Updated: Jun 23, 2020
Goh Cia Yee is a Legal Associate at Messrs Sivananthan, Advocates and Solicitors a boutique criminal litigation firm in Petaling Jaya. A graduate of the University of Nottingham, he is a former Human Rights and Activism Officer of ASASI, KPUM’s human rights arm. Cia Yee writes regularly about current issues in his blog, which you can find here.
In this first article of a two-part series, Cia Yee offers insight to those interested in a career at the criminal Bar, and the job scope of a Malaysian criminal defence lawyer. Part 2 can be found HERE.
1. What motivated you to enter criminal practice?
There are a number of law students either in their final year or at the tail end of their professional training course reading this that are finding themselves at the middle of the crossroads, pondering deeply about the path they should choose. Maybe it would comfort you to know that we have all been in that position before. It will probably be a daunting moment when you stare along the two or three differing paths that split from the road that you are currently on, trying to figure out the best route to take.
Some of you will ask professional questions, such as: How much will my pay be? Which area of law am I passionate about? Would I prefer a small firm, large firm or medium-sized firm? Litigation, conveyancing or corporate? Some of you will ask personal questions instead, such as: Should I follow my friends? Should I move away from home? Should I do something I love?
When I made the choice to dive headfirst into criminal litigation, I did not have all the answers, nor could I pretend to have a complete and comprehensive understanding of criminal practice. Ironically, I found that the information needed to make that choice could only be gained after years of experience as a criminal practitioner.
As a student who did my degree and professional training course in the United Kingdom for 4 years, there is an unspoken pressure to perform exceedingly well upon returning to Malaysia due to all that money and time that was spent whilst in the UK. It is from that of point of view that I can relate to the decisions of my peers to enter into what many of them deemed to be more lucrative areas of the profession.
Criminal litigation was not seen as one of those areas. While there were career conventions for Malaysian law students in the United Kingdom, there would be no booth for criminal lawyers, no infographics, and no one to share what the experience was like being a criminal advocate. If you studied in the UK and you told your Malaysian friends that you wanted to be a criminal lawyer, your determination would be questioned day in and day out.
One of my motivations to enter criminal practice was to change this perception and help convince people that criminal litigation is a viable career path that one can consider pursuing. My affinity for human rights also played a huge factor in my decision to enter criminal practice. I was involved in a number of minor human rights campaigns during my time as a student and I knew that if I were to simply follow a conventional legal path, I would not be fulfilled. Criminal practice presented me with the opportunity to do work that is in many ways related to basic human rights. From detention without trial, capital punishment and the treatment of prisoners to the many other aspects of the criminal justice system that I believe desperately needs to be reformed, I could not help but be intrigued by this particular area of practice and what it could offer me in terms of experience and growth. The complex moral quandaries and ethical questions that came along with criminal litigation was the icing on the cake that sealed the deal for me.
Criminal litigation, just like every area of the law, has its dull moments – but it has thus far been a fulfilling and rewarding experience for me, because I know a small action on my part at work could mean the difference between a client sleeping on the floor or on a mattress in prison. In certain instances, it could even be the difference between life and death. It’s difficult to not see the value of your work when such high stakes are involved and I am thankful for the opportunity to practice criminal litigation.
2. What characteristics make a good criminal defence lawyer?
The quality of a criminal advocate should not be judged by his wins or losses nor by the amount of profits he can amass. Although a good criminal advocate is willing to go above and beyond in upholding their client’s interest, they are also respectful of their ethical duty to the court and to the public at large.
While many often picture the ideal criminal advocate in their mind as being a brave and brash person that can talk their way out of any situation and yell the word ‘objection’ across the courtroom, that description could not be further from the truth. It is not the showmanship that the advocate exhibits in court or the charm they put on that wins the trial. It is the effort done behind the curtain, during the wee hours of the morning or the late hours of the night, that secures the favourable verdict.
Personally, I believe that a good criminal advocate is a person that has not only a firm grasp in the art of advocacy but is also well versed with the facts of the case. The right questions to ask, the defence to put forward at trial, and the gaps in the prosecution’s case that must be highlighted are all aspects of the criminal trial that cannot be simply conjured or created on the spot. This is because right preparation or proper file management are essential building blocks for good advocacy, and while the ability to persuade, talk or write is useful, such ability would simply be wasted potential without these building blocks. A lack of preparation can prove to be fatal in a literal sense and as such, a good criminal advocate must study the file, understand the prosecution’s case against the Accused and note the missing evidence or contradictions that exist within the prosecution’s evidence.
