What if the Police Call you to the Police Station?: Your first Police Interview
Police Call Box, Washington DC, c1912 Wikimedia Commons.
WHAT DO YOU DO IF THE POLICE CALL YOU TO THE POLICE STATION?
1. Confirm with the caller what is the purpose of such request and who gave such instruction. If it was an Investigating Officer (IO), the name of the IO and which department he is attached to (Jenayah, Narkotik, Komersil or some other department).
2. No need to give personal details or answer questions over the phone. Serious IOs will interview you in person or assign a local officer to do so.
3. As a good citizen you should give cooperation whenever the police request the same. Without help from the public, the police would not be able to solve crimes or locate missing persons.
4. The caller may request confirmation of a vehicle registration plate number. This is common because sometimes a bystander or complainant may have sighted your number plate in relation to an accident or a crime scene. You should cooperate even though criminals do clone number plates or that the eyewitness mistook the actual number plate for yours. Any proper investigation should lead to the police station or the IPD and should not be over the phone.
WHY WOULD THE POLICE CALL ME?
1. Someone lodged a complaint to the police against you or against someone you are closely linked to, for example you own a car that was driven by this person, or you live together with the person, or you employed the person.
2. The police found something belonging to you that is linked to a crime, for example some proceeds of crime were deposited into your bank account, or your blood was found at a crime scene, or a your phone bill with your name on it was found at a store filled with drugs.
3. The police need you to assist them to complete their investigation. This means helping them provide evidence to establish the basis of the case. Typically, some other witness mentioned (“petik”) your name, which lead the police to you.
4. This means that the police will interview you regarding facts within your knowledge about a particular incident or allegation. The police may or may not record a statement from you. All of this should be done in person at their office and not over the phone. Different officers may interview you at different times over the same thing, but for different purposes. Sometimes a statement is recorded but it is not a statement that is inserted into the investigation papers — it could just be an intelligence statement or some other interrogation process. It may be difficult for you to keep track of what the police have done to you, but try to take note. It can come handy as information to provide the Magistrate for the purpose of reducing your time in remand.
5. You actually do not need to “entertain” the police unless you are arrested or served a Section 111 notice. To know whether you are arrested, just ask them, “Am I under arrest?” or “Adakah saya ditangkap?” If the answer is no, then you can ignore them.
6. The police want to arrest you, but are too preoccupied to raid your home.
WILL THE POLICE ARREST ME IF I GO TO THE POLICE STATION?
They can set up your arrest, often without you knowing. A common tactic is the police would lure you to the police station on the pretext of recording your statement. This happens often but not always. But I have had several clients who were called to the police station to give a statement or receive an update on their counter report, but were instead arrested.
If they do arrest you, they need to make an arrest report. Such arrest report often depicts the arrest at the police station as a titanic struggle where it took an entire team of six or twelve police officers to take you down, when in real life you attended alone and was arrested by a police subordinate with no drama. I have seen too much of this.
HOW CAN I PREVENT AN ARREST?
You can’t. But you can prepare for it so that you are arrested on your terms. Or at least you have mitigated the inconvenience you would face against a sudden unexpected arrest. Just ask the IO whether they want to arrest you, tell them you could even surrender yourself. You can talk them into not arresting you because arrest is not mandatory on the police even if the case is seizable. Just last month a police Inspector who assured me that my client would not be arrested the next day, actually arrested her for no good reason. To be fair, he was on leave on that latter day and a different officer was left in charge, so maybe this different officer just followed what came naturally to his mind. I’m pretty sure any SOP for investigation gives discretion on the investigation department to arrest or not to arrest on a case by case basis. But why would they want to exercise such discretion? The easy thing for the police to do is to just arrest you from your home at 3.00 am and sort out the investigation later.
As a lawyer, I am trained to advise on the law and I hate to put this in writing. If your uncle knows someone important at the IO’s office, this is the time to make phone calls. Personal connections have helped some people sometimes where the law or and common sense did not. The problem with this method is it is extra-legal so I can’t give an actual opinion on this. Sometimes when it works it may not be due to such personal connections, and you will never know why.
Don’t bribe the police.
SHOULD I AVOID OR HIDE FROM THE POLICE?
That would only be delaying the inevitable. If they really wanted to, they have ways to find you, or ways to make you come forward. The law provides that in some circumstances the police have the power to break into your house or to otherwise use reasonable force to get to you. They are emboldened to do this because most citizens do not sue the police even when the police are wrong. Citizens fear reprisals, even if they are innocent. Consult an attorney for legal advice.
