Federal Court that combined the various State Courts that existed

under one roof. The then State Judiciary body was headed by a Chief Justice called Lord

President (Y.A.A. Tun Sir James Beveridge Thomson 1963-1966).

According to the Constitution of the Federal Constitution, the Chief Justice shall be appointed

by the Yang di-Pertuan Agong who acts on the advice of the Prime Minister after consultation

with the Conference of Rulers. In 1994, this incumbent title was converted to Chief Justice.

There were 3 Federal Courts once upon a time namely the High Court of Malaya, Singapore's

2
High Court and the High Court of Borneo. But in 1965, Singapore had withdrawn from the

Federation of Malaysia and the Courts completed the long-standing regional judicial system

online. Once upon a time, Malaysia's highest court was the Privy Council, even after Malaya's

independence and subsequently the formation of Malaysia in 1963. The consent of which was

between the Queen of England (Queen Elizabeth II) and the Yang di-Pertuan Agong (His

Majesty the Yang di-Pertuan Agong I Al-Marhum Tunku Abdul Rahman Ibni Al-Marhum

Tunku Muhammad). At the same time, the Enforcement of the 131th Federal Constitution of

Malaysia allowed the appeal of the Federal Court's decision to be referred to the Privy Council

in London. By abolishing the treaty in 1985, the judicial system relied on Britain's Judicial

System.

The structure of the Malaysian Judiciary may be broken into two divisions, namely the Superior

Court and the Subordinate Courts. The highest court in Malaysia is the Federal Court followed

by the Court of Appeal, the High Court of Malaya and the High Court of Sabah and Sarawak.

The Subordinate Courts consist of Sessions Court, Magistrate's Court and Children's Court.

The Special Court was established through the Federal Constitution on March 20, 1993. It has

jurisdiction to discuss Civil or Criminal action initiated by or against the Yang di-Pertuan

Agong or other rulers of the states. Malaysia's highest court, the Federal Court, is now at the

Court of Justice.

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FEDERAL COURT

The Federal Court has jurisdiction to accept the appeal of criminal or civil criminal proceedings

that the Court of Appeal has tried. One of the main functions of the Federal Court is to

determine the legitimacy of the law issued by Parliament or State Government. It also has the

jurisdiction to decide on inter-state disputes or between the Federal Government and the State

Government. The Federal Court is the translation of the Federal Constitution and has the

terminology in the translation of the Federal Constitution of Malaysia. The Court of Appeal

has jurisdiction to hear appeals for decisions made in the High Courts.

HIGH COURT

The High Courts have jurisdiction to hear the appeal of civil or criminal cases from the

Subordinate Courts. High Courts have unlimited jurisdiction in discussing criminal offenses

involving the death penalty. These courts also have unlimited powers to discuss civil cases. In

general, the High Courts do not talk about what falls under the jurisdiction of the Subordinate

Courts.

LOWER COURT

The Lower Courts in Malaysia may be submitted with criminal or civil offenses. The Sessions

Court has jurisdiction to decide criminal cases except cases involving the death penalty.

Sessions Court Judges also have jurisdiction to decide civil cases in accordance with the

provisions of the jurisdiction of the Court. The Court of First Class Magistrate has jurisdiction

to discuss civil cases whose claims do not exceed RM100,000.00. Generally, these Magistrates

Courts have jurisdiction to try offenses where the maximum sentence is not more than 10 years

4
in prison with a fine. The Children's Courts existing in the Subordinate Courts section are

specific to the trial of offenders under 18 years of age.

After the Pangkor Treaty (1874), the British Government made a slow down attempt to set up

a British legal system in Perak. Five years later they succeeded in forming their power and

building police stations (huts) followed by courts and prisons.

Kinta District Officer is not only acting as the Senior District Magistrate but also as the Best

Land Collector. Dr. H.W.C. Leech, the Magistrate of Kinta District moved his office to the

upstream side by constructing large buildings for himself and his staff in one place in the middle

of Kota Bharu (Gopeng) where one can get up to the steam boat through the river within a day

from Durian Sebatang (Anson Bay).

5
He also built police stations in Gopeng and Epoh (Ipoh), which was the main village in the area

in the same year until 1879. The need to go to Kinta began in 1884. In 1882 there were 4,000

Chinese miners in the area. By 1884 it had grown to more than 5000 people and in subsequent

years increased to 9000 (1885), 18,000 (1886), 25,000 (1887) and 38,000 (1888).

Kinta Magistrate's headquarters were transferred to Batu Gajah in 1884 as the Kota Bharu area

was no longer suitable. A prison and a police station were built on Papan (Batu Gajah) in 1884.

Magistrate Batu Gajah commute once a week to the Board and hear court cases at the police

station.

On November 29, 1887, riots had taken place on the Board and the courts were immediately

held after a few days later the trial before the Honorable of the Sultan of Perak, British Resident

and Dato 'Panglima Kinta.

Two partners were hanged, nine of them were imprisoned and whipped and 12 were fined.

After that the police patrols of the Sikhs were created. The Courts and the Prison on the Board

ceased to function after the First World War.

Building and Housing (quarters) The first Court of Magistrate in Ipoh was completed in 1888.

In October 1888, En. E.J. Brewster started the Police Court in Ipoh. He said this was to facilitate

the public and police.

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In November 1888, Mr. E.J.C. Tranchell holds the post of Assistant Magistrate First to hear

small cases in Batu Gajah and Gopeng three times a week. Up to 1889, there were three

subordinate courts and one court of appeal in Kinta. Until 1895 Ipoh was converted into a city

when teachers' offices began construction and were completed a year later.

