Death in Police Custody

The recent death of Kugan in Police Custody was unfortunate. While we can understand that Police may sometimes need to be tough when interrogating an accused, but to cause the death of one in custody is just not appropriate. We noted that the AG's office have demanded investigation and this is a positive way forward for a transparent investigation.

In the Criminal Procedure Code, there is a specific provision, Section 334 which reads:-

When any person dies while in the custody of the police or in a psychiatric hospital or prison, the officer who had the custody of that person or was in charge of that psychiatric hospital or prison, as the case may be, shall immediately give intimation of such death to the nearest Magistrate, and the Magistrate or some other Magistrate shall, in the case of a death in the custody of the police, and in other cases may, if he thinks expedient, hold an inquiry into the cause of death.

In addition, under the Police Act, there is an 'Inspector-General Standing Orders' which will give a guide to the Police Officers on how to deal with death in Custody.

One must be aware that the moment a person passes away, the Police must be informed; wherein the Police would visit the Body to confirm if there is any 'foul play'. The Police would then issue a Death Certificate, confirming the person's demise.

Under Section 18 of the Births & Deaths Registration Act 1957, all Deaths must be confirmed and a Certificate will be produced.

When one dies in Police Custody, the CPC is clear - that it is the Magistrate who must be informed of the death; and that Magistrate shall then confirm the nature of the death. Needless to say a post mortem is normally carried out just before body is released to the family members of the deceased.

In a Catch 22 bind

Contributed by Richard Wee Thiam Seng
Friday, 07 November 2008
©The Star (Used by permission) by Richard Wee Parliament has to intervene when there is an issue of jurisdictional conflict between Syariah and civil laws. LAST year, the Federal Court in the case of Subashini Raja singam v Saravanan Thanga thoray, by a majority of 2-1, dismissed the wife’s application for a court order to stop her husband, who had converted to Islam, from going to the Syariah court for a divorce and from unilaterally converting their infant children to Islam. It was dismissed on a technical ground. Under Section 51, Law Reform (Marriage and Divorce) Act 1976, if one spouse converts to Islam, the other spouse can only apply for divorce three months after that conversion. Subashini filed her divorce application just before that three-month deadline. She had done so because her husband had filed a similar application in the Syariah court and that court was apparently prepared to grant a divorce order as well as an order for custody of her child despite her absence (she cannot appear in that court as she is not a Muslim). However, the Federal Court made some interesting observations. One major issue in that case was the conversion of one of the children in the marriage to Islam by the converted husband. Subashini had contended that the conversion was irregular and therefore void, as the law requires the consent of both parents when the child is converted to another religion. But the majority of the Federal Court, in a Judgment delivered by Datuk Nik Hashim Nik Ab. Rahman FCJ said: “The wife complained that the husband had no right to convert either child of the marriage to Islam without the consent of the wife. She said the choice of religion is a right vested in both parents by virtues of Articles 12(4) and 8 of the Federal Constitution, and Section 5 of the Guardianship of Infants Act 1961. [Articles 12 (4) of the Federal Constitution provides that the religion of a person under the age of eighteen years shall be decided by his parent or guardian. Article 8 prohibits discrimination on the basis, among other things, of gender; and Section 5 of the Guardianship of Infants Act 1961 provides that both parents have equal rights in matters related to the child.] “After a careful study of the authorities, I am of the opinion that the complaint is misconceived. Either husband or wife has the right to convert a child of the marriage to Islam. The word parent in art 12(4) of the FC, which states that the religion of a person under the age of 18 years shall be decided by his parent or guardian, means a single parent.” With respect, I disagree with this part of the decision. The 11th Schedule, Section 2 (95) of the Federal Constitution specifically states that singular words in the Constitution shall include the plural. So the use of the word “parent” in the Federal Constitution does not mean only one parent but both parents. In the light of the majority decision of the Federal Court, it appears that the law as it stands now is as follows: 1. One parent can convert a child from one religion to another. 2. When that conversion is to Islam, the non-Muslim spouse may have no remedy because of the difficulties faced by non-Muslims in challenging the other party’s legal status as a “Muslim” due to various laws and court decisions. It is my view that Parliament has to intervene to legislate this matter and correct the position of Subashini and those like her. The amendments should include the requirement that both parents must give their consent if a child below 18 years of age is to be converted to another religion. As it stands now, it is almost impossible to give advice to a client in a similar position to Subashini’s. If a non-Muslim client told me that his or her spouse has converted their child to Islam and asks me what to do, I am in a quandary: - If I say “I don’t know”, it won’t look good for me as a lawyer. If I say “go to the Syariah court to get a remedy”, I am asking a non-Muslim to go a Syariah court, which in any event is incorrect. If I say, “We’ll settle this in a civil court”, I may be bound by the majority decision of the Federal Court in the Subashini case. Unless the client is willing to take the case all the way to the Federal Court so that the issue can be revisited, he or she may not have any remedy. So, I urge Parliament to step in and amend the law accordingly. Section 5 of the Guardianship of Infants Act would need clarification by perhaps substituting the word “parents” for “parent”. This would ensure that the consent of both parents would be required before the religion of the child is changed. I would, however, venture to state that Parliament should consider allowing the child to choose whatever religion the child wants to subscribe to when he or she attains the age of 18. Till that age, the law may consider allowing the child to continue adhering to the religion that he or she was born into. As for the Federal Constitution, Article 12 (4) ought to be clarified to mean that both parents are empowered in matters related to the child. I am however reluctant to advocate amending the Federal Consti-tution. It is unhealthy to frequently amend the Federal Constitution, and in this matter, the provisions of the Con stitution have already clearly defined singular words like “parent” to include plural meaning of both father and mother. But for the sake of clarity and avoidance of doubt, perhaps Article 12 (4) should be specifically amended accordingly. In addition, when there is an issue of jurisdictional conflict between Syariah and Civil laws, Parliament must make laws not to compel non-Muslims to go to the Syariah court. Religion being a personal matter, Parliament must be sensitive to the people, by not making a person who subscribes to one religion to be adjudged by the laws of another religion.

