Sulong Matjeraie J:

Brief Background

[1] This is an application for revision filed by the Public Prosecutor under s. 341A read with the provisions of Chapter XXXI of the Criminal Procedure Code ('CPC') for the High Court to examine the record of the inquiry into the death of Anthony Chong Kim Fook ('the deceased') for the purpose of satisfying the High Court as to the correctness, legality or propriety of the finding of learned Coroner recorded in his verdict dated 1 September 2006 ("verdict").

[2] At the commencement of this hearing, learned senior federal counsel Tuan Suhaimi bin Ibrahim told this court that he has no objection to learned counsel holding watching brief for the family of the deceased as well as learned counsel for Datuk Conrad Mojuntin, deponent No. 28, to submit in the hearing of the revision of the inquiry into the death of the deceased. With respect, I subscribe to the view that both of them, in their capacities as counsel to their respective clients, have "real, substantial and reasonable right" to address this court, see Sara Lily & Satu Lagi lwn. Public Prosecutor [2004] 7 CLJ 335.

[3] The Coroner was directed by the Public Prosecutor on 15 June 2006, under s. 339 of the CPC, to hold an inquiry into the cause of, and the circumstances connected with, the death of the deceased. Learned Coroner held an inquiry from 31 July 2006 and his terms of reference were to find out:

(1) When did the deceased die?

(2) Where did the deceased die?

(3) How did the deceased die?

(4) In what manner the deceased died?

(5) Whether any person is criminally concerned with the death?

[4] On 1 September 2006 learned Coroner recorded his findings in his written verdict of even date. The Public Prosecutor is rather concerned with regards to the said verdict in respect of his findings on the question of whether any person is criminally concerned in the cause of death of the deceased. In essence the Public Prosecutor suggested that learned Coroner had factually identified Deponent 28 Datuk Conrad Mojuntin "had committed an offence of culpable homicide" (emphasis added).

[5] The Public Prosecutor argued that learned Coroner has exceeded his powers under s. 337 CPC when he named or specified the penal offence in his verdict; thus usurping the powers and prerogative of the Public Prosecutor under art. 145(2) of the Federal Constitution.

Section 337 of CPC states:

A Magistrate holding an inquiry shall inquire when, where, how and after what manner the deceased came by his death and also whether any person is criminally concerned in the cause of the death.

[6] Article 145(2) of the Federal Constitution states:

It shall be the duty of the Attorney General to advise the Yang di-Pertuan Agong or the Cabinet or any Minister of such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to the functions conferred on him by or under this Constitution or any other written law.

[7]Section 337 of the CPC serves as the terms of reference within which the Coroner conducts the inquest into the death of the deceased. As such the Coroner cannot act outside the perimeter of the said terms of reference.

[8] It must be borne in mind that in an inquest, there are no parties, there is no indictment, there is no prosecution, there is no defence and there is no trial. It is simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use, see R v. South London Coroner; ex parte Thompson [1982] 126 SJ 625 DC.

[9] In another English case of R v. Huntbash; ex parte Lockley [1944] KB 606, Viscount Caldecote CJ adds:

... It is not probability; however which determines verdicts, but proved facts, and, if facts which justify a specific verdict are not p