P R O J E C T P A P E R

0 N
THE RIGHTS OP AN ACCUSED PERSON IN MALAYSIA
This Project Paper is presented to
the School of Administration & Law,
MARA INSTITUTE OF TECHNOLOGY, in
partial compliance with the requirements
for the DIPLOMA IN LAW.
BY
HAJI MOHD NASSER HAJI MOHD NOOR
MARA INSTITUTE OP TECHNOLOGY
SHAH ALAM SELANGOR
MARA INSTITUTE OP TECHNOLOGY
SHAH ALAM SELANGOR
" IN PARTIAL COMPLIANCE WITH THE REQUIREMENTS
FOR THE DIPLOMA IN LAW "
APPROVED:
( SUPERVISOR : MR. MftNUEL,VALENTINE )
EN. IBRAHIM LAMAT
(Head of School - Department of Administration & Law
MARA ISNTITUTE OF TECHNOLOGY
SHAH.\ ALAM SELANGOR, MALAYSIA.
BY
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C O N S E N T S
PAGE
Prefacfe i
Acknowledgement ii
Table Of Cases Cited iii
Table of Statutes vi
Abbreviations vii
C H A P T E R 1
INTRODUCTORY
I. Introduction . 1-3
/K
6
The Consept of Right 4-6
B'* The Accused 7
Co The Accused and The Fundamental Liberties . . 8-10
C H A P T E R II
II. PRE-TRIAL RIGHTS
A. Rights Upon Arrest 11-15
B Rights of Access T
0
.Counsel 16-23
Is There a Right to Counsel at Identification
Padare ? * 24-25
C H A P T E R III
III. RIGHTS IN THE COURT OF TRIAL
A. Rights to be Released on Bail 26-30
B. Rights on Pleading Guilty 31-32
0 Rights to Give Evidence 33
D. Rights to Copies of Police Statements . . . . 34-38
Rights of Address 39
p. Rights to a Preliminary Inquiry 40-42
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VX Rights to Make an Unsworn Statement . . . . . . 4 3 - 4 5
H . Rights to Copies of Notes of Proceedings . . . . 46
I. . Rights of Unrepresented Accused . . . . . . . 4 7 - 5 4
J). Rights to Jury Trials 55-57
C H A P T E R IV
IV. DOUBLE JEOPARDY
Meaning of Double Jeopardy . . . . . . . . . 5 8
B . Constitutional Provision . . . . . . . . . 5 8 - 5 9
^jt* Provision explained . . . . . . . . . . . 5 9 - 6 0
D;. Same Offence 60-61
E. Appeal by the Accused carries with it a waiver
of Jeopardy 61 ',:
Remanding case for further proceedings does not
create Jeopardy . . . . . . . 6 1 - 6 2
IV (W THE RIGHT TO SILENCE 63-67
C H A P T E R V
V. EMERGENCY AND SECURITY CASES 68-69
C H A P T E R VI
VI. RIGHTS OF APPEAL 70 - 76
C H A P T E R VII
VII. THE ACCUSED RIGHTS TO SUE HIS ADVOCATE AND
SOLICITOR FOR PROFESSIONAL NEGLIGENCE . ... . . . 77-78
C H A P T E R VIII
VIII. CONCLUSION 79-80
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P R E F A C E
The object of this project is to set forth the various rights
of an accused person in Malaysia now in force at the Pre-Trial,
Trial and
A
ppeal Stages, to stress on the defects, to explain
on their effect and operation by reference, where necessary to
decided cases and, wherever possible, to suggest reforms or
amendments to the existing law and practice relating thereto.
Research for this project paper was conducted at several
Libraries namely Perpustakaan Tun Abdul Razak at Mara Institute
of Technology, The
B
ritish Council Library, Perpustakaan
Penyelidikan Tun Fuan Stephen, Yayasan Sabah, Kota Kinabalu
and the Kota Kinabalu
s
tate Library.
The writer however, does not profess to be an exhaustive
catalogue of the rights discussed in the paper, nor, in so far
as it does deal with them, does it profess to do so fully.
