Thank You Team RWY

RWY hosted its 2nd Annual Dinner recently. The firm, a merger of 2 firms in 2009, has grown since then.

In fact, RWY can be traced to Messrs T.S Wee & Co formed in 2003 and Messrs Yip Huen Weng & Co, formed in 2004. In 2013, RWY would have had roots dating back 10 years. 

The partners wish to thank our colleagues who put in great effort in RWY's drive to be amongst the better firm around. 2012 will be another formidable year, but the good team spirit cultivated in 2010 and 2011 will ease the hurdles before us. 

Thank You to the Team members of RWY. 

The Team of 2011. Johnson Lim was also part of the team till June 2011.

Merry Christmas & Happy New Year

To our readers and our friends, RWY wish you Merry Christmas and Happy New Year. 

Calvin Khoo

RWY say farewell Calvin Khoo who was on a 3 month intern at our firm. He has left to further his studies.

Calvin was involved in some major matters at the firm whilst he was here and we wish him all the best.

Bar Council 2012/13

Our Richard Wee was re-elected to the Bar Council for the 2012/13 term. Congrats. We hope Richard will continue to serve the Bar well. 

Flashback : PP v Nee Siang Yee

An old case reported in Bernama back in 2008, where our Richard Wee and Edward Saw were appointed by the High Court to defend Nee Siang Yee, an accused facing the death sentence of Section 39B of the Dangerous Drugs Act. 

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link:-

http://mstar.com.my/berita/cerita.asp?file=/2008/8/13/TERKINI/Mutakhir/Peniaga_dibebaskan_daripada_pertuduhan_edar_dadah&sec=mstar_berita

Peniaga dibebaskan daripada pertuduhan edar dadah KUALA LUMPUR: Seorang peniaga hari ini dilepaskan dan dibebaskan oleh Mahkamah Tinggi di sini atas tuduhan mengedar dadah seberat 52.16 gram kira-kira enam tahun lepas. Hakim Lim Yee Lan melepaskan dan membebaskan Nee Siang Yee, 35, selepas mendapati pendakwaan gagal membuktikan adanya kes prima facie terhadap Nee di akhir kes pendakwaan. Dalam penghakimannya, Lim berkata terdapat percanggahan antara keterangan pegawai polis yang menangkap Nee dan keterangan Chee Wee Lin iaitu orang yang berada di dalam kereta bersamasama Nee berhubung tempat dadah itu dijumpai di dalam kereta. Katanya pendakwaan juga gagal membuktikan dadah yang ditemui dalam kereta yang dipandu Nee adalah miliknya. Terdapat dua orang lain dalam kereta itu iaitu Chee dan seorang warga Indonesia Adi Umar. Beliau berkata dalam keterangannya, pegawai polis itu berkata dadah itu ditemui atas lantai dekat dengan pedal kereta di depan tempat duduk pemandu manakala Chee dalam keterangannya menyatakan beliau nampak dadah itu dikeluarkan dari bawah tempat duduk pemandu. Nee didakwa mengedar dadah jenis methaphetamine di sebuah tempat cuci kereta di No 6, Jalan Mahmud, Kampung Baru, Kuala Lumpur  pada 11.45 malam, 8 Okt 2002. Dia didakwa mengikut Seksyen 39 B (1) Akta Dadah Berbahaya 1952 dan boleh dihukum mengikut Seksyen 39 B (2) akta yang sama yang membawa hukuman mati mandatori jika sabit kesalahan. Nee, Chee dan Adi telah dihadapkan ke Mahkamah Majistret atas tuduhan itu tetapi pendakwaan kemudiannya mengugurkan pertuduhan terhadap Chee dan Adi. Pendakwaan dijalankan oleh Timbalan Pendakwa Raya Ahmad Fuad Othman manakala Nee diwakili peguam Richard Wee. BERNAMA

Happy Deepavali

The Festival of Light dawns upon us

Happy Deepavali to our Malaysian Hindu friends from RWY.

 May the light shine on all Malaysia!

Thank you Chai Hong

RWY wish to express thanks to Teow Chai Hong, who was attached for 2 months at RWY. Chai Hong is a law student based at KDU Law School. 

RWY wish you all the best. 