On 14 November 1898 for the first time the Judicial Commissioner opened a court for a

criminal conference in Ipoh. In 1903 Dato Panglima Kinta Mohammed Yusof a very wealthy

Malay tin miner in Perak built a house for himself. After he died the house was bought by the

British Government and made a Court Building in Ipoh.

On the 14th. May 1906 En. E.W. Birch officiated the opening of the New Court Building in

Ipoh which was built firmly from dry cengal timber. On the ground floor there is a row of stone

columns around the building with the office of Judicial Commissioner, Magistrate and Court

officials. The stairs with the verandah go to the top of the courts. The building is one of the

most comfortable in the Federation of Malaya. This Court Building is located on St. John's

adjacent Goodsheds Train.

The first magistrate who started his job at the New Court Building was Mr. E.A. Cooper is a

fluent English in Malay and Gurmukh (Punjabi). An additional Magistrate was appointed in

1915 to resolve the escalating cases since 1904. The Supreme Court was subsequently

transferred to the Education Office at Jalan Maxwell (Old Buildings) in view of the situation

at the court building on Jalan St. John's was too noisy because it was too close to the rails. From

there the Supreme Court for the first time is separated from the Subordinate Courts.

7
In 1941, perhaps because the subordinate court was close to petrol fuel tanks, this Court was

bombarded by the Japanese and it was completely destroyed. During the Japanese occupation,

this Subordinate Court was placed in a wooden building where the State Mosque is now.

In 1947 both Magistrates' Courts and District Courts moved to a temporary building

constructed temporarily between the Railway Station and the Police Station. This location is

where the first Ipoh Hospital was created before the Ipoh Hospital moved to Anderson Street /

Ashby Street.

In 1952, two-storey buildings at Jalan Kelab occupied by Courts and Post and Telegram Clubs

were submitted to the Court. Thus a Traffic Court has been established where it is placed on

the top floor. Hence the number of courts at that time was 4 pieces. The first local magistrate

was Tun Mustapha Albakri Bin Haji Hassan. He is a Second Class Magistrate. Meanwhile, the

first Civil Service Officer of Malaysia to hold the magistrate's post was Tun Ismail Bin Mat

Shah. The Lower Courts moved to the new building now, on 1st. July 1975.

8
9
Historical Court Of Session / Majistret Ipoh Perak

Introduction

Ipoh Sessions Court / Magistrate was officially opened by His Majesty the Sultan of Perak,

Sultan Idris Al Mutawakkil Allallahi Shah Ibni Al Marhum Sultan Iskandar Shah Kaddasallah

on Monday 9th. August, 1976. This new building comprises a two-storey building and is

adjacent to the Perak State Development Corporation and is faced with the Perak Legal

Advisory Office and Royal Perak Golf Club.

Subordinate Courts moved to new building on 1st. July 1975 and consists of 2 Sessions Mahkhi

and 4 Magistrates Courts including the Traffic Court. The Sessions Court / Magistrate of Ipoh

acts as the Center of Responsibility to 25 Courts including 5 High Courts (Ipoh and Taiping),

6 Sessions Courts and 14 Magistrates Court Courts. As the Center for Responsibility The

Sessions Court of Ipoh manages all matters of Administration, Services, Finance and

Development for all Perak State Courts.

After the Treaty of Pangkor in 1874, the British had made a rather successful attempt to set up

the English legal system in the State of Perak. Up to 1889 there were three Subordinate Courts

and one Court of Appeal in Kinta District. When Ipoh was converted into Town around 1895,

many buildings were built including the residence of Datuk Panglima Kinta Mohamed Yusof,

a rich Malay tin miner in Perak on the site of this Court building. After he died in 1903, the

British government bought the residential site and built this building formerly known as

"Supreme Court", Ipoh.

10
The Court building is firmly constructed from dry cengal logs surrounded by stone columns.

The building is one of the best and most comfortable in the Federation of Malaya. The building

is located on St. John is next to Goodsheds train. At that time the Supreme Court and the

Supreme Court were under the same building. Given the location of this building close to the

railway route and bringing noise disturbance, "Ipoh's Supreme Court" was later transferred to

Jalan Maxwell (now Jalan Tun Abdul Razak). From there the first time the Supreme Court of

Ipoh was separated from the Subordinate Courts.

The history of the subordinate court began on 14 May 1906 where Mr. E.W. Birch officiated

the opening of this Court building, which is located on St. John is next to Goodsheds train. In

this building there is a Office of Judicial Commissioner, Magistrate's Office and Court Officers.

The first Magistrate in this new Court building is Mr. E.A. Cooper is a fluent English in Malay

and Punjabi. An additional Magistrate was appointed in 1915 to resolve pending cases. In 1947,

a temporary two-storey building was built and both the Magistrate's Court and a District Court

were placed in this building.

In 1952, this double-storey building was handed over to the Court which was previously

occupied by the Post and Taligram Clubs. Thus a Traffic Court has been established where it

is placed on the top floor. Hence the number of courts at that time was 4 pieces. The first local

magistrate was Tun Mustapa Albakri bin Haji Hassan. He is a Second Class Magistrate. The

first Public Service Officer of Malaya to hold the Magistrate's post was Tun Ismail bin Mat

Shah.

11
The Lower Courts moved to the new building now, on 1st. July 1975. The new building

comprises 2 Sessions Courts and 4 Magistrates Courts including the Traffic Court. In 1990 the

number of Sessions Court increased to 3 and in 1995 the number of Magistrates Court increased

to 5.

