Case of the week : Sashi Kumar Suppiah v. Timbalan Menteri Dalam Negeri Malaysia & Ors

SASHI KUMAR SUPPIAH v. TIMBALAN MENTERI DALAM NEGERI MALAYSIA & ORS
HIGH COURT MALAYA, KUALA LUMPUR
SOFIAN ABD RAZAK J
[CRIMINAL APPLICATION NO: 44-171-2009]
24 MARCH 2010

CRIMINAL LAW: Emergency (Public Order and Prevention of Crime) Ordinance 1969 - Section 4(1), detention under - Habeas corpus - Whether applicant denied right to be represented by counsel - Whether Board's refusal to call witnesses to be cross-examined by applicant violated art. 5(3) Federal Constitution - Whether applicant's challenge to appointment of Chairman and members of Board groundless

CRIMINAL PROCEDURE: Habeas corpus - Emergency (Public Order and Prevention of Crime) Ordinance 1969, detention under s. 4(1) - Whether applicant denied right to be represented by counsel - Whether Board's refusal to call witnesses to be cross-examined by applicant violated art. 5(3) Federal Constitution - Whether applicant's challenge to appointment of Chairman and members of Board groundless

CONSTITUTIONAL LAW: Fundamental liberties - Habeas corpus - Emergency (Public Order and Prevention of Crime) Ordinance 1969, detention under s. 4(1) - Whether applicant denied right to be represented by counsel - Whether Board's refusal to call witnesses to be cross-examined by applicant violated art. 5(3) Federal Constitution - Whether applicant's challenge to appointment of Chairman and members of Board groundless

LEGAL PROFESSION: Duty to client - Duty to make every effort to ensure appearance at day of hearing - Legal Profession (Practice and Etiquette Rules) 1978, rr. 6(a), 24(a)

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In the current case, the Applicant applied for habeas corpus application pursuant to s. 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 ('Ordinance'). 

The application was made on the grounds that: 

(1) the Advisory Board ('the Board') denied him his rights to be represented by counsel by refusing to grant a second postponement of his representation hearing as his counsel was engaged in another trial; 

2) the Board, in refusing to call witnesses to be cross-examined by the applicant, violated art. 5(3) of the Federal Constitution ; and 

(3) the appointment of the Chairman and two members of the Board was not lawful thereby violating art. 151(2) Federal Constitution.

In Brief, the Applicant application was dismissed by the court due to the following reasons:

 (1) There was no indication in Form 1 pursuant to r. 3(2) of the Public Order and Prevention of Crime (Procedure) Rules 1972 ('the 1972 Rules') that the Applicant wanted to be represented by counsel.

(2) The Applicant has failed to prove that the appointment of the Chairman and two members of the Board thereof were not in accordance with art. 151(2). The court was of the opinion that Applicant alleged  claims were not credible as his purported belief was based purely on conjecture without any legal basis.

(3) The learned counsel was clearly in breach of both Rules 6(a) and 24(a) of the Legal Profession (Practice and Etiquette) Rules 1978 respectively when he accepted the brief to represent the applicant on the day fixed for the hearing. It was held by the learned judge that a request for a postponement was not a matter of right though the applicant had a right to appoint a counsel of his choice to represent him during the said hearing.

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