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[2001] 4 AMR 3955

In re Mohamad Ezam bin Mohd Nor 1


2
3
HIGH COURT, KUALA LUMPUR – CRIMINAL TRIAL NO 43-12-2001 4
ABDUL WAHAB B PATAIL, J 5
APRIL 10, 2001 6
7
CRIMINAL PROCEDURE –Revision – Remand order – Whether the “purpose” 8
9
of obtaining statements under ss 112 or 113 of the CPC authorizes under
10
s 117 thereof, the remand of the person in police custody – Criminal 11
Procedure Code, ss 112, 113, 117, 119, 323 – Federal Constitution, 12
Article 5(1) 13
14
The instant revision was called for under s 323 of the Criminal Procedure 15
16
Code (CPC) to examine the record of the remand proceedings in respect of
17
Mohamad Ezam bin Mohd Nor (the suspect) who was remanded for a 18
period of four days pursuant to the order of the Magistrate’s Court. The 19
purpose of this court’s revision of the remand order (the order) was to 20
determine the correctness, legality or propriety of the order by examining 21
the copy of the entries in the diary of proceedings in the investigation of the 22
23
investigating officer, and of the reasons recorded under s 117(iii) of the
24
CPC in authorizing the remand. 25
26
The six reasons advanced by the police in support of their application for 27
the order may be divided into three categories, the first and second of which 28
involve questioning of a suspect under remand in police custody to obtain 29
30
from him the information in respect of the crime alleged against him. The
31
third category refers clearly to ordinary steps in an investigation process 32
involving the particular information or accusation against the suspect. 33
34
The learned Senior Deputy Public Prosecutor (DPP) submitted that the 35
“purpose” of obtaining a cautioned statement justified the remanding of a 36
37
person into police custody and that the police have the right to interrogate
38
a suspect as such interrogation is an integral part in the conduct of 39
investigations. Such interrogation it was argued, is necessary to aid in the 40
investigation, even though the information obtained from such interrogation 41
may not be admissible in evidence. It was submitted that reasonable 42
persuasion may be used in the conduct of such interrogation and that there 43
44
is no provision in law which prevents the police from interrogating a
45
suspect. The DPP relied on the provisions of ss 112 and 113 of the CPC. 46
3956 All Malaysia Reports [2001] 4 AMR

1 Issue(s)
2
3 Whether the “purpose” of obtaining statements under ss 112 or 113 of the
4
5
CPC authorizes under s 117 thereof, the remand of the person in police
6 custody.
7
8 Held
9
10 Although s 117(iii) of the CPC requires the Magistrate to record his reasons
11
12
for remanding a person into police custody, the section does not itself
13 provide guidelines of the reasons that may be accepted. The acceptable
14 reasons may however be inferred from s 119 of the CPC which sets out the
15 matters that must be made available to the Magistrate to enable him to
16 decide whether or not and for what period, a remand order ought to be
17 granted. [SEE P 3960 LINES 37-43]
18
19
20 It is thus clear that the emphasis in s 119(i) of the CPC is that the diary must
21 show that whatever period of personal liberty a suspect is deprived of is not
22 wasted but is used diligently to further the investigation. However, there is
23 nothing in s 119 of the CPC that specifically provides for or authorizes the
24 interrogation or questioning of the suspect. [SEE P 3961 LINES 30-34]
25
26
27 Section 117 of the CPC authorizes the remand into police custody and the
28 primary provision of law upon which the said section is founded, is
29 Article 5(1) of the Federal Constitution (the Constitution) which provides
30 that “No person shall be deprived of his life or personal liberty save in
31 accordance with law”. The words “save in accordance with law” requires
32
33
that there must be specific and explicit law that actually provides for it and
34 since the Constitution is the supreme law of the Federation, such strict
35 interpretation is to be applied in interpreting s 117 of the CPC. There is no
36 room for a permissive interpretation that a deprivation of the liberty of the
37 suspect to enable the police to question or to interrogate him is allowed
38 because there is no law against it when s 117 of the CPC itself does not make
39
40
it clear. [SEE P 3963 LINES 27-33]
41
42 Without the specific sanction of any law, the right to ask questions arises
43 only from the right of freedom of speech; any person, even the police, can
44 ask questions. But it is up to the person to whom the questions are asked
45 to answer or not. [SEE P 3969 LINES 15-18]
46
[2001] 4 AMR In re Mohamad Ezam bin Mohd Nor 3957

