MADPET is for the Abolition of Death Penalty, an end of torture and abuse of rights by the police, an end to death in custody, an end to police shoot to kill incidents, for greater safeguards to ensure a fair trial, for a right to one phone call and immediate access to a lawyer upon arrest, for the repeal of all laws that allow for detention without trial and an immediate release of all those who are under such draconian laws.
Group: Ordering Nagaenthran’s lawyers to pay cost an affront to justice
Published: May 31, 2022 5:21 PM
⋅
Updated: 5:22 PM
A
group comprising 20 civil society organisations has criticised
Singapore’s Court of Appeal for ordering Nagaenthran K Dharmalingam’s
lawyers to personally pay the cost of S$20,000 (RM64,000) to the
country’s Attorney-General’s Chambers (AGC).
In a statement, they
said the AGC had initially sought S$40,000 from the lawyers in question,
M Ravi and Violet Netto, for setting out to delay Nagaenthran’s
execution by filing unmeritorious applications.
This was said to have resulted in the incursion of unnecessary costs.
“What
is even more shocking is that the five-judge Court of Appeal, led by
Chief Justice Sundaresh Menon, makes this cost order a month after the
said lawyers’ client, Nagaenthran, had been executed,” said the group.
The
statement was co-signed by 20 local and international civil society
groups including Aliran, Malaysians Against Death Penalty and Torture
(Madpet), the North-South Initiative, Black Women for Wages for
Housework, and Lawyers Collective (India).
They described such an order as an affront to the right to a fair trial and justice.
“This
will seriously impact the ability of lawyers and their clients from
doing the needful, including the filing of needed applications in the
defence of their clients.
“Whilst in some jurisdictions, it seems
possible that the court can order the defendant/accused/convicted person
to pay the cost to the prosecution, it is rare.
“Such laws or practices ought to be repealed,” they said.
They
cited the Law Reform Commission of Western Australia’s 2002 statement
that it is inappropriate for a defendant who is guilty to pay costs to
the prosecution given that they would have already been subject to some
form of court-ordered penalty.
The group noted that in this case, the Singapore court did not order the defendant to pay the cost to the prosecution.
“The
existence of laws, and this action of the Singapore court ordering
lawyers to personally pay the cost of prosecution, is a violation of,
amongst others, of Rule 16 of the UN Basic Principles on the Role of
Lawyers,” they said.
Rule 16 states that governments are to ensure
that lawyers are able to perform all professional duties without any
form of intimidation and improper interference.
Additionally, it
states that lawyers are not to be threatened with prosecution, economic
or any other sanctions for actions done in their line of duty, standards
and ethics.
The group called on the Singaporean government to
immediately repeal its laws that allow for the accused, the convicted or
their lawyers to be ordered to pay costs to the prosecution in criminal
trials.
“It must be appreciated that new evidence or relevant
legal points or arguments may arise at different times, warranting
additional applications.
“Such additional applications should never be seen as an abuse of the court process, more so in death penalty cases.
“Hence,
we call on Singapore to immediately repeal laws that allow for the
accused/convicted and/or their lawyers to be ordered to pay the cost to
the prosecution in criminal trials, an example being Part 18 of
Singapore’s Criminal Procedure Code,” they said.
Section 355
provides for the accused or convicted to pay the cost “to any other
party to the proceedings”, which in criminal trials would be the
prosecution.
Section 357 provides the possibility that a lawyer may end up paying the cost to the prosecution.
The
group argued that it is reasonable for the convicted to be ordered to
pay compensation or damages to the victims of the crime.
However,
they said, there is no justification for orders to pay prosecution costs
in a criminal trial, more so in a death penalty case.
“At end of
the day, it is the role of the courts to consider any or all evidence
and legal arguments, irrespective of how late it comes to the attention
of the court to ensure that there is no miscarriage of justice
especially when the convicted may be executed.”
Mentally impaired
Nagaenthran was a 33-year-old mentally impaired Malaysian, who was sentenced for a drug trafficking offence in Singapore.
He
had been on death row for more than a decade for trafficking about
42.7g of heroin into Singapore, which has some of the world's toughest
narcotics laws.
His lawyers had said he has a mild intellectual disability due to his lower-than-average IQ of 69.
Nagaenthran
was scheduled to hang on Nov 10 last year but was granted a stay of
execution on Nov 8 after his Singaporean lawyer M Ravi filed an
11th-hour constitutional challenge.
Although the Singapore High Court dismissed the challenge, it allowed an appeal to the Court of Appeal.
The
appeal was supposed to be heard in November but was postponed to March
this year when Nagaenthran tested positive for Covid-19 on Nov 9, 2021.
However, his appeal was again rejected on March 29 this year.
Nagaenthran was executed April 27 after his mother failed, the day before, in her last-ditch legal challenge to set aside his conviction and death sentence.- Malaysiakini, 31/5/2022
Singapore’s
Court Ordering Lawyer To Personally Pay
Cost Of SGD20,000 To Attorney General’s Chambers In A Criminal Trial Is A
Violation Of The Right To Fair Trial, And A Harassment Of Lawyers
We, the 20 undersigned groups/organizations
are perturbed to hear that the Singapore Court of Appeal ordered on Wednesday (25/5/2022)
that the 2 lawyers that represented Malaysian Nagaenthran K. Dharmalingam,
being Mr M. Ravi and Ms Violet Netto to personally pay cost of SGD20,000(13,621
Euro/RM64,000) to the Attorney-General's Chambers (AGC). (Straits Times,
25/5/2022). The AGC had originally sought personal costs totaling $40,000
against Mr Ravi and Ms Netto for setting out to delay Nagaenthran's execution
by filing unmeritorious applications, which caused it to incur unnecessary
costs.
Nagaenthran was convicted of
trafficking 42.72g of heroin in 2010 and given the mandatory death penalty. He,
despite being a person suffering from an intellectual disability with an IQ of
69, was subsequently hanged to death at Changi Prison Complex on April 27.
What is even more shocking is that
the five-judge Court of Appeal, led by Chief Justice Sundaresh Menon, makes
this cost order after a month after the said lawyers’ client, Nagaenthran, had
been executed.
RIGHT TO FAIR TRIAL
It is an affront to the right
to a fair trial and justice, if the defendant/accused/convicted and/or their
lawyer is placed at risk of retaliation by prosecutors and/or courts, including
the possibility of being penalized by having lawyers pay cost of the
prosecution in a criminal case. This will seriously impact the ability of
lawyers and their client/s doing the needful including the filing of needed
application/s in the defence of their client.
Whilst in some jurisdictions, it
seems possible that the court can order the defendant/accused/convicted person
to pay cost to the prosecution, it is rare. Such laws or practice ought to be
repealed.
In 2002 the Law Reform Commission
of Western Australia stated that ‘…it is inappropriate for a Defendant who is
guilty to pay costs to the Prosecution given that he or she would have already
been subject to some other form of court-ordered penalty...’ Another reason for
not awarding costs is that the ‘…Prosecution team is supported by state
resources and is serving a public duty….’
VIOLATION OF STATE’S
OBLIGATION TO PROTECT LAWYERS
In this case, the Singapore court
did not order the defendant/accused/convicted to pay cost to the prosecution,
but ordered the lawyers that had acted for him to PERSONALLY pay cost to the
prosecution. The act of ‘attacking’ lawyers directly for things done whilst
acting for a client is totally unacceptable and unjust.
