ARREST

Definition
= Apprehension of a person by legal authority
resulting in deprivation of his personal liberty.

Article 5 FC personal liberty as a

fundamental rights, therefore, arrest must be done
in accordance with law

Christie v Leachinsky (HOL)

= the first step in a criminal proceeding against a
suspected person on a charge which was intended
to be judicially investigated.
*Not accurate Search // FIR could be 1st step
Statement made after arrest w/o caution go
against the accused not admissible

Section 15 of CPC
An arrest may be made in the following manner: (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 custody by word
or action.

Shaaban v Choong Fook Kam (PC)

**Sec 23 of CPC
A piece of wood fell from a timber lorry hitting a
car and killing one of the two men in it. The lorry
did not stop. The two respondents were arrested at
7.00 am on 11 July 1965 and detained on
suspicion that one of them had driven the lorry in
a rash and negligent manner resulting in a piece of
wood falling and killing one of the men in the car.
Later in the day, their explanations of alibi were
found to be false and they were further detained.
Issue = whether the arrest was lawful?

Lord Devlin = Law of arrest is contained in the

constitution and the CPC.
= An arrest occurs :
1. when a PO states in terms he is arresting
2. when he uses force to restrain an individual
concerned
3. 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 where he stops an individual to
make enquiries arrest under Common Law
LD - there is no reference to Sec 15 of CPC on
suspicion of arrest.
Lord Devlins definition is wider in scope than
what expressly stated in Section 15(1). Lord
Devlins propositions cover situations where
actual touching or confinement may not take
place. In this kind of situations, words or actions
to the effect that force will be used on the suspect
to prevent him from escaping would suffice.

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Alderson v Booth

Jayaraman v PP (FC)

PO had said to Df I shall have to ask you to come

to the police station for further tests

Request by the PO not to leave a prescribed place

Held =
BEFORE - there could be no lawful arrest unless
there was an actual seizing or touching
NOW - that is no longer the law.
may be arrest by mere words by saying I
arrest you without touching provided the Df
submits and goes with the police officer
May be any form of words use and it was
calculated to bring and did bring to the Dfs
notice that he was under compulsion and later
he submitted to that compulsion
If there is an arrest, there must be a caution.
If theres an arrest and no caution, then it is
inadmissible.

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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.
HC = The judge says arrest is constituted by a
physical seizure or touching of the accused
persons body with a view to his detention. And it
can also include by mere words without touching.
Provided that the person submits to the command.

Mode of Arrest
Section 15 of CPC

(a) Where
actual
arrest
required before caution is
administered

An arrest may be made in the following manner: (a) by actually touching the body of the person
to be arrested; or
(b) by actually confining the body of the person
to be arrested; or
- restrain within a perimeter
(c) where there is submission to custody by word
or action.

PP v Lim Hock Boon (FC)

There must be an actual arrest.
Upon information receive, car of accused was stop
by police. Window down and the accused went off
the car and police took the key.

Actual Arrest v Constructive

Arrest

Nick Hashim 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.

Actual arrest = there must be actual touching of

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

PP v Salleh bin Saad (HC)

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.
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
b. Constructive arrest is sufficient before caution
is to be administered.
Sec 113 = there is no requirement for caution
before effecting an arrest for offenses under the
PC
Exception caution is still needed: for offences
under:
DDA 1952
MACC 2009
Kidnapping Act 1961

The accused was charged on the offense of drug

trafficking. Acting on information, the PO raided
the accuseds house. Two sacks were found in a
searched car. On being questioned by a senior
customs officer, the accused replied that they
contained morphine, sembilan ketul semuanya..
The accused then pointed to another spot where
another sack was found and then arrested and
taken together with his family to the customs
officer where their statements were duly recorded.
Issue = whether the accuseds statements made to
the prosecutions 3rd witness was admissible as
there was no statutory caution was administered.
Syed Agil Barakbah held =
after his arrest in Sec 37A in DDA means
after the actual arrest, not constructive arrest.
The statements were made only under
constructive arrest.

Jayaraman v PP
Suffion LP = There was no arrest and hence the
statement were admissible even no caution was
administered
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Arrest is a question of facts

(b) Where constructive arrest

is sufficient before caution is
administered
PP v Kang Ho Soh
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.
Shankar J held=
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

PP v Rosyatimah
The court here seems to suggest there can be a
constructive arrest.
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.
Held = 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.

PP v Johari Abdul Kadir

Accused was charged under 39B DDA
Held = Accused was under arrest when he was
taken from the bus to police station where
cannabis was found in bag opened by the accused.
Since no caution was administered, the statement
inadmissible.
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MMU

PP v Shee Chin Wah

PO receive information and waiting at Ayer Keroh
tol, when car came in to the tol, police directed car
to go to the side and stop, the accused drove the
car to the side, alighted, and produced a pack of
12 rolls of cigarettes which had a roll of nipah
leaves suspected to be ganja. The police then
found a plastic bag in the spare tyre compartment,
later confirmed to be containing cannabis. At this
stage, the accused was alleged to have said, itu
ganja (that is cannibis) and bagilah saya peluang
(incriminating statement)
** arrest need not be actual
** there was already an arrest when the PO went
back to the spare tyre compartment
** not admissible = there was no caution
** point of arrest = when the PO suspected that
there was a roll of ganja

------------------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.

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MMU

Degree of force in effecting an

arrest
Sec 15(2) = if a person resists an arrest, then the
PO / other person making the arrest may use all
means necessary to affect the arrest.

