Swaran Singh A/L Mota Singh v Pendakwa Raya (JA-43-10-05/2026)

The Suspect / Applicant, Swaran Singh a/l Mota Singh, applies for Criminal Revision through his Solicitor's letter dated 12 May 2026. The Application is properly made by letter, in accordance with Arahan Pentadbiran Ketua Pendaftar Mahkamah Persekutuan Malaysia Bil. 2 Tahun 2018.

The Applicant seeks revision of the Remand Order made by the Learned Magistrate at Johor Bahru in Remand Application No: JA-89RE-3982-05/2026, which ordered him to be remanded for five (5) days with effect from 11 May 2026.

The Applicant invokes the revisionary jurisdiction of this Court under section 323(1) of the Criminal Procedure Code ("CPC"), which provides:

A Judge may call for and examine the record of any proceeding before any subordinate Criminal Court for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of that subordinate Court. The Purpose of the Revisionary Power

The object and scope of the revisionary jurisdiction is settled. In Liaw Kwai Wah v Public Prosecutor [1987] 2 MLJ 69, the Court explained that the power of revision is conferred: "... to confer upon criminal courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment, which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand, in some undeserved hardship to individuals." (Emperor v Nasrullah & Others AIR [1928] All 287)

The same authority affirms that the duty of the High Court in revision is to satisfy itself as to the correctness, legality or propriety of the order of the subordinate court, and to correct any miscarriage of justice. The power is, however, to be exercised sparingly it is a discretionary jurisdiction, not a matter of right.

A remand application is governed by and must comply with section 117 of the CPC which reads as follows:

Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 28 and there are grounds for believing that the accusation or information is well founded the police officer making the investigation shall immediately transmit to a Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time produce the accused before the Magistrate.

The Public Prosecutor may appear in any application made under this section.

The Magistrate before whom an accused person is produced under this section may, whether he has or has no jurisdiction to try the case, authorize the detention of the accused in such custody as follows:

if the offence which is being investigated is punishable with imprisonment of less than fourteen years, the detention shall not be more than four days on the first application and shall not be more than three days on the second application; or

if the offence which is being investigated is punishable with death or imprisonment of fourteen years or more, the detention shall not be more than seven days on the first application and shall not be more than seven days on the second application.

The officer making the investigation shall state in the copy of the entries in the diary referred to in subsection (1), any period of detention of the accused immediately prior to the application, whether or not such detention relates to the application.

The Magistrate, in deciding the period of detention of the accused person, shall take into consideration any detention period immediately prior to the application, whether or not such detention relates to the application.

The Magistrate in deciding the period of detention of the accused shall allow representations to be made either by the accused himself or through a counsel of his choice.

If the Magistrate has no jurisdiction to try the case and considers further detention unnecessary he may order the accused person to be produced before a Magistrate having such jurisdiction or, if the case is triable only by the High Court, before himself or another Magistrate having jurisdiction with a view to transmission for trial by the High Court.

A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.

Section 117(1) requires that when an arrested person cannot be investigated within 24 hours, and there are grounds for believing that the accusation or information is well-founded, the police officer conducting the investigation shall transmit to a Magistrate a copy of the entries in the investigation diary relating to the case, and shall simultaneously produce the accused before the Magistrate.

Section 117(2)(b) provides that where the offence under investigation is punishable with death or imprisonment of fourteen years or more, the Magistrate may authorise detention not exceeding seven days on a first application.

Crucially, section 117(3) imposes a mandatory duty on the investigating officer in the following terms. [See Hassan bin Masrom below]

The officer making the investigation shall state in the copy of the entries in the diary referred to in subsection (1), any period of detention of the accused immediately prior to the application, whether or not such detention relates to the application.

Section 117(5) further requires the Magistrate to allow representations to be made by the accused himself or through counsel before making any remand order.

