Apex court to magistrates: Be judicious in granting remand orders

PUTRAJAYA: The Federal Court has cautioned magistrates to act judiciously in exercising their discretion when giving remand orders to the police to detain suspects for investigations.

Justice Balia Yusof Wahi said a magistrate must balance fairly between the personal liberty of an individual, who had not been proven guilty of an offence, against the duty of the police to investigate a crime.

“It involves an exercise of discretion and that must be exercised judicially and is subject to the court’s scrutiny,” he said in dismissing the government’s appeal against the Court of Appeal’s decision to award damages to carpenter Mohd Hady Yaakop for false imprisonment.

Balia, who delivered the 71-page majority judgment which was made available today, said the then Chief Justice Mohamed Dzaiddin Abdullah in 2003 had come out with a practice direction for magistrates, Sessions Court judges and registrars to ensure the strict compliance of remand proceedings under Section 117 and 119 of the Criminal Procedure Code (CPC).

In 2011, the then Chief Registrar of the High Court of Malaya Che Mohd Ruzima Ghazali issued a circular on the same matter.

Balia said the issuance of the two documents reemphasised the requirement for strict compliance of Sections 117 and 119 of the CPC.

He said the police must satisfy the magistrate by producing the investigation diary that there were reasonable grounds to show the suspect was involved in a crime.

Balia said the court could not dictate how police carried out their investigations but it could not wear blinkers, oblivious to the horror stories and allegations of police brutality and custodial assault.

“This court must insist on civilised standards of human decency and be diligent in maintaining that standard. It is its bounden duty to do so,” he said.

Other members of the bench in the majority judgment today were Hasan Lah and Aziah Ali.

Justice Jeffrey Tan Kok Hwa, who dissented, said there was no false imprisonment because the remand order was validly obtained by the police.

Hady was awarded RM50,000 for false imprisonment and another RM50,000 in exemplary damages by the Court of Appeal two years ago.

However, the apex court, chaired by Chief Judge of Sabah and Sarawak Richard Malanjum, two weeks ago raised the exemplary damages to RM100,000.

This means the total awarded to the carpenter is RM150,000.

Hady, represented by J Amardas, had earlier in the High Court won RM160,000 in damages for assault. The government did not appeal this ruling.

Hady had sought a declaration that his maximum 14-day detention by police, from Nov 22, 2008, was unlawful and in breach of his constitutional rights.

He alleged that he had been assaulted during detention and suffered injuries for which he was hospitalised.

Hady named five policemen, the Melaka police chief and the government as parties to his suit in 2011.

On Nov 22, at 4.15am, Hady had accompanied his friend, Abdul Manan Hassan, to the Melaka police headquarters in Bukit Beruang regarding an assault on a policeman at Restoran Zubaidah at MITC, Melaka.

Hady said he was waiting at the guardhouse when, about 30 minutes later, a plainclothes policeman came and took him away.

He said he was taken to a room, blindfolded, stripped and assaulted despite denying any involvement in the fight at the restaurant.

He was produced before a magistrate and an application for a remand order was made by Inspector R Manimaran.

Hady was subsequently taken to Melaka Hospital as he had sustained injuries while in the lock-up.

On Nov 28, while still in hospital, his remand was extended for another seven days.

Hady said he was not informed of his right to a lawyer, neither was his family informed of his detention.

http://www.freemalaysiatoday.com/category/nation/2018/06/07/federal-court-judges-must-act-when-rights-of-detainees-are-breached/