Being arrested by the police officers, Immigration Department, Malaysian Anti-Corruption Commission (“MACC”) or another enforcement authority can be an extremely stressful experience. One of the first things that may happen after an arrest is that the authorities may apply to the court to detain you more than 24 hours which is typically known as application for a remand order.

Many people are unfamiliar with what “remand” means. Some may even assume that being remanded means they have already been found guilty of an offence.

That is not the case.

Background

Remand is basically an order given by the Magistrate when a suspect is being detained for more than 24 hours. The highest law of our nation, Federal Constitution has provided clearly in Article 5(4) such requirement that the arrested person shall without unreasonable delay, be produced before a Magistrate and shall not be further detained in custody without the Magistrate’s authority. This stance was also being enacted in the sec 28(3) of the Criminal Procedure Code.

When remand application can be made?

Remand application to detain a person more than 24 hours cannot simply be made by the police as there must be grounds to believe that the accusation or information is well founded then the police officer must produce a copy of the entries in the dairy before the magistrate. The diary basically contains what the Investigation Officer (IO) had done in the period of past 24 hours.

In the case of Re Syed Mohammad Syed Isa & 3 Ors [2001] 3 AMR 3769; [2001] 8 CLJ 247, the High Court had held that remand applications cannot be allowed solely to further investigate an accused as the investigating officer must sufficiently state the reasons for remand and not its purpose.

Normal reasons police will ask for remand in court

For the grounds of remand, it will normally involves the taking fingerprints for biometric purpose, mugshot photographs for police database, tracking and recovering of the collection of evidence, recording of statement (like 112 statement and intelligence report), revisiting crime scene, taking photos and also awaiting critical expert reports (eg: chemistry report for drug case, forensic DNA result or medical reports from the medical officers).

The purpose of remand is to give more time to the police to complete the investigation and to decide whether there is enough evidence to charge the suspect for the suspected offence. The police must make the remand application without unnecessary delay.

How long a remand can be asked for?

Another important section under the Criminal Procedure Code (CPC) to take note is that the order of detention can only be made based on the maximum punishment for the offences being investigated, which is as follows:

Category	Duration of detention
For offences which are punishable with imprisonment of less than 14 years	The detention shall not be more than four days on the first application and shall not be more than three days on the second application
For offences which are punishable with death or imprisonment of 14 years or more	The detention shall not be more than seven days on the first application and the detention shall not be more than seven days on the second application

Case law

Federal Court judge Raus Sharif in delivering the judgment of the case of Inspector Yusof Haji Othman v Kwan Hung Cheong [2011] 6 AMR 289; [2011] 8 CLJ 1 held that:

The Magistrate’s powers under s117 of the CPC is either to detain the accused or refuse detention of the accused.

If the detention is refused, the police have no choice but to release the accused.

The release of the accused under s 117 of the CPC could not be equated as an order to acquit and discharge the accused from criminal accusation.

So, in short, if Magistrate rejected the remand application, it just means that the accused is not under detention of the authority anymore but does not mean that the person is fully acquitted and discharged from the alleged criminal offence he/she was first detained.

Principle of innocence under the law

An important concept to bear in mind is that a person, even though being a suspect at this point of time, is still presumed innocent under the law unless proven otherwise. It means that you can still attend to your work, personal matters and professional circumstances as usual.

What Should You Do If You Are Arrested?

If you or someone close to you has been arrested, it is understandable to feel frightened or unsure about what to do.

Try to remain calm and take the following practical steps.

1. Find Out Why You Have Been Arrested

Ask the enforcement authority about the reason for the arrest and, where appropriate, the offence being investigated.

Understanding the allegation against you is important when seeking legal advice.

2. Contact a Lawyer as Soon as Possible

If you have been arrested, obtaining legal advice at an early stage can be extremely important.

A lawyer can advise you on your rights, communicate with the relevant authorities where appropriate, attend the remand proceedings and make representations on your behalf.

If you cannot immediately contact your own lawyer, consider asking a family member or trusted person to assist in contacting one.

3. Cooperate With Lawful Investigative Procedures

You should not obstruct the authorities in the lawful performance of their duties.

At the same time, cooperation does not mean that you should give up your legal rights.

If you are asked to provide a statement or answer questions, you should understand the nature of the request and, where appropriate, seek legal advice before giving a substantive statement.

4. Do Not Guess or Speculate

If you do not know the answer to a question, do not feel that you have to guess.

A careless or inaccurate statement can potentially create difficulties later.

This is another reason why early legal advice can be valuable.

5. Inform Your Family or Someone You Trust

Where possible, let a family member or trusted person know that you have been arrested and provide them with the relevant information so that they can assist in obtaining legal representation and dealing with practical matters.

What Can a Lawyer Do During the Remand Stage?

A lawyer’s role does not begin only when the case goes to trial.

Legal assistance can be important from the moment a person is arrested.

At the remand stage, a lawyer may, depending on the circumstances:

• advise the arrested person on their legal rights;
• attend the remand proceedings;
• make representations to the Magistrate concerning the proposed detention;
• scrutinise the reasons given for the remand application;
• raise relevant concerns regarding the duration or necessity of detention;
• communicate with the investigating authority where appropriate; and
• advise the arrested person and their family on the next steps.

Act Now and Do It Fast

If you or a family member has been arrested and the authorities are seeking a remand order, contact a lawyer as soon as possible.

Understanding the reason for your arrest, knowing your legal rights and having proper lawyer to help you for your legal representation at the remand stage can help ensure that the process is carried out in accordance with the law.