1.Why do we need criminal law?

2.What is the function of the criminal justice system?

3.Draw the structure of the criminal justice system in Malaysia.
4.Identify the parties in the criminal justice system and explain the role of each
party.
5.Why must procedural laws like the Criminal Procedure Code be complied with?
6.One of the basic concepts at play in the criminal justice system is the
presumption of innocence. Why do you think this is essential and what are
the implications of such a presumption?
A fundamental element of the right to a fair trial is that every person should be
presumed innocent unless and until proved guilty following a fair trial. This is why
the responsibility falls on the state to prove guilt and to discharge the presumption
of innocence.
Due to the presumption of innocence, a person cannot be compelled to confess guilt
or give evidence against him/herself. It is for the state to produce evidence of guilt,
not for the defendant to prove innocence. In general, therefore, a suspects silence
should not be used as evidence of guilt.
Because of the serious consequences of conviction, the state must prove guilt to a
high standard. If doubt remains, the defendant must be given the benefit of the
doubt and cleared because the states burden of proof has not been met.
Given the massive human impact of criminal proceedings on defendants, and the
presumption of innocence, trials should take place without undue delay. It would be
unfair to allow states numerous attempts to try to secure a conviction. If a case
goes to trial and guilt is not proved, unless exceptional circumstances exist, the
person should not be tried again. This requires the state to do the job of prosecution
properly in the first instance.
The presumption of innocence is why, before conviction, any restrictions on a
suspects basic rights, for example the right to liberty, should only be imposed
where absolutely necessary. People awaiting trial have not been convicted of any
offence and many will ultimately be cleared.
The right to be presumed innocent until proven guilty

The right to be presumed innocent until convicted is an established universal

concept. Article 11 of the Universal Declaration of Human Rights declares that,
'everyone charged with a penal offence has the right to be presumed innocent until
proven guilty according to the law in a public trial at which he has had all the
guarantees necessary for his defence'. A similar declaration is also echoed in the
European Convention of Human Rights.

In the local context, Article 5 (1) of the Federal Constitution guarantees the right of
a person not to be deprived of his life or liberty save in accordance with law. The
word 'law' in this context refers to 'a system of law which incorporates those
fundamental rules of natural justice that had formed part and parcel of the common
law of England that was in operation at the commencement of the Constitution'.
Under the English common law, an accused person is presumed innocent until he
has been proved guilty. This presumption of innocence has always been the bedrock
of the English common law and by virtue of our Article 5(1) of the Federal
Constitution becomes an established principle of law in our local jurisprudence.

The presumption of innocence in the present discussion is of relevance in at least

two different contexts. Firstly, it refers to the treatment of the suspects before (i.e.
immediately after arrest) and during the trial, insisting that such treatment must
correspond with their innocence e.g. the presumption in favour of granting bail for
the accused person. Secondly, it refers to the standard of proof in criminal cases,
which will be the focus of discussion under this sub-heading.

In Malaysia, the prosecution bears the burden of proving the accused person's guilt
'beyond reasonable doubt'. One way of expressing this is that an accused person
has the right to put the prosecution to proof, and should not be required to
exculpate himself or otherwise disprove guilt just because he has been charged with
an offence. If one were to compare the great power of the State with the
ramifications a conviction can have on a person, it surely follows that the State or
prosecution should bear the burden of proving guilt, and that it would be intolerable
if courts were to operate with a presumption of guilt which the accused person had
to strive to displace.

Be that as it may, Parliament over the years has passed various criminal legislation
or provisions which effectively reverse the onus of proof. This means that they have
now placed the burden on the accused person of proving their innocence. For
example, the accused person is assigned the burden of proving a defence (e.g. self-

defence and alibi), excuse or exemption, once the prosecution has proved the basic
elements of the offence. The current legislations which impose such burden on the
accused person are, the Dangerous Drugs Act 1952, and the Anti-Corruption Act
1997, to name but a few.

