SECURITY LAW RESEARCH ON SEARCH

SECURITY LAW RESEARCH ON SEARCH

SEARCH

The power of search goes hand in hand with police investigation because there will be no proper investigation without power to do search.

1.    Frisking  - search of body of person

2.    Entry of premises and search for someone – search for person in premises

3.    Entry of premise and search for document or property –search of place or premises

Frisking involves touching

·      Search of a premise, can be done with and without warrant.

·      With warrant à when, form and execution?

·      Without warrantà Section 62 CPC, summary search Section 63 CPC, Section 116 CPC, seizure of things and common law.

·      Effect of illegal search or seizure

·      In Malaysia it is found under CPC. Common law under cases.

Objective of search

·      Necessary in relation to evidence

·      It discovers evidence

·      You preserve the evidence

·      You prevent disposal of evidence

·      Obtain incriminating evidence

·      Leads to a seizure

·      Leads to preservation of evidence

1^st type of search

By who? à Magistrate/JP

è  Inspector and above

è  Below rank of inspector in presence of Magistrates/Justice of Peace /Inspector

Types & methods à Setion 20A (a new section)

è Fourth Schedule CPC, objective, general conduct, (on how to do a search), took provision from Australia and it identifies the 4 types of body search below.

è 4 types: pat down (example in airport), strip, intimate, intrusive  (done by medical doctor)

A.  Pat down search

What? When? à Patting the outer clothing of a person – para 4(1) & 4(2) 4^th schedule

è No authorization required – para 5 4^th schedule

è Procedure 6 4^th schedule

è Person below rank of I can do if in presence of Inspector.

è Immigration officer power is given by specific law which will override CPC.

B.  Strip search

What? When? à Removal of entire or some part of a person’s clothing – Para 7(2) 4^th schedule

è Authorization, prior approval (written) or reduced to writing of Inspector & above or equivalent required – Para 8(1) & (2) 4^th Schedule

è Para 9 4^th Schedule

C.  Intimate search

What? When? à Physical examination of body or orifices other than mouth, nose & ears  Para 10 4^th Schedule

è Authorization, prior approval (written or reduced to writing) of ASP & Above or equivalent required – Para 1 4^th Schedule

è   Para 12 4^th Schedule

D. Intrusive search

                     What/ When à examination to determine existence of aany object etc inside the body & removal of it – Para 13(1) 4^th Schedule

è Need prior approval of OCPD or equivalent required – Para 14(1) 4^th Schedule

è Procedure in Para 15 4^th Schedule

Search of body of person

1. Power to seize offensive weapon:-

§  Section 21 CPC

§  Police officer

§  Other person

2. To ascertain name & address, to find identity of the person.

§  Section 22 CPC

Search of premises with warrant

When? à Section 54(1) CPC (read together with Section 116 CPC) provides for 3 circumstances.

§  When the person who has been issued with summons (section 51 CPC) or requisition order (Section 52(1) CPC) is not complying/ will not be complying with such summons/order;

§  When property/document is not known by the court to be in possession of any person

§  When the court considers that the purpose of justice will be served by a general search

Secti                             Section 51 CPC is very important  à order to produce document, if your refuse to comply, police can come with warrant.

§  When? à Section 56 read together with Section 116 allow a magistrate to issue the search warrant to search for evidence of the offence as well.

Case Laws

1.         Chong Chieng Jen [2009] 8 MLJ 364

What is laid before the Magistrate must be of a credible information and not just any information. Here believed to be seditious materials in the 2 places named in the warrant

Court explained scope of section 56 which requires information and reason to believe. Court says this 2 are mandatory there must be information for existence of evidence in that premise and there must be reason to believe existence of evidence in the premises named in the warrant.

Court also held the mere believe of the complainer (the police) who goes to the Magistrate could not constitute the information not reason to believe under Section 56 of CPC.

Search warrant important because it involves invasion of privacy and property where the law protects therefore have conduct on body search. This is to be respectful to the person. More often because search lead to seizure so the law must accord some protection to owner of premise. That’s why search warrant required.

Form of search, Section 57 of CPC. It must be in writing and signed and shall bear the seal of court and in force for a reasonable number of days specified in the warrant and can be executed in any part of Malaysia.

2.   Lam Chiak [1986] 1 MLJ 374

In respect of validity of search warrant.

In paper may have expired but police still conducted the search.

