Scoutmaster has right to bail, says Bar Council

©Malay Mail
by Asrul Hadi Abdullah Sani

PETALING JAYA: The volunteer scoutmaster who allegedly molested 11 schoolgirls, all aged 14, and his 15-year-old daughter has a right to bail, says Bar Council member Richard Wee.

Petaling Jaya deputy police chief Supt Meor Hamdan Meor Mohamad told reporters the 45-year-old was being investigated under Section 354 of the Penal Code under assault or use of criminal force with intent to outrage modesty.

Wee, also the National Young Lawyers Committee chairman, said although the court could deny bail, it was unlikely as Section 354 is a bailable offense.

“Under the law, a person is presumed innocent until proven guilty,” he told The Malay Mail.

Five of the girls’ parentslodged police reports last Wednesday and the man was arrested within 24 hours. 

He was released on bail the following day. Families of the victims were baffled the suspect was allowed bail and questioned why he was allowed to return home to his daughter.

They also criticised the police for releasing the man only a day after he was arrested. Wee stressed the focus should not be on the bail but how fast the police can work with the deputy public prosecutor (DPP).

“It is incumbent upon the police and DPP to work as fast as possible to make sure police have the accurate information and get this person charged,” he said.

Wee also said the police could seek a remand order from the magistrate’s court.

“Under the law, police can ask for a remand but it is their prerogative.”

BFM Interview - No Excuses: Things You Should Know About the Law

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. 

________________________

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

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.

Right of Any Person To Legal Counsel (Part 2)

Continuing our series on this issue (click here for earlier posting) ; we discuss the position in US. This series features comparison of Laws related to rights of a person (not arrested) but called upon by Police to assist investigation. Does this person have a right to Legal Representation? We now see what US Laws suggests.

UNITED STATES OF AMERICA

We refer to the United States Constitution [“USC”]. In the Fifth and Sixth Amendment of the USC, in criminal proceedings, the accused is given the right for assistance of counsel:-

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence”

The Fifth Amendment of the USC guarantees the right of the victims, witness, suspect of the crime when in custody of the police officer. The Fifth Amendment states as follows:-

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

This lead to the famous case of Miranda, leading to what is now known as the Miranda warning in US. The Court in that case held:-

“the prosecution may not use statements … stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way… Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has right to the presence of an attorney, either retained or appointed.”

The Chief Justice Earl Warren had classified the warning to be “Miranda Warning” and is to be delivered by police interrogations.

A denied legal representation, or even a violation of such right to counsel by the police or any officers given the power to interrogate, shall be remedied by excluding from the evidence at a trial hearing of the statements obtained therein.

It is clear that the assistance of counsel, as of one many due process of law, evokes the general America’s system of support towards fair play and reflects the centrality of attorneys in the adversarial tradition of the Common Law Countries.

It is hoped Malaysian Laws will adopt a similar approach.

Pleading your case, Bargaining your way through

What is Plea Bargaining? It is a process of negotiation in criminal litigation between the Prosecutor & the Accused. It is common to see Plea Bargaining in TV series about lawyers and police. So, we may have our own perception on how plea bargaining works. But the reality in Malaysia, is a little different than what you see on TV.

Usually Plea Bargaining is used to avoid a Trial, and at the stage of plea bargaining; both the Prosecution and Defence, can gauge their respective strengths. If one of the parties feel they may not have a strong case, plea bargaining may be an option. For the Prosecution, so long as a conviction is recorded, they may have done their part; and conversely for the Defence, if they can lower the sentence of the Accused (or in some cases, secure a release) that would be a moral victory to the Accused.

In Malaysia, as a matter of practise, lawyers defending the Accused, would usually write to the Prosecution, what is normally called a “Letter of Representation”. Very much like Plea Bargaining, the Letter of Representation would present the views and proposals of the Accused to the Prosecution. Usually the said Letter would urge the Prosecution to either release the Accused; or charge the Accused for a lower offence.

The proposed Plea Bargaining procedure by the Malaysian Judiciary, recently reported in the media, suggests that the judiciary wish to have in place a specific procedure to allow both parties to negotiate an acceptable conclusion before presenting the same to the Judge. From the Judge’s point of view, this would mean quicker end to the case; which would also mean lesser costs and more judicial time to hear other cases.