At present, considering the fact that there is an inherent inequality of powers

between the State and the accused persons ,-that the State has many resources at
its disposal; e.g. the police and State prosecutors, as opposed to the accused
person, who in certain circumstances are unrepresented-the imposition of such
burden on the accused person, in the writer's view, would be grossly unjust.

7.Breaches of procedural requirements may be tantamount to a violation of basic

human right(s). State the legal safeguards available to an individual whose
fundamental right has been transgressed.
The Right to Counsel

Article 5(3) also gives an arrested person the right 'to consult and be defended by a legal practitioner of his choice'. This right envisages two
separate scenarios; consultation at the police station upon being arrest and representation in court.

The right to consult counsel as envisaged by Article 5 (3) extends not only to arrests under Criminal Procedure Code but also to arrests under
the Restricted Residence Enactment and even the Internal Security Act

The right to consult a lawyer should be an unqualified right and should commence immediately upon arrest. The rationale for such right, inter
alia, is to ensure that an arrested person may properly defend himself against his arrest and not merely when he is charged in court. Such
rationale in the writer's opinion is part of the principle of due process and to a certain extent stems from and is linked to privilege against selfincrimination. This is to ensure that the authorities do not resort to questionable means against the suspect during the course of their
investigations, or even if they do, the suspect would be able to protect himself against it.

The reality, however, is very different. Even if this right is guaranteed by the Constitution, it does not operate automatically. In Ooi Ah Phua v
Officer-in-Charge, Criminal Investigation, Kedah/Perlis, Tun Suffian LP in the Federal Court held that:

'The right of an arrested person to consult his lawyer begins from the moment of arrest but that right cannot be exercised immediately after
arrest. ...The right should not be exercised to the detriment of any investigation by the police.'

It was held that a balance has to be struck between the right of the arrested person to consult his lawyers on the one hand and on the other,
the duty of the police to protect the public from wrongdoers by apprehending them and collecting whatever evidence that exists. From the
decision it is obvious that the right of an arrested person ranks lower than that of the police's duty to investigate the alleged crime. This
decision, even though it sounds reasonable, practically deletes the right to counsel.

This is because the arrested person has no right to inform anybody of his arrest. That means the police can arrest him and prevent him from
contacting anybody. They police can continue and often do continue doing this right up to when the accused is brought before the Magistrate
for remand proceedings. The provision of this 'headstart' for the police effectively eliminates the accused person's right to counsel.

This then begs the question of whether such an advantage should be qualified and curtailed at all? The answer to this question could be found
in the case of Ramli bin Salleh v Inspector Yahaya bin Hashim, where Syed Agil Barakbah J held, inter alia:

'That in order to satisfy the constitutional requirement of clause (1) of Article 5 that right should be subject to certain legitimate restrictions
which necessarily arise in the course of police investigation, the main object being to ensure a proper and speedy trial in the court of
law;'

Therefore, if one were to justify the suspension of the right to counsel, it must be done with the intention to ensure that the arrested person
will have a proper and speedy trial in Court.

The problem with the present state of law in this country is that, in practice, police interrogation is shrouded with mystery and, based on the
writers' interviews with clients, sometimes involves questionable methods. More often that not, interrogation takes place privately in a vacant
room, and with no lawyer or friend of the accused present, there is nothing to prevent the recording officer from saying untruthfully that he
did not offer any inducement of threat; or, that he did administer the prescribed caution when in fact he may have done nothing of that kind.
Again, the issue, if it rises in court, either during the remand proceedings or in trial proper, will only give rise to a contest of the word of the
accused person alone and the word of the one or more police officers.

Another argument that is often put forward by sceptics to justify the suspension of the exercise of the right to counsel is that, to allow the
presence of lawyers during interrogation will impede police investigation. With due respect, such argument is too simplistic, shallow and lacks
of merit. To date no concrete proof has been forwarded to support this contention. Such contention, if at all, only serves to prove that the
police is incompetent and too dependent on the result of an interrogation in order to conduct an investigation. It must be borne in mind that
interrogation is only one of the many aspects of police investigation.

