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CHAPTER 2 : ARREST or action

Definition Arrest comprises of 2 situations:


i. Seizure or touching of a paxs
- Deprivation of personal liberty by a body with a view to his
legal authority retrain; or
ii. Words may amount to an
- Apprehension of a person by legal arrest if they are calculated to
authority resulting in deprivation of his bring and do bring notice, that
personal liberty a pax is under compulsion
and he later submits to the
Christie v Leachinsky compulsion
Arrest is the first step in a criminal
proceedings against a suspected Shaaban v Chong Fook Kam
person 1969
PC / L.Devlin
Article 5 FC - personal liberty as a
fundamental rights, therefore, arrest Issue: What element constitute a
must be done in accordance with valid arrest?
law arrest is when PO states -
i- he is arresting; or
Types of arrest: ii- he uses force to restrain the
i. Arrest with warrant individual concerned
ii. Arrest without warrant iii- PO makes it clear by words or
* the difference between both is conduct that he will use force if
depends on the type of offences necessary, to prevent the pax
concerned from going where he
may want to go
1) Modes of Arrest
- However, Shaaban did not
Main Question : Whether an arrest discussed S 15 (1) CPC
is valid or not (Ada arrest or tak ada
arrest?) * if PO stops someone to merely
- why so important ? Because liberty make an inquiry - not arrest
of individual arrested is at stake

How an arrest is made? Alderson v Booth 1969


3 modes of arrest as stated in CPC: COA/Parker CJ
S 15 (1) CPC - Issue: What element constitute a
valid arrest?
i. Actually touching; F: PO had said to Df I shall have to
ii. Actually confining the body of the ask you to come to the police
pax sought to be arrested; or station for further tests
iii. Submission to the custody by words H: BEFORE - there could be no
lawful arrest unless there was an
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actual seizing or touching
NOW - that is no longer the law. A- Cases where actual arrest is
may be arrest by mere words by required before caution is
saying I arrest you without administered
touching provided the Df submits
and goes with the police officer - Sec. 113 CPC - there is no
May be any form of words use and it requirement for caution before
was calculated to bring and did effecting an arrest for offenses
bring to the Dfs notice that he was under the PC.
under compulsion and later he Except caution is still needed:
submitted to that compulsion for offences under:
- DDA 1952
* Shaaban use English concept - MACC 2009
(Alderson v Booth) - Kidnapping Act 1961

Lee Cher Joo v Mohd Sharif 2009 Admission of statements in


F: Pfs claimed that they had been evidence:
wrongly arrested and detained by the 1. If statement made before arrest
Dfs at the Buluh Kasap Police Station. = admissible
Pfs had gone to the police station at 2. If statement made after arrest ,
6:30 pm in response to the request of but without caution = x
police officers. Then they were asked admissible
by the officer to wait until 9:00pm and 3. If statement made after arrest,
subsequently arrested and detained at and after caution - admissible
the lock up of Segamat Police Station.
H: There was no arrest between 6:30 PP v Lim Hock Boon 1
pm - 9:00 pm as they were asked by F: Upon information receive, car of
the police officers to wait and if they accused was stop by police.
were under arrest, there was no Window down and the accused
necessity for the officers to tell them to went off the car and police took the
do so. key.
- The willingness to wait or agree DC: There was arrest as there was
to wait is not equivalent to being put a confinement
under arrest and there was no H: actual or constructive not
evidence that the Pf were helpful. Better terus submit S 15
prevented from leaving at any (1) CPC
point of time. Further they went to
the police station by their own volition. PP v Lim Hock Boon 2 2009
- S 15 does not provide constructive Nick Hashim
arrest (Means that S 15 - actual arrest) H: Arrest is actual arrest. Foll.
Salleh Saad
Amendment to Section 113 CPC
Jayaraman v PP
there is no requirement for caution Suffian LP/FC
before effecting an arrest for F: ASP did not administer the
offenses under the PC cautions before the accused person
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made the statements. Issue was F: accused was charged with
whether there was arrest or not. trafficking on his own behalf 383
Rusuhan in tample, and police asked to grammes of heroin in
stay in tample. contravention of Sec. 39(B) (1) (a)
H: There was no arrest and hence the DDA. Acting on information, the
statement were admissible even no police went to a house and found 4
caution was administered person inside including the
- Arrest is a question of facts accused. The police also recovered
3 suitcases.
PP v Salleh bin Saad 1983 - On being questioned, the
Syed Agil Barakbah accused replied that the 2
F: Accused was charged with the suitcases belong to him.
offence of drug trafficking. Acting on - 1 of the 2 briefcases had the
information, the custom officers raided name Lim.
the accuseds house. The accused open it after being
- 2 sacks found in car which were ordered and police found 3 packets
searched which they suspected to contain
- On being questioned by a senior drugs. Police than handcuffed the
custom officer, the accused replied accused and informed all the 4
they contained occupants that they were under
morphine x9 arrest
Chandu x11 DC statement made by the
- Accused was then arrested and accused admitting ownership of
taken together with his family to the the 2 suitcases and all other
custom office where their statement statement uttered by the accused
were duly recorded. when the contents in the suitcases
Issue: Wtr statement made before the were examined were inadmissible
custom officer was admissible as no under S 37A DDA because no
statutory caution was administered? caution made. in the DDA because
- must consider wtr there was an no statutory caution was
arrest when the statement was made administered.
H: the words after his arrest in S 37A - 4 person inside the room would
(1) DDA [old CPC] mean after actual have been prevented from leaving
arrest and not constructive arrest. the room if they had attempted to
Judge opined that the accused was only do so and their submission
under constructive arrest when the amounted to their having been in
statement was made. Actual arrest only custody and therefore under arrest
took place when he was taken in. [Situation 2]
Therefore, the custom officer does not
need to administer caution since there H: LC Vorah J agreed with Salleh
was no arrest and hence his statement Saad that after his arrest means
was admissible. after actual arrest and held that at
[Situation 1] the material time, a valid arrest
had not been effected yet and thus
PP V Lim Kin Ann 1988 there was no need for statutory
Vorah J caution. Accused statement was