Rule 18 of the Basic Principles
on the Role of Lawyers, a UN Instrument adopted in 1990, states that, ‘Lawyers
shall not be identified with their clients or their clients' causes as a result
of discharging their functions.’ It must be noted that any applications
made to court by a lawyer are done with the instructions and approval of their
client/s, and, as such, even if there are to be cost orders by the court, such
cost orders ought to be against the client, being the accused or convicted in
criminal cases, but never against the lawyer personally.
The existence of laws, and this
action of the Singapore Court ordering lawyers to personally pay cost of
prosecution, is a violation of, amongst others, of Rule 16 of the UN Basic
Principles on the Role of Lawyers.
Rule 16 of the Basic Principles
on the Role of Lawyers states, ‘Governments shall ensure that lawyers (a)
are able to perform all of their professional functions without intimidation,
hindrance, harassment or improper interference; (b… and (c) shall
not suffer, or be threatened with, prosecution or administrative, economic or
other sanctions for any action taken in accordance with recognized professional
duties, standards and ethics.
The existence of laws, that today
allows the court to order an accused or convicted, and/or their lawyer to pay
costs to the prosecution by reason of the manner the defence of the person was
conducted through the legal process or courts would reasonably be considered an
intimidation, harassment and/or an improper interference with the right to a
fair trial, and the professional duties of a lawyer. It is a violation of human
rights and justice, amongst others, of Rule 16.
UNJUST TO NOT BRING TO
ATTENTION OF COURT LEGAL ARGUMENTS OR EVIDENCE
Such laws and practice may deter
lawyers from filing needed applications to bring to the attention of the court
relevant evidence, new legal arguments or points of law – and this may lead to
a miscarriage of justice. We note that ultimately in the criminal justice
system, it is the courts and judges that ultimately decide, and no one else, be
it the prosecution or the accused (or their lawyer), on merits of any
application and whether it will affect conviction or sentence.
Lawyers and/or prosecutors should
never decide on their own whether to bring it to the attention of the court or
not, even if it comes to their attention at the 11th hour. They have
no choice but to bring it to the attention of the courts that will consider and
make a just decision.
Not bringing some matters for fear of cost
orders may lead to a miscarriage of justice. It must be appreciated, that new
evidence or relevant legal points or arguments may arise at different times,
warranting additional applications. Such additional applications should never be
seen as an abuse of the court process, more so in death penalty cases.
Hence, we call on Singapore to immediately
repeal of laws that allows for the accused/convicted and/or their lawyers to be
ordered to pay cost to the prosecution in criminal trials, an example,
being Part 18 of Singapore’s Criminal Procedure Code. Section 355 in this part,
for example, provides for an accused convicted to pay cost to ‘to any other
party to the proceedings’, which in criminal trials would be the prosecution.
Section 357 provides the possibility that a lawyer may end up paying cost to
prosecution.
CONVICTED PAYING COMPENSATION
TO VICTIMS JUST, BUT NOT ORDER FOR CONVICTED (OR LAWYER) TO PAY PROSECUTION COST
IN CRIMINAL TRIALS
It is reasonable that the
convicted be ordered to pay compensation or damages to the victims of the
crime, but there is no justification for orders to pay prosecution cost in a
criminal trial, more so in a death penalty case.
An order for costs and/or
compensation to a successful Defendant/accused who has had his or her charges
dismissed, withdrawn or been acquitted is also just. The purpose of such an
order for costs is to compensate and indemnify the Defendant for the costs,
loss of liberty and other losses he or she has incurred or suffered in the
process of the legal proceedings.
A client also has a cause of
action against his/her own lawyer for, amongst others, professional negligence.
A lawyer too may be subjected disciplinary proceeding for breach of
professional ethics or conduct. BUT, a lawyer should never be made to pay
personally cost of prosecution in a criminal case where he acts for the accused/convicted.
STATE, PUBLIC PROSECUTOR,
JUDGES AND LAWYERS – PROFESSIONALISM TO ENSURE JUSTICE
We are also appalled by the
involvement of the AGC or the prosecution in this application for the lawyers
to personally pay cost. Prosecution should act professionally and
independently, with the objective of ensuring that there are no miscarriage of
justice. It is best that prosecution is not affected emotionally, or is seen to
be targeting or retaliating against lawyers. The AGC, in this case, should
never have applied for or asked for the lawyers to personally pay cost.
Based on the Singapore AGC’s past
Press Releases, it appears that in 22/2/2022, the Attorney Genaral’s Chambers did
file two disciplinary complaints to the Law Society of Singapore (“Law
Society”) against Mr Ravi and another lawyer. On 23/10/2020, the Attorney-General’s
Chambers also did file a disciplinary complaint to the Law Society of Singapore
(“Law Society”) against Mr Ravi Madasamy.
Such past incidents, where the
AGC who also is the Public Prosecutor, filing disciplinary complaints against
individual lawyers is of concern, it raises the perception that the State, the
AGC and/or the Public Prosecutor’s independence and professionalism may be
emotionally compromised. The Public Prosecutor and/or AGC should never be seen targeting
or going after specific lawyers that appeared in criminal trials as lawyers
acting for the accused/convicted.
We urge that Singapore, the
Judiciary, the Public Prosecutor, the Attorney-General’s Chambers and lawyers
act professionally and independently to ensure the Right To A Fair Trial, and
lawyers in trials, especially criminal trials, are not subject any form of intimidation,
hindrance, harassment or improper interference in their carrying out the
professional responsibility as lawyers for the accused/convicted. At end of end
of the day, it is the role of the Courts to consider any or all evidence and
legal arguments, irrespective of how late it comes to the attention of the
Court to ensure that there is no miscarriage of justice especially when the
convicted may be executed.
Charles
Hector
For
and on behalf the listed 20 groups
ALIRAN
MADPET (Malaysians Against Death Penalty and Torture)
Black Women for Wages for Housework
Citizens Against Enforced Disappearances (CAGED),
Malaysia
German Coalition to Abolish the Death Penalty (GCADP)
Haiti Action Committee
International Women's Rights Action Watch Asia Pacific
Japan Innocence and Death Penalty Information Center
Nagaenthran
K Dharmalingam, who was executed on April 27, had been on death row
since 2010 for smuggling 42.7gm of heroin into Singapore.
PETALING JAYA: The two lawyers who acted for executed Malaysian drug
trafficker Nagaenthran K Dharmalingam were yesterday ordered to pay
S$20,000 (about RM64,000) in costs to the Singapore Attorney-General’s
Chambers (AGC).
M Ravi.
According to a report in The Straits Times, the AGC had originally
sought personal costs totalling S$40,000 against M Ravi and Violet Netto
for delaying Nagaenthran’s execution by filing “unmeritorious
applications”, which caused the court to incur unnecessary costs.
A five-member Court of Appeal panel led by chief justice Sundaresh
Menon yesterday said it would be apparent to any “reasonable defence
counsel that the case advanced by the duo lacked factual basis”.
Instead of putting their best case forward at the first instance, it
said, the lawyers “drip fed” the supposed evidence and tendered
documents at the last possible moment.
Nagaenthran, who was executed on April 27, had been on death row since 2010 for smuggling 42.7gm of heroin into Singapore.
