Everyone has heard of the phrase, “I will have my day in court”.

It is an inalienable right that when you are presented with a criminal charge, especially one that deprives you of your liberty - you have a right to be heard, and a right to have your case be put forward to ensure justice is done, and more importantly seen to be done. However, this may clash with what we as a society are calling the new normal. With working from home becoming the latest corporate trend and the Covid-19 pandemic forcing all aspects of society to re-examine how they operate, it comes as no surprise that the justice system has taken to online hearings.

This author has always maintained that online hearings were an inevitability; the next step in the judicial evolutionary cycle if you will. However, in early October, the Registrar’s office at the Palace of Justice had released a statement stating that in view of the spread of Covid-19, the Judiciary would be open to proceeding with remand hearings via video conferencing where required and/or necessary. Whilst this makes sense for combating the spread of Covid-19, it may provide some downsides in the field of criminal practice which are too drastic to ignore.

What does “remand” mean?

The Federal Constitution provides that no person shall be deprived of their liberty save in accordance with law. This shows that our Constitution, before even setting out the rights to religion, free speech and property, has set out that the liberty of each individual is sacred. The Constitution also provides that where a person is arrested and not released, he/she must be produced before a Magistrate within 24 hours and cannot be further detained without the Magistrate’s authority. This period of further detainment before actually being charged with an offence is what we define as a “remand”.

Why is it important?

A remand may be required where the police need more time to investigate the suspect (i.e. the detainee) in relation to the crime. The machinery of justice sometimes does require more time to ensure that the right person is charged for the crime. As such, to ensure the suspect does not run away or destroy/tamper with evidence (both physical and witnesses), the authorities may want to ensure that the suspect remains in custody of the state (either in prison or in a police lockup).

However, it must be remembered that during this entire process, the detainee has yet to be charged with a crime. As such, technically one could say that an innocent person is being deprived of their liberty with no certainty as to their status. They are in custody, which is not a very comfortable position to be in, without knowing when or even if they are going to be released. As such, the Magistrate during the remand hearing plays an important role in balancing the needs of the investigating officer and the rights of the detainee.

What happens at a remand hearing?

In a remand hearing, the Investigating Officer, or the Public Prosecutor who may appear on behalf of the Police, will make a request to the Magistrate to remand the detainee for a further period of time. The time frame is stated in Section 117(2) of the Criminal Procedure Code:

(2) The Magistrate before whom an accused person is produced under this section may, whether he has or has no jurisdiction to try the case, authorize the detention of the accused in such custody as follows:

(a) if the offence which is being investigated is punishable with imprisonment of less than fourteen 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; or

(b) if the offence which is being investigated is punishable with death or imprisonment of fourteen years or more, the detention shall not be more than seven days on the first application and shall not be more than seven days on the second application.

As such, when deciding if a person should be detained for a period of four or seven days (the first remand), the Magistrate would need to consider if the remand is appropriate in the circumstance, if there have been any delays in the investigation process and if there is a need to continue the detention. The Magistrate cannot simply act as a rubber stamp official as the detainee’s liberty is at stake. The principle that no person should spend a second in custody when they are innocent of the charge applies.

In evaluating the need, the Magistrate would usually look into the police investigator’s investigation diary which would show the time at which the officer got the order to commence the investigation, the time they began and closed the investigation, the place or places visited by the officer and a statement of the circumstances ascertained through the investigation. If the police officer fails to do so, or if it is shown that the investigation conducted during the period of the 24-hour detainment is insufficient, this could be grounds to refuse the application for remand.

The role of the lawyer

Aside from the Magistrate, another key person would be the detainee’s counsel. In the case of Saul Hamid Pakir Mohamed v Public Prosecutor [1987] 1 MLRH 358, the High Court stated that the detainee has a right to legal counsel at the remand stage. In fact, the Learned High Court judge went so far as to say that under Section 117 of the Criminal Procedure Code, it is the duty of the police officer investigating to inform the detainee’s counsel and or their relatives, the date, times and name of the Magistrate before whom remand is sought. This is to ensure the detainee has access to legal advice and that his/her rights are protected.

The lawyer of the detainee can resist the application for remand; said lawyer can also challenge the need for the added days of detention, or challenge if the right procedure was used. A third and just as important function the lawyer plays is to ensure the health and safety of the detainee. Usually, prior to being called before the Magistrate, the lawyer will ascertain whether the detainee has been harmed (physical abuse while in lockup), whether the detainee has been given sufficient food and water and whether the detainee has any underlying medical conditions. If the detainee responds in the affirmative to any of the above, this will be raised to the court as part of the Magistrate’s consideration in granting or refusing the remand.

So where does the Online Remand Hearing come into play?

The Online Remand Hearing as mentioned in the Registrar’s statement applies to “extension of remand” hearings. As stated in Section 117(2) above, for offences which carry a penalty of less than 14 years imprisonment, after a remand period of 4 days, an officer can request an additional 3 days or where the penalty is over 14 years imprisonment, then it is an additional 7 days. Prior to the granting of this second period, there is a second remand hearing for the extension of the remand. Remember that at this point, the detainee has yet to be charged and is either in lockup or in a nearby prison. The Registrar’s Office announced in their statement that where an extension hearing is required and where requested by the prison authorities, the extension of remand hearing may be done online as per the powers available under Section 259 of the Criminal Procedure Code.

