MALAYSIANS, Know your rights

What does a person do when he is contacted by the police for questioning?

WHEN a person receives a call from a police officer asking him to go to the police station to give a statement, the person may sometimes feel frightened and be reluctant to go.

But why would a police officer call up someone and ask him to come to the police station?

Of course, if the person has committed an offence for which he can be arrested and a case has been made out, it is likely that the police will locate the person and arrest him.

A request for an individual to come to the police station where investigations are being conducted is likely to be made when the police are still at the stage of gathering evidence after a report has been made suggesting the commission of an offence.

The individual concerned may wonder why he is being called.

However, the police will usually do so in their quest for evidence.

The officer may believe that the person approached is in possession of information that could help reach a decision with regard to a report lodged and allegations made.

Power of investigation
When an offence is alleged to have been committed, it is the moral duty and responsibility of every individual to provide relevant information.

Such information could help prosecute an offender or prevent an innocent person from being prosecuted.

Apart from the moral obligation, the Criminal Procedure Code empowers a police officer involved in an investigation to question any individual who is acquainted with the circumstances of the case.

Sometimes an informal request may be made in person or by phone to meet at a police station or some other similar venue, to enable questions to be asked in connection with the investigation. When the individual cooperates, little difficulty arises.

However, if the individual declines to comply with an informal request due to ignorance or because he was given wrong advice, then the police officer can issue an order, specifying the place and time, requiring the attendance of the person.

If the individual does not comply, then he breaches the order. However, that alone will not be sufficient basis to arrest such a person. He may be committing an offence, but there the matter ends.

Refusal and options
When this happens, it may be left to the police officer to decide whether to pursue the attempt to question him. Where it is believed that such a person has information that could be helpful, he can be subpoenaed to testify at the trial. Of course, this has its risks.

On the other hand, if the police officer feels that he still needs to question the individual, he could report the refusal to a magistrate. The magistrate has the discretion to issue a warrant to secure the attendance of such a person on terms stated in the warrant.

A failure to comply with a warrant issued by a magistrate can result in the person being apprehended and brought before the officer to provide answers to the questions raised.

Disclosure of information
Whether voluntarily, pursuant to an order or consequent upon the issue and execution of a warrant, a person may end up before the officer who wants to question him. The next step is to get the information out of him. That is, after all, the purpose of the exercise.

The next question is whether such a person needs to answer all the questions asked or can he refuse to answer any of the questions?

Whether a statement is made wholly or partly in answer to a question, the person making the statement is bound to state the truth. A refusal to answer any question constitutes an offence under section 179 of the Penal Code.

According to the law, whoever, being legally bound to state the truth on any subject to any public servant, refuses to answer any question demanded of him by such public servant, can be punished with imprisonment and a fine.

Such a person may, however, refuse to answer any question in which the answer would incriminate him. To be incriminated means that the answer given may expose him to a criminal charge, penalty or forfeiture.

Representation
Can a person called for questioning be accompanied by his lawyer? Here it must be appreciated that the person who is asked to attend an interview is there to provide information and not to face accusations.

The police merely want to find out what the person knows. Therefore the question of legal representation does not arise. However, such a person could have a lawyer accompany him. The purpose would be for a lawyer to be available to be consulted.

As an example, a question may be asked, and the individual may not be sure or know whether he should answer it or not because it may or may not incriminate him. Here the presence of the lawyer would facilitate consultation.

As to whether the lawyer can be in the same room would be a matter for the police officer to decide. He could allow a lawyer to sit in the same room or to be seated in an adjoining room. Being an administrative part of the proceedings, it is left to the police officer to regulate the procedure. However, it would be wrong to prevent a person being interviewed from consulting his lawyer as to whether he should or should not answer a question.

The above explanation of the law is on the basis that the person is being called merely to provide information. Thus anyone called for questioning should ascertain his position by asking whether he is under arrest. If the person is told that he is under arrest, then different considerations may be involved.

Malaysian Bar
11/11/08