ARREST

INTRODUCTION
Arrest is one of initial steps in the criminal process
Article 5(1) of the Federal Constitution States that
no person is to be deprived of his personal liberty
save in accordance with law.
Therefore any arrest must be conducted in
accordance to the legal provision
Arrest my be challenged as being unlawful for lack of
justification or due to excessive use of force
 why it is important to determine whether there is
an arrest or not?
Certain rights of the suspect depends upon the finding of an
arrest
Caution must be given before any statement made by the
suspect after the arrest has taken place, before it can be
admitted as evidence.
However, by virtue of amendment to section 113
CPC(which came into force in 2007), no statement of an
accused will be admissible when made to a police officer,
whether before or after arrest.
 DEFINITION

Arrest involves the restraint of a person liberty of

movement and is usually done in order to oblige the
person to be obedient to the law.
Halsbury's Law of England; arrest consist of the
seizure or touching of a persons body with a view to
his restraint
words may, however, 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 thereafter submit to that
compulsion.
 How arrest may be effected?

Section 15 CPC; set out modes by which arrest may be effected, namely;
A- by actually touching the body of the person to be arrested;
B-by actually confining the body of the person to be arrested;
C-where there is submission to the custody, by word or action on the part of
the person to be arrested.

SHAABAN & ORS V CHONG FOOK KAM & ANOR[1969]2 MLJ

219
Lord Devlin says that an arrest occurs;
i-when a police officer states in the terms that he is arresting; or
ii-when he uses force to restraint the individual person
iii-it occurs also when by words or conduct and he makes it clear that he
will if necessary use force to prevent the individual from going where he
want to go. It does occur when he stops an individual to make the inquiries.
 PP V JAYARAMAN (1982) 2 MLJ 306

The Federal Court has accepted the law as set out in

Shaabans case-that an arrest can take place by words alone
as well as by conduct
Held; being in a state of guarded and restrain did not
amount to arrest
Facts; there was an attack on the temple at Kerling,
whereby 4 people were killed. Corporal Ghani went to the
temple. On arrival, he told the 8 suspects not to leave the
temple.
Later on, ASP Jamaluddin arrived and proceeded to
question them orally.
 PP V JAYARAMAN (1982) 2 MLJ 306

The admissibility of their replies to the ASP became an

issue
The counsel argued that they have been arrested when the
corporal told them not to leave the temple
Since they have not been cautioned before they gave their
replies, their statement could not be admitted as evidence
Suffian LP; on the facts herein it cannot be said that the
applicants had been arrested by the corporal when he told
them to wait and not leave the temple, for he had merely
stopped them to make enquiries into the attack on the
temple
 Constructive arrest & actual arrest

Some judges have distinguished between constructive arrest and actual

arrest. The former neither amounting to a formal arrest nor requiring a
caution.
However such a distinction has led to a number of inconsistent
decisions
As a result, the court later on adopted an approach that each case is
dependant on its fact to determine whether there is an arrest or not

PP v. Johari Abd Kadir ( 1 987) l 2 CLI 66

Held; there was a constructive arrest and there is an arrest at the time
the accused made a statement because he would have been restrained
had he attempted to flee.
 PP v. Tan Sew Chuon (l985) 1 MLJ 318
Held; showing of the police badge does not amount to an arrest or
constructive arrest.

PP v Salleh bin Saad (l983) 2 MLJ 164

Held; by the court that, the accused admission were sought to be
admitted. Since there was no actual arrest a caution need to be
administered and the admissions were held to be admissible.

pp v. Lim Kin Ann ( 1988) MLJ 401 .

Held: KC Vohrah J agreed with Salleh Bin Saad 's case that after his
arrests means after actual arrest. According to his Lordship section 15 of
CPC merely explains how an arrest is to be affected and that custody should
not be equated with arrest.
 PP v. Tan Chye Joo & A nor (1989) 2 MLJ 253
Held ; since no caution was administered the statement should not be
admitted.

rosyatimah bte Neza & A nor (1 989) l M 360 It was held by

the court that the question of whether a person is under arrest or not
will depends on the facts of each case.

PP v. Kong Ho Soh ( l 992) 1 MLJ 360.

