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Criminal Procedure > Chapter 2 - Arrest > Flashcards

Chapter 2 - Arrest Flashcards

1
Q

ARREST

Overview

A

1) Type of offence
2) Processes issue to enforce attendance
3) Arrest with warrant
4) Arrest without warrant by police or penghulu - S.23
5) Arrest without warrant by police and/or penghulu for refusal to give name & address - S.24
6) Arrest without warrant by private person - S.27
7) Mode of arrest at common law
8) Mode of arrest under CPC
9) Effect of unlawful arrest on criminal proceeding
10) Importance of determining point of arrest
11) Right of an arrested person
12) Remedies for unlawful arrest

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2
Q

ARREST

Types of offence

A

1) The law:

  • S.2
  • First Schedule

2) Seizable offence:
- may arrest w/o warrant
3) Non-seizable offence:

  • may not arrest w/o warrant;
  • exception - S.24: refusal to give name & address, may arrest w/o warrant.
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3
Q

PROCESSES ISSUE TO ENFORCE ATTENDANCE

Summons case

A

1) What is summon case:
- S.2
2) Forms & service of summons:
- S.35
3) Where personal service cannot be effected:
- S.36
4) Proof of service:
- S.37

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4
Q

PROCESSES ISSUE TO ENFORCE ATTENDANCE

Warrant case

A

1) What is warrant case:
- S.2
2) Form of warrant:
- S.38 - 46 CPC
3) Validity period of warrant:
- S.38(2)

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5
Q

PROCESSES ISSUE TO ENFORCE ATTENDANCE

Warrant in lieu of summons

A

1) The law:
- S.47
2) Application - Karpal Singh v PP:

  • The court must be satisfied that there are reasons to believe that:
  • the accused has absconded; or
  • he will not obey the summons.
  • In the absence of such reasons, issuance of warrant would be wrong or illegal.
  • Subsequently, if an arrest has taken place on the issuance of warrant without good reasons, the arrest is illegal.
  • OTF, it is found that the applicant was not aware of any police investigation into the alleged offence & therefore he had no cause to abscond.
  • The issue of warrant & the arrest of the applicant was held to be illegal.
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6
Q

ARREST WITH WARRANT

Overview

A

1) Obligations to assist
2) Notification of substance of warrant
3) Procedures to arrest with warrant

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7
Q

ARREST WITH WARRANT

Obligations to assist

A

S.11

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8
Q

ARREST WITH WARRANT

Notification of substance of warrant

A

1) The law:
- S.41

2) Whether it is necessary to bring original warrant - Reg v See Kah Loon:
Original sealed warrant must be brought upon effecting the arrest.

3) Failure to notify & explain substance of warrant - Bird Dominic Jude v PP:
- FC held that defect in the warrant of arrest is not fatal and does not affect the prosecution’s application.

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9
Q

ARREST WITH WARRANT

Procedures to arrest with warrant

A

1) Effecting arrest:
- S.15
2) Post-arrest - release on bond:

  • S.39: release on bond issued by Magistrate that issued the warrant; OR
  • S.387(2): powers of court or police to execute bond w/o sureties.

3) Post-arrest - bring to court w/o delay - S.42 & Art. 5(4) FC:

  • Effect of delay: Kuan Kwai Choi v Ak Zaidi bin Pg Meteli:
  • The claim for false imprisonment was allowed & a sum was awarded as damages.
  • “a warrant of arrest is a powerful expedient & must be strictly observed”.
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10
Q

ARREST WITHOUT WARRANT BY POLICE OR PENGHULU

Overview

A

1) The law & grounds of arrest
2) Reasonable complaint
3) Credible information
4) Reasonable suspicion
5) Post-arrest

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11
Q

ARREST WITHOUT WARRANT BY POLICE OR PENGHULU

The law & grounds of arrest

A

1) The law:
- S.23
2) Grounds of arrest:

  • Reasonable complaint;
  • Credible information
  • Reasonable suspicion
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12
Q

REASONABLE COMPLAINT

Overview

A

1) Test of reasonableness

2) Effect of arrest without reasonable complaint

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13
Q

REASONABLE COMPLAINT

Test of reasonableness

A

Tan Kay Teck & Anor v AG:

  • The court must first ascertain what facts were known to the arresting officer;
  • Then, decide whether those facts amounted to a reasonable complaint that the person to be arrested.
  • “complaint” under S.23 should not be restricted to definition under S.2 & should also include reports made to the police.
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14
Q

REASONABLE COMPLAINT

Effect of arrest without reasonable complaint

A

Tan Kay Teck & Anor v AG:

  • the arrest & detention would be unlawful.
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15
Q

CREDIBLE INFORMATION

Test of credibility

A

Source previously proved to be reliable - Hashim bin Saud v Yahaya bin Hashim & Anor:

  • There was a credible information against the plaintiff since the source had previously proved to be reliable in the sense that information given by this source had led to arrests, prosecutions & convictions.
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16
Q

CREDIBLE INFORMATION

Scope of credible information

A

Clear nexus between info, suspect & offence - PDRM v Audrey Keong Mei Cheng:

  • There must be some lawful basis for arrest and detention including a clear nexus between the information, the suspect and the offence.
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17
Q

REASONABLE SUSPICION

When should exist

A

Chan Wey Siong v Ketua Inspektor Sjafrin:

  • A reasonable suspicion that the accused is involved in the offence MUST exist BEFORE a person can be arrested.
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18
Q

REASONABLE SUSPICION

Meaning of reasonable suspicion

A

Shaaban & Ors v Chong Fook Kam:

  • Suspicion that arises at or near the starting-point of an investigation.
  • A state of conjecture or surmise where proof is lacking; i.e. “I suspect but I cannot prove”.
  • Cannot be equated with prima facie proof.
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19
Q

REASONABLE SUSPICION

Test for reasonable suspicion

A

Tan Eng Hoe v AG:

  • test is whether reasonable person acting without passion or prejudice would have fairly suspected that the person arrested did it.
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20
Q

REASONABLE SUSPICION

Determining reasonable suspicion

A

1) Bona fide belief in the part of police officer - Saul Hamid v PP:
- There must be bona fide belief in the part of the police officer that an offence has been committed.
2) Surrounding circumstances - Mahmood v Govt of Malaysia:

  • Reasonable suspicion can also be determined by gathering the surrounding circumstances.
  • e.g. OTF, the circumstances of a woman screaming in distress, frequent reports of rape & robbery in the area, and the act of absconding by the plaintiff justified the arrest.

3) Reasonable & probable cause - Masa Nangkai & Ors v Sgd Edwin Nancha & Anor (HC, 2005):

  • Arresting officers can rely on s. 23(i)(a) if they can show that they had reasonable and probable cause to effect the arrest;
  • i.e. the police received credible information or held a reasonable suspicion that the arrestee was concerned in a seizable offence.
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21
Q

REASONABLE SUSPICION

Burden of proving lawful arrest

CA, 2014

A

Zulkiflee bin SM Anwar v Arikrishna Apparau & Ors (CA, 2014):

  • Reasonable suspicion means that the arresting officer must form an opinion to satisfy himself that an offence has been committed & it is committed by the person arrested.
  • The burden to prove that the arrest is lawful rests entirely on the arresting officer.
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22
Q

ARREST WITHOUT WARRANT BY POLICE OR PENGHULU

Procedures post-arrest

A

1) Police officer - S.28 & Art. 5(4)

  • S.28:
  • Art. 5(4):
  • Application for remand: S.117 & 119:

2) By penghulu: S.25
- hand over the person arrested to the nearest police officer.

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23
Q

ARREST WITHOUT WARRANT BY POLICE OR PENGHULU FOR REFUSAL TO GIVE NAME & ADDRESS

Overview

A

1) The law & scope
2) There must be refusal
3) Post-arrest

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24
Q

ARREST WITHOUT WARRANT BY POLICE OR PENGHULU FOR REFUSAL TO GIVE NAME & ADDRESS

Law & scope

A

1) The law:
- S.24
2) Scope:
- Allow police to arrest without warrant on seizable offence for the purpose of ascertaining name & address.

