HELP University - UKT Y2 Group 4 Project

1. COURT VISIT PROJECT

2. MEMBERS :
 JENNIFER ENG;  JOAN LAI; TANIA PILLAI;
 YAW ERN NIAN;  LIM MEI HAN;  RONALD FELIX

3. 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 years
old, she followed her mother to come over to M’sia. When
she got married, she stayed in Alor Setar since then. The
offence happened in KL Taman Saga, where the defendant
was transporting dugs to other person. She claims that she
have no idea that the box contains drug where she was
merely helping a friend to send a gift. This case is initiated
by an active agent provocateur where inflicted 5 persons. 2
drug addicts and 3 drug dealers.
• Parties : S ( Defendant ), D (Defence Coucil), P(Prosecution )

4. EXAMINATION IN CHIEF
D: 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 to
deliver a packet of good.
D: Did Jennifer told you what you should do ? What would you get if you did
the job ?
S: If I deliver the goods, she would pay me money. She also offer me a job
after I deliver the goods.

5. …….(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.

6. ……(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 is
the package. I called my son and they told me that they are
still in Taman Saga. I asked them to help me to bring the ‘gift
package’ as I have accidentally left it in their car.
Subsequently, my son met me and brought me the gift
package.

7. D : Then, what happened ?
S : After I have received the package, it was snatched
from me. A few people caught me and they pulled my
tudung 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 of
Jennifer is Fong Min Ming )
* END OF EXAMINATION IN CHIEF *

8. CROSS EXAMINATION BY PROSECUTION
….(skip)
P : What was Jennifer working as ?
S : I have no idea
P : 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 the
package.

9. ……(skip)
P : What was the size of the package ? ( The picture of the
package was tendered as shown to the defendant )
P : How big was the box ? Was the box this big ? ( A
stationary box from the court room was shown)
S : it’s around that size. The box was in a plastic bag when
I got it.
…..(skip)
P : Do you agree with the aim is to hand over the
package right ?
S : Yes.
P : I put it to you that you went to Taman Saga to sell 7
pound of ganja. I put it to you that you were there to
meet with buyers of drug.

10. S : No, I do not agree.
P : I put it to you that you were showed the money
by the Indian guys and then you called your
children to bring you the drugs. Do you agree ?
S : No, I do not.
P: I put it to you that after you have received the
money for the drugs, you showed the drugs to
the Indian guys right after you have received
drugs from your son.
S: No, I do not agree.
…..(skip)
* END OF CROSS-EXAMINATION *

11. 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 that
she is delivering drugs. Jennifer did not tell her
that he package is drugs. She has no idea to
whom 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.

12. • 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)

13. REVERSE BURDEN OF PROOF
• Burden of proof place on the accused/ defendant
• S 28(3) Misuse of Drugs Act 1971 – legal burden
on accused- BOP – he did not know that the bag
contained a controlled drug.
IMPROPERLY OBTAINED EVIDENCE
• 2 school of thought :
• 1. Improper obtained evidence as long as it is
relevant – admissible no matter how you
obtained. ( R v Sang )
• 2. Improper obtained evidence – excluded – S 78
PACE 1984.

14. 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.

16. 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) 1996
Lincoln Inns (BVC ) 1997
Called to Malaysia Bar June 1998 – current
Oxford University (LLM) 2006-2007

17. • 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 at
Corus hotel, formerly known as Ming Court Hotel. We used to give tuition classes. I
never knew I wanted to do Law. Actually HELP was one of the colleges I'm supposed to
enrol into. Then came this time where British universities wanted foreign currency. They
came for education exhibition. Came 1992 offering A-Levels scholarships, then a few of
us got it. I chose Law, because my friends chose law, but I really wanted to choose
English 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 used
to tell me I should never become a lawyer because "Lawyers always cheat and lie for
money." That was their perception back then. We used to call her Ah Che. I was very taken
in 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 but
still accepted it. Do more legal aid. This is where I got trained to do criminal work. Set up
criminal department at the firm.
Came back height of Reformasi movement. Anwar was sacked. Lot of rally around. As
chambering 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 Reformasi
generation. A lot of activists friend becomes member of parliament. The people like Amer,
Shanmuga, Fahri, Edward, Latheefa Koya and I started to move together. Important
generation from the Reformasi Movement. All the people come out from the movement
has done different thing. Younger ones like Bersih generation, it continues lah but we
must not forget what happened back then 1998 (when Reformasi started).