There is much benefit to have this system in place, but caution must be placed in its implementation. As the President of the Bar, Ragunath Kesavan, was quoted to say in another daily, Plea Bargaining is not a new concept in Malaysia. In fact, what the judiciary proposed, seems to formalize what is already in place, in practice.

But the implementation must be carefully studied, so as to avoid the possibility of abuse and corrupt practise. The current practise of sending in Letter of Representation can be a slow and sometime cumbersome process. But it has its merits, in that it minimize the possibility of corruption. The Letter of Representation from the Accused is usually studied by the State Prosecution Headquarters, and after some discussion between the prosecution and the Police or other relevant agencies, the Prosecution will decide which way they wish to take.

Plea Bargaining, done in Court itself, would see both parties having direct communication and discussion on the matter. Some kind of discretion would have to be given to the Prosecution Officer at that Court to decide which way the case may go. This would be much faster than the current system, but there must be check and balance so as to avoid the parties involved, abusing the plea bargaining process.

We have to take into account another silent party in the entire Plea Bargaining, and that would be the victim of the crime (or in some cases, the family of the victim).

The victims, would normally wish to have their day in court, and would usually demand the maximum sentence on the Accused. If Plea Bargaining is too loosely applied, leading to (for example) lower sentences in many cases, then we would have a fair amount of unsatisfied victims, who may feel that justice was not done.

In most instances, plea bargaining would lead to a lower sentence for the Accused. That being the usual conclusion of Plea Bargaining, the victims of the crime may feel that they were denied an opportunity for their day in court & also, as mentioned, the sentence meted out was an injustice to them.

However, any proposed move to improve the delivery of legal services to the people is much appreciated. Hopefully, Plea Bargaining can go some way to help clear the backlog in Criminal Courts.

  

TBH Inquest : The Verdict

The Teoh Beng Hock (TBH) Inquest was held to investigate the death of TBH on 16 July 2009.

At the Inquest, these facts emerged:-

TBH was interviewed at the Selangor State Government building in the afternoon of 15 July 2009 by the Malaysian Anti-Corruption Commission (MACC). He was then asked by MACC officers to follow them to the Selangor MACC Office at Plaza Masalam, Shah Alam on the same day. On 16 July 2009, about 1 o’ clock in the afternoon, TBH’s body was discovered at the service corridor of Plaza Masalam.

The judge in such an Inquest is called a Coroner. The Coroner in these Inquests will try to ascertain on how a person died. The Coroner may conclude that the deceased was killed or the death was accidental. In some instances, the Coroner may conclude suicide.

On 5 January 2011, the Coroner in the TBH Inquest made the following conclusions:-

1. Was it suicide?

The Coroner first considered if TBH had committed suicide. The Coroner ruled suicide out. He felt that the testimony provided by TBH’s brother, Teoh Meng Kee revealed that TBH was supposed to get married and had no psychological illness. Further, the so-called suicide note was inconclusive. The Coroner pointed out that the said note has not been ascertained to contain TBH’s handwriting. Secondly, no sample of TBH’s writing was obtained for purposes of investigation and examination.

The Coroner also pointed out that no psychiatrist report was provided on TBH’s state of mind. On these evidences, the Coroner felt that if he was to conclude suicide as the cause of death, it would have been some form of guess work. He refused to do so and ruled out suicide as mentioned above.

2. Was there homicide?

The Coroner referred to the evidences provided by the medical experts at the Inquest. He concluded that there exists sufficient evidence to confirm that TBH suffered a pre-fall injury. The pre-fall injury was the neck injury. However, the Coroner felt that there was lack of evidence to confirm that the neck injury facilitated or resulted, or contributed to the demise of TBH.

The Coroner also took into account the medical evidence that the neck injury most likely caused TBH to be in such a state that would render TBH incapable of exiting the window on his own. The medical evidence suggest that the neck injury on TBH may have rendered him unconscious or in a state of confusion. Apparently the neck injury could have caused a reduction in the level of oxygen reaching the brains of TBH. However the Coroner felt the evidence before him was not sufficient beyond reasonable doubt, that there exists homicide.