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25
Q

ARREST WITHOUT WARRANT BY POLICE OR PENGHULU FOR REFUSAL TO GIVE NAME & ADDRESS

There must be refusal

A

PP v Ong Kee Seong:

  • OTF, there was no suggestion that the respondent refused to give his name & address on demand by the police officer.
  • Held: the arrest could not be justified under S.24.
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26
Q

ARREST WITHOUT WARRANT BY POLICE OR PENGHULU FOR REFUSAL TO GIVE NAME & ADDRESS

Post-arrest

A

S.24(1):

  • be taken before Magistrate within 24 hours unless the name & address has been ascertained.
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27
Q

ARREST WITHOUT WARRANT BY PRIVATE PERSON

Overview

A

1) The law & scope
2) Meaning of “in his view”
3) Post-arrest
4) Effect of delay

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28
Q

ARREST WITHOUT WARRANT BY PRIVATE PERSON

The law & scope

A

1) The law:
- S.27
2) the scope:

  • non-bailable & seizable offence; and
  • committed in his view.
29
Q

ARREST WITHOUT WARRANT BY PRIVATE PERSON

Meaning of in his view

A

1) Indian position: Nazir v Rex

  • The word “in his view” must be given liberal interpretation;
  • it meant not only “in his sight” but also “in his presence”.

2) Singaporean position: Metro (Golden Miles) Pte Ltd v Paul Chua:
- The offence committed must have been in sight of the private person before the arrest can be lawful.
3) Malaysian position - Sam Hong Choy v PP:

  • “in his view” not only mean “within his sight” but also “in his presence”.
  • therefore, when a person found committing the offence or found him running away immediately after the commission of the offence, he is entitled to be arrested.
30
Q

ARREST WITHOUT WARRANT BY PRIVATE PERSON

Post-arrest

A

1) S.27(2): Re-arrest; OR
2) S.27(4): Release; OR
3) S.27(3) commission of non-seizable offence.

31
Q

xx

A

xx

32
Q

ARREST WITHOUT WARRANT BY PRIVATE PERSON

Effect of delay

A

1) John Lewis & Co Ltd v Tims:

  • Private person arresting must take the arrested person before a justice or to a police station as soon as he reasonably can;
  • Failure amounts to exposing himself to a civil liability for false imprisonment & assault.

2) S.430:
- reward for unusual extortion may be allowed.

33
Q

MODE OF ARREST AT COMMON LAW

Overview

A

1) Mere words tantamount to arrest
2) Constructive or actual arrest
3) Recovery of incriminating exhibits
4) Ranking of police officer
5) Stopping of making inquiries
6) Restriction of liberty
7) Recent application

34
Q

MODE OF ARREST AT COMMON LAW

Mere words

A

1) Sha’ban & Ors v Chong Fook Kam:

  • An arrest occurs when:
  • A police officer states in terms that he is arresting; or
  • He uses force to restrain the individual concerned; or
  • By words or conduct he makes it clear that he will, if necessary, use force to prevent the individual from going anywhere.
  • An arrest does NOT occur when:
  • The police officer stops an individual to make enquiries.

2) Jayarahman & ors v PP:

  • Mere request not to leave the compound does not amount to arrest;
  • Something extra is required for a person to be considered under arrest.
  • It was held that an arrest had not taken place since it was a matter for the ASP and not Corporal to decide whether or not the applicants should be arrested.
35
Q

MODE OF ARREST AT COMMON LAW

Constructive or actual

A

PP v Shee Chin Wah:

1) Actual arrest:

  • Actual act of arresting is required, does not have prior knowledge or information of the offence committed.
  • Pursuant to an investigation or finding.

2) Constructive arrest:

  • Sufficient if a person is already in a state of being watched or guarded to prevent his escape.
  • Done with prior information or knowledge of the offence committed.
36
Q

MODE OF ARREST AT COMMON LAW

Recovery of incriminating exhibits

A

PP v David Ackowuah Bonsu:

  • Reasonable suspicion is an important factor to be taken into account by the court in deciding whether or not there is constructive arrest in a situation where incriminating exhibits are recovered.
37
Q

MODE OF ARREST AT COMMON LAW

Ranking of police officer

A

Jayarahman & Ors v PP:

  • In the circumstances, it was a matter for the ASP and not Corporal to decide whether or not the applicants should be arrested.
  • OTF of this case, the ranking of the police officer does matter when it comes to a decision whether an act of telling not to leave a place amounts to arrest.
38
Q

MODE OF ARREST AT COMMON LAW

Stopping of making inquiries

A

Distinction between two kind of stopping of making inquiries - PP v See Chin Wah:

1) Merely or randomly stopping for inquiries - Sha’ban & Ors v Chong Fook Kam:
- Does not amount to arrest.

