The applicant (`Metrobus') was licensed by the first respondent, the Commercial Vehicles Licensing Board, West Malaysia (`the Board') to operate stage buses. The fares charged on the buses were in accordance with the rates prescribed under the Commercial Vehicles Licensing Board (Rates of Fare) Rules 2000 (`the Rules'). Subsequently, the second respondent incorporated RapidKL as a special purpose company to implement the government's policy of providing an integrated public transport system in the Klang Valley involving bus and rail services. In the process, RapidKL took over the stage bus services of two public transport companies but the fares charged on stage buses were lower than the rates prescribed under the Rules (`the prescribed rates'). Metrobus claimed many of the routes serviced by RapidKL overlapped those of Metrobus and the lower fares charged by RapidKL caused Metrobus to lose passengers and its revenue from fares was badly affected. Metrobus claimed that despite its appeals to the respondents to rectify the situation, nothing was done. Subsequently, when Metrobus sent the Board a letter demanding that it enforce the prescribed rates on RapidKL, the Board replied that it had permitted RapidKL to charge the lower rates. In its instant application for judicial review of the Board's decision, Metrobus sought an order of mandamus to direct the respondents to enforce the prescribed rates on RapidKL. It also sought a declaration that the Board's decision to allow RapidKL to charge the lower rates and the second respondent's failure to remedy the situation contravened the Rules. Thus, Metrobus claimed damages from the respondents, alleging that it had been unfairly discriminated against and its legitimate expectations violated.

Held (allowing application in part and declaring Board's decision ultra vires the Rules):

(1) The Board's decision to approve RapidKL's application to impose lower rates of fare for stage buses was ultra vires the Rules. As the rates of fare under the Rules was based on a zoning system, the Board could not purport to authorise RapidKL to impose lower rates of fare than that prescribed on the ground that it was based on a different system. Such a system was not provided for in the Rules. (paras 45 & 47)

(2) There was insufficient evidence to support a finding of unfair discrimination against Metrobus. The facts relied upon to show unfair discrimination did not leave the court with the impression that Metrobus had received "harsh, unreasonable or unfair treatment" at the hands of the respondents such that it could be said to have been unfairly discriminated against. (paras 70 & 73)

(3) Metrobus failed to show by credible and cogent evidence that the alleged losses it had suffered was due to the lower fare rates charged by RapidKL. It failed to establish a nexus between the reduction in its income or profits from the fare collection and the introduction of RapidKL's fares. The purported reduction in the fare collection was not based on any study or survey carried out by the applicant. The reduction in the number of passengers could have been due to a variety of factors which might or might not have included the lower fares charged by RapidKL. (para 77)

(4) No clear legal duty was imposed on the Board by s. 19(1)(a)(i) of the Commercial Vehicles Licensing Board Act 1987 or the Rules to enforce the prescribed rates on RapidKL. The Board's refusal to perform that duty justified the grant of an order of mandamus under s. 44(1) of the Specific Relief Act 1950. As the applicant failed to satisfy the condition in proviso (b) of s. 44(1), the prayer for an order of mandamus was dismissed. However, an order was granted declaring the first respondent's decision as ultra vires the said Rules. Such order was therefore binding on all parties. (paras 114 & 115)

Case(s) referred to:

Ahmad Tajudin Hj Ishak v. Suruhanjaya Pelabuhan Pulau Pinang [1997] 2 CLJ 225 CA (foll)

Chua Bak Heng v. Regina [1957] 1 LNS 17 HC (dist)

Government of the Federation of Malaya v. Surinder Singh Kanda [1960] 1 LNS 30 HC (refd)

Koon Hoi Chow v. Pretam Singh [1972] 1 LNS 56 HC (dist)

Kredin Sdn Bhd v. OCBC Bank (Malaysia) Bhd [1998] 2 CLJ 797 FC (refd)

Ng Bee v. Chairman, Town Council, Kuala Pilah [1974] 1 LNS 104 HC (dist)

