A three-member bench chaired by Justice Hadhariah Syed Ismail also ordered the matter, brought by way of a revision, to be heard before another High Court judge for a proper verdict to be handed down in compliance with the Criminal Procedure Code and a 2019 practice direction issued by the chief justice.
Sitting with Hadhariah were Justices Zaini Mazlan and Azmi Ariffin.
Two months ago, the bench allowed the prosecution’s appeal to set aside the finding of a High Court judge in Ipoh delivered in January.
The judge had set aside an open verdict issued by coroner Ainul Shahrin Mohammad in the death of G Mohan, 29.
On review, the High Court said the evidence revealed abuse of power on the part of the police. The judge also said the police had failed to follow the law and were not acting in self-defence.
In written grounds, Azmi said the High Court judge had erred in law as an inquest is not a criminal trial.
“As such, the issue of whether shots fired by two cops is lawful on grounds of self-defence or otherwise cannot be determined in an inquest,” he said in the 48-page judgment posted on the judiciary’s website this week.
Delivering the unanimous decision of the court, Azmi said the judge was also wrong to direct or suggest that the police conduct further investigations into the cause of Mohan’s death, and for the attorney-general to initiate prosecution against anyone found responsible.
“In doing so, the High Court judge had ventured into the jurisdiction and discretion of the AG under the Federal Constitution,” he said.
Azmi said the judge’s decision also went beyond what is prescribed in the practice direction.
A new judge is scheduled to hear the matter on Nov 17.
According to the facts of the case, a police team was conducting an operation along the Sitiawan-Air Tawar road at about 3.15am on Oct 8, 2016, when they saw a car whose driver looked suspicious.
They ordered the driver to stop but he fled the scene, giving rise to a 10km car chase towards Sitiawan town.
The car skidded and Mohan is said to have fired a shot at the police, resulting in the policemen returning fire at him three times, causing his death.
The Court of Appeal judgment said Mohan was on the wanted list and had criminal records.
A post-mortem report revealed that he died of excessive bleeding from two gunshot wounds in the chest.
Ainul returned an open verdict on Aug 29 last year after finding that there was no gunshot residue on Mohan’s hands despite witnesses claiming he had fired a single shot at the police.
The coroner also noted that no fingerprints were lifted off the gun purportedly used by Mohan and no ballistic report was tendered in the inquiry.
Deputy public prosecutors Zaki Asyraf Zubir and Parvin Hameedah Natchiar appeared for the prosecution, while S Raam Kumar and V Selvaratnam appeared for Mohan’s family in the Court of Appeal.