While this is a good practical measure, the media statement is curiously quiet as to which parties are to partake in this online hearing and this changes the considerations at play during the second remand hearing.

The name of the game at the second remand hearing is to question why the investigating officer has yet to charge the detainee. Having deprived the detainee’s liberty for four or seven days, the Investigating Officer will need to show that all due diligence has been and is being done in respect of the case. Nevertheless, in the manner of challenging or resisting such an extension, the same considerations as listed above need to be made clear to the Magistrate. The online nature of the hearing may turn up different complications to the hearing due to the dynamics at play. We will explore two of the possibilities that the Chief Justice had in mind when allowing online “extension to remand” hearings.

1. Only the prisoner is to appear online

In this scenario, the Investigating Officer, Magistrate and legal counsel, if any, are to be physically present in court whilst the detainee is remotely live streamed into the proceedings.

As most Malaysians will know, many of the detention camps and/or prisons have been hit with Covid-19 cases, especially in the state of Sabah. Due to the large population and close proximity, it is a genuine worry and threat that the disease could spread to many of the detainees whilst awaiting their release or next remand hearing. In addition, at remand hearing courts, many of these detainees are placed in close proximity with one another which greatly increases the risk of spreading Covid-19. To exacerbate the situation, in courts like the Petaling Jaya Magistrates Court, detainees from all over the catchment area are present around the same time, along with lawyers and police officers. The risk of transmission is therefore incredibly high with such a large number of people from different areas being involved in the remand process. Therefore, if there has been a suspected case of Covid-19 at the remand center, it would make practical sense for the detainee to remain at the center and attend the hearing via live link.

However, as mentioned above, the remand hearing operates as a check and balance. In order to ensure the detainee is not being harmed and that their rights are being respected, it may be necessary for legal counsel to have a private word with the detainee or at the very least, allow the detainee to feel they can be forthright with the Magistrate without fear of repercussion from the police. However, it is unlikely that one will give testimony that they were being ill-treated whilst on live-link right in front of their alleged abuser.

Admittedly, there is an option to have a private conference via an online platform between the detainee and their counsel. However, the cost of executing this would be quite high. Provision of adequate systems (either via mobile phone or on a computer/laptop) for the detainee and for legal counsel at court would be difficult to implement and execute in the near future.

In addition, there is the concern that the detainee will be viewed as just another number by the Magistrate. A Magistrate, on any given day can deal with numbers of 30 or more detainees. At a remand hearing, the Magistrate has at least the opportunity to personally view the detainee and see their condition for themselves. However, on live link, the human connection is a lot more distant. If the Magistrate is dealing with large numbers of people whom they cannot see or connect with, it is easy for the detainee to be just another name or number that the Magistrate has to decide on. At present there are already concerns that Magistrates merely rubber stamp an Investigating Officer’s request. Without the human touch, it would not be a leap to assume the Magistrate is merely going through the motions.

2. All parties are online

A second option that may occur with an online hearing is where all parties are to attend the hearing via video conference. This is not impossible seeing that online hearings have been conducted fairly successfully as of late. It could be done via a registered platform (such as Zoom) with allocated time slots for each detainee depending on police precincts. Aside from allowing for containment of the spread of Covid-19 as explained above, it also saves time for the police officer, as they no longer need to spend time travelling to and from the courts. In addition, as the officer has a duty to inform counsel and/or the detainee’s relative, the risk of the detainee being unrepresented is low.

However, as outlined above, having a private conference with the detainee may be difficult to arrange. Moreover and more pressing yet, it is yet to be announced how the Investigation Officer’s diary will be checked by the Magistrate. As stated above, the investigation diary is important in determining if there is a need to continue remand. This author is of the opinion that a soft copy version will be sent to the Magistrate for their review. Nevertheless, this is not expressly mentioned and therefore we await further guidance from the judiciary.

Conclusion

In conclusion, this measure seems to come from a good place. We as a society need to take the threat of Covid-19 seriously and any and all innovation to our processes which help combat the pandemic need to be taken seriously. An online remand hearing is inevitable but it cannot be at the expense of the detainee’s rights. The media statement released by the Registrar’s office concurs that a detainee’s rights will be defended - but there is no mention as to how the issues we have discussed above will be resolved. As such, we will need to monitor the process and adapt to our new normal.

Footnotes

[1] https://www.malaysianbar.org.my/cms/upload_files/document/Circular%20No%20333-2020.pdf
[2] Article 5(1) Federal Constitution
[3] Article 5(4) Federal Constitution
[4] Ibid and also in Section 28 of the Criminal Procedure Code (Revised 1999)
[5] Inspector Yusof Haji Othman & Ors v Kwan Hung Cheong [2012] 1 MLRA 492
[6] Section 117(1A) of the Criminal Procedure Code
[7] Section 117(2) of the Criminal Procedure Code – Please note this only applies to crimes charged under the Penal Code. Certain other Acts such as the Immigration Act have different time frames for remand of a detainee.
[8] In Re The Detention of S Sivarasa & Ors [1996] 3 MLRH 180
[9] Section 119(1) of the Criminal Procedure Code
[10] Saul Hamid Parkir Mohamed (Supra)
[11] Saul Hamid Parkir Mohamed (Supra)