Mohamed Dzaiddin J:

In the exercise of my revisionary powers under s. 341A of the Criminal Procedure Code, I called for the record of the Magistrate's inquest after being notified in writing by the deputy public prosecutor and Encik Ghazi Ishak, one of the Counsel holding watching brief,that they were dissatisfied with the ruling made by the Magistrate on 27 September 1989 in an inquest to determine the cause of death of Loh Kah Kheng ("the deceased"),the son of a well-known philanthropist, Tan Sri Loh Boon Siew.

The Facts

The record of the proceedings of the Magistrate's inquest showed that on 14 September 1989, DSP Eric Foong, the Deputy OCCI Penang, testified that he assisted in the police investigation into the death of the deceased. To a question by Encik Vijandran, he said he could not disclose whether there was any information of murder although an investigation of murder was still continuing. Counsel then applied to the Magistrate to stop the inquest in view of DSP Foong's evidence because police investigation of the case has not been closed. The Magistrate then adjourned the inquiry to 27 September 1989 to enable the parties to make their submissions on this issue.

However, when the inquiry resumed on 27 September, DSP Ismail, the officer assisting in the inquiry applied to recall DSP Eric Foong to clarify about the murder investigation. DSP Foong testified that in the course of his investigation, he received certain information from a police informer concerning the deceased's death, which related to a commission of a crime. The information was given in official confidence and recorded in writing by his former superior officer, ACP Raja Lope Ahmad and only both of them had access to the said information. At this juncture, both Encik Vijandran and Encik Ghazi applied for the information to be divulged as they felt that it would assist the Magistrate in determining the cause of death.

DSP Ismail, on the other hand, objected to its disclosure on the ground of privilege under ss. 124 and 125 of the Evidence Act 1950. The learned Magistrate ruled that the said written information could not be disclosed at the inquest, but held that it should be shown to her for her own consumption.

Submission

At the hearing of this revision on 13 October I entertained further submissions of the DPP and Counsel after studying the grounds of the Magistrate's ruling. Encik Zabidi submitted that the Magistrate was correct to prohibit public disclosure of the said information on the ground of privilege. However, he contended that she was wrong in her second ruling ordering the information report to be shown to her. The learned Mr. Deputy felt that it might prejudice and influence her verdict. At any rate, he was of the view that the information by itself was hearsay and inadmissible.

Both Encik Ghazi and Encik Vijandran urged me to overrule the Magistrate's decision by ordering a full disclosure of the said information in the interest of justice. Encik Ghazi submitted that the Magistrate was wrong in her rulings without first satisfying herself that the information came under s. 124 of the Evidence Act 1950 and if so, whether the proviso to the said section had been satisfied. She had also prematurely made the ruling without inspecting the information in compliance with s. 162 of the Evidence Act 1950 to determine its admissibility. Encik Vijandran contended that on the basis of DSP Foong's evidence, the issue of confidentiality under s. 124 had already lost and unless the document was disclosed fully it would have a prejudicial effect on the verdict.

Conclusion