A Student's Guide to Malaysian Legal System (By Foong Cheng Leong)

Taken with permission from www.xes.cx, a blog by Foong Cheng Leong; an Advocate & Solicitor in Malaysia.

The link to the article below is here:-

http://xes.cx/?p=4450

Recently, I received an email from one Yii Zhu, a Law / Commerce student from Australia asking me for guidance about the legal profession in Malaysia. Yii Zhu wants to return home to practice but do not know where to start. After advising him, I thought it would be useful to share this with other law students or those who wants to practice law in Malaysia.

My legal life started off as an attachment student in a small firm in Kuala Lumpur. After my attachment, I joined a large firm and stayed on until now. I currently a Senior Associate in one of the largest law firms in Malaysia.

When a student is qualified to start his chambering, he has 3 choices namely a large, medium or small law firm. There is no exact definition on amounts to a large, medium or small law firm. But based on my own view, a large firm has around 20 lawyers, medium has less than 20 lawyers whereas small law firm has 5 or less lawyers.

The allowance a student gets would range from RM800 to RM2500. A large firm generally pays higher allowance.

Generally, large and medium firms (let’s call them larger firm) can expose a student to various types of work. Most of the larger firms have separate departments where a student will be expose to matters relating to corporate, conveyancing, litigation, intellectual property, employment etc. Some larger firms have a rotation system where a student will be rotated to different departments. Also, larger firms pay more. When I was chambering, my allowance was RM1500. My friends in the small firms were getting RM800 – RM1000.

A small firm may not expose a student to many types of work. However, some small firms are boutique firms which specialize in certain types of law. For example, there are some law firms in Kuala Lumpur who specialise in Intellectual Property. They are very reputable and highly recognised in the Intellectual Property industry. They also have the best clients and the best work. With this, joining a smaller firm does not mean a student will learn less things.

Also, in a small firm, a student may be able to handle files on their own (most of the time under a partner’s supervision). A student may also get to shadow the partner.

In larger firms, it will take time for a student to be able to handle files of their own. A student usually starts off with menial work (e.g research, translation). Substantive work will probably come at a later stage. A student in a large firm may find themselves doing less important work than their counterparts in a small firm.

Also, in a smaller firm, a student may be given more opportunity. When I was an attachment student in a small firm, the bosses decided to send me to Japan for an assignment. This may not happen if I had been attached in a large firm.

My awesome free trip to Tokyooooo

When I wanted to look for a place to chamber, I couldn’t decide whether to join a larger firm or go back to the small firm to chamber. I emailed a family friend and asked him where to go.

He advised me to join a larger firm to take advantage of the networking opportunities. Initially I did not understand what he meant by “networking opportunities” but after a few years, I began to understand.

In larger firm, a student will get to know many people. In the legal profession and as a basic business principle, to make money, it is not “what you know”, it is “who you know”. Of course, legal knowledge is very important but if you do not have the necessary connections, the legal knowledge will be not utilized. There will be no food on your table if you do not have the necessary connection to bring in business.

A student’s friends and colleagues may eventually become legal advisers in companies, businessmen, directors and even politicians. They may become your source of referral for businesses in the future.

But this doesn’t mean that a small firm would lose out in business. There are of course many ways to get business. For example, give talks, join associations etc and recently, through social media networking.

If a student finds that chambering in a larger firm / small firm is not his cup of tea, he may always switch.

Once a student finishes chambering, he may or may not be retained in his firm as a legal assistant/associate (different title but same position). A first-year legal assistant/associate’s pay in Kuala Lumpur firms may range from RM2000 to RM4000.

Lastly, if you aim to have lifetime career as a lawyer, you should always aim for partnership (in a larger firm) or alternatively, set up your own firm (as a sole proprietor or a partnership). A partnership in a larger firm may take a longer time as most of the time, there are many people ahead of you. Even if you are made partner, it will take time to be an equity partner (a partner with shares in a firm thus gets a share of the profits). Most of the time, young partners in a larger firm are only salaried partners. It will take time to be an equity partner. However, such situation in a small firm may vary. Some small firms are known not to take new partners.

I hope the above is of assistance. If you have any comments that are helpful, please share.

By Foong Cheng Leong

RWY in the News : Lawyers rap Dr M for questioning court power (Malaysian Insider)

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Lawyers rap Dr M for questioning court power

By Yow Hong Chieh and Boo Su-Lyn

KUALA LUMPUR, April 2 — Lawyers today weighed in on Tun Dr Mahathir Mohamad’s latest blog post, in which he questioned the court’s power to issue contempt citations.

The former prime minister was referring to the contempt charges levelled against his ex-political secretary, Matthias Chang.

Chang was charged with “contempt in the face of court” on March 25, after he refused to apologise for arguing with the judge and a lawyer during his defamation suit against American Express (Malaysia) Sdn Bhd.

He was sentenced to a month in jail after refusing to pay the RM20,000 fine.

Murelidaran Navaratnam, Penang Bar chairman, said it was well within the rights of the judge to issue such citations.

“The power to charge someone with contempt (of court) has been there since time immemorial,” he said, citing the British roots of Malaysia’s legal system.

“The judge has the power to charge any person with contempt. Whether or not the judge should or should not do that is another question.”

Lim Chee Wee, vice-president of the Malaysian Bar, explained that Article 126 of the Federal Constitution vested power in the court to punish acts of contempt.

Nevertheless, Lim assured that the law also provided safeguards for people to defend themselves against contempt citations, including the right to appeal a conviction.

He questioned why Chang did not seek an appeal, but cautioned against speculation as there were conflicting accounts of what transpired that day.

In a similar vein, lawyer Malik Imtiaz Sarwar said it was premature for anyone to claim that there was a miscarriage of justice in this case.

“There are many different accounts (of what happened),” he said. “We have not heard the version from the judge yet.”

Malik Imtiaz, who is also president of Hakam, added: “Those who seek to criticise the judge should do so with the appropriate deference and sincerity.”

“(At the same time) the judiciary should not consider itself beyond criticism. Mutual respect between the Bench and the Bar is essential for the system of justice to work.”

Legal practitioner Phillip Koh said judges should exercise restraint when it comes to contempt of court but also stressed that witnesses should behave with “measured proportionality.”

He pointed out that Chang was in court not as a lawyer but as a witness, and that lawyers do not deserve special courtesy when it comes to contempt.

Richard Wee, another lawyer, while declining to comment specifically about Chang’s case, said he found contempt of court “slightly one-sided” because the judge and prosecutor was the same person.

He did, however, take the opportunity to point out the irony of Dr Mahathir’s post.

”From Mahathir’s point, I find it amusing that this is the very person who created this judicial system. He created the system and (now) he is complaining about it.”

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.