Chapter 2 - Arrest

Question 1

What is arrest?

Answer 1

Arrest is the first step in criminal proceedings against a suspected person - Christie v Leachinsky

Question 2

Persons who may arrest

Answer 2

1. Police
2. Private Person
3. Magistrate
4. Justice of Peace

Question 3

Types of Offences

Answer 3

1. Seizable Offence
2. Non-seizable offence

Question 4

Seizable offence

Answer 4

s2(1) CPC - a offence for which a police officer may ordinarily arrest without a warrant according to 3rd Column of 1st Schd to CPC (offences under the Penal Code which are punishable with imprisonment of 3 years and above are seizable offences)

Question 5

Non-seizable offence

Answer 5

S2(1) CPC - a offence for which a police officer may not ordinarily arrest without a warrant (need warrant to arrest the suspect)

3rd Column of 1st Schd - offences that are punishable with imprisonment of less than 3 years are non-seizable offences

or

for offences against laws other than Penal Code where punishment is less than 3 years imprisonment or a fine - non-seizable offences

***if any written law provides that an offence is seizable even though the punishment is less than 3 years imprisonment - seizable

Question 6

Arrest of Seizable Offence without Warrant

Answer 6

S23 CPC - police officer/penghulu to arrest without a warrant

Question 7

s23(1) (a) to (k) CPC

Answer 7

situations in which PO/Penghulu may arrest without a warrant

Question 8

s23(1)(a) CPC

Answer 8

where any seizable offence has been committed anywhere in Malaysia, any PO/Penghulu may arrest without a warrant any person:
1. who has been concerned in any such offence
2. against whom a reasonable complaint has been made
3. against whom credible information has been received
4. against whom a reasonable suspicion exists

Question 9

Reasonable complaint

Answer 9

Tan Kay Teck - complaint of wrongful confinement was not reasonable as the parties were negotiating payment

Question 10

Credible information

Answer 10

Hashim Saud v Yahya Hashim - information to the police of stolen mixer was credible

Question 11

Reasonable suspicion

Answer 11

Shaaban v Chong Fook Kam - reasonable suspicion depends on the circumstances of each case
Tang Eng Hoe - the arrest was lawful as the person fitted the description of the person to be arrested
Mohammed Shafiq Dollah v Sarjan Mejar Abdul Manaf Jusoh - the police failed to show reasonable suspicion in arresting the plaintiffs on suspicion of theft of motorcycles

Question 12

Arrest for Non-seizable offences without warrant

Answer 12

s24(1) CPC - A PO/Penghulu may arrest without warrant any person who commits or is accused of committing a non-seizable offence in his presence and refuses to give his name or address, or if given, the PO/Penghulu has reason to believe it to be false

Question 13

Purpose of the arrest made under S24(1)

Answer 13

to ascertain the true name or residence of the suspect

• such person must be brought before a Magistrate within 24hrs excluding the time of the journey
• such person must be released on his executing bond for his appearance before a Magistrate if bfore the 24hrs, his true name/residence is ascertained

Question 14

What Penghulu has to do after arrest

Answer 14

S25 CPC - shall without unnecessary delay, handover the arrested person to the nearest police officer/police station

the PO shall then examine whether the offence is seizable or non-seizable according to s23/s24 and re-arrest such person accordingly.

Question 15

Arrest by Private Person

Answer 15

S27 - any private person may arrest any person who, in his view, commits a non-bailable and seizable offence or who has been proclaimed under s44 CPC

• the private person must then without unnecessary delay hand over such person so arrested to the nearest police officer/police station

s27(2) to (4) - the police office will examine the case and if necessary shall re-arrest him under s23/s24 or release the person if there is no reason to believe that he has committed an offence

Question 16

2 interpretations of “in his view”

Answer 16

1. strict interpretation - in his sight - Durga Singh and Kartar Singh and Metro (Golden Mile) Pte Ltd v Paul Chua Wah Liang
2. wider interpretation - in his presence or within his sight - Sam Hong Choy v PP
   such interpretation covers the situation where although the private person did not actually witness a non-bailable and seizable offence being committed but he was certain that the persons running away or trying to escape were offenders as he was in such close proximity to the scene of the crime