3. Verdict

In conclusion, the Coroner felt that the only decision that he can come to is a finding of an Open Verdict. An Open Verdict would mean that the cause of death cannot be determined in the Inquest.

(See alternative posting at www.loyarburok.com)

 *RWY is solicitors on record, holding a watching brief at the said Inquest for and on behalf of the Malaysian Bar

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.”

Innocent until Proven Guilty

In Malaysia, like all Commonwealth Countries, the Criminal Justice system is run on the premise that the Accused is Innocent Until Proven Guilty. The Onus is on the Prosecutor to prove the Guilt of the Accused.

And many would have heard the phrase that the Prosecutor must prove a person's guilt" beyond reasonable doubt". What this phrase "beyond reasonable doubt" basically means is that the Prosecutor must tender in Evidences that would strongly suggest that the Accused before the Court, is in fact the person guilty of the crime accused. If there is any reasonable doubt, the Court cannot convict the Accused.

The reason for this? Well, the Criminal Justice system is administered to not convict the innocent. As William Blackstone once said, "Better that ten guilty persons escape than that one innocent suffer".

This system ensures that the Police and Prosecutor will continue to work fairly and hard to catch the right person and charge the right person. If the standard to convict a person is low, then it may lead to a system where the Police or Prosecutor will do a flimsy job as it would be easy to convict a person.

LOYARBUROK : ISA Musical Chairs: High Court judgment in Azzahari & 7 others

BY JOHNSON LIM

We often hear that the draconian and anachronistic ISA is used by the government of the day as an oppressive tool to stifle peaceful and political dissent. More often than not, political activists/politicians and to some extent, journalists in the past decade have been detained under the ISA without trial.

However, the ISA was again used recently on 21 January 2010 – but this time rather than targeting political opponents, more than 50 people of various nationalities including students from local universities were arrested in a crackdown at Sungai Cincin, Gombak for allegedly participating in “unsanctioned” Islamic sermons/religious classes; and for allegedly having links with international terrorist organisations.

Despite letters sent by us (as solicitors representing the detainees) to the Inspector-General of Police and the Home Minister on 29 January 2010 to seek further information on the arrests and to request for access, the addressees failed to respond positively.

A writ of habeas corpus was subsequently filed on 4 February 2010, on behalf of the detainees, to secure the release of those still being detained and to prevent the deportation of those who were not Malaysians. On 5 February, we were informed that one of the foreigners had been deported back to his country of origin, while the remaining 6 had been released to the custody of the Immigration Department.

The application was heard by the High Court on 10 March 2010, before His Lordship Dato Hj Ghazali Bin Hj. Cha. On the very same day of the hearing, in an obvious attempt to frustrate legal process, we were informed that a Restriction Order has been issued against Azzahari, the Malaysian detainee.

In light of this, a preliminary objection to the writ was raised on the ground that the application is now academic as the detainees are no longer in the custody of the Police or Home Ministry.

In dismissing the application for writ of habeas corpus (and thus allowing the preliminary objection), the High Court held inter alia:-

1. On the issue of the application now being academic

Adalah undang-undang yang mantap bahawa sesuatu Permohonan untuk mendapatkan writ of habeas corpus hanya terpakai bila mana seseorang individu itu berada di dalam tahanan secara fizikal dengan tidak mengikut undang-undang; atau dengan lain perkataan “He must be in actual custody,” “restrictee” juga tidak berhak untuk memohon writ of habeas corpus. Rujuk kes ‘Kerajaan Malaysia & Ors v. Nasharuddin Nasir’ (2004) 1 CLJ 90 (F/Ct):

“In the result, Choor Singh J took the position that a writ of habeas corpus had to be addressed to the person or authority having actual physical custody of the person alleged to be detained illegally. That, in my view, represents a correct statement of law. In a situation where the court finds it impossible to issue the writ because the person or authority no longer had the custody of the detainee, it should not hear the application. Indeed, it has no jurisdiction to do so. This is precisely the position of the instant case. Here, the facts show that when the application came up for full argument before the court, the police no longer has custody of the respondent. …”