Chai Hong also showed great talent of taking photos

My Experience as an Intern at RWY (Michele Tung Hui Qi)

21 DAYS IN THE FIRM

First time doing internship, I was more afraid than excited. With my limited knowledge on legal practice, I began my internship in August right after I finished my first year. On my first day, I was briefed shortly by Mr Wee on his expectations from me. Since this is my first step into the legal working life, I was not really used to the new environment and got quite stressed. Anyhow, it got much better after a week.

I was introduced to the basics first, such as doing clerical work, and of course, learning how to draft letters. Besides that, I had the opportunity to read and do research on some interesting cases in a few areas of law.

I guess what I enjoyed the most in these 21 days would be court trips with Mr Wee and Mr Yip, especially to the Palace of Justice in Putrajaya. I got to see how lawyers submit their cases and how judges respond. It is definitely very enlightening and intrigues me to see the real world of the legal profession and how justice is upheld.

However, I was not assigned with much work to do mainly due to my limited knowledge as I had merely finished my first year of my LLB course. Hence I was only able to help out a little on litigation files but could do none on conveyance. There was once Mr Wee gave me an insight on how they handle and prepare for their case. Little did I realise that litigation work is far too complex and requires much more skills and greater legal understanding as every document must be analysed in detail and research had to be done thoroughly.

Nonetheless, I was also given a chance to participate in the discussions with clients to see how meetings are being convened.

There were times where I was not paying attention on my work and consequently made careless mistakes. Nevertheless, Mr Wee was very patient with me despite his busy schedule. I lamented for not doing my best.

Interning at RWY made me feel at home. I am truly grateful and that Mr Wee and Mr Yip offered me a chance to intern in RWY.

The experience of being an intern in RWY is definitely eye-opening. It made me think again what I really want to achieve when I become a lawyer. Many things that I would never have thought about at this age of mine, crossed through my mind in these 21 days of exposure. I have realised that there are so much more for me to learn, to be more ambitious and courageous, and improve myself to strive for the better. Looking back, I ponder and search again my enthusiasm and dreams for this profession that was once lost.

21 days of internship may be too short a time for me to gain much in terms of legal experience, but it was definitely enough for me to feel inspired, and start my second year with a new mindset.

BY MICHELE TUNG HUI QI

AUGUST 2011

SELAMAT HARI RAYA

SELAMAT HARI RAYA FROM RWY

ICCPR : International Convention on Civil & Political Rights

In recent times, Malaysia sees numerous comments and announcements made by Politicians and Leaders of Organisations which borders on insults and threats based on religious and racial lines. This is somewhat unfortunate and strongly discouraged.

What is more disturbing is the reliance by the makers of these insulting comments; on the Civil Liberty to Freedom of Speech, when making these unfortunate comments. 

The Federal Constitution allows and in fact guarantees the freedom of speech. Parliament has however curtailed that with the Sedition Act, which if a statement is defined to be seditious based on that Act, a person can be charged in Court. 

This is somewhat an unhealthy position of the Law.

The right to free speech ought to prevail at all times. However, the person relying on that right to free speech, must also be responsible. Sedition Act may be one way to control the kind of speech and comments a person can make, but the better way though is to educate the person and the people on respecting people. It would be ideal to educate the people that if one does not like to hear an adverse comment of himself/herself; that person ought not to the same to others. 

Also, freedom of speech by logic cannot mean to insult or to bully. It is incorrect to rely on the right of  freedom of speech to insult or to threaten another person. And it is also incorrect to gag the person by imposing the Sedition Act. 

Instead this Government, being an elected government of the people, by the mandate of the people should inspire the people and take responsible steps to ensure people are accountable and responsible when making careless and inconsiderate comments. 

The ICCPR, a Convention of the United Nations also recognises that people who incites hatred, can be taken action against. Article 19 mandates sanctions against people who incites hatred. So, even the progressive organisations like UN which heavily advocates human rights through its documents like the UNDHR acknowledges that the freedom of speech does not include the right to incite hatred. 

You may read more of ICCPR here. 

In time, we hope the Government of Malaysia will take the lead of appointing leaders who will make responsible comments and would not tacitly promote comments by irresponsible leaders of Organisations, which is calculated to incite hatred and division amongst the people. 

In Memoriam: Yang Mulia Raja Aziz Addruse

Our distinguished Past President, Yang Mulia Raja Aziz Addruse, passed away peacefully earlier today at the age of 75.