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admissible. F: Accuseds house was raided by
- custody shall not be equated with police and when they search the
arrest house, they found a weighing scale
[Ref. To Actual Arrest/no actual and few empty plastic bags. Police
arrest/situation 1] asked the accused where are the
drug stored - upstairs
Krishnan v PP Police search the room and found 2
SC bags of cannabbis. Upon discovery,
F: A was charge with drug trafficking police handcuffed the accused and
under DDA. Cautions only administerd brought him to police station.
after 2nd discovery of drugs H: the arrest was only affected
H: Since cautions was not administered when accused was handcuffed thus
ASAP after arrest, the statement was the statement made by him before
inadmissible the arrest was admissible.

PP v Tan Chye Joo 1989


Wan Adnan J B - Cases where constructive
F: Charged under S 39(B) DDA. Police arrest suffices before caution is
entered a premise and found 2 accused administered
person in hall. On searching the house,
the police found the biscuit tin in the PP v Tan Seow Chuan 1985
ceiling. When asked, 1st accused replied Peh Swee Chin J
that it contained ubat cina. This lid of F: Acting on information received
tin was removed and found substance that the offence relating to
believe to be opium. 2 accused was dangerous drug was being
placed under arrest. committed , the police raided the
DC the statement made by 1st house and asked the accused, an
accused ubat cina was not admissible old man, infirm and sickly to show
as at the time of making it, he was them the room. On searching, the
already under arrest and there is no police found certain items which
caution [Situation 2] contained a substance which was
- the accused was not fee to go as he later analyzed and found to be
like when the search was on opium. Accused was charged for
H: accused was arrested only after drug trafficking.
discovery of drugs in the biscuit tin, H: Accused was under arrest as
hence the statement ubat cina was soon as police officer showed his
admissible. authority card and accused was
- Even it was said that the accused guarded by a corporal although
was not free to go during the search it there were no handcuffs or words
does not mean that accused was of arrest. Since no caution was
arrested and no evidence that he tried administered, the accused
to run statement was inadmissible.
[Situation 1] - the police were acting on prior
information when they raided the
Abdul Rahim Kalandari 1998 accuseds house as opposed to
Abdul Hamid Mohamah J making a routine check without

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anticipating of finding anything. are not to be treated as law

PP v Johari Abdul Kadir S 15 (2) CPC - if a person


F: Accused was charged under 39B DDA resist an arrest, then the
H: Accused was under arrest when he police / other pax making arrest
was taken from the bus to police may use all means necessary to
station where cannabis was found in effect the arrest
bag opened by the accused. Since no S 15 (3) CPC - officer / other
caution was administered, the person does not have the right
statement inadmissible. to cause the death of a person
who is not the accused of an
PP v Rosyatimah Neza 1989 offence punishable by death or
Pah Swee Chin J life imprisonment
F: Acting on information, PO raided a
shop house. Upon searching, Police
found a bag of cannabis. When asked,
1st accused said it belonged to her bf,
2nd accused.
H: 1st accused was under arrest when
she made the statement that the bag
belong to her bf after police found the
cannabis in the bag. Since no caution,
her statement is inadmissible.