In the United States, the position is different. An arrested person has an immediate right to a legal representation, and he must first be
informed of his rights. Once the arrested person insists or requests for a counsel, then all police investigation must stop until legal
representation is made available. In the case of Miranda v Arizona, it was held that:

' ...the prosecution may not use statements, whether exculpatory or inculpatory, 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. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform
accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. 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 a right to the presence of an attorney, either retained or appointed. The defendant may waive
effectuation of these rights I provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any
manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no
questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not
question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of
the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.'
[emphasis added]

It is submitted that perhaps it is appropriate that amendments be made to the existing laws in order to incorporate the principles as laid down
in Miranda v Arizona. Such amendments will not only strive to improve the already eroded and illusory right to counsel, but will afford some
kind of check and balance, accountability and transparency during police investigation and interrogation.

Another important aspect under this right, which requires close scrutiny is the fact the arrested person has the right to consult his lawyer in
private and in full confidentiality. According to Principle 18 in the Body of Principles For the Protection of All Persons Under Any Form of
Detention or Imprisonment, a document adopted by the United Nations General Assembly:

'1. A detained or imprisoned person shall be entitled to communication and consult with his legal counsel.

2. A detained or imprisoned person shall be allowed adequate time and facilities for consultation with his legal counsel.

3. The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship
and in full confidentiality, with legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law
or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order.

4. Interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing of
a law enforcement official.

5. Communication between a detained or imprisoned person and his legal counsel mentioned in the present principle shall be inadmissible as
evidence against the detained or imprisoned person unless they are connected with a continuing or contemplated crime.'
[emphasis added]

The above principle, to a certain extent has been adopted and enacted under Rule 101 (2) of the Prisons Regulations 2000, which provides
that:

'Reasonable facilities shall be accorded to the legal adviser of a prisoner who is conducting any legal proceedings, civil or criminal, in which
the prisoner is a party, to see the prisoner with reference to such proceedings in the sight, but not in the hearing, of a prison officer.'
[emphasis added]

Therefore, in cases where a person has been arrested under the provision of the Criminal Procedure Code, the arrested person will be allowed
to consult his lawyer in private. The position, however, is different in cases where one is arrested and detained under the Internal Security Act
whereby the consultation with lawyers is made within sight and hearing of the detaining authority. To relate the writer's own experience
during a consultation session with an ISA detainee at Tempat Tahanan Perlindungan Taiping ('Kemta') the detaining officer was sitting within
an arm's length from where the discussion was being held. This is a clear infringement and a mockery of the right to counsel.

The case of Mohamad Ezam Mohd Nor & Ors v Menteri Dalam Negeri & Ors is an illustration of the above point. In this case the applicants had
been arrested and charged in the Kuala Lumpur Magistrate's Court for an offence under the Police Act 1967, and had subsequently been
detained at the Kemta under s 8 Internal Security Act 1960 ('the Act'), pursuant to orders made thereof by the Minister of Home Affairs. While
under the said detention, the applicants were accorded right of access to counsel and all of them have had numerous consultations with
their respective counsels, albeit that the same were only allowed to be convened within the sight and hearing of the officers of
the centre, and not otherwise. The applicants averred that the procedure as adopted by the centre hereof amounted to an illegitimate
restraint to their right to consult their counsel in confidence, and was in breach of their fundamental rights as enshrined in Article 5(3) of the
Federal Constitution, and in the circumstances, applied for declarations to the effect. The said application, however, was dismissed.

Corollary to the right of an arrested person to consult a lawyer should be the right to a phone call immediately after arrest. For the arrested
person to realize his right to consult a lawyer of his choice, he should be entitled to the use of the telephone to contact his lawyers or relatives
or friends who could engage counsel to represent him. Refusal or denial of such right would clearly render the right to counsel ineffective and
illusory.