Moreover, in some cases, as for instance the section dealing
with the right of Appeal and the Doctrine of Double
J
eopardy,
it has not been the writer's intention to pijovide solutions
to problems, but to provoke thought and to provide material
o
from which possible solutions to these problems may be arrived at.
M . l . T .
S H A H A L A M
1 9 8 5
H A J I M O H D N A S E R
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A C K N O W L E D G E M E N T
This project paper would not have been successful if not
for the help of my law lectunars especially my Supervisor
Mr. Manuel Valentine. I also owe a great debt to Mr. Hardial
Singh, friends and collegues in the School of Administration
& Law with whom I have discussed many problems and who have
given up time to shar*e their views on the subject matter.
I am extremely grateful for their criticisms and suggestions
and they have saved me from many errors*
I should also like to place on record my thanks and
appreciation to my beloved friend Miss Norsham Ishak
for the help, courtesy and forbearance that she has
invariably extended to me.
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TABLE OF CASES CITED
A
Abdul Rahman v. Tanjo Koh (1968) MLJ 205
Anthony Gomez v. Ketua Polis Daerah,
Kuantan (1977) 2 M.L.J. 24
B
Bal Krisha v. Emperor A.I.R. (1931)
Lahore 99
Brindley and Long (1971 2 ALL E.R. 698
C
Callis v. Gunn (1964) I Q.B. 49
Chan Sin v. P.P. (1949) M.L.J. 107
Che Su Binti Daud V. P.P. (1978) 2M.L.J.162
Cheng Ah Sang v. D.P.P. (1948)M.L.J. 82
Chow Kwan v. P.P. (1934) M.L.J. 164
Christie v. Leachinskey (1947)A.C. 573
Chung *ah Hin v. P.P. (1948-49)M.L.J. S
U
pp,139
Chye Ah San v. P.P. (1954)M.L.J. 217 at221
Connelly v. D.P.P. (1964)A.C. 1324
D
Dason Gaban v. Zulkifli b Majun (1982) 1
M.L.J. 315
D.P.P. v. Ping Lim (1975) 3 An E.R. 175
E
Ex-Parte Lange, 18 Wall (U.S.) 163,211.ed 872
F
Fletcher v. Jubb, Booth and Haliwell
(1920) I K.B. 275 at 280
Fong Hon Siun v. P.P. (1950)M.L.J. 293
G
Goh Yin Guan v. P.P. (1967) M.L.J. 113 at 114
Godefrey v. Dalton (1830) 6 Bing 460 at 467
H
Hall v. R (55 C
r
. App, R, 108, 112
Halsams's Sise (1925) 19Qr. A
p p
. R 59
Hashim B. Saud v. Y
a
haya B. Hashim & Others
(1977)2M.L.J. 116
Hedley Byrne Ltd. v Heller & Partners
(1963) 2 An E* 575
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I
Ip Ying Kah v. P.P. (1958) M.L.J. 34
J
Jamali B. Adnan v. P.P. Criminal Appeal No. 52
1984
K
Khoo ^iew Bee & Another v. P.P (1979) 2M.L.J.49
Koh Mui Keow v. Reg (1952) M.L.J. 214
L
Lee Kong Yin v. P.P.(1970) 2M.L.J. 205 at 206
Lee Lian v. P.P. (1956) M.L.J. 191
Liew Sang Fatt v. P.P.(1948) M.L.J. 83
Lim Hong Yap v. P.P. (1978) I M.L.J. 154
M
Michael B
e n
ak Pinggi v. P.P. (1979)2M.L.J.65
Miranda v. Kho Yew Boon (1968) M.L.J. 161
Mohd Salleh v. P.P. (1969) I M.L.J. 104
Moti Bhai v. The State A.I.R. (1954) Raj. 241
ManiptJr Administration v. Biro Si
n g n
(1965)
A.I.R./SC 87
N
Narayara Swamy v. Emperor A*IR. P.C. 47
Ng Hoi Qieu & A
n o r
v. P.P.(1968)1 M.L.J.53
0
Ooi Ah Phua v. The Officer In Charge of
Criminal Investigation
K
edah/Perlis (1975)
I M.L.J. 93
P
P.P. v.
