1. Rights Under
Art. 5 (3) & (4)
The Rights of
an Arrested Person

2. Arrest
Shabaan & Ors v. Chong Fook Kam & Anor [1969] 1 LNS
170.
Lord Devlin :
"An arrest occurs when a police officer states in terms that he
is arresting or when he uses force to restrain the individual
concerned.
It occurs also when by words or conduct he makes it clear
that he will, if necessary, use force to prevent the
individual from going where he may want to go.
It does not occur when he stops an individual to make
inquiries."

3. ¨When one is under arrest, he is not a free
man who is in the lawful custody of a police
or other law enforcement officers.
¨Attempt to escape from or interfere with an
arrest may become an offence.

4. S. 15(1) of the Criminal Procedure Code
(a) In making an arrest the police officer or other
person making the same shall actually touch or
confine the body of the person to be arrested
unless there is a submission to the custody by
word or action.
(b) If such person forcibly resists the endeavour to
arrest him or attempts to evade the arrest such
officer or other person may use all means
necessary to effect the arrest

5. Power to Arrest
A. Ordinary Laws
1. The Criminal Procedure Code
¨ S 23 - Police or Penghulu.
¨ Section 27 - Arrest by private persons.
¨ Section 31 - Arrest by or in presence of Magistrate.
2. Immigration Act 1959/63 (REVISED - 1975)
¨ Section 35- Power to arrest person liable to removal.
Immigration officer
3. Road Transport Act 1987
¨ Section 112- Powers of arrest, stopping and detention.
A police officer or traffic warden

6. Arrest
Police Remand/Custody- Mgst.
Charge
Released on Bail or Remanded until Trial
Trial
Decision
¨Conviction - Imprisonment

7. Power to Arrest
B. Special Laws/Preventive Detention Laws
1. The Emergency (Public Order and Prevention of
Crime) Ordinance 1969
¨ Section 3.
2. INTERNAL SECURITY ACT 1960
¨ Section 73.
3. DANGEROUS DRUGS (SPECIAL PREVENTIVE
MEASURES) ACT 1985
¨ Section 3.

8. Arrest
Detained or Released
¨ISA-S. 8
¨EO-S. 4
¨DDA- S. 6

9. Article 5 (3)
‘Where a person is arrested he shall
be informed as soon as may be of the grounds
of his arrest and
shall be allowed to consult and
be defended by a legal practitioner of his
choice.’

10. Rights of an Arrested Person in Art 5(3)
Article 5 (3) contains three distinct rights
that are related namely:
1. The right to be informed of the grounds
of one's arrest.
2. The right to consult counsel.
3. The right to be defended by a legal
practitioner of one's choice.

11. Exception to the Rights in Art
5(3)
Exception to the three rights stated in
Article 5 (3) is mentioned in 5 (5).
‘ Clauses (3) and (4) do not apply to an
enemy alien.’

12. 5(3): The right to be informed of the
grounds of arrest
The arrested person may be informed
orally of the grounds of his arrest.
Re P.E. Long @ Jimmy [1976] 2 MLJ 133

13. 5(3): The right to be informed
‘Where a person is arrested he shall be
informed as soon as may be of the
grounds of his arrest.’
Abdul Rahman v Tan Jo Koh
[1968] 1 MLJ 205
cited
Christie v Leachinsky [1947] AC 573.
Immediately

14. 5(3): The right to be informed
Aminah v Superintendent of Prison,
Pengkalan Chepa, Kelantan [1968] 1
MLJ 92
cited
Tarapade v State of West Bengal [1959]
SCR 212
" ...the words 'as soon as may be' …
means as nearly as is reasonable in
the circumstances of the particular
case".

15. 5(3): The right to be informed
The rights stated in article 5 (3) should be applied
whenever a person is arrested under any law.
The Emergency (Public Order and Prevention of
Crime) Ordinance, 1969
IGP v Lee Kim Hoong [1979] 2 MLJ 291
KAM TECK SOON V TIMBALAN MENTERI
DALAM NEGERI MALAYSIA & ORS AND
OTHER APPEALS [2003] 1 MLJ 321

16. Existing Law
Assa Singh v MB of Johore
[1969] 2 MLJ 31

17. 5(3): The Right To Consult Counsel
‘ Where a person is arrested he shall…
as soon as may be …
allowed to consult …
a legal practitioner of his choice.’

