1. ARREST
Meaning of arrest Types of arrest Rights
With warrant Without warrant Arrestor Arrestee

2.  Art 5 of the Federal Constitution
“No person shall be deprived of his personal
liberty save in accordance with the law.”
- Arrest must be in accordance with law, otherwise
the suspected person will be deprived his personal
liberty

3. Importance of determining an arrest.
Former Section 113 of Criminal Procedure
Code/Sect 37A(1)(b)DDA
 Any statement made after arrest can be
used against the arrested person, provided
that the police officer who arrests him
gave him a cautioned statement

4. What is Arrest?
 Inwoods [1973] 2 AER 645
- Whether a person is under arrest or not
depends on all the circumstances of the
case.
- Law places an obligation to make it plain
to the suspect that he is no longer a free
man
-(duty to inform)

5.  R v Brosch [1988] Crim. L.R 743
- Arrest is constituted by the physical
touching or seizure of the suspect’s
body with a view to his detention.”
- Intention to arrest is the essential element
to constitute an arrest.

6.  To constitute a lawful arrest, the arrested person must at the time
of the arrest or as soon as practicable after the arrest be informed
that he is under arrest and the ground of his arrest.
[Inwoods and Brosch]

7. Section 15 of Criminal Procedure
Code-
Arrest, how made
Section 15(1)
Arrest can happen by :-
1) Actual Touching
2) Confining the body unless
3) Submitting to the custody by word or action
(surrender)

8. Shaaban v. Chong Fook Kam & Anor
[1969] 2 MLJ 219
 Privy Council decision
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 person. 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 enquiries.
Arrest can happen in 3 situations:
1) Arrest happens when the arrestor states in term. E.g: “Stop, you are under
arrest”.
2) Use of force.
3) He did not use force but it’s clear from his words or action that he will use
force to prevent the person from going away.

9. Observation on Shaaban
 Failure to refer to s.15 CPC when putting up the
3 propositions:
- Proposition a and c inconsistence with s15 CPC

10. Jayaraman & Ors v PP [1982] 2
MLJ 306 FC Facts :
A series of attacks had happened at a Hindu
temple. One night, 2 men reported to the police
that 8 men attacked the temple. They managed to
detain some men. and when the police arrived,
one Corp. Ghani told the 8 appellants “not to
leave the place”
Later ASP Jamaluddin came and these men were
questioned. They gave very incriminating oral
replies to the questions.
Issue : Was there an arrest before the
questionings by ASP Jamaluddin when one
Koperal Ghani told them “Don’t go anywhere”.

11. Suffian LP: referred to s.15 CPC and Shaaban
Held : i. It was not obvious that the constable wanted to
arrest.[failure to state in term] The statement given by
Koperal Ghani does not constitute an arrest.
ii. No force use to restrain nor
iii. Made clear by words or conduct that he would
use force if necessary.
Criticism : There was an arrest because the liberty of these
people were restrained. Looking at the circumstances
surrounding the case, there had been attacks and 4
murders had been committed, thus it would be rational not
to move when you are told so by the police.


12. Opinion of some Judges
 Arrest can be divided into two :-
1) Actual arrest
2) Constructive arrest- when liberty is restrained
[Conduct /words]

13. Actual
 PP v. Johari bin Abdul Kadir [1987] 2 CLJ 66
Held : It was arrest because if the man tries to escape from the bus,
the police would have stopped him.
 PP v. Tan Seow Chuan
Held : Showing the police badge amounts to arrest.

14. PP v. Roseyatimah bte Neza & Anor [1989] 1
MLJ 360
 Facts : The first accused was asked to whom the dry leaves (suspected to be
cannabis) belonged, to which she replied that they belonged to her boyfriend,
the second accused.
Held ( Peh Swee Chin J) : The reply was inadmissible as arrest had been taken
place and the accused was not administered caution pursuant to section 37A of
the Dangerous Drugs Act 1952.
There was arrest as she was in the state of being watched or guarded. Had she
tried to run away, she would have been stopped.
A person was under arrest if ‘from circumstances it can be implied that personal
liberty has been restrained”
His Lordship had endorsed the constructive arrest concept in this case.