Whilst it is true that the police officer conducting the investigation must 1
first be satisfied that the accusation or information is well founded before 2
3
he makes an application for remand, the Magistrate has a judicial
4
discretion to discharge. He must consider the nature of the information 5
or accusation and whether based upon the copy of the entries in the diary 6
of proceedings of investigation of the investigating officer, he agrees and 7
accepts:- 8
9
10
(a) that the information or complaint is well founded;
11
12
(b) that the investigation is not complete; 13
14
(c) that continued investigation could point to the existence of certain 15
witnesses and/or evidence that is necessary to complete the 16
17
investigations;
18
19
(d) That for that purpose the continued remand of the accused is 20
necessary to ensure: 21
22
(i) his attendance in court to be charged; 23
24
25
(ii) he does not interfere with witnesses; or 26
27
(iii) he does not interfere with other evidence yet to be collected. 28
29
[SEE P 3969 LINE 29 - P 3970 LINE 5] 30
31
32
The only grounds upon which the personal liberty of a person not yet 33
proven beyond reasonable doubt to be guilty and not yet convicted, for such 34
is the legal situation of a suspect, may be abridged by deprivation of it by 35
arrest and remand before he is charged, in order to serve the public interest 36
that laws are enforced and offenders brought to justice for their offences, 37
38
are where the suspect is likely to abscond, interfere with the witnesses and/ 39
or the evidence. He is not remanded into custody as any form of punishment. 40
Whilst co-operation in investigations is a factor to be taken into account for 41
mitigation in sentencing, non-cooperation is not a factor for enhancing 42
sentence as it would negate his right to remain silent. There is therefore no 43
basis to hold a person in custody until he cooperates. No matter how guilty 44
45
a person may be, he is entitled to a trial where the burden is entirely upon 46
3958 All Malaysia Reports [2001] 4 AMR

1 the prosecution to prove beyond reasonable doubt that he is guilty of the


2 offence with which he is charged. There is therefore no legal basis for any
3 argument that the person may be interrogated until he is forthcoming and
4
5
assists in the investigation against him. [SEE P 3870 LINE 37 - P 3971 LINE 8]
6
7 Based on the aforesaid reasons, it is the conclusion of this court that s 117
8 of the CPC does not authorize the remand of a person for the purpose of
9 questioning him aggressively (interrogating) because ss 112 and 113 of the
10 CPC do not in any case authorize interrogation of a suspect and he may be
11
12
questioned systematically (examined) only if he had been cautioned. A
13 remand order for the purpose of interrogating a suspect, or examining him
14 without showing he has been cautioned is therefore bad in law. [SEE P 3971
15 LINES 12-18]
16
17 On the facts, the only reasons that ought to have been accepted by the
18
19
Magistrate are as contained in the third category of reasons relied upon by
20 the police in their application for the remand of the suspect. Although the
21 first two category of reasons are not correct, legal or proper grounds, the
22 third category of reasons cannot also be said to be irregular, incorrect,
23 illegal or improper. The nature of the offence for which the suspect was
24 investigated is of planning and organizing daily public demonstrations in
25
26
the streets involving the connivance, cooperation and participation of
27 many other persons. It is obvious that investigations into the alleged
28 offence would take time and that the suspects release would jeopardize the
29 investigations. In the circumstances, the initial remand of four days of the
30 suspect cannot be said to be unnecessary. [SEE P 3971 LINE 42 - P 3972 LINE 7]
31
32
33
Order accordingly
34
35 Case(s) referred by the court
36
37 Goi Ching Ang v PP [1999] 2 AMR 1297 (ref)
38 McDermott v The King [1948] 76 CLR 501 (foll)
39
40
R v Swaffield; Pavic v The Queen [1998] HCA 1 (ref)
41 Rees v Kratzmann [1965] 114 CLR 63 (ref)
42 Syed Muhammad b Syed Isa & Ors, In re (Kuala Lumpur Criminal
43 Revisions Nos 43-03-2001, 43-05-2001, 43-06-2001 & 43-07-2001)
44 (foll)
45
46
[2001] 4 AMR In re Mohamad Ezam bin Mohd Nor 3959

