Question (d)(i) CPC - Assignment Criminal Procedure 1 PDF

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(d) (i) If you were Astro, the Magistrate, would you grant or reject the remand application above? Give reasons for your answer. ( marks) The issue is whether the remand application made by Inspector Neutron can be granted or rejected?Section 117 of Criminal Procedure Code (CPC) provides a Magistrat...

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(d) (i) If you were Astro, the Magistrate, would you grant or reject the remand application above? Give reasons for your answer. (20 marks) The issue is whether the remand application made by Inspector Neutron can be granted or rejected? Section 117 of Criminal Procedure Code (CPC) provides a Magistrate may detain a person where investigations cannot be completed within 24 hours. This provision is a machinery to help complete investigations. Generally, Section 28 (2) of CPC provides that a person arrested cannot be detained longer than what is necessary. This particular provision also must be read together with Section 28 (3) of CPC where it upholds Article 5 (4) of Federal Constitution which states a person cannot be detained for a period longer than 24 hours and also if possible, the investigation must be conducted within 24 hours. This principle is also strengthened in the case on Hashim bin Saud v Yahaya B. Hasim. The purpose of Section 117 of CPC was illustrated in the case of Dasthigeer Mohamed Ismail v Kerajaan Malaysia & Anor where the purpose of police applying for the particular provision is to enable them to complete their investigation in the event, they cannot complete the investigation within 24 hours. If it was found that they cannot complete the investigation within 24 hours, then Section 117 of CPC will allow them to detain a person more than 24 hours. However, this particular provision is only to complete the investigation. The police should not invoke Section 117 of CPC in order to commence or start the investigation because it will defeat the whole purpose of detaining a person longer than necessary. Dasthigeer Mohamed Ismail v Kerajaan Malaysia & Anor also highlighted the discretionary power to grant or reject the remain application lies in the hand of Magistrate. Moreover, in exercising this particular power, Magistrate must always be reminded that there is a balance that needs to strike between not detaining a person longer than necessary. This means the court need to uphold the principle that a person cannot be deprived of his liberty longer than with the need of the police to complete the investigation. So, at all times, when

remand application is made to the Magistrate, the Magistrate need to make their decision judiciously, in order to prevent abuse of power on the court’s part. Furthermore, Section 117 (1) of CPC provides 3 procedural elements that police need to observe and to fulfil. When the police decide to make a remand application, there are 3 essential requirements that police must take into consideration and present before the Magistrate. The 3 procedural elements are the production of the accused before the Magistrate, grounds for believing the accusation or information well-founded and production of investigation diary before the Magistrate. As for the first procedural element, production of the accused before the Magistrate is to enable the Magistrate to decide whether or not a remand is necessary and for an arrested person to make any representation he may wish in the matter as stated in the case Saul Hamid v Public Prosecutor. As for the second procedural element, the grounds for believing the accusation or information well-founded must be presented before the Magistrate. It means the honour is on the police who made the remand application to furnish the grounds for the detention and he must provide grounds that is well-founded. It is also the responsibility of the Magistrate to scrutinize to what extend the ground given is well-founded or otherwise. In the case of Re Detention of Sivarasa & Ors, it is about revision of the remand order that was given earlier to the police. At the lower court, the Magistrate approved the remand application. When the case came out for revision in High Court, the High Court Judge found that there was no clear statement with regards to why those accused should be detained and nothing clear to show with regards to why those accused were arrested in the first place. Whether or not to detain further detain the accused person depends on the necessity for them to be remanded. A Magistrate needs to be reminded on balance should always be striked. In the case of Re The Detention of Leonard Teoh Hooi Leong, where A magistrate ought not to give a remand order without satisfying himself as to its necessity and that the period of remand should be restricted to the necessities of the case. In addition, the investigation must have commenced and produced grounds to believe that the complaint or information is well-founded as to necessitate the detention of the suspect. Thus, stating in the application that the detention itself is to complete investigations

would be insufficient. As in the case Re Syed Mohammad , the provision does not allow the detention of a person in order to, at leisure, conduct further investigations or look into that person’s involvement in other offences. As for the third procedural element, the production of an Investigation Diary is mandatory in making an application for a remand, failure of which empowers a magistrate not to entertain the application. The phrase “a copy of entries in the diary” in Section 117 (1) of CPC refers to investigation diary. Section 117 (1) must be read together with Section 119 (1) of CPC where every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation diary, and the diary should contain the particulars in para (a) until (d) of the provision. The details required including the time at which the order for investigation reached him, the time at which he began and closed the investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. The case of Dasthigeer Mohamed Ismail v Kerajaan Malaysia & Anor stated the reason why the submission of the investigation diary is mandatory. Submission of the investigation diary is to see whether the police had taken active steps in conducting the investigation. Moreover, it is to help to determine whether or not the accused person that was brought before the Magistrate is, in fact, an accused person and the person that is highlighted in the police report. The contents of the investigation diary also will help to justify before the Magistrate the detention of the accused person because basically, it is the only thing that the Magistrate has before making any decision. On the other hand, in the case of Re Detention of Sivarasa & Ors , the investigation diary was not produced by the police. What was produced was 3 sheets of typewritten paper. The court is of the opinion that those 3 sheets of typewritten paper cannot be considered as entries prescribed under Section 119 (1) of CPC. It was held that failure to submit the investigation diary is actually fatal to the procedure of remand application. It also should be noted that in the case of Re The Detention of Leonard Teoh Hooi Leong, the accused and his counsel have no rights to access to the investigation diary. Furthermore, in Section 117 (2) of CPC, before the Magistrate wants to authorize the detention, what Magistrate need to remember is what is the length of the detention that

