Chapter 3 - Arrest - Lecture notes 3 PDF

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ARREST A. Person Who May Arrest 1. Arrest without warrant by Police Officer or Penghulu under    Sec 23(1)(a) CPC – where seizable offence has been committed Seizable offence – an offence for which a police officer may ordinarily arrest without warrant according to the 3rd column of the 1st Sched...

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ARREST A. Person Who May Arrest 1. Arrest without warrant by Police Officer or Penghulu under   

Sec 23(1)(a) CPC – where seizable offence has been committed Seizable offence – an offence for which a police officer may ordinarily arrest without warrant according to the 3rd column of the 1st Schedule of the CPC. May arrest any person: (i) concerned in any such offence; or (ii) against whom reasonable complaint has been made; or  Tan Kay Teck & Anor v AG  An objective test is to be used to determine whether a complaint is reasonable or not.  The subcontractor complained to the police tht he was confined by the contractor in a room dto discuss payment for the work done but the subcontractor refused to accept the lower payment.  The contractor was arrested and charged under S 347 PC for wrongful confinement to extort money.  However, the contractor was acquitted and discharge. He then claimed damages for wrongful arrest.  Held: There was no reasonable complaint on the facts. (iii) against whom credible information has been received; or  Credible information – information tht is reliable or can be believed  It must be pointed out tht a bare assertion without anything more cannot amount to credible information  Hashim bin Daud v Yahaya bin Hashim & Anor  A report was lodged tht an electricity generator was stolen. The plaintiff was arrested by an officer in charge of the police station, Sgt Mohamad, as instructed by the first defendant, Inspector Yahaya without a warrant and based on the ifnroamtion given by an informant regarding a stolen cement mixer.  The police obtained a remand order under section 117 of the CPC for further police investigation. The plaintiff brought an action against the defendants for wrongful detention.  Harun J held that the information against the plaintiff was credible in that in previous cases, information given by the information was proved to be reliable as it led to arrests, prosecution and convictions. Thus, the arrest of the plaintiff without warrant was lawful not only on credible information but also on reasonable suspicion and the test for reasonable suspicion in Shaaban’s case was satisfied. (iv) against whom reasonable suspicion exists.

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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. After further investigation, the police found that the applicant was not the real offender. The applicant sued for wrongful arrest.  Whitley J held that a reasonable man would have suspected the applicant of being the offender under such circumstances where there were so many similarities with the description provided. Thus, the police were justified in arresting him without warrant. Nor Maziah v Mohd Hais Abd Rahim & Ors  The plaintiff was arrested in a hotel coffee shop for suspicion of baby dumping at a nearby city point building in Alor Star. Several witnesses claimed that they saw a teenage girl with blood stains on her back around the area. In addition, two janitors gave a photo fit description of a girl with a black plastic bag at the said toilet. Another witness saw a couple at the hotel coffee shop and in that same hotel the worker claimed that the plaintiff and her boyfriend checked in and that their bed had patches of blood. Following the information provided by the witnesses, the police arrested the plaintiff and the boyfriend. They were detained and the plaintiff was subjected to a medical examination in which the results showed that she was never pregnant before.  The court dismissed the application for wrongful arrest as there was reasonable suspicion based on the facts above for the police to arrest the plaintiff at the same time. Shaaban & Ors v Chong Fook Kam & Anor  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 a.m. on July 11, 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.  On one hand, it is pertinent to point out that three distinctions were drawn by the Federal Court between prima facie proof and reasonable suspicion, and was held to be the test for arrest. Firstly, suspicion is a stage of conjecture or surmise whilst proof is lacking. Secondly, suspicion arises at or near the

