NURUL ATILIA BINTI MAT DERIS

LEB 120079

ARREST
Arrest is the first step in criminal proceedings against a suspected person. The expression
"arrest" literally means deprivation of personal liberty by a legal authority. It means
apprehension of a person by legal authority resulting in deprivation of his personal liberty.

Mode of Arrest
It is important to know whether an arrest is valid or not because the liberty of the individual
arrested is at stake; thus it depends on how the arrest is made.

How an arrest is made

Section 15(1) of CPC - there are three modes by which a person may be arrested, comprising of
actual touching or confining the body of the person sought to be arrested or submission to the
custody by word or action.

An arrest comprises of the seizure or touching of a person's body with a view to his restraint; or
words may, alternatively amount to an arrest if, in the circumstances of the case, they are
calculated to bring a person's notice that he is under compulsion and he thereafter submits to
the compulsion.

Shaaban & Ors v Chong Fook Kam

Privy Council - consider the elements constitute a valid arrest and held that an arrest occurs
when a police officer states in terms that he is arresting or when he uses force to restrain the
individual concerned. It occurs 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. (from police
perspective). An arrest does not occur when a police officer stops someone to merely make an
inquiry. Three situations were stated as to what constitutes a valid arrest:
i. Where a police officer states in terms that he is arresting
ii. Police officer uses force to restrain the person sought to be arrested
iii. Police officer makes it clear by words or conducts that he will use force if necessary to
prevent the person sought to be arrested from going where he may want to go.

However, the Privy Council in this case neither referred nor discussed Section 15(1) of the CPC.
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LEB 120079

Lim Hock Boon v PP

COA - it is clear from the evidence that the appellant was under arrest the moment PW8 turned
off the engine and took possession of the keys. That is why the learned judge held these
statements to be inadmissible. Fed Court - on the facts, it cannot be said that the respondent
had been arrested by PW8 when he blocked the respondent's car and switched off the engine
and took possessions of the keys, for he had stopped him to make inquiries.

PP v Kang Ho Soh
Acting on information, the police set up a road block and stopped the accused. When being
asked by the police to come out of the car to go to the boot, the accused resisted before going to
the boot. On being questioned by the police, the accused replied that bag belonged to him. The
police then found heroin in the bag and accused was charged for drug trafficking under S39B of
DDA. Issue: admissibility of statements made by the accused from the time he was stopped.
Whenever a person is stopped by the police as a result of prior information, it would constitute
an arrest. However, whenever a person is stopped by the police as a result of general inquiry by
the police, then there is no arrest. Each decision whether arrest has been made or not was made
on the facts of each particular case and the conclusions of facts are not to be treated as law.

Lee Cher Joo

Pfs had gone to the Buloh Kasap Police Station at 6.30 pm in response to the requests of the
police officer. They were then told to wait until 9 pm in which they were subsequently arrested
and detained at the lock-up of Segamat Police Station. The court held that there was no arrest
between 6.30 to 9pm as they were asked to wait and if they were under arrest there was no
necessity for the officers to tell them to do so. The willingness to wait is not equivalent to being
put under arrest and no evidence prevented the Pfs from leaving at any point of time.

Degree of Force in effecting arrest

Section 15(2) - if a person resists an arrest, then the police officer or other person making the
arrest may use all means necessary to effect the arrest.
Section 15(3) - However, the police officer or other person does not have a right to cause death
of a person who is not the accused of an offence punishable with death or with life
imprisonment.
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LEB 120079

Arrest without warrant

Section 23 Any police officer or penghulu may without an order from a Magistrate and without a
warrant arrest. (a) 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.

Reasonable Complaint
Section 2 defined complaint as allegation made orally or in writing to a magistrate with a viw to
his taking action under the CPC that some person whether known or unknown has committed or
guilty of an offence.

Tan Kay Teck & Anor

An objective test is to be used to determine whether a complaint is reasonable or not. In this
case, the sub-contractor complained to the police that he was confined by the contractor in a
room to discuss payment for the work done but the sub-cons refused to accept the lower
payment. The contractor was arrested and charged under S347 of the Penal Code for wrongful
confinement to extort money. The contractor was acquitted and discharged. Then claimed
damages for wrongful arrest. Court held that there was no reasonable complaint on the facts.

Credible information
Information that is reliable or can be believed. It must pointed out that bare assertion without
anything more cannot amount to credible information.