18. 5(3): The Right To Consult Counsel
CRIMINAL PROCEDURE CODE
Section 28A (2) (b)
A police officer shall
before commencing any form of questioning or
recording of any statement from the person
arrested,
inform the person that he may communicate or
attempt to communicate and consult with a legal
practitioner of his choice.

19. 5(3): The Right To Consult Counsel
CRIMINAL PROCEDURE CODE
Section 28A(3)
Where the person arrested wishes to
communicate or attempt to communicate
with a legal practitioner of his choice, the
police officer shall, as soon as may be,
allow the arrested person to do so.

20. 5(3): The Right To Consult Counsel
Ramli bin Salleh [1973] 1 MLJ 54
Syed Agil Barakbah J.:
(1) The right of begins right from the day of his arrest even
though police investigation has not yet been completed.
(2) The right should be subject to certain legitimate
restrictions which necessarily arise in the course of police
investigation, the main object being be ensure a proper and
speedy trial in the Court of law.
(3) Such restrictions may relate to time and convenience of
both the police and the person seeking the interview and
should not be subject to any abuse by either party.

21. Ramli bin Salleh [1973] 1 MLJ 54
Held:
The action of the respondent in this case in
restricting the learned counsel's application to
interview his client on the expiry of the detention
period is unreasonable.
It should therefore be understood that the police
must not in any way delay or obstruct such
interviews on arbitrary or fanciful grounds with a
view to deprive the accused of his fundamental
right.

22. 5(3): The Right To Consult Counsel
Ooi Ah Phua [1975] 2 MLJ 198
Suffian LP
“ the right…begins from the moment of arrest
but…cannot be exercised immediately after
arrest.
A balance has to be struck between
the right of the arrested person to consult his
lawyer on the one hand and
on the other the duty of the police to protect the
public from wrong-doers by apprehending
them and collecting whatever evidence exists
against them.”

23. Ooi Ah Phua v Officer in Charge, Criminal
Investigations, Kedah/Perlis
[1975] 2 MLJ 198
The Federal Court held that
a delay of ten days
between arrest and access to counsel
was lawful.

24. Hashim bin Saud [1977] 2 MLJ 116
The appellant had been arrested on suspicion of
being involved in the theft of an electric generator.
After being questioned he was produced before a
magistrate and ordered to be detained under
section 117 of the CPC.
An application was made for a lawyer to visit the
appellant but this was not immediately granted.
He could only see the appellant on a subsequent date
when the investigations were expected to be
completed.

25. The appellant argued the refusal to consult his
counsel was a breach of his constitutional right
and rendered the order of the magistrate unlawful.
Held:
The onus of proving to the satisfaction of the court
that giving effect to the right to counsel would
impede police investigation or the administration
of justice falls on the police.
On the facts of this case the police had given good
and sufficient reasons why such right could only
be exercised after the period of police
investigation was completed.

26. 5(3): The Right To Consult Counsel
CRIMINAL PROCEDURE CODE
Section 28A (4)
Where the person arrested has requested for a legal
practitioner to be consulted
the police officer shall allow a reasonable time
(a) for the legal practitioner to be present to meet
the person arrested at his place of detention; and
(b) for the consultation to take place.

27. CRIMINAL PROCEDURE CODE. ACT 593
The consultation shall be within the sight of a police
officer and in circumstances, in so far as
practicable, where their communication will not be
over heard.
Section 28A (5)
The police officer shall provide reasonable facilities for
the communication and consultation under this
section and all such facilities provided shall be free
of charge.
Section 28A (7)

28. CRIMINAL PROCEDURE CODE. ACT 593
Section 28A(8) (a)
The requirements under subsections (5) and (7)
shall not apply where the police officer reasonably
believes that compliance with any of the
requirements is likely to result in
(i) an accomplice of the person arrested taking
steps to avoid apprehension; or
(ii) the concealment, fabrication or destruction of
evidence or the intimidation of a witness.

29. CRIMINAL PROCEDURE CODE. ACT 593
Section 28A(8) (b)
The requirements under subsections (5) and (7)
shall not apply
where the police officer reasonably believes that
compliance with any of the requirements is likely
to result in
having regard to the safety of other persons the
questioning or recording of any statement is so
urgent that it should not be delayed.

30. 5(3): The Right To Consult Counsel
The effect of unlawful denial of the right under article 5 (3).
Ooi Ah Phua
[1975] 2 MLJ 198
NASHARUDDIN BIN NASIR V KERAJAAN MALAYSIA
& ORS
[2002] 6 MLJ 65
Mohamad Ezam bin Mohd Noor v Ketua Polis Negara &
other appeals
[2002] 4 MLJ 449

31. 5(3): The Right to be Defended by a Legal
Practitioner of One’s Choice
Where a person is arrested
he shall be informed as soon as may be of the
grounds of his arrest and
shall be allowed to consult and be defended by
a legal practitioner of his choice.