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starting point of a police investigation of which the court obtaining of prima facie proof is at the end. Another distinction is that prima facie proof consists of admissible evidence while suspicion can take into account matters which are not admissible as evidence or matters which, though admissible, could not form part of a prima facie case.  Lord Devlin also distinguished between prima facie proof and reasonable suspicion. However, his Lordship, in the Privy Council, disagreed with the opinion of the Federal Court that there ought to be prima facie proof before an arrest could be made and said that suspicion means, ‘I suspect but I cannot prove’. Suspicion is the starting point of a police investigation whereas prima facie proof is at the end of the police investigation.  With regard to the lawfulness of the arrest made by the police officer, Lord Devlin held that there were two stages of arrest in this case as follows: (1) 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; and (2) when the defence of alibi was discounted, they were further detained, the arrest and detention were lawful as there was reasonable suspicion that one of them had driven the lorry in a rash and negligent manner. Lee Cher Joo & Anor v Mohd Sharif Othman & Ors  The High Court followed the proposition in Shaaban where reasonable suspicion that one has committed an offence is enough to affect an arrest and the standard is much lower than required to show the existence of a prima facie case.  The word ‘arrest’ was given a much wider meaning in that sense that mere words or action is sufficient and the accused should know that force would be used if he attempts to escape. Mohmood v Government of Malaysia & Anor  Held: The court will decide whether there exist sufficient grounds to raise a reasonable suspicion. In this case, the plaintiff sued the defendants alleging that he was unlawfully and negligently shot at and wounded by a police officer at the Lake Gardens. The defence was that the police officer was doing his duty as he had heard screams of help from a woman at about 2.20 a.m. and saw two men running away.  The court held that whether there is a reasonable suspicion in a particular case depends on its facts and it is for the court to decide. In this case, the police officer had reasonable suspicion that a seizable offence (such as rape, robbery, murder or

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stabbing) had been committed. It was also held that the police officer had not exceeded his power under section 15(2) of the CPC as he ‘may use all means necessary to affect the arrest’.  Masa ak Nangkai & Ors v Sgt Edwin Nacha & Anor  In this case, on receiving information in relation to a murder investigation, the police arrested the first plaintiff and five others who were suspected to be connected with the victim who had been murdered. The suspicion was based on the ground that all the plaintiffs and the victim were present in a drinking session when a fight took place involving the deceased victim who was then reported missing. The first plaintiff was released from custody after eight days detention as there was insufficient evidence and he brought this action against the second defendant alleging that his arrest was without warrant and his detention was wrongful.  In dismissing the action, the High Court held, inter alia, that: (i) to make a lawful arrest under section 23(1)(a), the police must show that they had credible information or held a reasonable suspicion that the first plaintiff was involved in the seizable offence; (ii) for reasonable suspicion, there is no need to establish prima facie proof that the first plaintiff has committed the offence.  The principle in Shaaban’s case was followed. On the facts the police had acted on reasonable suspicion in arresting the first plaintiff; (iii) the detention of the first plaintiff for eight days was lawful as the magistrate had given a remand order under section 117 of the CPC; and (iv) if the arrest is wrongful, nominal damages of RM5,000 may be awarded as general damages.  Saul Hamid bin Pakir Mohamad v Inspector Abdul Fatah bin Abdul Rahman & Anor  There were two different versions of police reports regarding the commission of the alleged offences lodged by Sukah (a 13year old school boy at the material time) and the plaintiff (a 33year old technician).  The Court of Appeal dismissed the plaintiff’s appeal on the grounds that the defendant had acted reasonably in deciding to arrest the plaintiff based on his suspicion at the time of arrest. Sec 23(1)(b)-(k) CPC Sec 106A & 106B CPC – only police officer may arrest in relation to terrorism offences Sec 24(1) CPC (i) where non-seizable offence is committed or is accused of committing in the presence of police officer or penghulu; and

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(ii) refuses to give name and address; or (iii) if given is believed to be false Sec 24(3) CPC Sec 25 CPC – How persons arrested by penghulu are to be dealt with (i) Penghulu shall without unnecessary delay hand over the person arrested without a warrant to the nearest police officer or police station; and (ii) Police officer shall re-arrest that person arrested according to subsection 23 or 24.