F
an Yew T
e n
g (1973) 2 M.L.J. 1 P.C.
P.P. H. Chamras Tasaso (1975) 2 M.L.J.44
Parnaby v. P.P. (1953) M.L.J. 163
P.P. v. ^ai Kim Hon & Others Fed. Teritorry
Criminal Trial No, 1 of 1978
P.P. v. Yuvaraj (1969) 2 M.L.J. 89 at 92
R
R
amamoorthy v. P.P. 1948) M.L.J. 43
Regina v. Chan Choon
w
ong (1956) M.L.J. 81
Re Kwan Wan Yip & Anor (1954) N.L.J. 146
Re Llewlyn Evans & Syndar Singh v. Emperor
Robertson v. Mach Donagh 14
c
ox 469
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R PAGE
Rondel v. Worsley (1969) I A*C 191 78
R v. Golathan (1955) 84 L.J.K.B. 758 C C A . 32
R v. Inglesan (1915) I .K.B. 512 C C A 32
R v. Richardson (1971) 2 An E'R. 773 36
R v. Westuell (1976) 2 An E.R. 812 38
B v. Givindasany A
ru
mugam
(
152) 18 MU 41
R v. Rhodes (1899) 1 Q.B. 770 43
R v. Morley (1966) S
r
. L. Rev. 352 43
R v. Kupferberg (1918) 13 C
r
. A.R. 166 at 168 60
R v. Buchan (1964) I W.L.R. 305 25
R v Lamsatef (1977) 1 An E'R. 835 19
R v. Osbourned & Virtue (1973) 1 An E.R. 649 29
R v Ooi Ah Kow (1952) M.L.J. 95 27
S
Sau S
0 0
Kim V. P.P. (1975) 2 M.L.J. 134 32, 60
Sim Kee Tang v. Rex (1948-49) M.L.J, supp 151 10
Sudha Sindhu D
e
y v. Emperor AIR (135) Cal 101 20
Shaari v. P.P. (1963) M.L.J. 53
State v. ^arnes 29 N.H., 164. 450 N.W 61
State of Bombay v. S.L. Apte & Another
(1961) AIR/SC 578 61
U
U.S. v Wade (1967) 388 U.S. 218,235,236
W
Waugh v. R (1950) A.C 203 43
Wong Seng v. P.P.(1959)M.LJ. 20 31
Y
Yanasegaran and others v. P.P. (1978) 1 M.L.J. 269 .... 28
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TABLE OF STATUTES
The Criminal Procedure Code ( F.M.S. Cap. 6)
Evidence Act 1950 (Act 56)
Penal Code ( F.M.S. Cap. 45 )
Federal Cosntitution
Indian Code of Criminal Procedure, 1973
Subordinate Courts Act, 1948 ( Act 92)
Essential (Security Cases ) Regulations, 1975
Dangerous Drugs Ordinance, 1952
Firearms (Increased Penalties) Act, 1971
Courts of Judicature Act, 1964 ( Revised 1972) Act 91
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ABBREVIATIONS
M.L.J. Malayan Law Journal
ALL E.R ALL England Report
C.L.J. Current Law Journal
C.L.R. Criminal Law Review
A.I.R ALL India Report
A.C. Appeal Cases
Q.B. Queens Bench
A.L.J Australian Law Journal
H.L. ........................... House of Lords
J.M.C.L. Journal of Malaysian Comparative
Law
W.L.R. Weekly Law Report
M.L.R Modern Law Review
Mai. L.R Malayan Law Review
Ch. Chancery
N.L.J New Law Journal
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C H A P T E R I
I. INTRODUCTION
1. Generally
In presenting this project paper on the "RIGHTS OF AN
ACCUSED PERSON IN MALAYSIA", the writer has mainly relied on
the works of eminent jurists and publicists whose knowledge
in the broad science of law has been bequeathed to us, as it
were, to serve as our guide and beacon light in our pursuit to
promote more profound human relations as we have heretofore.
