Remand proceedings in Malaysia
This Article is intended to give the general public an insight on “remand proceedings” in Malaysia. In light of active arrests made lately, it is hoped that this article answers certain queries that readers may have and remove doubts on such proceedings.
1. What Are "Remand Proceedings"?
"Remand Proceedings" are proceedings initiated to further detain an individual in custody for more than 24 hours.
The purpose of such a proceeding is to continue detention of an individual in custody, to assist investigations and allow the same to be completed.
"Remand Proceedings" are not necessary if the accused is charged in Court within 24 hours of an arrest made.
2. Who Can Apply?
Any person or body who has a right in law to detain a person in custody, can apply.
Note however, the right to detain a person in custody is different from the right to arrest a person.
3. How Long Can One Be Remanded?
Generally, this depends on the particular offence that an individual is investigated for.
"Remand Proceedings" are divided into two (2) stages. As mentioned above, the first application is made to further detain an individual for more than 24 hours (first application for remand will be made within the first 24 hours, after an individual is arrested). A second application can then be made, before the expiry of the remand duration given, during the first application for remand.
This is how it works: -
(a) If the offence being investigated carries punishment with imprisonment of less than 14 years, the detention shall not be more than 4 days on the first application and not more than 3 days on the second application.
(b) If the offence being investigated carries punishment with imprisonment of more than 14 years, the detention shall not be more than 7 days on the first application and not more than 7 days on the second application.
4. Are "Remand Proceedings" Open For Challenge?
Yes, "Remand Proceedings" are subject to challenge; i.e. you can have your preferred lawyer represent you during "Remand Proceedings" or you may opt for the services provided by the Yayasan Bantuan Guaman Kebangsaan ('YBGK') (note that there are certain conditions to fulfill before one qualifies to for representation by the YBGK).
If no legal representation is available, you may choose to challenge the proceedings on your own. However, this is not advisable as the best option is always to secure legal representation; to ensure that due consideration is given to explore all possible merits against the application.
5. How Does One Challenge These "Remand Proceedings"?
Practically, there is no hard and fast rule for this. Each argument needs to be advocated based on the circumstances and facts of each case. Nevertheless, the following are general points that may be of use if the need so arises:
(a) Purpose of a "Remand Application"
During "Remand Proceedings", the applicant will have to read out the reasons for his application. Remember, this application seeks to detain an individual further in custody, pending investigation. Hence, the applicant must be able to demonstrate a strong connection between the need for a further detention and the investigation(s) he/she intends to pursue.
If the reasons put forward does not render it necessary for further detention of an individual, the "Remand Order" ought to be refused.
(b) Health conditions of an individual is a factor that will be taken into account in opposing the grant of a "Remand Order". If one is able to demonstrate that, he/she requires medical attention which cannot be afforded to him/her once kept in custody, the "Remand Order" may not be allowed. In special circumstances, a "Remand Order" may still be granted with strict conditions imposed.
(c) Procedural Flaw
There are many procedural requirements that the applicant must adhere to, especially in cases involving a "chain-remand". For example, the failure to keep an entry of previous detention(s) ("Remand Orders") in the diary can be fatal during future "Remand Proceedings".
(d) In some cases, the of merits of the matter can be shown to persuade the Court that, the accused cannot in any way be implicated in the case. One example is, where stamped agreements for the sale of a motorcar is shown to Court during "Remand Proceedings"; for a matter where the accused is charged for theft of the said motorcar.
6. What Happens After An Individual Is Remanded?
At the end of the remand period, the said individual must either be charged of the offence investigated for or be released.
In certain situations, one can also be subjected to further detention at a different "locality". This happens when a re-arrest takes place during his/her remand period; i.e. he/she will be brought to a new "locality" and the remand process will start all over again. Indeed, this is not done at the applicant's 'whims and fancy'. Strict elements must be satisfied for a re-arrest. Such a re-arrest during a particular remand period is commonly known as a "chain-remand".