15. Constructive
 PP v. Salleh bin Saad [1983] 2 MLJ 164
Held : It was constructive arrest when the accused answered “That belongs to me”
when the police found something incriminating in his house and asked him who
owns it.
 PP v. Lim Kin Ann [1988] 1 MLJ 401
Held : This was constructive arrest when the accused said
“the briefcase belongs to me” when the police found
cannabis in a briefcase.
 PP v. Tan Chye Joo & Anor [1989] 2 MLJ 253
Held : This was a constructive arrest when the police found cannabis in a biscuit
tin after a search.

16. Solution
 In PP v. Kang Ho Soh [1991] 3 CLJ 2914, Mahadev Shanker J had said that “ I
have not found the distinction between actual and constructive arrest helpful”.
 Whether a person was under actual arrest at a given moment of time is a
question of fact, to be decided according to the circumstances of each case.
This judgment was followed by Suriyadi J in PP v. Shee Chin Wah [1998] 5 MLJ
429
Writer, Prof Mimi Kamariah also opined that there is no difference between actual
and constructive arrest. As long as there is arrest, caution is needed.

17. INWOOD Case ( English position)
 Court of Appeal : It all depends on the circumstances of any particular case,
whether in fact, it has been showed that a man has been arrested. The court
considers it unwise to say that there should be any particular formula to be
followed. No formula will suit every case and it may well be, that different
procedures might have to be followed with different persons depending on
certain variables such as age, ethnic origin, knowledge of English, intellectual
quality and physical/ mental abilities. In other words, there is no magical
formula. Only the obligation to make it clear to the suspect by what he said and
done that he is no longer a free man.

18. TYPES OF ARRESTABLE OFFENCE
Types of Arrest- Section 2 of Criminal Procedure Code
i. Seizable offence : police officer may arrest without
warrant.
ii. Non-seizable offence : arrest with warrant.
iii. Offences against law other than Penal Code, the last part of first
schedule.

19.  Seizable: offence under the Penal Code: punishable with
imprisonment of 3 years and above
 Eg Theft under s.379PC

20.  Non seizable: may not arrest without warrant
 Offence under the PC which are punishable with imprisonment less
than 3 years

21.  Offence outside the Penal Code:
 If imprisonment is less than 3 years or a fine: arrest shall be with
warrant UNLESS any written law provides otherwise

22. ARREST WITHOUT WARRANT BY THE POLICE
[Seizable offence]
Section 23 (1) (a) of CPC :
Any police officer or penghulu may without a warrant arrest any
person who has been concerned in any offence committed anywhere
in Malaysia which is seizable offence under any law in force in that
part of Malaysia in which it was committed or against whom a
reasonable complaint has been made or credible information has
been received or a reasonable suspicion exists of his having so
concerned.

23. S23(1)(a) CPC :-provides
- that where any seizable offence has been committed anywhere in
Malaysia, any police officer or penghulu may arrest without warrant
any person concerned in any such offence:-
 a) against whom a reasonable complaint has been made
 b) against whom a credible information has been received
 c) against whom a reasonable suspicious exists

24. Reasonable Complaint
Ramly & Ors v. Jaafar –
“It was not possible to lay down any abstract rule to determine
what is reasonable suspicion and complaint but depends, by large
on facts and circumstances of each particular case. In any event,
it must be founded on some tangible legal evidence within the
cognizance of the police officer to justify a reasonable person in
concluding that the suspect is guilty of a seizable crime.”

25. Reasonable Complaint
 Test: objective test as laid down by House of Lords in Tims v John
Lewis [1951] 2 KB 459.
 Followed in Tan Kay Teck & Anor v PP [1957] MLJ 237

26. Tan Kay Teck v. A.G [1957] MLJ 237
Whyatt CJ : “ The question whether a complaint was reasonable or not
is one which objectively the court has to decide on the evidence
before it…The court must first ascertain what facts were known to
the arresting officer and then decide whether these facts amounted
to a reasonable complaint that a person to be arrested was
concerned in the commission of a seizable offence.”