PR v Kang Ho Soh
Shankar J
F: Acting on information, police set up a
road block and stopped the accused.
When asked to come out of car,
accused resisted and put up struggle
before going to the boot. On being
questioned, accused belong the bag
belong to him, which later police found
heroin in the bag.
H:
1 - Whenever a pax was stopped by the
police as a result of prior information, it
would constitute arrest. at road block, it
constitute arrest
2 - When pax stopped by police as a
result of a general enquiry, there was
no arrest
- Judge did not find the distinction 2) Persons who may
between constructive and legal arrest is
helpful. Each decision should be made arrest
on facts of case and conclusion of facts

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i. Police officer
ii. Penghulu
iii. Magistrate
iv. Justice of Peace
v. Private person Sec. 2 CPC : complaint -
allegation made orally or in
A) Police Officer & Penghulu writing to a magistrate with a
view to his taking action under
Def: any member of the Royal CPC that a person known or
Malaysian Police and includes an officer unknown has committed or is
from the rank of police constable up to guilty of an offence
Inspector General of Police - Sec. 2 of
Police Act
A) Reasonable
Way of arrest:
i. Seizable
Complaint
ii. Non-seizable
Tan Kay Teck v AG 1957
a) Seizable offcence An objective test is to be used to
Def: determine whether a complaint is
Sec. 2 (1) CPC - offence on which reasonable or not
PO may ordinarily arrest without a F: subcontractor complaint to
warrant according to the 3rd police that he was confined by the
column of 1st Schedule. contractor in a room to discuss
- offences under PC which are payment of the work done but he
punishable with imprisonment of 3 refuse to accept lower payment.
years and above Contractor was arrested and
- Eg: Sec. 379 PC , Theft charged under S347 PC for
wrongful confinement to extort
Sec. 23 (1) (a) - (k) CPC - money. However, the contractor
situations which empowers police was acquitted later and he claimed
officer/penghulu to arrest without damages for wrongful arrest
warrant H: No reasonable complaint on the
facts
- Eg: Sec 23 (1) (a) - if any seizable
offence committed, police
officer/penghulu may arrest without B)Credible Information
warrant any person who has been
- information that is reliable or
concerned in any such offence or
can be believed
against whom:
- Bare assertion without anything
A reasonable complaint has been
more cannot amount to credible
made
information
A credible information has been
received Hashim Saud v Yahaya Hashim
Reasonable suspicion exists Harun J

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F: Report was lodged that an electricity nearby building. Witnesses
generator was stolen. Pf was arrested claimed:
by PO (Sgt. Mohamad) as instructed by - they saw a teenage girl with
Inspector (Yahaya) without warrant and blood stains on her back around
based on information given by that area
informant regarding a stolen cement - janitors gave a photofit
mixer. Police obtain remand under sec. description of a girl with a black
117 CPC for investigation. Pf brought plastic bag at the toilet
action against Df for wrongful - a couple at the hotel coffee shop
detention. - Pf and her bf checked in and their
bed had patches of blood
H: Information against Pf was credible The police then arrested Pf and her
in previous cases, information given by bf and detained. She was subjected
informant was proved reliable as it to a medical examination in which
led to arrest, prosecution and results shows that she was never
convictions. Therefore, arrest without regnant before
warrant was lawful not only on credible H: Ct dismissed the application for
information but also on reasonable wrongful arrest as there was
suspicion. reasonable suspicion based on
the facts for the PO to arrest Pf and
her bf.
C) Reasonable Suspicion Shaaban v Chong Fook Kam
1969
Tan Eng Hoe v AG 1933 L. Devlin
F: Applicant ws mistakenly arrested for F: a piece of wood fell from a
cheating case as he fit the description timber lorry hitting a car and killing
of an offender (Seah Eng Tan) one of the two men in it. The lorry
- both stayed at same hotel at the did not stop. 2 Resp were arrested
material time and detained on suspicion that one
- about same age of them had driven the lorry in a
- from Malacca rash and negligent manner which
- names sounded familiar results for the falling of the wood.
- wore same cloths The explanation of alibi were found
- carried black bags to be false and they were further
Applicant sued for wrongful arrest detained.
H: reasonable man would have P:
suspected the applicant as the Distinction btwn prima facie
offender where there were so many proof and reasonable suspicion
similarities. PO was justified in 1. Suspicion is a stage of
arresting. conjecture or surmise whilst
proof is lacking
Nor Maziah v Mohd Haris Abd 2. Suspicion arises at or near the
Rahim 2009 starting point of a police
F: Pf was arrested in a hotel coffee shop investigation of which the
for suspicion of baby dumping at a obtaining of prima facie proof is
at the end