“I want to call my lawyer”… But can you?

How many times have you heard that on television? A scene from a criminal investigation series will flash an arrested person’s demands to see a lawyer. Does that right exist in Malaysia?

The new Section 28A

The Criminal Procedure Code (CPC) was amended in 2006 via the Criminal Procedure Code (Amendment) Act 2006 (ACT A1274) which came into force in September 2007, and among the more interesting amendments to the CPC is the addition of a new Section 28A, which reads:-

Rights of person arrested

28A

(1) A person arrested without a warrant, shall be informed as soon as may be of the grounds of his arrest by the police officer making the arrest.

(2) A police officer shall before commencing any form of questioning or recording of any statement from the person arrested, inform the person that he may :-

(a) communicate or attempt to communicate, with a relative or friend to inform of his whereabouts, and;

(b) communicate or attempt to communicate and consult with a legal practitioner of his choice.

(3) Where the person arrested wishes to communicate or attempt to communicate with the persons referred to in paragraphs (2)(a) and (b), the police officer shall, as soon as may be, allow the arrested person to do so.

(4) Where the person arrested has requested for a legal practitioner to be consulted the police officer shall allow a reasonable time-

(i) for the legal practitioner to be present to meet the person arrested at his place of detention, and;

(ii) for the consultation to take place.

(5) The consultation under subsection (4b) shall be within the sight of a police officer and in circumstances, in so far as practicable, where their communication will not be over heard;

(6) The police officer shall defer any questioning or recording of any statement from the person arrested for a reasonable time until the communication or attempted communication under paragraph 2(b) or the consultation under subsection (4), has been made;

(7) The police officer shall provide reasonable facilities for the communication and consultation under this section and all such facilities provided shall be free of charge.

(8) The requirements under subsections (2) and (3) shall not apply where the police officer reasonably believes that-

(a) compliance with any of the requirements is likely to result in-

(i) an accomplice of the person arrested taking steps to avoid apprehension; or

(ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or

(b) having regard to the safety of other persons the questioning or recording of any statement is so urgent that it should not be delayed.

(9) Subsection (8) shall only apply upon authorization by a police officer not below the rank of Deputy Superintendent of Police.

(10) The police officer giving the authorization under paragraph (9) shall record the grounds of belief of the police officer that the conditions specified under subsection (8) will arise and such record shall be made as soon as practicable.

(11) The investigating officer shall comply with the requirements under subsections (2), (3), (4), (5), (6) and (7) as soon as possible after conditions specified under subsection (4) have ceased to apply where the person arrested is still under detention under this section or under section 117.