Legislation considered 1
2
3
Criminal Procedure Code, ss 112, 112(3), 113, 113(1)(a)(ii), (b), 117,
4
117(iii), 119(i), (ii), 323(i) 5
Federal Constitution, Article 5(1) 6
7
Other references 8
9
10
Fajar-Oxford Advanced Learner’s English-Malay Dictionary
11
12
Abdul Wahab b Patail, J 13
14
The remand application and order made in respect of Mohamad Ezam bin 15
Mohd Nor (hereinafter referred to as the suspect) by the Magistrate’s 16
17
Court, Kuala Lumpur on March 7, 2001 was brought to my attention by his
18
counsel, Encik Zainur Zakaria and assisted by N Surendran in the morning 19
the following day. In so doing his letter included the application for remand 20
made by the police. 21
22
The six reasons given by the police in support of the application may be 23
24
summarised in three broad categories as follows:
25
26
“(a) To conduct questioning upon the suspect so as to find out the plans and 27
motive in promoting and encouraging the public to participate in 28
illegal assemblies; to find out from the suspect other persons acting in 29
concert and involved in the offences under investigation. (Alasan 3 30
and 4) 31
32
33
(b) To assist the police to identify and find documents and equipment
34
involved in the investigation, including admission by the suspect that 35
he was involved in planning to launch daily demonstrations in the 36
streets. (Alasan 1) 37
38
(c) To enable the police to identify witnesses who can assist in 39
investigations; other persons involved with the suspect; and to record 40
intelligence statement so as to ascertain if national security is threatened 41
or otherwise as a result of the actions of the suspect. (Alasan 2, 5 and 6)” 42
43
44
Whilst the third category refers clearly to ordinary steps in an investigation 45
process involving the particular information or accusation against the 46
3960 All Malaysia Reports [2001] 4 AMR

1 suspect, the first two categories involve questioning of a suspect under


2 remand in police custody to obtain from him the information in respect of
3 the crime alleged against him. These reasons require legal scrutiny.
4
5
6 For the purpose of satisfying myself as to the correctness, legality or
7 propriety of the order made by the Magistrate, and the regularity of the
8 proceedings, I had acted under s 323(i) of the Criminal Procedure Code
9 (CPC) to call for and to examine the record of the remand proceeding in
10 respect of the suspect, in particular:
11
12
13 (a) The copy of the entries in the diary of proceedings in the investigation
14 of the investigating officer.
15
16 (b) The reasons recorded under s 117(iii) of the CPC in authorising the
17 remand into police custody.
18
19
20 The calling for the record for examination were necessary because the copy
21 of the entries in the diary of proceedings in the investigation of the
22 investigating officer, upon which the Magistrate must rely upon for the
23 factual basis for deciding whether remand of the suspect is necessary or
24 otherwise, by virtue of s 119(ii) of the CPC, is not available to the
25
26
suspect or his counsel, who consequently are unable to present it to me
27 for review.
28
29 Upon examination of the record, I found a copy of the entries in the
30 investigation diary was submitted to the Magistrate in accordance with
31 s 117 of the CPC. In addition I found that in ordering the remand of four
32
33
days, to wit, from March 7, 2001 to March 10, 2001, it appears that the
34 Magistrate had accepted all of the reasons advanced by the police in the
35 application.
36
37 Although s 117(iii) of the CPC requires the Magistrate to record his reasons
38 for remanding a person into police custody, the section does not itself
39
40
provide guidelines of the reasons that may be accepted. The acceptable
41 reasons may however be inferred from s 119 of the CPC which sets out the
42 matters that must be made available to the Magistrate to enable him to
43 decide whether or not and for what period, a remand order ought to be
44 granted:
45
46
[2001] 4 AMR In re Mohamad Ezam bin Mohd Nor 3961

“119. Diary of proceedings in investigation 1


2
(i) Every police officer making a police investigation under this 3
4
Chapter shall day by day enter his proceedings in the investigation
5
in a diary setting forth – 6
7
(a) the time at which the order, if any, for investigation reached 8
him; 9
10
(b) the time at which he began and closed the investigation; 11
12
13
(c) the place or places visited by him; and
14
15
(d) a statement of the circumstances ascertained through his 16
investigation. 17
18
(ii) Notwithstanding anything contained in the [Evidence Ordinance 19
1950], an accused person shall not be entitled, either before or in 20
the course of any inquiry or trial, to call for or inspect any such 21
22
diary: provided that if the police officer who has made the
23
investigation refers to the diary for the purposes of section 159 or 24
160 of the said Ordinance such entries only as such officer has 25
referred to shall be shown to the accused, and the Court shall at the 26
request of such officer cause any other entries to be concealed from 27
view or obliterated.” 28
29
It is clear that the emphasis in s 119(i) of the CPC is that the diary must show 30
31
that whatever period of personal liberty a suspect is deprived of is not
32
wasted but is used diligently to further the investigation. But there is 33
nothing in s 119 that specifically provides for or authorizes interrogation 34
or questioning of the suspect. 35
36
In the circumstances the reasons in the first two categories at paragraph 2 37
38
above require legal scrutiny. I had therefore directed the parties to appear
39
before me to be heard upon the examination of the correctness, legality or 40
propriety of the reasons that were advanced in support of the application. 41
42
To proceed directly to the issues, I had asked the learned Senior DPP, Encik 43
Mohd Yusof bin Zainal (Senior DPP) to submit as why the remand order 44
45
ought not to be disturbed. More specifically I had invited the learned Senior
46
3962 All Malaysia Reports [2001] 4 AMR