The following statistics show the number of accused persons who have been interviewed by the Bar Council Legal Aid Centre (Kuala Lumpur)
at the Sungai Buloh prison, and who were either denied or ignorant of their right to counsel. Since the right to make a phone call is nonexistent, most of them ended up in the remand centre without being able to notify their families, relatives or friends.

Right to be release pending trial i.e. right to bail

Since a person is presumed to be innocent until proven otherwise, once a person has been charged and brought before a court, he should be
released pending trial on bail. The grant or refusal of bail is a matter of foremost importance to the accused person because the refusal or
denial of bail is clearly a disadvantage to his preparation of his defence or in his attempts to raise funds to engage counsel of his choice. On

the other hand, the prosecution will argue that to allow an accused person to be out on bail is not in the interest of the public as there could
be the possibility of tampering with witnesses.

In Malaysia, offences are either bailable or non-bailable, but even in cases of non-bailable offences, the court and the police officer of the
police district concerned have discretion to grant bail.

The main concern under this discussion is not so much whether an accused person must be given bail in all circumstances, but rather whether
the existing bail system which stresses more on money bail or case bail is appropriate. The money bail or cash bail system tends to
discriminate the poor and the unfortunate and give preferences to the affluent.

Perhaps, it is time for the Courts to consider 'personal recognizance' bond without sureties before considering other forms of bail. It is
essentially a release on personal undertaking given by an accused person to the satisfaction of the Court, and it does not impose any
pecuniary condition. In Hussainara Khatoon & Anor v Home Secretary, State of Bihar, Patna, the Indian Court recognized that ordering bail
with sureties is an outdated concept and that the risk of monetary loss is not the only deterrent against fleeing from being tried by the Courts.
Factors which should be taken into consideration to release an accused person on his personal bond are, inter alia; the length of the accused
person's residence and roots in the community; his employment status and history; his reputation, character and social standing; whether
there is any responsible member of the community who would vouch for his reliability; prior criminal record; and the nature of the offence he
is charged with.

If the present practice of imposing money bail or cash bail is continued, then the right to be release pending trial will then only be available to
only the affluent, whereas the impecunious will be left to languish in a prison cell, even though he has yet to be proved guilty.

Right to a speedy trial in Malaysia

Article 5(1) of the Constitution provides:

'No person shall be deprived of his life or personal liberty save in accordance with law.'

Even though the plain reading of the Constitution does not expressly provide for the right to a speedy trial or a trial within a reasonable time
it does, however, confer upon a person charged with a criminal offence the right to a fair trial. This right to a fair trial, in the writer's view,
includes the right to a speedy trial.

The right to be tried expeditiously and without delay is an important facet to a fair trial. This is because delay is a major contributing factor for
the denial of human rights. Mr DR Karthikeyan, Director General of the Indian National Human Rights Commission states that:

'The biggest contributing factor for the denial of human rights to a majority of people is 'delay' -delay in taking decisions, delay in
communicating decision, delay by those holding any authority at various levels in government. Most public servants are insensitive to their
fellows citizens ...Unless we devise a system where delay in the decision making process is avoided, millions of people will remain victims of
human rights violations ...We can ensure better observation and protection of human rights only by increasing people's awareness about their
rights, and sensitizing security forces and public servants of their duties.'

In the local context, the right to a speedy trial was expressly dealt with in the case of Public Prosecutor v Choo Chuan Wang. Edgar Joseph Jr
J (as he then was) quoted several Indian Supreme Court decisions and held that Article 5(1) of the Federal Constitution does imply in favour
of an accused person the right to a fair hearing within a reasonable time, by an impartial Court established by law. He then quoted from the
Indian Supreme Court decision ofMadheshwardhari Singh & Anor v State of Bihar which held as follows:

'That, now by precedential mandate the basic human right to a speedy public trial in all criminal prosecutions has been
expressly written as if with pen and ink in the constitutional right relating to life and liberty guaranteed under Article 21 of our
Constitution. Further, that this right is identical in content with the express constitutional guarantee inserted by the Sixth Amendment in the
American Constitution.

