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Royal Commission of Enquiry ROYAL COMMISSION OF ENQUIRY INTO THE DEATH OF TEOH BENG HOCK SUBMISSION OF THE MALAYSIAN BAR Dated 25th day of May 2011 SUBMISSION OF THE MALAYSIAN BAR TABLE OF CONTENTS EXECUTIVE SUMMARY ........................................................................ 1 PREFACE Role of the Malaysian Bar .......................................................................................... 6 Glossary of Abbreviations .......................................................................................... 8 SECTION 1 The Commission of Enquiry and Observation on Various Parties . 13 Terms of Reference.................................................................................................. 13 The Commission and Parties ................................................................................... 13 Complicity and Factors Adversely Affecting the Inquiry............................................ 24 SECTION 2 Fact and Fiction .................................................................................. 71 Brief Background ...................................................................................................... 71 MACC‟s Objective In This Inquiry ............................................................................. 79 SECTION 3 Circumstances surrounding TBH‟s Death ........................................ 83 TBH: Witness or Suspect ......................................................................................... 83 TBH‟s Mobile Phone................................................................................................. 89 TBH‟s „Interview‟: Arman and Ashraf ........................................................................ 96 TBH‟s Statement: Nadzri ........................................................................................ 107 Recording Process of Witnesses Illegal ................................................................. 116 Alleged Release at 3.30am .................................................................................... 122 TBH: Sightings ....................................................................................................... 128 MACC Officers: Movements and Studious Avoidance ........................................... 151 Time MACC Knew of TBH‟s Death......................................................................... 160 The Mystery Note ................................................................................................... 163 Window and the Shoe Print .................................................................................... 174 MACC: Clean Up of Computers and Mobile Phones .............................................. 179 MACC: Investigation Diaries .................................................................................. 185 MACC: 112 Statements .......................................................................................... 190 Boon Wah‟s Evidence ............................................................................................ 201 SUBMISSION OF THE MALAYSIAN BAR Hishamuddin Bin Hashim ....................................................................................... 207 4 Documents Allegedly Printed From TBH‟s Laptop .............................................. 227 TBH‟S State of Mind in relation to D94 to D97 ....................................................... 241 SECTION 4 Facts Contributing to TBH‟s Death .................................................. 251 MACC‟s Suicide Theory ......................................................................................... 251 Culpability of MACC for TBH‟s Death ..................................................................... 272 MACC: The Cover-Up ............................................................................................ 283 SECTION 5 The Malaysian Bar‟s Proposals ....................................................... 305 First Term of Reference and Recommendations .................................................... 305 Second Term of Reference and Recommendation ................................................ 320 APPENDIX A Key Events: Cover-Up ...................................................................... 324 APPENDIX B MACC: Key MACC officers involved in the interrogation of TBH and Boon Wah on 15.07.2009 - 16.07.2009 ............................................. 333 SUBMISSION OF THE MALAYSIAN BAR EXECUTIVE SUMMARY “…The Courts must not lose sight of the fact that death in police custody is perhaps one of the worst kinds of crime in a civilized society governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity…” “…The Courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of the judiciary itself, which if it happens, will be a sad day, for anyone to reckon with.” (Pradesh Munshi Gautam (dead) and Others v State of Madhya Pradesh AIR 2005 SC 402) “If you once forfeit the confidence of our fellow citizens you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time.” ~ Abraham Lincoln ~ This Commission is entrusted to perform a very important function. Whilst investigation into the cause of death of Teoh Beng Hock constituted a substantial part of the open inquiry and remains an 1 SUBMISSION OF THE MALAYSIAN BAR important issue, the open inquiry provided classic evidence of the saying that an institution is only as good as its people. It is important that the officers of MACC tasked with preventing, detecting and eradicating corruption possess the qualities of integrity, independence and intelligence, what may be conveniently referred to as the three “I”s. Whilst the Commissioners have recognised that MACC as an institution must be preserved and its image, reputation and functioning enhanced, it must also be recognised that this can only be brought about if the people entrusted with the powers of the institution were brought to task for abuse. The Malaysian Bar‟s submission quite extensively reviewed the facts and, we hope, brings into sharp focus the abuse of power of the officers of MACC Selangor. It is no coincidence that MACC Selangor ranks highest in terms of police reports filed alleging abusive treatment whilst in custody. In the presentation of our submission, we first deal with the second issue of reference and then the first. The reason for this is that the facts relevant to the inquiry and recommendations revolve around the cause for Teoh Beng Hock‟s death. The improvements arising from this factual matrix are consequential. The submission is divided in parts. In content, it first sets out the role of the Malaysian Bar followed by the terms of reference and the brief facts including the status of investigations into Teoh Beng Hock‟s death at the time of commencement of this inquiry. It then addresses the handicap that the Commission faced in its investigation. 2 SUBMISSION OF THE MALAYSIAN BAR The submission then through various topics, takes us through the events leading up to the operation carried out by MACC Selangor on 15.07.2009, the raid on YB Ean Yong‟s office, the seizure of the laptop and CPU, the requirement by MACC Selangor for Teoh Beng Hock to attend at their office for questioning and the events that transpired in MACC Selangor till his death, and thereafter. The submission also deals with MACC‟s operation as a whole and the effect of the particular investigation directly or indirectly in respect to Teoh Beng Hock. It is submitted that MACC owes a duty of care to a person brought into its premises at their invitation or insistence. This is discussed in the context of accepted international norms, the right to life protection under Article 5 of the Malaysian Federal Constitution and ss. 304 and 304A of the Penal Code in respect of the offences for culpable homicide not amounting to murder and causing death by negligence. One would have expected the MACC to have led the charge in this inquiry to ascertain the truth and thereby restore its credibility. Instead, it failed to draw a distinction between itself and the officers, and chose to align itself with its officers who may have been involved, responsible and/or privy to the cause of death of Teoh Beng Hock. The absence of separate representation is telling. MACC as a whole chose to defend the actions of its officers rather than assist in the investigation. The MACC adopted the posture of a defendant throughout the course of this inquiry. The Commission has had to deal with witnesses primarily from MACC who have either been evasive, misleading and/or lied. It has also been 3 SUBMISSION OF THE MALAYSIAN BAR shown that the MACC had suppressed, tampered with and destroyed evidence. In the circumstances, it has been a difficult task to piece together the evidence to establish what actually transpired at Plaza Masalam leading to Teoh Beng Hock‟s death. The facts and information gathered in this inquiry has shown that the main plank of MACC‟s contention, that is, that Teoh Beng Hock committed suicide is untenable and has been eliminated. The facts and information gathered in this inquiry has also eliminated the possibility of death by natural causes and
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