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Full citation:

Ramanathan S/O Chelliah V Public Prosecutor [1996] 2 MLJ 538


Parties:
Appellant: Ramanathan s/o Chelliah
Respondent: Public Prosecutor
Court: Court of Appeal
Judges: Shaik Daud, NH Chan JJCA and Abdul Malek J
Criminal Appeal No: W-09-30 OF 1994
Date: 30 November 1995
Facts of the case:
The accused in this case ('the appellant') was produced before the sessions court on two charges
of allegedly outraging the modesty of two athletes under s 354 of the Penal Code (Cap 45). He
was brought to court in handcuffs from the police station, and was put in the dock for the charges
to be read to him. The appellant's counsel applied to the sessions court judge to have the
handcuffs removed. The deputy public prosecutor opposed the application, whereupon the
sessions court judge rejected the application of appellant's counsel. After the arraignment
proceedings were over, the appellant was released on bail, and presumably, it was then that the
handcuffs were removed. The appellant, not being satisfied with the order of the sessions court
judge to have the appellant handcuffed ('the order'), filed a motion in the High Court requesting a
revision of the order. The appellant's counsel argued that it was improper for the appellant to
remain handcuffed in the dock on the grounds that: (i) an accused person is under the custody of
the court and no longer that of the police, once he is put in the dock; and (ii) there were no
grounds whatsoever upon which the court could exercise its discretion to order the handcuffs.
The deputy public prosecutor, on the other hand, contended that even though an accused person
is in the dock, he is still in the custody of the police, and as long as he is not on bail, he ought to
be handcuffed for reasons of security. The High Court judge was of the view that the order was
proper, and dismissed the appellant's motion. Hence, this appeal.

Issues:
1. Whether proper to use handcuffs during trial or arraignment??
2. Whether a matter of discretion for judge??
Contention of parties:
Prosecutions argument:
1. Even though an accused person is in the dock, he is still in the custody of the police
2. As long as he is not on bail, he ought to be handcuffed for reasons of security.
Defence Counsels argument:
1.

It was improper for the appellant to remain handcuffed in the dock, and the learned sessions

2.

judge ought to have ordered its removal


Once an accused person is put in the dock, he is under the custody of the court and no longer

that of the police.


3. There is no grounds whatsoever upon which the court could exercise its discretion to order
the handcuffs.
Held: Appeal allowed
Ground of reasoning:
1. Presiding officer have sole discretion to consider whether to have the accused person
handcuffed during the entire trial or at the arraignment, if and when an application is
made by the prosecution and it must be exercised judiciously and not because the
prosecution wants it to be. It must be, firstly, application made by the prosecution and
secondly, credible evidence supporting such application must be put before the court in
order for the court to exercise judiciously.(as per stated in p 542C-D)
2. Based on the record of proceeding, the deputy prosecutor did not make any application
nor credible material was adduced before the court in this appeal and the only ground put
forward was that the appellant was not on bail which is under police custody. Based on
the alleged charges faced by the appellant, it could hardly be justified for him to be
handcuffed and the sessions judge, therefore, did not exercise her discretion judiciously.
(as per stated in p 542E-F)
Principle of the case

In this case the judge highlighted the principle enunciated in the case of Yaakub bin Ahmad v
PP where Gill CJ (Malaya) (as he then was) stated:
As an accused person is presumed innocent until he is proved guilty, it is not the normal
practice to put any restraint on him when he appears before a court to be tried for a criminal
offence. Some sort of restraint, however, may become necessary where the accused is violent or
has committed a crime of violence or may have attempted to escape.
Such principle was agreed and enunciated again in the case of PP v Wee Swee Siang where
Callow J stated that
An accused person is innocent until he is proved guilty, and restraint is not usually required
unless the accused is violent or has committed a crime of violence or that he may attempt to
escapeand refrain from the use of handcuffs on unconvict persons unless essential.
It is clear the cardinal principle of an accused person is innocent until he is proven guilty being
main observation by the court in deciding the use of handcuff on accused person in order to
ensure the impartiality of justice in line to principle justice ought to be done not seen done. A
fair trial and rule against biasness should be carefully observed by the judge in exercising its
discretion.
Thus, Shaik Daud JCA in delivering the judgment stating the guideline regarding the use of
handcuffed during trial in order for court to exercise discretion judiciously on the application
from prosecution:
1. Firstly, there must be an application by the prosecution, and
2. Secondly, in order for the court to exercise its discretion judiciously, there must be some
credible material before the court in support or otherwise of the application.