Court here says; it does not state what is the reasonable number of days to be in forced however it must be subject to one limitation, it must be reasonable. What is reasonable? Depend on facts of case. Number not specified under Section 57(2).

It is directory and not mandatory to have the number of days in the warrant

So far not contested

Who can execute search warrant?

Section 60 CPC – allows Magistrate who issued the search warrant to attend personally to see that the warrant is duly executed

Section 61 allows any Magistrate competent to issue a search warrant to orally direct a search to be made in his presence of any place

Section 116-  allows the investigating officer to conduct the search himself

Section 59 - read with section 16(2) empowers the officer to break open any other or inner door of any place.

Search of premises without warrant

Section 62 – only search without seizing anything, if you need to do seizure, it is governed under Section 435 CPC.

Sectoin 62-65 and 116 make provision for search of premises without warrant.

Section 63 is summary search it involves the governing of search as well as seizure.

Section 62 and 116 are concerned with search and not with seizure

Important Aspects to Ponder

1. Police conduct a body search without arrest if you are found during a police raid and believed to be hiding something like drugs

• What to do:
  • Do not allow the Police Officer to put his hands into your clothes or pockets.
  • If you are asked to take out your belongings one by one, each time, say "purse", "keys", "ID card" etc.
  • When your pockets/bags are empty, turn them inside out
• If you are at a place (example: disco/karaoke/entertainment outlet) where the Police are conducting a raid to look for something there (example: drugs), the Police may detain and search you if they think you have or are hiding the thing being searched for.
  This may only be done in the presence of a Police Officer ranked Inspector and above.

2. A female can only be searched by a female police officer.

·      Protest and lodge a police report if you are forced to strip naked or threatened with a strip search.

·      All body searches must be carried out in a professional manner and with decency.

·      A female can only be body searched by a female Police Officer.

·      • If you are forced to strip naked or threatened with a strip search:
1. Protest;
2. Remember the Police Officer's name; and
3. Lodge a police report after the incident.

3. If police conduct a body search after arresting you, it must be done in a professional manner and in private. You may request to be accompanied by your lawyer.

·      All body searches must be carried out in a professional manner and with decency. The body search must be conducted in a confined place.

·      It is your right to be bodily searched in private. It is advisable to request that you be accompanied by your lawyer for the search.

·      The law allows the Police to conduct 4 types of body search:- pat down search, strip search, intimate search, and intrusive search. A female can only be body searched by a female Police Officer.

References

http://says.com/my/news/malaysian-basic-legal-rights-when-facing-with-police-according-to-the-red-book

http://quills4thewritingheartcpc.blogspot.my/2014/10/arrest.html

SECURITY LAW AN INSIGHT ON ARREST

SECURITY LAW AN INSIGHT ON ARREST

The arrest, bail & remand procedures are regarded as a threshold for criminal proceedings. Most of time we are unaware and ignorant of our own rights as to what does an arrest procedure consist of, how the Criminal Procedure Code plays a vital part in the scope and ambit of arrest, Who is vested with the power to arrest, the type of offence, Rights of an arrested person, Modes of arrest and remedies on wrongful arrest. Its an area where the case laws of both Malaysia and foreign countries and also CPC deals in depth. Login to our website to have a complete insight on ‘arrest’.

                  “ KNOW YOUR RIGHTS & SEEK THE TRUTH ”

1.0 ARREST

·     Arrest is a first step in criminal proceedings against a suspected person¹

·     The arrest must be in accordance with law²;

·     Otherwise the suspected person will be deprived of his personal liberty which is against Article 5(1) Federal Constitution³

·     Section 15-33 CRIMINAL PROCEDURE CODE (CPC) provide for the law relating to arrest , escape and re-taking⁴.

2.0 PERSON WHO MAY ARREST

·     Generally 5 categories of person’s may effect an arrest⁵.