2) Stopping for inquiries with prior information of the commission of the crime - Kang Ho Soh:
- Court will be more inclined to infer that an arrest had taken place.

39
Q

MODE OF ARREST AT COMMON LAW

Restriction of liberty

A

1) Determining the restriction - PP v Tan Seow Chuan:
- Court must look at the surrounding circumstances to imply so.
2) Example - accompany the police to station - Zainal bin Kuning v Chan Sin Mian Michael & Anor:

  • Court held that a person is arrested when he is compelled to accompany a police officer;
  • In such a situation, there is a restriction of liberty and neither words of arrest nor physical restraint need to be present.

3) Example - not free to leave - PP v Teoh Meng Kee (CA, 2016):

  • although Teoh Beng Hock had not been officially arrested yet he was not free to leave the MACC Office as he pleased, his handphone was taken away & he is not allowed to have his lawyer present with him.
  • He was in effect and in law under constructive arrest by the MACC officers.
40
Q

MODE OF ARREST AT COMMON LAW

Recent application

CA, 2016

A

PP v Teoh Meng Kee (CA, 2016):

  • although Teoh Beng Hock had not been officially arrested yet he was not free to leave the MACC Office as he pleased, his handphone was taken away & he is not allowed to have his lawyer present with him.
  • He was in effect and in law under constructive arrest by the MACC officers.
41
Q

MODE OF ARREST UNDER CPC

Overview

A

1) The law & scope
2) Meaning of “all means necessary”
3) Causing death, whether allowed

42
Q

MODE OF ARREST UNDER CPC

The law & scope

A

1) The law:
- S.15
2) Scope:

  • Actual touching;
  • Confining the body;
  • Submission to custody
43
Q

MODE OF ARREST UNDER CPC

Meaning of “all means necessary”

A

1) The law - S.15(2):
- Police officer may use all means necessary.
2) Example - Mahmood v Govt of Malaysia:

  • OTF, shooting & wounding the Plaintiff is justified;
  • P was attempting to evade the arretst.

3) Evading arrest:

  • GR: offence under S.353 PC;
  • Exception: if the arrest is obviously and clearly unlawful, arrestee is entitled to resist the arrest (PP v Khor Khee).
44
Q

MODE OF ARREST UNDER CPC

Causing death whether allowed

A

1) The law: S.15(3)
- not allowed unless the offence involve death penalty or life imprisonment.
2) The law: Inspector General Standing Orders (IGSO)
- shots cannot be fired unless the police officer finds himself in a situation where he is under attacked and he believes that his life is in danger or under threat of grievous injury.
3) Effect of causing death in non-permitted situation - KETUA POLIS DAERAH SHAH ALAM & ORS v. NOR AZURA AMZAH & ANOR AND ANOTHER APPEAL (CA, 2018):

  • Exposed the officer for claims for assault and battery;
  • OTF, the fact that the first defendant fired the fatal shot was undisputed & he admitted that his patrol car was behind the deceased’s car and was pursuing it when the shots were fired.
  • The first defendant further admitted that it was wrong for him to have done that.
  • The evidence clearly showed that at the time the fatal shot was fired, the deceased posed no threat to the police personnel.
  • Learned counsel also argued that contributory negligence is not a defence in cases of assault and battery.
  • CA held that it was a patent instance of negligence on the part of the first defendant & on the totality of the evidence, the action of the first defendant in firing the fatal shot which resulted in the death of the deceased was clearly unwarranted, unreasonable and unjustified.
45
Q

EFFECT OF UNLAWFUL ARREST

Overview

A

1) On subsequent proceeding

2) On personal liability

46
Q

EFFECT OF UNLAWFUL ARREST ON CRIMINAL PROCEEDING

On subsequent proceeding

A

1) Saw Kim Hai & Anor v R:

  • When an accused person is brought before a court, the court has a jurisdiction to try him;
  • This is notwithstanding the fact that his arrest may have been illegal.

