JAYARAMAN & ORS V PUBLIC PROSECUTOR [1982] 2 MLJ 306 WHAT IS THE DIFFERENCE BETWEEN A CONSTRUCTIVE ARREST AND

ACTUAL ARREST? DO YOU THINK THE DISTINCTION REALLY MATTER?

Presented by: Nur Rabiatuladawiah bt. Abdul Rahman (020791) LL.B VII Faculty of Law & International Relation

Jayaraman s case
 Facts: 2 Indians reported an attack on a Hindu

temple. Corporal Ghani went to the temple and saw 8 applicants at the scene of the crime. He told them not to leave place. Later ASP Jamal arrived and questioned the applicants.  Issue: Whether there was an arrest when the corporal asks them not to leave?  Held: the corporal did not state in terms that he was arresting the applicants or use force to restrain them, nor did he makes clear by words that he would, if necessary use force to prevent the applicants from going where they might have wanted to go.

Definition of Arrest
 Section 15 of CPC:

(a) actually touching the body of the person sought to be arrested; or (b) actually confining the body of the person sought to be arrested; or (c) where the person sought to be arrested submits to custody by words or action.

 Halsbury s Laws of England

(i) An arrest consists in the seizure or touching of a person s body with a view to his restraint. (ii) Words may amount to an arrest if they are calculated to bring, and do bring, to a person s notice that he is under compulsion and he thereafter submits to the compulsion.

 3 propositions in Shaaban s case:

(i) states in terms that he is arresting; or (ii) uses force to restrain the person sought to be arrested; or (iii) 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.

Actual Arrest v Constructive Arrest

 Actual arrest: there must be actual touching

of the body or confining of the body also known as physical arrest.

 Constructive arrest: by mere words or

conduct without touching of the body provided that the person must submit to the custody of the police officer by words or conduct.

Does distinction really matter?

 Before amendment to sec.113 of CPC  Malaysian courts have taken a dual stand on

the meaning of the word arrest used in relation to cautioned statements that are: (a) Actual arrest is required before caution is to be administered; or (b) Constructive arrest is sufficient before caution is to be administered.

(a) Where actual arrest required before caution is administered

 The distinction was useful in that it allowed the

courts, in situations where clearly a person had submitted to custody but where the facts of the case did not warrant the inference of an arrest, to hold that the law required actual and not constructive arrest.

 PP v Salleh bin Saad [1983] 2 MLJ 164

judge coined an expression of constructive arrest which was not an arrest at all but a precursor to arrest, which had to be actual to become an arrest.  The words after arrest in proviso (b) to section 37A of the Dangerous Drugs Act 1952 means actual arrest .
 The

 PP v Lim Kin Ann [1988] 1 MLJ 401  Vohrah J restored some semblance of 'law and order' when he reminded counsel of the police duty to make inquiries during their investigation and the difference between 'custody' and 'arrest' when he held that the accused who was being asked questions during a search of occupied premises was not under arrest.  PP v Tan Chye Joo & Anor [1989] 2 MLJ 223  Held: the accused was arrested only after discovery of the drugs in the biscuit tin. Hence, the statement, ubat China was admissible. Although the accused was not free to go during the search, it did not mean that the accused was arrested.

 In the cases of PP v Lim Kin Ann and PP v Tan

Chye Joo:  it shows that there was no arrest had taken place at the material time when the question was posed to the accused, and when the accused gave the impugned answer without being cautioned. It must be noted that in those cases, the impugned statements were made prior to the recovery of the incriminating items.

(b) Where constructive arrest is sufficient before caution is administered

 PP vTan Seow Chuan [1985] 1 MLJ 318  Held: the accused was under arrest as soon as the

police officer showed his authority card and the accused was guarded by a corporal although there were no handcuffs or words of arrest.
 PP v Johari bin Abd Kadir [1987] 2 CLJ 66  Held: the accused was under arrest when he was

taken from the bus to the police station where cannabis was found in a bag opened by the accused.

 PP v Rosyatimah & Anor [1989] 1 MLJ 363  Held: the 1st accused was under arrest when she

made the statement that the bag belonged to the 2nd accused after the police found the cannabis in the bag.
 PP v Kang Ho Soh [1992] 1 MLJ 360  Held: whenever a person is stopped by the

police as a result of prior information, it would constitute an arrest. However, it is not an arrest if it is just general inquiry.

 Lim Hock Boon v Public Prosecutor [2007] 1

MLJ 46  Held: It is clear from the evidence that the appellant was under arrest the moment the police officer turned off the engine and took possession of the keys. The appellant was under arrest when he made the statements in question.

 Based on the cases referred to whereby constructive

arrest is sufficient for caution to be administered, there are several facts that has been considered by the courts that are: (i) the police officer acting on prior information. (ii) the questions were asked and answers given before and after the discovery of the drugs.
 These 2 facts above gave the presumption that the

police officer will have the reasonable grounds of suspicion that the person has committed an offence at that time.

After New Section of 113 of CPC

 The new s. 113 CPC, which has replaced the old one,

under which it was incumbent for the arresting police officer to inform the suspect of his right to remain silent and not to answer any questions (the Caution).  The new section makes no mention of the 'right of silence' nor of the duty of the officer to inform the suspect of it. It follows that police are no longer so informing suspects of this right; the only consolation, if consolation it is, to the suspect is that any statement made by him to the officer is also inadmissible except in certain circumstances.

My Comment:
 Before amendment of Sec.113 of CPC  The distinction was useful in order to

determine whether there was an arrest or not for caution to be administered.  However, in the case of PP v Kang Ho Soh, Shankar J stated that: The distinction is unhelpful. As long as there was an arrest, the cautioned statement is required to be given.

 Shankar J also stated that:  But whether in a particular case 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
 The distinction is not so important but it is

useful in order for the court to determine when the caution provided in sec.113 should be given in actual arrest and constructive arrest.

 Now, after amendment of Sec.113 of CPC  The distinction was unhelpful and not

important at all as there is no need for caution to be given to the arrestee to make the statement made admissible before the court.  It is because all statement made by the accused before or after arrest will not be admissible at all in the court except in certain circumstances.

Comment for Jayaraman s case

 Disagree  There should be an arrest  Reason:

1) when the police officer acting on prior information had asked the applicants not to leave the place, it will constitute an arrest. 2) the questions asked by the ASP cannot be considered as general inquiry because it is on prior information.