27. Facts :
In this case, an ASP Jones had arrested without warrant Mr Tan and
his wife at night, saying that he received a reasonable complaint that
Mr Tan had committed an offence under Section 347 of Penal Code.
Issue: Was the complaint reasonable?
Mr Tan was a contractor. The person who lodged the complaint was
Ng Yow Jik, a sub contractor of Mr Tan.

28. Mr Tan was supposed to pay Mr Ng but he never did. Mr Ng went to
Mr Tan’s house and he was brought to a small room where there
were two other men and the contractor’s wife who then locked the
door of the room. A discussion ensued whereby Ng was asked by Tan
if he had received the money with the other persons around him in a
menacing manner. Tan was alleged to have banged the table in
asking Ng to speak up when he said he had yet received the money.
Ng had lodged the report because he feared that the discussion
about the debt was secretly taped and it might jeopardized his
chances of winning a civil suit.

29. Held : The arrest made was unlawful because the complaint was
unreasonable. The report made by Ng did not disclose an offence of
confining a person for the purpose of extorting property under
Section 347 of Penal Code but his main concern was with the civil
law.

30. Credible information
 Means information that is reliable or can be believed.
 Bare assertion without anything more cannot amount to credible
information.
Hashim bin Daud v. Yahya bin Hashim & Anor [1977] 1 MLJ 259
Facts: There have been information given to the police that the accused
were involved in electricity generator and cement mixture theft.
Held : The information must be credible before arrest can be made. In
this case, it was credible because the informant was credible and in
the past, he had given credible information.

31. Saul Hamid bin Pakir Mohamad v. Inspector Abdul
Fatah bin Abdul Rahman & Anor [1999] 6 MLJ 800
Issue : Whether the police had the authority to arrest the plaintiff.
Facts : The plaintiff was a technician attached to the Penang Botanical Gardens
while the defendant was a police officer who had received information that he
plaintiff had been concerned with the commission of two seizable offences and
had arrested the plaintiff in the course of his investigations. Although the
plaintiff was remanded and charged, he was subsequently acquitted from
robbery and assault.
Zaleha Zahari J : There was a reasonable suspicion to arrest the plaintiff. The
arrest was therefore valid.

32. Reasonable suspicious
Mahmood v. Government of Malaysia
[1974] 1 MLJ 103
Facts : The plaintiff was at a lakeside at 2 o’clock in the morning. The police was
making rounds at the lakeside. He reached an area which was notorious for
rape and robbery. He heard a woman’s voice crying for help. The police went to
the place and saw two men, including the plaintiff running away. He asked them
to stop but they ran. He fired a warning shot, but still they kept running. He shot
again and one of them fell.
Held : It was a lawful arrest based on a reasonable suspicion.
Whether there is a reasonable suspicion on a particular case depends on the
facts and for the Court to decide

33. Tan Eng Hoe v. AG [1933] MLJ 151
- The applicant fitted the description of an offender.
- Facts :
- After investigation, Mr Tan was found not to be the criminal. He was arrested
because he looked physically similar to the perpetrator. He sued for alleged
wrongful arrest.
Held : Any reasonable person who saw Mr Tan would think that he is the
perpetrator. There were facts which creates a reasonable suspicion in the
mind of a reasonable man and the circumstances were such that any
reasonable person acting without passion or prejudice would have fairly
suspected the petitioner of being the person who did it. The arrest was
reasonable.

34. Section 25 of CPC
A person arrested by Penghulu without warrant shall without
unnecessary delay hand over the person so arrested to the
nearest police officer or in the absence of police officer, take such
person to the nearest police station and the police will re arrest
every person so arrested.
What Penghulu has to do after arrest

35.  In re-arresting such person, the police officer has to examine
whether the offence is seizable or non seizable and then re-arrest
according to s.23 or s.24 CPC

36. ARREST BY PRIVATE PERSON
Section 27 of CPC provides private person may arrest :
(i) Any person in his view , commits a non bailable and seizable
offence or who has been proclaimed under Section 44 CPC
(person who has absconded)
(ii) Must without unnecessary delay hand over such person so
arrested to the nearest police officer/station.

