An Article by Nicole Yeoh

Have you read on our previous post on “ARE YOU BEING ARRESTED?” If you do, you will be able to get a clearer picture on today’s topic!

Police can arrest either with warrant or without warrant. An arrest without a warrant can be effected on a person when a seizable offence has been committed by him or that the person has been concerned in a seizable offence. The arrest must be based on reasonable complaint or credible information or on reasonable suspicion. What amounts to a reasonable complaint or credible information or reasonable suspicion depends of facts of each case. After being arrested, the police officer may wish to remand you for further investigation. Under Section 28 of the Criminal Procedure Code (hereafter “CPC”), a person put under arrest must without any unnecessary delay be brought before a Magistrate. You may be detained by the police officer pending being brought to see a magistrate but within 24 hours, excluding the period of journey from the place of arrest to the magistrate.

Section 28A CPC is a newly inserted provision to allow you, soon after arrest, to contact your lawyer to defend you and a relative or friend to inform them of your whereabouts. It is sad that Section 28A CPC could easily be abused because police can delay your lawyer to see you by coming with reasons, real or speculative to deny this right – please see also Saul Hamid v. PP [1987] 2 MLJ 736.

To remand you, the matter has to be heard by the magistrate upon application made under Section 117 of the CPC. The basis of the granting of a remand is if the investigation could not be completed within 24 hours of the arrest and that there are grounds for believing that the accusations or information against you are well founded. An investigation diary has to be tendered to the magistrate if a remand application is made and the magistrate has to peruse the diary to find whether there are grounds to allow the remand.

The remand proceedings could easily be abused and to protect your interests or liberty there are few things you may need to do:

  1. Watch out for the investigation diary –ask the magistrate whether an investigation diary had been tendered in court for the purpose of application of the remand. If no diary presented, ask the magistrate to release you – see PP v. Audrey Keong Mei Cheng [1997] 3 MLJ 477(CA); Re The Detention of R Sivarasa & Ors [1996] 3 MLJ 611;
  2. Ask the magistrate what crime or offence you had been suspected of and on what basis you were arrested. Tell the magistrate you have the right to know the grounds of the arrest as your liberty should be protected under Article 5(1) of the Federal Constitution. If no nexus between your arrest with the alleged crime, tell the magistrate that you should be released;
  3. Tell the magistrate that to remand you just to wait for chemist report or to complete or tidy the investigation file are not part of investigation and a remand application based on these grounds should be disallowed. The law only allows a remand to complete the investigation.

Under the law, you are entitled to legal representation of a counsel of your choice. DO NOT simply agree to the policemen who tell you who to engage as counsels. He may be a tout or an agent for certain lawyers and this is not allowed by the law. It may also tantamount to be a breach of your constitutional right under Article 5(3) of the Federal Constitution and you may wish to complain this to the magistrate.

According to Section 117 (2) CPC, remand order is given by magistrate to detain an accused person based on the maximum punishment for offences being investigated. If the offence under investigation is punishable with imprisonment for less than fourteen (14) years, then the remand shall not be more than four (4  ) days on the first application, and shall not be more than three (3) days on the second application. On the other hand, if the offence under investigation is punishable with death or imprisonment for fourteen (14) years or more, the detention shall not be more than seven (7) days on first application and shall not be more than seven (7) days on the second application.

So, make sure you know your rights and exercise them wisely by engaging a competent counsel!