During the trial, he was declared to be a person suffering from an intellectual disability with an IQ of 69.
However, the court found him to be not “substantially impaired” and
that he knew fully well that he was carrying out an illegal act,
according to reports.
Days before he was scheduled to be hanged on Nov 10 last year, Ravi
filed an application seeking judicial review of the impending execution.
Arguing that Nagaenthran was mentally disabled, he also filed another
application asking for a stay of execution to allow Nagaenthran to be
assessed by a panel of psychiatrists.
However, the court dismissed the legal actions, saying the case was
baseless and that there was no admissible evidence of any decline in
Nagaenthran’s mental condition.
It also said the proceedings amounted to an abuse of the court’s
processes and were seemingly conducted with the aim of delaying the
execution. - FMT, 26/5/2022
Lawyers for Malaysian drug trafficker ordered to pay $20,000 for incurring unnecessary costs
The court has the power to order personal costs against a lawyer who causes the incurring of unnecessary costs.
PHOTO: ST FILE
SINGAPORE - The two lawyers who acted for Malaysian drug trafficker Nagaenthran K. Dharmalingam in a last-ditch attempt to halt his execution were on Wednesday (May 25) ordered to pay $20,000 in costs to the Attorney-General's Chambers (AGC).
Mr M. Ravi, who did most of the work, was ordered by the Court of
Appeal to bear 75 per cent of the costs, while Ms Violet Netto, who
later took over as the lawyer on record, was held liable for 25 per
cent.
The AGC had originally sought personal costs totalling $40,000
against Mr Ravi and Ms Netto for setting out to delay Nagaenthran's
execution by filing unmeritorious applications, which caused it to incur
unnecessary costs.
Under the law, the court has the power to order personal costs
against a lawyer who causes the incurring of unnecessary costs by acting
improperly, unreasonably or negligently.
On Wednesday, a five-judge Court of Appeal, led by Chief Justice
Sundaresh Menon, said it would be apparent to any reasonable defence
counsel that the case advanced by the duo lacked factual basis.
The court reiterated that the way the case had been conducted was a blatant and egregious abuse of the court process.
Instead of putting their best case forward at the first instance, the
lawyers "drip fed" the supposed evidence and tendered documents at the
last possible moment, said the court.
Nagaenthran was convicted of trafficking 42.72g of heroin in 2010 and
given the mandatory death penalty. His appeals against his conviction
and sentence were dismissed in 2011.
Over the years, Nagaenthran filed a total of seven applications to challenge his death sentence.
Days before he was scheduled to be hanged on Nov 10 last year, Mr
Ravi filed an applicaton seeking judicial review of the impending
execution.
Mr Ravi also filed another application, asking for a stay of
execution for Nagaenthran to be assessed by a panel of psychiatrists.
The main argument was that the death sentence could not be carried out because Nagaenthran was mentally disabled.
The case was argued by Ms Netto, assisted by Mr Ravi, before the apex court on March 1.
On March 29, the court dismissed the legal actions, saying that the
case was baseless and that there was no admissible evidence of any
decline in Nagaenthran's mental condition.
The court said the proceedings brought by Nagaenthran amounted to an
abuse of the court's processes and had been conducted with seeming aim
of delaying his execution.
On April 26, a last-minute application by Nagaenthran's mother to halt his rescheduled execution was dismissed by the court.
In the COURT OF APPEAL of the republic of singapore
[2022] SGCA 44
Civil Appeal No 61 of 2021
Between
Nagaenthran a/l K Dharmalingam… Appellant
And
Attorney-General… Respondent
In the matter of Originating Summons No 1109 of 2021
Between
Nagaenthran a/l K Dharmalingam… Plaintiff
And
Attorney-General… Defendant
Criminal Motion No 30 of 2021
Between
Nagaenthran a/l K Dharmalingam… Applicant
And
Public Prosecutor… Respondent
EX TEMPOreJudgment
[Criminal
Procedure and Sentencing — Compensation and costs — Prosecution urging
court to make costs order against defence counsel personally]
[Civil Procedure — Costs — Personal liability of solicitor for costs]
This
judgment is subject to final editorial corrections approved by the
court and/or redaction pursuant to the publisher’s duty in compliance
with the law, for publication in LawNet and/or the Singapore Law
Reports.
Nagaenthran a/l K DharmalingamvAttorney-General and another matter
[2022] SGCA 44
Court of Appeal — Civil Appeal No 61 of 2021 and Criminal Motion No 30 of 2021
Sundaresh Menon CJ, Andrew Phang Boon Leong JCA, Judith Prakash JCA, Belinda Ang Saw Ean JAD and Chao Hick Tin SJ
25 May 2022
26 May 2022
Sundaresh Menon CJ (delivering the judgment of the court ex tempore):
Introduction
1 On
29 March 2022, the Court of Appeal (“the CA”) dismissed both Civil
Appeal No 61 of 2021 (“CA 61”) and Criminal Motion No 30 of 2021 (“CM
30”) in Nagaenthran a/l K Dharmalingam v Attorney-General and another matter
[2022] SGCA 26 (“the Judgment”). In the Judgment at [70], the CA gave
leave to the parties to raise by notice in writing any question of costs
within seven days of the date of the Judgment. On 12 April 2022, the CA
directed, among other things, that (a) the Attorney-General’s Chambers
(“AGC”) was to file and serve its written submissions on costs by 26
April 2022, and (b) Ms L F Violet Netto (“Ms Netto”) and Mr Ravi s/o
Madasamy (“Mr Ravi”) were to file and serve their reply written
submissions on costs within two weeks from the filing and service of
AGC’s submission on costs.
2 By
way of its written submissions dated 26 April 2022, AGC sought personal
costs orders against both Mr Ravi and Ms Netto as follows:
(a) In respect of CA 61, Mr Ravi and Ms Netto are to be jointly and severally liable for costs of $30,000; and
(b) In respect of CM 30, Mr Ravi and Ms Netto are to be jointly and severally liable for costs of $10,000.
3 On
12 May 2022, Mr Ravi filed a document entitled “Applicant’s Submissions
on Costs”. On the same day, AGC stated that it had no objections to the
late filing of Mr Ravi’s submissions.
In the said document, Mr Ravi
purported to submit, on behalf of Ms Netto and himself, that it is not
just, in all the circumstances, to order personal costs against Ms Netto
and him. Mr Ravi also stated that “a separate consideration should
apply to [Ms Netto]”, though it is not clear what Mr Ravi meant by this.
On 13 May 2022, we directed that (a) Ms Netto was to confirm that the
submissions were filed on her behalf, and (b) Mr Ravi was to state the
basis on which he purported to file the submissions on behalf of Ms
Netto by 18 May 2022. On 18 May 2022, Ms Netto clarified by way of
letter that the submissions were filed in Mr Ravi’s personal capacity
and not on her behalf.
4 At
the hearing before us today, Ms Netto appeared some ten minutes or so
after we had started the proceedings. Shortly before the hearing, she
had tendered a medical certificate which was not valid for excusing the
subject of the certificate from attendance in court. This was issued
yesterday but for unknown reasons was only advanced today. In any event,
she made it clear she was not requesting an adjournment and said only
that she was associating herself with Mr Ravi’s position.
Our decision
5 In our judgment, this is an appropriate case in which personal costs orders ought to be made against both Mr Ravi and Ms Netto.
