Movement control order enforcement: A criminal lawyer’s perspective

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handcuffs
Photograph: Txspiked/Flickr

Vince Tan writes of his concern over the handcuffing of those accused, among other issues.

In usual times, the trip from Bayan Baru, Penang to the George Town court area takes 45-60 minutes during morning peak hours. Another 15 minutes to find a parking bay along the roadside – unless you park at the St George’s Church opposite the court.

My journey to the Penang High Court on 2 April 2020 miraculously took just 20 minutes, thanks to the deserted streets on the 16th day of the movement control order. The atmosphere was much different from usual as there was a roadblock up and down the Tun Dr Lim Chong Eu Expressway, and you could really feel the sense of fear should you find yourself on the wrong side of the law.

I had to replace one of my colleagues whose clients had been charged under the Prevention and Control of Infected Diseases (Measure Within Infected Areas) Regulation 2020 as he could not make it. I parked my car at a secret place only my former colleagues and I knew at Jalan Greenhall. (Yes, I used to work at ‘that’ firm.)

I arrived in court at 9am sharp to find the clients waiting for me. But the court would not let them in as they were told they could only enter at 10.30am. The investigating officer had told them to be at court at 9.00am. (This does not come as a surprise to me due to Malaysian timing, which is always an hour behind appointments.)

We all entered court from the front door facing Jalan Greenhall (as I prefer going in through the front door unlike some others who like to use the “back door” in their many endeavours in life.)

The atmosphere was certainly different, with an air of hostility looming around the court area. Besides health safety measures of social distancing and hand sanitisers for use in court, I realised that the police were grumpier than usual. Even the deputy public prosecutor was not obliging towards my request for the charge sheet, which is entirely my clients’ right to have.

Bail

Many were present in court to hear charges in relation to the violation of the movement control order. My instructions were to get bail for my clients.

When a person gets charged and pleads not guilty, depending on the type of offence, the court will give instructions for bail. There are three types of bail for various offences: bailable offences (which are bailable as of right), non-bailable offences (discretionary) and unbailable offences (no bail to be given unless exceptions exist).

The reason for imposing bail is to secure the attendance of the accused in court. It is not meant to be punitive or excessive. Remember, a person is presumed innocent until proven guilty. The presumption of innocence is paramount to the legal system of this country.

READ MORE:  Movement control order: CIJ wants all arrests halted

My clients were the first to be charged for the day, and the prosecution offered bail of RM8,000, which was extremely high for an offence this trivial. After submitting factors to reduce the bail amount, the court awarded bail of RM4,000 for each person.

The amount is rather high. It would be a burden for an ordinary wage earner to fork out such an amount for bail, even if the bailor had enough money to pay. Imagine if a person could not find someone to bail him or her out with such an amount. The accused would then have to rot in prison until someone could pay the bail money.)

Without warrant

I soon realised that many of those arrested during the enforcement of the movement control order were arrested and investigated under offences which are seizable in nature. (Seizable offences are those which enable the police to arrest people without a warrant from a magistrate.) However, they are later charged under a separate offence altogether which is not necessarily seizable by nature.

What this means is that the police would not have been able to arrest them in the first place for the offence they were later charged with, without a warrant.

What is seizable and not seizable is prescribed in a schedule of the Criminal Procedure Code. This would mean that the police investigates a person under a provision of the law which is seizable just so that they can arrest the person and then bring them for remand – even though the person’s actions might not warrant investigation under the said offence.

When you are arrested, you are not allowed to go anywhere. The police will usually inform you if you are being arrested. You have a right to know under which provision of the law you are being arrested. Another indication that you are being arrested is when the police handcuff you or when they hold your identity card and refuse to return it to you.

A police officer usually arrests a person when there is a reasonable suspicion of the commission of an offence by that person, a police report made against that person, or a complaint of some form.

A person can only be arrested for 24 hours to assist police investigations. To detain a person longer than that, the police would need to get a remand order. It is like an extension of time granted to the police to investigate a suspect.

Depending on the offence a suspect is being investigated for, he can be detained up to four or seven days from the date of the granting of the first remand order. The police have a right to apply a second time (after the lapse of the first) for three days or seven days as well. A suspect has the right to contact his lawyer and family or friend.

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I realised that some provisions used to charge the accused would not hold water as they do not have the necessary facts or possibly even evidence to fulfil the elements of the charge or the offence. There are unfortunate cases where an accused pleads guilty to an offence when the charge might not even stand in the first place. Would the conviction be safe in the first place?

First and foremost, the accused needs to understand the nature of the charge. That is why a court gets interpreters to interpret in the language of the accused’s choice, so he understands what he is being charged with. The accused must understand the nature and consequences of his plea of guilt. It is important for the court to determine whether he understands the charge and the consequences of his plea of guilt. The plea of guilt must be unreserved, unqualified and unequivocal.

