COURT VISIT PROJECT

MEMBERS : JENNIFER ENG; JOAN LAI; TANIA PILLAI;

YAW ERN NIAN; LIM MEI HAN; RONALD FELIX

PART 1 :COURT VISIT – DEFENCE STAGE

• Background of Defendant,• Name :• Nationality : Myanmar• Marital Status : Married twice, both divorced• Children : 7 children, 3 from first husband, 4 from second

husband. The defendant have been in M’sia since 12 yearsold, she followed her mother to come over to M’sia. Whenshe got married, she stayed in Alor Setar since then. Theoffence happened in KL Taman Saga, where the defendantwas transporting dugs to other person. She claims that shehave no idea that the box contains drug where she wasmerely helping a friend to send a gift. This case is initiatedby an active agent provocateur where inflicted 5 persons. 2drug addicts and 3 drug dealers.

• Parties : S ( Defendant ), D (Defence Coucil), P(Prosecution )

EXAMINATION IN CHIEFD: Do you know a person named Jennifer ?

S : Yes, I do.

D: How did you know of her ?

S: At the wet market.

D: Did you know her name is Jennifer ?

S: No.

D: Did she offer you a job ?

S: Yes, she did.

D: Why ?

S: Because the salary is higher than working in Kedah. The job is just todeliver a packet of good.

D: Did Jennifer told you what you should do ? What would you get if you didthe job ?

S: If I deliver the goods, she would pay me money. She also offer me a jobafter I deliver the goods.

…….(skip)

D : Could you recognise defendant 3 and 4 ? Could you show them to the court ?

S : Yes, I can. ( Point at defendant stand, where defendant 3 and 4 was sitting )

D: What happened when you reached Taman Saga ?

S : I called Jennifer while I was in the car and she asked me to meet her at a restaurant.

D: Who was there then ?

S: Jennifer and Misai.

D: Who is Misai ?

S : Jennifer said that he is her boss.

……(skip)D: After that what happened ?S : Misai brought me to meet his friends.D: At that time, how was the weather ?S : It was raining heavily.D: After that what happened ?S : Misao let me meet with some indian guys and say that they

are friends.D : Did you brought the packet with you at that time ?S: No, I have forgotten about it.D: What happened then ?S : I asked if they brought money for me as promised by

Jennifer. They said that they brought and asked me where isthe package. I called my son and they told me that they arestill in Taman Saga. I asked them to help me to bring the ‘giftpackage’ as I have accidentally left it in their car.Subsequently, my son met me and brought me the giftpackage.

D : Then, what happened ?S : After I have received the package, it was snatched

from me. A few people caught me and they pulled mytudung until it covers my face.

…….(skip)

D: Did you know what you were carrying ?S: No, I have no idea what was I carrying at that time.……(skip)

D: Can you recognise Jennifer ?S : Yes. (Police brought Jennifer in and she was identified

by the defendant.) ( The name as stated in I/C ofJennifer is Fong Min Ming )

* END OF EXAMINATION IN CHIEF *

CROSS EXAMINATION BY PROSECUTION….(skip)P : What was Jennifer working as ?S : I have no ideaP : What was your work before getting engaged with

Jennifer ?S: I was working at a cigarette factory in Kuantan.P : How much was your pay ?S: I was paid RM 20 per day.P : So, when Jennifer offered you the job, did she tell

you what kind of job it would be ?S : She did not tell me in detail. She told me she would

offer me a stable job after I have delivered thepackage.

……(skip)

P : What was the size of the package ? ( The picture of thepackage was tendered as shown to the defendant )

P : How big was the box ? Was the box this big ? ( Astationary box from the court room was shown)

S : it’s around that size. The box was in a plastic bag whenI got it.

…..(skip)

P : Do you agree with the aim is to hand over thepackage right ?

S : Yes.

P : I put it to you that you went to Taman Saga to sell 7pound of ganja. I put it to you that you were there tomeet with buyers of drug.

S : No, I do not agree.

P : I put it to you that you were showed the moneyby the Indian guys and then you called yourchildren to bring you the drugs. Do you agree ?

S : No, I do not.

P: I put it to you that after you have received themoney for the drugs, you showed the drugs tothe Indian guys right after you have receiveddrugs from your son.

S: No, I do not agree.

…..(skip)

* END OF CROSS-EXAMINATION *

SUMMARY OF COURT VISIT• Defendant was charged with the possession of

drug under S 36 Dangerous Drugs Act 1952.• Defendant’s argument is that she is not aware of

the possession of drug. She does not know thatshe is delivering drugs. Jennifer did not tell herthat he package is drugs. She has no idea towhom the package was to deliver to.

