RAMLI BIN SALLEH v INSPECTOR YAHYA BIN HASHIM

Facts of the Case

The facts state that the defendant had been arrested by the police based on the quality of a burglary
report. In the wake of being delivered before a judge, the accused was remanded for a for a period
of of eleven days in the presence of police authority. During that time, a solicitor and an advocate
had submitted an application to represent the candidate, and for a chance to see the detainee for
counsel. The application was refused and the respondent expressed that the advocate and solicitor
could only see the candidate after the fulfillment of the remand time frame. An application was
immediately made for habeas corpus yet before the issue was conveyed to court the candidate had
been discharged. The judge held that the question which emerged for the situation was of extensive
significance and an open intrigue, and that it was appropriate for him to make a decision
subsequently. The question was whether the privilege of an individual who is arrested and remanded
in police custody to counsel and is protected by his very own legitimate expert decision initiates the
following arrest or inside a sensible time before police examination is completed.

Issues of the Case - Is the constitutionally provided “right to liberty” met in this case?

My sentiment is that the privilege to counsel for remand detainees remanded in police care, as
provided for by Article 5(3) of the Federal Constitution of Malaysia, comes into operation from the
day of his arrest and detention, despite the fact that police examination has not been completed.

Then again, the law likewise requires the police to carry out investigation as to fulfil the sacred
prerequisite of clause (1) of article 5 with the end goal of conveying guilty parties to equity. It is in
that regard and towards that conclude that the principal right of the remand detainees to counsel for
his own decision ought to be liable to certain rightful arrest which fundamentally emerge throughout
police examination, the principal object being to guarantee a legitimate and fast proceeding in the
courtroom. Such arrest may identify with time and arrangement of both the police and the individual
looking for the consultation. They ought not along these lines be liable to any maltreatment by either
party, for example, by the police in irrationally deferring the consultation or by insight in requesting a
consultation whenever that suits him or by impedance with the investigation.

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Reference is made that the perspective on the Legal Adviser does not appear to help the move made
by the respondent. I should state that the act of the police in limiting the counsel’s application to talk
with his client on the end of the detainment time frame is irrational. What the police implied was just
"Well, you can see your client after I have finished my investigation amid the remand time frame." It
must, along these lines, be comprehended that the police must not at all defer or block such meetings
on self-assertive or whimsical grounds so as to deny the accused for his fundamental right.

Moving forward, regarding section 117 of the Code having respect to section (4) of article 5 of the
Constitution, the area ought to be treated as a special case to section 28 which requires a police
who has arrested an individual without a warrant, to present him immediately and regardless within
twenty-four hours after arrest before a magistrate. The optional capacity to arrange the remand of
the detainee ought to be practiced sparingly the fact that it requires the magistrate to record his
justification for making the request. The area mulls over more than one application for the remand
request and the most extreme time frame for remand overall is fourteen days.

Areas of Law to Discuss

Article 5 of the Constitution provides the following:-

"5. (1) No person shall be deprived of his life or personal liberty save in accordance with law.

(2) Where complaint is made to a High Court or any judge thereof that a person is being unlawfully
detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful,
shall order him to be produced before the court and release him.

(3) Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest
and shall be allowed to consult and be defended by a legal practitioner of his choice.

(4) Where a person is arrested and not released he shall without unreasonable delay, and in any
case within twenty-four hours (excluding the time of any necessary journey) be produced before a
magistrate and shall not be further detained in custody without the magistrate’s authority.

