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.”

Bar Council 2011 election

Our Richard Wee was elected to Bar council, in the recent Bar Council 2011 election. We thank our friends for the support.

1 Hendon Mohamed 1803 2 Haji Sulaiman Abdullah 1783 3 Christopher Leong 1381 4 George Varughese 1365 5 Datuk Kuthubul Zaman Bukhari 1324 6 Andrew Khoo Chin Hock 1265 7 Low Beng Choo 1237 8 Steven Thiru 1225 9 Dato' Yasmeen Shariff 1196 10 Syamsuriatina bt Ishak (Tina) 1087 11 Richard Wee Thiam Seng 1052 12 Anand Ponnudurai 1042

Will - Documents living beyond you

Wills are unique. These documents only come alive when the maker of the Will has passed away. Hence these documents lives beyond you.

Whatever drafted on the Will has to be accurate. Once the maker of the Will has passed away, the Executor of the Will would have to decipher what the maker wishes. So, the Will has to be drafted in clear and understandable language. Any ambiguity may lead to unwanted consequences (for example; an ambiguous clause may be declared too vague, and the asset which you wish to donate to a specific beneficiary may not end up with that beneficiary after all).

It is strongly advised that you engage a Solicitor to draft a Will. Inform the Solicitor of all your tangible assets. Inform the Solicitor which asset shall go to who, upon your demise. Be clear with the Solicitor.

It is perhaps best not to have an asset divided to too many people (for example Landed properties should not be divided to too many people). One must also consider if the one asset is divided to too many people, when this beneficiary themselves pass away (and if they pass away without a Will) then your legacy would be in conflict and sometimes in chaos.

In some Wills, the maker gives a House to 5 children. When the maker dies, all 5 Children will be registered as co-owner. But when one of the child themselves passes away AND pass away without a Will; that is where your legacy faces problems. The 3rd generation will face much issues.

Anyway, this is merely an example. Be sure you think beyond the coming generation when deciding who benefits from your Will. It would be beneficial if you ponder of the 3rd generation too.