Osman Idris & Ors v. Ketua Pengarah Perkhidmatan Awam Malaysia [2006] 3 CLJ 106 CA (refd)

State of West Bengal v. Anwar Ali AIR 1952 SC 75 (refd)

Sunday Lake Iron Co v. Wakefield [1918] 247 US 350 (refd)

Thein Tham Sang v. The United States Army Medical Research Unit & Anor [1982] CLJ 500; [1982] CLJ (Rep) 820 HC (refd)

Vishundas Hundumal v. The State of Madhya Pradesh AIR 1981 SC 1636 (refd)

Workon Sdn Bhd v. The Director of Lands and Surveys, Sabah & 3 Ors [1999] 1 LNS 40 HC

Yick Wo v. Hopkins [1886] 118 US 356 (refd)

Legislation referred to:

Commercial Vehicles Licensing Board Act 1987, ss. 2, 3(1), 14(1), 16(1), 19(1)(a)(i), (ii), 56(1)(b)

Commercial Vehicles Licensing Board (Rates of Fare) Rules 2000, r. 3(1)

Courts of Judicature Act 1964, ss. 96, 97

Federal Constitution, arts. 8(1), 160(2)

Interpretation Acts 1948 and 1967, ss. 3, 99(2)

Rules of the High Court 1980, O. 53 r. 1(2)

Specific Relief Act 1950, s. 44(1)

Constitution of India [India], art. 14

Motor Vehicles (Construction and Use) Rules 1948 [Sing], rr. 94, 95, 96

Road Traffic Ordinance (Cap 227) [Sing], s. 44(1)(d)

West Bengal Special Courts Act 1950 [India], s. 5(1)

Other source(s) referred to:

MP Jain & SN Jain, Principles of Administrative Law, 5th edn (2007), pp 650-651

Counsel:

For the applicant - Wong Kian Kheong (Alex Tan Chie Sian with him); M/s Wong Kian Kheong

For the respondents - Nizam Zakaria; SFC

Reported by Ashok Kumar

This was an inquest into the death of one Teoh Beng Hock (`TBH'), the personal assistant to the State Assemblyman for Seri Kembangan (`YB Ean'), under s. 337 of the Criminal Procedure Code (`CPC'). The facts were that at about 6pm on 15 July 2009, TBH went to the Malaysian Anti-Corruption Commission (`MACC') office at (the 5th floor) Plaza Masalam, Shah Alam, purportedly for an interview with MACC officers following an investigation into the alleged misuse of funds by YB Ean. It was apparent that the interview ended at about 3.30am, 16 July 2009, and that TBH was thereupon released by the interviewing officers. There was a dearth of evidence as to what happened to TBH thereafter, except that he was seen taking a rest within the said MACC office. TBH, however, was found dead at about 1 to 1.30pm, 16 July 2009, where his body was found sprawled on the service corridor of the 5th floor of Plaza Masalam. Before the Coroner herein, two bodies of opinions were led by the 12 experts called to testify on the cause of death of TBH, namely that TBH was thrown or pushed out to his death by unknown person or persons, and secondly that he had taken his own life by jumping out to the floor. In any case, there was evidence to show that TBH had suffered from pre-fall injuries on the neck, that he could have been unconscious before the fall, that he was alive when impacting on the floor and that the injuries suffered by him were consistent with the injuries sustained from a fall from height. Additionally, a suicide note (`I-168A') was discovered from TBH's bag which he brought along for the interview. Further, a DNA of an unknown male contributor was also detected on the waist belt of the deceased. Upon the evidence thus adduced, the question that arose for the Coroner was whether to pass a verdict of homicide or suicide, or any other verdict as the case may be on the facts and in the circumstances of the case.

