Power to Remand to Complete Investigations
• Section 117 is a machinery to enable such
persons to be detained in custody for longer
than 24 hours on the grounds that
investigations cannot be completed within
that period (Public Prosecutor v Audrey Keong
Mei Cheng [1997] 3 MLJ 477 at 481, [1997] 4
CLJ 702, CA).
1
• Article 5(4) of the Federal Constitution and
section 28 of the CPC provide that no person
shall be detained in excess of 24 hours.
2
• However, where the police resort to the
special provisions of section 117 of the CPC,
the magistrate before whom the person
arrested is brought may authorize detention
under its provisions, even if the offence with
which the person arrested is concerned is a
bailable offence and he is prepared to furnish
bail (Maja anak Kus v Public Prosecutor [1985]
1 MLJ 311).
3
• An application for detention of a person to
complete investigation involves:
• (1)production of the arrested person before a
magistrate;
• (2)transmitting a copy of the investigation diary;
• (3)furnishing grounds for the arrested person’s
detention or continued detention in order to
complete investigations.
4
• It is mandatory for the police to produce a
copy of the investigation diary (Public
Prosecutor v Audrey Keong Mei Cheng [1997]
3 MLJ 477, [1997] 4 CLJ 702, CA).
• The need to support an application for
remand with a copy of the investigation diary
is to show (Dasthigeer v Mohamed Ismail v
Kerajaan Malaysia & Anor [1999] 6 CLJ 317 at
329):
5
• (a)firstly, the first 24 hours had been usefully
utilised as far as is possible;
• (b) secondly, why and for how long the
arrested person should continue to be held in
custody and not be released on bail; and
• (c)thirdly, why the arrested person should be
held in police custody.
6
Production of Arrested Person
• The object is to enable the magistrate to see that the
remand is necessary and to enable the prisoner to
make any representation he may wish in the matter.
• The arrested person has the right to be represented
by a legal practitioner in remand proceedings unless
the police can discharge the onus of satisfying the
magistrate that to allow him to exercise that right
would result in undue interference with the course of
investigations.
• Sec 28A(2)
• Sec 28A(8)
7
Contents and Production of Investigation
Diary
• The need to support an application for remand with a copy
of the investigation diary is to show (Dasthigeer v
Mohamed Ismail v Kerajaan Malaysia & Anor [1999] 6 CLJ
317 at 329):
• (a)firstly, the first 24 hours had been usefully utilised as far
as is possible;
• (b) secondly, why and for how long the arrested person
should continue to be held in custody and not be released
on bail; and
• (c)thirdly, why the arrested person should be held in police
custody.
8
• Ketua Polis Daerah Johor Bahru, Johor &
Others v Ngui Tek Choi [2013] 4 MLJ 504
9
Grounds for Detention
• Hashim bin Saud v Yahaya bin Hasim [1977] 1
MLJ 259
– The purpose of the application for remand is to
enable the police to complete investigations
(Hashim bin Saud v Yahaya bin Hasim [1977] 1 MLJ
259). Stating in an application that the remand is to
enable police to complete investigation is
insufficient since the purpose of the application is
to complete investigation, it cannot itself be the
reasons or grounds supporting the application.
10
• Re Syed Mohammad bin Syed Isa & 3 Ors
[2001] 3 AMR 3769 at 3778
– The copy of entries in the investigation diary is the
only source upon which the magistrate may gauge
the need for remand (Re Syed Mohammad bin
Syed Isa & 3 Ors [2001] 3 AMR 3778).
11
• The entries must describe adequately the diligence
and state of investigations, and the statement of
circumstances ascertained through the investigation
indicating (Re Syed Mohammad bin Syed Isa & 3 Ors
[2001] 2 AMR 3769 at 3778):
• (i) the direction of the investigation for its completion;
• (ii)the necessity of such further investigations; and
• (iii) explaining why the remand of the suspect is
necessary.
12
• The law does not empower the police to arrest
and detain potential witnesses (Chong Fook
Kam & Anor v Shaaban & Ors [1968] 2 MLJ 50
at 54). It is an abuse of the law for police
officers to use the machinery of section 117 to
compel witnesses or potential witnesses to
come forward to assist in police investigations
(Public Prosecutor v Audrey Keong Mei Cheng
[1997] 3 MLJ 477, [1997] 4 CLJ 702, CA).
13
Period of Detention
• Section 117 now provides for the following
maximum periods of detention:
• (a)7 days where the offence being investigated
is punishable with imprisonment of less than
14 years, and
• (b) 14 days where the offence being
investigated is punishable with death or
imprisonment of 14 years or more.
14
Successive Applications for Detention
• section 117(4) known as chain smoking
• Dasthigeer Mohamed Ismail v Kerajaan
Malaysia & Anor [1999] 6 CLJ 317 at 312
15
• THANK YOU
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