6 We begin by setting out the legal principles pertaining to personal costs orders against counsel.
7 For CA 61, the relevant provision is O 59 r 8(1)(c)
of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”). This
provision empowers the court to order costs against solicitors
personally where costs have been incurred “unreasonably or improperly”
in any proceedings or have been “wasted by failure to conduct
proceedings with reasonable competence and expedition”. As summarised
most recently by the CA in Munshi Rasal v Enlighten Furniture Decoration Co Pte Ltd [2021] 1 SLR 1277 (“Munshi Rasal”) at [17]:
…
The applicable test in deciding whether to order costs against a
solicitor personally is the three-step test set out by the English Court
of Appeal in Ridehalgh v Horsefield [1994] Ch 205 at 231, which has been endorsed by this court in Tang Liang Hong v Lee Kuan Yew and another and other appeals [1997] 3 SLR(R) 576 at [71] and Ho Kon Kim v Lim Gek Kim Betsy and others and another appeal [2001] 3 SLR(R) 220 at [58]:
(a) Has the legal representative of whom complaint is made acted improperly, unreasonably or negligently?
(b) If so, did such conduct cause the applicant to incur unnecessary costs?
(c)
If so, is it in all the circumstances just to order the legal
representative to compensate the applicant for the whole or any part of
the relevant costs?
8 In relation to CM 30, the court hearing criminal proceedings has the power under s 357(1)(b)
of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”) or its
inherent powers to order that defence counsel pay costs directly to the
Prosecution (see the decision of the CA in Abdul Kahar bin Othman v Public Prosecutor [2018] 2 SLR 1394 (“Abdul Kahar”) at [77]–[80]). In Syed Suhail bin Syed Zin v Public Prosecutor [2021] 2 SLR 377 (“Syed Suhail”)
at [16], [18]–[19] and [21], the CA found that the principles developed
in the context of civil cases, which were outlined at [7] above, were
of general application as well, with the ultimate question being whether
it was just in all the circumstances to make such a personal costs
order.
9 The approach to be taken to the words “improperly”, “unreasonably” and “negligently” is as follows (see Syed Suhail at [20], citing Ridehalgh v Horsefield [1994] Ch 205 at 232–233):
‘Improper’
… covers, but is not confined to, conduct which would ordinarily be
held to justify disbarment, striking off, suspension from practice or
other serious professional penalty. It covers any significant breach of a
substantial duty imposed by a relevant code of professional conduct.
But it is not in our judgment limited to that. Conduct which would be
regarded as improper according to the consensus of professional
(including judicial) opinion can be fairly stigmatised as such whether
or not it violates the letter of a professional code.
‘Unreasonable’
… aptly describes conduct which is vexatious, designed to harass the
other side rather than advance the resolution of the case, and it makes
no difference that the conduct is the product of excessive zeal and not
improper motive. But conduct cannot be described as unreasonable simply
because it leads in the event to an unsuccessful result or because other
more cautious legal representatives would have acted differently. The
acid test is whether the conduct permits of a reasonable explanation. If
so, the course adopted may be regarded as optimistic and as reflecting
on a practitioner’s judgment, but it is not unreasonable.
…
…
[The term] ‘negligent’ should be understood in an untechnical way to
denote failure to act with the competence reasonably to be expected of
ordinary members of the profession.
10 In this regard, we note that in Bintai Kindenko Pte Ltd v Samsung C&T Corp [2018] 2 SLR 532 (“Bintai Kindenko”)at
[67], the CA was of the view that one situation where a solicitor may
be regarded as having acted improperly, unreasonably or negligently,
such that a personal costs order pursuant to O 59 r 8(1) of the ROC may
be made, is “where the solicitor advances a wholly disingenuous case or
files utterly ill-conceived applications even though the solicitor ought
to have known better and advised his client against such a course of
action.”
11 We
approach the present matter with those principles in mind.
Specifically, we consider whether Mr Ravi and Ms Netto acted improperly,
unreasonably or negligently by considering the following questions:
(a) Did Mr Ravi and Ms Netto advance arguments which were unsustainable?
(b) Did
Mr Ravi and Ms Netto act in such a manner to frustrate the lawful
process of execution in abuse of the court’s processes?
(c) If so, did such conduct cause AGC to incur unnecessary costs?
(d) If
so, is it in all the circumstances just to order Mr Ravi and Ms Netto
to compensate AGC for the whole or any part of the relevant costs?
12 Turning
to the first question, in the Judgment, we explained in considerable
detail why there was no basis for CA 61 and CM 30. In the Judgment at
[33]–[34], we held there was no admissible evidence showing any decline
in the appellant’s mental condition after the commission of the offence.
In OS 1109, all that was before the court was the bare assertion of Mr
Ravi as to the appellant’s mental age. This evidence was irrelevant and
inadmissible. Mr Ravi himself acknowledged that he had no medical
expertise and it cannot be disputed that his purported opinion appeared
to be based on a single interaction with the appellant over the course
of the last three years, which lasted less than half an hour. In CM 30,
we also explained why Mr Navinkumar’s evidence was wholly unreliable
(see the Judgment at [48]–[50]).
13 These factual weaknesses and problems with the case would have been apparent to any reasonable defence counsel.
14 Mr
Ravi contended that it was because of his lack of medical expertise
that he sought experts overseas to determine the appellant’s medical
condition, but this fails to address the nub of the issue which is that
the proceedings were undertaken when there was no factual basis. Proceedings may not be instituted on the basis of speculation. In any event, we also noted in our judgment that none
of the appellant’s experts had examined or even spoken to the appellant
or had seen the appellant’s present medical reports (see the Judgment
at [54]). Coupled with the evidence of the prison officer in charge of
observing the appellant (see the Judgment at [35] and [50]), we think
that it should have been apparent to any reasonably diligent defence
counsel that CA 61 and CM 30 lacked factual basis. Further, as we also
highlighted in the Judgment at [36]–[37], in so far as there was highly
probative evidence to aid the court’s assessment of the appellant’s
mental condition, objections were mounted on the appellant’s behalf to
prevent the court from accessing that evidence.
15 Mr
Ravi also submitted that novel issues and questions of public
importance were raised, but this is irrelevant without a relevant
substratum of facts to support raising those issues and questions before
the court. In the present case, there is simply no relevant substratum
of facts.
16 Aside
from this, in our Judgment, we had also traced the timeline of events
which led us to find that the proceedings constituted a blatant and
egregious abuse of the court’s processes (see the Judgment at [8]–[24]).
This is not the occasion to repeat all that we have said. But we do
observe, for example, that instead of putting their best case forward at
the first instance, Mr Ravi and Ms Netto each drip-fed the supposed
evidence and arguments. For instance, upon the court declining his
request on 9 November 2021 for an adjournment, Mr Ravi then sought to
file two expert reports dated 5 November 2021 and 7 November 2021
respectively. To date, Mr Ravi has also failed to provide a satisfactory
explanation as to why the evidence of Mr Navinkumar was not provided to
the court earlier when the same could have been provided to the
appellant’s expert days before. As for Ms Netto, no explanation was
provided for her tendering of a speaking note and further expert report
at the last possible moment, during the hearing on 1 March 2022 itself.
