Teoh Beng Hock - The Inquest

The Inquest into Teoh Beng Hock's death started today. It was a rush job by the Government. All parties were not ready; except the AG's side which continue to claim that they were ready despite the Police Investigation not 100% finished yet.

Richard Wee Lopez was appointed by the Bar Council to represent the Malaysian Bar to hold watching brief in the matter. A big team is involved in the exercise, 15 lawyers in total, all from other Legal Firms. For the Opening day, Counsel representing the Bar were, Hisyam Teh Poh Teik, Cheow Wee, Rajpal Singh, Salim Bashir and myself.

For the family; Karpal, Gobind & Ramkarpal plus SN Nair were part of the legal team.

Selangor State Government were represented too, since TBH was working for them at the time of his untimely death. Imtiaz, Ashok Kandiah, Sreekant Pillai & Thomas Phillip represents the Selangor State Govt.

The AG engaged a member of the Bar, former DPP, Tan Hock Chuan to represent the Government.

The Court Room was tight; and we all had to squeeze into a tiny spot after the AG's team took almost all the available seats, leaving the balance to be shared among the 3 Legal Teams.

In the end, we were allowed to hold watching brief, with 'Interested Party' Status; which means we can take more active part in the Inquest by asking questions, putting forward submissions etc etc.

Also, the AG's team revealed that 2 DNA were found on TBH's body. One is TBH's DNA; the other an unknown man. The Chemist team is conducting a thorough DNA test over 100 staff of MACC. I think if they find the match, the Inquest will probably stop as a Police Investigation would have to start. Under the Criminal Procedure Code; if the Inquest discover criminal culpability causing the death of a person in custody; like in TBH's case, the Inquest may be called to a halt pending the Police investigation into that culpability.

Also, the AG (who only prepared 2 sets of Documents to be handed under S51A, despite there being 3 teams) handed over the 2 sets of Documents to the Family team and the Selangor team. We at the BC team had to share the Document with Gobind, counsel for the Family. We had a quick look at the Document, and what I saw (photos, statements etc) does not lead me to believe that TBH jumped. I am not sure of the conclusion yet, but I am more certain now (after that quick glance of those Documents) that TBH did not jump or commit suicide.

Let the Inquest go on and lets see what happens. I am just honoured that we are allowed the chance to represent the BC here. We have been dealing a few Legal Aid matters every now and then; but this is by far our biggest pro-bono case.

Cyber Law : Complaints regarding services of Telecommunication Companies

Under the Communication & Multimedia Act 1998 (CMA 1998), a consumer may lodge a complaint against a telecommunication service provider at the Malaysian Communication & Multimedia Commission (MCMC).

Section 188 (1) (a) & (b) of CMA 1998 states:-

S 188 (1) :-

Any network facilities provider, network service provider, application service provider or content application service provider shall:-

a. Deal reasonably with consumers; and,

b. Adequately address consumer complaints.

S 188 (2) makes it punishable if a network facilities provider, network service provider, applications service provider or content applications service provider who contravenes subsection (1) shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding twenty thousand ringgit or to imprisonment for a term not exceeding six months or to both.

In a recent case of Telekom Malaysia v Tribunal Tuntutan Pengguna (2007) 1 MLJ 626, the High Court held that consumers of telecommunication products and services which falls within S188(1) above cannot refer their complains to the Consumer Tribunal but instead to MCMC.

Basically most services and goods related to telecommunication will fall within the ambit of S188(1). The proviso has service providers, application service providers etc in the list.

So, if you have a complaint against an Internet Company, for example, lodge it with MCMC andnot Consumer Tribunal.

Postscript (26th July 2009):-

We wish to point out that the Consumer Protection Act was recently amended to allow complaints to the Consumer Tribunal; for matter related to Telecommunications, effectively over turning the High Court Case above. Kindly take note.

S233 Communications and Multimedia Act 1998

Section 233 of Communications and Multimedia Act 1988 (S233 CMA 1988) states:-

233. Improper use of network facilities or network service, etc.

(1) A person who-

(a) by means of any network facilities or network service or applications service knowingly-

(ii) initiates the transmission of,

any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; or

(b) initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address,

commits an offence.

(2) A person who knowingly-

(a) by means of a network service or applications service provides any obscene communication for commercial purposes to any person; or

(b) permits a network service or applications service under the person's control to be used for an activity described in paragraph (a),

commits an offence.

(3) A person who commits an offence under this section shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of one thousand ringgit for every day during which the offence is continued after conviction.