*** A private person cannot therefore arrest on mere suspicion or on info received no matter how credible the info is.

Question 17

“without unnecessary delay”

Answer 17

John Lewis v Tims - no unnecessary delay in handing the suspects to the police bcaz they were given opportunity to answer the allegation of theft

Question 18

Arrest by Magistrate or JOP

Answer 18

s30 CPC - empowers a M or JOP to arrest or authorize any person to arrest an offender who has committed an offence in his presence or within the local limits of jurisdiction

s31 CPC - empowers M to arrest or authorize any person to arrest in his presence or within the local limits of jurisdiction of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant

Question 19

Hariharanand v The Jailor

Answer 19

A M arresting a person under the power given should not try the case himself.

The person so arrested by the M shall be produced within 24hrs bfore another competent M, failing which, the arrest becomes illegal

Queen-Empress v Venkanna/ Mohan Chaudhury b State

Question 20

3 Modes of Arrest

Answer 20

S15 CPC
1. actually touching the body of the person sought to be arrested
2. actually confining the body of the person sought to be arrested
3. where the person sought to be arrested submits to the custody by words or action

Similar to Halsbury’s Laws of England:
1. An arrest consists in the seizure or touching of a person’s body with a view to his restraint;
2. Words may, alternatively, amount to an arrest if, in the circumstances of the case, they are calculated to bring and do bring to a person’s notice that he is under compulsion and he submits to the compulsion

Question 21

Shaaban v Chong Fook Kam

Answer 21

3 propositions as to what constitutes a valid arrest by Lord Devlin:

1. A police officer states in terms that he is arresting
2. A police officer uses force to restrain the person sought to be arrested
3. A police officer makes it clear by words or conduct that he will use force if necessary to prevent the person sought to be arrested from going where he may want to go

** (1) & (3) of Shaaban appear wider and go beyond the scope of the modes under S15 CPC

** (2) of Shaaban is consistent with S15 CPC

**Shaaban - what constitutes arrest whereas S15 CPC provides how an arrest is to be effected

Question 22

s15 (2) CPC

Answer 22

If a person resists arrest, then the PO /other person making the arrest may use all means necessary to effect the arrest

Question 23

s15(3)

Answer 23

the PO/other person making the arrest has no right to cause the death of a person who is not accused of an offence punishable with death or with life imprisonment

Question 24

Mahmood v Govt of Malaysia

Answer 24

Reasonable force was used to arrest A who did not stop when told

Question 25

Right of an arrested person

Answer 25

1. Right to be informed of grounds of arrest
2. Right to legal counsel
3. Right to apply for writ of habeas corpus
4. Right to communication with lawyer and relative
5. Right to be brought before a Magistrate within 24 hours
6. Right to remedies for wrongful arrest and detention
7. Remain silent
8. Right to apply for bail

Question 26

Right to be informed of grounds of arrest

Answer 26

Art 5(3) FC
- an arrested person shall be informed as soon as may be of the grounds of his arrest
- an arrested person has a right to legal counsel

Christie v Leachinsky:
1. An arrested person must be informed of the true grounds of his arrest;
2. if the arrested person is not informed of the grounds of his arrest, the PO maybe liable for false imprisonment.
3. The PO need not inform under the following circumstances:
- the arrested person should know the general nature of the alleged offence for which he is arrested
- the arrested person himself makes it practically impossible to inform him (assaults the PO/runs away)
4. Technical/precise language need not to be used to inform him
*** cited by Abdul Rahman v Tan Jo Kok

S28A(1) CPC

Question 27

Mohd Shafiq Dollah & Anor v Sarjan Mejar Abdul Manaf

Answer 27

both S28A CPC and Art 5(3) FC are joint rights of an accused person

In this case, although the accused persons were informed of the grounds of arrest according to S28A and Art 5(3), but they were refuse of the right to legal representative, hence their arrest became unlawful