Handcuffed

Upon my clients being granted bail, I realised they were handcuffed and brought to the lock-up pending payment of bail by their bailor. This is highly irregular, as handcuffing is only done when an accused is violent or shown to be violent, charged with a violent offence, or has a risk of running away.

An accused person should not be handcuffed unless he is violent or shown to be violent (for which there must be some credible and admissible material before the court) or he has committed a crime of violence or he may attempt to escape.  

My clients at all material times were cooperative with the police and were not a danger to the public, thus handcuffing was not necessary. A lawyer in a case after mine submitted for leniency in the sentencing of his client. His client was handcuffed too, after the proceedings. He too requested for the handcuffs to be removed.

What shocked me most was the explanation given by the police that this was for the media to take their pictures when they go out of court. I was informed by my colleague that despite our client pleading not guilyt, he was filmed on ntv7 with handcuffs on his way to the police lock-up. This is highly irregular and is an abuse of process against a person who is presumed innocent until proven guilty.

Compliance with the law

The above documents my experience in criminal practice during the movement control order period. I understand the need for enforcement of the measures in the regulations, but compliance with the law is a must. What is paramount is compliance with a proper interpretation of the law and not interpreting the law according to the whims and fancies of the authorities.

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This further reminds us of the need to establish the IPCMC (independent police complaints and misconduct commission), one of the recommendations of the Royal Commission of Inquiry on the Police Force in its findings.

All of us have sworn loyalty to this country. To respect the rule of law is loyalty to the country. To uphold the supremacy of the Constitution is loyalty to the country. To do otherwise can only mean disloyalty.

The police and authorities cannot usurp the powers of the court and disregard trite principles of the law. I observed that criminal law practice in Penang is highly unusual, as the enforcement authority has the audacity to do such a thing.

Usually, in such cases, the Malaysian Bar or state bar (Penang Bar Committee, in this case) would not hesitate to speak up in such situations. In recent times, even some state bars have spoken out against the authorities for their enforcement actions under the movement control order.

For instance, the Kuala Lumpur Bar Committee’s gender equality and diversity committee criticised the Ministry of Women, Family and Community Development on their posters which reflected gender stereotypes, especially the suggestion that wives mimic Doraemon’s voice when speaking to their husband.

Perhaps the Penang Bar has been less vocal in raising these issues openly, and this has allowed enforcement authorities to be left unchecked. I can understand that, due to geographical factors, the national Malaysian Bar and its governing body, the Bar Council, might not be aware of all the alleged wrongdoings of enforcement authorities in the various states of Peninsular Malaysia.

I hope all who read this article, especially lawyers, can call out such irregularities when they see them occurring in person.

I hope this piece find its way to the members of the Bar Council and the respective state bar committee members so we can play our part to monitor against such abuses as required by us under Section 42(1)(a) of the Legal Profession Act 1976, which is to “uphold the cause of justice without regard to its own interest or that of its members uninfluenced by fear or favour”.

Vince Tan, a post-graduate student at the Faculty of Law, University of Malaya, is a practising lawyer based in Penang and Kuala Lumpur. His adventures will sometimes find him in Johor for his usual court work

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Mohan Samy
Mohan Samy
12 Apr 2020 3.15pm

Lawyers perhaps can research the Restriction of Movement issued by the government is an executive action. Where the precise wording of the powers allows them to arrest people without the legal authority. Loss of liberty is one of our treasured rights which is not lost just on the whims of an executive action. To test the law we must appeal the decision of the Magistrates court and sue for unlawful arrest. No point discussing this just file a class action and appeal right to the Federal Court. Its time these rulings are tested.

From a concerned citizen.

Gursharan Singh
Gursharan Singh
12 Apr 2020 10.44am

Infected:1,780,312 Deaths:108,827
Infected Patients in mild condition 1,216,864
Serious or Critical condition 50,592

DESPARATE TIMES NEED DESPARATE ACTIONS BY AUTHORITIES.
LEGAL PROFESSIONALS SHOULD FORGET LEGAL FORMALITIES IN RESPECT OF DELINQUITS AND LAW BREAKERS WHO MAY BE SIDING THE COVID 19 ENEMY BY THEIR NON COMPLIANCE TO MCO.
Some legal professionals will only realise the seriousness of the pendemic if their own are infected or has succumbed. THIS IS NOT THE TIME FOR LEGAL FORMALITIES BUT TO PROTECT ALL HUMANS.

LEGAL PROFESSIONALS SHOULD PROVIDE SOLUTIONS ON HOW TO MAKE THE NON-COMPLIERS TO COMPLY WITH THE MCO INSTEAD OF CALLING FOR LEGAL FORMALITIES.