It was held by Shankar J. that there is no distinction between
constructive arrest and legal arrest. Each of the decisions is based on
the Facts of each particular case and conclusions of facts are not to be
treated as law.
 TYPES OF ARREST

i-Arrest with warrant

ii- Arrest without warrant

It is important to know the distinction between;

a-seizable and non- seizable case
b-summon case and warrant case
 The definition is provided under section 2 of CPC
seizable offence: an offence in which police officer may ordinarily arrest
without warrant
refer to the third column of the first Schedule.
Non-seizable offence; an offence in which a police officer may not
ordinarily arrest without warrant according to the third column of the
First Schedule
Warrant case; a case relating to an offence punishable with death or
with imprisonment for a term exceeding 6 months
Summon case; a case relating to an offence ad not being a warrant
case
 KARPAL SINGH V PP (1986) 2 MLJ 319
-The accused was charged with an offence under section 27 (5) (a) of
the Police Act l 967 which at that time was punishable with a maximum
of six months' imprisonment.
-A warrant of arrest was obtained by the police but it was challenged to
be unlawful.
-The accused applied to set aside a warrant of arrest issued in respect
of an alleged offence.
Held; Apparently it was unlawful because the offence was a summon
case and not a warrant case as defined under section 2(1) of the CPC.
 PERSON WHO MAY ARREST WITHOUT WARRANT

4 categories of people who may arrest without

warrant, namely;
# Arrest by police officers.
# Arrest by penghulu
# arrest by private citizen.
# arrest by magistrate or justice of Peace.
 Arrest by Police Officer

Section 23 of CPC allowed a police officer to arrest

without warrant.
S. 2 of Police Act- Police officer means any member
of the royal Malaysian Police which includes
constable and above
Section 23 (a)-(k) laid down circumstances when a
police officer may arrest a person without warrant.
 SECTION 23 (a) CPC

Arrest may be made in relation to seizable offence

committed in any place in Malaysia.
The police officer may arrest if a person;
a-has been concerned in any seizable offence or
b-against whom a reasonable complaint has been
made or
c-against whom credible information has been
received or
d-against whom a reasonable suspicion exists
 SEIZABLE OFFENCE

S2(1) CPCdefines it as an offence in which a police officer may arrest

without warrant
3rd column of first schedule
Generally it refers to offence which is punishable with 3 years
imprisonment and above
However, an offence is regarded as seizable offence if the statute
specifically provides that it is a seizable offence, though the punishment
is less than 3 years
Eg. S 27 of Police Act-unlawful assemblies, meetings and processions,
which is punishable with of rm 2000 to rm 10000 fine and
imprisonment not exceeding 1 years
S 27(6) Police Act- any police officer may arrest without warrant
 REASONABLE COMPLAINT

Complaint here refer to complaint made to the police or the FIR provided in s.107
CPC

Q: What amounts of reasonable complaint?

Ramly & Ors V Jaafar (1968) 1 MLJ 209
held: it was not possible to lay down any abstract rule to determine what is reasonable
suspicion or complaint but depends by large on the facts and circumstances of each
particular case.

Taa Kay Teck &Anor v AG[1957] MLJ 237

Court; The issue of whether a complaint is reasonable or not must be determined by
the objective test. The court must first ascertain what facts were known to the
arresting officer and then decide whether those facts amounted to a reasonable
complaint that a person to be arrested has concern in the commission of a seizable
offence.
 CREDIBLE INFORMATION

what is credible information?

-need not be a sworn information
Hashim Bin Saud V Yahya bin Hashim & Another (1977) 1
MLJ 259
theft of electricity generator and a cement mixer
inspector yahya received information that the accused involved in the
theft of electricity generator
inspektor yahya then ordered the accused to be arrested
Harun J held that there was credible information against the plaintiff in
that the informant had previously proved to be reliable and that
information given by him led to arrests, prosecutions and convictions.
The arrest without warrant was lawful. It was also lawful because there
was a reasonable suspicion.
 REASONABLE SUSPICION

#Shaaban V Chong Fook Kam (1969) 2 MLJ 219

The Privy Council drew a distinction between prima facie proof and reasonable
suspicion. This was because of the Federal Court' had required 'prima-facie proof
before a valid arrest could be made

According Lord Devlin suspicion in its ordinary meaning is a state of conjecture or

surmise where proof is lacking: " I suspect but I cannot prove'.
-Suspicion arises at or near the starting point of an investigation of which the
obtaining of prima facie proof is the ends .
- By allowing 15 days after arrest for investigation, the Code shows clearly that it
does not contemplate prima facie proof as a pre-requisite for arrest.
-He also added that. arrest had taken place on reasonable suspicion of the alleged
offence at the second material time and this arrest was lawful.
-The arrest prior to this was unlawful because reasonable suspicion or the alleged
offence was not present. Hence there was false imprisonment up until the time
respondent were detained at the second material stage.
 REASONABLE SUSPICION

