Criminal Procedure

Q7 JULY 2011 – Arrest (Essay)

(a) Subsection 27(1) of the Criminal Procedure Code provides that: “Any private person may
arrest any person who, in his view, commits a non-bailable and seizable offence or who has
been proclaimed under section 44 and shall without unnecessary delay hand over the person
so arrested to the nearest police officer, or in the absence of a police officer, take that person
to the nearest police station.”

With reference to decided cases, discuss the rights of a private person in arresting a person
without a warrant. (12 ½ marks)

What are the rights of a private person?

- Article 5(3) Federal Constitution: Where a person is arrested he shall be informed as soon
as may be of the grounds of his arrest.
- Under Section 28A(1) CPC, where a person arrested without a warrant, shall be informed
as soon as may be of the grounds of his arrest by the police officer making the arrest.
- In the case of Christie v Leachinsky [1947], the court held that a person arrested, or
accused must be informed of the true ground of arrest and there are no grounds of arrest
if he should know the general nature of alleged offence; or if it is practically impossible to
inform him. Note that this case was referred in the Federal Court in Abdul Rahman v Tan
Jo Koh [1968].
- In the High Court case of Zhan Ke Sheng & Ors v Insp Sayed Mohd Faizal bin Sayed
Baharom & Ors [2020], Ahmad Shahrir JC stated that the reason behind Section 28A of
the CPC is “…to afford arrested persons the right to counsel before any form of questioning
or recording of any statement from them commenced.” Under Section 28A(2) CPC states
that a police officer shall, before commencing any form of questioning or recording of any
statement, inform the person arrested that he may communicate with a relative or friend
to inform of his whereabouts; and a legal practitioner of his choice.
- Note: Section 28A is an amendment of CPC.

What is the position before the amendment?

- In the case of Ooi Ah Phua v Officer in Charge Criminal Investigation Kedah/Perlis [1975],
the police has the burden to deny legal representation. This later was supported by the
Federal Court case of Hashim B. Saud v Yahya Hashim & Anor [1977].
- But in the Singaporean case of Lau Mau Seng v Minister of Home Affair [1971], the court
held that an arrested person has a right to legal representation within a reasonable time
after his arrest as provided for under Article 5(3) of the Federal Constitution.

What happened after the arrest took place?

- Article 5(4) of the Federal Constitution: A person arrested shall without unreasonable
delay be produced before a Magistrate within 24 hours (all offences). This can also be
seen as it is repeated under Section 28(1) CPC as the arrested person shall without
unnecessary delay produce him before a Magistrate within 24 hours.
- The remand of an arrested person when the investigation cannot be completed within 24
hours can be seen under Section 117 (to be read with Section 119), which may authorise
the Magistrate to detain the accused as follows:

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(a) If offence is punishable with imprisonment of less than 14 years, the detention shall
not be more than 4 days on 1st application and not more than 3 days on 2nd
application; or
(b) If the offence is punishable with death or imprisonment of 14 years or more, the
detention shall not be more than 7 days on 1st application and not more than 7 days
on 2nd application.
- In the case of Polis Diraja Malaysia v Audrey Keong [1994], the Court of Appeal held that
a remand order under Section 117 is only for suspects, not potential witnesses and here
the police must produce a copy of a diary under Section 119 and in this case, no diary was
produced thus no right to order detention and there is also no requirement for a legal
arrest to obtain a remand order under Section 117. Also note that that according to Polis
Diraja Malaysia v Audrey Keong Mei Cheng’s case, where “If the arresting officer fails to
inform you the grounds of your arrest, the arrest is unlawful.”
- See Public Prosecutor v Duis Akim & Ors [2005].

Q1 JULY 2010 – Arrest

a) A policeman was shouting at a snatch thief who was trying to run away: “This is the police,
stop! You are under arrest!” The snatch thief who was some distance away did not submit to
the arrest but continued to run away.

Discuss whether an arrest has taken place. (8 marks)

How arrest is made?

- Sec 15 (1) CPC Police Officer/other person making an arrest:

i) Shall actually touch the body of the person to be arrested; or
ii) Shall confine the body of the person to be arrested; or
iii) There is a submission to custody by word or action
- Contrast with Shaaban v Chong Fook Kam [1969] (PC) – Lord Devlin did not refer to Sec 15(1)
but said an arrest is made if:-
i) He states in terms he is arresting; or
ii) He uses force to restrain (same as Sec 15(1)(i) above); or
iii) By words/conduct that make it clear that he will use force if necessary to prevent
him from going anywhere
- Jayaraman v PP [1982], Suffian LP followed Shaaban’s case and held that there was no arrest
as the corporal was merely making inquiries.
- Actual arrest:
i) Salleh bin Saad [1983]: Police raided an arrested person’s house. The arrested
person made a statement, ‘Chandu, sebelas ketul’ when asked what was in the
boot of the car. The court held no actual arrest before the statement was made;
ii) Lim Kim Ann [1988]: Police raided a house and found a suitcase with the initials
“LKA”, when asked by police who was the owner of the suitcase, the arrested
person said it was his. The court held no actual arrest was made at that time (Tan
Chye Joo).
- Constructive arrest:
i) Tan Seow Chuan [1985]: Police raided a house when they received information
about drug offences. The police officer showed the authority card and entered to

