Don’t remand Patrick Teoh without basis

I would advise Johor police chief Ayob Khan Mydin Pitchay to retract statements he made to the media yesterday and I will even go further to say that he should make a public apology.

Among the statements made by him to the media in relation to the ongoing investigations against Patrick Teoh were the following:

“In fact, during our investigations, the suspect (Patrick Teoh) claims that he has forgotten all his passwords.

“Due to that, investigators may apply to remand him for another four days to wrap-up investigations.

“Perhaps the suspect will recall his passwords during his remand extension.”

I find it extremely disappointing that a police officer of his stature could make such statements that blatantly disrespect the laws of our country.

His primary duty as a police officer is to protect these laws and yet we, the members of the public find him carelessly issuing statements to the media that are based on a flawed and inaccurate understanding of remand procedure and law.

How could a police officer in his position have such a lack of basic knowledge regarding remand proceedings? These statements he has made to the media are also encouraging flawed perceptions of remand procedures among the Malaysian public.

“Cooperation” or the lack of it is not a factor to be considered by the magistrate when it comes to a remand application.

Under Section 256(2) of the Communications and Multimedia Act, a person giving a statement to the police “may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture”.

This upholds the privilege against self-incrimination, an important principle in our criminal justice system. Even if Teoh refuses to give an answer that incriminates him, he is entitled to do so under our law.

In this instance, according to the Johor police chief, Teoh has already given an answer.

The apparent problem that exists, however, is that the police currently find it hard to believe Teoh’s explanation. I would like to remind the Johor police chief that the police are not in the business of determining the truth or validity of Teoh’s statement. That is the duty of the courts.

The answers that are given by him should be recorded and left as it is. If the police disbelieve the answers that are given to them and they have the proof to show it, they can pursue a separate charge under Section 242 of the Communications and Multimedia Act for giving false evidence.

However, what they cannot and should not do is remand Teoh solely on the basis that they do not trust the answers that he has given to them thus far. I reiterate once again that doing so would be encroaching upon the courts’ duty.

The law on remand procedure is settled and clear.

From my experience, I know plenty of investigating officers who would ask this question: “How about further investigation? Isn’t that a valid reason to apply for remand as well?”

In response, I refer to the High Court case of Re Syed Mohammad Syed Isa & Ors [2001] 8 CLJ 247 specifically at page 253 in which it was stated that remand applications cannot be allowed solely on the reason of further investigation.

There need to be further reasons other than “completing an investigation” and, as elaborated upon by the High Court in that case, these reasons may include a risk of the suspect absconding or a risk that the suspect may interfere with the course of justice (evidence or witness tampering). Another reason could be a risk of the suspect committing further offences.

In the present case involving Teoh, none of these reasons exists.

He is a public figure and the current imposition of the conditional movement control order makes it unlikely for the suspect to disappear without notice.

Police have already seized his laptop and other belongings and it is unlikely for Teoh to tamper with any evidence during the period between the current police investigation and his eventual charge before the court, if any. If there were any concerns, the police could have given Teoh police bail pending the completion of the investigation.

It was also stated further by the High Court that “enabling the police to complete investigations cannot be interpreted as authorising interrogation”.

“A person may be asked questions, but he does not have to answer. He has the right to remain silent. He cannot be interrogated. Thus, grounds in an application for remand, that the suspect may be questioned, interrogated or for the purpose of obtaining a cautioned statement, are not valid grounds.“

The Johor police chief, suggesting that the remand extension is needed to assist Teoh in remembering his passwords, is a chilling statement that is implying the use of “oppression” by the police to further their investigations.

Would the length of the remand be finally deemed enough when the 73-year old man either caves in or breaks down?

If asking him in a civil nature is insufficient, what other measures are going to be taken to produce these passwords? I dare not answer the latter question.

There are certain facts we know are indisputable, such as the existence of gravity, our need for water and the numerous deaths in police custody in our country year after year.

I won’t venture further to suggest that these deaths occurred because of any form of police “oppression” but I raise this issue to highlight how a person’s fundamental right to liberty, as enshrined under the Federal Constitution, the supreme law of our land, should never be taken lightly.

Regardless of whether Teoh is innocent or not, we must not allow any attempt to disrespect the fundamental principles of our criminal justice system. They are designed to not only protect the suspect or accused person but to also ensure the legitimacy of our system.

As such, I hope that the Johor police force can follow proper procedure and tread carefully when making such statements to the media in the future.

Goh Cia Yee is a criminal lawyer.

The views expressed are those of the author and do not necessarily reflect those of FMT.