As we observed in the Judgment at [24]:
…
when every single action on the part of one party is done in a manner
that is contrary to the applicable rules and contrary even to basic
expectations of fairness to the other party and of courtesy to the
court, it becomes difficult to accept that there is an innocent
explanation for this. This is heightened when either no explanations are
offered, or explanations that are offered are shown to be untrue.
17 In this light, it is simply impossible to contend that the AGC did not incur unnecessary costs.
18 This
leads to the question of whether it is just to make the order. Mr Ravi
first contended that such an order could not be made against a solicitor
who is no longer practising. No authority was cited and we think this
is because it is a plainly bad point. The court imposes a personal costs
order to reprobate the unsatisfactory conduct of counsel appearing
before it. The fact that counsel subsequently ceases or is unable to
practice cannot affect the ability of the court to make such an order.
19 Mr
Ravi also made some general comments and submissions to the effect that
this would constitute a reprisal against the Bar and claimed that both
advocates and forensic psychiatrists were being chilled and discouraged
from taking on engagements to act for accused persons if such orders
were made. With respect, this was a baseless submission. No person,
psychiatrist or lawyer, has a licence to appear before a court and act
improperly; and if the making of an adverse costs order would deter such
conduct, then that is precisely what the power is there for.
20 We
turn finally to the quantum of costs. We have outlined the AGC’s costs
submissions, but we do not accept this as it stands. Although AGC has
referenced the Costs Guidelines and asked for costs of $30,000 for CA 61
which falls at the lower end of those guidelines, and $10,000 for CM
30, we consider that costs orders of $15,000 for CA 61 and $5,000 for CM
30 are appropriate because the facts in this case were not complex (as
can be seen from the short reply affidavits tendered by AGC) and the
applications in CA 61 and CM 30 concerned the same factual matrix and
essentially made very similar arguments, which was in fact a point we
noted in explaining that there was an abuse of process.
21 We
also disagree with AGC’s submission that Mr Ravi and Ms Netto should be
jointly and severally liable for the costs incurred in the proceedings.
AGC does not contend that Ms Netto was involved in the commencement and conduct of CA 61 and CM 30 prior to
17 January 2022. It is not clear then, why she should bear
responsibility or the attendant consequences for actions in which she
played no part. Conversely, for conduct which took place after 17 January 2022, notwithstanding Mr Ravi’s plainly substantial role (such asin
drafting the consolidated submissions and in apparently giving
instructions to Ms Netto throughout the course of the hearing; see the
Judgment at [22]), it was Ms Netto who
was the solicitor on record. In short, and without more, we do not
think that Mr Ravi’s and Ms Netto’s conduct of the proceedings, when
they were each the solicitor on record at different points in time, can
or should be attributable to the other.
22 In
the circumstances, we consider that Mr Ravi and Ms Netto should each be
liable only for the costs incurred and wasted as a result of their
personal conduct during their respective periods acting as the
appellant’s solicitor on record. AGC has provided a breakdown of the
work it undertook for CA 61 and CM 30 and it appears that the majority
of the work undertaken by AGC took place before the change in solicitor,
and is therefore attributable to Mr Ravi’s initiation and conduct of
the proceedings, rather than to Ms Netto’s subsequent continuance of the
proceedings.
23 In all the circumstances, we hold that:
(a) For
CA 61, a costs order of $15,000 is appropriate. Mr Ravi and Ms Netto
should be liable for 75% of the costs ($11,250) and 25% of the costs
($3,750) respectively.
(b) For
CM 30, a costs order of $5,000 is appropriate. Mr Ravi and Ms Netto
should be liable for 75% of the costs ($3,750) and 25% of the costs
($1,250) respectively.
Sundaresh Menon
Chief Justice
Andrew Phang Boon Leong
Justice of the Court of Appeal
Judith Prakash
Justice of the Court of Appeal
Belinda Ang Saw Ean
Judge of the Appellate Division
Chao Hick Tin
Senior Judge
The appellant in CA/CA 61/2021 and applicant in CA/CM 30/2021 not in attendance and unrepresented;
Wong
Woon Kwong, Tan Wee Hao and Andre Chong (Attorney-General’s Chambers)
for the respondent in CA/CA 61/2021 and CA/CM 30/2021.
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print-friendly version.
SUHAKAM ‘dead’ with no HR Commissioners for 1 Month is
unacceptable
We,
the 8 undersigned organizations and groups are perturbed that the Malaysian
Human Rights Commission (SUHAKAM) has ceased to function when the term of
office of the previous Chairman and SUHAKAM Commissioners came to an end on
27/4/2022, and to date no new Chairpersons and HR Commissioners have been
appointed.
Without
any HR Commissioners, SUHAKAM cannot play the vital role it has been playing in
Malaysia. They can make no SUHAKAM statements, recommendations to the government
or even hold public inquiries. Human Rights suffers.
A
media report on 11/5/2022, stated that the ‘…Human Rights Commission of
Malaysia (Suhakam) is conducting an investigation into alleged human rights
violations against junior doctors at public hospitals in Malaysia…’ raises a
fundamental question, as to how SUHAKAM, with NO Commissioners at present, can even
make such a statement. SUHAKAM employees reasonably cannot act on their own if
and when there are no Commissioners. (FMT, 11/5/2022).
SUHAKAM
is a statutory body created by reason of the Human Rights Commission Of
Malaysia Act 1999, and the Commission is made up of the appointed HR
Commissioners, appointed for a 3-year term. When there are NO Commissioners, as
had been the case for the past month, SUHAKAM ceases to function, and will not
be able to do anything including issuing statements, appointing and also providing
directions to SUHAKAM’s staff/employees.
Noting
the important role that SUHAKAM has been playing in Malaysia, in terms of the
promotion and defense of human rights, it is an embarrassment for SUHAKAM to
find itself in a comatose stage by reason of a failure of government to ensure
that SUHAKAM always have Commissioners.
It
must be pointed out that the process of identifying and selecting new SUHAKAM Commissioners
began in October 2021, and so the failure of the appointment of Chairperson and
new Commissioners on or before the end of the term of previous Commissioners on
27/4/2022.
The
choice of the future Chairperson and SUHAKAM Commissioners is crucial, for that
determines the future functioning and effectiveness of the National Human
Rights Institution.
In
the past, from the birth of SUHAKAM, its effectiveness was not so evident but
it changed after Tan Sri Hasmy Agam (2010-2016), and later Tan Sri Dato' Razali
bin Ismail(2016-2019) were appointed as
Chairpersons of SUHAKAM. The strong effective SUHAKAM continued on until April 2022.
The
number of Commissioners who will act without fear or favour for human rights in
SUHAKAM is crucial, for all decisions of SUHAKAM requires consensus failing
which the decision by a two-thirds majority of the members present at meetings shall
be required. If the wrong kinds of Commissioners are appointed, we may end up
with a less vocal, possibly ‘pro-government’ SUHAKAM who may be disinclined to
speak up when required, or even hold public inquiries, more so when the alleged
perpetrators may be State or State officers.