############

Section 28A is a welcome addition to the law. It finally crystallises the right of an arrested person to call the person’s family or a lawyer. Our country, already independent for 50 years, only recognised this right on its 50th anniversary. But better late then never, I suppose.

Before the enactment of Section 28A, Article 5 of the Federal Constitution was constantly referred to, as a general right to a solicitor when arrested. It is also interesting to note that Section 28A is similar to Sections 56 to 58 of the United Kingdom’s Police & Criminal Evidence Act 1984 (PACE). PACE will be discussed further below.

There are however 2 provisions in Section 28A which, it is submitted, would require judicial interpretation on the scope of police discretion and powers:-

1. Section 28A (6)

2. Section 28A (8)

# Section 28A(6)

Section 28A (6) states that the police may wait for a ‘reasonable time’ for the arrival of the solicitor before commencing questioning of the arrested person. How long is this ‘reasonable time’?

Whilst it is virtually impossible to fix a specific time period to define what is ‘reasonable period’, but it would be logical to acknowledge that the police ought to wait for a few hours, at least for the arrival of the solicitor. There should also be safeguards built into the interrogation of an arrested person who has demanded for the presence of a solicitor, who is albeit late. It would be interesting to see how the Courts deal with this issue.

It is hoped that we will adopt similar Code of Practice under PACE, used in the United Kingdom, where the Code provides a guide to the police on the limitations of their powers when exercising their discretion.

# Section 28A (8)

Section 28A (8) contains a provision which allows the police to deny any arrested person the right to contact a family member or lawyer if that allowance will lead to one of these circumstances:-

(a) compliance with any of the requirements is likely to result in-

(i) an accomplice of the person arrested taking steps to avoid apprehension; or

(ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or

(b) having regard to the safety of other persons the questioning or recording of any statement is so urgent that it should not be delayed.

How far can this proviso be used by the police?

At the recent ‘Bersih’ and ‘Hindraf’ rallies, the police issued certificates under Section 28A (8) to deny the arrested persons their right to legal counsel, even though the lawyers were physically present at the police station to meet their clients.

It was unfortunate that this provision was so readily used at that time, when it is plain and obvious from the Section 28A, that subsection (4) is nothing more than an exception to the general rule. Over and above that, the constant usage of this exception would not only negate the true purpose of Section 28A of protecting the liberties of an arrested person, but is a fundamental breach of Article 5(3) of the Federal Constitution.

Section 28A (8) also uses general words to empower the police in discharging their duties under that provision. It allows a police officer who “reasonably believes” that allowing an arrested person to exercise the person’s rights in Section 28A (1) to (7) would “likely to result” in one of the given outcomes therein. How would these concepts be adjudicated? What principles would the Court apply when drawing the boundaries of these discretionary powers given to the police?

It is submitted that there are a few pertinent guiding principles to assist the Courts in drawing that said boundary.

First – Article 5(3) of the Federal Constitution. As our Federal Constitution is the highest authority of law, it should be the starting point in the decision making process of any Judge in deciding the scope of police discretion under Section 28A (8). Article 5(3) has long confirmed the right of any person arrested to have legal advice and representation when facing the criminal charges. The discretionary powers in Section 28A (8) must be subjected to the Federal Constitution.

Secondly – in the case of Woolmington v. DPP[1935] AC 462, the House of Lords held that the prosecution bears a burden to prove beyond reasonable doubt. That decision also confirms the principle that an arrested person is innocent until proven otherwise. Based on that principle it is not acceptable that the exception of Section 28A (8) be regularly used. In Malaysia, the Woolminton rule has long been entrenched in our criminal matters (Mat v PP [1963] 1 LNS 82).

Over and above these 2 contentions, we should also take cognizance of the United Kingdom’s practice in this area. As mentioned earlier, PACE has a similar provision of conferring the right to arrested person to legal advice, and also provisions for their police to deny that right. However in the United Kingdom, PACE has many Codes of Practice governing the operation of PACE. If we refer to Code of Practise C of PACE, it is abundantly clear that the Code sets out the duties of the police in ensuring the arrested person is given the best opportunity to contact a solicitor. That Code went so far as to even suggest that the Investigating Police Officer should contact the Immigration Department when dealing with a foreigner despite PACE not requiring this be done.

It is hoped that Malaysia will adopt a similar Code of Practice as set out under PACE, where the Code provides a guide to the police on the limitations of their powers when exercising their discretion for this sub section and also the discretion referred to above in Section 28A (6) .

