article 5 rights under article 5 (3) (4)

Rights Under Art. 5 (3) & (4)

The Rights of an Arrested Person

Arrest

Shabaan & Ors v. Chong Fook Kam & Anor [1969] 1 LNS 170.

Lord Devlin :

"An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned.

It occurs also when by words or conduct he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go.

It does not occur when he stops an individual to make inquiries."

When one is under arrest, he is not a free man who is in the lawful custody of a police or other law enforcement officers.

Attempt to escape from or interfere with an arrest may become an offence.

S. 15(1) of the Criminal Procedure Code

(a) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there is a submission to the custody by word or action.

(b) If such person forcibly resists the endeavour to arrest him or attempts to evade the arrest such officer or other person may use all means necessary to effect the arrest

Power to ArrestA. Ordinary Laws

1. The Criminal Procedure Code S 23 - Police or Penghulu. Section 27 - Arrest by private persons. Section 31 - Arrest by or in presence of Magistrate.

2. Immigration Act 1959/63 (REVISED - 1975) Section 35- Power to arrest person liable to removal.Immigration officer

3. Road Transport Act 1987 Section 112- Powers of arrest, stopping and detention.A police officer or traffic warden

Arrest

Police Remand/Custody- Mgst.

Charge

Released on Bail or Remanded until Trial

Trial

Decision Conviction - Imprisonment

Power to Arrest

B. Special Laws/Preventive Detention Laws

1. The Emergency (Public Order and Prevention of Crime) Ordinance 1969

Section 3.

2. INTERNAL SECURITY ACT 1960 Section 73.

3. DANGEROUS DRUGS (SPECIAL PREVENTIVE MEASURES) ACT 1985

Section 3.

Arrest

Detained or Released ISA-S. 8 EO-S. 4 DDA- S. 6

Article 5 (3)

‘Where a person is arrested he shall

be informed as soon as may be of the grounds of his arrest and

shall be allowed to consult and

be defended by a legal practitioner of his choice.’

Rights of an Arrested Person in Art 5(3)

Article 5 (3) contains three distinct rights that are related namely:

1. The right to be informed of the grounds of one's arrest.

2. The right to consult counsel.

3. The right to be defended by a legal practitioner of one's choice.

Exception to the Rights in Art 5(3)

Exception to the three rights stated in Article 5 (3) is mentioned in 5 (5).

‘ Clauses (3) and (4) do not apply to an enemy alien.’

5(3): The right to be informed of the

grounds of arrest

The arrested person may be informed orally of the grounds of his arrest.

Re P.E. Long @ Jimmy [1976] 2 MLJ 133

5(3): The right to be informed

‘Where a person is arrested he shall be informed as soon as may be of the grounds

of his arrest.’

Abdul Rahman v Tan Jo Koh

[1968] 1 MLJ 205

cited

Christie v Leachinsky [1947] AC 573.

Immediately


Aminah v Superintendent of Prison, Pengkalan Chepa, Kelantan [1968] 1 MLJ 92

cited Tarapade v State of West Bengal [1959]

SCR 212" ...the words 'as soon as may be'

… means as nearly as is reasonable in the circumstances of the particular case".


The rights stated in article 5 (3) should be applied whenever a person is arrested under any law.

The Emergency (Public Order and Prevention of Crime) Ordinance, 1969

IGP v Lee Kim Hoong [1979] 2 MLJ 291

KAM TECK SOON V TIMBALAN MENTERI DALAM NEGERI MALAYSIA & ORS AND OTHER APPEALS [2003] 1 MLJ 321

Existing Law

Assa Singh v MB of Johore

[1969] 2 MLJ 31

5(3): The Right To Consult Counsel

‘ Where a person is arrested he shall…

as soon as may be …

allowed to consult …

a legal practitioner of his choice.’


CRIMINAL PROCEDURE CODE

Section 28A (2) (b) A police officer shall before commencing any form of questioning or

recording of any statement from the person arrested,

inform the person that he may communicate or attempt to communicate and consult with a legal practitioner of his choice.