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3. Prima facie proof consists of unlawfully and negligently shot at
admissible evidence while suspicion and wounded by a PO at Lake
can take into account matters which Gardens.
are not admissible as evidence or Defence: PO was doing his duty
matters which, though admissible, as PO heard screams of help from
could not form part of a prima facie a women at 2am and two men
case running away.
H: Court will decide wtr there exist
Lord Devlin; disagree that there ought sufficient grounds to raise a
to be a prima facie proof before an reasonable suspicion. Wtr there
arrest could be made. Suspicion is is a reasonable suspicion depends
the starting point of police on its facts and it is for the ct to
investigation where prima facie decide
proof is at the end of police - PO had reasonable suspicion
investigation. that a seizable offence had been
- Eg: After 15 days of arrest is committed & the PO had not
allowed under CPC, this shows that exceeded this power under
prima facie proof is not prerequisite for S.15(2) CPC as he may use all
arrest means necessary to effect the
arrest
- There were 2 stages of arrest:
i. When police detained 2 resp when Whether an arrest was lawful?
he suspected that one of them had
driven the lorry was unlawful Masa a/k Nangkai v Sgt Edwin
because circumstances were such Nancha 2004/2005
that there were no reasonable F: Upon receiving information, PO
suspicion arrested 1st Pf and 5 others who
ii. When defence alibi was discounted, were suspected to be connected
they were further detained, the with the victim who had been
arrest and detention were lawful as murdered. Suspicion was based on:
there were reasonable suspicion - all pfs and victim were present in
that one of them had driven the a drinking session when a fight
lorry took place involving deceased who
was then reported missing. 1st Pf
Lee Cher Joo v Mohd Sharif Othman was released due to insufficient
2009 evidence. He later brought an
HC action alleging his arrest was
Foll. Shaaban : reasonable suspicion without warrant and wrongful
that one has committed an offence is
enough to effect an arrest and the H:
standard is much lower than required to - To make a lawful arrest under
show the existence of a prima facie Sec. 23 (1) (a) CPC, PO mus had
case credible information or
reasonable suspicion that the 1st
Mahmood v GOM 1974 Pf was involved in a seizable
F: Pf sued Df alleging that he was offence.

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- For reasonable suspicion, there is
no need to establish prima facie proof
that the first Pf has committed the Other situations under CPC
offence (Foll. Shaaban) - on facts there where Police Officer / Penghulu
is reasonable suspicion may arrest without warrant:
- detention of Pf for 8 days was lawful When any person in possession
as Mg. Had given remand order under of any implement of house
Sec. 117 CPC breaking without lawful excuse
- If arrest was wrongful, nominal - Sec. 23 (1) (b)
damages of RM 5,000 may be awarded Proclaimed under Sec. 44
as general damages (absconded) - Sec. 23 (1) (c)
Suspected to posses stolen
Mohammad Shafiq Dollah v Sarjan property - Sec. 23 (1) (d)
Mejar Abd Manaf Jusoh 2013 Obstruct the duty of PO or
F: Pf and Hafiz filed 2 separate claims escapes or attempts to escape -
for wrongful arrest against the Df. Both Sec. 23 (1) (e)
Pf was arrested as they were suspected Suspected of deserting the
to be involve in theft of motorcycle. Armed Forces of the Federation
They were abused while under arrest Sec. 23 (1) (f)
and the injuries were severe as they Hiding himself with intent to
need to get medical treatment commit a seizable offence -
H: Foll Masa ak Nangkai - S 23 (1) (a) Sec. 23 (1) (g)
CPC only apply if there was reasonable Who cannot account for his
suspicion for arrest and police has
standard of living - Sec. 23 (1)
failed to est that.
(h)
Habitual criminal - Sec. 23 (1)
Saul Hamid v Inspector Abdul
(i)
Fattah 2007
Who is in the act of committing
COA
F: 2 different versions of police reports a breach of peace - Sec. 23 (1)
regarding offences lodges by Sukah and (j)
Pf. Who fails to comply Sec. 296
H: Ct dismissed Pfs appeal on grounds COC under PO supervision -
that the Df had acted reasonably in Sec. 23 (1) (k)
deciding to arrest the Pf based on his
suspicion at the time of arrest (b) Non-Seizable Offence
- Df belived he report by Sukah and not
by Pf. He took into consideration the Sec. 2 CPC - offence for which
Pfs body size and said through his a PO may not ordinarily
experience, Sukah could not be an arrest without warrant
aggressor. As to Pfs allegation that he according to the 3rd column of
was assaulted, Df observed that there the 1st Schedule of CPC
ws no marks of injuries. Df also - offences under PC which are
consulted his superior and they were punishable with imprisonment of
satisfies that the report by Sukah was less than 3 years are non-seizable
reasonable. offence