Some cases from the United Kingdom can give us some guidance on how Section 28A can be interpreted.

The Court of Appeal in Samuel (1988) QB 615 held a confession given by the accused person (the appellant at the Court of Appeal) was inadmissible, after the facts therein indicated that the police had not only held the accused person for six hours and refused him to a lawyer but when a lawyer did arrive (who was sent by his mother) that lawyer was refused access to him for a further three hours, during which time he confessed to the crime. The police offered a justification that by allowing the accused to see the lawyer may have triggered the escape of other suspects. The Court of Appeal held that the denial of access to legal advice was unjustified and the Court did consider the Codes of Practise in PACE.

In another Court of Appeal decision Alladice [1988] Crim LR 608, although there was a finding that the accused was denied access to a lawyer, the Court held that the interview was in fact properly conducted as there was no evidence that the accused was coerced or forced into making the statement. However the Court did rebuke the police and did consider the Code of Practice in PACE. The Court still did stress the importance of the accused having access to a lawyer.

It can be concluded that in the United Kingdom, and to a large extent the European Union; the right to have a solicitor present when being interviewed and also to communicate privately with a solicitor; is viewed extremely seriously by the UK and European Courts of Human Rights. Any unnecessary deprivation of that right may be viewed as a violation of Article 6 (the right to a fair trial) of the European Convention of Human Rights.

It is submitted that Section 28A (8) must not be liberally interpreted and if given the opportunity to comment on that provision, the Courts ought to discourage the application of that provision.

Further the police force must make all efforts not to take the easy way out of denying the arrested person’s fundamental right to see a lawyer. The officers must be educated and exposed to that said right.

So, can you call your lawyer?

So we return to the question posed, can an arrested person call for his/her lawyer?

So long as the police force continues to actively rely on Sections 28A (8) & (9), then the purpose and intention of Section 28A would be defeated.

Instead the right to see one’s family or lawyer as per Section 28A (2), (3) & (4) be given an interpretation that is as liberal as possible. It would be incumbent upon our Courts to protect the liberties of the people, and interpret the provisions above bearing in mind that the person arrested or accused; is still very much innocent until the Court so orders otherwise.

Don’t move the goal post, improve the game

Contributed by Richard Wee Thiam Seng

Friday, 07 September 2007 12:45am (from the Malaysian Bar website)