With all due respect for those that are considered authorities
in the field of jurisprudence, the writer, therefore, is presen-
ting this amateurish work without claim neither a pretense to
a claim of exclusive originality. On points that he may attempt
to give his own opinion, he humbly submits the same to the legal
discretion and scrutiny of those that may have the inclination,
nay, curiousity, of thumbing the pages of this work, whether for
criticism or for comment.
As stated elsewhere in this paper, man is a social and
moral being. He is susceptible of rights and obligations, and
is, therefore, an apt subject of the moral, social, cultural
and physical laws. He is a fundamental element of society. As
such fundamental element, however, he has his human shortcomings,
iniquities and imperfections, for these are inherent in man.
Precisely, human laws are so devised to make an adjustable element
of harmonious moral and social existence.
By his unlawful acts, man disrupts the good order and peace
of the community to which he belongs. In some extreme cases, by
willfully and repeatedly violating the very laws that are intended
to harmonize human relations in a given society, man has relegated
himself to the category of a human derelict. He has thereby become
a burden of society. Consequently, in order to preserve the normal
peace and good order of society which may have been outraged by the
wrongdoer, he is then required, in pursuance to the penal laws, to
atone for his wrongs, both intentional and unintentional, by the
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imposition of some lawful restraints on the person of cuch
offender. The existence of curts of justice and penal ins-
titutions is then justified. Public interests are better sub-
served by temporarily segregating particular offenders of the
public peace for the periods established by law than by allowing
them to remain loose and astray without being punished for the
wrongs they may have committed.
Time is a great healer of human ills, especially those
caused by unbridled license or those committed in a fit of un-
controlled temper. For a man who is not inherently criminal in
his nature but who may have committed any wrong under circumstances
beyond his control may, during the whole time that he is limited
in the confines of the penal institution, reform after realising
the particular wrong he has done. With a remorseful conscience,
such offender may atone for the wrongdoings he committed, and not
being inherently criminal in himself. He thereby corrects himself
while in the custody of the law. Yet in all these instances, this
particular offender still remains an element of organized society.
His participation in human relations continues to be until hid death,
for which reason, therefore, laws have been adopted to salvage
these human derelicts that may have fallen themselves to the deep
abyss of crimes or to a state or condition of wrong.
Fundamentally, the purpose of penal laws with respect to
particular wrongdoers is not only to punish them commensurately
with their respective offences but also to correct them by giving
them sufficient time for atonement and adjustment in living again
a life of virtues among decent and peaceful members of organized
society, which may have wronged in one or more instances. These
impositions of law upon such offenders do not make the latter
"ex-members" or "non-members" of the community whence they come.
By their wrongful acts, they do not become wholly divested of
human rights, duties and obligations. On the contrary, these male-
factors still are basic elements of society to which they belong.
Their liberties and rights may have been curtailed while remaining
under the custody of the law by reason of the commission of un-
lawful acts, yet, in every respect and for all purposes, the accused
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and/ or wrongdoers are subject of rights, and are inevitable
objects of justice, of the study of human relations in our
advance towards the perfection of humanity, legal or otherwise.
It is well to note that even the vilest criminal in
our atomic or nuclear stage of civilization is still entitled
to human rights and more so, because our notion of right and
justice proceeds from the theory that a man charged with a crime
is presumed innocent until his guilt is established beyond reason-
able doubt.
It is therefore the primary aim of this work to discuss
the rights of the accused in criminal, emergency and security
cases in our jurisdiction.
Before proceeding, however, the writer is appealing to the
reader for some degree of benovolent consideration in respect to
the probable shortcomings of the writer and with a view to miti-
gating the insufficiency of the legal treatment of the subject,
for the writer has been ( and is still) really handicapped by
the lack of the necessary time to make further researches than
what he has made owing to the fact that his is the misfortune of
forcing his way through to complete this project at a limited time.
In view of the foregoing, it is kindly requested of the reader
to appraise this work in the light of the adverse circumstances had
limitations under which it was being prepared.