# Mahmood V Government Of Malaysia & Another

(1974) 1 MLJ 103
It was held by the court that the question whether
there exist sufficient grounds to raise a reasonable
suspicion is a question for the court to decide.
 Arrest by Penghulu

The penghulu may arrest without a warrant in

situation similar to those of a police officer. Section
23 and 24 apply him as well.
One minor difference is that section 25 requires him
to hand over the person arrested to the nearest
police officer or police station.
The police officer shall then re-arrest the person so
arrested. This surrender should be done "without
unnecessary delay ".
 Arrest by Private Person

Section 27(1) (i) of the CPC provide that any private

person may arrest any person who
i-in his view commits a non bailable and seizable
offence ;or
ii-has been proclaimed under section 44 of the CPC
(person who has absconded)
the private person shall without unnecessary delay
hand over such person so arrest to the nearest police
officer or police station.
 "in his view

Indian Position
Durga Singh (1963) 1GR LJ 827 and Kartar Singh
(1956) AIR PUNJ 122
Strict approach
Held; the word in his view must be construed as in
his sight.
 "in his view

Singapore Position
Metro (golden mile) Pte Ltd v. Paul Chun
Wah Liang
Held: the offence of theft must have been committed
in the sight of the private person before the arrest
become lawful.
English position
#Walters v. WH Smith & Son Ltd ( l 947) 1 K
B 595.
 "in his view

Malaysia Position
PP V SAM HONG CHOY[1996] 1 CLJ 514
A private person Walking to enter a building when he heard
the sound of gunshot. And someone shouting tolong kejar,
perompak. Thereafter he saw 2 men running pass him, one of
whom was the accused
He gave a chase and in an ensuing struggle with the accused,
there were 2 shot fired and the accused was finally
apprehended
Issue; whether he was lawfully empowered to make an arrest
as it has not been shown that seizable offence had been
committed in his view?
Held; the words In his view must be given a liberal
interpretation. They mean not only in his sight but
also in his presence. A narrow interpretation of these
words would greatly defeat the object of the section
 "in his view

In the former case, judge Bind Basni Prasad J said that

this view must be given a liberal interpretation. They
mean not only in his sight but also in his presence. A
narrow interpretation would defeat the object of this
section. Suppose in a winter a person is sleeping inside
his room and there is no light in it. A thief makes a hold
and tries to enter into it. He cannot see the thief but on
hearing on the sound he becomes aware of the fact that a
thief is breaking a wall. Although he has not actually seen
the thief he can arrest him. It would be absurd to hold
otherwise. Again suppose a blind woman is sleeping and
a thief wants to forcibly remove an ornament from her
person. Although she cannot see the thief, there can be
no doubt that she can arrest him.
 "in his view

Meanwhile in the latter case that had been referred by the

court in Sam Hong Choys case. Harish Chandra J. said that
when a man is found committing a non-bailable and
cognizable offence and then tries to escape. the whole is to be
treated as one single transaction and any person who either
sees him committing the offence or finds him running away
immediately after the commission of the offence would be
entitled to arrest him under section 59 of CPC. Therefore
applying the above law to the fact in the cast of PP V Sum
Hong Shoy the court in this case was of the opinion that when
the gunshot went off and shouts of help were heard it was
clear to the prosecution witness that the two man who had run
past him were the robbers and that they were running away.
He was certain that they were committed a non-bailable and
seizable offence.
 "in his view

The court would treat the whole episode as one

single transaction and would treat the action of
running away as part of that transaction and held
that the commission of the offence was committed
within the sight of witness. As this fall within the
meaning of in his view in the section 27 of the CPC
the witness was entitled to arrest the accused.
 "without unnecessary delay"

Not defined under CPC

However the court must take into account peculiar
facts and circumstances of each case before deciding
whether there is unnecessary delay or not.
John Lewis & Co Ltd. 'V. Tims ( 1952) 1 ALL
ER 1203
The court held that there was no unnecessary delay
in handing them over to police because they were
given an opportunity to answer the allegation of
theft.
Arrest by a Magistrate or justice of the Peace

Section 30 of CPC; allows the magistrate or Justice

of the Peace to arrest without a warrant or to
authorize the arrest of a person who has committed
and offence in his presence.