·     Namely:- (i) POLICE OFFICER

                  (ii) PENGHULU

                  (iii) PRIVATE PERSONS

                  (iv) MAGISTRATE and

                  (v) JUSTICE OF PEACE

1                   Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 11

2                   ibid

3                   ibid

4                   ibid

5                  ibid

·     Hierarchy of the Police Officer

(1) INSPECTOR GENERAL OF POLICE (IGP)

(2) DEPUTY INSPECTOR GENERAL OF POLICE (DIGP)

(3) COMMISIONER OF POLICE (CP)

(4) DEPUTY COMMISIONER OF POLICE (DCP)

(5) SENIOR ASSISTANT COMMISIONER OF POLICE (SAC)

(6) ASSISTANT COMMISIONER OF POLICE ( ACP)

(7) SUPRITENDANT OF POLICE (SP)

(8) DEPUTY SUPERINTENDENT OF POLICE (DSP)

(9) ASSISTANT SUPERINTENDANT OF POLICE (ASP)

(10) CADET ASSISTANT SUPERINTENDENT OF POLICE

        (CASP)

(11) CHIEF INSPECTOR (CI) (NO LONGER IN FORCE)

(12) INSPECTOR (I)

(13) PROBATIONARY INSPECTOR (PI)

(14) SUB –INSPECTOR (SI)

(15) SERGEANT MAJOR (SM)

(16) SERGEANT(S)

(17) CORPORAL (C)

(18) LANCE CORPORAL (LC)

(19) CONSTABLE (PC)

3.0 ARREST BY POLICE OFFICER AND PENGHULU

3.1 Seizable and non Seizable offences.

3.01 Seizable Offences

·     A seizable offence means an offence for which a police officer may ordinarily arrest without a warrant according to the third column of the First Schedule to the CPC: S. 2(1) CPC⁶.

·     While third column of the first schedule of the CPC shows that offences under the Penal Code which are punishable with imprisonment of 3 years and above are seizable offence ( offences for which a police officer may ordinarily arrest without a warrant) Example: The offence of theft under S.379 Penal Code is a seizable offence for which a police officer may ordinarily arrest without warrant⁷.

3.02 Non-seizable offence

·     An offence for which a police officer may not ordinarily arrest without a warrant according to the third column of the First Schedule to the CPC: S. 2(1) CPC⁸

6                   Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 12.

7                   ibid

8                   ibid

·     The Third Column of the First Schedule shows that offences under the Penal Code which are punishable with imprisonment of less than 3 years are non seizable offences⁹.

·     An offence in which the officer may not arrest without warrant¹⁰.

·     For offences against the law other than the penal code where the punishment is less than 3 years or a fine , a police officer shall nit arrest without a warrant i.e the offences are non seizable¹¹.

·     However if any written law provides that an offence is seizable even though the punishment is less than 3 years imprisonment, then the offence is seizable¹².

·     Example: The offence of cheating under S.417 Penal Code is a non seizable offence for which a police officer shall not arrest without warrant¹³. If he arrest without a warrant, then the arrest is illegal¹⁴.

9                   Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 12.

10                 ibid

11                 ibid

12                 ibid

13                 ibid

14                 ibid

4.0 When a Penghulu or Police may arrest without Warrant?

·     S.23 CPC empowers a police officer or a penghulu to arrest without a warrant¹⁵.

·     A police officer is defined as any member of the Royal Malaysian Police and includes a police constable up to the Inspector General of Police S.2 Police Act 1967¹⁶.

·     The situation in which any police officer or penghulu may arrest without order from a Magistrate and without a warrant are given in CPC. S. 23(1) paras(a) to (k)¹⁷.

·     S.23(1) (a) CPC is most often resorted to and is discussed in more detail¹⁸.

5.0 SECTION 23 (1)(a) CPC

Provides that, whereby any seizable offence has been committed anywhere in Malaysia, any police officer or penghulu may arrest without a warrant any person¹⁹;

(a) who has been concerned in any such offence²⁰;

15                Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 12.

16                 ibid

17                 ibid

18                 ibid

19                 ibid page 13

20                 ibid page 13

(b) against whom a reasonable complaint has been made; or²¹

(c) against whom credible information has been received; or²²

(d) against whom a reasonable suspicion exists²³.

5.1 Reasonable Complaint

·     Has a wider meaning which includes complaints to the Magistrates or to the police²⁴

5.2 Credible Information

·     Credible information means information which can be believed and reliable²⁵.

·     A bare assertion without anything more cannot amount to credible information²⁶.

·     In the case of Hashim bin Saud v Yahaya bin Hashim & Anor [ 1977] a report was lodged that an electric generator was stolen²⁷. The Plaintif was arrested without a warrant based on the information given by an informant for a stolen cement mixer.

23                 Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 13.