Lastly, the writer feels the singular satisfaction that he
did, and honestly so, the best that he could under the conditions
aforementioned in presenting this wofck; and likewise, he feels an
anticipated satisfaction in that the good reader shall accept this
project paper in the light it is presented.
HAJI MOHD NASER HAJI MOHD NOOR
DIPLOMA IN LAW
Mara Institute of Technology
Shah Alam, Selangor, Malaysia.
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o
A ) THE CONCEPT OF RIGHT
Before proceeding to expatiate on the rights of the accused,
allow me to ask: What is a right? What is the basis of right? The
term'"right" is seemingly trite and common that men in all walks
of life claim for it. Old and young, weak and strong, rich and poor,
citizen and foreigner, guilty and innocent, all always assert a
claim for a right or rights. In its concept and acceptance, "right"
is readily abused, misconstrued, misapplied, nay, misunderstood.
One sometimes thinks of a right when it is but the license to
abuse it. Fundamentally, a right is a well-founded claim.
If people believe that humanity itself establishes or proves
certain claims either upon fellow-beings, or upon a system of govern-
ment, they call these claims human rights; if they believe that these
claims inhere in the very nature of man himself, they call them in-
herent, inalienable rights; if people believe that these inhere in
monarch a claim to rule over their subjects by devine appointment,
they call the claim devine right, or JUS DIVINUM; if the claim is
founded or given by law, it is legal right. The ideas of claim and
that the claim must be well-founded always constitute new idea of
RIGHT. Rights can only inhere in and exist between the moral beings;
and no moral being can co-exist without rights, consequently without
obligations. Right and obligations are correlative ideas. The well-
founded claim becomes in law a claim founded in or established by the
law; so that we may say, a right in law is an acknowledged claim.
Men are by their inherent nature moral and social beings. They
have, therefore, mutual claims upon another. Every well grounded
claim on others is called a right, and since the social character of
man gives the element of mutuality to each claim, every right conveys
along with the idea of obligation; hence, rights and obligations are
correlative.
The idea of right is co-existent with that of authority (or
government), both are inherent in man, but if we understand by government
a coherent system of laws by which a state is ruled, and if we under-
stand by state a sovereing society, with distinct authorities to make
and execute laws, rights precede government, or the establishment of
states.
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If rights precede government, so we find that now rights
are acknowledged above government and their states, in the case
of International Law. International Law is founded upon rights,
that is, well grounded claims which civilized states, as individuals,
make upon one another. As governments become more and more clearly
established, rights are more clearly acknowledged and protected by
the laws. A constitutional right, a legal right is protected by
the constitution; by the law. But a government does not create
the idea of right or original rights; it acknowledges them; just
as a government does not create property or values and money; it
regulates them. If it were otherwise, the question would present
itself; whence does government come? When does it derive its right
to create a govennment that creates rights? We would then be consis-
tently lead to adopt the idea of government by JUS DIVTNUM, that is
a government deriving its authority to introduce and establish
rights (bestowing on it in particular) from a source already
separated from human society and the ethical character of man, in the
same manner in which we acknowledge revelation to come from a source
not human.
Lieber, in his Political Ethics, called primordial rights
those that directly from the nature of man, developed by civilization
and always showing themselves clearer and clearer as society advances.
He enumerates them as follows:
(1) the right of protection;
(2) the right of personal freedom;
(3) the right of production and exchange ( right of property );
(4) the right of free locomotion and immigration;
(5) the right of communion in speech, letter, print;
(6) the right of worship; and
(7) the right of influencing or sharing in the legislation.
Jurists and publicists classify rights into (a) perfest and
(b) imperfect.
F
or instance, when the things which we have a right
to possess, or the acts we have a right to do, are or may be fixed and
determinate, the right is perfect one; but when the thing or acts are
vague and indeterminate, the right is imperfect.
F
or example, if a man
demands his property which is witheld from him. The right that supports
his demand is a perfect one, because the thing demanded is or may be
fixed and determinate; but if a poor man asks relief from those from
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whom he has reason to expect it, the right which support his
petition is imperfect one, because the relief which he expects is
vague and indeterminate thing.