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Standard of Procedure

(1) That the privilege of an individual who is arrested and remanded in police care, to counsel and
be guarded by his very own legal advisor decision as visualized in provision (3) of article 5 of the
Constitution, starts directly from the day of his arrest despite the fact that police examination has not
yet been completed;

(2) That so as to fulfill the protected prerequisite of section (1) of article 5 that privilege ought to be
liable to certain rightful arrest which essentially emerge over the span of police examination, the
principle object being be guarantee a legitimate and expedient proceeding in the official courtroom
of law;

(3) That such arrest may identify with time and accommodation of both the police and the individual
looking for the consultation and ought not be liable to any maltreatment by either party;

(4) That so as to render such meeting compelling it ought to be held within the sight of the police;

(5) That the action of the police for this situation in limiting the lawyer’s application to talk with his
client on the expiry of the confinement time frame, is outlandish;

(6) That it ought to in this manner be comprehended that the police must not at all deferral or block
such meetings on subjective or whimsical grounds so as to deny the accused for his major right.

Application of Stated Law

(1) The privilege of an individual who is detained and remanded in police care, to counsel and be
guarded by his very own legal advisor decision as visualized in article 5(3) of the Constitution starts
directly from the day of his arrest despite the fact that police examination has not yet been completed;

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(2) So as to fulfill the protected prerequisite of article 5(1) of the Constitution that privilege ought to
be liable to rightful arrest which fundamentally emerge throughout police examination, the principle
entity being to guarantee an appropriate and quick proceeding in the official courtroom;

(3) Such confinements may identify with time and comfort of both the police and the individual looking
for the meeting and ought not be liable to any maltreatment by either party;

(4) So as to render such meeting compelling it ought to be held not inside the knowing about any
individual from the police however inside their sight;

(5) The activity of the respondent for this situation in confining the learned counsel's application to
talk with his client on the end of the detainment time frame was nonsensical;

(6) The police ought not at all deferral or block such meetings on discretionary or whimsical grounds
so as to deny the accused for his principal right.

Obiter Dicta

This was seen in the case before the Federal Court in Assa Singh v Mentri Besar, Johore [1967] 2
MLJ 30 by Azmi L.P. That was a reference under Section 48 of the Courts of Judicature Act 1964,
on the inquiry whether the arrangements of the Restricted Residence Enactment (Cap. 39) approving
the arrest and additionally the hardship of the freedom of development was in opposition to the
arrangements of the Federal Constitution and void. Over the span of his judgment at page 33, his
Lordship says:-

"The court subsequently for this situation must peruse into it the arrangements of article 5(2) and (3)
of the Constitution with the outcome that the candidate must be educated when might be of the
ground of his capture and will be permitted to counsel and be shielded by a legitimate expert of his

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decision and if not discharged he will immediately and regardless inside twenty-four hours be
delivered before an officer and will not be additionally kept in guardianship without a justice's power."

Opinion of the Judge

The question under the steady gaze of this court is whether the privilege of an individual who is
arrested and remanded in police care to counsel and be safeguarded by his very own legal advisor
starts after arrest or within a reasonable time before police examination is completed.

Prior to choosing this issue, it is appropriate to look at the pertinent arrangements of the Criminal
Procedure Code and contrast them with article 5 of the Constitution. The Code came into power well
before the Constitution and has been connected as far back as until the present time. Section 28
which permits a police arresting an individual without a warrant to keep him in custody for a time of
not more than twenty-four hours aside unless permitted by magistrate under section 117 which
enables the individual to be kept in police authority for a period not exceeding fourteen days so as
to warrant investigation to be completed, is additionally encapsulated now under clause (4) of article
5 of the Constitution. Section 36 of the Code which enables the judge of a court to make certain
inscription of the idea of habeas corpus has been re-authorized with a similar impact by clause (2)
of article 5 of the Constitution. So also, section 255 of the Code which gives the privilege to the
accused person to be protected by an advocate under the supervision of any criminal court has now
been enhanced by clause (3) of article 5 of the Constitution. So, the arrangements of the Code are
undifferentiated from with those of the Constitution.

Argument by Parties

It was submitted by Mr. Karpal Singh that one's privilege to counsel for advice becomes viable upon
detention. Presenting a contrary opinion, Datuk Tunku Mukhtar argued that such right is viable
subject to specific restrictions, such as to not interfere or endanger police examination. There being
no neighbouring expert on every one of the fours on the issue, as I have expressed before, I would
have plan of action to different experts.