BURDEN OF PROOF• legal burden of proof- obligation imposed on

party by rule of law to prove a fact in issue.• - Prosecution has legal burden to prove BRD in

criminal cases.

• Evidential burden – It is the burden of adducing sufficient evidence to convince the judge that there is an issue to be put before the court.

• - Usually placed on the defendant.

STANDARD OF PROOF

• BRD : Higher degree of probability (Miller v Minister of Pension) , You must be satisfied so that you are sure.

• BOP : Reasonable degree of probability

(Miller v Minister of Pension)

REVERSE BURDEN OF PROOF

• Burden of proof place on the accused/ defendant

• S 28(3) Misuse of Drugs Act 1971 – legal burdenon accused- BOP – he did not know that the bagcontained a controlled drug.

IMPROPERLY OBTAINED EVIDENCE

• 2 school of thought :

• 1. Improper obtained evidence as long as it isrelevant – admissible no matter how youobtained. ( R v Sang )

• 2. Improper obtained evidence – excluded – S 78PACE 1984.

ENTRAPMENT

• Enticement to commit offence that would not have been committed in the absence of enticement.

• Exclude it obtain by means of entrapment.

S 78(1) PACE 1984.

• Undercover operation by police who have infiltrated criminal gangs in an attempt to gather information and evidence – does not amount to entrapment.

PART 2 : INTERVIEW• Name : Edmund Bon Tai Soon• Age : 37 years old (B.O.D 6th June 1974 in

Kuala Lumpur)• Firm : Chooi & Co.

(Partner – Head of Criminal & Public Interest Litigation Department)

• Number of year of experience : 14 years• Education :

Bellerby's College in Brighton, UK (ALevels)University College London ( LLB) 1996Lincoln Inns (BVC ) 1997Called to Malaysia Bar June 1998 – currentOxford University (LLM) 2006-2007

• Q1 : What makes you take law at first place ?• EB: By accident. Back in Form 4 and 5 we were a bit more enlightened. Started fighting

for church. Did not do very well. Didn’t enjoy sciences [ parents forced us to do science].After SPM, wanted to mess around. We worked for Pizza Hut. Worked as waiters atCorus hotel, formerly known as Ming Court Hotel. We used to give tuition classes. Inever knew I wanted to do Law. Actually HELP was one of the colleges I'm supposed toenrol into. Then came this time where British universities wanted foreign currency. Theycame for education exhibition. Came 1992 offering A-Levels scholarships, then a few ofus got it. I chose Law, because my friends chose law, but I really wanted to chooseEnglish Literature because I like to read and write, other subjects include Economics.Actually in my family, we were against lawyers because when I was young, my nanny usedto tell me I should never become a lawyer because "Lawyers always cheat and lie formoney." That was their perception back then. We used to call her Ah Che. I was very takenin by her repeated statements so it never crossed my mind [to become a lawyer]Enjoyed in school, criminal subject. Came back to chamber, doesn’t do criminal work butstill accepted it. Do more legal aid. This is where I got trained to do criminal work. Set upcriminal department at the firm.Came back height of Reformasi movement. Anwar was sacked. Lot of rally around. Aschambering student ask to defend them. That’s where Ibrahim Ali, M. Puravalen,Ragunath Kesavan and Sivarasa’s group were more active. We call it the Reformasigeneration. A lot of activists friend becomes member of parliament. The people like Amer,Shanmuga, Fahri, Edward, Latheefa Koya and I started to move together. Importantgeneration from the Reformasi Movement. All the people come out from the movementhas done different thing. Younger ones like Bersih generation, it continues lah but wemust not forget what happened back then 1998 (when Reformasi started).

• Q2: Were you a member of any clubs or charity bodies?

EB: In school, I was a prefect, a boy scout and amember of groups like the Tennis Club, ChristianFellowship and Literature & Dramatic Club, so Iwas quite with the establishment.

(1) Former chairperson of BAR Council’sHuman Rights Committee and ConstitutionalLaw Committee. (2) Secretariat member ofhuman rights organisation – SUARAM (SuaraRakyat Malaysia). (3) MyConsti. (4) UndiMsia.(5) Malaysian political commentator inLoyarBurok.

• Q3: What is your alternative career, if law would not be for you ?EB: Fashion Designer. All the merchandise for LoyarBurok and UndiMalaysia, all I design what.