Sec 15(3) = the officer / other person does not

have the right to cause death of the person who is
not the accused of an offense punishable with
death of a person who is not the accused of an
offence punishable with death / with life
imprisonment.

Mahmood v Gov. of Msia

When the police were on patrol, they suddenly
heard a voice of a woman asking for help and the
PO saw the appellant fled the scene. The PO have
warned to stop but the appellant did not heed and
continue to run away. Warning shots were later
released but the appellant continues to flee. The
second shot is then released and hit the appellant.
Held = the action of police officer shooting and
wounding the person is justified as he is under the
impression the person is trying to resist the arrest
by escaping from a scene in which the officer is
under impression as to be a crime scene

Zaleha Zahari J
Law of arrest is governed by written law

Persons who may arrest

Arrest
(SO)
(1)

w/o

warrant

REASONABLE
COMPLAINT

Police Officer & Penghulu

Sec 2 Complaint = allegation made orally or in

S23(1)(a) CPC
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

SEIZABLE OFFENCE
= police officer may arrest without warrant.
- offence under the Penal Code: punishable with
imprisonment of 3 years and above

- Sec 2
- Sec 23(1)(a) - situations which empowers
police officer/penghulu to arrest
warrant

without

- Sec 27(1)(b)-(k)
-

3rd column, 1st Schedule

NON-SEIZABLE OFFENCE
= arrest with warrant.
- Offence under the PC which are punishable
with imprisonment less than 3 years
- Sec 323 of PC

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writing to a magistrate with a view to his taking

action under CPC that a person known or
unknown has committed or is guilty of an offence

Ramly v Jaafar (FC)

**refers Tims v John Lewis objective test
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.
The question whether there was a reasonable and
probable cause must be determined objectively on
the evidence before the court and in this case there
was reasonable suspicion that the respondent was
concerned in a seizable offense
Held = Arrest was unlawful

Tan Kay Teck v AG

**refers Tims v John Lewis
= objective test is to be used in determining
reasonableness of a complaint.
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

CREDIBLE
INFORMATION
= Any information that is reliable / can be
believed
= In formation which in the judgement of PO is
credible in the particular case need not be
sworn statement
= Bare assertion without anything more cannot
amount to credible information

Hashim v Yahaya Hashim

There has 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.

REASONABLE
SUSPICIOUS
Shaaban v Chong Fook Kam
& Mahmood v Gov. of Msia
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.
= reasonable suspicion does not require a high
degree of proof.

Tan Eng Hoe v. AG

The applicant fitted the description of an offender.
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
Nurul Amirah binti Mohd Nizam
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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.

Nor Maziah v Mohd Haris Abd Rahim

Pl was arrested in a hotel coffee shop for
suspicion of baby dumping at a nearby building.
Witnesses claimed:
- they saw a teenage girl with blood stains on
her back around that area
- janitors gave a photofit description of a girl
with a black plastic bag at the toilet
- a couple at the hotel coffee shop
- Pl and her bf checked in and their bed had
patches of blood
The police then arrested Pf and her bf and
detained. She was subjected to a medical
examination in which results shows that she was
never regnant before.
Held = dismissed the application for wrongful
arrest as there was reasonable suspicion based on
the facts for the PO to arrest Pf and her bf.

Sec 24(1) & (3)

Sec 25
What Penghulu must do after arrest ?
= compels him to hand over the arrested person to
the nearest PO/ PS without unnecessary delay
- PO need to rearrest such person so arrested
- In rearresting, PO has to examine wheter
offence is seizable or non- seizable

Sec 32

(2) Private Person

Sec 27(1) & (5)
A person may arrest, a person who in his view
commits a non bailable and seizable offence and
without unnecessary delay, produce him to the
nearest police officer or police station.
in his view :

PP v Sam Hong Choy

Private person heard a gunshot and shouts of help
in a robbery and saw 2 men running away. He
chased and arrested the accused.
Held = in his presence or within his sight that he
should be certain that the person being arrested is
the offender based on the close proximity. He
however cannot arrest base on suspicion or
information.
without unnecessary delay :

John Lewis v Timms

Resp and her daughter were detained by 2 store
detectives of shop until the MD heard the reports.
Later police was called. Resp and daughter were
charged for shoplifting and Resps charge
withdrawn, but daughter was charged and
convicted. Both claim damages.
Held = 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.

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MMU

(3) Magistrate /
Justice of Peace
Sec 30
Empowers a magistrate and JoP to arrest person
committing offence in his presence within his
local jurisdiction.

Sec 31
Only magistrate may authorize or arrest at any
time for whose arrest he is competent at the time
& circumstances to issue warrant.

Hariharanand v The Jailor

Mg. arresting a person under the power given
should not, legally and morally, try the case
himself. The person so arrested by the mg shall be
produced before another mg within 24H. If fail,
arrest is illegal

Queen Empress v Venkana

The person so arrested by Mg. shall be produced
within 24H before another competent Mg. If fail,
arrest was illegal

Arrest
(NS0)

warrant

Warrant = order of the court

Police Officer
Magistrate and JoP
Sec 30

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.

Justice of Peace and Magistrate can arrest within

the local limits

Sec 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 has been 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.

Sec 32

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Saul Hamid v Inspektor Abdul Fattah

Pl had been investigated on suspicion of
committing Robbery Sec. 392 PC (Seizable) &
Sec. 323 PC (Non-Seizable)
Held = Df did not need warrant for Sec. 323 PC as
Pl had lawfully arrested and detained for
committing offence under Sec. 392 PC.