APRIL 19 — A suspect (OYDS) arrested by the police can only be held in custody for a maximum of 24 hours, excluding the time taken to travel from the arrest location to the Magistrate’s Court, as outlined in Section 28(3) of the Criminal Procedure Code (CPC). If the police require additional time to complete their investigation, they must apply to a Magistrate for an extension of the OYDS’s detention. The period of detention while the investigation is ongoing is known as “remand”.

The statutory framework governing remand proceedings is set out in Section 117 CPC.In 2020, Parliament passed a significant amendment to the Subordinate Courts Act 1958 (SCA) vide the Subordinate Courts (Amendment) Act 2020 (Act A1622). A new provision, Section 107A, was inserted into the SCA. It reads as follows:The Chief Justice may issue such practice directions as may be necessary for the purpose of carrying into effect the provisions of this Act after consulting the President of the Court of Appeal or the Chief Judge.The Chief Justice did not wait long to exercise the powers conferred by Section 107A to issue Practice Direction No 11 of 2021 to update the procedures and ensure uniformity of practice in relation to the conduct of remand application proceedings under Section 117 CPC throughout the country.

The author argues that remand proceedings without legal representation should be rare, stressing that suspects’ rights — particularly access to counsel — must be strictly safeguarded given the serious deprivation of liberty involved. — Picture by Sayuti Zainudin Paragraph 4 states that in accordance with the provisions of Section 117 CPC, the Investigating Officer (IO) shall ensure compliance with the following:(a) before the remand application is heard before the Magistrate, the following documents have been filed through the e-Justice system: (i) remand application; (ii) a copy of the complete investigation diary under Section 119 CPC; and (iii) any other relevant documents to the remand application; and(b) the OYDS is produced before the Magistrate.Paragraph 5 mandates that before the conduct of the remand application proceedings commences, the OYDS shall confirm to the Magistrate the following matters:(a) if the OYDS has a lawyer, he has been given an opportunity to contact his lawyer; and(b) if the OYDS has not appointed a lawyer, he has expressed its intention to be represented by any lawyer of its choice.For OYDS who are not represented by a lawyer or are unable to appoint a lawyer, they will be informed by the Magistrate of their right to obtain legal aid services from the National Legal Aid Foundation (YBGK) if they —(a) are citizens; and(b) are not being investigated under any law relating to the prevention of kidnapping and abduction.The IO shall ensure that, for OYDS who —(a) has appointed a lawyer, the lawyer representing the OYDS has been contacted;(b) has not appointed a lawyer, but intends to appoint a lawyer of his own choice, such lawyer has been contacted; or(c) intends to obtain the services of a YBGK lawyer, the YBGK has been contacted, and the said lawyer has been notified to be present for the purpose of the conduct of the remand application proceedings.Paragraph 8 requires the conduct of the remand application proceedings to be adjourned for a reasonable period of time, on the same day, to enable the lawyer to appear to represent the OYDS.The conduct of the remand application proceedings, however, shall continue if —(a) the OYDS does not wish to be represented by counsel and/or refuses to obtain the legal assistance of YBGK; or(b) no counsel appears after a reasonable period of time has been granted.The primary purpose of a remand is to allow the police additional time to complete their investigations. A remand is a temporary detention ordered by a Magistrate for this purpose.It is important to approach remand proceedings and any resulting orders with seriousness, as they concern the fundamental right to an individual’s freedom.

Unlike a person convicted after a trial, a person remanded is presumed innocent. Every day spent in custody constitutes a deprivation of liberty, and such deprivation must therefore be strictly justified in accordance with the law.It is therefore incumbent upon the police and the Magistrate to comply with Section 117 CPC and the Practice Direction.When a Magistrate exercises powers of remand under Section 117 CPC, the Magistrate is engaged in a judicial function that obliges him not only to scrutinise whether the circumstances of the case justify continued detention, but also to ensure the safeguards for the OYDS are met, including the right to a lawyer.When presiding over a remand application, the Magistrate is not merely acting as a rubber stamp for the police. (See the recent decision of the Court of Appeal in Public Prosecutor v Romika bin Che Kamarulzaman & Anor [2025] 6 MLJ 933)Remand proceedings without lawyers representing the OYDS must be an exception — that is, if the