Arrest Law in Malaysia: Arrest, Rights & Search Procedures
Arrest: Introduction and Legal Basis
TOPIC: ARREST (INTRODUCTION): Arrest is the first step in the criminal justice process. Article 5(1) of the Federal Constitution protects personal liberty and states that no one can be deprived of liberty unless it is according to law. Therefore, an arrest must be made lawfully and based on legal provisions. An arrest can be challenged in court if it has no valid reason or if excessive force is used.
Why determine whether there is an arrest? Some rights of a suspect only arise after an arrest. Traditionally, once an arrest occurs, the police must give a caution before taking any statement for it to be admissible as evidence. However, after the 2007 amendment to Section 113 of the CPC, no statement made by an accused to a police officer is admissible, whether made before or after arrest. Therefore, identifying whether an arrest has taken place is important because it affects the suspect’s rights and the admissibility of evidence.
Definition of Arrest
(DEFINITION): Arrest means restricting a person’s freedom of movement so that the person must obey the law. Halsbury’s Laws of England states an arrest usually involves physically touching or seizing a person to restrain them. However, an arrest can also occur through words alone if those words clearly make the person aware that they are under compulsion and the person submits to that authority.
How Arrest May Be Effected
Section 15 CPC sets 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 custody, by word or action on the part of the person to be arrested.
Key Cases on Arrest
Shaaban & Ors v Chong Fook Kam & Anor: Lord Devlin explained that an arrest happens in three situations:
- Clear words – when a police officer clearly says that the person is being arrested.
- Use of force – when the officer uses physical force to restrain the person.
- Words or conduct showing control – when the officer, by words or actions, makes it clear that he will use force if necessary to stop the person from leaving.
PP v Jayaraman: Main principle: The Federal Court followed Shaaban‘s case: an arrest can happen by words or by conduct, not only by physical force.
Key ruling: Being guarded or restrained does not automatically mean an arrest. There was an attack at a temple in Kerling, killing four people. Corporal Ghani went to the temple and told eight suspects not to leave. Later, ASP Jamaluddin arrived and questioned them orally. Whether their answers could be used as evidence became an issue. Telling them to wait and not leave was not an arrest. The corporal only stopped them temporarily to make inquiries about the attack.
Constructive Arrest and Actual Arrest
Some judges differentiate between constructive arrest and actual arrest:
- Constructive arrest: not a formal arrest and no caution is required.
- Actual arrest: a proper arrest that requires a caution.
This distinction caused many inconsistent court decisions. Because of this confusion, courts later adopted a clearer approach: whether there is an arrest depends on the facts of each case.
PP v Johari Abd Kadir: There can be a constructive arrest. This means a person is considered arrested when making a statement if they would have been physically restrained had they tried to escape.
PP v Tan Sew Chuon: Showing of the police badge does not amount to an arrest or constructive arrest.
PP v Salleh bin Saad: There was no actual arrest. Since the accused was not under arrest, the police did not need to give a caution. Therefore, the admissions were admissible in court.
PP v Tan Chye Joo & Anor: Since no caution was administered, the statement should not be admitted.
Types of Arrest
(1) Arrest with warrant (2) Arrest without warrant.
Seizable offence: An offence where a police officer can usually arrest without a warrant. Listed in the third column of the First Schedule.
Non-seizable offence: An offence where a police officer cannot normally arrest without a warrant. Also found in the third column of the First Schedule.
Warrant case: An offence punishable with death or imprisonment over six months.
Karpal Singh v PP: The accused was charged under section 27(5)(a) of the Police Act 1967, punishable by up to six months’ imprisonment. The police obtained a warrant of arrest, but the accused challenged it as unlawful and asked the court to set it aside. The court held the warrant was unlawful because the offence was a summon case, not a warrant case under section 2(1) of the CPC.
Arrest by Police Officer
(Police Power to Arrest: Section 23 CPC) allows a police officer to arrest without a warrant. A police officer (Section 2 of Police Act) includes constables and above. Section 23(a)–(k) lists the situations when a police officer may arrest without a warrant.
When Arrest Can Happen (Section 23(a))
Relates to a seizable offence committed anywhere in Malaysia. A police officer can arrest a person if:
- They have been involved in a seizable offence, or
- A reasonable complaint has been made against them, or
- Credible information has been received about them, or
- There is reasonable suspicion they are involved.