SECTION 111 NOTICE / NOTIS PANGGILAN SAKSI
5. Ask the IO to issue you a notice under Section 111 of the Criminal Procedure Code. This is called various things, such as “notis panggilan saksi”, “permintaan untuk hadir ke balai polis”, “permintaan untuk merakam percakapan”. The caller may put you through to the IO or just give you the IO’s phone number to contact. Just go along with this because it could be genuine.
Hypothetical example of a Section 111 notice issued by the police. Just because you received this notice and was identified as a witness does not mean you will not be arrested or charged. The categorisation of witness and suspect are not fixed and fluid as a case develops — as such, such terminology is sometimes unhelpful and builds false expectations or false sense of security.
6. A Section 111 notice is an order to you to attend at the police officer’s office for the purpose of recording a statement. They can also require you to bring any item or document. This is because the police think that you are acquainted with the facts of the case or otherwise know or have in possession information that can assist in a criminal investigation. Police also investigate matters that may not yet be considered criminal per se, for example missing persons, unclaimed property and accident cases.
Hypothetical example of a Section 111-notice equivalent that was issued by the police under anti-money laundering law.
7. A Section 111 notice contains most of the following, most of the time:
a. Name of the IO requesting your attendance;
b. The police department that the IO works in;
c. Police report number and Investigation Paper Number;
d. Alleged offence under investigation, for example Section 409 of the Penal Code or Section 39B(1)(a) of the Dangerous Drugs Act 1952.
e. Location, time and place of the interview.
8. There is no specific format to such notices and it differs slightly from one agency and another. Different agencies such as the Securities Commission and the Malaysian Anti-Corruption Commission have their own laws that provide for such notices.
9. From my experience, the majority of panggilan saksi is merely by phonecall because the authorities expect Malaysians to be compliant. Hence when I was a prosecutor, I could not comprehend why some IOs failed to ensure the attendance of witnesses to court, while some were quite good at it.
10. In a manner of speaking, obtaining a notice could help protect you against a phony arrest, because the officer who signed the notice would be responsible for the letter. You can kind of rely on the IO’s superiors to “protect your rights” at this stage. I would not bet on it, but IOs must obey their superiors.
11. Another advantage of such notice is, you could leave a copy with your relative, and if something happens to you while you are with the police, it would make it easier for your family to trace you.
12. It is an offence to disobey the order contained in a Section 111 notice. Do not toy with the law – service to you should mean the proper hard copy personal service to your hand, but spare yourself any further trouble. You should just act on such notice even if it is given to you by whatsapp (i.e. a PDF image of a signed letter with the Royal Malaysia Police logo, attached to a whatsapp message). If you are arrested, your failure to comply with the notice can be used as a reason by the IO to detain you for an extended period. It is common for lawyers to argue at remand proceedings that the suspect has cooperated with the police, surrendered themselves voluntarily and prolonged detention is not necessary to complete the investigation. If you wilfully made it difficult for the police to get to you, then you are just making it more difficult for yourself during the remand proceedings. If you are charged, it is also common for lawyers highlight your cooperation with the police as a reason to procure a lower bail amount or lenient terms from the Court. But if you are seen to evade the law, then you could be a flight risk and hence the Court may not be lenient with your bail terms.
WHAT IF I AM UNABLE TO ATTEND TO THE IO’S SESSION?
13. If you are unable to attend at the location, time and place of the interview, please contact the IO immediately to reschedule the meeting. If the IO feels like it, they can even conduct the interview at your living room table or your work place. If the IO agrees to reschedule, please try to have this recorded somewhere. You don’t want to be in a situation where you are accused of disobeying a Section 111 notice. At the same time, the IO may feel it’s just too much trouble to draft another notice. A sensible IO should call you and check before issuing the notice.
PHONE INTERVIEW?
Insist for a personal meeting and not an interview over the phone. Occasionally an IO would just ask some questions over the phone as a prelude to a proper statement recording session. Although it is theoretically possible, I have not come across a case where the phone conversation was recorded and then used by the police, except for traps in agent provocateur drug cases.