The duty imposed by section 117(3) is not merely directory. Its mandatory character was affirmed by the Federal Court in Hassan bin Marsom & Ors v Mohd Hady bin Ya'akop [2018] 5 MLJ 141, where the Court held at paragraph 63: "The onus is always on the police, the appellants herein, to satisfy the magistrate that an order to remand the respondent is necessary. As required by s 119 of the CPC, the entries in the investigation diary must support the conclusion that there are reasonable grounds for believing the information or accusation that the respondent was involved in the fight at the restaurant at MITC Melaka and also that further investigation is needed to fill in the gaps in the evidence gathered so far and it is necessary for such purpose to order a further remand."

The Federal Court further held in Hassan bin Marsom that the police are under a duty not to suppress any material information that could sway the mind of the Magistrate. Non-disclosure of material information in the remand process was characterised by the Federal Court, at paragraph 72, as a "dereliction of duty and obligation bordering gross irresponsibility." The Remand Application and its Grounds

The Remand Application was made by one Low Wei Kang [whose designation was not stated in the Application]. The factual basis stated for the arrest was as follows:

(a)At approximately 1400 hours on 9 May 2026, the Complainant and his friend were at the parking area of Taman Awam, Bandar Baru Kangkar Pulai, 81300 Johor Bahru, when they were approached by two (2) Malay men unknown to them. Both men were armed with a 'parang' and a 'kerambit' (a curved or clawed knife).

One of the suspects struck the Complainant on the head with the flat of the 'parang', causing injury and swelling to the back of his head.

Out of fear, both the Complainant and his friend surrendered their belongings.

(d)Both suspects then fled towards a green Proton Wira (Registration No: JWE 72), which was being driven by a third suspect also described as a Malay man who had been waiting in the vehicle.

The matter was classified as an offence under section 394 of the Penal Code (robbery with hurt). The Applicant was handed to the Investigating Officer at approximately 1624 hours on 10 May 2026 and was produced for remand on 11 May 2026.

The Applicant did not admit or confess to the robbery.

The grounds advanced for a seven-day remand were to:

(a)Record the Applicant's statement in detail;

(b)Record the investigation in detail;

(c)Obtain photographs and fingerprints for the PDRM database;

(d)Take the Applicant to the scene to prepare a sketch plan and recover the stolen items;

(e)Conduct an identification parade;

Seek out the other suspects still at large; and

(g)Prevent the Applicant from harassing the Complainant, compromising the investigation, or destroying the stolen items.

Counsel for the Applicant raised two grounds in opposing the remand.

First, Counsel submitted that the Applicant had been arrested two days earlier in a separate matter a section 302 Penal Code case under Remand Application No: JA-89RE-3964-05/2026. The Magistrate in that earlier application had refused the remand. Immediately following that refusal, the Applicant was re-arrested and produced before the court in the present remand application.

Counsel submitted that this prior detention and the prior refusal of remand were deliberately not disclosed to the Learned Magistrate, in breach of section 117(3) of the CPC.

Second, Counsel submitted that the Applicant who is of Indian/Punjabi ethnicity bore no physical resemblance to the assailants, who were unambiguously identified in the Complainant's account as Malay men. In the absence of any nexus connecting the Applicant to the offence, the remand application was without proper basis.

The minutes of the Learned Magistrate (Encl 7) record that the grounds for the seven-day remand were presented by the police, substantially in the terms set out at paragraph 16 above.

The minutes record that there was no prior detention of the Applicant.

The Learned Magistrate recorded that he had considered the Application and the Investigation Diary, noted the absence of any prior detention, and considered the submissions of the Applicant's Solicitor. He then concluded that "WUJUD NEXUS" and granted a five (5) day remand.

Having examined the record of proceedings, this Court is satisfied that the Remand Order was made in breach of the law and cannot stand. There are two independent and compelling grounds for this conclusion.

Section 117(3) of the CPC imposes a mandatory duty on the Investigating Officer to disclose, in the investigation diary transmitted to the Magistrate, any period of detention of the accused immediately prior to the application - whether or not such detention relates to the application. The language of the provision admits of no discretion and no exception.

