In the course of practising law, I receive numerous calls on a daily basis from persons (or their family members) who have been detained by the police.

The family members are often lost, in a state of panic and unsure on what to do and how to help their loved ones.

A quick Google search may reveal what one’s constitutional rights are upon being arrested (they maybe in theory legally sound but may not always work in practice), but I have not found any practical guide for the lay person on what to do when arrested.

So, here’s a step by step guide.

A Quick Guide

1. Always know, or have the contact details of a lawyer (preferably a criminal lawyer). Either a family member, friend, or Facebook contact who you can call. This may seem trivial now, or you might think that you (being a generally law-abiding citizen), may never need one, but you’d be surprised.

2. When stopped/detained by the police (whether at home or a road block) it is a bad idea for you to argue with them and start preaching the law and your legal rights to them. You should merely ask for their name, badge number and ask whether you’re arrested and if so, what the reason for your arrest is. It’s best if you call your lawyer at the earliest possible juncture.

3. Upon being arrested/seeing your friend/family member get arrested, ask the Arresting Officer (AO) which station (‘Balai’) they will be taken to, and who will be the Investigation Officer (IO). This information is crucial, and needs to be relayed to the lawyer. Without it, it will incredibly hard for your lawyer to assist, as it would be like looking for a needle in a haystack.

4. Please do not argue with the police. And do not be difficult. There is a grey area on you recording a video, when the police are dealing with you. If they ask you to put your device away, just comply, or you may then face a charge for obstruction of their duties. If you are not happy with the way you are treated, you can always make a police report against the police later.

5. Upon arriving at the police station, quite likely they will do the initial processing (if you are indeed arrested). They may take your picture, fingerprints and other details as they may need. Again, do not be difficult with them. You would want to be on their good side.

6. In Malaysia, the police will often ask you over to come over to the station on the pretext that they merely want to ask you questions. That almost never ends well for you. Never go to a police station without a lawyer present. There are some good reasons to have a lawyer with you:

   1. If they suddenly say they want to place you under arrest (which often happens), you will be in a lurch. With a lawyer present, at least there will be someone there to assist you, to notify your family and to attend the remand session the next day.

   2. The police may want to take down your statement. During the investigation/period of detention, you have a right to not say anything incriminating. But without a lawyer present, there may be avenue for abuse, or other misbehaviour.

   3. If you are indeed arrested, you will be sent to the lock-up (or ‘lokap’, i.e. cells within the station or a detention center). By law, upon the initial arrest, the police can only hold you for a maximum of 24 hours. Thereafter, they need to present you before a Magistrate to get permission to detain you further. This process is called “remand proceedings”. It usually takes place the next morning, either in court or within the lock-up.

      Here, the IO will try to convince the Magistrate to allow the police to hold you longer. The period of holding depends on the severity of your alleged offence. They will state that they need more time to investigate, whilst your lawyer will try to end the remand and/or to reduce the number of days you will be held in remand. This is another reason why its important to have a lawyer on standby. The police have 2 attempts at their remand application.

7. If the second remand application lapses, or your lawyer successfully opposes the application, the police would either have to:

   1. release you;

   2. let you out on police bail pending a charge (police bail is free and is not the same as the bail in court that has to be paid); or

   3. take you to court right away to be charged.

I will perhaps address the process of being charged in Court in another post.