Hashim bin Saud v Yahya bin Hashim

The plaintiff was arrested by an officer in charge of the police station as instructed by the first
defendant, without a warrant and based on the information given by an informant regarding a
stolen cement mixer. The police obtained remand order for further investigation. The plaintiff
brought an action against the defendants for wrongful detention. It was held that the
information against the plaintiff was credible in that in previous cases, information given by the
informant was proved to be reliable as it led to arrests, prosecution and convictions and thus
arrest of the plaintiff was lawful based on credible information and reasonable suspicion too!
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LEB 120079

Reasonable Suspicion
Whether there is reasonable suspicion in a particular case depends on its facts and it is for the
court to decide.

Shaaban & Ors v Choong Fok Kam

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 am on July 11 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. With regards to lawfulness of arrest
made by the police officer, there were two stages of arrest in this case as follows:
When the corporal detained the two respondents when he suspected that one of them had
driven the lorry where the timber had fallen off, the arrest was unlawful because the
circumstances were such that there was no reasonable suspicion.
When the defence of alibi was discounted, they were further detained, the detention and arrest
were lawful as there was reasonable suspicion that one of them had driven the lorry in a rash
and negligent manner.

Mahmood v Govt of Malaysia

The court will decide whether there exist sufficient grounds to raise a reasonable suspicion. In
this case the plaintiff sued defendants alleging that he was unlawfully and negligently shot at
and wounder by a police officer at the Lake Gardens. The defence was that the police officer was
doing his duty as he had screams of help of a woman at about 2.20am and saw two men running
away. The police officer had a reasonable suspicion that a seizable offence had been committed.
It was also held that the police officer had not exceeded his power under S15(2) of the CPC as he
may use all necessary mean to effect the arrest.

Tan Eng Hoe v AG

The applicant was mistakenly arrested for a cheating case as he fitted the description of an
offender, Seah Eng Tan where both of them stayed at the same hotel at the material time were
about the same age both were from Malacca their names sounded familiar and they wore
similar clothes and carried black bags. Held reasonable man would have suspected - RS exists!
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LEB 120079

Dumbell v Roberts
The protection of the public is safeguarded by the requirement, alike of the common law and so
far as I know, of all statutes that the constable shall before arresting satisfy himself that there do
in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited.

Must have reasonable suspicion at the moment of arrest! (lawful arrest)

Section 23(1)(b) to (k)

Section 105
A police officer knowing of a design to commit any seizable offence may arrest without orders
from a Magistrate and without a warrant the person so designing if it appears to the officer that
the commission of the offence cannot otherwise be prevented.

Section 24
When any person in the presence of a police officer or penghulu commits or is accused of
committing a non-seizable offence and refuses on the demand of a police officer or penghulu to
give his name and residence, he may be arrested by that police officer or penghulu in order that
his name or residence may be ascertained, and he shall, within twenty-four hours of the arrest,
exclusive of the time necessary for the journey, be taken before the nearest Magistrate unless
before that time his true name and residence are ascertained.

Arrest by Penghulu - Section 25

A penghulu making an arrest without a warrant shall without unnecessary delay hand over the
person so arrested to the nearest police officer or in the absence of a police officer take such
person to the nearest police station, and a police officer shall re-arrest every person so arrested.

Arrest by private person - Section 27

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.
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In his view
PP v Sam Hong Choy
In his view to mean his presence or within his sight. Such words cover situations that although
the private person did not actually witness a non-balaible and seizable offence being committed,
but he was certain that the persons running away or trying to escape were offenders themselves
as he was in such a close proximity to the scene of the crime. A private person cannot therefore
arrest on mere suspicion or on information received no matter how credible the information is.

Metro (Golden Mile) Pte Ltd

Strict view. Commission of offence in his sight. Then only can be rendered as lawful arrest. Must
witness the commission of the offence!

Walters v WH Smith (Common Law)

It is necessary for a private person to prove that the same felony had been committed. The
offence had been committed in front of the eyes!

Without unnecessary delay

John Lewis & Co Ltd
The respondent and her daughter were detained by two store detectives of a shop until the
managing director and the chief store heard the reports. Then the police were called. Charged
for shoplifting. Court held - no unnecessary delay in handing them over to the police because
they were given the oppotunity to answer the allegation of theft.

Arrest with Warrant

Section 41 - The police officer or other person executing a warrant of arrest shall notify the
substance thereof to the person arrested and if so required shall show him the warrant or a copy
thereof under the seal of the Court issuing the warrant.

Section 42 - The police officer or other person executing a warrant of arrest shall, subject to the
provisions of section 39 as to security, without unnecessary delay bring the person arrested
before the Court before which he is required by law to produce that person.