24                 ibid

25                 ibid

26                 ibid

27                 ibid

The police obtained a remand order under S.117 for further investigation. The plaintif brought an action against the defendants for wrongful detention.Harun J held that the information held that the information against the plaintifwas credible in that in previous cases, information given by the informant was proved to be reliable as it led to an arrest, prosecution and conviction²⁸.Thus the arrest of the plaintiff without warrant was lawful not only on credible information but also on reasonable suspicion²⁹.

5.3 Reasonable Suspicion

·     Reasonable suspicion can be seen in the following case  below³⁰:-

·     Tan Eng Hoe v AG [1993] the applicant fitted the description of an offender ( Seah Eng Tan) in a cheating case. The applicant was mistakenly arrested. After further investigation, the police found that the applicant was not the real offender. The applicant sued for wrongful arrest³¹.

28                 Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 12.

29                 ibid

30                 ibid

31                 ibid

Whitley J held that a reasonable man would have suspected the applicant being the offender in the circumstances as both stayed in the same hotel, were of about the same age, from Malacca, names sounded familiar, wore similar clothes and carried a black bag³². Thus, the police was justified in arresting him without warrant³³.

6.0 When the Police may arrest for non seizable offence without warrant S.24 CPC

S.24 (1) CPC provides that

(I) A police offcer or penghulu may arrest without warrant any person who commits or is accused of commiting non seizable offence in his presence and refuses to give his name and address or given, the police officer or penghulu has reason to believe it to be false³⁴.

(II) The purpose of arrest is to ascertain his true name or residence and such a person must be brought before a Magistrate within 24 hours excluding the time of journey³⁵.

32                 Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 14.

33                 ibid page 14

34                 ibid page 15

35                 ibid page 15

(III) However, if his true name or residence is ascertained before 24 hours, such a person must be released on his exceeding bond for his appearance before a Magistrate if so required³⁶.

·     Saul Hamid bin Pakir Mohomad v Inspector Abdul Fatah Bin Abdul Rahman & Anor

“ Since the plaintiff had been investigated on suspicion of committing the offence of  robbery under section 392 of the Penal Code and being seizable offence, first the defendant was therefore justified in the circumstances to have arrested the plaintiff without a warrant. It was untenable for the Plaintiff to contend just because the plaintiff had also been investigated at the same time for an offence of voluntarily causing hurt under section 323 of the Penal Code , being a non seizable offence that a warrant was needed to effect arrest on the plaintiff³⁷. The first defendant did not not need a warrant with the view to effecting another arrest offence under section 323 of the Penal Code when the plaintiff had already been lawfully arrested and detained for commiting the alleged offence of robbery under section 392 of the Penal Code³⁸.

36                 Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 15.

37                 ibid

38                 ibid

7.0 What a Penghulu has to do after S.25 CPC

S.25 CPC provides that;

·     Where a Penghulu has effected an arrest without warrant for a seizable offence ( unders S.23 CPC) or non seizable offence ( under S.24 CPC), he shallwithout unnecessary delay hand over the arrested person to the nearest police officer or police station;and³⁹

·     The police officer shall then re arrest such person

so arrested⁴⁰.

·     In re arresting such person , the police officer has to

examine whether the offence is seizable or non

seizable and then re arrest according to S.23 or S.24 CPC⁴¹

8.0 Arrest by private person: S.27 CPC

·     S.27 (1) CPC 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 S.44 CPC ( Aa person who has absconded); and⁴²

39                 Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 16.

40                 ibid

41                 ibid

42                ibid

·     The private person must then without unnecessary delay hand over such a person so arrested to the nearest police officer or police station⁴³.

·     The police officer will then examine the case and if necessary shall re arrest him under S.23 or S.24 CPC: S.27(2) & (3) CPC⁴⁴

·     Such a person must be brought before a Magistrate within 24 hours : S.28 CPC⁴⁵

·     If there is no reason to believe that such a person so arrested has committedan offence, he shall be at once released S.27(4) CPC⁴⁶

9.0 Arrest by Magistrate or Justice of Peace

·     S.30 CPC: Empowers a Magistrate or Justice of Peace to arrest or authorize any person to arrest an offender who has committed an offence in his presence and within the local limits of his jurisdiction⁴⁷.

·     S.31 CPC empowers a Magistrate ( not a justice of the Peace) to arrest or authorise any person to arrest in his presence within the local limits of his jurisdiction of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant⁴⁸.