Historical Artifacts

Reminton Rand Typewriter

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 1.2 Mission

1.3 Objective

1.4 Organisation Structure

Judge and Judicial Comissioner

Y.A Dato’ Hashim Bin Hamzah

Y.A Tuan Anselm Charles Fernandis Y.A Dato’ Mohd Radzi Bin Harun
Judicial Comissioner Judicial Comissioner
High Court (2) Ipoh High Court (3) Ipoh

13
Number of officers and staff HIGH COURT OF IPOH -52 PEOPLE

14
2.0 Chapter Two: Work Process and Procedures of Death Inquiry

INQUIRIES OF DEATHS

Introduction

In Malaysia, an inquiry of death is carried out when there is reason to suspect that a person has

died in the following manner:

 sudden;

 unnatural;

 by violence; or

 cause of death unknown and in situations where the law requires an inquiry.

The inquiry is conducted by a Magistrate in a place open to the public. The Magistrate will

inquire as to:

 when, where, how and after what manner a deceased person came by his death;

and

 whether any whether any person is criminally concerned in the cause of such death.

Public interest requires that inquiries of death should be held as soon as possible after the death

is reported.

15
The Law

The applicable law is found in Part VIII, Chapter XXXII, of the Criminal Procedure Code

(CPC). Under section 330 of the CPC, a police officer making an investigation shall, if

it appears to him any reason to suspect that a person came by his death in:

 a sudden or unnatural manner;

 by violence; or

 that the person’s death resulted in any way from or was accelerated by any

criminal act or a ‘slip’ on the part of any other person,

At once inform the nearest Government Medical Officer and, unless it appears to the

police officer that the dead body should be viewed by a Magistrate at the place where the

dead body was found, the police officer shall take or send the dead body to the nearest

Government hospital for the holding of a post-mortem examination of the dead body by

a Government Medical Officer, provided that if such officer is satisfied as to the cause

of death and that the deceased came by his death by accident he may order the body to

be buried forthwith. The report of the Government Medical Officer conducting the post-

mortem is necessary because it may determine the medical cause of death, which may be

due to:

 a natural disease,

 poisoning,

 accident or

 even a cleverly executed murder without any visible signs.

The said report may enable the Magistrate to find out the legal cause of death.

16
When should an inquiry of death be held?

An inquiry of death can be held in the following circumstances:

 unnatural death, such as suspected murder;

 suspected suicides;

 sudden death including those that appears to be caused by natural causes but where the

exact medical cause of death is not known;

 death following anesthesia, surgery or any medical investigative procedure;

 death of any person who dies while in the care of a person or in the circumstances

that raise doubt about the deceased’s care;

 death associated with pregnancy, abortion, childbirth, etc.;

 death related to workplaces or occupational diseases; and

 where a dead body is discovered in mysterious condition and it is not known how

the person came by his/her death;

 where an inquiry has the possibility of exposing important fault or danger not

already known;

 where the view of the family of the deceased or members of the public are such that

an inquiry is likely to assist and maintain public confidence in the administration

of justice, health services or other public agencies;

 where in any death that when considered with other deaths in similar situation

indicates that there may be an unexpected increase of danger in a particular

location, area, family, industry or activity;

 where there is uncertainty or conflict of evidence as to justify the use of the medico-

legal process to determine the cause of death;

 where natural disasters strike and cause multiple deaths.

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Where death appears peaceful but the cause of death is not known, such death may also be

classified as death requiring inquiry before a Magistrate. Where there is a death in custody

such as in a police station, remand prison, prison, rehabilitation center, detention camp,

mental institutions, asylums, etc., an inquiry should be held. In other cases the Magistrate may

hold an inquiry if he thinks it is expedient to do so. Under section 339 of the CPC the Attorney

General who is the Public Prosecutor may direct a Magistrate to hold an inquiry into any

death.

When should a full inquiry of death not be held?

Under section 333 of the CPC a full inquiry of death need not be held where the Magistrate is

satisfied as to the cause of death, e.g. fatal road accidents that are accidental in nature and

the cause of death is quite clear. It is suffice to hold a paper inquiry. In such cases the

Magistrate shall report to the Public Prosecutor the cause of death as discovered to his

satisfaction with his reasons for being so satisfied and shall at the same time transmit to the

Public Prosecutor all reports and documents in his possession connected with the

matter. Under section 333(3) of the CPC the Magistrate need not hold an inquiry where

any person has been charged with an offence in respect of any act connected with the

death of the deceased or if the Magistrate is informed before an inquiry begins that a criminal

proceeding will be brought against any person.

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What is the objective of the inquiry?

Inquiries of deaths are held to:

 identify the dead body i.e. who the deceased was;

 to ascertain the date and time of death;

 the place where the death had occurred;

 how the death was caused;

 after what manner the deceased came by his/her death;

 the person/s who caused or carried out the act or blunder that resulted in the death,

if any; and

 inquire whether any person is criminally concerned in the cause of such death.

Section 328 of the CPC provides that the ‘cause of death’ includes not only the obvious

cause of death as ascertainable by 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

accelerated by any unlawful act on the part of any other person. Such facts as to the cause

of death may constitute particulars that are required to be entered in the death certificate

concerning the death of the person.

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The inquiry process

A Magistrate shall commence an inquiry of death as soon as possible after the death is reported

to the Magistrate. The inquiry should as far as possible be conducted continuously

until conclusion with minimal of postponements in between. The place of inquiry or court

where the inquiry of death is held is usually a place open to the public. However, the

Magistrate may, on special grounds of public policy or expediency, in his discretion,

exclude the public or any person or persons in particular at any stage of the inquiry

from the place in which the inquiry is being held. The inquiry of death is not a criminal

trial. There is no complainant or an accused to be prosecuted. There is no one to conduct

the defence. There are only ‘interested parties’ such as:

 the next of kin or personal representative of the deceased person;

 a representative of an enforcement authority or government department appointed to

attend to attend the inquiry;

 any other person who, in the opinion of the Magistrate, is properly an interested

person.