Allahyarham was called to the Malaysian Bar on 8 Jan 1966.  From Lincoln’s Inn, Allahyarham was the first President of the Malaysian Bar to serve three terms — 1976-1978, 1988-1989 and 1992-1993.  A leading advocate, Allahyarham continued to be active in Bar Council work, and appeared regularly in the Appellate Courts as a senior counsel.  He had led and argued many of the difficult and controversial cases for the Malaysian Bar.

Better Lawyers makes Better Bar (From The Star 8/7/2011)

by Richard Wee

http://www.thestar.com.my/news/story.asp?file=%2F2011%2F7%2F8%2Ffocus%2F9056215&sec=focus

THE National Young Lawyers Committee of the Bar Council recently held its Young Lawyers Convention on July 1-3 in Malacca. The convention, which takes place once every three years, saw about 140 lawyers from all over Malaysia in attendance.

The theme for the convention was “Towards a Better Bar”, which is consistent with the NYLC’s project to push our lawyers, particularly the young ones, to continue improving themselves.

The logic of this is that better lawyers will likely lead to better interpretation and implementation of the law. Higher standards incorporated into our legal profession and our legal system would result in Malaysia becoming an attractive regional legal hub like Hong Kong and Singapore.

The theme also included a holistic improvement of Malaysian lawyers, to not only advocate for intellectual progress, but also for moral and benevolent development.

In fact, many times at the convention, speakers reminded lawyers to maintain the highest ethical standards, and to conduct themselves with integrity and responsibility.

The convention impressed upon the delegates that being a lawyer signifies an important professional position in society, where elements of trust and principles are intertwined with the need to maintain high intellectual capacity when discharging their duties as advocates and solicitors.

In short, it isn’t easy to be a lawyer, but if you are one, you strive to be a good lawyer and an honest one, too.

With the theme in mind, the NYLC worked closely with the Bar Council’s Continuing Professional Develop ment (CPD) Committee.

The convention discussed the need to increase the quality of the content of the CPD at the Bar. Young lawyers were urged to attend CPD classes to acquire extra knowledge on practical aspects of legal practice.

Further to this theme of self improvement, the NYLC is proposing to form Work Practice Groups (WPGs), where young lawyers can join small groups under the mentorship of senior practitioners in specialised areas of the law like international arbitration or cross-border transactions.

The aim is for young lawyers to learn better and quicker under experienced mentors.

Going global

Young lawyers were also encouraged to attend conferences and conventions overseas. Subject to costs, these international law conferences would be a gateway to international networking and learning.

Other aspects of improvement would be for the NYLC to assist young lawyers to set up their own legal firms and to learn the proper way to do so.

The NYLC will be working with a department in the Bar Council which organises the “Getting Started” seminars. These seminars provide excellent insight into the “how and what” of setting up legal firms.

The NYLC also recognises that to ensure young lawyers continue to strive for excellence, the work conditions must also be commensurate with that desire.

The prospect of better remuneration and a better working environment at legal firms would be a good driving force to ensure that young lawyers will want to improve, and to continue staying in legal practice.

Bar Council statistics show that more than 60% of the lawyers in Peninsular Malaysia are in practice for less than three years. The principal reasons for many lawyers leaving practice after the third or fourth year are usually the high level of work stress and uncertain remuneration.

It would be difficult to urge young lawyers to improve themselves when they cannot see a bright future in terms of career advancement and better remuneration.

With that in mind, the NYLC will conduct a national survey on remuneration and career advancement within the next six months to obtain statistics on the views of young lawyers on their work conditions. The results of that survey may lead to forums and dialogues with the employers of the young lawyers.

The convention also saw the re-visiting of section 42 of the Legal Profession Act 1976 (LPA) which states that lawyers have a duty to uphold the cause of justice without regard to their own interests, without fear or favour, and that there is a duty to protect and assist the public in all matters ancillary or incidental to the law.

The delegates at the convention, in subscribing to the spirit and intent of the theme, spoke of their moral duties to uphold justice at all times. Section 42 of the LPA became a battle-cry in one of the sessions at the convention when discussing activism at the Bar.

When the Statement of the Con vention was issued at the end (as further described below), the delegates added a provision in the statement calling for the authorities in this country to adhere to the Federal Constitution and that the young lawyers are prepared to stand up and defend the law if the law is incorrectly and improperly implemented.

At first glance, the convention may look like a stew with too many spices or like a plate too full for the NYLC to handle. To the contrary, many spices are required to make the stew better and the varied ingredients will ensure the Bar remains progressive and at the cutting edge of the law.