43          Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 16.

44          ibid

45          ibid

46          ibid

        47          ibid page 17

48          ibid page 17

·     In Hariharanand v The Jailor AIR 1954, a Magistrate arresting a person under the power given should not, legally and morally, try the case himself. The person so arrested by the Magistrate shall be produced within 24 hours within before another competent Magistrate , failing which the arrest becomes illegal⁴⁹.

 10.0 Mode of Arrest

·     S.15 (1) CPC provides that a person may be arrested in any following 3 modes:

(a)Mode 1:

actually touching the body of the person sought to be arrested⁵⁰.

(b)Mode 2:

Actually confining the body of the person sought to be arrested⁵¹

(c)Mode 3

Where the person sought to be arrested submits the custody by words or action⁵²

49                 Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 17.

50                 ibid

51                 ibid

52                 ibid

·     According to Halsbury’s Laws of England which is similar to S.15(1) CPC⁵³:

·     An arrest consist in the seizure or touching of a person’s body with a view to his restraint⁵⁴;

·     Words may, alternatively , amount to an arrest if, in circumstances of the case , they are calculated to bring, and do bring, to a person’s notice that he is under compulsion and he thereafter submits to the compulsion⁵⁵.

·     The Privy Council in the Malaysian Appeal Case of Shaaban & Ors v Choong Fook Kam & Anor [ 1969] , also had the occasion to consider what elements constitute a valid arrest⁵⁶.

·     Lord Devlin opined an arrest does not occur when a police officer stops someone to merely make an inquiry and stated that⁵⁷:

“ an arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned⁵⁸. It occurs when by words he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go”⁵⁹.

53                 Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 17.

54                 ibid page 17

55                 ibid page 17

56                 ibid page 18

57                 ibid page 18

58                 ibid page 18

59                 ibid page 18

·     From the case of Shaaban, 3 propositions by Lord Devlin as to what constitutes a valid arrest⁶⁰:-

(i) Proposition A:- A police officer introduces himself and states in terms that he is arresting⁶¹ ; or

(ii) Proposition B:- A police officer uses force to restrain the person sought to be arrested⁶²

(iii)Proposition C:- Where a police officer makes it clear by words or conduct that he will use force if necessary to prevent the person sought to be arrested from going where he may want to go⁶⁴.

10.1 Difference between S.15 CPC and the 3 propositions in Shaaban

Whether an arrest is valid under S.15 CPC and the 3 propositions of Shaaban we will have to look into the following example⁶⁵:-

60                 Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 18.

61                 ibid

62                 ibid

63                 ibid

64                 ibid

65                 ibid

Situation 1

A Smart College girl walking along a streets of Kg Pandan with her bag on her shoulder. A snatch thief comes from behind, snatches her bag and runs off with it. A police officer on foot patrol walking on opposite side of the street sees the incident and shouts to the thief “ Stop! I arrest you”⁶⁶.

ARRISING ISSUES

·     An arrest is valid under Proposition A BY Lord Devlin where a police officer states in terms that he is arresting⁶⁷.

·     However under S.15 (1) CPC there is no valid arrest because mere words cannot amount to an arrest as there must be actual touching of the body ( Mode 1) or Confining of the body ( Mode 2);

( referring to the same situation 1, above except that the police chases after the snatch thief, catches him up and had handcuff him)⁶⁸

·     The arrest is valid under the proposition by Lord Devlin as a police officer may use his force to restrain the person sought to be arrested⁶⁹.

66          Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

               College   Publications, Year 2012, Page 18.

67          ibid

68          ibid page 19

69          ibid page 19

·     The arrest is valid under S.15(1) CPC as such act amounts to actually touching ( Mode 1) or confining ( Mode 2) of the body of thief⁷⁰.

·     Thus, proposition by Lord Devlin is consistent with mode ( 1 and 2) of arrest in S.15(1) CPC⁷¹.

(Referring to the same situation 1, above except that the police officer draws out his pistol and orders the thief to stop)⁷²

·     The arrest is valid under proposition C by Lord Devlin where a police officer makes it clear by words or conduct that he will use force if necessary to prevent the person sought to be arrested from going where he may want to go⁷³

·     However under S.15(1) CPC ( Mode 3) the arrest is only valid if the thief , on realising that a pistol is pointed at him, submit to the custody of the police officer by saying that he is surrendering ( by words) or by putting up his hands in the air. ( by action)⁷⁴

70          Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 19.