2) Bird Dominic Jude v PP:

  • Any irregularity of the initial arrest has been overtaken by subsequent event when the accused was subsequently brought to the court.
  • The court has the jurisdiction to hear the second stage of the application notwithstanding of any irregularity or flaw in the terms of the warrant of arrest.
47
Q

EFFECT OF UNLAWFUL ARREST ON CRIMINAL PROCEEDING

On personal liability

A

Tan Kay Teck & Anor v AG:

  • Ref. Dumbell v. Roberts:
    where a person has been wrongfully arrested and detained, it is in the public interest that sufficient damages should be awarded in order to give reality to the protection afforded by the law to personal freedom.
  • Ref. Walter v. Alltools:
    a false imprisonment does not merely affect a man’s liberty; it also affect his reputation.
  • Therefore, reasonable amount of damages could be awarded taking into account all circumstances.
48
Q

IMPORTANCE OF DETERMINING THE POINTS OF ARREST

The importance

A

1) General:
- A person cannot be detained for more than 24 hours;
- An arrested person has various rights, inter alia, to consult legal practitioner of his choice;
- Where a person is arrested, a statutory caution might need to be administered before his statement is admitted in court.

i. e. statement before arrest: admissible & does not need statutory caution.
i. e. statement after arrest: inadmissible & need statutory caution.

2) Administration of statutory caution after arrest has been effected - Tan Chun Heng v PP (CA, 2020):

  • CA referred to Jayarahman & Ors v PP & S.15(1) and took the position that the accused was for all intents and purposes under arrest.
  • Any statement made by him under arrest is inadmissible.

*Ref. Pendakwa Raya v Kang Ho Soh:

  • Any statements made to a police officer by a person after arrest is inadmissible unless the statutory preconditions laid down by section 37B of the Act are satisfied.
  • i.e. the statutory requirement is that the arresting officer must have administered the caution as stipulated in section 37B(1)(b) of the Act.
  • Ref. Mohd Zaiham Mislan v PP:
  • there may still be a requirement for the caution to be explained in appropriate cases or circumstances.

OTF, CA held that:

  • Mere reading of the caution would not suffice.
  • There is a requirement in law for the caution and its consequences to be explained to the accused.
49
Q

RIGHTS OF AN ARRESTED PERSON

Overview

A

1) The law & scope
2) Reasonable use of force
3) Informed on ground of arrest
4) Private or self-defence
5) Communicate with relative or friend
6) Legal representation
7) Remain silent
8) Be produced before a Magistrate
9) Be released on bail
10) Apply writ of habeas corpus

50
Q

RIGHTS OF AN ARRESTED PERSON

The law & scope

A

S.28A

51
Q

RIGHTS OF AN ARRESTED PERSON

Reasonable use of force

A

1) The law: S.15(3)
- not allowed to cause death unless the offence involve death penalty or life imprisonment.
2) The law: Inspector General Standing Orders (IGSO)
- shots cannot be fired unless the police officer finds himself in a situation where he is under attacked and he believes that his life is in danger or under threat of grievous injury.
3) Effect of causing death in non-permitted situation - KETUA POLIS DAERAH SHAH ALAM & ORS v. NOR AZURA AMZAH & ANOR AND ANOTHER APPEAL (CA, 2018):

  • Exposed the officer for claims for assault and battery;
  • OTF, the fact that the first defendant fired the fatal shot was undisputed & he admitted that his patrol car was behind the deceased’s car and was pursuing it when the shots were fired.
  • The first defendant further admitted that it was wrong for him to have done that.
  • The evidence clearly showed that at the time the fatal shot was fired, the deceased posed no threat to the police personnel.
  • Learned counsel also argued that contributory negligence is not a defence in cases of assault and battery.
  • CA held that it was a patent instance of negligence on the part of the first defendant & on the totality of the evidence, the action of the first defendant in firing the fatal shot which resulted in the death of the deceased was clearly unwarranted, unreasonable and unjustified.

4) Exception - PP v Khor Khee:
- if the arrest is obviously and clearly unlawful, arrestee is entitled to resist the arrest.