1 DPP to submit whether the purpose of obtaining statements under s 112 or


2 s 113 of the CPC authorizes under s 117 of the CPC the remand of a person
3 in police custody. More generally, the question is to what extent may a
4
5
suspect be detained in police custody to assist the latter in their investigations.
6
7 The first submission by the learned Senior DPP went further than the
8 argument that the purpose of obtaining a cautioned statement justifies
9 remanding a person into police custody. He submitted that the police have
10 a right to interrogate a suspect because interrogation of the suspect is an
11
12
integral part of conducting investigations. Although he was aware of my
13 decision in In re Syed Muhammad b Syed Isa & Ors (Kuala Lumpur
14 Criminal Revisions Nos 43-03-2001, 43-05-2001, 43-06-2001 & 43-07-
15 2001), he nevertheless argued that interrogation of a suspect is a necessary
16 part of the investigation process, to aid in such investigations even though
17 information obtained under such interrogation may not be admissible in
18
19
evidence. In pressing upon his submission he argued that reasonable
20 persuasion may be used to do so, and the limit upon the authorities is that
21 it should not break the law such as by using causing hurt etc. He submitted
22 there is no provision of law that prevents the police from interrogating a
23 suspect.
24
25
26
It is true there is no law that specifically provides that the police may not
27 interrogate a suspect. But at the same time it is equally true that there is no
28 law that says that the police may interrogate a suspect. In the circumstances
29 it is necessary to consider the wordings of the existing law that pertains to
30 remands generally.
31
32
33
The law that authorizes remand into police custody is s 117 of the CPC
34 which provides as follows:
35
36 “117. Procedure where investigation cannot be completed within twenty-
37 four hours
38
39 (i) Whenever any person is arrested and detained in custody and it
40
appears that the investigation cannot be completed within the
41
42 period of twenty-four hours fixed by section 28 and there are
43 grounds for believing that the accusation or information is well
44 founded the police officer making the investigation shall forthwith
45 transmit to a Magistrate a copy of the entries in the diary hereinafter
46
[2001] 4 AMR In re Mohamad Ezam bin Mohd Nor 3963

prescribed relating to the case and shall at the same time [produce 1
the accused before such Magistrate]. 2
3
4
(ii) [The Magistrate before whom an accused person is produced]
5
under this section may, whether he has or has not jurisdiction to try
6
the case, from time to time authorize the detention of the accused 7
in such custody as such Magistrate thinks fit for a term not 8
exceeding fifteen days in the whole. If he has not jurisdiction to try 9
the case and considers further detention unnecessary he may order 10
the accused person to be [produced before a Magistrate having 11
such jurisdiction] [or, if the case is triable only by the High Court, 12
before himself or another Magistrate having jurisdiction with a 13
14
view to committal for trial by the High Court.]
15
16
(iii) A Magistrate authorising under this section detention in the 17
custody of the police shall record his reasons for so doing.” 18
19
The primary provision of law upon which the above is founded is Article 5(1) 20
of the Federal Constitution, which provides: 21
22
23
“ No person shall be deprived of his life or personal liberty save in accordance 24
with law.” 25
26
The words “save in accordance with law” require that there must be 27
specific and explicit law that actually provides for it. Since the Federal 28
Constitution is the supreme law of the Federation, such strict interpretation 29
30
is to be applied in interpreting s 117 of the CPC. There is no room for a
31
permissive interpretation that a deprivation of the liberty of the suspect to 32
enable the police to question or to interrogate him is allowed because there 33
is no law against it when s 117 of the CPC itself does not make it clear. 34
35
Examination of witnesses is authorized by s 112 of the CPC. The learned 36
37
Senior DPP relies upon it for his argument. The extent to which it so
38
authorizes is made clear by a close examination of its terms: 39
40
“(1) A police officer making a police investigation under this chapter may 41
examine orally any person supposed to be acquainted with the facts 42
and circumstances of the case and shall reduce into writing any 43
statement made by the person so examined. 44
45
46
3964 All Malaysia Reports [2001] 4 AMR