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search the premises. The arrested person was guarded and no handcuffs or words
of arrest were used. The court held that there was arrest under Sec 15(1) CPC.
ii) Johari bin Abdul Kadir [1987]: On receiving information that an arrested person
was in possession of drugs, police stopped a bus and took him to a police station.
The court held that an arrest was made.
iii) Rosyatimah [1989]: Police raided and searched a house for drugs and here the
police found a bag and discovered a substance suspected to be cannabis. When
asked by the police, the arrested person said the bag was her boyfriend’s bag. The
court held that the arrested person was arrested when police discovered cannabis
in a bag before the arrested person made the statement.

- Is there an arrest?

b) Our courts have recognized that an order for detention under s. 117 of the Criminal
Procedure Code curtails the liberty of a citizen and as such, all the procedural requirements
of this section must be strictly complied with.
Discuss

(Repeated in Q1 (a) August 2017) (12 marks)

What is Section 117 (read with Section 119)?

- Remand of A when investigation cannot be completed within 24 hrs:-

1) If the investigation cannot be completed within 24 hours, the police officer making an
investigation (IO) must produce the accused and a copy of entries in the diary before the
Magistrate.
2) The Magistrate may authorize the detention of the Accused as follows:-
a. If the offence is punishable with imprisonment of lesser than 14 years, the detention
shall not be more than 4 days on 1st application and not more than 3 days on 2nd
application; or
b. If offence is punishable with death or imprisonment of 14 years or more, the
detention shall not be more than 7 days on 1st application and not more than 7 days
on 2nd application.
3) IO must state in the diary any detention of the Accused before the application.
- See Sections 117(4)-(7) CPC: What Magistrate should do in granting remand order.
- Section 119(1) (to be read with Section 117): Every police officer making a Police investigation
shall daily enter in the investigation diary certain particulars.
- Note that if an arrested person is arrested for bailable offence under Section 387, he is entitled
to bail as of right. If he is produced before Mg under Section 117  Right of bail is subject to
remand order under Section 117 (Maja anak Kus v Public Prosecutor [1985])

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What is the explanation of the proceedings by the Magistrate?

- This part of the proceedings in which the Magistrate decides whether to allow the detention
or the release of the arrested person is known as remand proceedings.
- The period in which the detained person is kept in the lock-up beyond the first 24 hours is
known as the remand period. If the Magistrate decides that the arrested person should be
detained further, the arrested person is said to be held under remand pending investigation.
- When the Magistrate makes an order to remand the arrested person, the lawyer must obtain
from the Magistrate the date and time of expiry of the remand. This is to ensure that the
arrested person would be released at the time stipulated in the remand order and not held
for any period longer. It is not sufficient to merely state that the remand order is two days.
The lawyer must insist that the Magistrate stipulate the exact date and time when the arrested
person should be released.

c) Distinguish between a summons and a warrant of arrest. (5 marks)

Summons case Warrant case
 Section 2(1) CPC: Case relating to an offence and  Section 2(1) CPC: Case relating to an offence
not being a warrant case in the 4th column of the punishable with death or with imprisonment
1st schedule. for a term exceeding 6 months.
 Eg: Voluntarily causing hurt (Section 323 PC)   Eg: Theft (Sec 379 PC)  3rd column of 1st
3rd column of 1st schedule, police require a schedule, police may arrest the Accused
warrant of arrest to arrest the Accused (under without warrant of arrest (under 4th column
4th column it is a summons case). it is a warrant case).
 When a person receives a summons, he has to  In a warrant case: The person has to be
appear before the Court (Magistrate) on the arrested and brought before the Magistrate
date and time stated in the summons (If not, a in handcuffs.
warrant of arrest will be issued).  Karpal Singh v PP [1986]: A was arrested with
a warrant of arrest for offence under Sec 27
Police Act 1967 (holding lion dance without
permit). On appeal by Accused, here it was
held that no warrant of arrest is required as
Section 27 is a summons case. Thus, it was
unlawful to issue the warrant of arrest.

Homework

Q4 (c) JULY 2013

Briefly discuss three (3) rights of –

(i) An arrested person; and

(ii) An accused person.
(6 marks)

Q2 (a) JULY 2019

Explain to what extent is the difference between an actual arrest and constructive arrest relevant
in a criminal proceeding?

(10 marks)
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