NOVEMBER 29 — Under Article 5(3) of the Federal Constitution, an arrested person must be informed as soon as may be of the grounds of his arrest by the police officer making the arrest.
Some commentators say the words “as soon as may be” must be construed strictly to mean “forthwith”, but as far back as 1968, the words were held to mean “as nearly as is reasonable in the circumstances of the particular case”. (See Aminah v Superintendent of Prison, Pengkalan Chepa, Kelantan [1968])
In The end of justice is justice, and the spirit of justice is fairness, I wrote that the words mean “as soon as possible” or “in the shortest practicable time”.
Be that as it may, the rights of an arrested person have, since September 2007, been entrenched in legislation when the Criminal Procedure Code (Amendment) Act 2006 (Act A1304) came into force.
Act A1304 was the result of detailed deliberations and consultations with various parties including NGOs, government bodies and professional bodies undertaken by the Parliamentary Select Committee, culminating in a report to Parliament. (See Laporan Jawatankuasa pilihan Khas Dewan Rakyat Untuk Mengkaji Rang Undang-Undang Kanun Keseksaan (Pindaan) 2004 dan Rang Undang-undang Kanun Tatacara Jenayah (Pindaan) 2004 – DR 1 Tahun 2006)
The entrenched rights are provided by Section 28A, which may be summarized in the following paragraphs.
An arrested person must be informed as soon as may be of the grounds of his arrest by the police officer making the arrest – Section 28A(1).
Before commencing any form of questioning or recording of any statement from an arrested person, a police officer must inform the person that he may communicate or attempt to communicate with a relative or friend to inform of his whereabouts and communicate or attempt to communicate and consult with a legal practitioner of his choice – Section 28A(2).
Where the arrested person does wish to communicate or attempt to communicate with any of those persons, the police officer must allow him to do so as soon as may be – Section 28A(3).
If the arrested person has requested for a legal practitioner to be consulted, the police officer must allow a reasonable time for the legal practitioner to be present to meet the arrested person at his place of detention and for the consultation to take place – Section 28A(4).
The consultation must be within sight of the police officer and in circumstances, in so far as is practicable, where their communication may not be overheard – Section 28A(5).
The police officer must defer any questioning or recording of any statement from the person arrested for a reasonable time until the communication or attempted communication or the consultation has been made – Section 28A(6).
The police officer must provide reasonable facilities for the communication and consultation under these provisions, and all such facilities must be free of charge – Section 28A(7).
However, the requirements above – that is, Section 28A(2)-(7) – will not apply where the police officer reasonably believes that:
(1) compliance with any of the requirements is likely to result in:
(a) an accomplice of the person arrested taking steps to avoid apprehension; or
(b) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or
(2) having regard to the safety of other persons, the questioning or recording of a statement is so urgent that it should not be delayed – Section 28A(8).
The non-application of the requirements under Section 28A(2)-(7) must be authorized by a police officer not below the rank of Deputy Superintendent of Police (DSP) – Section 28A(9).
The police officer giving the authorisation must record the grounds of the police officer’s reasonable belief – Section 28A(10) – but the latter must comply with the requirements in Section 28(A)(2)-(7) as soon as possible after the conditions for their non-application have ceased to apply and the arrested person is still under detention – Section 28A(11).
In a recent case of Murugaya a/l Chellachamy v Timbalan Menteri Dalam Negeri & Ors decided by Kuala Lumpur High Court Judge Hayatul Akmal Abdul Aziz in April this year, one of the issues raised before the learned judge was that the arrested person was not promptly informed of the grounds of his arrest under Section 28A of the Criminal Procedure Code (CPC) and Article 5(3) of the Federal Constitution (FC).
After considering all averments, arguments and evidence from both parties, the learned judge found, among others, that there was cogent evidence that the arrested person was informed of the grounds of his arrest “as soon as possible” following Section 28A of the CPC and Article 5(3) of the FC. There was therefore compliance with Section 28A of the CPC.
To put it another way, there must be cogent evidence of non-compliance with the entrenched rights of an arrested person.
*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