1 (2) Such person shall be bound to answer all questions relating to such case
2 put to him by such officer:
3
4 Provided that such person may refuse to answer any question the
5
answer to which would have a tendency to expose him to a criminal
6
7
charge or penalty or forfeiture.
8
9 (3) A person making a statement under this section shall be legally bound
10 to state the truth, whether or not such statement is made wholly or
11 partly in answer to questions.
12
13 (4) A police officer examining a person under subsection (1) shall first
14 inform that person of the provisions of subsections (2) and (3).
15
16
17 (5) A statement made by any person under this section whether or not a
18 caution has been administered to him under section 113(1) shall
19 whenever possible, be taken down in writing and signed by the person
20 making it or affixed with his thumb print as the case may be, after it has
21 been read to him in the language in which he made it and after he has
22 been given an opportunity to make any corrections he may wish.”
23
24
The section refers to examination of witnesses. The moment any person,
25
26 including a witness, is arrested, he is no longer a witness but is a suspect,
27 and s 112 of the CPC is no longer of any application to that person. In any
28 case a witness can refuse to answer questions if it has a tendency to expose
29 him to a criminal charge or penalty or forfeiture. Thus whatever right is
30 conferred by s 112 of the CPC upon the police to require a witness to submit
31
to examination, it is only if he is examined as a witness.
32
33
34 More importantly, although the section empowers the police to examine a
35 witness, it does not empower the police to arrest a witness for the purpose
36 of examining him, let alone interrogate him. Arresting a witness and
37 keeping him in custody to answer questions under s 112 of the CPC or to
38
be interrogated is such a novel, even radical, development to criminal
39
40 procedure that there must be express words in the section so as to authorize
41 it. The argument that s 112(3) of the CPC provides the statement is
42 admissible “whether or not such statement is made wholly or partly in
43 answer to questions” implies that more than questioning is allowed carries
44 no persuasive value worth discussing at length. The subsection is intended
45
to enable the admission of statements made that are not necessarily a direct
46
answer to the question that is put to the witness.
[2001] 4 AMR In re Mohamad Ezam bin Mohd Nor 3965

The learned Senior DPP relied also on s 113 of the CPC. It provides: 1
2
3
“113. Admission of statements in evidence
4
5
(1) Where any person is charged with any offence any statement, 6
whether the statement amounts to a confession or not or is oral or 7
in writing, made at any time, whether before or after the person is 8
charged and whether in the course of a police investigation or not 9
and whether or not wholly or partly in answer to questions, by that 10
person to or in the hearing of any police officer of or above the rank 11
12
of Inspector and whether or not interpreted to him by another
13
police officer or other person shall be admissible in evidence at his
14
trial and, if the person charged tenders himself as a witness, any 15
such statement may be used in cross-examination and for the 16
purpose of impeaching his credit: 17
18
Provided that 19
20
21
(a) no such statement shall be admissible or used as aforesaid –
22
23
(i) if the making of the statement appears to the court to have 24
been caused by any inducement, threat or promise having 25
reference to the charge proceeding from a person in 26
authority and sufficient in the opinion of the court to give 27
the person charged grounds which would appear to him 28
reasonable for supposing that by making it he would gain 29
any advantage or avoid any evil of a temporal nature in 30
31
reference to the proceeding against him; or
32
33
(ii) in the case of a statement made by the person after his 34
arrest, unless the court is satisfied that a caution was 35
administered to him in the following words or words to the 36
like effect: 37
38
‘it is my duty to warn you that you are not obliged to say 39
40
anything or to answer any question, but anything you
41
say, whether in answer to a question or not, may be 42
given in evidence’; and 43
44
(b) a statement made by any person before there is time to caution 45
him shall not be rendered inadmissible in evidence merely by 46
3966 All Malaysia Reports [2001] 4 AMR

