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RCI-TBH (Day 50): Psychiatric Experts Treated Differently From Other Experts

Wednesday, 11 May 2011 11:18am

Contributed by Richard Wee & Yip Xiaoheng

The Bar Council’s team of solicitors at the Royal Commission of Inquiry (“RCI”) investigating Teoh Beng Hock’s death (“RCI-TBH”) will provide regular updates on the proceedings. For ease of reference, all reports will bear the heading “RCI-TBH”.

10 May 2011 – After 50 gruelling hearing days, spread throughout the space of about three months, the RCI finally came to rest today.

The last day of the public hearing of the RCI commenced with the Commissioners suggesting that there was no need to call Dr Badiah Yahya and Dr Norhayati Ali, psychiatric experts for Malaysian Anti-Corruption Commission (“MACC”), and Professor Dr Paul Mullen, psychiatric expert engaged by Bar Council, for questioning.

Tan Sri James Foong, Chairman of the RCI, stated that they were grateful to the experts for having set out in their reports the factors that had to be taken into account when assessing the possibility or improbability of suicide. However, it was ultimately up to the Commissioners to decide on the question of suicide, and they could ignore the expert opinion if they wished.

Christopher Leong, counsel for Bar Council, pointed out that the views of the experts should be heard and could guide the Commissioners in coming to their decision. It was further urged that in the event the Commissioners decided not to take the evidence of the psychiatric experts in open hearing, then the Bar should at least be permitted to question the psychiatric experts of MACC to seek clarification on their written reports.

The Commissioners stood down the hearing for five minutes to deliberate on this. Upon resumption, the Commissioners allowed the application by Christopher Leong.

Christopher Leong questioned Dr Badiah Yahya on her joint report with Dr Norhayati Ali in several respects, notably in the following areas:

(a)    Upon being questioned on the joint report by Dr Badiah Yahya and Dr Norhayati Ali, Dr Badiah Yahya confirmed that even if suicide was a possibility, she and Dr Norhayati Ali did not exclude the possibility that Teoh Beng Hock had been driven to suicide;

(b)    One of the primary factors relied on by Dr Badiah Yahya and Dr Norhayati Ali for the possibility of suicide was that Teoh Beng Hock’s hand phone had been taken away from him by MACC. Therefore, he had been deprived of his usual means of communication when stressed, and had been isolated. It was then pointed out to Dr Badiah Yahya that according to the evidence of MACC officers throughout the RCI, they had not confiscated Teoh Beng Hock’s hand phone and Teoh Beng Hock had been at liberty to use it from at least 3:30 am, when MACC had allegedly allowed him to leave. Dr Badiah Yahya was asked whether she had rejected MACC’s evidence as a lie for the purposes of her expert opinion. Dr Badiah Yahya did not answer;

(c)    Based on MACC’s contention that Teoh Beng Hock had been released at 3:30 am on 16 July 2009, and that he had chosen to remain at the MACC premises, Dr Badiah Yahya made an inference in the joint report that this had been due to Teoh Beng Hock not wishing to obtain the further documents requested by MACC or face his boss and colleagues. When questioned on the basis of her inference, Dr Badiah Yahya admitted that it had been based purely on the evidence that Teoh Beng Hock had been loyal to his boss and she did not know for a fact the state of mind Teoh Beng Hock had been in. Christopher Leong informed her that it was also in evidence that Teoh Beng Hock had been a principled man who would do the right thing – why then had Dr Badiah Yahya not considered the more obvious inference that Teoh Beng Hock had in fact not been allowed to leave the MACC office? Dr Badiah Yahya could not proffer an answer; and

(d)    The joint report by Dr Badiah Yahya and Dr Norhayati Ali stated that by the time the decision for suicide was made, one would adopt three attitudes that they termed the “Three I’s”, which are as follows:

(i)    Intolerable – the person experiences extreme pain that exceeds the threshold normally faced by the person;

(ii)    Inescapable – there are no strategies or solutions for escaping the problem that is causing the extreme pain; and

(iii)    Indeterminable – the person has no expectation that the situation will change; in other words, the person feels complete hopelessness.

It was then pointed out to Dr Badiah Yahya that the joint report also stated that there had been no evidence, and therefore no way of knowing that Teoh Beng Hock had experienced in his mind the effects of being possibly prosecuted on any allegations of wrongdoing and whether such prosecution or allegations would have been devastating for him or his organisation. On the contrary, Teoh Beng Hock’s statement, which had been recorded by MACC, had not disclosed any wrongdoing. Dr Badiah Yahya was asked if she agreed that the Three I’s had not been present as far as Teoh Beng Hock was concerned. Again, Dr Badiah Yahya had no answer. The written report of Dr Badiah Yahya and Dr Norhayati Ali was ultimately inconclusive.

Muhammad Shafee Md Abdullah, counsel for MACC, had no questions for Professor Dr Paul Mullen. In essence, Professor Dr Paul Mullen’s report was of the view that Teoh Beng Hock had been in the lowest category of risk of suicide when he had gone to the MACC, and if Teoh Beng Hock had not killed himself, something must have happened or had been done to him whilst he was in MACC’s custody to have frightened and driven him to suicide.

Muhammad Shafee Md Abdullah instead questioned Dr Badiah Yahya on the discovery of the alleged mystery note, which MACC claimed to be a suicide note. It was revealed that Dr Badiah Yahya’s initial report to the Coroner’s Inquest had been inconclusive and the Deputy Public Prosecutor had asked her if she could amend her report in the event that positive evidence was found. The alleged mystery note was said to have been discovered subsequently.

It was then announced by the Commissioners that the open hearing of the RCI had now come to an end and that the parties were to tender their written submissions by 25 May 2011 (Wednesday). The report and recommendations of the Commissioners will be submitted to His Majesty, the Yang di-Pertuan Agong, by 25 June 2011 (Saturday).

Counsel appearing for Bar Council at today’s proceedings were Christopher Leong, Sivaneindiren s/o Selvanandam, Robert Low, Cheow Wee and Edmund Bon.*

Members of the public who have relevant information in relation to the RCI’s investigation into the death of Teoh Beng Hock are urged to contact Bar Council’s team of solicitors by email at bc.rci.tbh@gmail.com.

*After working closely together, the counsel in the Bar Council team have built great camaraderie. Led by Christopher Leong, each counsel has his own nickname – Awesome Gruesome was ably assisted by Prince Andrew, Shakeup, Champion, Roberto and Hensem.

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