Also proper is the classification of rights into political
and civil. Rights are political when they consist in the power to
participate directly or indirectly in the establishment or manage-
ment of government. These political rights are fixed in the cons-
titution.
c
ivil rights are those which have no relation to the
establishment, support or management of government, These consist
in the power of acquiring and enjoying property, of exercising the
paternal and maternal powers. Everyone unless deprived of them by
sentence of death, is in the enjoyment of his civil rights, which
is not the case of political rights. An alien, for example, has no
political rights, although he is in full enjoyment of his civil
rights
Rights are also divided into legal and equitable. The
former are those where the party has the legal title to a thing;
and in that case his remedy for an infringement of it is by action
in a court of law. Although the person holding the legal title may
have no actual interest but holds only as a trustee, the suit must be
in his name, and not in that of the CESTUI QUI TRUST. The latter
or equitable rights are those which may be enforced in a court of
equity by a CESTUI QUE TRUST.
The foregoing are the diverse kind of rights inherent in
man as a moral and social being. B
u
t this work is particularly
limited to the rights of an accused. What are these rights? The
writer humbly submits then that knowledge of the term accused,
is here also proper. The question may then be asked: WHAT IS AN
ACCUSED IN CRIMINAL LAW?
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B:) THE ACCUSED
Strickly speaking the term an accused is the generic
name for the defendant in a criminal case. Person becomes
"accused" within the meaning of guarantee of speedy trial only
at point at which either formal indictment or information has .
been teturned against him, or when he becomes subject to ac-
tually restrainst on his liberty imposed by arrest, whichever
first occurs.
Accused, rights of.
The rights granted to a person accused of crime designed
to ensure that he has a fair trial. The major rights are:
a. not to be detained unnecessariliy long without being
tried,
b. to be informed of the charge against him,
c. to have far opportunity to consult legal advisers and
to prepare a denfence,
d. to be represented by counsel or solicitor,
e. to have fair opportunity to cross examine prosecution
witnesses, to be allowed to give evidence and lead
witnesses to counter the evidence given for the prosecution,
f. to be heard in mitigation of sentence, and
g. in certain cases and within limits, to appeal.
Different legal systems secure these rights to different
extents and in different ways; what is very important is how far
the rights accorded on paper by the relevant Code or Statute are
actually effective; the difficult questions arise as to Self-
incrimination, and protection from illegaly obtained evidence.
1 Black's Law Dictionary With Pronounciations. Fifth Edition,
by Henry Campbell Black, M.A. 1979 p. 21
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Co THE ACCUSED AND THE FUNDAMENTAL LIBERTIES
The establishment in our jurisdiction of a government of
laws and not of men stands paramount in the framework of our
constitution. This being so, certain inherent and inalienable
(2)
rights are fundamentally secured in our Supreme Constitution,
in favour of all persons who are within the mantle of its
protection.
What are the rights of an accused comprehended in the
Chapter on Fundamental Liberty?
Fundamental Rights In The Malaysian Constitution
In fidelity to the humanist tradition of the era, the
forefathers of the Malaysian Constitution embellished the basic
document with a Siapter on "Fundamental Liberties". Almost all
the "traditional" rights and freedoms are enshrined in Part II
of the Constitution.
In the Constitution of Malaysia not all fundamental rights
are treated with equal sanctimony. Some are accorded a higher
status by making it difficult for ordinary law to abridge them.
The scope of these rights and the power of Parliament to limit
them are clearly spelled out in the Constitution. Among these
"better protected" rights are:
1. Freedom from slavery and forced labour (Article 6).
2. Protection against retrospective criminal laws and repeated
trials (Article 7).
3. Prohibition against banishment of citizens (Article 9).
4. Freedom to profess and practice a religion (Article 11(1) ).
5. Freedom from special but not general taxation to support
a religion other than one's own (Article 11(2) ).
2 Article 4 Federal Constitution
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6. Freedom of a religious group to manage its own religion
or religious affairs and to establish and maintain institution .
for religious or charitable purposes (Articles 11(3) and 12(2) ).
7. Right not to receive instructions in or take part in any
ceremony or act of worship of a religion other than one's
own (Article 12(2) ).
