Arrest

Question 1

Who may arrest

Answer 1

Police / Penghulu / Magistrate / Justice of Peace / Private Person

Question 2

Seizable offence

Answer 2

• may arrest without warrant [s2 CPC]

- punishable with imprisonment of 3 years and above

Question 3

Arrest without warrant

Answer 3

• Penghulu/Police: s23 CPC - seizable offence, credible information etc
• Private Person: s27 CPC - “in his view” commits seizable offence
• Non seizable offence: s24 CPC - penghulu or police officer - to obtain identity and address

Question 4

“Reasonable Suspicion” - for arrest without warrant

Answer 4

[Shaaban]

• no need to establish prima facie proof - that is the end of the police investigation
• reasonable suspicion is the starting point of the police investigation

Question 5

What constitutes arrest? ie. Mode of arrest

Answer 5

[Mahmood v Govt of Malaysia]
What constitutes arrest is a Q of fact

s15 CPC: touching, confining, submission by words or action

But the case of [Shaaban] gives wider meaning to s15 wherein mere words and action is sufficient to constitute arrest

Question 6

Citizen arrest?

Answer 6

s27 CPC: in his view commits seizable offence

in his view = in his sight or in his presence [Sam Hong Choy v PP]

• ie. witnessed part of the incident / did not actually witness the commission of offence but was certain that the persons running away were offenders
• in [Sam Hong Choy]: heard a gunshot and saw 2 men running away - chase and arrest

Question 7

Rights of arrested person

Answer 7

• Right to contact lawyer & relative or friend (Art 5 / s28A CPC)
• Right to know the grounds of the arrest (Art 5) - [Christie v Leachinsky]: Otherwise = False imprisonment (Unless arrested person makes it practically impossible to inform him)
• Right to be brought before Magistrate within 24 hours (Art 5 / s28 CPC)
• If investigation cannot be completed within 24 hours, apply for remand order (s117 CPC)
• Note: Right of bail is subject to the remand order

Question 8

Wrongful arrest

• Remedies?
• Affect sentencing?

Answer 8

Apply for writ of habeas corpus [s365 CPC]

Civil action for damages - false imprisonment
- eg [Christie v Leachinsky]: if not informed of grounds of the arrest, arrest is unlawful and police officer may be liable for false imprisonment

• no damages if mistake was genuine and reasonable - e.g. [Tan Eng Hoe v AG] where the police arrested the wrong person - held to be reasonable since similar name (Seah Eng Tan), stay in same hotel, carry same bag, both from Malacca, similar clothes, same age

No consequence on the criminal trial - unlawfully arrested can still be tried [Gabriel v PP] - would not render subsequent proceedings illegal but accused entitled to bring a civil suit for wrongful detention