Why being in remand is worse than being in prison, the desperate acts some will do to get out of being in remand and how a legal aid client out manoeuvred a volunteer lawyer.
A person held in remand is best illustrated by contrasting them with someone who is ‘out on bail’.
When someone is accused of an offence they usually can apply to the court for bail. ‘The Court have always leaned in favour of admitting an accused person to bail’: per Wan Yahya J in Public Prosecutor v Dato’ Mat Safuan  2 CLJ 1112. The police can also grant bail before an accused is produced in court. The court, is not bound to, but will usually set a sum for bail. In rare instances, bail is rejected. If an accused person deposits the bail sum set by the court (with the requisite guarantor(s)) he would not be detained by the police or prison authorities i.e. remand. He would be free as any normal citizen.
If he cannot afford bail, or his application is rejected, an accused person will be held in remand. And such a person should be distinguished from someone imprisoned. For those in remand, the court has not made any pronouncement of their culpability for the offence unlike those imprisoned where the court has found them guilty.
If you were unaccustomed to practicing criminal law like I was early in my practice, it is likely you did not appreciate these fine distinctions between those held by ‘the authorities’. Like me, you would have also assumed that all those detained in whatever capacity were accustomed to the same living conditions. And those conditions were somewhat decent, or at worse tolerable.
I have since discovered these ideas to be completely and utterly untrue. Not that I have experienced it but simply from the frequent complaints about the conditions I have heard from my legal aid clients. To illustrate just how disparate the living conditions are between those in remand and those in prison, let me tell you about a legal aid case of gang robbery that I handled several years ago.
It was a strange case because my client was the only one charged for committing a gang robbery (section 395 of the Penal Code, 20 years, fine and/or whipping) with the 6 or 7 others allegedly still at large. He was accused of committing gang robbery against a gentleman in a public area.
His story was that at the material time he was a drug addict. At the time of the offence he had taken a hit and was high basking on some stairs out in some public place in Kuala Lumpur. Some men were robbed where he was spacing out. He didn’t know who they were. Somehow he got picked up and charged for the offence. His story seemed true because the police didn’t find any of the victim’s valuables on him and he didn’t know who those 6 or 7 others were. He couldn’t even make them up to save his life.
If that was his story then it was obvious he had nothing to do with the gang robbery. My usual advice is if you didn’t do it don’t plead guilty. The worse thing is to be convicted and bear the punishment of a crime that you didn’t do.
Strangely, right from the start this particular client expressed an unusual keenness to plead guilty to the offence. Explaining the repercussions and the dire consequences of pleading guilty did not have the intended effect on him.
When I asked him why he wanted to plead guilty, he explained the conditions in remand were so terrible that he wanted to be put in prison where the conditions were better. The food was better. The detention cell was not so overcrowded and cramped. He hated it there. That is why he wanted to plead guilty. I asked him how he knew about this and he replied that he had 3 previous convictions for drug possession and his experience has shown this to be true. While I certainly could not contradict him factually, I was nonplussed.
I never expected anyone would want to go to prison for a crime they did not commit. I was very concerned and spent the rest of our interview trying to convince him out of this mad scheme. We would fight it quick, I promised him, so he wouldn’t spend a day more than was necessary. We would grill each and every policeman on the stand to prove his innocence. We would leave no stone unturned in his defence. By the end, I succeeded. He claimed he saw my point and agreed to fight the case. I left him a little more at ease.
On the mention date, I arrived in court early because I had one other mention in the civil courts before I could attend to his case. I registered my name with the police officer and informed the interpreter to stand down the matter until I arrived. He was brought early so we managed to speak before I left to sort out the civil matter. He confirmed his intention to fight the case and said he was fine about my attending to the other matter first.
I got back by about late 10 to the courtroom during the second round of calls for the cases and informed the interpreter of my attendance so she would call up the case. When it was eventually called up, the Judge looked at me and said, ‘Rayuan?’ I was taken by surprise and felt betrayed. Let me explain why.
‘Rayuan’ translated literally from Malay means ‘appeal’. What is meant is that the accused person’s counsel is invited to submit on the mitigating factors the court should consider before deciding the sentence for the offender. It should be appreciated at this juncture that a submission for mitigation is only made after an accused person has pleaded guilty. That means my legal aid client managed to get his case called up before I arrived, pled guilty then stood down the case (a short adjournment of a half hour or so) for me to submit on his mitigation. Very cunning!
Confronted with this I asked the Judge for a moment to confer with him to confirm his instructions. When I approached him, it was obvious he was pleased with himself. He was smiling and nodded affirmatively when I asked him whether he was sure he wanted to plead guilty. Feeling crestfallen I returned to my chair and conducted his mitigation, but could not shake the sense of unease that pervaded me.
He got X years. I went over to the lock up before I left just to ask him why he did what he did. I think he could appreciate I was bewildered at what had happened and so attempted to explain. Though these are not his actual words (since he spoke Malay), this is the gist of it:
‘I know you think I should have fought this case. You have good arguments. Maybe we will win. But I don’t want to wait a few years in remand only to lose. You see. People like us will never win. Long time ago I fight my case and lose. And the conditions in remand are very bad. You don’t know how bad it is. It is better in prison. Conditions are better and cleaner. For people like me, either I go in now or I go in later. So better I go in now. Anyway, don’t worry. The food is better. At least now I don’t have to always look for something eat.’
He thanked me for my efforts.
Fahri Azzat is without actual remand or prison experience (except as a visitor) unlike his more learned friends Amer Hamzah and Edmund Bon. He has no plans in the near or far future to obtain such experience. He has no plans to write a scintillating best selling novel about prison life in Malaysia although he has sketched an outline on a napkin somewhere.