Picture this scenario:
You are walking back home at night after a long day at work. Suddenly, a police officer stops and informs you that you are under arrest on grounds that there exists reasonable suspicion that you have committed an offence.
Faced with the above scenario— what should you do?
When giving your statement to the police officer pursuant to section 112 of the Criminal Procedure Code (commonly known as the “112 statement”), you have the right to remain silent when being asked any questions which would likely expose you to a potential criminal offence.
You also have the right to request for a lawyer to be present when being questioned by the police officer. You may also call the Legal Aid Centre to inform them that you have been arrested and the police station that you will be taken to.
The right to legal representation
The right to legal representation is a fundamental right guaranteed under Article 5(3) of the Federal Constitution.
Article 5(3) of the Federal Constitution reads as follows:
“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.” It should be borne in mind that this constitutional right is only applicable to criminal matters which involve the right of an arrested person.
When does this right begin?
The Federal Court in Ooi Ah Phua v Officer-in-Charge Criminal Investigation, Kedah/Perlis (“Ooi Ah Phua”) has interpreted Article 5(3) of the Federal Constitution. It was held the right of an arrested person to consult a counsel begins from the moment of his/her arrest. However, that right could not be exercised immediately upon arrest if it impedes the police investigation or the administration of justice.
This means that the police may deny you this right if the delay in questioning may result in the occurrence of another crime.
Suffian LP in Ooi Ah Phua construed that provision in the following manner:
“... 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 wrongdoers by apprehending them and collecting whatever evidence exists against them. The interest of justice is as important as the interest of arrested persons and it is well-known that criminal elements are deterred most of all by the certainty of detection, arrest and punishment.”
How it works
This constitutional right to counsel is reinforced by section 28A and section 255 of the Criminal Procedure Code. Section 28A is applicable after an arrest is made, whereas section 255 applies when the person arrested is charged.
In other words, the right to a counsel is a two-tiered right. First, it applies at the stage after an arrest is made and second, when the person arrested is charged.
In essence, the person arrested must be informed that he/she may communicate and consult with a legal practitioner of his/her choice before the commencement of any form of questioning or recording of any statement by a police officer.
If the person arrested expresses his/her wish to communicate with a legal practitioner, the police officer must allow the arrested person to do so. Reasonable time and facilities must also be given for the legal practitioner to be present to meet the person arrested and for the consultation to take place.
Any form of questioning or recording of statement by the police officer would have to be deferred until the consultation has been made.
Choice of counsel
A person arrested has the right to consult and be defended by a lawyer of his/her choice. Once the person arrested makes this election, he/she cannot be prevented from doing so subject to the following conditions as laid down in Dorosamy a/l Chinnia v Public Prosecutor:
the person he/she wishes to represent him/her must be a counsel who is legally entitled to practise law in Malaysia;
the counsel is able and willing to represent; and
the person arrested has indicated that he/she wishes to exercise that right.
References:
Article 5(3) of the Federal Constitution.
Sections 28A and 255 of the Criminal Procedure Code.
Mohammad Shafiq Dollah v Sarjan Mejar Abdul Manaf Jusoh [2013] 2 CLJ 1096.
Dorosamy a/l Chinnia @ Ali bin Abdullah v Public Prosecutor [2020] MLJU 2257.
Ooi Ah Phua v Officer-in-Charge Criminal Investigation, Kedah/Perlis [1975] 2 MLJ 198.
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