SOME REASONS THAT HAVE BEEN ACCEPTED BY IO TO RESCHEDULE THE INTERVIEW SESSION:
1. You are sick with MC. You are scheduled to undergo a surgical procedure.
2. You are in another country.
3. You have to attend another court case at that time (except lawyers probably).
4. You are sitting for an exam.
SOME REASONS THAT HAVE BEEN REJECTED BY IO TO RESCHEDULE THE INTERVIEW SESSION:
1. You are in another state. IOs generally will expect you to attend on short notice even if you have to travel from another state.
2. You have high blood pressure.
3. You have a job interview.
4. You need to take care of your children / old parents.
5. You are working.
6. You are tired or sleepy.
IF I AM NOT SERVED WITH A SECTION 111 NOTICE, CAN I IGNORE THE POLICE?
1. You are not obliged to comply with a police officer’s request to attend at a police station without a Section 111 notice. For reasons discussed above, as a good citizen you should cooperate, though.
2. At this stage of the case, the police have more power than you. They can arrest and detain you for no good reason, with little consequence to themselves. Even if the offence alleged is a non-seizable offence, the police can easily jack it up to a seizable offence and avoid the requirement to obtain a warrant before arresting you. It is as easy as just making an arbitrary classification of case. This is because the law and the implementation of the law has been generally lenient on the police’s power to detain citizens, whether there are good reasons or not. Fortunately, most of our IOs are honourable, dutiful officers who do not abuse their power. Law abiding people think they have nothing to fear because they have never committed anything wrong. The law does give us rights, but in actual practice, we have little protection against false accusations or wrong/misconceived police action. I would be grateful that a researcher may someday share findings on the prevalence of false reports and successful prosecutions against false reports.
3. If you are a suspect in a case, and the case is classified as a seizable offence, the police can just arrest you from your home at any time of the day or night without warning. The police are not obliged to disclose whether they identify you as a suspect. The concept of suspect is a fluid concept and may change as the investigation progresses. Anyway, you could give it a try and ask the IO whether you are a suspect (Orang Yang Disyaki).
4. In a genuine case, if you ignore the police, this will annoy the IO and they may either treat you poorly during the investigation or worse. So you should not ignore them. Instead you should ask them or their boss to issue a Section 111 notice.
WHAT SHOULD I BRING TO THE INTERVIEW BY THE POLICE?
a. Your IC or Passport
b. Any documents or evidence relevant to the case. You only really need to bring documents that are stated in the Section 111 notice. You do not need to volunteer evidence unless asked or probed by the IO. In many situations it is in your interest to just bring the documents to move your agenda along.
c. A bottle of water, because sometimes you need to wait hours before meeting the IO. Sometimes the IO’s offices are cold and chilly, and sometimes they are humid with poor ventilation – so please dress appropriately.
d. Sometimes the IO would request you to bring witnesses.
CAN I APPOINT A LAWYER TO ACCOMPANY ME (IN)TO THE INTERVIEW SESSION?
1. Only if the IO agrees.
2. Myself I have attended only two or three statement recording sessions since I established my practice in 2014. All other attempts were prohibited by the IO. They just asked me to wait outside the interrogation room.
3. If you feel you need a lawyer around to advise you, assist you with your documents, or to otherwise help prepare you for the session, by all means appoint one. It would more likely than not improve the quality of your evidence in your favour.
4. If your lawyer is permitted to sit in at the interview session, they are not allowed to interfere with the session. Generally lawyers know how to behave themselves at such sessions. Don’t expect your lawyer to intervene and object like in some famous American law dramas.
HOW LONG IS THE INTERVIEW SESSION?
1. The length of time of the interview depends on the IOs requirements of the case and not according to your convenience. That is why it is important for you to communicate with the IO, to negotiate the scheduling of the session. More often than not, they will just impose whatever time is convenient to them.
2. Often the waiting is longer than the actual interview. For example, the IO tells you to appear at his office at 9.00 am but you are waiting there for hours and he only meets you at 4.00pm. Or tells you to go home and come back the next day because he has to attend a majlis. I am not making this up, this has happened before.
3. No matter your misgivings, you must be punctual even if the IO is hours late. If you need to leave early, please obtain the IO’s permission first.
4. If you are an important witness or a suspect, the session can take a couple of hours.
5. There could be multiple sessions in the same day. So in between each session you are allowed to go home or grab lunch or consult your lawyer.
6. For some serious cases, the interview can stretch through the entire night, concluding at 5am or 6am. Be wary that at such hours you will feel tired and may lower your guard.
SHOULD I SIGN THE STATEMENT RECORDING?
