Chapter 2.1 - Remand

Question 1

REMAND

Overview

Answer 1

1) Application for remand
2) Considerations for remand
3) Burden of proof
4) Requirement of investigation diary
5) Contents of investigation diary
6) Right to inspect diary
7) Failure to transmit diary
8) Period of remand
9) Reasons for remand order
10) Remand for a child
11) Challenging remand order
12) Issues on remand

Question 2

APPLICATION FOR REMAND

The law

Answer 2

S.117

Question 3

REMAND

Considerations for remand

Answer 3

1) PDRM v Audrey Keong Mei Cheng:

• GROUNDS FOR THE BELIEF:
  Whether there are grounds for believing that the accusation or information are well-founded.
• COMPLIANCE WITH S.117:
  Whether S.117 has been strictly complied with.
• INVESTIGATION DIARY:
  *It is compulsory for the IO to transmit the investigation diary.
  *At the remand application, Magistrate is NOT under a duty to determine whether the arrest is unlawful.

2) Re Detention of R Sivarasa:
- GROUNDS FOR BELIEVING THE ACCUSATION OR INFORMATION:

• S.117 also requires that the Magistrate must have the grounds for believing that the accusation or information is well-founded.
• This is so to justify the application for further detention by the police officer.
• The grounds are also subject to judicial scrutiny.
• NECESSITY:
  Magistrate ought to not give a remand order in police custody without satisfying himself as to its necessity.
• Period of remand ought to also be restricted to the necessities of the case.
• If the necessities of the case for remand or further remand are not shown, no remand order should be made.

Question 4

REMAND

Burden of proof

Answer 4

Mohd Hady Yaakob v Hassan bin Marsom & Ors (CA, 2016):

• the onus probandi (legal burden of proof) is upon the police officer seeking for a remand order to satisfy the judicial officer that premised upon credible information, there are well-founded grounds present to incriminate the arrested person with a criminal offence.
• All sufficient and relevant materials must be produced before the judicial officer;
• Entries in the investigation diary plays the utmost crucial part to reflect the investigation developments done by the police.
• The police officer being the applicant for the remand order must pass the objective test to justify as to why detention must be granted.

Question 5

REMAND

Requirements of investigation diary

Answer 5

S.117(1)

Question 6

REMAND

Contents of investigation diary

Answer 6

S.119(1)

Question 7

REMAND

Rights to inspect diary

Answer 7

1) The law:
- S.119(2)
2) Scope of rights - Lau Kong Peng v PP:
- S.119 confers an absolute right on the court to inspect all police diaries in connection with the investigation & this use is permitted to court & court alone.
3) Whether suspect can inspect - Lau Kong Peng v PP:

• GR: Neither the suspect or his agents shall be entitled to call for such diaries.
• Exceptions - proviso S.119(2):
• S.159 EA: refreshing memory.
• S.160 EA: testimony to facts.

Question 8

REMAND

Failure to transmit investigation diary

Answer 8

PP v Audrey Keong Mei Cheng:

• Failure to transmit diary is fatal to the application for remand;
• S.117(1) makes it mandatory for the IO to transmit to the Magistrate the diary when producing a suspect before him.

Question 9

REMAND

Period of remand

Answer 9

1) The law:
- S.117(2)

2) How to determine -
Dasthigeer b Mohamed Ismail v Kerajaan Malaysia:

• Period of remand is to be determined not solely by the demands of the investigating authorities but rather by balancing such needs against the fact that any remand order is a restriction of fundamental liberty against a person.
  3) Period permitted - Zulkiflee bin SM Ulhaque:
• a Magistrate can order detention for a person not exceeding 15 days in the whole (depends on types of offence suspected to be committed) EXCLUDING the first 24 hours;
• But in doing so he must satisfy himself that the detention beyond the first 24 hours is necessary for the investigation.

Question 10

REMAND

Reasons for remand order

Answer 10

1) The law:
- S.117(7)
2) Failure to record reasons:

Mere irregularity - Lau Kong Peng & Ors v PP:

• Failure to record reasons is a mere irregularity;
• As long as there is some grounds which warrant the detention of the suspect for further investigation.

cf. Re Syed Muhammad bin Syed Isa:

• HC held that it is imperative for the Magistrate to record his or her reasons in granting the remand order;
• This is because it will allow the HC to review the order if the occasion arises;
• Failure to do so may gravely prejudice the person so remanded.

Argument:

The word “shall record” are clear and unambiguos & court must give full effect to the language of the provision, i.e. it is MANDATORY for the Magistrate to record the reasons.
To hold otherwise will render S.117(7) nugatory & meaningless & Lau Kong Peng shall not be followed.

Question 11

REMAND

Remand of a child

Answer 11

PP v N (A Child):

• The Child Act does not provide for the detention of the child for the purpose of investigation;
• As such, S.117 CPC must therefore continue to apply.
• CA in this case held that S.117 is applicable to a child.

Question 12

REMAND

Challenging remand order

Answer 12

1) Appeal or revision - Datuk Seri Khalid Abu Bakar v N Indra (CA):

• Remand order can be set aside by way of appeal or revision.
• Unless and until remand order is set aside by way of a criminal appeal or revision, the remand remains lawful.

Ref. Ketua Polis Daerah Johor Bahru, Johor Ors v. Ngui Teck Choi:

• Remand order made by the Magistrate remained a lawful order until it is set aside by a High Court exercising its criminal appellate or revisionary power.
• In a civil claim, judge need not go behind the remand order and to question its legality or the manner in which it was obtained.

2) Civil claim - Hassan bin Marsom & Ors v Mohd Hady bin Yaakop (FC, 2018)
- Any challenge to the unlawfulness of the remand order is not limited to an appeal or revision under the CPC but could still be pursued if specifically pleaded in a civil action.

Question 13

ISSUES ON REMAND

Overview

Answer 13

1) Right to be represented during remand application
2) Failure to transmit ID
3) Challenging remand order
4) Bail during remand
5) Failure to record reasons for remand order

Question 14

ISSUES ON REMAND

Right to be represented during remand application

Answer 14

• Saul Hamid v PP;

- Badrul Hisham v PP.

Question 15

ISSUES ON REMAND

Failure to transmit ID

Answer 15

PDRM v Audrey Keong Mei Cheng

Question 16

ISSUES ON REMAND

Challenging remand order

Answer 16

1) Revision or appeal:
- DS Khalid Abu Bakar v N. Indra
- Ketua Polis Daerah JB v Ngui Teck Choi
2) Civil claim, must be pleaded:
- Hassan bin Marsom & Ors v Mohd Hady Yaakop

Question 17

ISSUES ON REMAND

Bail during remand order

Answer 17

Maja Anak Kus v PP

Question 18

ISSUES ON REMAND

Failure to record reasons for remand order

Answer 18

1) Lau Kong Peng & Ors v PP

2) cf. Re Syed Muhammad bin Syed Isa.