A good criminal advocate is also willing to go the extra mile. This could mean the procurement of evidence such as CCTV recordings or text messages, which could be used to contradict the prosecution’s case or corroborate the Accused’s defence. A failure to exhaust all the opportunities available to disprove the Prosecution’s case is something that should be avoided, particularly in cases involving capital punishment. No lawyer should have sleepless nights thinking about the potential cost of such failure.
There will also be many instances where a criminal advocate will face unexpected obstacles, either in the form of uncooperative police officers or the sudden production of damaging evidence during the course of trial. A good criminal advocate must therefore also be resourceful and quick thinking.
I would also take this opportunity to say that gender is not a key characteristic of a good criminal advocate. Women and men are both equally capable of excelling in criminal litigation. The vast majority of lawyers in my firm are women and they are extremely good at what they do, even more so than some senior male criminal lawyers out there. Perhaps the whole notion that criminal litigation is more suitable for a man is based on the assumption that criminal litigation is dangerous and that criminal practitioners need to be hard-boiled badasses that stare at danger and don’t flinch. I am happy to dispel such myths. From my experience, criminal litigation isn’t and shouldn’t be dangerous. Clients often remain cordial and I have not come upon an instance where I felt that my life was at risk. If anything, deputy public prosecutors are more at risk than criminal defence lawyers but I do not see it becoming a deterrent for the women and men that have comfortably settled into the role. Work is work and criminal practitioners are still ordinary people with daily lives that have their own hobbies and interests. While good criminal lawyers may differ from one another in style and approach, there is one characteristic that they have in common and that is a profound respect for the rule of law and a commitment to professionalism.
3. What are your thoughts on the general perception that criminal defence lawyers are unethical and morally culpable for defending the guilty?
While I won’t deny that there are lawyers out there that engage in unethical conduct, I think it would be unfair to generalise criminal advocates as unethical or morally culpable for defending the guilty. That form of thinking finds its basis in a misunderstanding of what we criminal advocates actually do for a living.
First of all, we do not defend ‘criminals’, but rather people who have been accused of committing a crime. We are not morally culpable for their actions by defending them. Our job is a separate endeavour that ensures the protection of their interests throughout the course of their trial or subsequent appeal. This could include ensuring that the client (if they are in remand) has the necessities and proper treatment in prison. If the client is granted bail, we apply for an appropriate bail amount for the accused and if the Investigating Officer plans to remand the accused further with no good basis, we challenge the application. Our work is far more complex than what the public may think.
Despite common perceptions, criminal advocates are not just limited to the role of defending the accused. We also advise victims on how to proceed with their complaints and even take up watching briefs to ensure that their interest is protected throughout the course of the trial. The role of a criminal advocate is multi-layered and rather than viewing criminal lawyers as unethical or morally culpable, perhaps there needs to be a paradigm shift and criminal lawyers should instead be recognised as an important pillar in the criminal justice system that ensures fairness for all.
Our job involves not just defending our client but also ensuring in the future that all other accused person who finds himself in a similar situation have their rights upheld according to the rule of law. Bad legal precedent can be damaging to the right to fair trial and criminal lawyers play an often-understated role in maintaining that balance.
Imagine for a moment that you were blamed for something that you did not do and the person blaming you is trained in the skill of doing so. Yes, you may defend yourself without a lawyer – but what if you can’t speak Malay and English fluently? What if you are not aware of all the rules, procedures or law that you need to follow? A large majority of accused persons have no clue as to how to conduct a trial or to examine witnesses. Some even plead guilty to crimes that they did not commit because they did not understand the charge against them.
Unfortunately, a system with such a design runs the risk of convicting an innocent person. In order to mitigate this problem, the standard in which a person’s guilt must be proven is a high one and it is crucial for every accused person to be presumed innocent until proven guilty. Such principles can only be upheld with the presence of criminal lawyers.
I understand the worry concerning ethics but it must be reminded that criminal lawyers owe a duty to the court and this duty takes precedence over their duty to their client. In other words, a criminal lawyer must not mislead the court to assist their client. It is part of their professional duty and going against this may result in disciplinary proceedings against the lawyer. While not perfect, there is a system of accountability that is present to ensure the ethical standards of criminal lawyers.
There may be instances in which a guilty person walks free. I find that in many of these instances, the blame should mostly be attributable to the lackluster efforts of the prosecution or the police witnesses. In many cases, it could be attributable to the creation of alternative facts by the police or evidence tampering. If a gap in the prosecution’s case exists, is not the defence lawyer’s fault. It is the duty of the prosecution to cover those gaps and if a reasonable doubt does exists than the accused is entitled to its benefit. To say otherwise is to encourage a system that prefers to hang an innocent person then to see a few other guilty men walk free. Guilty men may be redeemed but an innocent life cannot be returned.