32. Re. GG Ponnambalam [1969] 2
MLJ 263
It is argued that the article gave the accused
person the right to be defended by a legal
practitioner of his choice.
The learned CJ rejected the argument.
Until the person is admitted, no qualified person
is a legal practitioner under Art. 5.

33. D’Cruz v AG, Malaysia & Anor
[1971] 2 MLJ 130
The right given under Art. 5 cannot be read as
extending to any legal practitioner anywhere in the
world regardless whether or not he is qualified to
practise here.
The right given to the arrested person in the article
must be limited to the choice of legal practitioners
who are qualified to practise under our law.

34. LEGAL PROFESSION ACT 1976
Qualified Persons
• Section 10. Admission of advocates and solicitors.
• Section 11. Qualifications for admission.
• Section 18. Admission in special cases.
PART IIA - SPECIAL PROVISIONS RELATING TO
ADMISSION OF ADVOCATES AND SOLICITORS
Section 28A. Attorney General's power to issue Special
Admission Certificates.
Section 28B. Admission and enrolment as an advocate and
solicitor of a person issued with a Special Admission
Certificate.

35. CHERIE BOOTH QC V. ATTORNEY
GENERAL, MALAYSIA & ORS [2006] 4
CLJ 224
PEGUAM NEGARA & ORS v. GEOFFREY
ROBERTSON [2002] 2 CLJ 493

36. 5(3): Legal Practitioner of One’s Choice
Mohamed bin Abdullah v PP [1980] 2 MLJ 201
The question is whether the Court could proceed with
the trial in the absence of Counsel and if not whether
the trial was a nullity.
Held:
It is wrong to say that a litigant is entitled to be
represented by the Counsel of his choice.
The true statement is that he is entitled to be
represented by the Counsel of his choice if that
Counsel is willing and able to represent him.

37. Article 5(4)
Where a person is arrested and not released he shall
without unreasonable delay, and in any case within
twenty-four hours (excluding the time of any
necessary journey) be produced before a
magistrate and
shall not be further detained in custody without the
magistrate's authority.
In the case of an arrest for an offence which is triable
by a Syariah court, references in this Clause to a
magistrate shall be construed as including
references to a judge of a Syariah court.

38. Rights of an Arrested Person Art 5(4)
Clause (4) of article 5
-requires the detaining authority to produce the
arrested person before a magistrate, or as the
case may be a shariah court judge,
without unreasonable delay within 24 hours of
his arrest, and
-prohibits further detention of the accused
without the magistrate’s / shariah court judge’s
authority.

39. Exception to the Rights in Art
5(3) and Art 5(4)
Exception to the three rights stated in
Article 5 (3) is mentioned in 5 (5).
Exceptions to the rights stated in Article 5
(4) are stated in
paras 2 and 3 of the clause, and
(5) of the Article.

40. 5(4) : The right to be Produced Before a Magistrate
Aminah v Superintendent of Pudu Prison,
Pengkalan Chepa, Kelantan [1968] 1
MLJ 92
“Article 5 clearly meant to apply to arrests
under any law whatsoever in this
country”.
The Federal Court agreed to “read into” the
RRE Article 5 (3) and (4) as permitted
by article 162(6)

41. 5(4) : The right to be Produced Before a Magistrate
The position later changed after the clause
was amended.
Para 2 of (4) in Article 5.
Loh Kooi Choon v Govt of Malaysia [1977] 2
MLJ 187

42. 5(4) : The right to be Produced Before a Magistrate
Exception
Chong Kim Loy v The Menteri Dalam Negeri,
Malaysia [1989] 3 MLJ 121
He was arrested under S. 3 of the Dangerous Drugs (Special
Preventive Measures) Act 1965 and later detained under
the law.
It was argued that there had been a contravention of Article
5(4) of the Constitution as the applicant had not been
produced before a Magistrate within 24 hours after his
arrest and detention at the police station.

43. Held:
The DDA is a legislation made under article 149.
Legislation under Article 149 may restrict or be
inconsistent with the right conferred by Article
5(4) but any such restriction must be clear in the
legislation.
The powers spelt out s. 3(2) do make such restriction
manifestly clear and is therefore valid
notwithstanding that it is inconsistent with Article
5(4) of the Federal Constitution.