MLS II ASSIGNMENT

January 2012 Past Year Paper (Part C)

a) The maximum period that the police can detain Peter for investigation before he is charged. Article 5(4) of the Federal Constitution requires the arrested person to be produced before a Magistrate within 24 hours without unreasonable delay. A similar provision is also enacted into section 28(3) of the Criminal Procedure Code which provides that the police officer making an arrest without a warrant shall without unnecessary delay produce him before a Magistrate within 24 hours excluding time of a journey. However, if the police investigation cannot be completed within 24 hours and there are grounds to believe that the accusation or information is well founded, by virtue of Section 117 of the CPC, the police officer must produce the accused and a copy of entries in the diary before the Magistrate. The Magistrate may authorize further detention on the accused and the Magistrate shall record his reasons for granting the remand order as envisaged in Section 117 (7) of the CPC. According to Section 117 (2) of the CPC, the Magistrate before whom an accused person is produced under this section may whether he has or has no jurisdiction to try the case, authorize the detention of the accused in such custody as follows: If the office which is being investigated is punishable with death or imprisonment of fourteen years or more, the detention shall not be more than seven days on the first application and shall not be more than seven days on the second application. So after Peter is detained, he must be produced before the Magistrate in 24 hours. However, if the police investigation cannot be completed within 24 hours, the police office must produce the accused and a copy of entries in the diary before the Magistrate where the Magistrate may authorize further detention on the accused. Based on the fact of the case, before being charged Peter is accused for murder. Murder is an offence which is punishable with death. So according to section 117(2) the detention shall not be more than seven days on the first application and the detention shall not be more than seven days on the second application. Hence, maximum period that the police can detain Peter for investigation before he is charged is 15 days.

b) Elaborate on the various rights of an arrested person that must be accorded to Peter. According to the law, Peter as a person arrested is still entitled to certain rights. Firstly, it is provided in the Federal Constitution in Article 5(3) which states that when a person is arrested, he shall be informed as soon as may be of the grounds of his arrest. This is also stated in the Criminal Procedure Code (CPC) in section 28A(1) that a person arrested without warrant shall be informed as soon as may be of the grounds of his arrest by the police officer making the arrest. The case of Christie & Anor v Leachinsky decided in the House of Lords explained that the person arrested must be informed of the true grounds of his arrest forthwith and if the reason was withheld, the arrest and detention would amount to false imprisonment, which the police officer may be liable for, until the time he was told the reason. This case was later approved by the Federal Court of Malaysia in the case of Abdul Rahman v Tan Jo Koh. Secondly, Peter should have right to legal counsel or legal representation. This right is provided in the Article 5(3) of the Federal Constitution which states that when a person is arrested he shall be allowed to consult and be defended by a legal practitioner of his choice. This right is further explained in section 28 of the Criminal Procedure Code (CPC) which provides that the right to legal advice upon arrest arises where the arrested person is brought before a Magistrate within 24 hours. The word used is the arrested person must be brought before a magistrate that is regardless of the place and the time. The purpose to bring him before a Magistrate is to obtain a remand order under section 117 of the CPC so that investigation can be completed. However, it was decided in the case of Ooi Ah Pua v OCCJ Kedah/Perlis, the onus is on the police to deny legal representation on the ground that interference may encourage the suspect to fabricate stories. On the other hand, in the case of Saul Hamid v PP, a person in remand proceedings is entitled to legal representation and the burden lies on the police to prove that there will be interruptions in the investigation. Furthermore, the rights of an arrested person are more explained in section 28A of the CPC. Section 28A(2) of the CPC provides that, 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: paragraph (a) communicate or attempt to communicate, with a relative or friend to inform of his whereabouts and paragraph (b) communicate or attempt to communicate and consult with a legal practitioner of his choice. Besides that, subsection 3 states that when the person arrested wants to do the above, he should be allowed as soon as may be.

