Remand of students raises some legal issues

I REFER to the report "Cops acted within the law when arresting SPM students over History paper video" (The Star, Feb 27; online at https://bit.ly/3J9iyL2).

Hulu Selangor district police chief Supt Suffian Abdullah explained that the students were arrested to facilitate investigations under Section 14 of the Minor Offences Act 1955 and Section 233 of the Communications and Multimedia Act 1988 (CMA).

An offence under the former is non-seizable. i.e., an arrest cannot be made without a warrant. The latter allows for arrest without warrant for offences committed under it.

Following an arrest, the police may obtain a remand order under Section 117 of the Criminal Procedure Code (CPC) – the general law on criminal procedure – from the magistrate’s court to facilitate investigations.

According to Suffian, the police obtained a two-day remand order. That was within the law.

However, offences can be bailable or non-bailable. The Fifth Column of the First Schedule to the CPC explains when an offence is one or the other.

A bailable offence means bail has to be offered as a matter of right. The authority to offer bail is either the police or court. When bail is offered by the former, it is commonly called police bail, which may be offered pending full investigation.

Thus, instead of detaining a person any longer, a police bail may be granted to ensure that he/she will appear at the police station and report to the investigation officer at the appointed time.

Usually, police bail takes the form of a bond by the surety without securities.

This is stated in Section 387 of the CPC, which provides that when a person is arrested without warrant by the police, and he is prepared to give bail, that person shall be released on police bail. The person may even be discharged upon executing a bond without sureties for his appearance.

Although Section 387 does not override Section 117, the students could still be released on police bail to allow them to complete the SPM exam without the trauma of being remanded.

There is a discretion whether to proceed with applying for a remand order to facilitate investigation or to give bail pending investigation.

Even if the offence committed is non-bailable, which means the grant of bail is discretionary, an arrested person may be released on bail by the officer in charge of the police district (OCPD). However, he shall not be released if there are reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.

If it appears to the OCPD that there are not reasonable grounds for believing that the person has committed a non-bailable offence, but there are sufficient grounds for further inquiry, the OCPD has the discretion to release him on the execution by him of a bond without sureties for his appearance. This is spelt out in Section 388 of the CPC.

Again, there is discretion, and as pointed out by G. Selva in his letter, "Discretion must be part of applying the law" (The Star, March 1; online at https://bit.ly/3mnPQNG).

HAFIZ HASSAN

Melaka