• Q4: If you do not have to work, what would you do ?EB: Yoga. *grin*

• Q5: Legal aid back then 1997. Any difference can you see compared from last time, ie in 1997, till the current time ?EB: The way we communicate. Which is good and bad. At that time we donot have Facebook, Twitter, and we do not use email as often. It’sexpensive, pay a lot just for the line and the internet service were veryslow. Internet café hardly around. Therefore, back then activistcommunicate through traditional method, examples like issues pressstatement. Although it wasn’t as big you can see today, there’s a sea ofpeople [the view] was awesome. We tend to spend a lot more timetogether with more people, more face-to-face talk. Connection betweenactivists were much closer, as back then we tend to call each other byname. Other side of coin, activism is much easier with [the help of] socialmedia. So it [the news] spread very fast of what happened in court andthe bad side is that we don’t have much personal connection [throughsocial media]. Ties are not as strong as before. Now you see 'touch andgo', very difficult to build strong foundation. That time it has strongfoundation but small size. Now government easy to crack down the tiesbecause big groups tend to have weak connection. Now more progressiveeducators with private colleges. At that time, not so many. To empowerthem to entrust to get to this colleges.

• Q 6: What were the landmark criminal cases which you’vetaken ?EB: Read law report lah. Go to Lexis Nexis-CLJ-under 'nameof counsel' just search my name there. Most unforgettableones, Abdul Malek bin Atan v Public Prosecutor [2002] 4MLJ. High Court Case (Kuala Lumpur) Augustine Paul J on29 March 2002. It’s an appeal case on conviction againstrape.[ Edmund Bon for the appellant. Duncan Sikodol DPP forthe respondent. ]

• Q7: Have you taken up any cut-throat defences cases ?EB: That's where two parties blame each other. I havenever run that kind of defence case. Only once there's thiscase throughout my career but we lost. Everytime when wesee these clients we tend to advise them don’t blame eachother, no need to fight already. When you blame eachother, the prosecution has the easiest case to win.

• Q8 : What is your point of view on the decision given in Anwar’s case ?

• EB: We manage to get Saiful statement. Amer and I managed to get Saiful’s statement during preliminary case. Lead by Raja Aziz whom had pulled us through. Sort of bias looking at the ground of judges found was part of our research. My view is very similar to... if you have read the column on LoyarBurok.com under ‘ask Lord Bobo’.

• Q9: Why improperly obtained evidence by the agent provocateurare admissible as evidence in trial ?

• EB: Government [had amended the Drug Act] allow agentprovocateur, entrapment evidence to be used and to be consideredlegal and without you needing to produce the agent provocatorfrom cross-examine police. Dangerous Drug Act. Another thing isthere there is a presumption. So long a person carry a certainamount of drug. The burden is on you to show that presumption iswrong [the defendant]. Automatically shift by the legislation. Don’thave the unused material to allow this Birmingham Six. Withoutunused material [evidence] they would have go to the gallows atthat time. What we see now is that Malaysia is seen to be a verydeveloped country but not so on the Criminal Justice System.

• Q10: What is your advice to young lawyer ?

• EB: As lawyers, must understand that our profession is not a business whilemoney is important. But we owe a duty to society under Legal Profession(Practice & Etiquette) Rules 1978 – uphold the responsibility , uphold justice,to act fearlessly, to raise every issue, advance every argument, to ask everyquestion, which he thinks will help his client’s case. ( Rondel v Worsley ). Whatyou supposed to do as a lawyer ? try to fall within those mantra. These arethings that had not become such a common thing. To have food, nice house,nice car is something about everyone wants to do. It will never end. You’ll keepchasing but what is the thing that makes you happy? Shouldn’t be the sole goalto becoming a lawyer. There must be other reasons to push you to keepworking as a lawyer. What kind of advice which is not difference I can give you ?Try to excel than other people. Don’t be one like a chocolate factory thatdifferentiate yourself. People know what you are, people will hire you, ask foryour views, basically stands out than others. It boils down to what you want tobe, you want society to respect you, if you won’t want it’s ok. These are thingsthat people do not see enough. All these things that people want, as a lawyeryou can always make it. In the end of the day, you’ll survive, question is howmuch you want it to be. Only certain people can do it. They get contractsthrough powerful people, set-up own firm [ do under table money ]. Become alawyer (coming from middle income, or higher income family) can soon reachthe higher income easily. We [should] never forget the lower income becausethey suffer more than us.