Yes but only if:
1. You have read the entire statement and are satisfied that it captures accurately what you told them. A statement need not be verbatim word-for-word. It need not narrate the grand story of your life.
2. You have recorded what you wish to say after that last part, “Ada apa-apa kamu hendak tambah?” Do not give up on the opportunity to add points to clarify and issues or to put forward your defence. You will regret if you do not.
COMMON LIES TOLD TO YOU DURING A STATEMENT RECORDING SESSION (DOES NOT APPLY TO MAJORITY OF OUR HONOURABLE, DUTIFUL INVESTIGATING OFFICERS)
1. “You do not need to state your defence in the statement. Just say it in court.”
Explanation: The IO does not want to record your defence in the Investigation Paper, specifically in your statement.
2. “You cannot add your own points in the statement. You can only respond according to the answers provided.”
Explanation: The IO wants to control your evidence so that it benefits their theory of case, or worse, their instructions.
3. “I will record a further statement on another day to cover those things that you did not state today.”
Explanation: This is to give you a false expectation that the IO cares to record your side of the story. Consult a lawyer on how to handle this situation.
4. “If you confess in the statement, you will get a lenient sentence, i.e. no jail and only denda.”
Explanation: Pleading guilty to a charge in a court of law earns you a discounted sentence in most cases. But your statement is not even exhibited in such scenario so confessing to the police has doubtful benefit to you. You can inform the court in mitigation that you confessed even during investigation, but I am not aware of any principle of law that such factor weighs in during mitigation. Maybe you think that if you confessed, they won’t beat you.
5. “If you do not confess to the offence alleged, I am going to charge you for a much heavier offence.”
Explanation: This is a common lie. The Deputy Public Prosecutor calls the shots not the IO.
6. “If you do not confess, I will arrest your spouse / children / parents immediately and charge them for serious offences and I will also freeze all your bank accounts.”
Explanation: They can arrest your family anyway, even if you confess, and you would not be able to do anything about it. Why should you trust an officer who resorts to such despicable threats against innocent family members? But I understand in such situation you would be in such fear that you are likely to comply; don’t blame yourself.
7. “Just sign the statement, it is merely a formality and nothing bad will happen to you. Ini untuk setel kes / tutup fail. If you insist to include your defence, the DPP will be suspicious and charge you for an even worse crime.”
Explanation: Yes you should sign the statement, but please read my points in the above sections. I am not aware of any DPPs who would charge people just for including their defence in their statement. Fortunately there are still many good DPPs who actually read the statement of the suspects / accused, even if they disregard it. I am presently handling an appeal where there was no statement recorded of the appellant at all.
8. “If you accused person X of committing the crime instead of confessing, I will instantly charge you for a much heavier offence and for perjury”.
Explanation: It is possible that you will be charged if there is independent evidence against you. The DPP makes the decision to charge or not to charge and generally they rely on independent evidence from other witnesses and not from you. At best, the DPP may read your statement and instruct the IO to investigate your allegation that person X committed the crime and not you. At worst, the DPP does not read your statement.
9. “Appoint my lawyer. If you appoint any other lawyer, I will make sure you are charged.”
Explanation : Many people are desperate or ignorant enough to comply. Comply at your own peril. Do you think that a lawyer will defend you fearlessly and attack the quality of the IO’s investigation without fear or favour, if he was referred the case from that IO?
10. “These documents referred in the statements ; I have all of them. Just sign and agree that you have identified them.”
Explanation: Sometimes the IO can only obtain documents, especially banking / financial documents several months after the charges are filed. But during investigation they record your statement as though you have been shown such documents. You should not give a statement saying that you have been shown documents which were not there because that would be lying.
SHOULD I LODGE A POLICE REPORT?
1. No.
2. Only lodge a police report if you found there were false allegations made against you. You would learn this from the interview. Sometimes the police discourage people from making reports for reasons best known to them. I have written about counter reports in an earlier article in this blog.
3. If you have to lodge a counter report, you should do so immediately to avoid any accusation of afterthought. Some courts are fond of this term afterthought so much so that the meaning has stretched over the years, no thanks to airport drug trafficking cases where belated defences are rife because many courts do not expect the IO to investigate the contents of the accused’s handphone.
4. Lodging a counter report will not in itself make you innocent or prevent your arrest or indictment. But it can just be one more additional tool for your defence counsel to help your defence if you are charged in court.