17 January 2011

Right of Any Person To Legal Counsel (Part 4)

This is the final part for this subject matter. (click here for Part 1; Part 2 & Part 3) Does a person who is not arrested; but called by Police or any other relevant authority to assist a criminal investigation; has a right to have a lawyer beside the person during the interview with the said authority?

In this final part, we look at the Malaysian Position. We have perused the situation in UK, USA & Australia thus far, and we we find in Malaysia; the law is silent on this issue.

We have Section 28A of the Criminal Procedure Code (Act 593) [“CPC”] but that provision relates to an arrested person's rights NOT the right of any person who was invited by the relevant authority to assist an investigation.

Logically, although the CPC is silent on this area the right to a solicitor should be extended to any person, not just an arrested person. It would be odd to find a person who is arrested & a suspect has more rights than a person not arrested.

If we refer to Article 5(3) of the Federal Constitution of Malaysia [“FC”]; we shall find that it states

“where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice”.

In the case of Trans Huu Tho & Ors v. PP and Another Case [2009] 3 CLJ 102; David Wong Dak Wah J finds that the omission to inform the accused of the right to appoint legal practitioner as outlined in the Article 5(3) of the FC gives grounds to set aside the proceeding as there may be miscarriage of justice. The Honourable Judge states the following:-

“What we have here is this. Every accused person has both a constitutional and statutory right to be defended by counsel of his or her choice. I have in the case of Hock Huat Chan SdnBhd v. Assan Mohammad & Others [2008] 4 CLJ 512 stated that constitutional rights must be guarded zealously by the courts and in the context of this case it is my view that the applicants, as accuseds, should have been told by the learned magistrate that they are entitled to legal representation and if they so wish the court will adjourn the matter for them to engage counsel to act for them. My reason for such requirement is simple. If the constitutional right to engage counsel is to have any meaning, the accuseds must be informed of this right. I have said on previous occasions that the court and the law cannot presume that citizens of this country, let alone foreign citizens, know their rights. The reality is that most do not know and unless they are informed of these rights, they are meaningless rights. … This issue depends on the court's finding whether this failure to inform has resulted in a miscarriage of justice in the circumstances of this case. … Accordingly it is my view that, because of the omissions mentioned above, it would be unsafe to accept the plea of guilty of the accuseds and hence I set aside the whole proceedings …”

The importance of informing the accused of their right to appoint lawyer in their proceedings in this case; illustrates how important it is for the accused or “any person” to be allowed for the appointment of lawyer in custodial situation by police officer or official person given power to detain and question. As such, the presence of a lawyer is crucial to ensure that the possibility of miscarriage of justice does not occur in the due process of law.

We would submit that though the law is silent on this issue, but the liberty of an innocent person must always prevail and therefore any person arrested or otherwise ought to have access to legal representation when dealing with Police or other relevant authority.

(thanks to Sarah Kambali & Yip Xiaoheng with the research & write up on this topic)

13 January 2011

Right of Any Person To Legal Counsel (Part 3)

This is the 3rd part of this series (click here for Part 1, and here for Part 2). RWY continue to do a comparison study on how other countries approach the rights of a person (not arrested) called to help the Police or relevant authorities.

We look at Australia this time around:-


In Australia, in particular at New South Wales [“NSW”], a similar code to the Code of

Practice C of the PACE 1984 was enacted to improve the accountability of the NSW Police service to the community it serves.

The Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence), entails such practice.

At page 44 of the Code, it is the duty of the police to treat people who are voluntarily at a police station to help with an investigation with no less consideration than those in custody.

Person voluntarily assisting should be offered refreshments at appropriate times, entitled to obtain legal advice, communicate with anyone outside the station or leave at any time.

A fourth (& final) part of this series of discussion will be posted soon.

10 January 2011

Right of Any Person To Legal Counsel (Part 2)

Continuing our series on this issue (click here for earlier posting) ; we discuss the position in US. This series features comparison of Laws related to rights of a person (not arrested) but called upon by Police to assist investigation. Does this person have a right to Legal Representation? We now see what US Laws suggests.


We refer to the United States Constitution [“USC”]. In the Fifth and Sixth Amendment of the USC, in criminal proceedings, the accused is given the right for assistance of counsel:-

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence”

The Fifth Amendment of the USC guarantees the right of the victims, witness, suspect of the crime when in custody of the police officer. The Fifth Amendment states as follows:-

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

This lead to the famous case of Miranda, leading to what is now known as the Miranda warning in US. The Court in that case held:-

“the prosecution may not use statements … stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way… Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has right to the presence of an attorney, either retained or appointed.”

The Chief Justice Earl Warren had classified the warning to be “Miranda Warning” and is to be delivered by police interrogations.

A denied legal representation, or even a violation of such right to counsel by the police or any officers given the power to interrogate, shall be remedied by excluding from the evidence at a trial hearing of the statements obtained therein.

It is clear that the assistance of counsel, as of one many due process of law, evokes the general America’s system of support towards fair play and reflects the centrality of attorneys in the adversarial tradition of the Common Law Countries.

It is hoped Malaysian Laws will adopt a similar approach.

07 January 2011

Pleading your case, Bargaining your way through

What is Plea Bargaining? It is a process of negotiation in criminal litigation between the Prosecutor & the Accused. It is common to see Plea Bargaining in TV series about lawyers and police. So, we may have our own perception on how plea bargaining works. But the reality in Malaysia, is a little different than what you see on TV.

