Do You Have A Right To Your Lawyer Of Choice?

The Constitutional protection of the right to be represented by legal counsel has been provided under Article 5 (3) of the Federal Constitution which reads,

“(3) Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.”

Another provision to consider would be Section 255 of the Criminal Procedure Code which, shorn of immaterial parts, provides that,

“every person accused before any Criminal Court may of right be defended by an advocate.”

Thus, it is obvious from the Constitutional and Codified provisions mentioned, that the right to consult and be defended is a right of the person arrested.

A) When does this right commence?

Even if the constitution does not prescribe the time within which an arrested person shall be allowed to consult counsel, the case of Ooi Ah Phua v Officer-in-Charge of Criminal Investigation, Kedah/Perlis [1975] 2 MLJ 198, states that the right of an arrested person to consult his lawyer begins from the moment of arrest, but was also of the opinion that the right cannot be exercised immediately after arrest.

The court placed emphasis that a balance had to be struck between the right of the arrested person to consult his lawyer on the one hand and on the other the duty of the police to protect the public from wrongdoers by apprehending them and collecting whatever evidence exists against them. This indicates that the interest of justice is as important as the interest of arrested persons.

B) Preconditions when requesting for legal counsel

After observing where the right arose, we should then try to understand whether this right is absolute. The right to legal counsel is a qualified right which means that there is no guarantee that you will be represented by a particular counsel.

Dato Sir James Thomson CJ in the case of Palaniappa Chettiar v Arunasalam Chettiar said that,

“It is wrong to say as is frequently said, that a litigant is entitled to be represented by the Counsel of his choice. The true statement is that he is entitled to be represented by the Counsel of his choice if that Counsel is willing and able to represent him. Here Counsel although no doubt willing was not able to appear. The appellant had known for at least a week and probably longer that the Counsel of his choice would be unable to appear and he was not entitled to insist as he attempted to insist that the case should be adjourned until the Counsel of his choice was able to appear.”

In DOROSAMY A/L CHINNIA @ ALI BIN ABDULLAH v PUBLIC PROSECUTOR [2020] MLJU 2257, the High Court succinctly laid down the pre-requisites for an accused who wishes to be represented by their lawyer of choice:

Once an accused person who wishes to be represented by a legal practitioner, he cannot be prevented from doing so subject to the following conditions:

1) the person he wishes to represent him must be a legal practitioner / counsel who is legally entitle to practised law in Malaysia (keeping in mind the different requirements for Peninsular Malaysia, Sabah and Sarawak).

2) the legal practitioner / Counsel is able AND willing.

3) the accused person indicated that he wishes to exercise that Right.