71          ibid

72          ibid

73          ibid

74          ibid

·     S. 15(1) CPC ( Mode 3) is consistent with what Lord Parker CJ said in Alderson … an arrest is constituted where any form of words is used which in the circumstances of the case were calculated to…and did bring to the defendant’s notice , that he was under compulsion and thereafter he submitted to that compulsion.⁷⁵

11.0 Rights of Arrested Person

·     There was no full or safeguard for the rights of the arrested person in the CPC before, thus, the arrest person always relied on Federal Constitution in seeking his rights and remedies.⁷⁶

11.1 Rights to be informed of grounds of arrest.

·     Art 5(3) FC: Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest⁷⁷.

·     In Christie & Anor v Leachinsky [1947] House of Lords held that⁷⁸:-

-         An arrested person must be informed of the true grounds of his arrest⁷⁹;

75                 Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 22-23.

76                 ibid page 23

77                 ibid

78                 ibid

79                 ibid

-         If the arrested person is not informed of the grounds of arrest, the policeman may be liable for false imprisonment⁸⁰.

-         The police need not inform under the following circumstances⁸¹:

(a) The arrested person should know the general nature of the alleged offence for which he is arrested ( e.g. if the arrested person is seen stealing a car he should know that he will be arrested for theft)⁸²

            (b) The arrested person himself makes it particularly

             impossible to inform him (e.g. he assaults the police

             or he runs away )⁸³

·     The Federal Court, in Abdul Rahman v Tan Jo Kok [ 1968 ] referred and and cited Christie with approval⁸⁴.

·     S.28A(1) CPC: a person arrested withot warrant shall be informed as soon as may be of the grounds of his arrest by the police officer making the arrest⁸⁵.

80                 Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 23.

81                 ibid page 23

82                 ibid

83                 ibid

84                 ibid

85                 ibid

11.2 Right to a legal counsel

·     ART 5 (3) Federal Constituition provides that an arrested person has a right to legal advice⁸⁶.

·     The right to legal counsel can arise in 2 situations:-

(i) Upon arrest

(ii) During Remand Proceedings.⁸⁷

11.3 Legal Counsel Upon Arrest

·     The right arises where the arrested person is brought before a Magistrate within 24 hours under S.28 CPC. The purpose is to obtained a remand under S.117 CPC so that investigation can be completed.⁸⁸

·     In Ooi Ah Phua v OCCI Kedah/ Perlis [ 1975] the court held that onus is on the police to deny legal representation on the grounds that interference may encourage the suspect to fabricate stories.⁸⁹

86                 Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 23.

87                 ibid

88                 ibid

89                 ibid

11.4 Legal Counsel during remand proceedings.

·     In Saul Hamid v PP [ 1987] Joseph Jr J held that a person in remand proceedings is entitled to legal representation and the burden lies on the police to prove that there will be interruptions in their investigation.⁹⁰

·     Under the Lock up Rules 1953, lawyers are permitted to visit the arrested person so far as necessary to prepare for defence.⁹¹

·     In the Singapore case of Lau Mau Seng v Ministry of Home affairs, Singapore [ 1971] the court held that under ART 5(3) Federal Constitution of Singapore, the accused has the right to legal representation within a reasonable time after his arrest.⁹²

11.5     [ S.28 (2), (3) and (4) CPC ]

·     A police officer commencing any form of questioning or recording on the arrested person must inform the arrested person that he may communicate or attempt to communicate with a legal practitioner of his choice.⁹³

90          Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 23.

91          ibid page 24

92          ibid page 24

93          ibid page 24

·     Where the person arrested has requested for a legal practitioner to be consulted the police officer shall allow a reasonable time for the legal practitioner to be present to meet the person arrested at his place of detention and for the consultation to take place. In Additional to that the consultation shall be within the sight of a police officer and the conversation will not be heard. S.28A(5) CPC.⁹⁴

·     In this regard for the consultation the police shall provide for such facilities.⁹⁵

·     The police may neither question nor record any statement from the arrested person until the arrested person has had communication with the legal practitioner of his choice.⁹⁶

·     The police officer does not have to comply the requirement to inform the relative or a friend and the right to legal counsel if the police officer reasonably believes that it will result in an accomplice absconding or the concealment , fabrication, or destruction of evidence or intimidating witness: S.28A(8) CPC.⁹⁷

·     However, it can only be invoked upon authorization by police officer not below the rank of deputy Supritendant of Police:S.28A(9) CPC.⁹⁸

94          Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 24.

