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)

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