A five-point statement was issued at the close of the convention. Fondly dubbed the “Malacca Statement”, reflecting the location of its birth, it reflects the theme of the convention, calling for the implementation of projects towards achieving a better Bar.

There are many classy and intelligent lawyers in Malaysia, and the Malaysian Bar is a strong Bar. Of course there may be a few bad apples among the Bar but the NYLC will focus on the strengths of the Bar and harness that quality to ensure the Bar strives forward.

The NYLC intends to challenge young lawyers who join the Bar to move outside their comfort zone and to push them to persevere and persist towards progress.

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> The writer is the Chairman of the National Young Lawyers Committee. Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, please visitwww.malaysianbar.org.my

My Experience As An Intern at RWY (By Nicholas Er)

1st July 2011

My name is Nicholas Er, a current LLB (UOL) undergraduate in KDU University College. Firstly, I would like to thank Mr. Richard and Mr. Yip, the partners in RWY for accepting me as an attachment student in their legal firm. Whatever I have learnt here, it is beyond my LLB course.

The first thing that I have learnt is to send a letter of demand (LOD). It is called ‘precedent’ but not ‘sample’ if I am requesting for a previous LOD. It is not easy to write a LOD as it must be clear and easy to understand by the reader. Liability and quantum have to be clearly stated. Then, I have also come across with different modes of sending a mail such as Certificate of Posting, AR Registered and etc.

The next thing that I have learnt is that all the files must be kept tidy. “A messy file means a messy lawyer” is the advice from Mr. Richard. Then, the first thing to be read in a file is correspondence to understand the facts. Be prepared before going for hearing or trial is needed as the judge would ask all kinds of questions. To be a good lawyer, we must understand our facts and plan our strategy well. This is the advice from Mr. Yip.

I have gone to the High Court thrice with the partners to see how lawyers debate in the court. Thanks to Xiao Heng, he had explained to me how the court works and brought me to various places in the High Court. Although there are not many litigation cases in this month which enable me to go to the court frequently, I am feeling glad that I have learnt many things in the office including to do research on s. 232 Companies Act 1965 involving liquidators, meeting client, and also to read the high-profile cases which have involved drugs. This is the time when I have to study s. 39(B) of the Dangerous Drugs Act 1952 carefully.

In addition, I have also learnt on how superior courts and subordinate courts work in Malaysia. Different courts hear different civil matter which is based on the monetary amount of the claim. And then what steps should be taken if an appeal is to be made and what rules have to be complied with were explained to me by Ms. Salvindar. I certainly have a clearer picture on the Judiciary of Malaysia after the explanation.

There are times when I think that I am not good enough while having my internship in RWY especially when I was careless and not being initiative enough. There was once when I was asked to read a few files, and after I have read it I was just waiting for the further instructions. Subsequently I was told that I have to approach my senior once I have read the files and ask whatever questions that I do not understand. That was the time I realized I have to be more initiative in future. Moreover, I was advised to make two changes to myself: talk confidently and improve my English language.

Lastly, I would like to thank all the professionals in RWY for guiding me patiently and have treated me as if I am one of the family members here. I apologized if I have said or done anything wrongly in this period and I wish all the best to everybody in RWY.

Young Lawyers Convention 2011

Young Lawyers Convention 2011 @Everly Beach Resort, Malacca

Richard Wee & Yip supports the Young Lawyers Convention, and is proud to announce the sponsorship of 2 young legal eagle.

We urge the younger members of the Bar attend this Convention which takes place, once every 3 years.

Resulting Trust

Many Klang Valley road users, purchase the service of Touch & Go (T&G). T&G, usually associated with Toll Roads, are also now used to pay car park entry and to get a ride on the LRT trains.

How it works is that a person will pay a certain credit amount, and whenever the user touch the T&G card on the T&G panels, certain money will be taken up.

Unlike Singapore, where the cash card is virtually owned by the Singapore Government, T&G in Malaysia is privately owned. This leads to an interesting question; If that Company which owns T&G is wound-up, who owns the money paid by the consumer of the T&G (but yet to be credited)?

So if you have RM100 balance in your T&G card, and if the owner Company collapses tomorrow, do you have a claim over that RM100 or, can the Receiver/Liquidator of that Company claim that the unused credit belongs to T&G?