If
the wrong Chairperson and Commissioners are chosen, there may be no more public
inquiries on matters of human rights, like the Public Inquiry Into The
Disapperances Of Joshua Hilmy And Ruth Sitepu, Public Inquiry Into The
Disappearance of Pastor Raymond Koh And Amri Che Mat, Public inquiry into the
incidents during and after the public assembly of 28 april 2012, Public Inquiry
into the Infringement of Human Rights Including the Use of Excessive Force
Prior to and During the Assembly on 9 July 2011, Public Inquiry Into The Arrest
And Detention Of Five Lawyers Of The Kuala Lumpur Legal Aid Centre on 7 May
2009, Public Inquiry Into The Allegation Of Excessive Use Of Force By Law
Enforment Personnel During The Incident Of 27th May 2008 At Persiaran Bandar
Mahkota Cheras 1, Bandar Mahkota Cherasil and inquiries into death in custody.
The
days when the Human Rights Commission of Malaysia (SUHAKAM) was effectively an
independent organisation which investigates complaints for the violation of
human rights may come to an end.
We
hope that the members of the Commission appointed by the Yang di-Pertuan Agong
on the recommendation of the Prime Minister are done without any more delay.
Charles Hector
For and on behalf of the 8 groups/organizations
listed below
ALIRAN
MADPET(Malaysians
Against Death Penalty and Torture)
Greenpeace
Malaysia
International
Women's Rights Action Watch Asia Pacific (IWRAW AP)
Mah Weng Kwai says having no commissioners will affect advocacy work and maintaining the good standing of Suhakam.
PETALING JAYA: The Human Rights Commission of Malaysia (Suhakam) does
not have any commissioners after their term expired yesterday, similar
to what happened twice previously.
Former commissioner Mah Weng Kwai said a selection committee met on Monday and the process would take some time.
“As of today, there are no commissioners and this will affect
advocacy work and maintaining the good standing of Suhakam,” he told
FMT.
Mah said only the Suhakam management functioned and no policy decisions could be made.
There are nine commissioners who have a three-year term from 2019.
Five, including Mah, a former Court of Appeal judge, served two terms, the maximum allowed under the Suhakam Act.
The other four – Osman Hashim, Noor Aziah Mohd Awal, Madeline Berma
and Hishamudin Md Yunus – could be reappointed for another term.
FMT understands that Hishamudin, also a retired Court of Appeal judge, had expressed his wish not to be reappointed.
Mah said that three years ago, it took the government two months to appoint the commissioners.
“It is in the best interest of the public that the commission is up
and running at all times as there are always serious challenges on human
rights issues like the threat to the independence of the judiciary,” he
said.
In 2016, under Najib Razak’s administration, Suhakam was also left without commissioners for almost two months. - FMT, 27/4/2022
Five Suhakam commissioners complete two service terms
Published: Apr 27, 2022 10:22 AM
⋅
Updated: 10:25 AM
Five Suhakam members completed their second term at the human rights commission yesterday.
They are Mah Weng Kwai, Jerald Joseph, Nik Salida Suhaila Nik Saleh, Lok Yim Pheng and Godfrey Gregory Joitol.
All five started their tenure as Suhakam commissioners in 2016 during then prime minister Najib Abdul Razak's administration.
Each
term lasts three years. Section 5(4) of the Human Rights Commission of
Malaysia Act 1999 (Suhakam Act) does not allow a third term.
Four
other commissioners completed their first term including Othman Hashim
(outgoing chairperson), Madeline Berma, Mohd Hishamuddin Md Yunus and
Noor Aziah Mohd Awal.
Putrajaya has yet to announce the list of replacement commissioners.
Suhakam
members are appointed by the Yang di-Pertuan Agong on the
recommendation of the prime minister in consultation with an appointment
committee chaired by the chief secretary of the government.
According
to Section 11 of the Suhakam Act, the committee must also consist of
the chairperson of Suhakam and three members of civil society who have
practical experience in human rights matters, appointed by the prime
minister.
In previous cycles, there have been incidents where
there will be a gap of several months before a new batch of
commissioners is appointed. - Malaysiakini, 27/4/2022
16th
Death In Police Custody in 2022, and disclosure of Coroner’s investigation and
status of reform implementation to reduce deaths, and facilitate investigation
needed
Pre-detention
medical check-up, CCTV/Body Cams, Coroners
16th death in police
custody in Malaysia in 2022, and this does not include other deaths in custody
at other government facilities. This time, it was a 48-year-old man who was
temporarily placed at the Seri Alam lock-up while awaiting imprisonment after
being sentenced to a five-month jail term from April 27 for drug-related
offenses.(FMT, 8/5/2022). Why was he placed in a police lock-up, when he really
ought to have immediately been sent to prison?
It must be pointed out that
persons held in police lock-ups are persons or suspects arrested, who need to
be placed in police custody, including detained in a police lock-up, for the
purposes of police completing their investigations. Other persons should be
detained in the appropriate detention facility.
With so many deaths in police
custody, one needs to be reminded, amongst others, of rights of persons
arrested, the right of police to detain further to complete investigations, the
status of the needed reforms to ensure proper behavior of police and reduce
police responsibility for deaths and whether our Coroners are effectively
carrying out their responsibilities.
Detention in police lock-ups
unnecessary for all police investigations
After the cases of of former
Prime Minister Najib, his spouse Rosmah, the current UMNO President Zahid
Hamidi and several others, Malaysians now know that police need not detain any
suspect for the purposes of completing police investigation. Persons arrested
can be immediately released, requiring them to turn up at the police station at
particular times for police to continue their investigations.
If a detainee elects ‘silence’,
is further detention a ‘torture’?
A suspect or a person
investigated have the right to silence, in that he/she ‘…may refuse to answer
any question the answer to which would have a tendency to expose him to a
criminal charge or penalty or forfeiture…’(Section 112, Criminal Procedure
Code). Today, in Malaysia, a ‘confession’ given by an accused person whilst in
police custody can no longer be used by the prosecution – a right move as such
confession may have been as a result of torture, lies, etc. Section 113 (3) states
that, ‘Where the accused had made a statement during the course of a police
investigation, such statement may be admitted in evidence in support of his
defence during the course of the trial.’, which means that such statements can
be used by the accused person, but not the prosecution. This is the general
rule.
Section 28A(4) of the Criminal
Procedure Code states that, ‘Where the person arrested has requested for a
legal practitioner to be consulted, the police officer shall allow a reasonable
time- (a) for the legal practitioner to be present to meet the person arrested
at his place of detention; and (b) for the consultation to take place.’ The
police officer shall defer any questioning or recording of any statement from
the person arrested for a reasonable time until the communication or attempted
communication with the lawyer happens.
If a suspect and/or witness take
the option to remain silent, what really is the purpose of keeping a suspect in
police detention? All that police investigation entails then would be the
taking of one’s photograph, fingerprints and maybe in some cases, DNA evidence.
A person may need to be detained maybe if the police, as part of its
investigation, wanted to do an identification parade. As such, how much time
does a suspect really need to be detained – and during his/her detention, how
much time did he/she spend with the investigation officer. How many hours did
he/she simply spend in the lock-up, and would this not be considered ‘torture’,
noting that the police in Malaysia is prohibited from using torture as part of
their investigations.
Another problem could be the
insufficiency of qualified investigation officers in the police, and the
available few is burdened with simply having to investigate too many cases at
the same time – so suspects awaiting their turn to be investigated languish
unnecessarily in police detention.