That the American precedents on the Sixth Amendment of that Constitution would be equally attracted and applicable as persuasive on this
facet of Article 21 of our Constitution as well.

That once the constitutional guarantee on a speedy trial and the right to a fair, just and reasonable procedure under Article 21 has been
violated, then the accused is entitled to an unconditional release and the charges levelled against him would fall to the ground.

That a callous and inordinate prolonged delay of ten years or more, which, in no way arises from the accused's default (or is otherwise not
occasioned due to any extra-ordinary and exceptional reasons), in the context of reversal of a clean acquittal on a capital charge, would be
per se prejudicial to the accused and would mainly violate the constitutional guarantee of a speedy trial under Article 21.'
[emphasis added]

The learned Judge also noted that in order to show that there has been a breach of his fundamental right, the accused must allege some kind
of prejudice, such as witnesses whom he had intended to call being untraceable or being incapable of giving evidence or the destruction or
loss of other evidence or indeed any other prejudice, occasioned by reason of the delay.

Another factor which greatly contributes to the delay of the disposal of criminal proceedings is the delay on the part of the police to complete
their investigations before the date of hearing. Her Ladyship Siti Norma Yaakob in her paper presented at the ASEAN Law Association
Conference, in Manila in 1980 pointed out that in criminal proceedings, more often than not, on the day fixed for hearing the police have still
not completed their investigations in which case the prosecuting officer is forced to seek an adjournment and the reason for such request will
always be that he has not received the investigation papers as the investigating officer concerned was still investigating into the case. To

relate a typical incident, the writer once represented a person charged of sodomy before the Ampang Sessions Court. On numerous occasions,
the prosecution had sought for adjournments on the basis that the medical report of the victim is not ready. Finally, after several
adjournments, the writer raised a preliminary objection on the ground that the accused person's right to a speedy trial as enunciated in Choo
Chuan Wang had been infringed as the trial has been delayed for almost two years. The preliminary objection however was dismissed, not to
the surprise of the writer. The trial finally started several months later, and at the end of the prosecution case the accused person was
acquitted. Had the trial commenced earlier, the accused would have been spared the long ordeal of being in remand. That in a nutshell is the
present state in this country.

Given the advancement of modern day technologies and knowledge, such as forensic science/investigation, any criminal investigations should
be able to be conducted and completed with reasonable speed. Therefore, excuses given by the prosecution/police that the post mortem
report or the medical report or the chemist report are not ready, should no longer be accepted and must be looked upon with great suspicion
by the judiciary.

Such malpractice as pointed out above, in the writer's view, is a blatant violation of the fundamental right to a speedy trial, which is not
uncommon, and in fact is prevalent. Nevertheless, the attitude of the judiciary thus far seems to accept such malpractice as being something
which is incidental and inherent in our criminal justice system.

Be that as it may, counsels representing the accused persons are also not without fault. There have been instances whereby defence counsels
seek unnecessary adjournments on any flimsy ground with the intention that with the passing of time witnesses tend to forget details and
with clever cross-examination on their part, they may well succeed in throwing doubts on the prosecution's case.

It would seem from this discussion that the High Court in Malaysia has given recognition to the fact that the right to a speedy trial is
encapsulated within the ambit of Article 5 of the Constitution. Therefore, it is incumbent on the Courts to be vigilant and act accordingly when
there appears to a violation of this right to a speedy trial. As for the defence lawyers in criminal cases, it is now indeed their task to highlight
the importance and existence of such right to the judiciary and to ensure that there is no denial of such right, for justice delayed is justice
denied.

Right to be tried on evidence not obtained by violation of fundamental rights.

Implicit in Article 5(1) is the notion of right to a fair trial, which stems from the principles of natural justice and rule of law. When one talks
about right to a fair trial, one cannot ignore the pre-trial process or procedure, because a trial is a result of series pre-trial processes; which
begins with arrest of a suspect and investigations, just to name a few.