Presently, the language of Article 5(3) of the Constitution says in clear and basic words that if an
individual who is detained wishes to counsel his very own legal representative, he is qualified to
have this protected right conceded to him by the expert who has authority of him after his arrest. This

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privilege must be allowed inside a sensible time after his capture. (Per Wee Chong Jin C.J. in Lee
Mau Seng v The Minister of Home Affairs, Singapore, and Anor [1971] 2 MLJ 137).

The instance of Moti Bai v The State AIR 1954 Rajasthan 241 concerns a comparable inquiry on
article 22(1) of the Constitution of India. This was a reference by the learned sessions judge,
Jodhpur, which raised a vital point with regards to one side of perception to counsel a charged
individual who is in police custody and to meet the accused out for the knowing about the police
however in their essence. The certainties are nearly on each of the fours with the present case. The
arrangement of article 22(1), however diversely worded, has a similar impact as section (3) of article
5 of our Constitution. It was held, inter alia, all together that the right "to counsel a lawful professional
of one's decision" can legitimately and sensibly be offered effect to, it should pursue that such legal
advisor must be allowed to counsel the suspect whom he tries to safeguard. In the event that, such
meeting is to be important, it must be permitted without the conscious of the police but however in
their presence. The privilege of the denounced retained in the report starts directly from the day of
his capture. Modi J. likewise reasoned that the situation at that date was perfectly clear that the
learned insight for the charged was within his rights to counsel the detainee as she was put
apprehended and that the police were not direct in not permitting such conference which appeared
to have been their frame of mind all through.

It might merit referencing that even before the presentation of the Constitution of India, the High
Courts in India have held for the subject in police care by granting him the privilege to counsel under
the order of their Criminal Procedure Code. I need just notice two chosen cases, to be specific, In re
Llewelyn Evans AIR 1926 Bonn 551 and Sundar Singh v Emperor AIR 1930 Lahore 945, which
concern an application for habeas corpus and the actualities of which are very similar to the present
case. In the main case the dispute that such access to counsel by legal advisor ought not have been
given until police examination was finished was not acknowledged. It was held that section 340 of
the Indian Criminal Procedure Code considers that the accused ought not exclusively be at freedom
to be protected by the defendant at the time the procedures are really going on yet in addition
suggests that he should have a sensible chance, if in care, of getting into correspondence with his
legitimate counsel to prepare his resistance, except if there are remarkable conditions(section 340
is quasi material with our s255)).

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In the second case, it was held of a legitimate concern for equity that a detainee ought to approach
lawful exhortation even while he is in police care under area 167 of the Indian Criminal Procedure
Code. (This section is like section 117 of our Code).

Final Judgement/Ratio Decidendi

The detainee was arrested on August 8, 1972, by the police on the standard of a report to the burglary
of an electric motor. He was detained for twenty-four hours before a justice who requested that he
be remanded for a time of eleven days under section 117 of the Criminal Procedure Code on being
fulfilled that examination would not be completed within twenty-four hours. On August 9, 1972, an
application was made by Mr. Karpal Singh, an advocate and solicitor, who represented the detainee,
for a chance to see the detainee for meeting as quickly as time permits. The respondent answered
that he could see the detainee on August 19, for example after the fruition of the remand time frame.
In this way, from the day of capture until the culmination of the remand time frame the detainee would
not be given the chance of counseling.

At the point when the application preceded, Mr. Karpal Singh informed the court that the detainee
had been discharged, however attributable to the significance of the issue raised, and the
nonappearance of any decision on it, he mentioned to hear his contention and make a decision
consequently. The Legal Adviser, Datuk Tunku Mukhtar, who showed up for the defendant,
answered that since the detainee had been discharged the application for habeas corpus never
again emerged and along these lines it was preposterous for the court to think about the application.