1 reason of no such caution having been administered if it has


2 been administered as soon as possible.
3
4 (2) Notwithstanding anything to the contrary contained in any written
5
law a person accused of an offence to which subsection (1) applies
6
7 shall not be bound to answer any questions relating to the case after
8 any such caution as aforesaid has been administered to him.”
9
10 Whether or not the statement is wholly or partly in answer to questions, by
11 that person, the statement must be to or in the hearing of any police officer
12 of or above the rank of Inspector. What is indisputable is that the court must
13
14
be satisfied that in the case of a statement by a person made after his arrest,
15 a caution as in the proviso in s 113(1)(a)(ii) of the CPC has been
16 administered to that person, or that the caution has been administered to
17 him as soon as possible. The condition in s 113(1)(b) is that the statement
18 was made before there was time to caution him. It does not justify delay in
19 giving him a caution. It refers to a situation where an arrested person makes
20
21
a statement of his own accord before there was time to caution him. It is of
22 no application in remand cases.
23
24 These provisions support the conclusion that the police may ask questions,
25 but do not go so far as to say that the police may detain that person in
26 custody for the purpose of obtaining statements under s 112 or s 113 of the
27
28
CPC. That the provisions fail to state that the police may arrest and detain
29 a person in custody for the purpose of obtaining such statements is weighty
30 argument against the notion that the purpose of obtaining such statements
31 is a valid ground for seeking his arrest and remand.
32
33 It is also useful to examine the use of the operative words in ss 112 and 113
34
35
of the CPC in terms of the questioning that is authorized.
36
37 While s 112 of the CPC uses the term “examine” in relation to witnesses,
38 s 113 of the CPC uses the term “questions”. Professional questioning is
39 questioning in a systematic manner, and may be described as examining the
40 person. Even so it must be noted that the term examine in s 112 of the CPC
41
42
is used in the context where there in an obligation to answer questions and
43 to tell the truth as a witness, while in s 113 of the CPC only the term question
44 is used.
45
46
[2001] 4 AMR In re Mohamad Ezam bin Mohd Nor 3967

Now, s 113 of the CPC refers to answers by a person in custody to questions 1


put to him. Asking questions of a person in custody or otherwise is based 2
3
upon the right of freedom of speech. The person who is asked those
4
questions has the right to refuse to answer or to answer to those questions 5
put to him. Indeed the purpose of s 113 of the CPC is to protect the person 6
in custody by requiring that the caution under s 113(a)(ii) must first have 7
been administered, or as soon as possible. However it is clear that s 113 8
does not state that there is any right conferred upon the authorities to 9
10
examine or interrogate a person who is in custody.
11
12
Ground 3 of the application for remand is “Menjalankan soal siasat ke atas 13
suspek …”. Now, in the Malay language ‘soal siasat’ can mean examine 14
or interrogate. Provided these terms are confined to the meaning of 15
question or questioning formally, closely and thoroughly there appears to 16
17
be no contravention. However the terms interrogate and interrogation may
18
be understood in other jurisdictions or countries, they carry in Malaysia the 19
meaning “to question aggressively” (see Fajar-Oxford Advanced Learner’s 20
English-Malay Dictionary). The dangers arising out of the belief one could 21
question aggressively requires me to address the issue in no uncertain 22
terms. 23
24
25
That the legislature chose to use terms other than “interrogate” is clear 26
indication that the legislature does not intend retrogression to the laws of 27
the age of inquisition under the courts of the Star Chamber. Interrogation 28
in the sense of questioning aggressively is not simply asking questions, but 29
questioning and insisting upon an answer until the interrogator is satisfied 30
31
with his answers. The dangers of placing a person under remand so as to
32
be so interrogated are heightened because he is not at liberty to walk out and 33
walk away from such interrogation. 34
35
The view that any evidence obtained from witnesses or accused persons 36
under such interrogation, in other words, not of a voluntary nature, unlike 37
38
that obtained from a person having the right not to answer the question, are
39
so well accepted as inherently unsafe that even if the evidence is technically 40
admissible it may still be excluded as being inherently unsafe to rely on (see 41
Goi Ching Ang v PP [1999] 2 AMR 1297). 42
43
The latter concern reflects the traditional objection to interrogation, the 44
45
origin of which was stated by Windeyer J in Rees v Kratzmann [1965] 114
46
CLR 63 at p 80:
3968 All Malaysia Reports [2001] 4 AMR