37. How to arrest by private person?
Elements of S.27 CPC
Section 27- “in his view” has 2 interpretations
i) in his sight
ii) in his opinion

38. In his sight
 Strict interpretation was held by Durga Singh [1963] 1 Gr LJ 827
and Kartar Singh [1956] AIR Punj 122
- in his presence
- followed in Metro (Golden Mile) Pte Ltd v Paul Chua Wah Lian
(unreported) : article in [1981] 23 MLJ 182

39. Malaysia position: Liberal interpretation
PP v. Sam Hong Choy [1996] 1 CLJ 514
Facts : PW 9, the key witness of the prosecution said that upon entering
into the building, he heard gun shots and woman screaming “Tolong
kejar perompak”. Upon hearing the shout, 2 men ran past him with
plastic bag and a gun. He chased them and managed to grab one guy.
The other escapes in a taxi.
Issue: Was the arrest lawful because alleged offence not done in his
view?

40. Held : The court referred to 2 Indian cases ie Nazir v. Rex and Sheo
Balak Dusadh v. PP.
In Nazir’s case, the word “in his view” was given liberal approach by
Bird Basni Prasad. He said: “in his view” must be given liberal
interpretation. They meant not only his sight, but also in his
presence. A narrow interpretation of these words will greatly defeat
the object of this section. “Supposed in a winter, a person was
sleeping inside his room and there’s no light in it. A thief makes a
hole and tries to enter the room. He cannot see the thief, but on
hearing the sound, he becomes aware of the fact that a thief is
breaking the wall.

41. Although he cannot see the thief, he can arrest him. It would be
absurd to hold otherwise. Again supposed a blind woman was
sleeping, and a thief wants to forcibly remove an ornament from her
person. Although she cannot see him, it is reasonable for her to
arrest him”
The act of running and act of robbery itself constitutes a series of
action. Since he had seen the man running, he had seen an act which
constitutes the action of robbery- Harish Chandra J, in Sheo Balak
Dusandh.

42. “Without unnecessary delay”
Once a private person effects an arrest without warrant, he will have to make
over the person to the police officer or police station without unnecessary
delay.
Tims v John Lewis & Co Ltd [1952] 1 All ER 1203
Held : The fact that the mother and daughter were made to wait for nearly an hour
until the chief store detective and managing director of the shop were sent for
and heard the account to obtain their authority to prosecute before they were
taken to the police station was held not to constitute an ‘unreasonable delay’,
the law being that an arrested person should be taken by the private person
before a Justice of Peace or a police officer as soon as was reasonably
possible and not necessary forthwith.

43. ARREST WITH WARRANT
Section 30 – Justice of Peace and Magistrate can arrest within the local
limits
Section 31- Arrest by Magistrate
The warrant must signed and sealed. It can be executed anywhere in Malaysia. If a
warrant is to be executed in Sabah or Sarawak, it must be endorsed first by
Magistrate in Sabah/ Sarawak.
This is by virtue of Summonses and Warrants (Special Provisions) Act 1965.
It can also be enforced in Singapore and Brunei, but must also be endorsed by
Magistrate.
Once a warrant is issued, it will be not enforceable if:-
1) It is cancelled by the court which issued it
2) It has been executed and the person was arrested.

44. Any police can arrest. If they want to arrest, they must specifically state the
name of the person they want to arrest in the warrant.
When issuing a warrant, the court may make in its endorsement or footnote of
the warrant if the person is willing to produce a bond or surety for his
attendance in court at a specified time. The officer to whom the warrant is
directed, shall take such security and release such person from custody.

45. Rights Relating
To Arrest
Arrestor Arrestee
To use force To conduct
investigation
To apply for
Remand order
Section 15(2)
Section 15(3)
Section 19(1)
To bail (section 87& 89)
To remain silent and have
Access to legal rep
To have a lawyer
To be informed on the grounds
of arrest
To be brought before
Magistrate without delay
Not to be detained for more than
24 hours without magistrate’s
approval
To remedies of unlawful arrest
Habeas corpus and civil claim
To be lawfully arrested