It is not disputed that the Applicant had been detained two days earlier in Case No: JA-89RE-3964-05/2026, and that the Magistrate in that prior matter had refused the remand application. The Applicant was released and immediately rearrested in the present matter.

None of this was disclosed to the Learned Magistrate. The minutes of the Learned Magistrate expressly record that there was "no prior detention." That entry was made on the basis of information provided by the police. This was inaccurate, and that inaccuracy resulted from a failure to comply with section 117(3).

This failure is not a mere technicality. The prior refusal of remand in a related matter bearing on the same arrested person is precisely the kind of information that would and should inform the Magistrate's assessment of the necessity for further detention. A Magistrate who is told there is no prior detention, when in fact there was a prior remand application that was refused, is deprived of material information.

As the Federal Court made clear in Hassan bin Marsom, the police are not at liberty to withhold information that could influence the Magistrate's decision. The non-disclosure here is precisely the conduct that the Federal Court condemned as a dereliction of duty. The learned DPP herself candidly acknowledged that this failure was fatal to the remand application. This Court agrees.

The non-disclosure of the prior detention and the prior refusal of remand, in breach of the mandatory requirements of section 117(3), renders the Remand Order fundamentally irregular and legally unsustainable.

The Complainant's account is unambiguous: all three assailants were Malay men. This description was reflected in the police report and formed part of the factual basis of the remand application.

The Applicant is an Indian/Punjabi man. There is nothing in the record no witness account, no identification, no circumstantial evidence that connects the Applicant to the robbery or that would explain how a person of distinctly different ethnicity from all three described assailants came to be arrested for this offence.

The Learned Magistrate's finding of "WUJUD NEXUS" is, on the face of the record, unsupported. The standard articulated in Hassan bin Marsom requires that the investigation diary support the conclusion that there are reasonable grounds for believing that the person remanded was involved in the offence. No such reasonable grounds are disclosed on the face of the record before the Learned Magistrate. The sole factual description of the offenders categorically excludes a person of the Applicant's ethnicity, in the absence of any further connecting evidence.

This Court acknowledges that ethnicity alone is not, in all circumstances, determinative of whether a remand may be granted. Investigations are dynamic, and identifications are not always made at the point of arrest. However, where the only description available given by the Complainant at the scene unequivocally describes the assailants as Malay men, and the arrested person is plainly not Malay, and where there is no other evidence in the record connecting the Suspect to the offence, the requisite nexus is not made out. The remand was, on this ground too, issued without a proper basis.

The judicial function of a Magistrate in remand proceedings demands nothing less than unwavering vigilance, for the failure to do so risks sanctioning an unlawful curtailment of personal liberty. Such an outcome is wholly incompatible with the constitutional guarantee that no person shall be deprived of his liberty save in accordance with law.

For the reasons set out above, this Court allows the Revision Application. The findings of this Court are as follows:

(a)The Remand Order in Application No: JA-89RE-3982- 05/2026, granting five (5) days' remand from 11 May 2026, is hereby set aside.

(b)The Suspect / Applicant, Swaran Singh a/l Mota Singh, is to be released forthwith.

This Court records its concern at the failure of the police to comply with the mandatory requirements of section 117(3) of the CPC, which deprived the Learned Magistrate of material information relevant to the exercise of his discretion. Compliance with section 117(3) is not optional.

This Court also records concern that there was clear evidence of the assailants as being of one ethnicity, but the arrest was of a person of a different ethnicity. Dated: 18th May 2026 (AVINDER SINGH GILL) JUDICIAL COMMISSIONER HIGH COURT OF MALAYA, JOHOR BAHRU Counsel:- For the Applicant: Tetuan Nor Shahid Abd Malik & Associates No.33-02, Jalan Adda 3/1 Taman Adda Heights 81100 Johor Bahru, Johor. For the Respondent : ent: Puan Thiviya a/p Sasidharan Timbalan Pendakwa Raya Pejabat Penasihat Undang-Undang Negeri Johor Aras 2, Bangunan Dato' Ja'afar Muhammad Kota Iskandar, Nusajaya Johor.