95          ibid

96          ibid

97          ibid

98          ibid

11.6 Right to be brought before a Magistrate within 24

         hours.

·     Art 5 (4) Federal Constitution the person arrested without a warrant ( i.e. only for seizable offences shall without unnecessary delay produce him before a Magistrate within 24 hours ( excluding statutory holiday/public holidays and time of the journey )⁹⁹

11.7 Rights to Remedies for wrongful arrest and detention

·     Rights of private or self and defence: A person has a right to defend himself for his property to resist an unlawful arrest.¹⁰⁰

11.8 Right to apply for writ of habeas Corpus

·     S.365 CPC provides that an application may be made to the High Court for an order to release a person who is illegally or improperly detained.¹⁰¹

·     S.366 – The application to bring before the high court a person alleged to be illegally detained shall be supported by affidavit stating where and by whom the person is detained and the facts relating to the detention.¹⁰²

99       Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 26.

100        ibid

101        ibid

102        ibid

·     S. 367- The affidavit shall be made by the person detained unless it is shown that by reason to restrain or coercion or other sufficient cause he is unable to make it, in which case it shall be made by some other person.¹⁰³

·     S.368- A copy of warrant under which the person detained (i.e remand order) shall be produced in court or it shall be shown by affidavit that the detention warrant has been asked for and refused.¹⁰⁴

·     S.370- A Warrant to the Court to order a person in custody to be brought before it shall be prepared and signed by the registrar and sealed with the seal of Court.¹⁰⁵

·     S.371- Such Warrant shall be delivered to the applicant or his advocate who shall serve it personally on the person directed or as the Court shall direct.¹⁰⁶

·     S.373- The officer to whom any warrant is addressed shall act in accordance with it.¹⁰⁷

·     S.374 A person aggrieved by any decision or direction of the high court may appeal to the federal court within 30 days from the date of the decision or direction.¹⁰⁸

103               Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 27.

104               ibid

105               ibid

                106               ibid

107               ibid

108               ibid

11.9 Criminal Proceedings

·     The general rule is that illegality has no consequences in criminal proceedings i.e a person who is unlawfully arrested can still be tried in a court. PP V Gabriel [1992]¹⁰⁹

·     However if the charges has not been made out , then the person who has been unlawfully arrested may be acquitted. Khor Ah Kah v PP¹¹⁰

12.0 Remedies for wrongful arrest

·     Where the arrest is unlawful, the arrested person is justified in using force or inflicting harm ( albeit reasonable harm depending on the circumstances in order to resist the illegal arrest.¹¹¹

·     An arrested person who is unlawfully arrested may bring a civil action for damages.¹¹²

·     The learned judge opined that unless and until an arrest is legally made under S.15(1) CPC, the accused is entitle to prevent or resist the unlawful seizure of the “dacing” which was his private property.¹¹³

109        Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 27.

110       ibid

111      ibid

112       ibid

113      ibid

·     If the police officer leaves the warrant to arrest at the police station when he makes the arrest of the suspect for non seizable offence that arrest will be an unlawful one and the courts will allow to claim for damages.¹¹⁴

·     A person can only claim damages to false imprisonment due to wrongful arrest.¹¹⁵

·     However the unlawful arrest will not affect the court’s jurisdiction to try him.¹¹⁶

·     The convictions of the accused person could be quashed if he is able to prove that the arrest procedure involved irregularity and illegality.¹¹⁷

13.0  Warrant to Arrest

·     Every warrant to arrest issued by a court under the Code must be in writing and signed in accordance with the CJA 1964 or SCA 1948 and must be the seal of the Court: S.38(1) CPC.¹¹⁸

·     A warrant to arrest may be issued by a session court or registrar, or a magistrate’s court, or the penghulu’s court S.5(1) SCA 1948.¹¹⁹

·     Such a warrant of arrest shall remain in force until it is cancelled or executed S. 38(2) CPC.¹²⁰

114        Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

               College   Publications, Year 2012, Page 27.