The Attorney General recently proposed a No Fault Liability System to assist victims of accident cases to have faster access to compensation. He then referred to New Zealand and Australia as two countries with this system. It is almost impossible for any lawyer to comment that the No Fault Liability System won’t work, without being accused of merely protecting our ‘rice bowl’. Whilst there is little doubt that many lawyers are involved in this Personal Injury Claims involving motor vehicle, it is also virtually certain that the No Fault Liability System will see the end of lawyers’ involvement in those cases. Despite these foreseeable accusations against me, I will still endeavour to try persuading the AG that the No Fault System will likely not work in Malaysia. What is wrong with the current system? Ironically recently the Chief Judge of Sabah and Sarawak led a team of Judges who dialogued with the Bar about establishing a proposed ‘Pre-action protocol’ for Personal Injury Cases. The Learned Chief Judge’s team was keen to speed things up for such claims. This led to Forum held by Kuala Lumpur Bar Committee on the 10th April 2007. At that Forum, 2 major issues were raised by lawyers who attended the Forum:- 1. long wait for the issuance of the Medical reports from Government Hospitals, sometimes taking as long as a year; 2. equally long wait for documents from the Police. There were also some comments about Insurance Companies not replying quick enough and also low offers from the same. The Forum alluded KL Bar Committee members to some of the problems which causes delay to Personal Injury Claims, the very same delay that the AG believes can be solved by merely changing the system to a No Fault Liability System. Of course, needless to say, there are some instances where lawyers may have caused delays too. Lawyers are not so thick-skinned to deny that the legal fraternity is absolutely above the cause of delay. But what is crucial is we have clear evidence from the very lawyers that are conducting Personal Injury Claims on a daily basis of the some of the causes of the delay in claims. This evidence, to a very large extent can be substantiated. For the moment the said Pre-Action Protocol is not likely to take off, but is being reviewed. Perhaps a specialist court make take off, handling accident claims. In addition to the findings at that Forum, I wish to add a personal opinion. I am of the view that the Insurance companies are also culprits in the delay. These companies in the disguise of trying to evade fraudulent claims more often than not, delays the claims as long as they can. It is my view that even with the No-Fault Liability Claim, the compensation will still NOT be paid any quicker, so long as the Insurance Company are not coerced to do so. It is also my contention that the purging of lawyers in Personal Injury Claims cases would mean the victims would be at the mercy of the Insurance Company, and this time, the victim has no representation and no one to shield, protect and defend him/her. At this juncture, this write up looks more like a fault finding write up. And the fact is, IT IS! I am seeking to see where the fault and cause of the current delay which made AG want to propose the alternative No Fault System. It is my hope that since we can identify the causes for delay, AG only needs now to try tackle these issues and try resolving it. Clearly it is a problem which can be solved, so why change the current system? Would the No-Fault Liability System work? I venture to quote from the Australian Journal ‘The Agenda’, Vol 9 No 2, 2002, page 135. [please see : http://epress.anu.edu.au/agenda/009/02/9-2-A-4.pdf] In that article, the authors Bronwyn Howell, Judy Kavanagh and Lisa Marriott said this at pages 137 to 138:- “No-fault systems have been proposed as a means of reforming the tort-based system. No-fault systems remove the need to prove cause from the compensation equation and thereby reduce the transaction costs of the process (Danzon, 1990:4). Compensation is generally paid according to a prescribed schedule if the loss-sufferer satisfies the scheme administrators that loss has been incurred, regardless of any fault by the alleged loss-causer. Such schemes are typically funded out of levies on potential loss-causers or from general taxation and are accompanied by some limitations on the loss-sufferer’s rights to seek redress from the loss-causer through tort actions. The principal weakness of no-fault schemes is the difficulty of ensuring that the socially optimal amount of care is taken by potential loss-causers, as the links between their potential to cause loss and the costs of their actions are severed. Consequently, most no-fault schemes are accompanied by additional administrative systems, not present in typical tort systems, to monitor the behaviour of potential loss-causers in order to preserve their incentives for appropriate loss-avoidance (Kessler, 1999:13). The efficiency-improvement criterion is met if the transaction costs saved from the tort process are greater than the additional monitoring costs incurred in the no-fault system for the same level of compensation paid to individuals for the same number of adverse events. No-fault insurance schemes are common where the probability of a loss occurring is very uncertain. These include ‘acts of God’ (a sudden and unavoidable occurrence caused by natural forces, such as a flood or earthquake), where there is no party obviously at fault from whom partial cost recovery can be sought. The low probability of these events occurring, the unpredictability of the size of the loss and the exposure to large number of claims arising from a single event, mean that there is often a failure of private insurance companies to indemnify such losses. Further, as no individual has the ability to ‘cause’ the event, there is no need for incentives to prevent the loss-causing event and monitoring costs are low.” These authors are academicians in Australia and New Zealand and their views can be used as a guide to what we are facing here. As can be seen above, the purpose of introducing the No Fault Liability Systemin New Zealand [NZ] was to control spiralling costs. It is also meant to deal with mostly Medical Negligence cases, where the NZ government faced huge claims for medical negligence at its National Health Services [NHS] Hospitals. With a No Fault Liability System, the costs of maintaining the Hospitals can be fixed as the government need not make huge provisions for medical negligence suits. Another factor that the our AG ought to take into account is that in some states in United States of America where this No Fault Liability System is practised, the premium for the Insurance is extremely high. Why is this so? The Insurance Company in this kind of scheme would have no choice but to compensate a victim once the victim can prove his/her claim. There is little chance of defending the claim. So the Insurance Company would logically increase the premium to hedge their losses. Also, the AG must realise that even with the adoption with this system ALL the above mentioned delays [medical and police reports] still exist – which would only mean that accident victims now have to deal with the Hospitals and Police on their own to extract all relevant documents, for their claim. All the best to the victims! Conclusion I have said in my earlier postings at the Bar Website that I am concerned that such major change may in fact not solve the problem. And of course as a lawyer I will concede that the change of system will mean many of our friends all over Malaysia, will lose out in their income. I take a position that the current system needs some intervention by authorities to speed things up. If the AG truly wants to quicken the claims process of the victims, as he so assert in the press release, then I urge him to look at solving the current system and not changing it.