Corollary to this would be the right to ensure that when an accused person is brought before the Court to be charged and tried, he must be
tried on evidence not obtained by violation of any of his fundamental rights. In other words, he must not be tried on unlawfully obtained
evidence.

The rationale for this right is that it seems to be hypocritical and contradictory for one organ of the State, namely the Courts, to take
advantage of a breach of the law by another organ of the State, namely the police (which is the enforcement arm of the Executive). So far as
police conduct is concerned, those who enforce the law should and must obey the law. To allow this double standard is not only unjust, but
could tantamount to an infringement of Article 8 of the Constitution. To allow such practice is akin to giving the police carte blanche to do
whatever they deem necessary in order to get a conviction. In respect of the Courts, it would be an affront to basic rule of law values if they
were to act on evidence obtained by breach of law and breach of fundamental rights.

Be that as it may, in the local jurisprudence the Courts have adopted a different view to the above. In the case of Saw Kim Hai & Anor v
Regina and Public Prosecutor v Seridaran, the Court has adopted the decision of the Privy Council in Kuruma v The Queen with approval of the
proposition that the fact that evidence has been illegally obtained does not affect the question of its admissibility.

In the case of Kuruma the question that was posed to the Privy Council was whether the evidence proving that the appellant was in
possession of the ammunition had been illegally obtained and should not have been admitted. Lord Goddard CJ said that the test to be applied
in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not
concerned with how the evidence was obtained.

Conclusion: Erosion of the rights?

It is clear then from this discussion that even though some of the more fundamental rights are accorded to an accused person (for example,
the presumption of innocence), most if not all of them have suffered erosion due to firstly, legislation by the Legislature in passing acts of
Parliament that slowly chip away at those rights; secondly, judicially by the Judiciary in narrowly interpreting the fundamental rights accorded
under the Federal Constitution and even effectively denying these rights to an accused person (see Ooi Ah Phua v Public Prosecutor); and
lastly, enforcement of the law by the Executive that pays scant heed to any of the laws. The Judiciary which is supposed to be the only organ
of State capable of mitigating or even eradicating the abuse of power by the Executive and Legislature is not only uninterested in doing so but
aids and abets them in their attempt to erode the rights of an accused person.

This oppression of an accused person by all three organs of State has realized the Judiciary's own fears i.e. that the Constitution has become
a mere collection of pious platitudes. What is in store for an accused person in the future? Are there any positive developments to look
forward to?

It was the fervent hope of the writer to end on a positive note. Unfortunately, recent developments in the law seem to indicate that there will
be further erosion of not only the rights of an accused person but also of a mere suspect. Recent legislation to enact laws for the suppression
and persecution of terrorists has merely resulted in ample possibilities for infringements of other fundamental liberties. To name but a few of
the examples, are the wide and arbitrary powers given to the Attorney General under the proposed amendment to the Criminal Procedure
Code, which may have the profound effect of obliterating the already illusory and ineffective rights of accused persons. Although public
interest and safety is an important factor, such laws cannot be made at the expense of fundamental liberties. The existing laws are more than

sufficient to handle any possible threats or dangers to the public. Emphasis should be made on how to effectively utilize and enforce the
already existing provisions.

Unhappily, there is also no quick solution to this systematic and consistent erosion of rights accorded to an accused person. Further, any
meaningful and effective solution must come from all three organs of State, and this means that a large portion of the solution lies in policy.

The writer strongly believes that the first step to a solution would be for all the organs of State to undergo a paradigm shift and recognize the
primacy of the individual over the Community. This is simply because the most basic unit of a Community is the individual. The protection of a
community can no longer be used as an excuse to curtail the fundamental liberties and protection that an individual is entitled to. It is
therefore fallacious to argue that the oppression of an individual would result in a healthier and safer Community.

If all organs of State were able to manage and establish this paradigm shift then the erosion of the rights of an accused would be halted and
there is every possibility of such rights being strengthened. But until that day comes, one can only expect a greater and more frequent
erosion of safeguards in favour of an accused person.