52
Q

RIGHTS OF AN ARRESTED PERSON

Informed on the ground of arrest

A

1) GR: Art. 5(3) FC:
- he shall be informed as soon as may be of the grounds of arrest.
2) Exception - Christie v Leachinsky:

  • He must have known the general nature of the alleged offence, i.e. when he is caught red-handed.
  • He makes it practically impossible to inform him on the grounds of arrest, i.e. immediate counter-attack or run away.

3) Effect of withholding ground - Christie v Leachinsky:
- Where the reasons for the arrest or detention is deliberately withheld, it amounts to false imprisonment.

53
Q

RIGHTS OF AN ARRESTED PERSON

Private or self-defence

A

1) PP v Ong Kee Seong:

  • only exercisable in a situation where the arrest and/or detention is clearly wrongful.
  • OTF, the police entered the premise without required warrant & the accused kicked the officers in the stomach and bite the legs.
  • Since the police had not obtained the search warrant, their act is justified.
54
Q

RIGHTS OF AN ARRESTED PERSON

Communicate with relative or friend

A

The law:

  • S.28A(a)
55
Q

RIGHT TO LEGAL REPRESENTATION

law & scope

A

1) The law:
- S.28A(2)(b)
2) Scope of right - Badrul Hisham Hashim v PP:

  • a two-tiered right.
  • S.28A: after an arrest is made;
  • S.255: when the person arrested is charged.
56
Q

RIGHT TO LEGAL REPRESENTATION

When does the right begin

A

1) The law - S.28(2)(b) & (6):

  • The right of a counsel begins from the moment of arrest;
  • But before any questioning of the accused by the police can take place.
  • Ref. Miranda v State of Arizona: Where interrogation is taken place without presence of attorney, the burden is cast on the prosecution to demonstrate that the accused knowingly & intelligently waived his right to have attorney present.

2) Application - Ooi Ah Phua v O-i-C CID Kedah / Perlis:

  • Right cannot be exercised immediately after the arrest;
  • The interest of the justice is as important as the interest of the arrested persons.
57
Q

RIGHT TO LEGAL REPRESENTATION

Whether S.28A(8) is ultra vires & in breach of Art. 5 -

A

Datuk Hasanah Abdul Hamid v SPRM & Anor:

  • Both sections do not envisage total denial of right to counsel but postponement of the right to avoid any impediment to the investigation.
  • S.28A(8) & (9) of the CPC also apply equally to any arrested person.
  • The provisions are not discriminatory & do not infringe art. 8(1) of the FC.
  • The subsections apply to all arrested persons and hence, are valid and good law.
58
Q

RIGHT TO LEGAL REPRESENTATION

After arrest

A

Mohamad Ezam bin Mohd Noor v Ketua Polis Negara:

  • Police must act promptly and make the investigation a priority without an unreasonable delay;
    This is so as to not deny the
59
Q

RIGHT TO LEGAL REPRESENTATION

Remand application stage

A

Saul Hamid v PP:

  • General rule: An arrested person has the right to be represented at remand proceedings;
  • Exception: Unless police can satisfy the Magistrates that to allow the suspect to be represented would result in undue interference with the course of investigation.
60
Q

RIGHT TO LEGAL REPRESENTATION

Witness in criminal cases

A

SPRM & Ors v Latheefa Koya & Anor:

  • A witness in criminal cases cannot claim a constitutional right to be represented by counsel.
  • Art. 5(2) only speaks of the right of a person unlawfully detained & it does not confer any constitutional right on the complainant to be represented by counsel during the recording of his statement as a witness.
61
Q

xx

A

xx

62
Q

RIGHTS OF AN ARRESTED PERSON

Remain silent

A

1) Proviso S.112(2):
2) S.37B DDA:
3) S.75(2) ISA:
4) S.30(3)(b) MACC Act:

63
Q

RIGHTS OF AN ARRESTED PERSON

Be produced before a Magistrate

A

1) The law:

  • Art. 5(4);
  • S.28;
  • S.117

2) Scope of S.28 - Zulkiflee bin SM Ulhaque:

  • A person shall not be arrested & detained without warrant for more than 24 hours w/o him being released either:
  • On bail; or
  • On his own cognizance; or
  • Being brought before a Magistrate for a further detention to assist police investigation.