Magistrate can give, which depends on the type of punishable offences that the accused had committed. Apel was privy to Tai Koh’s criminal involvement in relation to receiving stolen goods, which is chargeable under Section 411 of Penal Code. First Schedule Column 7 of CPC states the charge is punishable with imprisonment for a term of not less than six months and not more than five years. Section 117 (2) (a) stated that if the accused had committed a crime that is punishable with imprisonment less than 14 years, then for the first remand application, the maximum days that can be given is 4 days. If that is not adequate, then another 3 days can be applied in order to detain the accused person. Apel was arrested on 6 February 2020 at 12 pm and was detained till 7 February 2020 and was produced before the Magistrate at 10 am. Inspector Neutron applied for an order to remand Apel for seven days and on the ground to complete investigation in the criminal activities involving Tai Koh. Applying to the situation, generally, Inspector Neutron may invoke Section 117 of CPC in order to remand Apel to complete the investigation, provided that he met all the 3 procedural elements as stated in Section 117 (1) of CPC. Therefore, on Astro as a Magistrate have to make sure Inspector Neutron fulfilled those 3 elements. Moreover, by virtue of the case Dasthigeer Mohamed Ismail v Kerajaan Malaysia & Anor, Astro as a Magistrate have the discretionary power to grant or reject the remain application. Astro must always be reminded that there is a balance that needs to strike between not detaining Apel longer than necessary. As for the first procedural element, Apel must be produced before the Magistrate. By virtue of the case Saul Hamid v Public Prosecutor, as a Magistrate, in order to detain Apel further, Astro must want to see the accused person in front of him first. In this situation, Apel was produced before the Magistrate at 10 am. Therefore, the first procedural element has been fulfilled. As for the second procedural element, the grounds for believing the accusation or information well-founded must be presented before the Magistrate by Inspector Neutron. Here, ground produced before the Magistrate was to complete investigation in the criminal activities involving Tai Koh. By observing the investigation diary, an investigation has not been conducted at all. Meaning that there was no investigation started yet. By virtue of the case Re Detention of Sivarasa & Ors and Re The Detention of Leonard Teoh Hooi

Leong, there are no necessities for further detention of Apel since by only stating the ground of the remand to complete investigations is insufficient. Moreover, by virtue of Re Syed Mohammad, Section 117 does not allow the detention of a person in order to, at leisure, conduct further investigations or look into that person’s involvement in other offences. Instead of conducting the investigation, Inspector Neutron used the 24 hours that he had to detain Apel in police lockup and conduct a search on him. This shows, investigation was not commenced yet. Therefore, the ground for accusation and information was not well-founded, so, the second procedural element is not fulfilled. As for the third procedural element, a copy of the Investigation Diary was submitted by Inspector Neutron during the remand application. Therefore, the third procedural element is fulfilled by Inspector Neutron. However, by observing the content of the Investigation Diary, the particulars that were required by Section 119 (1) (a) until (b) was not stated very well in the Investigation Diary.

The Investigation Diary submitted by

Inspector Neutron did not state the time at which he began and closed the investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. By applying the case Dasthigeer Mohamed Ismail v Kerajaan Malaysia & Anor, the content of the Investigation Diary must reflect that Inspector Neutron had taken active steps in conducting the investigation. In addition, in the situation, Inspector Neutron applied for an order to remand Apel for seven days. Apel was privy to Tai Koh’s criminal involvement in relation to receiving stolen goods, which is chargeable under Section 411 of Penal Code. First Schedule Column 7 of CPC states the charge is punishable with imprisonment for a term of not less than six months and not more than five years. By virtue of Section 117 (2) (a), since Apel’s offence is punishable with imprisonment less than 14 years, then for the first remand application, Inspector Neutron could only be given up until 4 days. Therefore, Inspector Neutron cannot apply for an order to remand Apel for seven days as it exceeds the maximum days provided by the provision, In conclusion, if I were Astro, I would reject the remand application because the 3 procedural elements stated in Section 117 (1) of CPC was not all fulfilled....