Commentary
My comment to the above case that the inquiry that must be chosen is one of impressive significance
and of open intrigue since it concerns the basic freedom of the subject under article 5 of the Federal
Constitution. There being as far as anyone is concerned, as affirmed by both judicial guidance, no
decision so far on the issue, it is appropriate for me to consider the issue and make a decision
consequently. Both insight concurred that the application for habeas corpus ought to be dropped in
the conditions.

Issues relating to right to legal advice during remand proceedings :

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Case: Saul Hamid V PP (1987) 2 MLJ 736 “A Person in remand proceedings is entitled to legal
representation and the burden lies on the police to prove that there will be interruptions in their
investigation”. Furthermore, in this case, the judge has referred to section 255 of the CPC, wherein
every person accused before any criminal court may have advocate of their own to defend them.

Lee Mau Seng V Minister Home Affairs (1971) 2 MLJ 137 “The court held that under Article 5(3) Of
the FC, the accused has the right to legal representatives within a reasonable timer after his arrest”.

You may also look into the following cases to build a timeline of development :
** Chong Fah Hin V PP(1949) MLJ 114 // ** Fadiah Nadwa Fikri (2015) 10 CLJ 259

Principles of remand :
It is the principle that the detention by the police beyond 24 hours after his arrest is not as a result of
an executive act but as a result of a judicial decision in consonance with Art. 5 (4) of the FC -Present
case

If the investigation cannot be completed within 24 hours and there are grounds to believe that the
accusations or information is well founded by virtue of s.117 of the CPC, the police officer must
produce the accused and a copy of the entries in the diary before Magistrate - Re The Detention of
R Sivarasa(1996)3 MLJ 611

Re the detention of Leonard Teoh Hooi Leong(1998) 1 MLJ 757 “Before granting the remand
order, the Magistrate should satisfy himself that there are grounds to believe that the accusation is
well founded and the presence of the accused is required in the investigation by the police. However
it is not sufficient reason to grant a remand order on mere expectations that time will show the guilt
of the accused or that further facts will come to life and s.117 of the CPC only for suspects not for
potential witnesses”

Right to apply for writ of Habeas Corpus

Section 365. The High Court may whenever it thinks fit direct— (a) that any person who: (i) is
detained in any prison within the limits of Malaysia on a warrant of extradition whether under the
Extradition Act 1992 [Act 479]; or (ii) is alleged to be illegally or improperly detained in public or
private custody within the limits of Malaysia, be set at liberty; (b) that any defendant in custody under
a writ of attachment be brought before the Court to be dealt with according to law.

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S.365 of the CPC provides that an application may be made to the High Court for an order to release
a person who is illegally or improperly detained.
Case: Uthayakumar A/L Ponnusamy V Menteri Kementerian Dalam Negeri Malaysia (2009) 1 CLJ
546
Fact: The applicant in this case was denied release under the writ of habeas corpus. He filed the writ
again but the different grounds,citing the Canadian legal position, where the detention has become
unlawful due to subsequent inhumane conditions
Held:The Malaysian position on Habeas corpus is only limited to the legal status of the detention.
Court dismissed the application

Case:Puvaneswaran Murugiah V Menteri KDN(1991)3 CLJ 649 Abd Ghani Haron V KPN(2001)
2 CLJ 709

The effect of non compliance Habeas Corpus

Muhammad Jailani Kasom V Timbalan Menteri KDN(2006) 5 AMR 689-Federal Court “It follows that
if a detention is procured by steps which are not regular, the court is empowered to set aside the
detention order. It means that every step which is necessary for the making of the detention order is
subject to review by the court”

May look up cases for non-compliance of harbeas corpus: SK Tangaliswaran Krishnan V Menteri
KDN(2009) 6 CLJ 705 Murugan Supparamaniam V Timbalan Menteri KDN(2010) 3 AMR.