18. • Q2: Were you a member of any clubs or
charity bodies?
EB: In school, I was a prefect, a boy scout and a
member of groups like the Tennis Club, Christian
Fellowship and Literature & Dramatic Club, so I
was quite with the establishment.
(1) Former chairperson of BAR Council’s
Human Rights Committee and Constitutional
Law Committee. (2) Secretariat member of
human rights organisation – SUARAM (Suara
Rakyat Malaysia). (3) MyConsti. (4) UndiMsia.
(5) Malaysian political commentator in
LoyarBurok.

19. • Q3: What is your alternative career, if law would not be for you ?
EB: Fashion Designer. All the merchandise for LoyarBurok and Undi
Malaysia, 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 do
not have Facebook, Twitter, and we do not use email as often. It’s
expensive, pay a lot just for the line and the internet service were very
slow. Internet café hardly around. Therefore, back then activist
communicate through traditional method, examples like issues press
statement. Although it wasn’t as big you can see today, there’s a sea of
people [the view] was awesome. We tend to spend a lot more time
together with more people, more face-to-face talk. Connection between
activists were much closer, as back then we tend to call each other by
name. Other side of coin, activism is much easier with [the help of] social
media. So it [the news] spread very fast of what happened in court and
the bad side is that we don’t have much personal connection [through
social media]. Ties are not as strong as before. Now you see 'touch and
go', very difficult to build strong foundation. That time it has strong
foundation but small size. Now government easy to crack down the ties
because big groups tend to have weak connection. Now more progressive
educators with private colleges. At that time, not so many. To empower
them to entrust to get to this colleges.

20. • Q 6: What were the landmark criminal cases which you’ve
taken ?
EB: Read law report lah. Go to Lexis Nexis-CLJ-under 'name
of counsel' just search my name there. Most unforgettable
ones, Abdul Malek bin Atan v Public Prosecutor [2002] 4
MLJ. High Court Case (Kuala Lumpur) Augustine Paul J on
29 March 2002. It’s an appeal case on conviction against
rape.
[ Edmund Bon for the appellant. Duncan Sikodol DPP for
the respondent. ]
• Q7: Have you taken up any cut-throat defences cases ?
EB: That's where two parties blame each other. I have
never run that kind of defence case. Only once there's this
case throughout my career but we lost. Everytime when we
see these clients we tend to advise them don’t blame each
other, no need to fight already. When you blame each
other, the prosecution has the easiest case to win.

21. • 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 provocateur
are admissible as evidence in trial ?
• EB: Government [had amended the Drug Act] allow agent
provocateur, entrapment evidence to be used and to be considered
legal and without you needing to produce the agent provocator
from cross-examine police. Dangerous Drug Act. Another thing is
there there is a presumption. So long a person carry a certain
amount of drug. The burden is on you to show that presumption is
wrong [the defendant]. Automatically shift by the legislation. Don’t
have the unused material to allow this Birmingham Six. Without
unused material [evidence] they would have go to the gallows at
that time. What we see now is that Malaysia is seen to be a very
developed country but not so on the Criminal Justice System.

22. • Q10: What is your advice to young lawyer ?
• EB: As lawyers, must understand that our profession is not a business while
money 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 every
question, which he thinks will help his client’s case. ( Rondel vWorsley ). What
you supposed to do as a lawyer ? try to fall within those mantra. These are
things 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 keep
chasing but what is the thing that makes you happy? Shouldn’t be the sole goal
to becoming a lawyer. There must be other reasons to push you to keep
working 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 that
differentiate yourself. People know what you are, people will hire you, ask for
your views, basically stands out than others. It boils down to what you want to
be, you want society to respect you, if you won’t want it’s ok. These are things
that people do not see enough. All these things that people want, as a lawyer
you can always make it. In the end of the day, you’ll survive, question is how
much you want it to be. Only certain people can do it. They get contracts
through powerful people, set-up own firm [ do under table money ]. Become a
lawyer (coming from middle income, or higher income family) can soon reach
the higher income easily. We [should] never forget the lower income because
they suffer more than us.