2. On the issue of public policy and public interest grounds

One of the issues submitted by us was whether the scope and purview of ISA was wide enough to cover alleged security threats outside Malaysia i.e. international security threats. It was submitted that the purpose of the ISA, via the speech of Tun Abdul Razak recorded in Hansard, limited the use of the ISA to internal threats:-

The Honorable Prime Minister and other Members of Government, including myself, have made it quite clear on a number of occasions that, because Emergency is to be declared at an end, the Government does not intend to relax its vigilance against the evil enemy who still remains as a threat on our border and who is now attempting by subversions to succeed where he has failed by force of arms. It has two main aims: firstly to counter subversion throughout the country and secondly, to enable the necessary measures to be taken on the border area to counter terrorism.

The High Court however held as follows:-

Mengenai isu kepentingan awam, saya percaya kepentingan awam akan lebih dipelihara dari segi keselamatan mereka sekiranya tindakan pencegahan yang cepat bagi menangani isu keganasan diambil, maka isu sama ada ISA terpakai hanya untuk keselamatan negara hendaklah ditafsirkan secara meluas, iaitu bagi menghalang kegiatan keganasan yang akan atau mungkin menular ke negara ini, apa yang berlaku di negara luar perlu dihalang penularannya ke negara ini, di dalam kes ini Pemohon-pemohon telah ditahan di dalam negara ini, dalam keadaan ISA adalah terpakai kepada Pemohon-Pemohon.

3. On the issue of the conduct of the Respondents in frustrating the legal process

Mengenai isu kedua sama ada Y.B. Menteri dan Responden bertindak secara melampau dengan niat bagi menggagalkan Permohonan Pemohon-Pemohon, saya percaya ini bukanlah menjadi isu berdasarkan kepada jumlah pemfailan affidavit-affidavit oleh Responden-Responden, dan tindakan Y.B. Menteri yang menandatangani perintah sekatan terhadap Pemohon Pertama baru semalam (10/3/2010), pada pendapat saya, tidak sekali-kali terjumlah kepada tindakan menghina Mahkamah. Saya faham dengan kesibukan Y.B. Menteri setiap hari dan tandatangan di saat akhir perintah sekatan itu pada pendapat saya dilakukan tanpa unsur-unsur mala fide.

An appeal was filed on 5 April 2010 against the decision and is now scheduled to be heard on 19 July 2010 by the Federal Court. Another habeas corpus appeal is scheduled to be heard together, that of actor Khaeryll Benjamin Ibrahim (popularly known as Benjy).

LB: The writer is the solicitor at Messrs Richard Wee & Yip handling the matter, and part of the team of counsel acting for the detainees.

*Original posting at www.loyarburok.com

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)

Video : Police & Your Rights Part 4

Video : Police & Your Rights Part 3

Video : Police & Your Rights Part 2

Video : Police & Your Rights Part 1

Recently, Malaysiakini TV and e-Lawyer.com.my invited our Richard Wee to speak about Police powers. Here is the Video:-

IT Law : Godfather of Spam in prison

"Godfather of Spam" goes to prison for four year

Alan Ralsky, the so-called "Godfather of spam" was yesterday sentenced by a federal judge in Detroit to spend the next 51 months of his life in prison for wire fraud, mail fraud, and violations of the CAN-SPAM act.

Not content simply to move boxes of pills or to sign people up for new mortgages, Ralsky's operation instead pulled in millions of dollars through "pump and dump" schemes of thinly traded stocks in companies you've never heard of. Millions of e-mails would announce some hot new "Internet IPO!!!!!" just about to drop, and—amazingly—some people would want in on the action. Since the stocks in question were low-volume "pink sheets" stocks, even low levels of activity could boost the stock price, at which point the owners would sell and forward tens of thousands of dollars from Hong Kong to the Standard Federal Bank in Troy, Michigan.