1 “ There is in the common law a traditional objection to compulsory


2 interrogations. Blackstone explained it: ‘For at the common law, nemo
3 tenebatur prodere seipsum: and his fault was not to be wrung out of himself,
4 but rather to be discovered by other means, and other men’: Comm iv 296.
5
The continuing regard for this element in the lawyer’s notion of justice may
6
7
be, as has been suggested, partly a consequence of a persistent memory in
8 the common law of hatred of the Star Chamber and its works. It is linked
9 with the cherished view of English lawyers that their methods are more just
10 than are the inquisitional procedures of other countries.”
11
12 In R v Swaffield; Pavic v The Queen [1998] HCA 1, in an instructive
13 discussion on voluntariness, the unfairness discretion and public policy
14
15
discretion for the exclusion of evidence, the High Court of Australia quoted
16 Devlin J as having been reported to have directed a jury in these terms:
17
18 “ So great is our horror at the idea that a man might be questioned, forced to
19 speak and perhaps to condemn himself out of his own mouth ... that we
20 afford to everyone suspected or accused of a crime, at every stage, and to
21 the very end, the right to say:
22
23
24 ‘Ask me no questions, I shall answer none. Prove your case.’”
25
26 Indeed the courts have the discretion to exclude evidence otherwise
27 admissible if it had been obtained by unfair means. In McDermott v The
28 King [1948] 76 CLR 501, 512-513, Dixon J explained:
29
30
31 “ The view that a judge presiding at a criminal trial possesses a discretion to
32 exclude evidence of confessional statements is of comparatively recent
33 growth. To some extent the course of its development is traced by Lord
34 Sumner in Ibrahim’s case [23]. In part perhaps it may be a consequence of
35 a failure to perceive how far the settled rule of the common law goes in
36 excluding statements that are not the outcome of an accused person’s free
37 choice to speak. In part the development may be due to the fact that the
38 judges in 1912 framed or approved of rules for the guidance of the police
39
in their inquiries (see R v Voisin [24]; Archbold on Pleading, Evidence and
40
41 Practice in Criminal Cases [25]) and not unnaturally have sought to insist
42 on their observance. In part too it may be due to the existence of the
43 jurisdiction of the Court of Criminal Appeal to quash a conviction if the
44 court is of opinion that on any ground whatsoever there was a miscarriage
45 of justice. But whatever may be the cause, there has arisen almost in our
46 own time a practice in England of excluding confessional statements made
[2001] 4 AMR In re Mohamad Ezam bin Mohd Nor 3969

to officers of police if it is considered upon a review of all the circumstances 1


that they have been obtained in an improper manner. The abuse of the power 2
of arrest by using the detention of an accused person as an occasion for 3
securing from him evidence by admission is treated as an impropriety 4
5
justifying the exclusion of the evidence. So is insistence upon questions or
6
an attempt to break down or qualify the effect of an accused person’s 7
statement so far as it may be exculpatory.” (Emphasis added) 8
9
To bring the question before us back into its proper perspective and focus, 10
it must be borne in mind clearly that the issue before this court is whether 11
the purpose of interrogating the suspect or to obtain cautioned statements 12
13
under s 113 of the CPC are valid grounds to obtain an order for remand. 14
Without the specific sanction of any law, the right to ask questions arises 15
only from the right of freedom of speech: any person, even the police, can 16
ask questions. But it is up to the person to whom the questions are asked 17
to answer or not. 18
19
20
It was submitted by the learned Senior DPP, in relation to s 117 of the CPC 21
that it is for the police officer making the investigation to be satisfied that 22
the accusation or information is well founded. Encik Zainur Zakaria on the 23
other hand sought to urge upon the court that there was no purpose to 24
remand his client into custody because since he was left alone after 25
obtaining the remand order, there was no reason to remand the suspect in 26
27
custody. These arguments miss the real point established by s 117 of the 28
CPC. While it is true that the said officer must first be satisfied that the 29
accusation or information is well founded before he makes an application 30
for remand, the Magistrate has a judicial discretion to discharge. He must 31
consider the nature of the information or accusation. He must consider 32
whether based upon the copy of the entries in the diary of proceedings of 33
34
investigation of the investigating officer, he agrees and accepts: 35
36
(a) that the information or complaint is well-founded; 37
38
(b) the investigation is not complete; 39
40
41
(c) that continued investigation could (sic) witnesses and evidence to 42
complete the investigations; 43
44
(d) that for that purpose the continued remand of the accused it 45
necessary to ensure – 46
3970 All Malaysia Reports [2001] 4 AMR

1 1. his attendance in court to be charged;