There is no judgment passed by the Magistrate and there is no conviction or punishment

imposed on any person at the end of the inquiry. In holding the inquiry of death, the

Magistrate is usually assisted by the Prosecuting Officer who is there only to assist the court

in the examination of witnesses. A counsel representing an interested party may be present in

the inquiry proceedings The counsel’s role is not to defend anyone but to look into the

interest, example to hold a watching brief, of those who engage him, usually the next of kin of

the deceased person.

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The counsel does not have the right to speak as of right but only when allowed to do so by the

Magistrate. The Magistrate shall have the control of proceedings and it is the Magistrate that

shall first examine the witnesses. The Magistrate then exercises his discretion to determine

who are the ‘interested persons’ who shall have the right to examine the witnesses.

The Magistrate does not have to strictly follow rules but may admit even hear say evidence if

he feels that such evidence may assist him in the inquiry of death. He is not required to follow

the usual procedure of the law courts. The rules of procedure and rules of evidence

that is applicable in a criminal trial are not applicable in an inquiry of death. The

Magistrate should not entertain any form of objection from counsel holding watching brief

and other interested persons on the credibility of the witnesses.

However, witnesses at inquiries of death do take oath and affirm that they will tell the

truth. In giving evidence no witness at an inquiry shall be obliged to answer any question

which may cause him to look guilty (i.e. which may incriminate him). Where such

questions are asked the Magistrate shall inform the witness that he or she may refuse

to answer. The Magistrate holding an inquiry shall record the evidence and his findings and

transmit it to the Public Prosecutor. In holding the inquiry the Magistrate shall not frame a

verdict that appear to determine any question of:

 criminal liability on the part of a named person; or

 civil liability of any party.

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Such question on criminal liability should be left in the hands of the Attorney General who

is also the Public Prosecutor, and matters of civil liability must be left for a claim in damages

in a civil court. The Magistrate’s duty is to decide as to the cause of death at the conclusion of

the inquiry.

Conclusion of the inquiry

After hearing the evidence of witnesses regarding the circumstances surrounding

the death and considering all the documents produced during the inquiry, the

Magistrate may conclude that the death was due to amongst other things:

 an accident caused by the deceased’s own fault;

 by events beyond human control; or

 due to the actions of known or unknown person/s.

A suicide verdict may be recorded where the Magistrate is satisfied that the deceased

intended to and did take his/her own life. The Magistrate may deliver an open verdict,

which means that the cause of or the circumstances of the death is unknown or not clear. Under

section 341A of the CPC the verdict delivered by the Magistrate at the conclusion of an inquiry

is subject to revision by the High Court.

Power of the Public Prosecutor

Where an inquiry of death has been closed and the Public Prosecutor considers further

investigation is necessary he may direct the Magistrate to reopen the inquiry and

conduct further investigation and proceed as though the inquiry has not been closed.

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3.0 Chapter Three: Analysis on Work Process and Procedures of Death Inquiry

Introduction

Section 13(1)(b) of the Criminal Procedure Code (CPC) requires every person who is aware of

any sudden death or unnatural death or death by violence of any death under suspicious

circumstances, or of the body of any person being found dead without its being known how

that person came by death, to immediately give information to the officer in charge the nearest

police station or to a police officer of the nearest Penghulu ( village chief) of the commission

or intention or of the sudden, unnatural of violent death, or of the finding of the dead body, as

the case may be, unless he has a reasonable excuse for being unable to give such information.

Failure to forward such information is an offence under ss 176 and/or 202 Penal Code. Both

provide for imprisonment of up to six months and/or a fine. Section 107 of CPC consequently

requires that any information relating to the commission of an offence, if given orally to an

officer in charge of a police station, shall be reduce to writing by the officer or under his

direction, and be read over to the informant. The informant is then bound to truthfully provide

the requisite information and to sign it.

Cause of death

‘ Cause of death’ include not only:

1) The apparent cause of death as ascertainable by inspection or post-mortem examination

of the body of the deceased (these may range from death by drowning to mortal wound

sustained as a result of suicide through jumping down from a high-rise building or from a motor

vehicle accident) ;

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2) But also all matter necessary to enable an opinion to be formed as to the manner in

which the deceased came by his death, such as the time of the death and if by natural death, if

the cause was due to heart failure or cancer, (s 16 of the Prevention and Control of Infectious

Diseases Act 1988 would also necessitate an ‘inquiry’ as to the cause of the death);

3) Whether his death was a result in any way from, or was accelerated by any unlawful

act or omission on the part of any other person such as murder, or that the deceased being

mortally injured was not brought to the hospital as soon as possible or was not put on a life

support system, or that the same was discontinued.

Investigation Report

Whenever any police officer in charge of the police station receives information that a person

has committed suicide, been killed by another person, an animal, a machinery or by an accident,

or that he came by death under circumstances that there is a reasonable suspicion that some

other person has committed an offence, or that the apparent cause of the death is not known or

sudden, he shall with the least practical delay, inform the same to a police in charge of the

police district. The officer in charge of the police district or an officer acting under his direction

who shall not be under rank of sergeant in turn, shall immediately proceed to the place where

the body of the deceased was found and draw out a report of the apparent cause of death,

describing the wound, fractures, bruises and other marks of injury on the deceased’s body, and

such marks, objects and circumstances (if any) that may relate to the cause of his death, who

cause his death and the manner or by what weapon or instrument (if any) the marks appear to

have been inflicted. The investigating police officer is authorised to interview witnesses and

suspects in the course of his investigation. The officer who prepares the investigation report

shall sigh it and forward the same to the police officer in charge of the police district, and he

24
in turn shall then immediately forward the same to the magistrate within the local limits of

whose jurisdiction the body of the deceased was found. The investigation and report shall be

made and report is to be forwarded to the local magistrate even under circumstances where the

body is unlikely to be found or could not be recovered owing to its destruction by fire or at a

place where it could not be recovered. The investigation report may include the post-mortem

report if a post-mortem was conducted on the deceased’s body.

