The Malaysian Bar - Police Responsible for 'Murderous Assault'?

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Police Responsible for 'Murderous Assault'?

By Human Rights Committee
Bar Council Malaysia

Shortly after 11.40 pm on 3 October 1998, two unmarked police vehicles ambushed a white Nissan Vanette at Pengkalan Kubor, near the Thai border. The police had received information earlier that evening to the effect that a van of that description was being used to smuggle guns and drugs over the border, although no information had been received concerning the identity, race or indeed gender of those inside. As it happened, there were six people in the targeted van. The leader of one of the police teams claimed that just after the police vehicles had brought the van to a halt and blocked it off at the front and on the right side, he heard shots 'coming from the direction of the van', and ordered his men to open fire. Within twenty seconds, 47 rounds had been discharged into the van leaving all six of its occupants dead. The pathologist responsible for conducting the autopsy of the deceased noted that the shots were all directed at the deceased's heads. None of the police officers were injured in the course of the incident.

According to the evidence of the police, they recovered four pieces of firearms as well as live bullets from the glove compartment of the van. By the investigating officer's own admission, no spent cartridges were found in the van. No tests were ever conducted to ascertain whether these weapons had or had not been discharged that evening.

On 22 May 2001, the Tumpat magistrate, conducting an inquiry into the shooting pursuant to s 337 of the Criminal Procedure Code, concluded on the basis of the evidence before him that: 'the retaliatory shots fired by the police were acts of self-defence and were reasonable'. In addition, the magistrate concluded that no criminal act had been committed emanating from the incident which resulted in the death of the six relevant persons.

At the behest of the Bar Council, the case was submitted to the High Court for revision, and the grounds of judgment were delivered by Justice Datuk Suriyadi bin Halim Omar on 15 September 2002. Noting that the decision of the magistrate below 'unfortunately caused consternation to the family of the six deceased persons', Yang Arif proceeded to establish the jurisdictional basis for revision in a death inquiry case and concluded that '[s]o long as a miscarriage of justice had been committed by a magistrate, in that the correctness, legality, or propriety of his findings were found wanting, a High Court judge thus was entitled to invoke that power [to review an opinion given by a magistrate below on the basis of the evidence presented to him]'.

Accordingly, Yang Arif reviewed the testimony of the witnesses that had led the magistrate in the court below to conclude that the shots fired by the police were in self-defence. He examined the statements of two police officers involved in the incident who admitted that, although they heard gunshots coming from the direction of the van, they were unaware of any gunfire flashes from the van in the night-time conditions, and the testimony of the armourers who were not asked to examine the recovered firearms to determine whether they had been fired recently. The judge also considered the evidence of the photographers who took photographs of the scene mere minutes after the incident, and remarked that: '[w]hy [a photographer] in the middle of the night, had tagged along during that incident, as if in anticipation of a shootout, remained a mystery to me.' Moreover, the judge was puzzled as to why, if the bodies of the deceased had not been moved, the photographs taken of the scene failed to show any guns in the deceased's hands, or indeed anywhere near them.

In addition to these points, the judge referred to further glaring shortcomings in the evidence adduced by the DPP, which he described as 'scanty'. He wondered why if, as alleged by the police, the teams were being shot at, neither of the police cars bore bullet holes, nor indeed were any policemen injured. This was especially surprising, considering that four of the van's occupants were RELA members, with weapons capable of spraying bullets at their disposal. He could neither reconcile the gun battle scenario with the precision with which 37 of 47 rounds fired by the police successfully hit their mark. Finally, and perhaps most poignantly, he could not understand why six persons 'who had no criminal records and comprising government servants, a politician, and RELA members were suddenly confronted by such a murderous assault'. Unfortunately these questions could not be answered for the purposes of the review, but the question marks over the link between the verdict of the Tumpat magistrate, and the evidence made available to him were sufficient to allow Yang Arif to exercise his powers of review and set the initial decision aside.

Whilst the responsibility for the deaths of the six occupants of the van was clearly attributable to the police, the judge, due to the inadequacy of the evidence adduced, was forced to say that: 'regretfully, I was unable to conclude whether there was any outright criminality committed by any identifiable police personnel, as there was also insufficient evidence before me for consideration', and to record a verdict of 'misadventure, with the deceased persons being shot by person or persons unknown'. One can only commend the Judge of the High Court for not only overturning a decision as unsound as the one under review, but also for challenging a judicial attitude whereby a blind eye is turned to violent actions of the police. This High Court decision gives hope to the building of a Malaysian society in which the value of every individual human life is cherished and respected.

The initiative is now very much in the hands of the Attorney-General, who has the power to instigate full criminal proceedings to identify and punish those responsible for this tragic act of violence. Our hope is that Yang Arif's message is heeded, and that the Attorney-General acts to ensure that justice is done in this case.

Published in Infoline April 2003