When remand or further remand is not necessary for the purpose of investigation, a suspect should be released — Hafiz Hassan

SEPTEMBER 11 — This year is the 30th anniversary of the case of Re The Detention of R Sivarasa & Ors [1996].

The facts of the case are straightforward.

On November 9, 1996, 67 people were arrested by the police in an alleged demonstration which took place at Asia Hotel, Kuala Lumpur. The suspects were remanded under Section 117 of the Criminal Procedure Code (CPC) from November 10 till November 13.

An application was then made in the morning of November 13 to the learned Magistrate for an extension of the detention period of 10 suspects under the same section for another 10 days – that is, November 13 till November 22.

It was indicated in the application that the extension of the detention period had to be made as the period was too short and was insufficient for the police to complete investigation.

In her notes of proceedings, the learned Magistrate stated that she was satisfied with the reasons as appeared in the application, and also in the investigation diary that was given.

Accordingly, the learned Magistrate allowed the application for the extension of detention.

An urgent application was made on the same day at 3.15pm for the order of the learned Magistrate to be revised by the High Court under Section 323 of the CPC. The complaint was that the remand order, made omnibus, on the 10 suspects by the learned Magistrate was not in compliance with Section 117 of the CPC.

That afternoon, High Court Judge K C Vohrah (as he then was), perused the record of proceedings and the documents which the learned Magistrate purported to rely on when she allowed the application, ordering the extension of detention of the 10 suspects.

The learned High Court judge set aside the learned Magistrate’s order, ruling as follows:

(1) The learned magistrate had not appreciated the strict nature of the provisions of Section 117 of the CPC and the case law on the matter.

(2) Pursuant to Section 117 of the CPC, the police officer had a mandatory duty to transmit to a Magistrate a copy of the entries in the diary as prescribed under Section 119 of the CPC when producing a suspect before the Magistrate.

(3) No copy of the entries in the diary was transmitted to the Magistrate. This was fatal to the application for extension of detention, as it meant that the Magistrate did not have the prescribed material to act upon in her judicial enquiry whether to order further remand.

(4) Three sheets of paper were produced before the Magistrate that purportedly contained copies of entries in the investigation as prescribed under Section 119 of the CPC. But they did not. They certainly did not relate to ‘the day by day’ proceedings of the officer making the police investigation which were entered into his diary.

(5) Section 117 of the CPC requires that there be grounds for believing that the accusation or information is well founded for the police officer to make his application for detention. These grounds are subject to judicial scrutiny. It has to be stressed that a Magistrate ought not give a remand order in police custody without satisfying himself or herself as to its necessity and that the period of remand ought also to 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.

(6) The liberty of an individual after arrest is at stake and Article 5(4) of the Federal Constitution reposes an onerous judicial duty on a Magistrate to decide whether a person should be detained or detained further.

(7) The application for extension of detention was an omnibus application for the detention of 10 named persons, and there was no condescension to details as to what each of them was arrested for and why it was necessary to extend the remand of each of them. Whatever vague reasons shown on the application (which did not show any nexus between the suspects and a suspected offence or offences) for the continued detention of each of them were without any foundation).

(8) The detention by the police of a person beyond 24 hours after his arrest is not as a result of an executive act but as a result of a judicial decision in consonance with Article 5(4) of the Federal Constitution. It was unfortunate that the Magistrate did not refer to what was required of her under Section 117 of the CPC. She did not appreciate the full import of the section. The order made by her was misconceived.

The case is much celebrated. So too the judge – “a no-nonsense judge, respected by his peers, and before whom lawyers love to appear”.

There was an impression among the police that the remand of a suspect should be done by a Magistrate as a matter of course.

Good riddance to the impression.

It is the duty of the police to comply with the provisions of Sections 117 and 119 of the CPC and that the Magistrate should insist on such strict compliance of the provisions.

If the police do not satisfy the Magistrate that a remand was necessary for the purpose of investigation, the Magistrate should release the suspect.

The application to extend remand order of former Lembaga Tabung Haji chairman Datuk Seri Abdul Azeez Abdul Rahim was rejected. — Picture by Yusof Isa

So, let’s celebrate the decision of the learned Magistrate who rejected the application to extend remand order of former Lembaga Tabung Haji chairman Datuk Seri Abdul Azeez Abdul Rahim. The learned Magistrate reportedly agreed with Azeez’s lawyers that investigations could proceed without detention.

In other words, further remand was not necessary for the purpose of investigation.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.