Seizable Offence
Defined in Section 2(1) CPC: an offence where police can arrest without a warrant. Usually offences punishable with three years’ imprisonment or more, or specifically declared as seizable by statute even if punishment is less. Example: Section 27 Police Act — unlawful assemblies (punishable with fine and up to one-year imprisonment). Police can arrest without warrant.
Reasonable Complaint
A complaint can be an FIR or any report made to the police (s.107 CPC). No fixed rule; it depends on the facts and circumstances of the case. Courts use an objective test: whether the facts known to the officer justify a reasonable complaint.
Ramly & Ors v Jaafar: There is no fixed rule for what counts as reasonable suspicion or complaint; it depends mostly on the facts and circumstances of each case.
Taa Kay Teck & Anor v AG: Courts assess if the complaint is reasonable based on what the officer knew.
Credible Information
Information does not need to be sworn. Police can rely on information from someone who has previously provided reliable information.
Hashim Bin Saud v Yahya: Arrest without warrant was lawful based on credible information about theft.
Reasonable Suspicion
Different from prima facie proof, suspicion is a starting point of investigation, not proof of guilt. Arrest can be made if there is reasonable suspicion even before collecting full evidence.
Shaaban v Chong Fook Kam: Arrest lawful if based on reasonable suspicion; earlier arrest without suspicion was false imprisonment.
Mahmood v Government of Malaysia: Courts decide whether reasonable suspicion exists.
Police can arrest without warrant for seizable offences based on: involvement, complaint, credible information, or reasonable suspicion.
Arrest by Penghulu
Penghulu can arrest without a warrant under situations similar to a police officer (Sections 23 & 24 CPC). The penghulu must hand over the arrested person to the nearest police officer or station without unnecessary delay. The police will then re-arrest the person.
Arrest by Private Person (Section 27)
A private person can arrest someone who:
- Commits a non-bailable, seizable offence; or
- Has absconded (proclaimed under Section 44 CPC).
The private person must hand over the arrested person to the police immediately (“without unnecessary delay”). “In his view” means the person either sees or is aware the offence is happening.
Indian cases (Durga Singh & Kartar Singh): strict interpretation — must see the offence. Malaysia (PP v Sam Hong Choy): liberal interpretation — includes offences happening in the presence or immediately after.
“Without unnecessary delay” has no fixed time; it depends on the facts and circumstances. Courts consider if handing over to police was done reasonably.
Arrest and Accompanying Rights
Right to Exercise Reasonable Use of Force
(RIGHT TO EXERCISE REASONABLE USE OF FORCE): Sections 15(2), 15(3), and 19(1) CPC.
When Use of Handcuffs May Be Justifiable
Yaakub bin Ahmad v PP: Generally not practiced unless the accused is violent, has committed a crime of violence, or has attempted to escape.
PP v Wee Swee Siang: Reaffirmed that manacles (handcuffs) should not be used unless necessary to prevent escape or due to the violent nature of the accused/offence.
Right to Be Informed of Grounds of Arrest
Constitutional basis: Article 5(3) of the Federal Constitution. Statutory basis: Section 28A(1) CPC states an arrested person must be informed of the grounds “as soon as may be.”
Definition: “As soon as may be” means as nearly as is reasonable under the specific circumstances of the case (Aminah v Superintendent of Prison).
Right to Access Legal Counsel
A police officer must inform the arrested person that they may communicate with a legal practitioner before questioning begins (Section 28A(2)(b)). Police must allow a legal practitioner to be present for consultation and provide reasonable facilities for it.
Commencement: The right begins at the moment of arrest, but a balance must be struck with the police duty to investigate (Ooi Ah Phua v OCCI).
Saul Hamid v PP: Clarified that an arrested person generally has the right to legal representation during remand proceedings (Section 117 CPC) unless the police can prove that such representation would unduly interfere with the investigation.
Exception: Police may withhold these rights if they reasonably believe it will lead to an accomplice absconding or the destruction of evidence.
Right to Be Produced Before a Magistrate
24-Hour Rule: Under Article 5(4) of the Federal Constitution, an arrested person not released on bail must be produced before a Magistrate within 24 hours (excluding journey time).
