In Defence of Alleged Criminal

“To the criminal defense lawyers of this nation: who fearlessly tread into hostile courtrooms, armed only with their briefcases and their native wit; who turn the Bill of Rights from an abstraction into a reality; who protect the rights and privileges that keep us a free people; who fearlessly fight against a federal government that has become the enemy of individual liberty; and who valiantly attempt to stem the steady erosion of our civil rights by a growing number of uncaring judges” -Roy Black- ROLE OF A DEFENCE LAWYER When a lawyer defends a client, those who are unfamiliar with the novel role of the lawyer will say that the lawyer was not doing justice to the victim and his family by defending him. Some may go round to say that the lawyer was after money only and don’t care about the sufferings of the victim and his family will undergo if the accused is not convicted. Flipping the other side of the coin, how many realize that there were many that had been convicted and sentenced to long jail terms or face death penalties due to wrong convictions caused by wrong assessment of evidence by judges? In a Malaysian […] read more

Power of PP To Prosecute and How To Avoid Being Prosecuted!

DECISION TO PROSECUTE The public prosecutor under Article 145 of the Federal Constitution has vast discretionary power to institute, conduct and to discontinue a criminal prosecution. By such vast power, the public prosecutor has a duty to weigh carefully and to consider all available evidence and the pros and cons of a case to be prosecuted. Prosecutions that are not well founded in law and in fact, or which do not serve the public interest may not be brought to court. On the other hand, the failure to effectively prosecute a meritorious case can also erode public confidence on the public prosecutor. Considerable care therefore, must be taken to ensure that the best decision should be made, but prosecutorial discretion cannot and should not be reduced to something like a mathematical formula where there is a clear and obvious answer. The whole policy in public prosecution should be to ensure objectively a fair prosecution, not simply to prosecute the guilty and to avoid prosecuting the innocent, but, rather that prosecutions should be initiated only in cases in which there is sufficient evidence and where prosecution is justified in the public interest. In order to come to a decision, the public […] read more

LEGALITY OF BARRICADES BARING ENTRY INTO DATARAN MERDEKA

We think the recent Phohibitory Order obtained by the Bandaraya against the organizer and participants of Bersih 3.0 is illegal, or at least improper for four reasons: (1) Procedure for Obtaining Prohibitory Order is Incorrect Was the procedure taken by the Bandaraya for a court order to be issued to bar the Bersih 3.0 participants or by members of the public to enter Dataran Merdeka in a recent assembly correct and proper in law by Ex-Parte Application to the High Court? If it was true that the Prohibitory Order was obtained as a result of an Ex-Parte Summons to bar Bersih 3.0 participants and or members of the public to enter Dataran Merdeka during the Bersih 3.0 organized assembly, then, it would be arguable that the procedure taken was improper and unjustified, especially, when the Bandaraya had notice or knew that an assembly had been organized by Bersih 3.0 and the organizers are known to the Bandaraya, then, there is no reason that the application was not by Inter-Parte Summons. (2) Deprived of Right To Be Heard By going Ex-Parte, if this was done, in the circumstances had deprived the right of Bersih 3.0 organisers the right to be heard, […] read more

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