INTERNET USERS, BEWARE!

By Voon Lee Shan: GUILTY BEFORE FOUND GUILTY? The amendment of section 114A of the Evidence Act 1950 that shifts the burden of proof to the accused person for offences in connection with the internet is contrary to the principle of justice. The use of internet to disseminate information had caused easy access to information besides as a medium used by many irresponsible users to disseminate defamatory, seditious, obscene and other negative materials. Of course one should be against these, but, what will happen if some used an illiterate person to open an account in the internet, the illiterate person who doesn’t know how to secure his wifi account will surely be in deep trouble with the law. If that happens and legislations shift the burden of proof to him by way of presumptions in the law, how the hell can that person be able to rebut the presumption? Is this fair? In criminal trials it is not only a universal concept, but, also is a human right that a person accused of a crime is presumed to be innocent until proven guilty. There is no burden on the accused person to disprove the allegations against him throughout the whole […] read more

What You Should Know in Remand Proceedings

An Article by Nicole Yeoh Have you read on our previous post on “ARE YOU BEING ARRESTED?” If you do, you will be able to get a clearer picture on today’s topic! Police can arrest either with warrant or without warrant. An arrest without a warrant can be effected on a person when a seizable offence has been committed by him or that the person has been concerned in a seizable offence. The arrest must be based on reasonable complaint or credible information or on reasonable suspicion. What amounts to a reasonable complaint or credible information or reasonable suspicion depends of facts of each case. After being arrested, the police officer may wish to remand you for further investigation. Under Section 28 of the Criminal Procedure Code (hereafter “CPC”), a person put under arrest must without any unnecessary delay be brought before a Magistrate. You may be detained by the police officer pending being brought to see a magistrate but within 24 hours, excluding the period of journey from the place of arrest to the magistrate. Section 28A CPC is a newly inserted provision to allow you, soon after arrest, to contact your lawyer to defend you and a relative or friend to […] read more

Defective Charge as One of the Routes to Escape Conviction

A charge is simply an allegation that a person has committed a specific crime. When a person who is alleged to have committed a crime is brought before the court, a charge has to be read to him and he shall be asked to plead to the charge [Section 173(a) of Criminal Procedure Code]. This person also known as an accused in this circumstance will either plead guilty or plead not guilty to the charge [Section 173 (b) of Criminal Procedure Code]. The charge read to the accused is framed by the prosecution before it is read to the accused. In drafting the charge, the prosecution is aided and guided by the form and rules of drafting a charge under Chapter XVIII of Criminal Procedure Code. This chapter of Criminal Procedure Code governs the form and particulars that shall be included in a charge against the accused. Among other things that are essential in a charge is the offence and section of law with which the accused is charged, the particulars such as time and place the offence is alleged to be committed, and the manner of the offence is alleged to have committed (Section 152 – 154 of Criminal […] read more

ARE YOU BEING ARRESTED?

Law on arrest is complex and technical and many may not understand when he is under arrest and when under arrest, what should he do next and also what the arresting officer should do during and after arrest made. It is an area of law where liberty and live of persons are fundamental and are protected under Article 5(1) of the Federal Constitution and also under relevant laws. When stopped by a police officer in a public place or while driving and you are at that moment prevented to go anywhere, the first question that you need to ask is “Am I under arrest?” A police officer has no power simply to stop and detain a person simply just to ask a question. If an officer detains a person who walks away after refusing to answer questions then it is likely this will amount to false imprisonment if the detention is based on nothing more than this – Samuels v. Commissioner of Police of the Metropolis (1999) 3 March, unreported. You may not be aware that at that moment you were already been put under arrest by the police officer arresting you. If doubtful, the best thing is to ask […] read more

Human Rights And Presumptions As An Aid In Criminal Prosecutions

Human Rights And Presumptions As An Aid In Criminal Prosecutions Human rights are commonly understood as an inalienable fundamental right to which a person is inherently entitled because he or she is a human being. The concept of human right has universal application and human rights come with them natural rights or as a legal right in both, but, what is meant by “right” has always been controversial and subject to debate. Such “right” includes the right not to be tortured, the right to remain silent, the right to a fair trial, the right to own property, the right to an adequate standard of living and the right of equal protection and equal treatment and equality before the law. The concept of human rights also came with it the right to be presumed innocence until proven guilty, by a court of competent jurisdiction to try the case. Such a right of being presumed innocence is also a legal right under the law. In a trial the prosecution has the legal duty and burden to prove the case against the accused person and the standard of proof is proof beyond reasonable doubt. When charged in court, as said earlier, human rights demand that all accused persons should be given equal protection […] read more

Death Penalty under the Dangerous Drugs Act 1952

In most countries, drugs offences are not considered as sufficiently serious to warrant the imposition of the death penalty. However, in this country, drug trafficking carries the only sentence available under the law, that is, the mandatory death penalty. It gives not room for judges to apply any discretion in the case. The difficulty in defending drugs trafficking cases is caused by a number of crushing presumptions found in section 37 of the Act. For example, a person in the care or management of a premise shall be deemed to be the occupier of the premise and when dangerous drugs exceeding a certain minimum amount are found in the said premise, the occupier found in the premise shall be presumed to be trafficking in dangerous drugs. In drugs trafficking cases, the big players involved in the supply chain most often than not were unknown and not caught, but, those peddling with the drugs in the streets usually got caught. Many were innocent carriers but were sentenced to death with the help of the presumptions clauses in the Act. In drugs cases, one should not discount that there could be people being wrongly convicted caused by undetected lies of testimonies of […] read more