115        ibid

116        ibid

117       ibid page 28

118       ibid

119       ibid

120      ibid

·     An arrest with a warrant to arrest can only be effected by any police officer or a specifically named private person in the warrant . S.40 CPC.¹²¹

·     The Police officer or the other person executing a warrant of arrest must notify the arrested person the contents of the warrant:S.41 CPC¹²²

·     Once S.41 CPC has been compiled with, the police officer must , subject to S.39 CPC, bring the person arrested before the court without unnecessary delay:S.42 CPC.¹²³

·     S.39 CPC provides that the warrant of arrest itself may be indorsed to allow the accused person to be released provided that he executes a bond for his future appearance in court.( This however subject to the court’s power to order or otherwise)¹²⁴

13.1 Procedures on arrest person outside local jurisdiction:

         S.43 CPC

·     S.43 CPC provides that where a warrant of arrest is executed outside the local jurisdiction, the person arrested must, subject to S.39 CPC, be brought before the nearest Magistrate¹²⁵.

121        Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

              College   Publications, Year 2012, Page 28.

122        ibid

123       ibid

124        ibid

125        ibid

·     Such Magistrate must direct his removal in custody to the court named in the warrant subject to S.39 CPC. If there is no endorsement of security under S.39, the Magistrate may , if satisfied, release the accused on bail provided the offence is a bail able offence¹²⁶.

·     The police officer may also take security under S.39 CPC¹²⁷.

13.2 Summons Case and Warrant Case

·     S.2(1) CPC defines: Summons case means a  case relating to an offence and not being a warrant case.¹²⁸

·     Warrant case as a case relating to an offence punishable with death or with imprisonment for a term exceeding 6 months.¹²⁹

·     S.47 CPC provides that a warrant can only be issued in lieu of a summon if ( before or after the issue of summons)¹³⁰:-

·     The court believes that the accused may abscond or disobey the summons ( before issue of summons); or

·     The accused fails to appear in court ( after the issue of summons)¹³¹.

126               Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 28.

127               ibid page 29

128               ibid

                129               ibid

130               ibid

131               ibid

·     The distinction between a ‘ summons case’ and a ‘warrant case’ can be seen in the case of KARPAL singh v PP [ 1986]¹³² . A lion dance organised by the DAP political party was held without permit. The accused was alleged to have committed an offence under S.27(5)A Police ACT 1967 punishable with a fine no exceeding RM500 or imprisonment not exceeding 6 months¹³³. The police applied for, and the Magistrate had no lawful authority to issue a warrant as the offence was a summons case under S.2 (1) CPC. Anuar J held that¹³⁴;

·     The offence under S.27 Police Act 1967 was a summons case and no warrant was required¹³⁵.

·     A Magistratecan only issue a warrant of arrest in lieu of a summons ( in a summons case) if such power is exercised in accordance with S.47 CPC;¹³⁶

·     In this case S.47 CPC was not satisfied and hence the issue of the warrant was unlawful.¹³⁷

13.3 Summons

·     The provisions relating to summons are set out under S.34- 37 CPC.¹³⁸

132        Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 29.

133        ibid

134        ibid

135        ibid

136        ibid

137       ibid

138      ibid

·     A summons is a process of court which is issued for either of the 2 purposes:¹³⁹

·     It is issued to a prospective defendant  for the purpose of securing his attendance in court on  a particular date:¹⁴⁰

·     In certain circumstances the court may issue a warrant of arrest instead of a summons: S.47 CPC¹⁴¹

·     If the accused does not comply with the summons, a warrant of arrest will then be issued.¹⁴²

·     OR

·     It is issued to subpoena a witness to court in a criminal or civil matter:¹⁴³

·     Non Compliance with such summons will render that person liable for contempt of court.¹⁴⁴

139               Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia

                       College   Publications, Year 2012, Page 29.

141               ibid

142               ibid

                143               ibid

144               ibid

Research References:

·     Datuk Baljit Singh Sindhu, Criminal Procedure: Chapter 2 Arrest, Brickfields Asia College Publications, Year 2012, Page 11-29.

·     Criminal Procedure Code ( ACT 593) [ REVISED -1999]

·     Butterwort-Heinemann, Protection Officer Training Manual, Sixth edition, 1998

·     www.malaysianbar.org.my/arrest_remand_.html

·     www.kehakiman.gov.my/sites/default/files/document3/Buku%20Panduan/.../2.pdf

·     www.loyarburok.com/.../comparison-police-powers-arrest-malaysia-united-kingdom