Held (returning an open verdict):

(1) A Coroner, in seeking to ascertain the cause of death, or to find answers to the subjects stated in s. 337 CPC and para G of Practice Direction no. 1 of 2007, is not bound to follow the usual rules of procedure and evidence of law courts and may even consider hearsay evidence if it is relevant to the facts. (para 14)

(2) As for the standard of proof applicable, the test is "on the balance of probabilities sliding to the beyond reasonable doubt". A Coroner should normally apply the civil standard of balance of probabilities, but when it comes to determining whether anyone should be committed for trial, the applicable standard should be that of beyond reasonable doubt. (paras 15 & 16)

(3) The suggestion made by Dr. Porntip that the type of ankle injuries suffered showed that the deceased could not have landed on his feet and was consistent with the fall of an unconscious or semi-conscious person, was not consistent with the findings of other pathologists. As was shown by Dr. Prashant's evidence, the tear on the seat of the deceased's trousers which was caused by the extension of the loin was consistent with the deceased landing on his feet. Further, the injuries suffered to the deceased's long bones were consistent with a conscious attempt to break his fall. There is also the unchallenged evidence of scratch marks on the sole of the deceased's shoes which were consistent with the deceased being in a sitting position on the window ledge. No evidence was given as to whether such posture is physically possible by a person in a state of unconsciousness. (paras 54-57)

(4) On the evidence of Dr. Shahidan, Dr. Porntip and Prof Dr. Venezis, there exists sufficient evidence to confirm that the neck injury was a pre-fall injury. However, there is no sufficient evidence to confirm beyond reasonable doubt that this pre-fall injury did in fact facilitate or result in or contribute to the demise of the deceased. (para 58)

(5) Although the handwriting expert produced two reports on the suicide note I-168A, his evidence only established that the writing was similar to documents found in TBH's bag. No samples of TBH's handwriting were obtained for the purpose of the examination of I-168A by the expert, and so the question of whether I-168A did or did not contain TBH's handwriting remained unanswered. In any case, evidence of handwriting expert could never be conclusive as they were opinion evidence. Consequently, the court is not in a position to make its assessment thereon or say that it is a suicide note. Since passing a verdict of suicide would entail some form of guesswork, the court would thus rule out the verdict of death by way of suicide. (paras 36, 39, 43 & 45)

(6) As for the DNA report, in the absence of direct factual evidence, to make assumption as to the existence of a third party or male contributor would equally amount to guesswork. In the circumstances the verdict of death by way of homicide ought also to be ruled out. (para 59)

(7) Based on the above reasoning, the court's conclusion in this inquest is the finding of open verdict. (para 6)

Case(s) referred to:

In Re Anthony Chang Kim Fook, Deceased [2007] 2 CLJ 362 HC (refd)

In Re Inquest Into The Death Of Sujatha Krishnan, Deceased [2009] 5 CLJ 783 CC (foll)

In Re Loh Kah Kheng [1990] 1 CLJ 823; [1990] 2 CLJ (Rep) 156 HC (refd)

Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19 CA (foll)

PP v. Mohamed Kassim Yatim [1976] 1 LNS 105 HC (foll)

PP v. Shanmugam & Ors [2002] 1 LNS 160 HC (foll)

R v. Huntbash; ex parte Lockley [1944] KB 606 (refd)

R v. South London Coroner; ex parte Thompson [1982] 126 SJ 625 DC (foll)

R v. West London Coroner, ex parte Gray and others [1987] 2 WLR 1020 (refd)

R v. Wolverhampton Coroner, ex parte McCurbin [1990] 1 WLR 719 (foll)

Richard Evans & Co ltd v. Astley [1911] AC 674 (refd)

Teng Kum Seng v. PP [1960] 1 LNS 139 HC (foll)

Legislation referred to:

Criminal Procedure Code, ss. 328, 329, 337, 338

Counsel:

For the prosecution - Tan Hock Chuan (Abazafree & Justin Wee with him); DPPs

For the deceased's family - Karpal Singh (Gobind Singh Deo with him)

For the State Government of Selangor - Malik Imtiaz

For the Malaysian Anti-Corruption Commission - Dato' Abdul Razak Musa

For the Bar Council - Rajpal Singh

For Ean Yong Hian Wah - Saleem Bashir

Reported by Wan Sharif Wan Ahmad