Question 28

Right to legal counsel

Answer 28

Art 5(3) FC

2 situations where this right can arise:
1. upon arrest
2. during remand proceedings

Question 29

Legal counsel upon arrest

Answer 29

• this right arises where the arrested person is brought before a Magistrate within 24hrs under S28 CPC
• purposes: to obtain remand order under S117CPC so that investigation can be completed

Ooi Ah Phua v OCCI Kedah/Perlis
- the onus is on the police to deny legal rep on the ground that interference may encourage the suspect to fabricate stories

Question 30

Legal counsel during remand proceedings

Answer 30

Saul Hamid v PP
- a person in remand proceedings is entitled to legal rep and the burden lies on the police to prove that there will be interruptions in their investigation

Lock-Up Rules 1953
- lawyers are permitted to visit the arrested person so far as necessary to prep for the defence

Lau Mau Seng v Minister of Home Affairs (SG case)
- the accused has the right to legal rep within a reasonable time after his arrest

Question 31

Right to apply writ of habeas corpus

Answer 31

S365 CPC - an application may be made to HC for an order to release a person who is illegally or improperly detained

Question 32

process of obtaining a writ of habeas corpus

Answer 32

S366 CPC - the application shall be supported by AIS stating where and by whom the person is detained and the facts relating to the detention

S367 - the application shall be made by the person detained unless it is shown that by reason of restraint or coercion or other sufficient cause he is unable to make it, in which case it shall be made by some other person

S368 - A copy of the warrant under which the person is detained (i.e. remand order) shall be produced in the court or it shall be shown by affidavit that the detention warrant has been asked for and refused

S370 - A warrant for the court to order a person in custody to be brought bfore it shall be prep and signed by the Registrar and sealed with the seal of the Court

S371 - such warrant shall be delivered to the applicant or his advocate who shall serve it personally on the person directed or as the Court shall direct

S374 - a person aggrieved by any decision or direction of the HC may appeal to the FC within 30 days from the date of the decision or direction

Question 33

Right to communication with lawyer and relative

Answer 33

S28A(2) to (4) CPC - a police officer before commencing any form of questioning or recording on the arrested person must inform the arrested person that he may communicate or attempt to communicate with a legal practitioner of his choice

Question 34

S28A(5)

Answer 34

where the person arrested has requested for a legal practitioner to be consulted the police officer shall allow a reasonable time for the legal practitioner to be present to meet the person arrested at his place of detention and for the consultation to take place. In addition, the consultation shall be within the sight of a police officer and the conversation will not be heard

• PO shall provide for such facilities
• PO may neither question nor record any statement from the arrested person until the arrested person has had a communication with the legal practitioner of his choice

Question 35

S28A(8)

Answer 35

PO does not have to comply the requirement to inform the relative or a friend and the right to legal counsel if the PO reasonably believes that it will result in an accomplice absconding or the concealment, fabrication or destruction of evidence or intimidating witness

Question 36

S28A(9)

Answer 36

S28A(8) can only be invoked upon authorisation by a PO not below the rank of Deputy Superintendent of Police

Question 37

Right to be brought bfore a Magistrate within 24hrs

Answer 37

Art 5(4) FC - the person arrested shall without unreasonable delay be produced bfore M within 24 hrs

S28(3) CPC - PO making an arrest without a warrant (seizable offences) shall without unnecessary delay produce him bfore a M within 24 hrs (excluding holidays and time for the journey)

S28(3) CPC is in line with Art 5(4) FC - infers that the accused would always be brought bfore a M and the venue where the M sits is of no importance and will not be hindered by restriction on office hrs

Question 38

S117 CPC

Answer 38

Remand order

<14 years of imprisonment - 4 days 1st application; 3 days 2nd application

14 years of imprisonment and more - 7 days 1st application; 7 days 2nd application

