Criminal Procedure – Inquiry into death – Duty of magistrate – Whether strict rules of evidence apply – Evidence Act 1950, s 122: RE LOH KAH KHENG (DECEASED) (NO 2) [1990] 2 MLJ 237 INQUIRY NO 98-96-87

2 MLJ 237, *; [1990] 2 MLJ 237

The Malayan Law Journal
RE LOH KAH KHENG (DECEASED) (NO 2)
[1990] 2 MLJ 237
INQUIRY NO 98-96-87
HIGH COURT (PENANG)
DECIDED-DATE-1: 2 FEBRUARY 1990
MOHAMED DZAIDDIN J
CATCHWORDS:
Criminal Procedure – Inquiry into death – Duty of magistrate – Whether strict rules of evidence apply – Evidence Act 1950, s 122

HEADNOTES:
This is a revision as to the correctness, legality, or propriety of the magistrate’s decision on the applicability of s 122 of the Evidence Act 1950 to the inquiry into the death of one Loh Kah Kheng. The issue before the court was whether by virtue of that section, the learned magistrate should have prohibited the deceased’s widow from disclosing communications made to her by the deceased during the marriage. The magistrate had ruled that the section did not apply to the inquiry.

Held, affirming the magistrate’s ruling:
(1)   The rules of evidence still apply in a magistrte’s inquiry under
Chapter XXXII of the Criminal Procedure Code but the magistrate is not bound
to follow it strictly.
(2)   The magistrate’s primary function at an inquiry into death is to
ascertain the cause of death and where there is a suggestion that the
deceased could have died as a result of suicide, the magistrate should be
given greater latitude to hear any evidence, including that of the widow of
the deceased, in order to arrive at a verdict. She could therefore admit any
evidence which she thought fit in the circumstances.  n1

n1

Editorial Note

An appeal to the Supreme Court has been filed on behalf of Tan Sri Loh Boon Siew and the widow vide Criminal Appeal No 07-7-90.

Cases referred to
Nawab Howlander v R (1914) IC Vol XXXIII 511
R v Divine [1930] All ER 302

Legislation referred to

Evidence Act 1950, s 122

Criminal Procedure Code (FMS Cap (6) ss 327, 328  [*238]

Abdul Karim bin Abdul Jalil for the Public Prosecutor.

Ghazi bin Ishak for Tan Sri Loh Boon Siew.

P Vijendran for the widow.

LAWYERS: Abdul Karim bin Abdul Jalil for the Public Prosecutor.

Ghazi bin Ishak for Tan Sri Loh Boon Siew.

P Vijendran for the widow.

JUDGMENTBY: MOHAMED DZAIDDIN J

The object of this revision is to satisfy myself as to the correctness, legality or propriety of the magistrate’s decision on 16 January 1990 where she held that s 122 of the Evidence Act 1950 did not apply in the present inquiry conducted by her to determine the cause of death of Loh Kah Kheng, deceased.

Section 122 of the Evidence Act 1950, which deals with communications during marriage, states:
No person who is or has been married shall be compelled to disclose any
communication made to him during marriage by any person to whom he is
or has been married; nor shall he be permitted to disclose any such
communication unless the person who made it or his representative in
interest consents, except in suits between married persons or
proceedings in which one married person is prosecuted for any crime
committed against the other.

Encik Ghazi, counsel for deceased’s estate, submitted before the learned magistrate and repeated before me that by virtue of s 122 and relying on Nawab Howlander v R (1914) IC Vol XXXIII 511, the learned magistrate should have prohibited Mdm Shirley Yap, the deceased’s widow, from disclosing communications made to her during marriage by the deceased. Counsel further submitted that clearly s 122 prohibited Mdm Yap from disclosing any communication made by the deceased to her because not only could she not be compelled to disclose any communication, but she should not have been permitted to disclose it because there was no longer her husband who could consent to the disclosure. In Nawab Howlander (1914) IC Vol XXXIII 511, the prosecution in a murder trial sought to rely on the statements to which the widow deposed had been made to her by her husband in connection with a murder, immediately before his death. The Calcutta High Court, sitting as an appellate court, excluded the widow’s disclosure from consideration on the ground of s 122 of the Indian Evidence Act 1950. It held that not only that she could not be compelled to disclose those communications but that she should not have been permitted to disclose the same, for there was no one who did or could consent to the disclosure.

From the evidence so far recorded by the learned magistrate from Mdm Shirley Yap, it appears to me that Encik Ghazi’s objection is to prevent Mdm Yap from disclosing to the magistrate communications purportedly made by the deceased to her which would show, according to her counsel, Encik Vijendran, that the deceased had suicidal intent prior to his death. Therefore, in circumstances like this, was the magistrate bound by s 122 of the Evidence Act?

After hearing counsel, the DPP and after considering the authorities cited, I must say without any doubt in my mind the magistrate was correct in her decision. My reason for agreeing with her is based on the premise that this is a magistrate’s inquiry and not a criminal trial and therefore I adopt the same principle which I applied in the previous revision (PJ 43-10-89), citing from Mallal’s Criminal Procedure (4th Ed) at p 485 concerning the function of a coroner:
The coroner examines witnesses on oath and will usually follow the
ordinary rules of evidence. He may admit any evidence which he thinks
fit, especially hearsay evidence. His duty is to ascertain the cause of
death and he is not bound to follow the usual procedure of law courts.

It must, however, be emphasized that the rules of evidence under the Evidence Act 1950 still apply in a magistrate’s inquiry under Chapter XXXII of the Criminal Procedure Code but the magistrate is not bound to follow it strictly ( R v Divine [1930] All ER 302 at p 307).

Secondly, I take into consideration here that the magistrate’s primary function at the inquiry is to ascertain the cause of death which is defined under s 328 to 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’. Thus, the magistrate carries out this inquiry by taking evidence from witnesses. Where, especially in the present inquiry, there is suggestion by one party that the deceased could have died as a result of suicide, it becomes the onerous duty of the magistrate to hear and receive evidence as to ‘when, where, how and in what manner the deceased came by his death’. In this respect, in my opinion, greater latitude ought to be given to the magistrate concerned to hear any evidence in order to arrive at her verdict. She could therefore admit any evidence which she thought fit in the circumstances.

Having stated the above, the bottom line of the matter is that the learned magistrate was correct in her ruling and, accordingly, I make no order under s 327 of the Criminal Procedure Code.

No order made.

SOLICITORS:
Solicitors: Presgrave & Matthews; RR Chelliah Brothers