3) Meaning of period of S.28(3) - Zulkiflee bin SM Ulhaque:

  • does not include first 24 hours;
  • purely the period ordered by Magistrate under S.117.

4) Period of remand permitted - Zulkiflee bin SM Ulhaque:

  • not exceeding 15 days excluding the first 24 hours;
  • but all the usual conditions for remand (i.e. necessity for investigation) must be fulfilled.

4) Meaning of unnecessary delay - Kuan Kwai Choi v Ak Zaidi Pg Metali:

  • HC found that there was unnecessary delay in bringing the plaintiff before the magistrate as no effort was made to take the P to magistrate at that time.
  • damages awarded for unlawful detention.

5) S.117 CPC & S.32 Police Act - Dato’ Sri Khalid Abu Bakar v N Indera a/p Nalathambi:
- S.32(1) of the Police Act 1967 (non-liability if acting under warrant) does not assist the defendants as the acts committed was not done in obedience of the remand warrant issued by the magistrate.

64
Q

RIGHTS OF AN ARRESTED PERSON

Be released on bail

A

1) The law:
- S.29 CPC
2) Scope of S.29 - Kwan Hung Cheong v Inspector Yusof Haji Osman:

  • S.29 is a general provision which emphasises that upon arrested by the police officer, the arrestee can only be released;
  • i.e. on his own bond; or
    a police officer not below the rank of Inspector.

3) Application - Dasthigeer Mohd Ismail v Kerajaan Malaysia:
- W/o reasonable belief that the accused may abscond, the person should be released on a police bond under S.29.
4) Bail for suspect in remand - Maja anak Kus v PP:

  • S.387(1) CPC does not override the provisions of section 117 CPC.
  • S.387 is only applicable if S.117 is not invoked.
    therefore, when a person is in remand, he is not entitled to bail.
65
Q

RIGHTS OF AN ARRESTED PERSON

Apply writ of habeas corpus

A

1) Requirements & scope of rights - Madjai Sanusi v Pengarah Imigresen, Johor:

  • Applicant must show that he was ILEGALLY or IMPROPERLY detained.
  • Habeas corpus will not issue if:
  • the accused is detained in custody under a warrant of remand lawfully passed;
  • the arrested person is facing an execution of a sentence passed by a court of law legally competent to do so;
  • In such a case, the remedy is appeal or revision and no habeas corpus can be issued.
  • Lawful order of remand may only be appealed or revised against.

2) When can be exercised - Re Detention of Leonard Teoh:
- Such right would only be exercisable where the alleged unlawful detention is still continuing.

66
Q

REMEDIES FOR UNLAWFUL ARREST

Overview

A

1) Civil claims for damages

2) Writ of habeas corpus

67
Q

REMEDIES FOR UNLAWFUL ARREST

Civil claims for damages

A

1) Scope of remedy - Tan Kay Teck & Anor v AG:

  • Ref. Dumbell v. Roberts:
    where a person has been wrongfully arrested and detained, it is in the public interest that sufficient damages should be awarded in order to give reality to the protection afforded by the law to personal freedom.
  • Ref. Walter v. Alltools:
    a false imprisonment does not merely affect a man’s liberty; it also affect his reputation.
  • Therefore, reasonable amount of damages could be awarded taking into account all circumstances.

2) Whether remand order can be challenge in civil claims for damages - Hassan bin Marsom & Ors v Mohd Hady bin Yaakop (FC, 2018)
- Any challenge to the unlawfulness of the remand order is not limited to an appeal or revision under the CPC but could still be pursued if specifically pleaded in a civil action.

68
Q

REMEDIES FOR UNLAWFUL ARREST

Application for writ of habeas corpus

A

1) The law:
- S.365 - 374
2) Requirements:
- Re Detention of Leonard Teoh:

Such right would only be exercisable where the alleged unlawful detention is still continuing.

  • Madjai Sanusi v Pengarah Imigresen, Johor:

Applicant must show that he was ILEGALLY or IMPROPERLY detained.

Criminal Procedure (25 decks)

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