This might not sound like a good way to get rich, but the government's court documents showed just how lucrative the practice could be. Consider the list of following payments that arrived from Hong Kong in just one month, July 2005:

• July 5: $180,826.61
• July 11: $211,595.76
• July 14: $13,532
• July 22: $780,295.98
• July 26: $65,590.71
• July 27: $424,963.73
• July 27: $23,702

A scheme like this required a certain amount of sophistication, and Ralsky appears to have run it like a real business. He was the chief executive, and his son-in-law, Scott Bradley, was the chief financial officer. John Bown, CEO of network administration company GDC Layer One, was the "chief technology officer and network systems manager" for the spammers. William Neil served as the chief operating officer and registered many of the hundreds of bogus domain names used by the group.

The conspiracy was global. Although Ralsky and Bradley both lived in West Bloomfield, Michigan, members of their team operated from New York, Brazil, California, Hong Kong, and Dayton, Ohio, and included coders, a stockbroker, a Chinese CEO, and network admins.

Ralsky has been at his tricks for years, and eventually acquired a reputation as one of the world's top spammers. Court documents show that when the spammers recruited someone who claimed he could get 20 million e-mails a day into AOL and Hotmail, the man was awestruck to find out that he was joining Ralsky's operation. "King of spam wants to rent me," he wrote in an instant message. "Cool." (The man eventually made several hundred thousand dollars from his work for Ralsky.)

The Spamhaus description of Ralsky says that "he has grown from a small time operator, under the 'Additional Benefits' moniker, to one of the bigger spam houses on the Internet with a gang of fellow morally challenged types working with him to pump out every type of sleazy deal and scam offer into millions of internet users' mailboxes."

Ralsky wasn't always careful. He would recruit coders from sites like "special ham" (spam) using the "amr777" handle, and his team tried to cloak its e-mail discussions about proxies by using the fairly transparent replacement "p's," "peas," "proximate," and "p s."

Ralsky and company earned more than $2.6 million between May 1 and December 1, 2005 alone, but the feds were closing in. A three-year investigation by the FBI, the US Postal Inspection Service, and the Internal Revenue Service (with a little help from the SEC) untangled the conspiracy. In 2007, the government moved to indict the entire conspiracy.

Yesterday, the lead defendants were finally sentenced after pleading guilty in June 2009. Ralsky and his son-in-law got 51 months and 40 months in jail, respectively, and had to forfeit the cash associated with the spamming scheme. They will be on probation after their release. How Wai John Hui, the Chinese/Canadian CEO who helped arrange the stocks for use in the scheme, also got 51 months. John Bown got 32 months for setting up a botnet used to send the e-mails. A handful of others will be sentenced today.

(to see original article, please click the title above)

Will Anwar be ambushed by trial? (The Nutgraph)

Will Anwar be ambushed by trial?

DATUK Seri Anwar Ibrahim has failed in his bid, at the Court of Appeal, to obtain evidence from the public prosecutor about his alleged act of sodomy with a young former aide. Layperson reactions have naturally been cynical, dismissing the judgment as political in nature.

Indeed, the Court of Appeal's interpretation of Section 51A of the Criminal Procedure Code (CPC), by which it made its judgment, is worrisome from a justice perspective. The judgment nullifies the efforts of the parliamentary select committee which proposed the CPC amendments in 2006 requiring pre-trial disclosure by the prosecution to the defence. The legislature's intention was to "prevent trial by ambush" but the Court of Appeal's judgment in Anwar's sodomy case seems to overturn that principle.

But is Section 51A as clear cut as it is meant to be? And is splitting hairs over its meaning scuppering Anwar's chances for a fair trial?

Meaning of words

Section 51A was introduced to widen the scope of evidence that the defence could obtain from the prosecution. At first reading, it comes across as a clear obligation for the prosecution to make available to the defence evidence that it intends to use during trial.

Section 51A . Delivery of certain documents The prosecution shall before the commencement of the trial deliver to the accused the following documents: A copy of the information made under section 107 relating to the commission of the offence to which the accused is charged, if any; A copy of any document which would be tendered as part of the evidence for the prosecution; and A written statement of facts favourable to the defence of the accused signed under the hand of the Public Prosecutor or any person conducting the prosecution.

The meaning of the words "shall" and "any document" is clear, says member of the Bar Council's criminal law committee, Datuk Baljit Singh Sidhu, who is also the author of Criminal Litigation Process.

