Pendakwa Raya v 1. ) Romika bin Che Kamarulzaman 2. ) Mustaffa Kamal Bin Zulkefli PEGUAM PEMERHATI Badan Peguam Malaysia

Case Significance

Settles that section 117 of the Criminal Procedure Code does not require the assigned investigating officer to appear personally at a remand hearing, requiring only transmission of diary entries and production of the accused, while the constitutional safeguards on liberty remain intact.

This Court of Appeal decision concerns the interpretation of section 117 of the Criminal Procedure Code, which governs applications to remand a suspect following arrest. The central question was whether only the investigating officer directly in charge of a case may appear before the Magistrate to support a remand application, or whether another officer may lawfully do so where the investigating officer is unable to attend. The two respondents had been arrested on suspicion of offences under section 30(3) of the Poisons Act 1952 and section 15(1)(a) of the Dangerous Drugs Act 1952, and were brought before the Magistrate the following day, where a remand application made by an officer appearing on behalf of the assigned investigating officer was allowed for two days. On the respondents' application, the High Court, exercising its revisionary powers, held that section 117 strictly requires the personal attendance of the investigating officer in charge, an interpretation the prosecution said created serious operational difficulties for the police. The Court of Appeal, in a judgment delivered by Mohamed Zaini Mazlan JCA sitting with Azman bin Abdullah and Noorin binti Badaruddin JJCA, and with the Bar Council Malaysia appearing as amicus curiae, allowed the prosecution's appeal. It held that section 117 imposes two obligations on the investigating officer, namely transmitting the police diary entries and producing the accused before the Magistrate, but does not mandate the investigating officer's physical presence, a reading reinforced by the Chief Justice's Practice Direction No. 11 of 2021, which focuses on the proper filing of documents and the production of the accused rather than on the officer's attendance. The safeguards protecting the accused, including production before the Magistrate within twenty-four hours under Article 5(4) of the Federal Constitution, legal representation, the diary-entry requirement and written reasons for remand, remained intact. Holding that insisting on the investigating officer's personal attendance would impose unnecessary rigidity and burden police operations, the court found the High Court had erred in law, allowed the appeal and set aside the High Court's decision. The judgment is significant for settling that section 117 does not require the assigned investigating officer to appear personally at a remand hearing.