Question 39

S119

Answer 39

the PO making the investigation must keep a diary of proceedings

Question 40

PDRM v Keong Mei Cheng Audrey

Answer 40

Mandatory for the police to produce a copy of the diary under S119 CPC - no diary was produced, no right to order the detention

Question 41

Ketua Polis Daerah JB v Ngui Tek Choi

Answer 41

Mistake in investigation diaries does not render the remand order void - amounts to a typo error

so long as the M is satisfied with the suspect’s identity and purpose of the remand

Question 42

Right to remedies for wrongful arrest and detention

Answer 42

1. Self defence

• when police arrested A for a non-seizable offence and unlawful seizure of A’s property

2. Civil suit

• may be taken to claim damages if the arrest/detention is unlawful and the person suffered injuries during the detention

Question 43

Ong Kee Seong

Answer 43

A assaulted the PO for unlawfully arresting him for a betting offence which is a non-seizable offence which requires a warrant of arrest

Question 44

Kok Khee

Answer 44

A assaulted the officer for taking his dacing

Question 45

Khor Ah Kah

Answer 45

A assaulted the officer who confiscated his goods

Question 46

Mohd Azran bin Rahmat & Anor v Mazlan Bin Aliman

Answer 46

R claimed damages against A for wrongful arrest and detention for the alleged criminal tresspass. HC awarded general and exemplary damages and costs to R. A appealed.

COA allowed the appeal on the ground that when FIR was lodged the appellants were bound to investigate and give a status report. In this case there were reasonable suspicion that an offence was committed and the appellants had grounds to suspect that the respondent was involved, the remand and detention were lawful.

Question 47

Hassan Bin Mansor & Ors v Mohd Hady bin Yaakop

Answer 47

R claimed damages against A for wrongful arrest, remand and detention for an alleged offence in a fight against a PO which the R was not involved, and damages for injuries sustained during detention.

HC allowed the damages but did not allow a declaration that the detention was unlawful/

COA allowed the R’s claim for damages and held that the detention was unlawful as the M did not comply strictly with the req of S117 and S119. A appealed.

FC dismissed the appeal and followed judgment of the COA in holding that remand and detention was unlawful as the req in S117 and S119 were not followed.

Question 48

Remain silent

Answer 48

S112(2) CPC; S37A (2) DDA

The arrested person has a right to remain silent if the answer to the q may expose him to a criminal charge of penalty or forfeiture

Question 49

Right to apply for bail

Answer 49

S387 CPC - for seizable offence, bail is granted as of right subject to a remand order

S388 CPC - for non-seizable offence, bail may be granted

Question 50

Criminal proceedings against an arrested person

Answer 50

1. Saminathan/Saw Kim Ha/Gabriel - The Court can still try him even though the arrest and detention is illegal
2. Ong Kee Seong/Kok Khee/Khor Ah Kar - (exception) the court will not try A where A assaulted a PO when A’s arrest without a warrant was unlawful as the offence committed was non-seizable

Question 51

Rights of an Accused

Answer 51

1. Right to apply for bail
   for bailable offence - S387
   for non-bailable offence - S388
2. Right to be defended by an advocate subject to any express provision of the law to the contrary
   S255
3. Right to plead guilty or claim trial when the charge is read
   S173(a) & (b) and S178
4. Right to give evidence on his own and the Court shall call his attention to the principal points in the evidence of the prosecution which is against him and give him the opportunity to explain
   S257(1)
5. Right to make submission of no case to answer at the end of the prosecution’s case
   Lee Kwan Woh
6. Right to remain silent
   S112(2)/S37A(2) DDA - if the answer to the q would incriminate him
   S173(ha) - if the defence is called after the P has established a prima facie case

Question 52

Summons case

Answer 52

S2(1) - a case relating to an offence and not being a warrant case

Question 53

Form and procedures of summons

Answer 53

S34-37 CPC

Question 54

Warrant case

Answer 54

S2(1) - a case relating to an offence punishable with death or with imprisonment for a term exceeding 6 months