"The intention of 51A is to put both parties in a trial on equal footing in the interest of justice. That was parliament's intent. The word 'shall' should be taken to mean 'must'.

Baljit Singh (pic courtesy of

Baljit Singh)

"If the court does not interpret 'shall' as being mandatory, then there is no point to the amendment," Baljit, who is also Gerakan Federal Territory legal adviser, tells The Nut Graph.

"Any document" should also be taken to mean any type of evidence, Baljit adds. It is all the more important when it involves evidence like DNA, for which scientific expertise and time are required if defence lawyers are to analyse it.

However, the Court of Appeal in Anwar's sodomy case decided there were "limits" as to the kind of evidence the prosecution could be asked to produce before a trial. Hence, it overturned the High Court's decision ordering the prosecution to hand over evidence, which included video footage, medical reports, doctors' notes, and witness statements of alleged victim Mohd Saiful Bukhari Azlan, and others. The bench, in rejecting Anwar's cross-appeal for DNA specimens held by the prosecution, also said that the evidence requested did not fall under the category of evidence in 51A.

"The amendment [to the CPC] is as good as non-existent," SN Nair, one of Anwar's lawyers, tells The Nut Graph.

Merely procedure?

The Court of Appeal's written judgment is not out yet, so Anwar's lawyers are still unclear about the basis of the ruling although they have filed two notices of appeal at the Federal Court Registry.

But it does appear that the court reverted to the law prior to the introduction of 51A on the basis of the prosecution's arguments. "The prosecution went back to pre-amendment law arguing that they had the discretion as to what evidence to give and to decide which facts were favourable to the accused," Nair says in a phone interview.

Clause (c) of 51A(1) requires the prosecution to provide a written statement of facts that are favourable to the defence. According to Nair, evidence that is favourable to the accused can only be found in witnesses' statements.

"In witnesses' statements, there could be evidence that potentially saves the accused. Sharing of these facts means the defence gets to decide what is favourable in the interest of fair trial," Nair says.

The High Court granted access to these statements to Anwar's defence team but it was revoked by the appellate court.

Some prosecutors also argue that 51A is a "procedural" amendment and not a matter of law, says criminal lawyer Richard Wee.

Richard Wee (pic courtesy of

Richard Wee)

"While by and large the courts mostly do tell off the prosecution, there are some who buy that argument. They take the view that if a prosecutor fails to adhere to 51A, it's merely a procedural error," Wee says in a phone interview.

Such an interpretation means the prosecution's case can avoid an inconclusive end. If the court were to view 51A as a law rather than procedure, cases could end up much like how blogger Raja Petra Kamarudin was discharged but not acquitted for sedition, simply because police could not find him.

"Similarly," says Wee, "if evidence is not provided by the prosecution under 51A, the defence should be accorded the right to seek for a discharge not amounting to acquittal."

Wiggle room

The repercussions of procedural rather than legalistic interpretation of the law are alarming. Besides placing prosecution and defence on unequal footing, does it also mean law enforcement need not keep to high standards to ensure thorough and fair investigative work?

Shoddy police work is unfortunately a reality, but that's where the law could have been drafted more precisely to plug the gaps. Wee feels that 51A was not drafted specifically enough to take into account the "practical realities of what happens in court".

Some realities include: The prosecution denies before trial to having found any facts favourable to the accused. Or they may produce other evidence in mid-trial instead of evidence disclosed pre-trial. They may argue that new evidence is required in response to the defence's arguments.

Wee feels the wording about making available documents "which would be tendered as part of evidence" limits the kind of evidence that can be requested for and gives room to the prosecution to wiggle out of it.

"It would have been better to say 'any documents related' to the trial, which would be specific but in a wider sense, covers all other evidence that could be raised during trial," he says.

The obvious conclusion?

Yet, the fact is, there are judges who uphold 51A and ensure it is adhered to, notes Baljit.

"Having case management before trial for evidence to be given to the defence is normal practice and courts will set a date for mention to ensure that all this is complied with," he says.

So if other courts are upholding the law, what else are people to make of how Anwar's appeal was handled other than to think that the judiciary is not free from political interference?