Authored by Loh Yi Qing and Tan Yi Xuan
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. One death in police custody is already one too many.
“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. 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. 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.”
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.
Before an inquest is conducted, the Magistrate/ Coroner 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.
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.
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.
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.