4. As a follow-up to the previous question, have you ever found yourself in a position where your conscience prevented you from defending a client?
Personally, I have not been in such a position before but I know even if other criminal lawyers have felt that way, it is important to note that your duty to the court and your client’s interest must take precedence over how you feel about a certain case. Your feelings are irrelevant. What must take primary focus in your mind are the ethical boundaries you have and the views of a bigger picture that it is not just this particular client that you are defending but also the entire criminal justice system and its integrity.
Yes, you may be disturbed by the post-mortem images of a body or the possibility that the allegations against your client are true but you must remember that you can never be certain of a person’s guilt or innocence. We have a whole criminal justice system to determine that, and our job as criminal defence lawyers is simply to put forward our client’s defence and test the evidence against him or her. Not all clients are willing to tell you the truth either – and unfortunately, the adversarial nature of our criminal trials does not encourage the finding of truth but simply focuses on the determination of guilt.
When I witness clients going free in court after having been kept under remand in prison for nearly two years, I often see their families crying tears of joy and it is hard in those moments not to reflect on the complex nature of the situation and how the criminal justice system is far from black and white. There are no heroes or villains but simply flawed people in bad situations, sometimes placed in those situations by the hierarchical nature of society. The punishment for a crime that is set by law may not reflect the actual severity level of the crime committed, and in many instances something we feel is a minor wrong can be treated as a severe crime in law.
Just as how defence advocates must follow their ethical boundaries, deputy public prosecutors must also do the same, and the culture of following instructions from on high without thought must come to end. The adversarial nature of our criminal trials may cause criminal advocates and deputy public prosecutors to forget that the primary focus should never be to win the trial at all costs but both sides have to recognise that they owe a common duty to the court and learn to trust each other and uphold the ethical boundaries that exists.
5. What career pathways are there available for students who wish to pursue criminal law in Malaysia, and do you have any advice for law students who are interested in going down the same path as you?
For those that wish to pursue criminal law, keep in mind that in order to be a criminal lawyer, you do not necessarily have to start out with criminal litigation. There are many criminal lawyers in my firm who came from different backgrounds such as conveyancing, corporate, and civil. The opposite is also true and there are many lawyers who have started out with criminal law that are now doing non-criminal related work. You do not have to limit yourself solely to criminal litigation. There are many firms that offer a mix of both criminal and civil litigation and it may be helpful for you to dip your toes in both these areas of litigation before deciding which area of litigation you really prefer.
Another potential route that criminal lawyers can take is to start out by being a Deputy Public Prosecutor. Having knowledge about the inner workings of the prosecution might give you an edge over other criminal lawyers that do not have that kind of experience. There are many successful criminal advocates that come from such a background.
As for my advice to law students who are interested in going down the same path as me, I would say that commencing your pupillage at a small criminal law firm can be a lonely experience especially when you are mostly in the company of lawyers that are your seniors. On the other hand, friends that commence their pupillage at big law firms will tend to mix with a larger number of people who are around the same age as them. Pupillage experience when shared together with a group of peers that understand your struggles and the problems you face can be fun, but as a budding criminal lawyer, there are not many of your peers that can find your experience relatable. My advice on how to overcome this would be to quickly learn how to bridge the gap between your seniors and yourself. Beyond that, when you attend your legal aid programme or your state Bar events, try to mix around more and build connections with people that are on a similar path as you. Chances are they may be looking for someone they can relate to as well. These are the connections that will last throughout your career.
My next advice is to find a good mentor or at least someone that would be able to show you what it takes to be a good criminal lawyer. When you are young and still learning, it would be harmful if you started adopting the bad habits of your seniors because you didn’t know any better. Shadowing a good senior lawyer who is willing to teach you the ropes and show you the right moves is key to your growth and development, bearing in mind that their influence will shape your conduct as criminal advocate throughout your years of practice.
Another advice I would give is to apply for a 1-month or 2 week attachment at a criminal law firm to see if criminal practice is really suitable for you. There have been certain instances where people have said that criminal law is their passion but upon actually experiencing the nature of the work, they then realised that it was not something that they were actually interested in. This advice also applies to those who have not really considered criminal litigation as a career path. There is no harm in expanding your horizons.
My final advice is to not worry so much and learn to have fun. When you enter the workforce (and perhaps even now as a student), you might face many situations where your anxiety might threaten to get the better of you. I assure you, however, that you will eventually reflect back on those moments and realise they are not worth being anxious over. Enjoy your time as a student and don’t be afraid to be more active in activities that can push you to grow. Finally, don’t be afraid to lose an opportunity to gain another. It’s far more efficient to make a decision than choosing to wait for a sudden life-changing epiphany.