When post-mortem is not necessary

The investigation officer shall send the body to the nearest government hospital or another

convenient place for holding a post-mortem examination of the body by a government medical

officer (pathologist) if there appears to him any reason to suspect that the deceased came by

his death resulted in any way from, or was accelerated by any unlawful act or omission on the

part of any other person. A post-mortem is not necessary if the investigation officer is satisfied

as to the cause of the death and that the deceased came by hid death by accident. Sometimes,

death may result from old age, or from a long and incurable disease. In those circumstances,

the police may issue the burial permit without the need for conducting an autopsy on the corpse.

Another example would be one of a child accidentally drowning in the river whilst playing

with other children. In such circumstances, there is no need for the investigating officer to send

the body for autopsy by a government medical officer. Where a post-mortem or autopsy is not

required the police officer may direct that the body be buried immediately.

Is the duty of the investigating police officer to inform the next of kin of the deceased to come

forward to identify the deceased so that they may claim the body for burial. In every case of a

sudden or violent death, the investigating officer must ensure that the national registration

25
identity card of the deceased is recovered and upon completion of the investigation, forward

the same to the State Registration Officer for disposal. A burial permit (Am 138-PIN 1/78) is

accordingly issued to immediate members of the deceased’s family or relatives to collect the

body, usually from the hospital mortuary. The permits needs to be handed over the caretaker

of the burial ground. Whenever the deceased cannot be positively identified, the body has to

be photographed face upwards with the deceased wearing all the items of clothing, ornaments,

footwear that he was last found wearing. The hospital practice has been that if after three days

the corpse remain unclaimed, it will then used for medical research.

In case reported in Harian Metro Online ( Malaysia ), the deceased’s brother ( Aris Ismail – 52

years), lodged a police report that deceased, Hamidah Ismail, aged 43 years, died suspiciously

because there was no police report made on how the deceased came by her death. The

deceased’s brother and sisters were only informed of the deceased’s death after her burial

ceremony. Moreover, the deceased was buried at the burial ground in Country Homes without

any death certificate ( no burial permit was issued by the local police) at some distance from

both her husband’s premise ( at Rawang) and her brother’s and sister’s village ( in Bukit

Kerdas, Batu Kikir Negeri Sembilan). Mohd Rizki Abdul Jalil, the magistrate in Rawang,

ordered the deceased who was buries at the burial ground in Country Homes to be exhumed

under s 355(2) of the CPC to determine the cause of death. The exhumation work was done by

forensic officer from Kuala Lumpur Hospital, a pathologist from the Selayang Hospital and

assisted by the local residents.

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In all fatal death cases, the deceased would be taken by ambulance to be deposited in a

mortuary, which usually in a hospital, for the deceased’s next of kin to later claim the body. It

is submitted that it would be unlawful for the government medical officer to conduct a post-

mortem on the deceased if the investigating police officer is already satisfied with the cause of

the death. In this situation, if the burial permit is issued, the deceased’s next of kin may

immediately claim the deceased’s body, and if the body is already in a hospital mortuary, to

claim it from the hospital concerned.

The burial place is a totally separate issue. For burial in a public cemetery, permission to bury

the deceased must of course depend very much on the permission of the Penghulu of the

community. Here, it is important that there is evidence that the deceased was from that

particular locality to justify his burial in that place. The evidence may be from the witnesses

witnessing his regular attendance at the surau or mosque in the locality, payment of quit rent

at the local land office and or payment of council tax to the local authorities. Otherwise, there

seems to be no reason to have outsider buried in a public cemetery in a certain locality or

community to the detriment of the local residents especially when the deceased did not live

there and where the land space burial is seriously in shortage. Priority should of course be given

to the local residents.

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When post-mortem is necessary

The power of the government medical officer to conduct a post-mortem on the deceased only

arise if the ‘cause of death’ is still an issue if for any reason arise, the investigating police

officer suspects that the deceased came by his death in a sudden and unnatural manner or by

violence or the death resulted in any way from, or was accelerated by any unlawful act or

omission on the part of any other person. The post-mortem shall extend to the dissection of the

body and an analysis of any portion of it, and may cause any portion of it to be transmitted to

the Institute for Medical Research. Here, the discretion and ingenuity of the government

medical officer is important in deciding on whether to dissect the body and whether the cause

of the death may be ascertained through inspection by alternative means such as body scanning

for internal injuries, forensic tests, and etc.

The pathologist examining the body then writes his report, which referred to as ‘the

pathologist’s report’. This report would include an appraisal of the body and the conclusion of

the pathologist. It would also certify the cause of death and be dated and signed by the

pathologist. The medical report is then forwarded to the police officer in charge of a police

district who shall attach the same to the police investigation report. The report is admissible in

court as evidence for the purpose of the inquiry, and criminal trial, in the event that the

government medical officer responsible for the post-mortem report dies.