46. RIGHTS RELATING TO ARREST
1. Rights To Use Force ( For both arrestor and arrestee)
Section 15(3) of CPC- Cannot cause death of a person who is not accused of an offence punishable
with death or with imprisonment for life.
Section 19(1) – not subject to more restraint than necessary to prevent escape
Issue of using handcuffs, because “no man in guilty until proven guilty”.
Should we handcuff?
Yaakub bin Ahmad v. PP [1975] 2 MLJ 223
Gill CJ : As an accused person is presumed innocent until he is proved guilty, it is not the normal
practice to put any restrain on him when he appear before a court to be tried for a
criminal offence. Some sort of restrain, however may become necessary while the accused
is violent or has committed a crime of violence or may

47. or may have attempted to escape. In the present case, the learned DPP had
applied the permission from the court to handcuff the accused during the trial
as he had made several attempts to escape.
PP v. Wee Swee Siang [1948] MLJ 114
Callow J : The complain by Mr. Salt that the accused was brought to the court
below in manacles. An accused person is innocent until he is proven 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 escape. As to whether violence
or escape was anticipated in this case, I do not know. I hope those responsible
for the custody of the accused persons will bear this observation in mind and
refrain from the use of handcuffs on unconvicted person unless essential.

48. These 2 judgments are reflected in the Chief Justice Circular dated 24
February 1987.
The principle was adopted in Ramanathan s/o Chelliah v. PP [1996] 2 MLJ 538
Shaik Daud JCA: In the final analysis, it is in the sole discretion of the presiding
officer to consider whether it is essential to have the accused person
handcuffed be it during the entire trial or at the arrangement if and when the
application is made by the prosecution.
Needless to say, such discretion must be exercised judiciously and not merely
because the prosecution wants it to be…In the present appeal involving Mr
Ramanathan, we could not find anywhere that an application was made by the
learned DPP nor we could find any credible material put before the court. We
are unanimously of the view that based on the alleged charges faced by the
appellant, it can be hardly justified for him to be handcuffed…It is therefore,
timely to remind lower courts to bear these observations in mind when
exercising their discretion in such situations.

49. See Kah Loon v. PP [1881] SSLR 101
The police was trying to effect an arrest with warrant. He had accidentally left the
warrant at the police station.
Held: If there is an unlawful arrest, The arrestee can use force to prevent it.
PP v. Kok Khee [1963] MLJ 362
Offences: 1) Hawking vegetables without license.
2) Using criminal force on a police constable in the execution of his duty.
Police did not give grounds for arrest. Confiscated the dacing and accused
assulted the officer by hitting the dacing on the police constable.
Can he use force when arrested?
Ong J : The offender was justified in putting up a struggle since he was resisting an
illegal arrest or unjustifiable use of force towards him.

50. ii. Detention for 24 hours
 Art 5(4) FC. The person arrested shall without unreasonable delay be produced
before a Magistrate within 24 hrs.
 Section 28 of CPC- How a person is to be dealt with and detention for more
than 24 hours.
 Section 54(1)(b) of Interpretation Act:
- computation of 24 hours
- if last day of the period includes excluded day, the period shall be included the
following day which is not included.
- it’s not applicable for holidays within 6 days
- Shaaban & Anor v. PP
The period of detention was 24 hours & 35 minutes.
Held : The journey was long because it was made in Bukit Tinggi.

51. Section 117 of Criminal Procedure Code : Remand
Order
When investigation cannot be completed within 24 hrs.
1- When any person is arrested and detained in custody.
2- Investigations cannot be completed within 24 hours.
3- The are grounds to show that the accusation was well-founded.
4- Police has to transmit an investigation diary to the Magistrate.
Section 119- diary of proceedings in investigation
The diaries are very crucial, the magistrate must have a copy to scrutinize the
development of the police investigations.

52. Re The Detention of Sivarasa & Ors [1996] 3 MLJ 611
- diary showed the movement of the accused not the
progress of the investigations.
Syed Ahmad Aidid J : As a matter of law, not only must a diary be in the forms
specified by section 119 of the CPC but it must also be replete with grounds
indicating that the information against the accused is well founded. It is
incumbent to the police to report the PP on investigation. Anything short of that
again shall not be acceptable as otherwise the police will be on frolic of their
own and citizens and subjects can be in grave danger of losing their liberty if
not their limb. The court must always be vigilant to guard against the abuse of
powers by any and every activity just so that our nation continues to be
respected for justice and fairplay.