Immediate Medical check-up for
arrestees who will be detained
Death in police custody have been
a concern for a long time, and in fact, the Malaysian government is in the
process of making sure that every person arrested, and to be detained ought to
immediately be inspected by a medical practitioner – this would determine the
health/medical condition of such detainee, and will also ensure speedy
healthcare if needed to prevent any deterioration of health and/or death. As
government healthcare facilities and doctors are available in most places,
implementation of this practice should not have been delayed. A medical
examination will also help determine whether a person who later dies, did not
die by reason of matters that happened post arrest and/or police custody.
The Minister, In a Parliamentary
Reply on 16/12/2021, informed us about the set-up of Custodial Medical Unit
(CMU), which will also do a medical examination of detainees before they are
placed in police lock-ups. This, according to the Minister, will start as pilot
projects in 5 police lock-ups. This is not acceptable, and it must be
implemented immediately nationwide, and until then persons arrested must
undergo medical examinations by government doctors before being detained. This
is rather easy to be done, and must be a standard operating procedure for all
arrested, who will be detained in police custody.
CCTV and body-cams
CCTV at police stations has also
been on the agenda for some time. If there are CCTV recordings that documents
what happens to a person from the point of arrest and for the times one is in
police custody, it would be evidence that the police is not responsible for the
causing of the death of a detainee, and that the police conducted themselves in
accordance with Malaysian law including the fact that there was no torture.
In Hong Kong, it has been the practice
for several decades now, that the suspect and/or lawyer is provided with a copy
of CCTV recording proving that the law was complied with by the police.
In Malaysia, the problem that has
arisen before even in inquests was the fact that there were no CCTV recordings –
sometimes because there were no CCTV installed, the CCTV was not functioning or
there is simply no CCTV recordings as the CCTV installed does not have
recordings and/or storage capacity.
The government recently talked
about body-cams and cameras on police vehicles, which would help ensure the
available of documentary evidence right from the point of arrest, and MADPET urges
immediate disclosure on the current status of these CCTVs and body-cams.
Coroner – has he been
informed, and has he begun inquiries?
There is still a disturbing
silence on the part of the Coroners in Malaysia regarding the status of their
inquiries into these deaths in custody, and media reports have mostly been
about police investigation and findings. The Coroner must announce what is
happening on their inquiries of the now 15 deaths in custody in Malaysia. What
are the Coroner’s findings? Will there be public inquest, or not?
It will be good if the name of
the Coroner responsible for each death be informed, so members of the public
with relevant information may be able to forward such information directly to
the Coroner, as many may be unwilling to disclose such information, more so if
the information indicates possible police responsibility in the deaths.
MADPET (Malaysians Against Death
Penalty and Torture) urges the Malaysian government to prioritize the
elimination and the investigation of the deaths in custody in Malaysia. Post
arrest pre-detention medical examination, CCTV and body-cams and other things
that need to be done must be expedited. Lives matter, even those of suspected
and convicted criminals.
Charles
Hector
For
and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
A man awaiting imprisonment died in a lock-up at Seri Alam, Johor, this morning.
PETALING JAYA: Another man has died in custody – the 16th case this year – this time at a police station in Johor.
The deceased was a 48-year-old man who was temporarily placed at the
Seri Alam lock-up while awaiting imprisonment after being sentenced to a
five-month jail term from April 27 for drug-related offenses.
Bukit Aman’s integrity and standards compliance department director
Azri Ahmad said the man was found in a weak condition at the lock-up
this morning.
A doctor from Masai health clinic conducted a checkup and confirmed his death at 9.35am.
Fifteen custodial deaths have been reported this year alone before the latest incident.
The last case was reported on April 14, when a 45-year-old male
detainee at the lock-up of Kajang police station died on the way to
hospital on April 13, after he was “seen to be having seizures” by
personnel on duty. - FMT, 8/5/2022
Is it the
Minister or is it the Public Prosecutor that ‘protects’ Directors and/or humans
in companies from being charged when OSH laws are breached and worker/s die?
174 workers
killed and 249 disabled in 6,686 workplace accidents in 2021
We, the 15 undersigned
groups, trade unions and organization are concerned as to why human persons
responsible for worker safety and health are still not being charged in court
even when workers are killed or injured despite the fact that the Occupational
Safety and Health Act 1994 provides for this. Prosecution for offences under this
Act requires the consent of the Public Prosecutor, and as such one wonders whether
it is the Public Prosecutor or is it the Minister that is deciding to charge only
the company, but not the director, manager, secretary or other like officer
of the body corporate even when workers are killed.
It was recently reported that a
state-linked company (SLDB Management Sdn Bhd) and a manufacturing firm was found
guilty for the offence under Section 15(1) of the Occupational Safety and
Health Act 1994, for neglecting safety aspects, which resulted in the deaths of
their workers which provides for a fine of up to RM50,000 or a jail term of up
to two years, or both, upon conviction. It appears from the media report that
no ‘director, manager, secretary or other like officer of the body corporate…’
was charged(Star, 8/4/2022)
After state-linked SLDB
Management Sdn Bhd pleaded guilty on Friday (April 8), the company was ordered by
the Sessions Court to pay a fine of RM15,000 for the death of
Indonesian worker Cahya Abdullah at Ladang Bombong 1, Kampung Bombong in Kota
Marudu on May 25 2021. SLDB Management was also ordered to pay RM5,000 by April
14 to Cahya's next of kin.
In the other case, Englen
Manufacturing Sdn Bhd after its representative admitted to the charge, was
sentenced with a fine of RM20,000 or three months' jail. The
company was accused of failing to ensure the safety of its worker Bonnie Roger,
who was involved in a fatal accident at its premises on May 15 last year at the
Kota KInabalu Industrial Park here.
What is of concern is that no
human decision maker or owner of these companies were charged for these offences
despite the fact that Section 52 of the Occupational Safety And Health Act 1994
states ‘(1) Where a body corporate contravenes any provision of this Act or any
regulation made thereunder, every person who at the time of the commission of
the offence is a director, manager, secretary or other like officer of
the body corporate shall be deemed to have contravened the provision
and may be charged jointly in the same proceedings with the body corporate or
severally, and every such director, manager, secretary or other like officer of
the body corporate shall be deemed to be guilty of the offence.’ Subsection (2)
states, (2) A person may be proceeded against and convicted under the
provision of subsection (1) whether or not the corporation has been proceeded
against or has been convicted under that provision.
It must be pointed out that in a company,
all decisions are made by human persons, including ensuring the safety of
workers. It is absurd that only the company is charged in court, and not the
human decision makers or those responsible. With regards to a company, they
can only be fined – it obviously cannot be imprisoned.
Concern arises about this
practice of not charging Directors and officers of the company, more so when it
is a government linked company (GLC), where Directors may be politically
appointed persons is a worry. Directors of companies have a great
responsibility not just to the shareholders but also to all workers, and
actions or omissions be it intentionally or negligently done, to avoid making
workplaces safe to protect workers and their health should no longer be
tolerated.
Even in the recent 2 cases in
Sabah, we find that the companies immediately admitted guilt, and as such there
will also not be any grounds of judgment that can be educational to other
employers to ensure that they do not ignore safety and health of workers.
The cases was dealt at the
Sessions Court, even when death was a result of the fault of the employer, and
this may also lead to non-dissemination and/or reporting of the grounds of
judgment in law journals.
