Right of Any Person To Legal Counsel (Part 1)

In an earlier posting back in 2009, and an update posting this year; we had discussed about the rights of the arrested person to call upon Legal Counsel to advise the person. That is Section 28A of the Criminal Procedure Code.

We find a lacuna in Malaysian Laws on this area, specifically; the Law made no specific reference to the rights of a person called upon by the Police (or other relevant authorities) to assist in the criminal investigation.

If you are called by the Police (for example) to assist in an on-going investigation, can you call a lawyer along? Logic would dictate; Yes. But there is no specific provision similar to that in Section 28A CPC.

Today, we start a series of review of Laws from other Jurisdictions on how that Country

defines the right of the volunteer person.

United Kingdom

In UK, the rights of a person assisting in a Police questioning or investigation is contained in the Police and Criminal Evidence Act 1984 [PACE 1984]. We refer herein to Code C of PACE 1984, which is also known as Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers, whereby it is stated in Note 1A Code C of PACE 1984 that:-

“Although certain sections in this Code apply specifically to people in custody at police stations, those there voluntarily to assist with an investigation should be treated with no less consideration, e.g. offered refreshments at appropriate times, and enjoy an absolute right to obtain legal advice or communicate with anyone outside the police station.”

From the same, we are able to deduce that the police officer is required to respect the person who comes to police station with the intention to give information of the investigation, whether that person an accused, witness or even an volunteer informant. As such, any person is to be given access to legal advice or communication with any other person outside the police station.

This was followed in the case of Brooks v. Commissioner of Police of the Metropolis [2005] UKHL 24 which was decided by the House of Lords of United Kingdom (now known as the Supreme Court) on 21^st April 2005. Lord Steyn; wherein he had held that “whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence”.

Lord Rodger in the same case also held that “as a matter of professional ethics, officers can be expected to treat witness with appropriate courtesy and consideration, and may be open to disciplinary proceedings if they do not.”

Bar Council 2011 election

Our Richard Wee was elected to Bar council, in the recent Bar Council 2011 election. We thank our friends for the support.

1 Hendon Mohamed 1803 2 Haji Sulaiman Abdullah 1783 3 Christopher Leong 1381 4 George Varughese 1365 5 Datuk Kuthubul Zaman Bukhari 1324 6 Andrew Khoo Chin Hock 1265 7 Low Beng Choo 1237 8 Steven Thiru 1225 9 Dato' Yasmeen Shariff 1196 10 Syamsuriatina bt Ishak (Tina) 1087 11 Richard Wee Thiam Seng 1052 12 Anand Ponnudurai 1042

Will - Documents living beyond you

Wills are unique. These documents only come alive when the maker of the Will has passed away. Hence these documents lives beyond you.

Whatever drafted on the Will has to be accurate. Once the maker of the Will has passed away, the Executor of the Will would have to decipher what the maker wishes. So, the Will has to be drafted in clear and understandable language. Any ambiguity may lead to unwanted consequences (for example; an ambiguous clause may be declared too vague, and the asset which you wish to donate to a specific beneficiary may not end up with that beneficiary after all).

It is strongly advised that you engage a Solicitor to draft a Will. Inform the Solicitor of all your tangible assets. Inform the Solicitor which asset shall go to who, upon your demise. Be clear with the Solicitor.

It is perhaps best not to have an asset divided to too many people (for example Landed properties should not be divided to too many people). One must also consider if the one asset is divided to too many people, when this beneficiary themselves pass away (and if they pass away without a Will) then your legacy would be in conflict and sometimes in chaos.

In some Wills, the maker gives a House to 5 children. When the maker dies, all 5 Children will be registered as co-owner. But when one of the child themselves passes away AND pass away without a Will; that is where your legacy faces problems. The 3rd generation will face much issues.

Anyway, this is merely an example. Be sure you think beyond the coming generation when deciding who benefits from your Will. It would be beneficial if you ponder of the 3rd generation too.

Bar Council 2011 election

Our very own Richard Wee has offered himself as a Candidate for a place at the Bar Council, next term. The firm wishes him the best of luck; and hope the members will consider his candidacy.

Please see the link below, to the Malaysian Bar Website; where Richard's nomination can be found. 

http://www.malaysianbar.org.my/bar_council_elections/pool_of_candidates_for_bar_council_2011/2012_election_shrinks_to_26.html

RWY supports Richard's effort to be elected. 

RWY welcomes Sarah Kambali

Another talent joins RWY. Sarah was a pupil of Richard Wee back in 2007, and her return is somewhat of a reunion with Richard.

RWY welcomes Sarah, who will be supporting & assisting the partners in matters of Conveyancing & Contracts.

With Sarah in RWY, we now have a pool of 4 lawyers and a Para-Legal to call upon, over and above our support staffs.

Welcome aboard, Sarah!

RWY in the news : Court rules in favour of SIS

KUALA LUMPUR: SIS Forum (Malaysia) can use Sisters In Islam as its name and identity.

The Malaysian Assembly of Mos que Youth (Pemuda Masjid) failed in its bid yesterday to prevent SIS Forum (Malaysia) from using Sisters In Islam.

High Court judge Justice Zabariah Mohd Yusof allowed an application by SIS Forum to strike out the suit against them after meeting the parties in chambers at the court complex here yesterday.

Lawyer Richard Wee, who represented SIS Forum, told reporters that the judge agreed to strike out the suit as she ruled that Pemuda Masjid had insufficient locus standi to act against them.

“If the applicant (Pemuda Masjid) had any problems with SIS Forum, they should take it up with the Companies Commission of Malaysia (SSM).

“The judge agreed with this and ruled in our favour,” Wee said.

SIS Forum was also represented by counsel Malik Imtiaz Sarwar and Azhar Harun while lawyers Mohd Ibrahim Mohd and Anas Fauzi acted for Pemuda Masjid.

On June 16, SIS Forum filed an application to strike out the suit.

On March 22, Pemuda Masjid – a non-governmental organisation with 5,000 members – filed an originating summons seeking a declaration that the valid name for the organisation under the law was not Sisters In Islam and wanted to prevent the organisation from using the name.

In an affidavit filed in support of the application, its executive director Mohd Taqiuddin Abdullah said a check with the SSM revealed that the respondent was registered under the name of SIS Forum (Malaysia) and not Sisters In Islam.

The use of the word Islam was controlled and limited by the Registrar of Companies and could only be used upon getting permission from the SSM and related government agencies, he added.

Source : The Star