Using the concept in Law of Trust, particularly Resulting Trust; it is likely that the said money should be returned to you. The logic would be that the PURPOSE and INTENT of that money paid to T&G is for you to use the services of T&G. So until such time you use that services, the money you paid is merely an upfront money, which is basically kept on Trust by that company. So long as you have not used T&G's services, it can be contended that the said money is still yours.

*kindly take note, this is merely an academic example, for purposes of discussion and understanding of the Law of Trust, particularly the concept of Resulting Trust. In no way are we insinuating that Touch & Go or any company related to it is wound up or will be wound up.

Putik Lada : Malaysia, Our Unique Home!

*featured in The Star's Putik Lada on 14th April 2011

TO over 20 million people, Malaysia is home. In this home, we have beautiful beaches, exotic islands and gorgeous landscape.

Our country is blessed with natural beauty.

If we wish to have a beautiful holiday on a beautiful island, we have Langkawi, Pangkor, Tioman and Sipadan, among others.

If we wish to scale the highlands of the country, Mount Kinabalu is waiting for us to conquer.

Taman Negara awaits the adventurous ones to come hike and camp.

We have our own casinos like those at Vegas. We have beautiful towers as well as the tallest twin towers, in Kuala Lumpur.

From Penang to Johor Baru; from Kota Kinabalu to Kuching, we find beautiful colonial and old buildings built by our forefathers.

Food is special in Malaysia.

The mix of all the races in the country makes our own “rojak” when it comes to food.

And yes, we all love our Malaysian food. When we go abroad, we will always miss our food.

If a foreign friend asks for an honest description of our country, the above will probably be what you will tell the friend.

However, since the friend requested an “honest description” of our country, we cannot stop at just culture, food and nature.

We ought to inform the friend of our system and people, too.

This is where our discussions may vary and change.

We ought to inform our foreign friend that in Malaysia, politics and the system of administration are big issues.

Almost every day, news on these topics will be reported.

To the foreigner reading such news, it would appear that while we are united in our love for our food and our natural beauty, we are, however, not united on many issues in this country.

This is of course normal, as no country in the world has a population entirely united in all views.

A real concern of Malaysians today is not just the difference in views, but rather, the attempts by certain groups in Malaysia to divide the people and instigate a clash.

We see people who constantly attack and bully others.

Talk-down or fiery comments are made without responsibility and care for the feelings of the other person.

It is fine if people cannot agree, but it is another thing to speak in confrontational and intimidating tones.

While people may be free to speak, as they have freedom of speech, this freedom comes with responsibility and accountability.

It is odd that while our Prime Minister strives for a united country via his 1Malaysia concept, there are people who choose to divide the country with their divisive views.

Back to this “honest description” to the foreign friend.

A description of our country would also not be complete without detailing our love for sports.

Thousands will watch a local football match, and our world-class badminton and squash champions.

When we meet, other than politics, sports is certainly one subject Malaysians love to discuss.

We have our own Formula 1 team.

It hasn’t won a race yet, and it does spend quite a large chunk of money (some from taxpayers), but the fact is we have our own Formula 1 team. We ought to inform our foreign friend of the many sports facilities we have in Malaysia.

Some are not well maintained, but the fact is, we have those facilities. Perhaps in time we will improve on the maintenance aspect.

Our great infrastructure must also be mentioned – the highways, the airports and the trains that traverse all over peninsular Malaysia.

Of course our roads have many potholes, our luggage sometimes get lost at our airports and our trains sometimes break down, especially the LRT in Kuala Lumpur; but the fact remains, we have these facilities.

The foreign friend would also be happy to know that Malaysia does not have volcanic mountains; our country is not sitting on nearby tectonic plates which may cause earthquakes or tsunamis. In this sense we are truly a blessed country.

Any advice or comment to the foreign friend is also incomplete without the story of the people.

Malaysians are patient and forgiving people.

We will hear illogical comments from people claiming authority, or even Members of Parliament making silly comments.

But time has shown that Malaysians will always forgive these comments and sometimes re-elect the very same Members of Parliament who made those silly comments.

Malaysians are also calm people. When facing racist and absolutely bewildering comments, we remain calm and steady.

We do have some protests and demonstrations but these are regularly extinguished by our police force.

But Malaysians, above all else, will always be Malaysian.

We can take a Malaysian out of Malaysia, but we can never take Malaysia out of a Malaysian.

We will always love our food, we will always enjoy our country’s beauty and we will always hope our sportsmen/women will win the next world championship.