We take the view that when a
worker dies, or is injured by reason of an employer’s failure to ensure the
safety and health of a worker, this matter should be dealt by the High Court,
and a higher penalty ought to be imposed on the guilty employer company,
and its a director, manager, secretary or other like officer of the body
corporate. Black listing of such convicted companies and its directors may also
be needed to ensure employer’s place the highest regard to complying with the
law concerning occupational health and safety.
Statistics from the Department of
Occupational Safety and Health (DOSH) showed that there were 6,686 workplace
accidents reported as of December 2021, of which 174 were fatal. Another
249 victims became disabled. This shows that this issue is a very
serious issue for the protection of workers.
Prior Written Consent Of The Public Prosecutor – Who decided
not to charge Directors,etc?
Section 61 of the Occupational
Safety And Health Act 1994 states that ‘Prosecutions in respect of offences
committed under this Act or any regulation made thereunder may, with the
prior written consent of the Public Prosecutor, be instituted and
conducted by an occupational safety and health officer or by an officer
specially authorized in writing by the Director General subject to the
provisions of the Criminal Procedure Code.
By reason of the written consent
requirement, the Public Prosecutor may be the person refusing to give the
required consent if and when the Ministry wants to charge certain directors,
managers, secretary or other like officer of the body corporate, and so they
cannot be charged.
Alternatively, it may the
officers of the Ministry, being the ‘…occupational safety and health officer or
by an officer specially authorized in writing by the Director General…’ who
chooses not to charge any directors, managers, secretary or other like officer
of the body corporate.
This matter needs to be
clarified, and the reasons for not charging the human persons in these
companies need to be investigated. We hope that there is no corruption or abuse
of power involved.
The maximum fine from RM50,000
will be increased to RM500,000 by virtue of the Occupational Safety And Health
(Amendment) Act 2022, which was gazetted on 16/3/2022, but is not yet put into
force by the Minister, being the Human Resource Minister. Why the delay?
As such, the Session Courts
imposition of fines of only RM15,000 and RM20,000 in the cases mentioned above
where workers died by reason of the companies’ breach of the law, when
Parliament had already decided to raise fines is also questionable. True, that
the current maximum applicable in this cases was only RM50,000, and justly
where the companies admitted guilt, maximum fines should have been imposed
since workers died by reason of the companies breach of the law.
The Public Prosecutor and the
Minister must explain why directors,
manager, secretary or other like officer of the body corporate are not being
charged and jailed more so in cases when the breach of law resulted in injury
or death of workers.
Every time that a company is
charged for such offences, the persons who are responsible for the acts/omissions
that resulted in the violation of the law reasonably must also be charged. It
is odd if just the company is charged, and not the human persons responsible.
Charles
Hector
Apolinar
Z Tolentino Jr.
For and on behalf of the following
15 groups/organisations
WH4C (Workers Hub For Change)
Building and Wood Worker's International (BWI) Asia
Pacific
Labour Law Reform Coalition(LLRC)
ALIRAN
Persatuan Sahabat Wanita Selangor
Asociación de Trabajadoras del Hogar a Domicilio y de
Maquila–Atrahdom, Guatemala
Black Women for Wages for Housework
Clean Clothes Campaign (CCC) SEA Coalition
Haiti Action Committee
MADPET (Malaysians Against Death Penalty and Torture)
Malaysian Physicians for Social Responsibility (Dr R S
McCoy)
NAMM (Network of Action for Migrants in Malaysia)
North South Initiative
The William Gomes Podcast, United Kingdom
Women of Color/Global Women’s Strike
Two Sabah firms fined for negligence over workers' death
KOTA
KINABALU: A state-linked company and a manufacturing firm have been
fined by the Sessions Court here for neglecting safety aspects, which
resulted in the deaths of their workers.
A representative of
state-linked SLDB Management Sdn Bhd pleaded guilty on Friday (April 8)
and was ordered to pay RM15,000 for the death of Indonesian worker Cahya
Abdullah at Ladang Bombong 1, Kampung Bombong in Kota Marudu on May 25
last year.
The offence under Section 15(1) of the Occupational
Safety and Health Act 1994 provides for a fine of up to RM50,000 or a
jail term of up to two years, or both, upon conviction.
Judge Elsie Primus also ordered SLDB Management to pay RM5,000 by April 14 to Cahya's next of kin.
Cahya died after falling off a trailer mounted on a tractor which was deemed unsuitable for carrying workers.
In
another case, judge Noor Hafizah Mohd Salim imposed a fine of RM20,000
or three months' jail against Englen Manufacturing Sdn Bhd after its
representative admitted to the charge.
The company was accused
of failing to ensure the safety of its worker Bonnie Roger, who was
involved in a fatal accident at its premises on May 15 last year at the
Kota KInabalu Industrial Park here.
According to the charge sheet, Bonnie's death resulted from unsafe work procedure involving a welding machine. - Star, 8/4/2022
Work towards zero workplace accidents, urges NIOSH chairman
PETALING
JAYA: There should be zero accidents at workplaces, if possible, says
National Institute for Occupational Safety and Health (NIOSH) chairman
Datuk Wilson Ugak Kumbong.
Wilson urged employers and employees to practise a safe and healthy working environment to prevent any mishaps.
Therefore,
he urged stakeholders to work as a team and conduct activities related
to safety and health to ensure a safe work environment.
“At least, we want zero accidents or casualties.
“Our
goal is to reduce accidents at workplaces,” he said at the sidelines of
the Occupational Safety and Health Day celebration.
Statistics
from the Department of Occupational Safety and Health (DOSH) showed
that there were 6,686 workplace accidents reported as of December 2021,
of which 174 were fatal. Another 249 victims became disabled.
The
sector which contributed to the highest number of deaths during the
period was construction, where 65 casualties were reported.
As
at the first quarter of this year, there were 1,703 such accidents
reported which claimed the lives of 48 while 54 became disabled.
The
manufacturing sector contributed to the highest number of fatalities
coming from manufacturing and construction which reported 16 deaths
each.
Meanwhile, Wilson also advised the public to continue to
observe standard operating procedure (SOP) to curb Covid-19, despite the
announcement on relaxations.
“Children as young as two to three
years old have yet to be vaccinated and only those aged five and above
have been vaccinated. So if possible please observe the SOP while you
are with your family,” he said.
“If there is a big crowd, why not use the SOP to be safe,” he said.
Health
Minister Khairy Jamaluddin announced a slew of relaxed measures on
Wednesday (April 27). Among the measures were making MySejahtera
check-ins and wearing face masks outdoors no longer compulsory. - Star, 28/4/2022
OCCUPATIONAL SAFETY AND HEALTH ACT 1994
52 Offences committed by body corporate
(1) Where a
body corporate contravenes any provision of this Act or any regulation
made thereunder, every person who at the time of the commission of the
offence is a director, manager, secretary or other like officer of the
body corporate shall be deemed to have contravened the provision and may
be charged jointly in the same proceedings with the body corporate or
severally, and every such director, manager, secretary or other like
officer of the body corporate shall be deemed to be guilty of the
offence.
(2) A person may be proceeded against and convicted under
the provision of subsection (1) whether or not the corporation has been
proceeded against or has been convicted under that provision.
61 Prosecutions
Prosecutions
in respect of offences committed under this Act or any regulation made
thereunder may, with the prior written consent of the Public Prosecutor,
be instituted and conducted by an occupational safety and health
officer or by an officer specially authorized in writing by the Director
General subject to the provisions of the Criminal Procedure Code.