8. Right to adequate compensation for compulsory acquisition
or use of private property (Article 13(2).
Other fundamental freedoms in Part II are not well guarded
against legislative assault. The Constitution formulates them more
as goals, standards and targets than as iron-clad guarantees.
Their scope is left undefined and Parliament is given extensive
power to regulate them on gcounds3df security, public interest,
public health etc. A
m 0
ng these "lesser protected" rights are:
1. The right not to be depfcived of life or liberty "save in
accordance with law" (Article 5).
2. Equality before the law (Article 8).
3. -Freedom of movement (Article 9(2) & 9(3) ).
4.
F
reedom of speech, assembly and association ( Article 10 ).
Another way to categorise fundamental rights would be to
divide them according to who they apply to. Some liberties are
conferred on all persons; others are granted to citizen only.
In the first category of rights with a wider applicability are
personal liberty, right to property, freedom of religion, pro-
tection against retrospective criminal laws and repeated trials
and prohibition against slavery and forced labour. In the second
category are rights in respect of education, equality before the
law, freedom of speech, assembly and association, freedom of"movement
and prohibition against banishment.
A third way to categorise the liberties in Part II would
be to view them in the context of emergency laws. Only one
fundamental right - the right to religion - cannot be susperided
in times of emergency.
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All other rights in Part II must give way to emergency laws. * *
However, Article 150(6A) lays down that during an emergency
the power of Parliament shall not extend to any matter of
Islamic Law, the custom of the Malays, native law or cufttom
in the States of Sabah or Sarawak, matters of religion,
citizenship and language. In view of the powers of Parliament,
when acting under Article 149 and 150 to override most provisions
of the constitution dealing with fundamental liberties, it can
be pointed out that the trully inviolable and fundamental
provisions of the Constitution are not those contained in Part II
but those mentioned in Article 150 (6A). They enjoy greater
sanctity and are more deeply entrenched in the Constitution
(3)
than any other rights.
Pursuant to the Constitutional provisions guaranteeing
rights to every person, our procedural laws supplement substantive
mandates of law. With more precise emphasis, our present Criminal
Procedure Code^^ (Hereinafter referred to as the Code) preserve to
an accused certain rights in the due course of a criminal suit.
These rights, I believe, are granted to an accused mainly on the
theory that the imputation which he did not commit and that the
guilty should not escape punishment. Justice should be let out
on the benevolent presumption of law in our jurisdiction that an
accused is innocent until his guilt is conclusively established
(proven) beyond reasonable doubt. In other words, in the entire
course of criminal proceedings, the accused, handicapped as he is by
the moral and legal restraints, in some respects, should be afforded
all the means of defense in his favour to prove his innocence.
3 Fundamental Liberties in Malaysia. Theory & Practice by
Shad Salem Faruqi, Faculty of Law International Islamic
University. Seminar paper presented at the Malacca Law Seminar
March, 1985.
4 Criminal Procedure Code ( F.M.S. Cap. 6)
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C H A P T E R II
II. PRE-TRIAL RIGHTS
Rights Upon Arrest
The law on arrest in Malaysia is to be found in Chapter
IV of the Criminal Procedure Code, (hereinafter referred to as
the Code) (F.M.S. Cap. 6) and in Article 5(3) of the Federal
Constitution. Section 23 (i) of the Code sets out the various
circumstances under which a subject may be arrested by a Police
Officer without a warrant, if, at the time of arrest, reasonable
suspicion exists of having been concerned with a seizable offence.
The suspect is entitled, and indeed the police are under a sta-
tutory duty, to take the suspect before a Magistrate within 24
hours (Section 28 of the Code) and if investigations cannot be
completed within 24 hours, and there are grounds for believing
that the accusation or information is well founded, the Magistrate
may order the detention of the suspect for a further period not
exceeding 15 days (Section 117(ii) of the Code).
The case on point for the proposition that an accused
person is entitled to know, immidiately upon arrest, what offence he
is alleged to have commited, is in the House of Lords case of
Christie v. Leachlnskey ^ followed with approval by the Federal
(6)
Court of Malaysia in the case of Abdul Rahman v. Tanjo Koh.