Commentary and analysis of the case:

This is the Court of Appeal case in which elaborated on the use of handcuffed on the
accused person either during entire trial or arraignment proceeding. It was clear crystal to us that
principle of law always being the main issue and determination of judge discretion in their order.
The Defence Counsel, Mr. Karpal Singh, in this case raised objection on the use of
handcuffed to his client during the trial where he argues that it was an improper action and the
order of removal the handcuffed is necessary. Besides, the accused person was no longer under
police custody since he was in the dock, the court hold custody on the accused person. Further,
he state that the court has no ground whatsoever in its discretion to order handcuffed on the
accused. While, the Deputy Prosecutor, Augustin, on the other hand stated that the accused
person remain under police custody although in the courts dock since the accused was not in bail
at that point of time. Prosecution further stated that he should be handcuffed as a measure for
security reason.
The Learned Trial court objected the contention by the defense counsel and order for
handcuffed on accused which the order was later agreed by the High Court Judge on the appeal
made by the appellant who dissatisfied by the order. Later, the appeal was brought before the
Court of Appeal which elaborated on the issue of principles of law. I am in opinion that the Court
of Appeal judges was excellent in delivering the judgement pertaining to this matter. It could be
seen that Shaik Daud JCA was agree on the issue raised the Defence Counsel stating that it was a
good guideline in future though it was academic discussion.
Based on two referred cases, it is the trite law that an accused is innocent until
proven guilty which based on the principle of law actus non facit reum nisi men sit rea. This
principle established on the nature that law should be served as justice and the right of person
should be preserved. The element of biasness and prejudicial should eliminated as far justice is
concerned. Thus, the whole proceeding in this case was taken into account either on prosecution
material or defence counsel material. The judge in this case carefully scrutinized such matter
where it clearly disclosed that the contention made by the prosecution was not correctly
administer before the court as there is no credible evidence given regarding security reason.

It was true that the trial judge had sole discretion in for its order to handcuff the
accused but it is not exercise judiciously by the reason of justice. The Court of Appeal judge,
Shaik Daud JCA in his judgement is wisely founded where the trial judge should not be
influenced by either parties though he had sole discretion on the matter. The trial judge should
not give order to handcuff merely because the prosecution wants it. The full exercise of diligence
and credible evidence to show that the accused was presumably danger of escape or causing
injury should be presented before the court.
The principle of an accused is innocent until proven guilty not only being the
guideline in their decision but on two cases referred by the present case has acknowledge that the
use of any restraint is improper when the accused was in dock. In the case of in the case of
Yaakub bin Ahmad v PP where Gill CJ (Malaya) (as he then was) stated:
As an accused person is presumed innocent until he is proved guilty, it is not the normal
practice to put any restraint on him when he appears before a court to be tried for a criminal
offence. Some sort of restraint, however, may become necessary where the accused is violent or
has committed a crime of violence or may have attempted to escape.
The similar reasoning was given in the case of PP v Wee Swee Siang where Callow J stated that
An accused person is innocent until he is proved guilty, and restraint is not usually required
unless the accused is violent or has committed a crime of violence or that he may attempt to
escapeand refrain from the use of handcuffs on unconvict persons unless essential.
Such wording that restraint is not usually required and it is not the normal practice to put
restraint on him when he appeared before the court showing that the accused should be set free
from any restraint as he appeared before the court in the first place. Otherwise, it will be bad
practice where it is clearly violating the principle of law. However, exception to that normal
practice is allowed when there is a danger of violence or escape and the burden on proving such
matter lies upon the prosecution.
The learned trial judge could be indirectly prejudice on the accused since the order was
made on admittance of the prosecution contention that the accused was not in bail yet. The use of
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handcuff will give bad implication on the judge impartiality in deciding the case since the
accused appeared before the court with handcuffed presumably give rise in thought of judge that
the accused is guilty of the offence charged and inherently becoming a kind of pre-trial
punishment on the accused. Thus, defence was correct in his contention that the learned trial
judge was in no ground to order handcuffed on the accused.
In meantime, there is a need for the use of handcuffs in order to protect the public in
limited circumstances, but there must also be adequate safeguards in place to ensure that this
measure is not unnecessarily resorted to. As far we concerned, use of restraint in court does not
depicted the true nature of justice itself rather it was violation of human right. In addition, the
accused was not necessary guilty of the said offence. After through all the proceeding and
administration of proper justice shall we ascertain if he guilty accordingly by law.
Thus, our present case here set a good example of proper court administration in term
of the right of accused person. Being accused does not simply make it halfway of being guilty. It
could imply that use of handcuff could lead to negative impression in court. This is vital to the
court since the judge shall maintain their impartiality and refrain from being biased towards the
accused. It is true that this matter was discretion of the judge but in exercising its judicial
function, proper caution should lingered on thought of judicial officer. They cannot incline to
being part of any party in the proceeding either there is interest attached or not. Therefore, I
strongly agree by the decision of Shaikh Daud JCA. The elaboration and further clarification is
important in future cases.
It is important for the court to ensure not only his decision being decided fairly, but
the procedure of the court should be observed not to abuse or caused biasness especially to the
accused person. The principle of law should be priority over grant order without reasonable
ground.

Application of the case

It been rule out in this that the judge has sole discretion as per exercising its judicial function.
Issue of the accused handcuffed when appeared before the court was a matter that should be
observed the court in order not only to provide fairness in decision but ensured the procedure of
the court does not inclined to abuse the accused in the sense that he is innocent by the principle
of law. Shaik Daud CJA ruled out guideline in which the court must adhered before granting
order to handcuff the accused by it from application of the prosecution or his own sole discretion.
The guidelines as follow;
1. Firstly, there must be an application by the prosecution, and
2. Secondly, in order for the court to exercise its discretion judiciously, there must be some
credible material before the court in support or otherwise of the application.
3. The judicial officer must consider whether it is essential to have the accused to be
handcuffed
4. The judicial officer exercising discretion on such matter must exercise it judiciously
without taking part with the interest of either party or grant the order as they wants it to
be.