The duration for the detention, for offences which are punishable with imprisonment of less than fourteen years, it should be not more than four days on the first application and shall not be more than three days on the second application. Whereas, for offences which are punishable with death or imprisonment of fourteen years or more, the detention should not be more than seven days on the first application and not more than seven days for the second application.

c) Explain to Emi and her siblings on the processes involved from the moment they file their case in the High Court up to the stage of pleadings. Emi and her siblings want to file a civil suit against Peter. There are processes that are invoked from the moment they file their case in the High Court. First, Order 5 rule 1 of the Rules of High Court 1980 provides that subject to any written law and of these rules, civil proceedings in the High Court may be begun by writ, originating summons, originating motion or petition. Since Emis claim involves an action on tort, which is claiming for special damages, the proceedings will be begun by writ. For writ, order 5 rule 2 of the RHC 1980 provides that subject to any provision of any written law or of these rules, by virtue of which any proceedings are expressly required to begun otherwise than by writ, the following proceedings must, not withstanding anything in rule 4, begun by writ which are proceedings: (a) in which a claim is made by the plaintiff for any relief or remedy for any tort, other than trespass to land. The court in the case of Seah Choon Chye v Saraswathy Devi [1971] 1 MLJ 112 held that since in this case there were disputed questions of facts and allegations of fraud and misconduct, the application should be commenced by writ. In the case of Jumatsah v Voon Kim Kuet (1981) 1 MLJ 254 that an action is deemed to have been commenced when the plaintiff files the writ at the relevant High Court Registry and pay the requisite fees. Order 6 rule 6(2) of the RHC 1980 provides that the plaintiff or his solicitor must, on presenting a writ for sealing, leave with the Registrar the original and a copy together with as many copies thereof as there are defendants to be served. Order 6 rule 6(3) of the RHC 1980 provides that the Registrar shall assign a serial number to the writ and shall sign, seal and date the writ whereupon the writ shall be deemed to be issued. In the case of Kok Song Kong v Brunei Shell [1988] 2 MLJ 440 the writ was filed only on 18 April 1984 but it was sealed only on 24 April 1984. The limitation period expired on 20 April 1984. Court held that the action was correctly instituted and should have been sealed on the 18 April 1984. After issuance of writ, pursuant to Order 6 rule 2(10 of the RHC 1980, the writ must be endorsed with a statement of claim or with a concise statement of the nature of the claim made or the relief sought by the plaintiff from the defendant.

Where the plaintiff merely makes a general endorsement, the plaintiff need not provide details or particulars, he needs only to inform the defendant as to what is the claim which is being brought against the defendant. Any defect in the endorsement may be rectified by the subsequent delivery of the statement of claim. In the case of Pontin v Wood (1962) 1 QB 594, it was held that an application to set aside a writ which discloses no cause of action is appropriate only where the endorsement shows that the action is an abuse of the process of the court and the court in the exercise of its discretion under Order 70 rule 1 of the Rules of the Supreme Court should not set aside a defective writ and thereby destroy the plaintiffs ability to continue their action merely because the defect has not been cured within the period of limitation. After approval by endorsement, next the writ has to be served. Order 10 rule 1(1) of the RHC 1980 provides that a writ must be served personally on each defendant or by sending it by prepaid AR Registered post addressed to his last known address and so far as is practicable, the first attempt shall be made not later than one month from the date of issue of the writ. Order 62 rule 3 of the RHC 1980 provides that personal service of a document is effected by leaving a copy of the document with the person to be served with the document and, if so requested by him at the time when it is left, showing him: (i) in the case where the document is a writ or other originating process, the sealed copy; and (ii) in any case, the office copy. Leaving the writ to be served with the person being served would mean to hand it to him or to leave it as near him as physically possible so that he may assume possession of it and at the same time he must be told the purpose of such action of leaving the document with him. It is insufficient to effect personal by leaving the writ with the spouse or agent of the person intended to be served. It was held in Thompson v Pheney 1 Down 443 that throwing the writ at the person to be served after his refusal to accept it is sufficient service.