The above will probably be an honest description of our country to any foreign friend who wishes to visit us or to migrate here.

> The writer is chairman of the National Young Lawyers Committee of the Bar Council. Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, please visitwww.malaysianbar.org.my

Will written for remuneration, ought to be done by Lawyers

The proposed motion by RWY lawyers was passed unanimously at the recent Malaysian Bar AGM. 

The logic of the Motion is this:-

Lawyers in Malaysia are covered by the Professional Indemnity Insurance (PII). If we are negligent, you can sue us, and if you win; the Insurance will pay you. 

On the other hand, non-lawyer Will-writers are not covered by PII. 

Apparently the Malaysian Bar is aware of complaints by Lawyers that they have received poorly drafted Wills to file Probate or Letters of Administration. Most of the time the beneficiary of the Will, is not even aware that the Will is poorly drafted. And the nature of the Will is such, that we will only know the Will is bad; after the creator is dead; as only when the creator dies, will the Will come into effect and come into attention. 

Most people; after executing a Will; thinks that they are safe, and will not check the Will. So it is too late, by the time we find out that the Will is bad. 

Of cos, RWY is not at all suggesting that lawyers will always get the Will right. In fact lawyers have made mistakes too. But the probability of a Lawyer making mistakes are far lesser than a non-legal Will writer due to the nature of the legal work. 

In addition, (as stated above) we have PII. That way, if the Will is defective, can that defect is caused by a Lawyer, then the beneficiary can sue the Lawyer and get damages via the PII.

So in the unfortunate event that the Will is wrongly drafted by a Lawyer; and that Lawyer is successfully sued for negligence; the beneficiary of the Will may be able to gain some compensation from the PII Insurance. 

The Motion reads:-

Proposed motion calling upon the Government of Malaysia to regulate the will writing enterprises/agencies in Malaysia
(Proposed by Richard Wee Thiam Seng and seconded by Sarah bt Kambali, dated 3 Mar 2011)
Preamble:-

Recognising the fact that writing a Will is a crucial and significant, financial and personal decision that someone may make;

Recognising the need to protect consumers keen in engaging Will Writers in Malaysia;

Recognising the current practise where Will Writers may not be necessarily legally trained.

The Motion

The Malaysian Bar calls for the abolishment of section 38(2) of the Legal Profession Act 1976, effectively disallowing unauthorised persons, as defined in the Legal Profession Act 1976, to drafts wills for remuneration.

*The motion, as amended, was unanimously carried.

Regulate Will Writing Industry

This is a proposed motion to be tabled at the 65th Malaysian Bar AGM on 12th March 2011.

Proposed Motion calling upon the Government of Malaysia to regulate the Will Writing Enterprises in Malaysia.  

Preamble:-

Recognising the fact that writing a Will is a crucial and significant, financial and personal decision that someone may make;

Recognising the need to protect consumers keen in engaging Will Writers in Malaysia;

Recognising the current practise where Will Writers may not be necessarily legally trained.

The Motion:-

The Malaysian Bar calls upon the Government of Malaysia to effectively regulate the Will Writing Industry in Malaysia.

The Malaysian Bar calls upon the Government of Malaysia to impose a rule that a Will Writer ought to have Legal Qualification, as a minimal standard;

Alternatively the Malaysian Bar suggests that the Government of Malaysia conduct Trainings and Courses leading to a Diploma or Certificate in Will Writing, which may be held at our Institutions of Higher Learning; to train the current and future Will Writers.

                 Dated : 3rd March 2011 

RWY on Radio : BFM - Rights of an Arrested Person

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)

Right of Any Person To Legal Counsel (Part 3)

This is the 3rd part of this series (click here for Part 1, and here for Part 2). RWY continue to do a comparison study on how other countries approach the rights of a person (not arrested) called to help the Police or relevant authorities.

We look at Australia this time around:-

AUSTRALIA

In Australia, in particular at New South Wales [“NSW”], a similar code to the Code of

Practice C of the PACE 1984 was enacted to improve the accountability of the NSW Police service to the community it serves.

The Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence), entails such practice.

At page 44 of the Code, it is the duty of the police to treat people who are voluntarily at a police station to help with an investigation with no less consideration than those in custody.

Person voluntarily assisting should be offered refreshments at appropriate times, entitled to obtain legal advice, communicate with anyone outside the station or leave at any time.

A fourth (& final) part of this series of discussion will be posted soon.