Section 28A(3)

Where the person arrested wishes to communicate or attempt to communicate with a legal practitioner of his choice, the police officer shall, as soon as may be, allow the arrested person to do so.

5(3): The Right To Consult CounselRamli bin Salleh [1973] 1 MLJ 54

Syed Agil Barakbah J.:

(1) The right of begins right from the day of his arrest even though police investigation has not yet been completed.

(2) The right should be subject to certain legitimate restrictions which necessarily arise in the course of police investigation, the main object being be ensure a proper and speedy trial in the Court of law.

(3) Such restrictions may relate to time and convenience of both the police and the person seeking the interview and should not be subject to any abuse by either party.

Ramli bin Salleh [1973] 1 MLJ 54

Held:

The action of the respondent in this case in restricting the learned counsel's application to interview his client on the expiry of the detention period is unreasonable.

It should therefore be understood that the police must not in any way delay or obstruct such interviews on arbitrary or fanciful grounds with a view to deprive the accused of his fundamental right.


Ooi Ah Phua [1975] 2 MLJ 198

Suffian LP“ the right…begins from the moment of arrest but…cannot be exercised immediately after arrest.

A balance has to be struck between the right of the arrested person to consult his lawyer on the one hand and

on the other the duty of the police to protect the public from wrong-doers by apprehending them and collecting whatever evidence exists against them.”

Ooi Ah Phua v Officer in Charge, Criminal Investigations, Kedah/Perlis

[1975] 2 MLJ 198

The Federal Court held that

a delay of ten days

between arrest and access to counsel

was lawful.

Hashim bin Saud [1977] 2 MLJ 116

The appellant had been arrested on suspicion of being involved in the theft of an electric generator.

After being questioned he was produced before a magistrate and ordered to be detained under section 117 of the CPC.

An application was made for a lawyer to visit the appellant but this was not immediately granted.

He could only see the appellant on a subsequent date when the investigations were expected to be completed.

The appellant argued the refusal to consult his counsel was a breach of his constitutional right and rendered the order of the magistrate unlawful.

Held: The onus of proving to the satisfaction of the court

that giving effect to the right to counsel would impede police investigation or the administration of justice falls on the police.

On the facts of this case the police had given good and sufficient reasons why such right could only be exercised after the period of police investigation was completed.



Section 28A (4)

Where the person arrested has requested for a legal practitioner to be consulted

the police officer shall allow a reasonable time

(a) for the legal practitioner to be present to meet the person arrested at his place of detention; and

(b) for the consultation to take place.

CRIMINAL PROCEDURE CODE. ACT 593

The consultation shall be within the sight of a police officer and in circumstances, in so far as practicable, where their communication will not be over heard.

Section 28A (5)

The police officer shall provide reasonable facilities for the communication and consultation under this section and all such facilities provided shall be free of charge.

Section 28A (7)


Section 28A(8) (a) The requirements under subsections (5) and (7) shall not apply where the police officer reasonably

believes that compliance with any of the requirements is likely to result in

(i) an accomplice of the person arrested taking steps to avoid apprehension; or

(ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness.


Section 28A(8) (b)

The requirements under subsections (5) and (7) shall not apply

where the police officer reasonably believes that compliance with any of the requirements is likely to result in

having regard to the safety of other persons the questioning or recording of any statement is so urgent that it should not be delayed.


The effect of unlawful denial of the right under article 5 (3).

Ooi Ah Phua [1975] 2 MLJ 198

NASHARUDDIN BIN NASIR V KERAJAAN MALAYSIA & ORS

[2002] 6 MLJ 65

Mohamad Ezam bin Mohd Noor v Ketua Polis Negara & other appeals

[2002] 4 MLJ 449

5(3): The Right to be Defended by a Legal Practitioner of One’s Choice

Where a person is arrested

he shall be informed as soon as may be of the grounds of his arrest and

shall be allowed to consult and be defended by a legal practitioner of his choice.