Under s 399 of the CPC, reports of persons such as officers of the Medical Research Institute,

government medical officers, document examiner appointed by the Minister, Inspectors of

weight and measures, may be given in evidence in any inquiry, trial or other proceedings, unless

the court or the accused require them to attend as s witness. It is trite law that when a witness

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whose report is admissible under the CPC is called to give oral evidence, his report should only

be used, if at all, to refresh his memory (s 159 of the Evidence Act 1950) or to corroborate (s

157 of the Evidence Act 1950) the oral evidence. It is submitted that these sections do not apply

to an inquiry of deaths in view of s 332(2) of the CPC that specifically states:

The report of the Medical Officer and also the report of an officer of the Institute for Medical

Research on anything transmitted to him under subsection 331(2) shall be admissible as

evidence and shall be prima facie evidence of the facts stated in it any inquiry held under this

Chapter.

Inquiry of death is not mandatory.

The magistrate in receipt of the report need not hold an inquiry if he is satisfied with the cause

of the death by stating the reason for doing so, but shall report the same to the public prosecutor

together with all reports and documents connected with the matter. The magistrate should

proceed as soon as may be, to hold an inquiry if he decides otherwise. Upon deciding to hold

an inquiry under this chapter, the magistrate may (if he considers it expedient that the body of

the deceased person should be examined by medical officer in order to discover the cause of

death), issue an order to the government medical officer to make post-mortem examination of

the body, and may for that purpose, order the body to be exhumed, whether or not a post-

mortem examination had been made under s 331. Until such an order is made, the pathologist

is not duty bound to conduct a second post-mortem if one has already been done.

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An inquiry or a report to the public prosecutor is not necessary if criminal have been instituted

against any person concerned with the death of the deceased. Where the death of a person

occurs while the person is in custody of the police, in a mental hospital or prison, the officer

having custody or the person in charge shall immediately intimate the matter to the nearest

magistrate, and if he thinks expedient, hold an inquiry to the cause of the death. Where the

magistrate decides to hold an inquiry, it follows that the deceased should be sent before a

government medical officer for post-mortem, and if the deceased has been buries, to order the

body to be exhumed where necessary.

The public prosecutor, however, may at any time direct the magistrate to hold an inquiry, and

the magistrate is then obliged to do so and to forward the evidence and his findings to the public

prosecutor. The public prosecutor may even require the magistrate to reopen the inquiry and if

necessary, to have the body exhumed if it appears to him that further investigation is necessary,

unless a finding of murder or culpable homicide not amounting to murder has been returned

against any person.

Rules of Evidence and Procedures

An ‘inquiry’ does not exclude a trial, and a preliminary inquiry is also not a trail. A ‘trial’ is

also not defined in the CPC but a ‘judicial proceeding’ is. Be that as it may, it is submitted that

an inquiry to determine the cause of death under s 328 is not the same as a preliminary inquiry

into case triable by the High Court, this is fortified by the fact that preliminary inquiries into

cases triable by the High Courts have been abolished for quite some time vide s 5 of the

Criminal Procedure Code (Amendment) Act 1995 (Act A908). Section 2 of the CPC defines

an ‘inquiry’ as including every inquiry conducted under the Code before a magistrate and

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‘judicial proceeding’ as any proceeding in the course of which evidence is, or may be, legally

taken. In other words, the moment a witness gives evidence on oath under the Oath and

Affirmation Act 1949 which reads ‘oaths shall be taken by witnesses, that is to say, all person

who…give evidence…before the court…’, the inquiry is considered a judicial proceeding too

and hence the magistrate by virtue of s 2 of the Evidence Act 1950 is bound to follow the rule

of evidence and is also bound to follow the provision of the CPC by virtue of s 3.

‘Evidence is defined to include (a) all statements which the court permits or requires to be made

before it, by witnesses in relation to matters of facts under inquiry (such statements are oral

evidence) and (b) all the documents produced for the inspection of the courts (such documents

are called documentary evidence). It would be quite discernible that the definition of ‘evidence’

is not the real definition, but rather a statement of the term ‘evidence’.

Therefore, ‘evidence’ would include circumstantial evidence and real evidence, even though

they are not defined as ‘evidence’. Similarly, even though, admission and confession are not

defined as ‘evidence’, they are regarded as such, by the Act. Section 4(1)(a) of the Oaths and

Affirmation Act 1949 reads ‘oaths shall be taken by witnesses, that is to say, all person

who…give evidence… before the court…’ suggesting that if a witness box, or the same cannot

be construed as ‘evidence’.

Thus, the decision in Re Loh Kah Kheng (deceased) (No 2) that in ascertaining the cause of

death, a magistrate when examining a witness on oath during the inquiry, need not follow

strictly the rule of evidence nor be bound to follow the usual procedure of law courts, it is

submitted, is not correct. This is so because, once evidence from witnesses are on taken oath,

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it is not simply an ‘inquiry’ any longer, but a ‘judicial proceeding’ that requires strict

compliance with the Evidence Act 1950 (s 2) and the Criminal Procedure Code (s 3). The

decision in Re Loh Kah Kheng (deceased) (No 2) was, however, referred and agreed upon by

Suriyadi Halim Omar J, in Public Prosecutor v Shanmugam & Ors who deliberated that the

Criminal Procedure Code (Amendment and Extension) Act 1976 (Act A324) repealed all other

statutes governing inquests of deaths of a person, and being applicable throughout Malaysia, it

vested in the magistrate, the power and duties of a Coroner’s Court.

The learned judge said that a Coroner’s Court had always been accepted as a court of law,

though not a court of justice, as it was set up to investigate and ascertain the cause of death,

and was not bound to follow the usual procedure of law court. Therefore, he opined that the

position of the magistrate court is no different from the archaic Coroner’s Court. Here I beg to

differ, and add to say that the Coroner’s Court has become history, and the task is now taken

over by the magistrate who operates in a magistrates court setting with its own rules of evidence

and procedure.