The right of an accused to know, as soon as possible, i.e.
upon arrest, what offence he is alleged to have committed, is
enshrined in Article 5(3) of the Constitution. The Article
provides:
" Where a person is arrested he shall be informed as
soon as may be of the grounds of his arrest ..."
5 (1947) A.C. 573
6 (1968) M.L.J. 205, 207
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7 Report of the Law Reform Commission of Asutralia, No. 2
Criminal Investigation Interim, September, 1975, 99-100.
In practice, however, it is difficult, if not impossible,
for an accused to prove a denial of this right. In the majority
of cases, he is unrepresented at this stage of the proceedings
and it will be his uncorroborated word against that of a police
officer, possibly supported by other officers. If he does succeed
in so proving, it could give rise to an award of damages for
wrongful imprisonment but will not, of course, afford any answer
to the criminal charge he faces. Furthermore, if the police,
assuming they have informed the accused of the intended charge
against him, decide later to amend the charge or make substitutions
or addition thereto, they are at liberty to do so.
In any case the investigation papers (in the more serious
cases) are sent to the Deputy Public Prosecutor (hereinafter referred
to as the DPP) who would advice in the bringing of appropriate
charges. It will be seen therefore, that the right of an accused
enunciated in the case of Christie v. Leachinskev is somewhat
illusary since the accused has little or no means of enforcing it.
It is difficult to suggest reforms to this aspect of the accused's
right. To require that in each and every case where an accused is
arrested, he be informed in writing of the offence he has committed
would impose a tremendous work load necessitating the employment
of additional staff with consequent expense, thus making it
impractical. On the other hand, merely verbally informing an
accused person is bound to give rise to endless disputes especially
so since Malaysia has Multi-racial and multi-lingua population.
The Australian Law Commission state " No Criminal Justice
system deserves respect if its wheels are turned by ignorance".
They recommend that person who are detained should be fully informed
of their.rights before any questioning or other investigation begins.
"They should be informed of the fact that they are in custody why
they are in custody and what their rights are, in the first place
in respect of the answering of questions, access to frineds and r ^
relatives, access to a lawyer and subsequently, if the occassions
arise, in relation to identification parade, bail and the like."
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In Malaysia before a statement is taken, the police
officer must first inform the person of the provisions of
Subsections (ii) and Xiii) of Section 112 of the Criminal I
Procedure Code - that he is bound to answer all questions
other than a question the answer to which will have a tendence
to expose him to a criminal charge or penalty or forfeiture
and that he is legally bound to state the truth, whether or
not the statement is made in answer to questions. A statement,
made by the accused after his arrest will only be admissible
(8)
if the prescribed caustion has been administered to him.
It is unfortunate that some police officers advice the ~ -"Lxi--r-'1
arrested persons to plead guilty or to confess to the crime.
Scuh a practice should be discouraged. Both under the Common Law
and under the Evidence Act 1950, it would appear that the
prosecution must prove that the statement from the accused was not
obtained in consequence of a threat, inducement or promise,
C9) (10)
D.P.P. v. Ping Lim. It might be noted in Brindley and Long
the Court of Appeal accepted a rulling by the trial judge that
the questions was not whether the statement by the police that
the defendant had better tell the truth was capable of being a
theeat or inducement but whether it actually operated on the
mind of the suspect so as to make his resulting statement
involuntary.
It is also unfortunate that some policemen abuse their
powers and tend to use undesirable means to secure an admission
of a confession from the accused. In an interview, with some.of
(11)
the arrestee in Kota Kinabalu Police Station, Sabah, they
confessed that some policemen did used force.and abuse their
power by punching, kicking the stomach, slapping, undressing
them, burning the fingerof the suspect or arrested person
with cigar, etc., in order to get them to talk and secure
admission. It is a pity therefore that Section 114(i) of the
Code which provide that " No Police Officer or person in
authority shall offer or make or caused to be offered or made
any inducement, threat or promise to any person charge with an c
offence to induce such person to make any statement having
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