Arrest

Question 1:

Bijak is an Assistant Superintendant of Police. In the course of his duties, he saw Jahat drunk and
incapable of taking care of himself. He wishes to arrest Jahat and seeks your advise on how an arrest
may be effected under the Criminal Procedure Code and common Law.

Under CPC

Arrest can be made under section 15 of CPC.

 actually touch or confine the body of the person to be arrested unless there is a submission
to the custody by word or action.
 Use all possible way to arrest the person
 Did not amount to death.

Actual arrest (section 113 CPC)

Caution statement (Abdul Ghani bin Jusoh & Anor v PP [1981] 1 MLJ 25)

 In this case the appellants had been convicted of offences under section 304 of the Penal
Code.
 The case against the appellants relied largely on the admissibility of the cautioned
statements made by them.
 The statements were unsigned and the statement of the first appellant was made to a
Probationary Inspector.
 The learned trial judge admitted the statements in evidence.
 A cautioned statement is admissible if it satisfies the conditions set out in s 113. (1) it should
be made to a police officer of or above the rank of inspector and (2) it was made voluntarily

Common law arrest

It is being stated in the case of Shaaban & Ors v Chong Fook Kam & Anor [1969] 2 MLJ 219, 220 per
Lord Devlin, in this case police has a reasonable suspicion

An arrest occurs when a police officer –

 states in terms that he is arresting; or

 when he uses force to restrain the individual concerned; or
 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.
Question 2:

Any police may arrest with or without warrant for seizable offence.

With reference to relevant statutory provisions and decided cases, discuss the above statement.

In Malaysia its has its own Criminal Procedure Code (CPC) that is used to govern the arrest
procedure. There are two types of arrest which are known as an arrest with warrant and an arrest
without warrant. An arrest without warrant is also known as a “seizable offence”. The third column
of the First Schedule to the CPC shows that offences under the Penal Code which are punishable
with imprisonment of three years and above are seizable offences. This means that the police may
just arrest you without a warrant for any offence in violation of the Penal Code. An example would
be theft.

According to the Penal Code, the crime of theft is a seizable offence under s 379. Section 23 of the
CPC provides power to police officers to arrest without a warrant under certain circumstances.
section 23(1)(a) is often the provision used by judges when deciding on a case. Section 23(1)(a)
states that the “police without an order from a Magistrate and without a warrant of arrest may
arrest any person who has been concerned in any offence committed anywhere in Malaysia which is
a seizable offence under any law in force in that part of Malaysia in which it was committed or
against whom a reasonable complaint has been made or credible information has been received or a
reasonable suspicion exists of his having been so concerned”.

In the case Tan Eng Hoe v AG, the claimant was arrested mistakenly for a fraud case because he
matched the description of the actual offender. He then sued for wrongful arrest but Whitley J held
that a reasonable man would have thought he was the offender due to the similarities. The police
were justified for arresting him without a warrant. In Hashim bin Saud v Yahaya bin Hashim & Anor,
an electricity generator was stolen and a report was lodged. The plaintiff was arrested as instructed
by the first defendant, Inspector Yahaya without a warrant after information was given by an
informant about a stolen cement mixer. The plaintiff then took action against the defendants for
wrongful detention but Harun J held that the information that was given by the plaintiff had proven
to be reliable and credible in the past. Therefore, the arrest of the plaintiff without a warrant was
proven to be lawful.
Question 3:

Sir Silas goes down to his library at midnight as he is unable to sleep. He surprises an intruder who
has just cracked the safe and is stuffing bank notes into his pockets. May Sir Silas lawfully arrest the
intruder?

Question 4:

Could a defense counsel argue in court on behalf of his client who is now charged in court for
committing a criminal offence that his rights on arrest have been violated?

Support your argument with established legal principles and decided case authorities.

Question 5:

The basis for an arrest may arise in the following circumstances, when ‘the suspect is concerned in
an offence’, ‘there is a reasonable complaint against a suspect’, ‘there is credible information on the
suspect’ and ‘there is a reasonable suspicion on the suspect’. Explain and support your submission
with relevant CPC established legal principles and decided case authorities.

1. What is the effect of the law applicable in Malaysia and the position of the Common Law if a
search or a seizure of the exhibits has been done illegally?

2. In the course of conducting search under Chapter VI of the CPC, police officer Patto has failed to
prepare a list of stolen items seized by him from the house occupied by the accused Ken. However
Patto wishes to tender the stolen items as exhibits in the trial against Ken who is facing a charge of
theft under section 379 of the Penal Code.
Argue a case for and against the prosecution on the necessity of preparing such a list and the
consequences of the failure to do so.

3. Aman, a police inspector, has obtained from the Magistrate a search warrant which was dated 4th
July 2016 (Monday) to conduct a search on the premises of Bersih. The search warrant did not
specify the period it was to remain in force. Aman executed the search warrant on 15h July 2016
(Friday) and seized several jewelries from the premises. Being aggrieved, Bersih filed a criminal
application by way of notice of motion at the High Court and sought a declaration that Aman’s
execution of the search warrant was unlawful, and an order that the seized jewelries be returned to
Bersih.

Argue for and against Bersih if the application made is justified? You are also required to raise an
argument if the items seized can be tendered as evidence in court if Bersih is charged for an offence
of retaining stolen property under the Penal Code.