The magistrate should not act as though he were sitting in a Coroner’s Court but must mindful

of the law of evidence and procedure, for the magistrate court is not a Coroner’s Court as much

as it is not a tribunal. The only things is, in inquiries of deaths, the magistrate has limited

mandate to establish the cause of death similar to when it conducts a voir dire specifically for

determining the voluntaries and admissibility of the accused’s confession.

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The nature of the inquiry

An inquest is a proceeding under CPC. It means an inquiry by a magistrate with a view to

record a finding as the cause of the death and to any of the circumstances connected therewith

in regard to which the public prosecutor may also have directed a magistrate to make an inquiry.

The language used under the relevant provision in the CPC clearly reveals that an inquest is

not, by any stretch of the interpretation, a trial. In criminal trial, a charge is preferred against a

particular person, and this is a necessary element in a criminal trial.

The inquiry is to determine when, where, how and after what manner the deceased came by his

death. In so doing, all matters necessary to enable an opinion to be formed as to the manner in

which the deceased came his death are relevant. Thus any person who has real, substantive and

reasonable interest in the inquest such the deceased’s mother, may at the discretion of the

magistrate be allowed to examine (not cross examine) witnesses at the inquest.

The magistrate holding an inquiry shall record the evidence in legible handwriting and may

include in the footnotes of the evidence his remarks as to the demeanour of the witnesses. He

shall immediately transmit to the public prosecutor his original evidence and findings duly

authenticated by his signature or a copy of such evidence and findings duly certified under his

hand as correct. The inquiry should ordinarily be held in open court, but it may be held fully

or partly in camera, if the court is satisfied that it is expedient in the interest of justice, public

safety, public security or propriety, or for other sufficient reason so to do.

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In an inquest, there are no parties, indictment, prosecution of defence, and no trial because the

function of an inquest is to establish the facts. It is an inquisitorial process, a process of

investigation quite unlike a trial where prosecutor accuses and the accused defends with the

judge, holding the balance or the ring. At the conclusion of the inquiry, the magistrate is

expected to make the finding of the death by misadventure (caused by accident, struck by

lightning, drowning, suicide or death caused by a person or person unknown as a result of

lawful or unlawful intentional and unintentional act culminating in unforeseeable death), death

cause by an act of God, death caused by natural causes and open verdicts.

As for the latter verdict, where there is insufficient evidence to bring in any of the other

verdicts, the magistrate resorts to an open verdicts. A magistrate who conducted the inquiry

must, however, confine himself to the evidence made available to him, and decide on that

evidence alone. If any verdict was based on probability and not on the established facts, that

verdicts must be quashed and an open verdict returned.

In Public Prosecutor v Shanmugam & Ors, the facts disclosed that the death of the six person

in the van was the resulted of mortal gunshot wounds to their heads and bodies with the shot

all directed at their heads. The police acting on information that the suspected van was being

used for gun smuggling and drug trafficking activities, stopped the vehicle at about close to the

midnight, and then claimed that they retaliate to shot fired from the direction of the van. The

police fired 47 shots and 37 had struck the deceased. The deceased were six male Indians who

were government servants, a politician and RELA members. Though there were three bullet

holes that exited the van (in a questionable exit manner), it was never proven that the shots had

been the fired from within. There were no spent catridges found in the van even though four

34
firearms were retrieved from it. There was no bullet hole to the police car nor were any of the

police officers injured despite the fact that four of the deceased were RELA (voluntary corps)

members in possession of weapons which ‘sprayed bullets’. The police, in two teams in their

respective cars could have misinterpreted that the shots coming from the direction of the

suspected van originated from the deceased to which they were ordered to retaliate. It was

concluded by the reviewing judge that no shot had been proved conclusively to have been

discharge from inside the van.

Thus the police could not have been acting in self-defence as determined by the learned

magistrate who conducted the inquiry as to the ‘cause of death’, and that an open verdict should

instead be returned. In this case, the reviewing judge quashed the learned magistrate’s finding

and substituted it with a verdict of misadventure with the person being shot by a person or a

persons unknown. The reviewing judge was also not able to conclude whether there was any

outright criminality committed by any identifiable police personnel due to insufficient evidence

from him for consideration.

Public Document

A public document is a document made by a public officer in the course of his public duties

and not his private duties. In Toh Kong Joo v Penguasa Perubatan Hospital Sultanah Aminah

Johore Bahru, Zakaria Yatim J said that a ‘public officer’ is defined in the Interpretation Act

1948 and 1967 as a person lawfully holding, acting in or exercising the functions of a public

office and a ‘public office’ is defined in the same Act as an office in any public service. The

public service in enumerated in art 132(1) of the Federal Constituation and includes the general

public service of the Federation.

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In Public Prosecutor v Lim Sooi Booi, the accused who was charged for murder requested for

a copy of the post-mortem report of the person he was alleged to have murdered. He contended

that needed the report to prepared his defence and to instruct his counsel. He also contended

that the post-mortem report was a public document and as such, he was entitled to a copy of it

under 74 read together with s 76 of Evidence Act 1950. Balia Yusof JC held the production of

the post-mortem report was governed by s 399 of the CPC to the exclusion of ss 74 and 76 of

the Evidence Act 1950 and the common law thereunder.

Section 399 of the CPC entitles the accused to the report only if the prosecution intends to use

it during trial, in which case, they must then serve it on the accused ten clear days before the

commencement of the trial. That means that the prosecution had discretion as to whether or not

to use the document, and should they decided to do so, the service must be done within the

stipulated time.

