Inspector Yusof Hj Othman & Ors v Kwan Hung Cheong [2018] Supp MLJ 224

Case: Inspector Yusof Hj Othman & Ors v Kwan Hung Cheong [2018] Supp MLJ 224

Court: Federal Court (Putrajaya)

Topic: Police Bail

Facts 1.      On 3 January 2000, the Respondent and another person were arrested for suspicion of committing an offence of house-breaking under Section 454 of Penal Code (“Act 574”) and brought before a magistrate.

2.       They were remanded for three (3) days for investigation purposes. On 6 January 2000, after the remand, the police applied to the magistrate for an order to release the suspects on police bail pending completion police investigation.

3.       The magistrate ordered the release of both the Respondent and another person, noting it in her notes of proceeding: ‘Both suspects to be released’.

4.        Right after the order, the police took them to the Sandakan Police Station.  They were made to sign separate bail bonds issued by the First Appellant, each for RM10,000.00 with two sureties.

5.       The Respondent was required to appear at the police station on 28 January 2000.  When he did, the bail was extended to 28 March, 2000, and this extension process continued monthly until 5 October 2000.

6.    During this time, the Respondent wrote multiple letters to the Federal Attorney General’s Chambers, inquiring about the case and expressing his burden of monthly reporting.

7.      Finally, on 11 October 2000, he was informed that the investigation was closed, and the police bail was withdrawn.

8.       Unhappy with this situation, the Respondent filed a lawsuit against the Appellants.  Through an application, the Respondent sought to resolve legal questions arose.

9.        On October 24, 2008, the trial judge ruled in favor of the Respondent, declaring that the police bail issued on 6 January 2000, had violated the Respondent’s personal liberty and the Federal Constitution.

10.     The trial judge ordered compensation to be paid jointly and severally by the Appellants, later assessed at RM3,000.00.

11.       The Court of Appeal upheld these decisions, affirming that the questions raised remained the same.

12.      Aggrieved with the outcomes of the proceeding, the Appellants took the matter to the Federal Court.

13.      There was 3 legal questions posed in the Federal Court but it was critical to analyze the first question for the purpose of case review.

Issue 1.       Whether it is lawful for the police to release a suspect on police bail under Section 388 of the Criminal Procedure Code (“Act 593”) after the said suspect has been released from the remand order by magistrate under Section 117 of Act 593?
Ratios 1.         Before delving deeper into the subject and issue, it would be helpful to present Section 117 and Section 388 of Act 593 as follows:

“Section 117 of Act 593

(1)  Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 28 and there are grounds for believing that the accusation or information is well founded the police officer making the investigation shall immediately transmit to a magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time produce the accused before the magistrate.

(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, from time to time authorize the detention of the accused in such custody as the magistrate thinks fit for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case and considers further detention unnecessary, he may order the accused person to be produced before a magistrate having such jurisdiction or, if the case is triable only by the High Court, before himself or another magistrate having jurisdiction with a view to transmission for trial by the High Court.

(3)  A magistrate authorizing under this section detention in the custody of the police shall record his reasons for doing so.

Section 388 of Act 593

(1)  When any person accused of any non-bailable offence is arrested or detained without warrant by a police officer or appears or is brought before a court, he may be released on bail by the officer in charge of the police district or by that court, but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life:

Provided that the court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.

(2)  If it appears to such officer or court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or at the discretion of that officer or court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.”

2.     The Federal Court critically analyzed Sections 117 and 388 of Act 593 where it dealt with detention and release of the accused person.   Section 117 allows a magistrate to detain an accused person for investigation, while Section 388 pertains to releasing an accused person on police bail during ongoing investigation for non-bailable offences.

3.     In regards to the provision above, the Federal Court cross-referred to Article 5(1) of the Federal Constitution where it relates to the protection of personal liberty and also under Clause (4) of the same provision which requires a person to appear before a magistrate within 24 hours of arrest.

4.     Section 28 of Act 593 was also referred by the Federal Court to outline the time frame for detaining an individual without a warrant is 24 hours excluding the time requisite for the journey from the place of arrest to the magistrate.

5.     The Federal Court found that the magistrate’s authority under Section 117 is to detain or release the accused person.  This power however does not imply acquittal. The accused may be released under Section 388 of Act 593 even if the magistrate’s detention period ends before the conclusion of the investigation by the police.

6.     As far as the present case is concerned, after three (3) days of detention, the Respondent was brought before the magistrate.   The prosecutor asked for their release on police bail during an ongoing police investigation. Unfortunately, the magistrate’s decision on bail approval was not clear; the record simply said: ‘Both suspects to be released.’

7.     The Federal Court was of the view that the order to release the Respondent should be seen in the context of Section 117 of Act 593.   This release does not mean that the Respondent is considered innocent, and it does not stop the police from investigating him.

8.     Usually, investigations go beyond the detention period set by the magistrate in Section 117 of Act 593.   Section 388 of Act 593 steps in, allowing the police to grant police bail during ongoing investigations.

9.     The Federal Court concurred that this view challenges the trial judge’s decision that police can only grant bail before presenting the accused to a magistrate under Section 117.

10.    Nonetheless, both Section 117 and Section 388 of Act 593 did not impose this limit.  Following the decision of the trial judge would defeat the purpose of Section 388 of Act 593.

11.     The Federal Court held that the police can legally grant police bail under Section 388(1) of Act 593 to an accused person released by a magistrate after detention under Section 117 of Act 593.

Decision 1.     It was lawful for the police to release a suspect on police bail under Section 388 of Act 593 after the said suspect has been released from the remand order by magistrate under Section 117 of Act 593.

2.     The appeal, however was dismissed due to an improper use of power by police in imposing the bail to the Respondent.

Key Take Away 1.     In summary, the power to release on police bail under Section 388 is not confined to the magistrate’s decision under Section 117 of Act 593.

2.     It is indeed lawful for the police to issue a police bail after a magistrate’s release under Section 117 of Act 593.

3.     The police’s authority to impose bail under Section 388 of Act 593 must not be abused, even if the accused has been released from remand.

4.     If there is repeated requirement for the accused to appear at the police station and endorsement of bail forms for subsequent dates, it suggests an improper use of power on the police.

5.     The police’s actions in making the accused sign a police bail bond and imposing conditions, despite the magistrate’s court order, were unlawful and violated the accused’s personal liberty under Article 5(1) of the Federal Constitution, potentially leading to a claim for damages.

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