53. PDRM v. Keong Mei Cheng Audrey [1997] 3 MLJ 477
see also Keong Mei Cheng Audrey v PDRM [1994] 3 MLJ 296
Shaik Daud CJA:
Section 117 is mandatory. Investigation diaries must be given to court. Apart
from the issue of the legality of the arrest, we think that the counsel for the
Respondent is on a firmer ground when he raises the issue as provision of
section 117 of CPC had been complied with. Section 117 provides that the police
officer making the investigation shall forthwith submit to the magistrate a
copy of investigation diary hereinafter prescribed relating to the case and shall
at the same time produce the accused to the Magistrate. Section 117 makes it
mandatory for the police officer seeking to detention of person to produce a
copy of such diary, failing which the Magistrate ought not to entertain the
application.

54. Re Detention of Leonard Teoh Hooi Leong
[1998] 1 MLJ 757
In this case, investigation diary was produced, plus a letter from the
investigating officer with reasons why they should detain the accused. The
diary contained contemporaneous detail on what the police had done so far.
Held: The magistrate was right when issuing remand.

55. 3) Right to Be Informed on the Grounds of Arrest: s.28A (1) CPC
Christie & Anor v. Leachinsky
[1947] 1 All ER 567
Viscount Simon: He proposes 5 propositions:-
1) If a policeman arrests without warrant on reasonable suspicion of felony or
of other crime of a sort which does not require a warrant, he must in
ordinary circumstances informed the person arrested on the true grounds
of arrest. He is not entitled to keep the reason for himself or to give a
reason which is not a true reason. In other words,a citizen is entitled to
know on what charge or on suspicion of what crime he is being seized.
2) If the citizen is not so informed but is nevertheless seized, the policeman is
liable for false imprisonment.
3) The requirement that the person should be informed of the reason why he is
seized naturally does not exist if the circumstances are such that he must
know the general nature of the alleged offence for which he is detained.

56. 4) This right does not mean that technical or precise language need to be used.
The matter is a matter of substance and turns on the elementary proposition
that a person is prima facie entitled to his freedom if he knows in substance
the reason why these restraints should be imposed.
5) The arrestee cannot complain that he has not been supplied with the above
information as and when he should be if he himself produces the situation
which makes it practically impossible to inform him.
Limitation: - there is no need to inform if the nature of the crime is obvious.
- cannot demand the information in precise and technical language.
- if you yourself makes it hard for you to know, you can’t claim that you
have not been informed.

57.  Malaysian case adopted this principle in Abdul Rahman v. Tan Jo Koh
[1968] 1 MLJ 205
“ Neither arrest nor detention can properly be carried out without the
accused person being told the offence for which he is arrested.”

58. 3) Right To Have a Lawyer - Right to have access to
counsel
- Right to legal
representation
Right 1- Not yet represented, just consulting a lawyer.
Article 5(3) of Federal Constitution- right to be consulted and defended by legal practitioner of his
choice.
Right 2- representation during remand proceedings
Ooi Ah Phua v. Officer In charge of Criminal Investigation [1975] 2 MLJ 198
Suffian LP: The right to have a lawyer is there once he is arrested. However, the right is not
immediately available. Therefore, balance has to be made between the rights of arrested
person to have a lawyer and the duty of the police officer to ensure that the public is
protected.
Saul Hamid v. PP [1987] 2 MLJ 736
Edgar Joseph J : Arrested person has right to be represented by a practitioner during remand
proceeding before a Magistrate under section 117.

59. .
 The police can discharge the onus of satisfying the Magistrate that
to allow him to exercise that right would allow result in undue
interference with the course of investigation
Right 3- Can have a lawyer of your choice if the lawyer is able and
willing.
Case : Sim Kee Guan v. PP [1988] 2 MLJ 382

60.  Right to remedies for wrongful arrest and detention
1. Habeas Corpus
2. right to initiate civil action for damages
5. search-mind map.ppt