S233 CMA 1988 is a provision which may be used by the Authorities for a few offenses, and in the case of the 6, it is used to charge them for allegedly insulting Sultan Perak. S233(3) states that the sentence is either a fine of RM50,000 or imprisonment of a year or both penalties.

For these 6 cases, we reckon the prosecution would have to prove, amongst others, beyond reasonable doubt that the 6 person :-

1. Posted comments on a Blog;

2. That the 6 respectively owned that Blog;

3. That the statement in postings insulted Sultan Perak.

This section is rarely used, and it would create new precedents in Malaysian Information Technology Law.

The Multimedia and Communication Act 1988, Sections 231 - 244 of that Act lists down IT Law offenses such as :-

1. Fraudulent use of network facilities;

2. Damage to network facilities

3. Unlawful use of non-standard equipments

etc etc.

These provisions are rarely used, but with the emergence of IT usage in Malaysia, IT Law offenses will eventually rise.

Summary Judgment

In the Rules of High Court 1980 and Subordinate Courts Rule 1980, one will find provisions which allow parties with claims to pursue a quick Judgment against the other side. This is referred to as Summary Judgment. You will find it in Order 14 andOrder 26A, respectively.

A party with a claim would usually refer to the Plaintiff suing a Defendant, but a Defendant with a Counter Claim against the Plaintiff may also apply the same.

Basically the party seeking Summary Judgment would have to show the Judge that they have a claim so good that a Trial is not necessary. Usually Banks suing defaulting borrowers will use this procedure for a quick Judgment.

The party facing this application would need to show at least one of these in Court:-

1. that there are issues which can only be ventilated and decided in a Trial, or

2. some other reason which the Court deems fit to call for a Trial.

In DCB Bank v NS Bahtera [1999] 2 AMR 1790, the High Court held that a party seeking summary judgment has to show at least a prima facie case against the other party, before the other party is expected to show one of the 2 above rebuttals.

Body Search

Continuing on from the earlier article (in Relevan Issue No. 1/08) on section 28A of the Criminal Procedure Code (“CPC”) which dealt with the right of a person to contact a lawyer when detained by the police, I wish to now focus on the provisions governing the right of the police to conduct a body search pursuant to section 20A of the CPC. Similar to section 28A of the CPC, this new section 20A was added into the CPC by the Criminal Code (Amendment) Act 2006.

Section 20A of the CPC states:

Section 20A. Procedure on search of a person.

(1) Any search of a person shall comply with the procedure on body search as specified in the Fourth Schedule of this Code.

(2) Notwithstanding any written law, the provisions of the Fourth Schedule shall apply to any search of a person conducted by any officer of any enforcement agency conferred with the power of arrest or search of a person under any law.

(3) The Minister charged with the responsibility for internal security and public order may amend the Fourth Schedule by order published in the Gazette.

History behind the addition of Section 20A into the CPC

We must recall the events that led to the addition of section 20A of the CPC. In 2005, a video recording was made from a mobile phone of a woman forced to strip in a police station, and who was instructed to repeatedly squat. This video caused so much outrage that the Government established a Royal Commission to investigate, inter alia the video recording and the allegations of police abuse of arrested persons at police stations. The findings of the Royal Commission led to the numerous amendments in the CPC as per the 2007 Amendments Act to the CPC

How does Section 20A operate?

The new section 20A of the CPC refers to the Fourth Schedule of the CPC (“the Fourth Schedule”) which elaborates on the extent of the powers of the police to conduct a body search. To quote the entire Fourth Schedule of the CPC would take up space in Relevan, and so I would urge you to refer the same in the latest version of the CPC.

A body search is not compulsory[i] as per the Fourth Schedule, but can only be carried out if it complies with the following objectives:-

1. To obtain incriminating evidence related to the offence of which the accused person was arrested for.

2. To seize contraband, the proceeds of the crime or other things criminally possessed or used in conjunction with the offence the accused person was arrested for.

3. To discover evidence related to the reason of the arrest or to preserve the said evidence or prevent disposal of the same.

Interestingly, while section 20A of the CPC is silent on this point, section 1 of the Fourth Schedule makes it clear that a body search can only take place after arrest. Therefore, the police cannot conduct a body search on a person who has not been arrested. If one is merely being questioned, no body search can be carried out.

Types of Body Search

There are 4 types of body searches, as set out and defined in sections 2, 4, 7, 10, and 13 of the Fourth Schedule :-

1. Pat down search - outer clothing search which is carried out by quickly running down the hands over the outer garments.