Next comes appearance. When a person is served with a writ, he may enter an appearance and defend the action in person or by a solicitor. The rationale of the process of appearance is to enable the defendant to officially communicate his intention to defend or challenge the action. Time limit for appearance is provided under Order 12 rule 4 of the RHC 1980. When the defendant has failed to enter an appearance within the prescribed time, he is said to be in default of appearance and as such the plaintiff will be entitled to enter the judgement against him, without trial. Modes of entering an appearance are as contained in Form 15 or 16 of the RHC 1980. Order 12 rule 2 of the RHC 1980 provides that a Memorandum of Appearance must be in Form 15 and the Memorandum must be signed by the solicitor representing the defendant, or if the defendant is not represented by a solicitor, he must personally sign the Memorandum of Appearance. An unconditional appearance shall amount to a waiver of any irregularity. Form 16 is filed where the defendant is entering a conditional appearance which means he intends to raise procedural objections to set aside the service of the writ. Pursuant to Order 12 rule 7 of the RHC 1980, the defendant may upon either having entered appearance or conditional appearance within 14 days of entering such appearance, apply to the court for an order setting aside the writ or service of the writ or notice of the writ on him, or declaring that the writ or notice of writ has not been duly served on him or discharging any order giving leave to serve the notice on him out of jurisdiction. Practice Note No 4 of 1980 provides for the procedure to obtain leave of the court to set aside the writ. Upon the granting of such leave, the court must specify the time within which the application to set aside the writ or service must be issued. Judgement in default of appearance is under Order 13 RHC 1980. The instances where judgement in default of appearance may be entered against the defendant: (i) Order 13 rule 1 RHC 1980 claim for liquidated damages (ii) Order 13 rule 2 RHC 1980 claim for unliquidated damages (iii) Order 13 rule 3 RHC 1980 claim for detinue (iv) Order 13 rule 4 RHC 1980 claim for immovable property

(v) Order 13 rule 5 RHC 1980 claim for two or more of the claims stated in rules 1 to 5. Order 13 rule 6 of the RHC 1980 provides that unless the situation falls within the ambit of Order 13 rules 1 4, the plaintiff may upon expiration of time limit to enter appearance and upon due filing of the affidavit of service, proceed with the action as if the defendant had entered appearance. In the case of Lam Kong Co Ltd v Thong Guan Co Ltd [1985] 2 MLJ 429 related to a claim for specific performance. In light of Order 13 rule 12 of the Rules of the Supreme Court 1957, it seems that if the writ is specifically endorsed, as in this case, then the plaintiffs are to proceed with the action as if the defendants had appeared. To obtain a judgement in default, it is not necessary for appearance before the judge or registrar, it is merely an administrative process. Order 13 rule 7 of the RHC 1980 states that for an application to enter a judgement in default of appearance, it must contain the following documents; certificate of non-appearance (Form 17) and either an affidavit (Form 13) filed by or on behalf of the plaintiff to prove due service of the writ or notice of the writ on the defendant, or the plaintiff produces the writ endorsed by the defendants solicitor with a statement that he accepts service of writ on the defendants behalf and two completed judgement forms duly stamped (Form 79). There are two types of judgement in default which are; final judgement in default and interlocutory judgement in default. Lastly, Emi can opt for a summary judgement since her claim cannot be contested by the defendant, therefore she can obtain a judgement at an early stage of the proceedings where the defendant has no defence.

d) Assuming that the defence counsel for Peter was successful in throwing doubt on the prosecution's case resulting in Peter's acquittal; consider whether it is possible for Peter to be brought to the Disciplinary Board for misconduct. Explain who can lodge a complaint and the maximum punishment that the Disciplinary Board can impose on Peter.

Disciplinary proceedings against advocates & solicitor are set out in Part VII of the LPA 1976. According to Section 94 of the Legal Professions Act 1976, all advocates and solicitors shall be subject for the purposes of all disciplinary actions to the control of the Disciplinary Board. One of the misconduct of the advocates & solicitor is listed in Section 94(3)(c) of the LPA 1976 is dishonest or fraudulent conduct in the discharge of his duties. It was the fact of this case that Peter had cheated Susie over a land transaction. So, it is possible for Peter to be brought to the Disciplinary Board for misconduct.

Disciplinary proceedings against Peter can be initiated in 3 ways as being laid out in Section 99 of the Legal Professions Act 1976. First, Emi can lodge a complaint regarding the misconduct of Peter and send the complaint to the Advocates & Solicitors Disciplinary Board. Secondly, any court, judicial officer of the subordinate court or judge of one of the superior courts or Attorney General can refers the complaint against the same Disciplinary Board. Thirdly, the Bar Council or State Bar Committee can makes a complaint of its own motion against the same to the Disciplinary Board.

The punishment that the Disciplinary Board can impose is laid out in section 100(8) of the Legal Professions Act. The maximum punishment that can be imposed by Disciplinary Board towards Peter is he can be strike off from the Roll of Advocates and Solicitors. Among other punishment are : reprimand, fined, and suspension of the advocate and solicitor from practice for such period not exceeding five years as the DB deems appropriate.