Toh

- vs -

The Medical Superintendent of

Sultanah Aminah Hospital, Johore Bahru

Judgment

Zakaria Yatim J

1. In this notice of motion, the applicant, one Toh Kong Joo is seeking the order of the court:

   1. for a declaration that the medical report on the applicant Toh Kong Joo (NRIC No 5692047) bearing reference HSA/LP/1364/87 is a public document;

   2. for a declaration that the applicant, the said Toh Kong Joo, to whom such said medical report relates, has a right to purchase a copy of the said medical report on payment of the prescribed fee;

   3. that the applicant, the said Toh Kong Joo, be furnished with a copy of his medical report prepared by the Hospital Sultanah Aminah, Johore Bahru, upon payment of the prescribed fee; and

   4. that the costs of his application be paid by the respondent to him.

2. In his affidavit in support of the notice of motion, he stated that he was arrested by the Johore Bahru police and remanded in police custody. While he was in police custody, he was interrogated by the police. He was accused of being involved in cases of thefts of motorcars. He denied the allegation and he was subjected to beatings. According to him, he suffered injuries as a result of being beaten by the police while in custody. He was then sent to Hospital Sultanah Aminah for treatment.

3. Subsequently, he was brought to the Johore Bahru magistrate’s court where he was charged with two charges. No particulars of the charges were mentioned in the affidavit. The applicant claimed trial to the two charges and the court released him on bail pending his trial.

4. On his instruction, his solicitors wrote to Hospital Sultanah Aminah for a copy of the medical report pertaining to his medical examination and treatment. After a series of correspondence, the applicant’s solicitors received a letter from the medical superintendent of the hospital. The letter dated 19 October 1987, referred to a circular letter dated 11 June 1987 issued by the Ministry of Health, and stated that according to the circular letter, the applicant was required to get the prior permission of the police in writing before the medical report could be issued to him. The relevant part of the circular is quoted below [translation[a]]:

   4.

   Police cases of criminal nature 4.1 Medical reports for criminal cases that are referred by the police like murder, gunshot wound, rape and others may only be issued to the police officer who is investigating the case. This is to enable the police officer to carry out the investigation and to avoid any falsification of evidence that the police may need. 4.2 Any party, including the patient, who applies for a copy of the report must be advised to obtain the same from the police. In any event, the director of hospital, medical superintendent and medical officer of a hospital may issue the report to any other party with the written consent of the police.

5. The applicant, through his solicitors, referred the matter to the Director-General of Health, Malaysia in Kuala Lumpur. In his reply dated 16 June 1988, the Director-General explained that the circular letter was only an administrative guideline for his own medical officers.

6. It is clear that the circular letter is not a subsidiary legislation made under the provisions of the Medical Act 1971. Indeed the Director-General has no power to make rules or regulations under the Act. Under s 36 of the Act, only the Medical Council may, with the approval of the minister, make regulations in respect of matters listed in sub-s (2) of that section.

7. Since the circular letter is not a subsidiary legislation and since it is only a guideline, the medical officer at Hospital Sultanah Aminah is not bound by the circular letter unless the circular letter repeats the provisions of any existing law. But if the circular letter is in the form of administrative directive, the medical officer has to comply with the directive otherwise disciplinary action can be taken against him.

8. The question that arises here is whether para 4 of the circular letter quoted above reflects the provisions of existing law? In my opinion a medical officer has to comply with para 4.1 because the medical reports form part of the police investigation in respect of criminal offences. An accused person will be supplied with a copy of the medical report if the prosecution intends to use it. Under s 399 of the Criminal Procedure Code (FMS Cap 6), if the public prosecutor intends to give in evidence such report, he shall deliver a copy of the report to an accused person not less than ten clear days before the commencement of the trial. Paragraph 4.2 of the circular letter is more general in nature. The question is whether it is required by law that the applicant must obtain the prior permission of the police before he can be supplied with a copy of the medical report?

9. The medical report in question is a public document. Section 74 of the Evidence Act 1950 provides that public documents are documents forming the acts or records of the acts of ‘.... public officers, legislative, judicial and executive, whether Federal or state’. A ‘public officer’ is defined in the Interpretation Act 1967 as a person lawfully holding, acting in or exercising the functions of a public office; and ‘public office’ is defined in the same Act as an office in any of the public services. The public services are enumerated in art 132(1) of the Federal Constitution and includes the general public service of the Federation. The medical service is not expressly provided in art 132, but members of the medical service form part of the general public service and come under the jurisdiction of the Public Services Commission. See Tun Mohamed Suffian Hashim, An Introduction to the Constitution of Malaysia (2nd Ed) at p 133.

10. Since medical officers are members of the public service, they are therefore public officers and the reports of their medical examinations are public documents. Although medical reports are public documents, not every person has access to it or has the right to ask for copies of the documents. Section 76 of the Evidence Act 1950 states:

    Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate, written at the foot of the copy of the document or part thereof, as the case may be, and the certificate shall be dated and subscribed by the officer with his name and his official title, and shall be sealed whenever the officer is authorized by law to make use of a seal, and the copies so certified shall be called certified copies.

11. It is clear from the section quoted above that if a person has the right to inspect a document, then he should be supplied with a copy of the document on payment of the prescribed fee. A person has the right to inspect a document if he has an interest in that document and the inspection is necessary for the protection of his own interest. See Anthony Gomez v Ketua Polis Daerah Kuantan [1977] 2 MLJ 24 and Khoo Siew Bee v Ketua Polis, Kuala Lumpur [1979] 2 MLJ 49.

12. In the present case, the applicant definitely has an interest in his own medical report and it is obvious that he needs a copy of the report to protect his own interest especially when he has made the allegation that he was beaten by the police. In the circumstances, he is entitled to be supplied with a copy of his medical report without any prior written approval from the police. The medical officer concerned or Hospital Sultanah Aminah is obliged to supply a copy of the report as requested by the applicant on payment of the prescribed fee.

13. For the reasons stated above, I make the following order:

    1. The medical report pertaining to the examination of the applicant is a public document.

    2. The applicant is entitled to purchase a copy of the said medical report on payment of the prescribed fee.

    3. Hospital Sultanah Aminah, Johore Bahru shall supply a copy of the said report to the applicant or his solicitors upon payment of the prescribed fee.

14. I order that the costs of this application be costs in the cause.

Cases

Anthony Gomez v Ketua Polis Daerah Kuantan [1977] 2 MLJ 24; Khoo Siew Bee v Ketua Polis, Kuala Lumpur [1979] 2 MLJ 49

Legislations

Evidence Act 1950: s.74, s.76

Federal Constitution: Art.132(1)

Medical Act 1971: s.36

Authors and other references

Tun Mohamed Suffian Hashim, An Introduction to the Constitution of Malaysia (2nd Ed)

Representations

RK Menon for the applicant.

Kamarulzaman Abdul Jalil (DPP) for the respondent.

Notes:-

[a] Translation is not a part of the judgment. The texts cited in the original judgment was expressed in the Malay language.

This decision is also reported at [1990] 2 MLJ 235