2. Strip search – this search involves removal of a person’s clothing in part or in full.

3. Intimate search – includes the physical examination of a person’s bodily orifices other than the mouth, nose and ears.

4. Intrusive search – as the name suggests, this is an intrusive search to check if the person has hid anything inside that person’s body.

Thus far, I have not come across any reported cases on section 20A of the CPC[ii]. I however foresee challenges by Defence Counsel over body searches as the Fourth Schedule has been drafted in rather general terms. One possible challenge is in a situation where an accused person has been arrested for Crime A, but after a body search, the evidence thereafter leads to the prosecution of Crime B. Can the charge for Crime B hold water?

In the Privy Council decision of Kuruma v Reginam (1955) 1 All ER 236, Lord Goddard did state that; “the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.”

In R v Kelt [1994] 2 All ER 780, the English Court of Appeal faced a situation where the blood sample of an accused person was extracted for a murder inquiry but the said sample then matched blood found at a robbery scene, unrelated to the murder inquiry. Can that blood sample be adduced as evidence in the robbery case? The Court of Appeal did stress the need for the police to act in good faith when dealing with evidence extracted for one alleged crime but used in another criminal charge. The Court held that the blood sample in that case could be used in the robbery trial, notwithstanding the fact that it was meant for another case.

Another interesting case is the English High Court decision of Mustaha Osman v Southwark Crown Court [1999] EWHC Admin 622, decided on 1 July 1999, where it was held that a body search conducted by 2 police officers who failed to properly identify themselves to the persons searched as per the Police & Criminal Evidence Act 1984 (“PACE”), was in breach of section 2(3) of the same Act. The High Court overturned the Crown Court’s decision and released the accused person on that ground alone. Justice Collins in discussing the body search provisions under PACE and the protection it gives to the people in relation to body searches by the police said this:-

“This is, no doubt, because Parliament has recognised that a search of a person is a serious interference with his liberty, and all proper safeguards must be followed. The facts found show that there was no reason why the officers could not have given the necessary information. It is not for the court to disapply the duties set out in the Act, but only to decide whether, in a given set of circumstances, the officers have taken all reasonable steps to do what Parliament has required them to do. I emphasise that we are not concerned with the admissibility of evidence found as a result of a search, but whether the search itself was lawful, so that the officers were acting in the execution of their duty when carrying it out.”

It is hoped that with the new Fourth Schedule, which lays down extensive grounds and rules of conducting a body search, the Courts will continue to safeguard the rights to the people. The quote above, by Justice Collins would be a good guide, not only to the Courts, but to the police as well.

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[i] Section 1(1) of the Fourth Schedule states:-

“1. (1) A body search may be conducted on a person arrested only if it complies with any of the following objectives”

[ii] As of 16 December 2008, no reported cases were found in the Malayan Law Journal and the Current Law Journal. However, please feel free to inform the Kuala Lumpur Bar Committee of any cases reported for that said provision, for our onward amendment to this article.

Link : http://klbar.blogspot.com/2009/02/online-version-of-relevan.html

Sedition Laws in Malaysia

The recent arrest of Wong Chin Huat, a political scientist on the allegation of Sedition bring back the usual question of Sedition Laws. Sedition is used, in many instances, by authorities to curtail or limit free speech.

Freedom of Speech is guaranteed in Malaysia, via Article 10 of the Federal Constitution, but of course, with freedom to speak, comes also responsibilities. It is imperative that the people be guided on the responsibilities when speaking, and not blanket laws against speaking.

A look at Section 4 of the Sedition Act will show that we are unsure by whose standards, one can be guilty of a sedition statement:-

Section 4 Sedition Act 1948

(1) Any person who -

(a) does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act which has or which would, if done, have a seditious tendency;

(b) utters any seditious words;

(c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; or

(d) imports any seditious publication,

shall be guilty of an offence and shall, on conviction, be liable for a first offence to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to both, and, for a subsequent offence, to imprisonment for a term not exceeding five years; and any seditious publication found in the possession of the person or used in evidence at his trial shall be forfeited and may be destroyed or otherwise disposed of as the court directs.

(2) Any person who without lawful excuse has in his possession any seditious publication shall be guilty of an offence and shall, on conviction, be liable for a first offence to a fine not exceeding two thousand ringgit or to imprisonment for a term not exceeding eighteen months or to both, and, for a subsequent offence, to imprisonment for a term not exceeding three years, and the publication shall be forfeited and may be destroyed or otherwise disposed of as the court directs.