2
3 2. he does not interfere with witnesses; or
4
5
6 3. he does not interfere with other evidence yet to be collected.
7
8 In In re Syed Muhammad b Syed Isa & Ors (Kuala Lumpur Criminal
9 Revisions Nos 43-03-2001, 43-05-2001, 43-06-2001 & 43-07-2001) it
10
was held:
11
12
13 “16. Since completion of investigation is the purpose of the application
14 under s 117(i) of the CPC, it cannot itself be the reasons or grounds
15 supporting the application. The entries of the investigation diary
16 provide the foundation upon which the reasons or grounds supporting
17 the application are identified and weighed. Thus the entries in the diary
18 may support the application by showing –
19
20
21
(a) diligent investigation in the first 24 hours after arrest, or in the
22 period of remand by the Magistrate, shows or continues to show
23 grounds for believing the information or accusation to be well
24 founded;
25
26 (b) such investigation points to the existence of certain witnesses and/
27 or evidence that is necessary to complete investigations, and
28
29
(c) such witnesses and/or evidence could be obtained within so many
30
31 days, but
32
33 (d) which would be jeopardised if the arrested person were not kept
34 out of circulation by a remand.”
35
36 It is necessary to be borne in mind the only grounds upon which the
37
personal liberty of a person not yet proven beyond reasonable doubt to be
38
39 guilty and not yet convicted, for such is the legal situation of a suspect, may
40 be abridged by deprivation of it by arrest and remand before he is charged,
41 in order to serve the public interest that laws are enforced and offenders be
42 brought to justice for their offences are where the suspect is likely to
43 abscond, interfere with witnesses and or evidence. He is not remanded into
44
custody as any form of punishment. It is also necessary to bear in mind that
45
46 whilst cooperation in investigations is a factor to be taken into account for
[2001] 4 AMR In re Mohamad Ezam bin Mohd Nor 3971

mitigation in sentencing, non-cooperation is not a factor for enhancing 1


sentence as it would negate his right to remain silent. There is therefore no 2
3
basis to hold a person in custody until he cooperates. No matter how guilty
4
a person may be, he is entitled to a trial where the burden is entirely upon 5
the prosecution to prove, beyond reasonable doubt, that he is guilty of the 6
offence with which he is charged. There is therefore no legal basis for any 7
argument he may be interrogated until he is forthcoming and assists in the 8
investigation against him. 9
10
11
For all of the reasons above I conclude that s 117 of the CPC does not 12
authorize the remand of a person for the purpose of questioning him 13
aggressively (interrogating) because ss 112 and 113 of the CPC do not in 14
any case authorize interrogation of a suspect, and he may be questioned 15
systematically (examined) only if he had been cautioned. A remand order 16
17
for the purpose of interrogating a suspect, or examining him without
18
showing he has been cautioned is therefore bad in law. 19
20
The learned Senior DPP had argued also that interrogation was not 21
disallowed because the police did not intend to use the answers as evidence. 22
23
24
Ingenious as it may be, this argument makes it clear the learned Senior DPP
25
understands the term interrogation as questioning aggressively, where the 26
answers are inadmissible. 27
28
The argument ignores also the inherent danger that when an interrogator is 29
not satisfied with an answer, the interrogation in the sense of aggressive 30
31
questioning may well get out of hand. Allowing such interrogation may
32
result also in officers being forced to conduct interrogations to satisfy 33
superiors, where if they fail their superiors they will be at a disadvantage, 34
and yet, to satisfy them, the interrogators themselves might break the law 35
and pay with their careers. Given that interrogation may not result in 36
entirely reliable answers, the dangers far outweigh any benefit that may be 37
38
derived by the courts giving its sanction to a process that clearly does not
39
itself produce admissible evidence. 40
41
The only reasons that ought to have been accepted by the Magistrate are as 42
contained in the third group of reasons. Even though the first two groups 43
of reasons are not correct, legal or proper grounds, the third group of 44
45
reasons cannot be said to be irregular, incorrect, illegal or improper. The
46
3972 All Malaysia Reports [2001] 4 AMR

1 nature of the offence for which he is investigated is of planning and


2 organising daily public demonstrations in the streets involve the connivance,
3 cooperation and participation of many other persons. It is obvious that such
4
5
investigations would take time, and his release would jeopardise the
6 investigations. In the circumstances the initial remand of four days cannot
7 be said to be unnecessary.
8
9 It may be asked why it is necessary to conduct a hearing if the court does
10 not make an order in revision to change the order that was made by the
11
12
Magistrate. The hearing serves the purpose of establishing clearly what are
13 valid and what are not valid reasons for the making a remand order. It also
14 shows that remand orders must not be taken lightly, but must be scrutinised
15 judicially. It is important to state which reasons are accepted when making
16 the remand order because then the police will have proper guidance what
17 the remand is for. If not corrected in this case, the general acceptance of all
18
19
the reasons advanced in the remand application could result in the police
20 conducting interrogations generally in the belief that it is regular, legal and
21 proper to do so.
22
23 Solicitors
24
25
26
Zainur Zakaria (Zainur Zakaria & Associates) for Appellant
27 Zauyah Be bt Loth Khan and Umar Saifuddin b Jaafar, DPPs (AG’s
28 Chambers) for Respondent
29
30 Judgment received on June 7, 2001
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46