The judge referred to the Supreme Court case of the Public Prosecutor v Raymond Chia Kim

Chwee & Anor: Zainal Hj Ali v Public Prosecutor [1985] 2 MLJ 436, and held that the right of

any person having an interest to inspect a public document was still subject to the court’s

discretion (or entirely at the court’s discretion) by virtue of s 51 of the CPC. In the exercising

its discretion, the court will have regard to the justice of the case, the stage of the proceedings

at which the application to inspect is made, and ss 153, 153 and 154 of the CPC in relation to

the framing of the charge. In this case, the accused failed to show that the post-mortem report

was a document specified or referred to in the charge.

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The court’s discretion should also not be exercise if the effect were to enable an accused person

to gain access to materials before the trial as in the case of civil pre-trial discovery and

inspection of the document. The rationale to this is that the court cannot anticipate how the

prosecution will proceed, unless the documents and the materials themselves are specified or

referred in the charge. The earliest or prescribed occasion to ask for a public document is during

the opening statement made by the prosecution at the actual commencement of the trial when

the prosecution would state shortly the nature of the offence charged and the evidence by which

it proposes to prove the guilt of the accused.

In civil proceeding , the deceased’s heir may apply to the court for the post-mortem report (a

public document) the directly from medical officer who performed the post-mortem or the

hospital the officer worked in to enable the next of kin to sue the appropriate party. In Ba Rao

& Ors v Sapuran Kaur & Anor, the Federal Court held that the court will have final say in the

task of determining national or public interest rather than the authority claiming the privilege.

Merely to assert that a report is privileged is insufficient as it is the court’s view that there is

nothing more important than all relevant facts should be disclosed would be detrimental to

national or public interest. In Toh Kong Joo v Penguasa Perubatan Hospital Sultanah Aminah,

Johore Bahru, the applicant therefore has a tangible interest over his own medical report is a

public document made by the public officers.

The applicant therefore has a tangible interest over his own medical report on payment of the

prescribed fees as provided under s 76 of the Evidence Act 1950. However, in the face of a

clear provision provided by some specific legislation such as Dangerous Drugs (Special

37
Preventive Measures) Act 1985, which in clear terms state that nothing shall require those

members or public servants to disclose or produce, ‘the court will have to take a back seat’.

4.0 Conclusion

The magistrate is still ‘accountable’ to the public prosecutor on whether he decides to hold an

inquiry or not, and since the public prosecutor would at the ‘end of the day’ get an inquiry

report as to the ‘cause of the death’, the responsibility is on him to see that the process is

transparent. The public prosecutor may, if he desires, order an inquiry to be held by the

magistrate on whether one has been done or not.

Any suggestion to give pathologist full power or to handle police custody deaths is not a good

answer to why there were only eight cases of the death inquests held despite the 80 death cases

in police custody. The task of explaining to a magistrate the cause of death lies on the

government medical officer making findings, in addition to the inquiry through the examination

of witnesses and the report submitted by the investigation police officer. Facts that are already

apparent are not the purview of the government medical officer (pathologist).

A pathologist only gives the scientific part of the evidence, but a magistrate in addition to the

report of the pathologist has access to other witnesses and other matters in deciding the cause

of the death much better than what pathologist think. Thus, a magistrate is most impartial in

taking the task of holding an inquiry of deaths, and ultimately, it is the magistrate who must

decide on the cause of death, not the pathologist. Therefore, the proposal from the Attorney

38
General that the process of the inquiry be done by the pathologist and not the magistrate should

be looked at with caution.

Magistrates perform a variety of tasks such as hearing and determining civil and criminal

matters, maintaining the peace in the community by examine a complainant, deciding and

issuing a warrant of arrest or search warrant, authorising the remand of any suspect pending

investigation and pending being charged, considering the granting of bail and fixing the amount

of the bond, which require tremendous ingenuity and discretion on their part.

It is therefore recommended that magistrate should be selected from among judicial and legal

officers of no less than three years of working experience but definitely not among fresh

graduates from law schools. Their task should not be learnt through trial and error so as to

cause a miscarriage of justice but should be consistent with the fulcrum of justice.

Recently, on 16 July 2009, Teoh Beng Hock, 30, the political aide to Selangor New Village

Development and Illegal Factory Task Force Committee chairman Ean Yong Hian Wah was

found dead at a corridor of the fifth floor of Plaza Masalam, Shah Alam, which houses the

Malaysian Anti-Corruption Commission (‘MACC’) office on the 14th floor following

questioning as a witness by the MACC over the alleged misuse of funds by the Pakatan Harapan

Selangor state executive councillors.

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A Royal Commission was set up for the purpose of inquiring into the procedural aspects of the

Malaysian Anti-Corruption Commission in carrying out investigation leaving the magistrate as

the appropriate legal avenue to hear and determine the cause of death. Prior to this, on 20

January 2009, there was another controversial death of A Kugan, arrested and detained for

suspected car theft, who died whilst under police custody which resulted in a second post-

mortem being conducted on the body.

The initial post-mortem revealed that he had died due to fluid in his lungs, but Kugan’s family

entered the Serdang Hospital mortuary that same day and took photographs of his body, which

showed severe bruising. In the second post-mortem, the UMMC pathologist declared that

Kugan was beated so badly that his tissues broke down and his kidney failed.

The pathologist also found that Kugan had suffered haemorrhaging in his trachea, chest, spleen,

stomach and the back of his neck and spine, and there were signs of haemorrhaging in his heart.

The soles of his feet had many bruises caused by beating and he also suffered blunt trauma to

his skull. Eleven policemen who were allegedly involved in the questioning of Kugan were

reassigned to desk duties pending investigations.

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