Transmenu powered by JoomlArt.com - Mambo Joomla Professional Templates Club

We have to be very cautious about the correctness of the advice given in the red book - more so when the President of the Bar launched it with the Minister. WHY? Because members of the public will rely on it as being true and accurate because it is from the Malaysian Bar.

For example, what one does in a remand hearing is sadly wrong.

The best advice to a person arrested is to exercise hir RIGHT OF SILENCE - and to inform the Magistrate that he has no intention of making any statement whatsoever to the police. Hence, there really is no more reason for the police to be keeping him in detention. Then, all the police have to do with regard an arrested person is to fingerprint him and maybe take a photo. When an arrested persons starts talking, then the police can use this to prolong detention. An statement denying the alleged offence and stating that he was not there at the moment etc - gives the police reasons why to hold an arrested person(suspect) further -- i.e. to investigate the suspect's story.

BUT if the suspect elects to be SILENT and makes this known to the Magistrate as well - there can be generally no more reasons for the police having to keep the said person in detention for the purposes of investigation. DO NOT ever say that you want to cooperate with the police etc - WHY? Because if one wants to cooperate, it is easier if the suspect is in custody (and that is the line that some Investigation Officers will use to justify the need for a remand order...) There are many more things that could be improved...BEST do a comprehensive examination of the contents before any re-publication is done.

I must state that the effort put in by the lawyers that resulted in the RED BOOK must be applauded. I must also apologize that I did not get back to them earlier - and in fact I just read the contents recently.

Further, I hope that all 4 languages is not in one BOOK - and that there are 4 Books, each for 1 language. Why? Generally one who picks up the Book will only be looking at one language version. If it is a Tamil reading person, then he will read the Tamil version and most likely not the Chinese version. But then, one may say he may have children who can only read BM -- fair enough. Then it may be wise to have the following versions:-

BM-Tamil
BM- Chinese
BM-English

By doing this, cost will be saved for sure and there will be more books for more people.

Hector,

I beg to differ with your views. In the remand hearings where I have appeared before, the assurance to the Magistrate that the suspect will facilitate the investigation even he is out on police bail has worked well. The Magistrate in deciding whether to grant a remand order or otherwise needs to strike a balance. The Magistrate needs to be convinced that the non-granting of a remand order will not impede an on-going police investigation.

In your comments, you seem to conclude that recording of the suspect’s statement under Section 113 CPC is the ‘be all and end all’ of an investigation. With respect you failed to draw a distinction between the requirement to record statement from the suspect under Section 113 CPC and the need to complete an ‘investigation’. Recording statement from a suspect is merely a subset of an investigation. Recording a statement should not and can never be equated with ‘the investigation’. Therefore, even if the suspect informs the Magistrate during a remand hearing that he elects to remain silence, the Magistrate may still allow a remand application if the police can proof, in the investigation diary, that the suspect is required to facilitate other aspect of the investigation, for e.g. the suspect is required to participate in an identification parade (which is also a common reason given by the police).

We will be doing a disservice to the public if we were to assume that the mere fact that a suspect elects to remain silent, a remand order will not be granted by the Magistrate. This is misleading.

What should be stressed to the public is that the suspect need not necessarily be detained under remand in order for the police to complete an investigation. The conception that an investigation can only be completed if a person is put under remand is misleading and will do more harm to the public.

Therefore, there is nothing wrong for the suspect to inform the Magistrate that he may also facilitate the investigation if he is out on police bail. In the absence of any proof that the suspect will interfere with the investigation coupled with the assurance that suspect can facilitate investigation even on police bail, a remand order should not be given.

Based on the aforesaid, it can be concluded as follows:-

i) Investigation is not only confined to the recording of the suspect’s statement under Section 113 CPC. There are other aspects to an investigation;

ii) To complete an investigation the suspect need not necessarily be in remand, the suspect may be released on police bail;

iii) During remand hearing. the Magistrate has to strike a balance between the necessity of the police to complete their investigation and the suspect’s liberty;

iv) In order to convince the Magistrate that there is no necessity for a remand order, it is open for the suspect to assure the Magistrate that he may be able to assist investigation (if it is still required) even he is out on police bail.

As such, I do not think that the advice in the Red Book is misleading or wrong.

As for your other comments, I believe he Tangkap group will take note of them.