Privacy Laws in Malaysia

A friend of RWY, Foong Cheng Leong wrote a great article on his Blog about this. With his consent, we re-produce his write up here. The link to his blog is here.

Lew Cher Phow @ Lew Cha Paw & Ors v Pua Yong Yong & Anor
(Johor Bahru High Court Suit No. MT4-22-510-2007)
In this case, the Plaintiffs and the Defendants were neighbours. The High Court had dismissed an application by the Plaintiffs who applied for an order for interlocutory injunction to restrain the Defendants from installing any CCTV cameras at the Defendants’ house which faced the Plaintiffs’ house as well as also for an order to compel the Defendants to remove their CCTV cameras that were installed facing the Plaintiffs’ house.
The Plaintiffs alleged that the act of the Defendants installing the CCTV cameras had intruded their livelihood and daily activities. The Defendants on the other hand alleged that the CCTV cameras were for security reasons as their house had been intruded before and also that the CCTV cameras only showed the Plaintiffs’ house as background.
The grounds given by the High Court in dismissing the Plaintiffs’ application are, among others, as follows:
(a) there is no evidence to show that the CCTV cameras intruded the livelihood and daily activities of the Plaintiffs. Further, there is no evidence in the Plaintiffs’ affidavit to show that the CCTV cameras recorded the Plaintiffs’ activities.
(b) the Defendants are entitled to install CCTV cameras for security and safety purposes.
(c) if the interlocutory injunction is granted this will bring a legal implication to the general public especially when CCTV cameras are installed at residential and commercial premises to protect the safety of the general public.
(d) there is no right of privacy in Malaysia thus the Plaintiffs do not have the right to institute an action against invasion of privacy rights.

Richard Wee & Yip - Bridging Gaps

Richard Wee & Yip - Bridging Gaps.

RWY has adopted this motto for our Firm.

We offer our client a bridge to solutions through law and justice.

Like a Bridge, we act as a link.
Like a Bridge, we fill the gaps.

RWY - Bridging Gaps

Sir Dennis Byron at Bar Council on 22/3/2010

* Do click on the image above for a better view of the contents

Right to Legal Advise

People of Malaysia may not be fully aware that they have a right to a Solicitor when detained by the authorities. Under Article 5 of the Federal Constitution, the Federal Constitution guarantees the right to a detained person to see his/her Solicitor.

A more specific area of law is Section 28A of the Criminal Procedure Code (CPC). In Section 28A, the law explains at which point does a person detained, can call upon a solicitor. Quoted below is the entire Section 28A of the CPC.

Section 28A CPC

(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.

The General rule is very simple - a person arrested, can always call upon a Lawyer. The people must be made aware of this fundamental right. The moment a person is arrested by the police, the person must firstly be informed that the person is arrested, and for which crime (if any); and immediately must be accorded that right to meet a Solicitor.

The Police may deny the arrested person that right, only if Section 28A (8) above applies.

Nonetheless, Section 28A (8) is an exception to the said general rule above.

So, if you are ever arrested by (for example) the Police, inform the Police you wish to activate your rights under Article 5 of the Federal Constitution and you wish to meet a lawyer as soon as possible, as per S28A CPC. If the Police deny you that right, you may demand to lodge a Police Report against the Police, or later upon release, lodge a complaint with SUHAKAM. You may also contact the Bar Council.

Powers of the Malaysian Bar

Recently, the news highlighted comments by Dato Mukriz, where he had urged Parliament to curtail the powers of the Bar.

The Malaysian Bar is not a body created by lawyers, but is created by an Act of Parliament. You will hear lawyers calling the Bar a 'Statutory Body', for it is by way of a Statute, ie the Legal Profession Act 1976, that the Bar was created.

The Bar Council on the other hand; is a council of 36 lawyers elected by lawyers in a 2 tier election to manage the administration of the Malaysian Bar. So it is incorrect to say lawyers are members of the Bar Council, as the Council is our 'Cabinet' and lawyers are members of the 'Malaysian Bar' not the Bar Council.

Sabah and Sarawak have separate Bars, and the lawyers practicing there are not members of the Malaysian Bar (notwithstanding the name).

The powers of the Bar are also governed by Section 42 of the Legal Profession Act.Section 42 (in summary) states the powers of the Bar to include:-

1. to uphold justice without due regard to its own interest;

2. to maintain and improve the standard of the legal profession;

3. where requested, to express views on matters affecting the legislation;

4. to protect and assist the public in matters related to the Law.

There are a few more powers listed in Section 42.

Even without Section 42, due to the nature of the legal profession, the powers listed above would be inherent in the Bar, for if the lawyers dont uphold justice, dont maintain their standards, dont protect the public (for legal matters), who else can and who else will?

Habeas Corpus

Article 5 of the Malaysian Federal Constitution guarantees the citizen of their right to liberty. Article 5(1) makes it clear that no person shall be deprived of their life or personal liberty.

Articles 5 (3) - (4) enshrines our right to be informed of the reasons of arrest (if arrested) as soon as possible and that one shall be brought before a Magistrate within 24 hours upon arrest.

Article 5 (2) gives the Courts the power to release a citizen who is wrongfully detained. This application is called Habeas Corpus. The phrase Habeas Corpus is Latin, which literally means 'you shall have the body'.

The full phrase is actually Habeas Corpus ad Subjiciendum. It basically means to demand the release of a person who was wrongfully arrested.

In Malaysia the process to file the Writ of Habeas Corpus is provided for in Sections 365 - 375 of the Criminal Procedure Code. A quick summary of a habeas corpus application :-

1. File a Motion with a supporting Affidavit from the arrested person at High Court. The applicant may file at any High Court in Malaysia.

2. The affidavit must contain:-

a. where and by whom the person is detained;

b. the facts (within the detainee's knowledge) of the detention;

c. issues to persuade the Court that person is detained against his will without just cause.

3. The Applicant to serve Motion and Affidavits to the Government.

4. After all Affidavits are exchanged, the Court will fix a hearing date.

5. If the Applicant succeeds, he/she will be released, but if he fails, he can appeal directly to the federal Court (Section 374 CPC)

There are many cases to refer to when submitting before the High Court Judge, but Judges have been known to set a person at liberty if (inter alia):-

1. the person detained was not given proper advice/instructions on the reasons for detention;

2. the Authorities failed to comply with all relevant procedures when detaining the person;

The Writ of Habeas Corpus is a powerful tool to protect one's liberty and acts as a check and balance of the power to detain a person, particularly when the Government exercises their powers to detain a person without trial (like ISA, Emergency Ordinance arrests)