Re. GG Ponnambalam [1969] 2 MLJ 263

It is argued that the article gave the accused person the right to be defended by a legal practitioner of his choice.

The learned CJ rejected the argument. Until the person is admitted, no qualified

person is a legal practitioner under Art. 5.

D’Cruz v AG, Malaysia & Anor [1971] 2 MLJ 130

The right given under Art. 5 cannot be read as extending to any legal practitioner anywhere in the world regardless whether or not he is qualified to practise here.

The right given to the arrested person in the article must be limited to the choice of legal practitioners who are qualified to practise under our law.

LEGAL PROFESSION ACT 1976

Qualified Persons• Section 10. Admission of advocates and solicitors. • Section 11. Qualifications for admission.• Section 18. Admission in special cases.

PART IIA - SPECIAL PROVISIONS RELATING TO ADMISSION OF ADVOCATES AND SOLICITORS

Section 28A. Attorney General's power to issue Special Admission Certificates.

Section 28B. Admission and enrolment as an advocate and solicitor of a person issued with a Special Admission Certificate.

CHERIE BOOTH QC V. ATTORNEY GENERAL, MALAYSIA & ORS [2006] 4 CLJ 224

PEGUAM NEGARA & ORS v. GEOFFREY ROBERTSON [2002] 2 CLJ 493

5(3): Legal Practitioner of One’s ChoiceMohamed bin Abdullah v PP [1980] 2 MLJ 201

The question is whether the Court could proceed with the trial in the absence of Counsel and if not whether the trial was a nullity.

Held:It is wrong to say that a litigant is entitled to be

represented by the Counsel of his choice. The true statement is that he is entitled to be

represented by the Counsel of his choice if that Counsel is willing and able to represent him.

Article 5(4)

Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and

shall not be further detained in custody without the magistrate's authority.

In the case of an arrest for an offence which is triable by a Syariah court, references in this Clause to a magistrate shall be construed as including references to a judge of a Syariah court.

Rights of an Arrested Person Art 5(4)

Clause (4) of article 5

-requires the detaining authority to produce the arrested person before a magistrate, or as the case may be a shariah court judge, without unreasonable delay within 24 hours of his arrest, and

-prohibits further detention of the accused without the magistrate’s / shariah court judge’s authority.

Exception to the Rights in Art 5(3) and Art 5(4)

Exception to the three rights stated in Article 5 (3) is mentioned in 5 (5).

Exceptions to the rights stated in Article 5 (4) are stated in

paras 2 and 3 of the clause, and

(5) of the Article.

5(4) : The right to be Produced Before a Magistrate

Aminah v Superintendent of Pudu Prison, Pengkalan Chepa, Kelantan [1968] 1 MLJ 92

“Article 5 clearly meant to apply to arrests under any law whatsoever in this country”.

The Federal Court agreed to “read into” the RRE Article 5 (3) and (4) as permitted by article 162(6)


The position later changed after the clause was amended.

Para 2 of (4) in Article 5.

Loh Kooi Choon v Govt of Malaysia [1977] 2 MLJ 187


Exception

Chong Kim Loy v The Menteri Dalam Negeri, Malaysia [1989] 3 MLJ 121

He was arrested under S. 3 of the Dangerous Drugs (Special Preventive Measures) Act 1965 and later detained under the law.

It was argued that there had been a contravention of Article 5(4) of the Constitution as the applicant had not been produced before a Magistrate within 24 hours after his arrest and detention at the police station.

Held:

The DDA is a legislation made under article 149.

Legislation under Article 149 may restrict or be inconsistent with the right conferred by Article 5(4) but any such restriction must be clear in the legislation.

The powers spelt out s. 3(2) do make such restriction manifestly clear and is therefore valid notwithstanding that it is inconsistent with Article 5(4) of the Federal Constitution.