Remand (Section 117 CPC): If an investigation cannot be completed within 24 hours, the police must obtain a remand order from a Magistrate to further detain the suspect.
Remand durations:
- Offences punishable with less than 14 years’ imprisonment: Max 4 days (1st application), max 3 days (2nd application).
- Offences punishable by death or more than 14 years: Max 7 days (1st application), max 7 days (2nd application).
PP v Audrey Keong Mei Cheng: Emphasized that for a Magistrate to grant a remand order under Section 117 CPC, the police must provide a copy of the entries in the diary showing that the investigation cannot be completed within 24 hours and that there are well-founded grounds for the accusation.
PP v Ong Kee Seong: The accused kicked and bit police officers who tried to arrest him without a warrant for a non-seizable offence. The court held the arrest was illegal; therefore, the accused’s resistance was justified as a right of private defense.
Search
TOPIC: SEARCH: Search is a power granted to the police for the investigation of criminal offences.
Types of search: The CPC categorizes searches into two main types: (1) search of a person; (2) search of premises.
1. Search of a Person (Section 20)
Restraint: An arrested person must not be subjected to more restraint than is necessary to prevent escape (Section 19(1) CPC).
Searching women: If a woman must be searched, it must be conducted by another woman with strict regard to decency (Section 19(2) CPC).
Offensive weapons: Police or private individuals may seize offensive weapons found on an arrested person and deliver them to a court or officer (Section 21 CPC).
Standard procedures (Sections 20 & 20A CPC): When a person is arrested (with or without a warrant), the officer may search their body and place all articles, except necessary clothing, into safe custody.
Evidence: Articles believed to be evidence of a crime may be detained until the person is discharged or acquitted.
Fourth Schedule: All body searches must comply with procedures specified in the Fourth Schedule of the CPC.
Types of Body Searches (Fourth Schedule)
- Pat down search: Patting the outer clothing; no prior authorization required.
- Strip search: Removal of all clothing; requires prior approval from an officer ranked Inspector or above.
- Intimate search: Physical examination of body orifices (excluding mouth, nose, and ears); requires prior approval from an officer ranked Assistant Superintendent of Police or above.
- Intrusive search: Examination for objects inside the body; must be conducted by a government medical officer or authorized hospital personnel and requires approval from the Officer in Charge of the Police District (OCPD).
Other Person Search Scenarios
In-place search (Section 17 CPC): If a place is being searched, anyone present may be detained until the search is complete. If a sought item can be concealed on a person, they may be searched in the presence of a Magistrate or Inspector.
Identifying information (Section 22 CPC): If an intoxicated, ill, or mentally disordered person in custody cannot account for themselves, they may be searched to ascertain their name and address.
Roadside search (Police Act): Section 3(5) justifies searching members of the public at the roadside to prevent and detect crime.
2. Search of Premises
Search without a warrant: Stolen property (Section 62 CPC): An officer (Inspector and above) may search a private place if they have reasonable cause to suspect stolen property is concealed and that a delay in obtaining a warrant would lead to the property being removed.
Counterfeit and forgery (Sections 62A & 62B CPC): Inspectors and above may search without a warrant for counterfeit coins, currency, or the machinery used to produce them.
Post-search requirement: Search list (Section 64 CPC): A list of all items seized must be prepared by the officer.
Magistrate summons (Section 63(2) CPC): When property is seized, the person from whose possession it was taken must be summoned before a Magistrate to account for it, unless they have already been charged.
Written authorization (Section 63 CPC): Any police officer, if authorized in writing by the Chief Police Officer, may enter and search for stolen property.
Relevant Case Law on Search and Seizure
Lam Chiak (1986): The High Court interpreted the duration of search warrants under the Copyright Act, specifically what constitutes a “reasonable number of days” for a warrant to remain in force.
Kah Wai Video (Ipoh) Sdn Bhd (1987): Addressed the seizure of items not listed in a search warrant. The High Court held that police have implied extension of powers under a warrant or common law to seize and retain unscheduled articles to facilitate investigations.
Dato’ Seri Anwar Ibrahim v PP (2010): The Federal Court ruled on the application of Section 51 and the then-new Section 51A of the CPC, determining that the existing law on Section 51 did not change despite the inclusion of Section 51A.
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