Usually Plea Bargaining is used to avoid a Trial, and at the stage of plea bargaining; both the Prosecution and Defence, can gauge their respective strengths. If one of the parties feel they may not have a strong case, plea bargaining may be an option. For the Prosecution, so long as a conviction is recorded, they may have done their part; and conversely for the Defence, if they can lower the sentence of the Accused (or in some cases, secure a release) that would be a moral victory to the Accused.

In Malaysia, as a matter of practise, lawyers defending the Accused, would usually write to the Prosecution, what is normally called a “Letter of Representation”. Very much like Plea Bargaining, the Letter of Representation would present the views and proposals of the Accused to the Prosecution. Usually the said Letter would urge the Prosecution to either release the Accused; or charge the Accused for a lower offence.

The proposed Plea Bargaining procedure by the Malaysian Judiciary, recently reported in the media, suggests that the judiciary wish to have in place a specific procedure to allow both parties to negotiate an acceptable conclusion before presenting the same to the Judge. From the Judge’s point of view, this would mean quicker end to the case; which would also mean lesser costs and more judicial time to hear other cases.

There is much benefit to have this system in place, but caution must be placed in its implementation. As the President of the Bar, Ragunath Kesavan, was quoted to say in another daily, Plea Bargaining is not a new concept in Malaysia. In fact, what the judiciary proposed, seems to formalize what is already in place, in practice.

But the implementation must be carefully studied, so as to avoid the possibility of abuse and corrupt practise. The current practise of sending in Letter of Representation can be a slow and sometime cumbersome process. But it has its merits, in that it minimize the possibility of corruption. The Letter of Representation from the Accused is usually studied by the State Prosecution Headquarters, and after some discussion between the prosecution and the Police or other relevant agencies, the Prosecution will decide which way they wish to take.

Plea Bargaining, done in Court itself, would see both parties having direct communication and discussion on the matter. Some kind of discretion would have to be given to the Prosecution Officer at that Court to decide which way the case may go. This would be much faster than the current system, but there must be check and balance so as to avoid the parties involved, abusing the plea bargaining process.

We have to take into account another silent party in the entire Plea Bargaining, and that would be the victim of the crime (or in some cases, the family of the victim).

The victims, would normally wish to have their day in court, and would usually demand the maximum sentence on the Accused. If Plea Bargaining is too loosely applied, leading to (for example) lower sentences in many cases, then we would have a fair amount of unsatisfied victims, who may feel that justice was not done.

In most instances, plea bargaining would lead to a lower sentence for the Accused. That being the usual conclusion of Plea Bargaining, the victims of the crime may feel that they were denied an opportunity for their day in court & also, as mentioned, the sentence meted out was an injustice to them.

However, any proposed move to improve the delivery of legal services to the people is much appreciated. Hopefully, Plea Bargaining can go some way to help clear the backlog in Criminal Courts.


06 January 2011

TBH Inquest : The Verdict

The Teoh Beng Hock (TBH) Inquest was held to investigate the death of TBH on 16 July 2009.

At the Inquest, these facts emerged:-

TBH was interviewed at the Selangor State Government building in the afternoon of 15 July 2009 by the Malaysian Anti-Corruption Commission (MACC). He was then asked by MACC officers to follow them to the Selangor MACC Office at Plaza Masalam, Shah Alam on the same day. On 16 July 2009, about 1 o’ clock in the afternoon, TBH’s body was discovered at the service corridor of Plaza Masalam.

The judge in such an Inquest is called a Coroner. The Coroner in these Inquests will try to ascertain on how a person died. The Coroner may conclude that the deceased was killed or the death was accidental. In some instances, the Coroner may conclude suicide.

On 5 January 2011, the Coroner in the TBH Inquest made the following conclusions:-

1. Was it suicide?

The Coroner first considered if TBH had committed suicide. The Coroner ruled suicide out. He felt that the testimony provided by TBH’s brother, Teoh Meng Kee revealed that TBH was supposed to get married and had no psychological illness. Further, the so-called suicide note was inconclusive. The Coroner pointed out that the said note has not been ascertained to contain TBH’s handwriting. Secondly, no sample of TBH’s writing was obtained for purposes of investigation and examination.

The Coroner also pointed out that no psychiatrist report was provided on TBH’s state of mind. On these evidences, the Coroner felt that if he was to conclude suicide as the cause of death, it would have been some form of guess work. He refused to do so and ruled out suicide as mentioned above.

2. Was there homicide?

The Coroner referred to the evidences provided by the medical experts at the Inquest. He concluded that there exists sufficient evidence to confirm that TBH suffered a pre-fall injury. The pre-fall injury was the neck injury. However, the Coroner felt that there was lack of evidence to confirm that the neck injury facilitated or resulted, or contributed to the demise of TBH.

The Coroner also took into account the medical evidence that the neck injury most likely caused TBH to be in such a state that would render TBH incapable of exiting the window on his own. The medical evidence suggest that the neck injury on TBH may have rendered him unconscious or in a state of confusion. Apparently the neck injury could have caused a reduction in the level of oxygen reaching the brains of TBH. However the Coroner felt the evidence before him was not sufficient beyond reasonable doubt, that there exists homicide.

3. Verdict

In conclusion, the Coroner felt that the only decision that he can come to is a finding of an Open Verdict. An Open Verdict would mean that the cause of death cannot be determined in the Inquest.

(See alternative posting at www.loyarburok.com)

 *RWY is solicitors on record, holding a watching brief at the said Inquest for and on behalf of the Malaysian Bar