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- Eg: Sec. 417 PC, cheating any person to arrest an
offender who has committed an
When can police/penghulu arrest for offence in his presence and
non-seizable offences without within the local limits of his
warrant? jurisdiction
- Sec. 24 CPC , may arrest without
warrant any person who commits or S 31 CPC - to arrest or
accused of committing non-seizable authorise any person to arrest
offence in his presence and refuses to in his presence within the local
give his name and address (or if given limits of his jurisdiction of any
it was believe to be false) person for whose arrest he is
- purpose of arrest is to ascertain his competent at the time and in
true name or residence and person the circumstances to issue a
must be brought before a Mg. within warrant
24H excluding the time of journey
- If his true name / residence is
ascertained before 24H, he must be
released on his executing bond for his
appearance before a Mg. if so required Hariharanand v The Jailor 1954
F: Mg. arresting a person under the
Saul Hamid v Inspektor Abdul power given should not, legally and
Fattah morally, try the case himself. The
F: Pf had been investigated on person so arrested by the mg shall
suspicion of committing Robbery Sec. be produced before another mg
392 PC (Seizable) & Sec. 323 PC (Non- within 24H. If fail, arrest is illegal
Seizable)
H: Df did not need warrant for Sec. 323 Queen Empress v Venkana
PCas Pf had lawfully arrested and The person so arrested by Mg.
detained for committing offence under Shall be produced within 24H
Sec. 392 PC before another competent Mg. If
fail arrest was illegal
What Penghulu must do after
arrest ? C) Private Persons
Sec. 25 CPC - compels him to hand
over the arrested person to the S. 27 CPC - Any private person
nearest PO/ PS without unnecessary may arrest any person who in
delay his view commits a non-bailable
- PO need to rearrest such person so and seizable offence or who has
arrested been proclaimed under S 44
- In rearresting, PO has to examine CPC - absconded. Private
wheter offence is seizable or non- person must then without
seizable unnecessary delay hand over
such person so arrested to the
B) Magistrate / JP nearest police officer/police
station
S 30 CPC - to arrest or authorise - Police officer will examine case
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and shall re arrest under S 23 and 24
Without necessary delay
S 27 (4) - If no reason to believe
that arrested person has committed John Lewis v Tims
an offence, he shall be released F: Resp and her daughter were
detained by 2 store detectives of
S 28 CPC - person must be brought shop until the MD heard the
before a mg within 24H reports. Later police was called.
Resp and daughter were charged
2 interpretation on words in his for shoplifting and Resps charge
view: withdrawn, but daughter was
i. Strict - in his sight charged and convicted. Both claim
Durga Singh & Kartar Singh v damages
State H: There was no unnecessary delay
in handling them to police because
ii. Wide - in his opinion they were given opportunity to
Walters v Smith answer the allegation of theft

Sam Hong Choy v PP 1999


HC
F: Private person heard a gunshot and
shouts of help in a robbery and saw 2
men running away. He chase and
arrested the accused.
H: when the man commits a non-
bailable and seizable offence and then
tries to escape. The whole transaction
is treated as 1 transaction and a private
person who either sees him committing
the offence or running immediately
after the commission of the offence is
entitle to arrest him
- in his view = in his presence or
within his sight
- cover situation that although the
private person did not actually witness
a non-bailable and seizable offence
being committed but he was certain
that the persons running away or trying
to escape were offenders in such a
close proximity to the scene of the
crime
- private person cannot arrest on
mere suspicion/information receive no
matter how credible
H: (COA) agree with HC
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