2. Private Person 

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Sec 27(1) CPC (i) arrest any person who, is his view, commits a non-bailable and seizable offence or has been proclaimed under section 44; and (ii) shall without unnecessary delay hand over him to the nearest police office or police station  John Lewis & Co Ltd v Tims  The respondent and her daughter were detained by two store detctives of a shop until the managing director and the chief store detective heard the reports. Then the police were called. The respondent and her daughter were charged for shoplifting and released on bail. On the following day, the charge against the respondent was withdrawn whilst her daughter was charged and convicted. Both claimed damages for false imprisonment.  Held: There was no unnecessary delay in handing them over to the police because they were given an opportunity to answer the allegation of theft. Two interpretations to “in his view”: (i) Strict view: “in his sight” – Durga Singh, Karta Singh v State (ii) Wider interpretation: “in his opinion” – Walters v WH Smith & Son Ltd  Sam Hong Choy v PP  A private person heard a gunshot and shouts of help in a robbery and saw two men running away. He gave chase and arrested the accused.  HC held: When a man commits a non-bailable and seizable offence and then tries to escape, the whole transaction is treated as one transaction and a private person either sees him committing the offence or running immediately after the commission of the offence is entitled to arrest him.  The court construed the words ‘in his view’ to mean in his presence or within his sight.

3. Magistrate/ Justice of Peace  

Sec 30-31 CPC Hariharanand v The Jailor o 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 before another competent magistrate, failing which the arrest becomes illegal.

B. Mode of Arrest 1. Without warrant 

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Sec 15(1) CPC – Actually touch, confine the body; or submission to custody by word or action o Shaaban & Ors v Chong Fook Kam & Anor  Devlin LJ: Three situations tht constitutes a valid arrest 1. where a police officer states in terms tht he is arresting; or 2. a police officer uses force to restrain the person sought to be arrested; or 3. where a police officer makes it clear by words or conduct tht he will use force is necessary to prevent the person sought to be arrested from going where he may want to go. o Alderson v Booth  A police officer had said to the Defendant (Booth), “I shall have to ask you to come to the police station for further tests.”  Parker CJ held: Yes, a valid arrest construed. o Lee Cher Joo v Mohd Sharif Othman & Ors Where actual arrest required [Salleh bin Saad; Lim Kin Ann; Tan Chye Joo; Abdul Rahim Kalandari Mustan] Constructive Arrest [Tan Seow Chuan; Johaari bin Abdul Kadir; Rosyatimah bte Neza; Kang Ho Soh] Degree of force used: Section 15(2)/(3) CPC

2. With warrant 

Sec 38(1), (2) & Section 40-43 CPC

C. Rights of Persons Arrested 

Right to be informed of grounds of arrest

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(i) Article 5(3) FC (ii) Sec 28A(1) CPC (iii) Christie v Leachinsky (iv) Abdul Rahman v Tan Jo Koh Right to legal representation (i) Art 5(3) FC (ii) Sec 28A(2), (4) CPC (iii) Ooi Ah Phua v OCCI (iv) Saul Hamid (v) Lee Mau Seng (S’re) Right to communicate a relative/friend (i) Sec 28A(2), (3) CPC Exception to section 28A(2)-(7) (i) Sec 28A(8), (9) CPC Right to be brought before magistrate within 24 hours (i) Art 5(4) FC (ii) Sec 28(3) CPC [R Sivarasa; Rajisegar a/l Munisamy; Ramli b Salleh] (iii) Sec 117 & 119 CPC [Audrey Keong Mei Cheng; Leonard Teoh Hooi Leong; PP v Ayar] Right to bail (i) Maja anak Kus (ii) Kwang Hung Cheong

D. Remedies for Wrongful Arrest 

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Self-defence  May use force to resist illegal arrest  Ong Kee Seong; Khor Ah Kah; Kok Khee Civil action  Sue for damages for tort of assault; or trespass to person; or false imprisonment  Kok Khee; Tan Kay Teck; Tan Eng Hoe Writ of habeas corpus  Sec 365 CPC  Procedures: Sec 366-374 CPC  Uthayakumar a/l Ponnusamy; Puvaneswaran Murugiah; Muhammad Jailani Kason; Parasuraman a/l Velu; SK Tangaliswaran Krishnan; Murugan Suppramaniam

E. Criminal Proceedings 

General Rule: Illegality has no consequence in criminal pleadings

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 Samithan; Gabriel; Saw Kim Khai Exceptions:  Ong Kee Seong; Khor Ah Kah; Kor Khee

F. Warrant of Arrest and Summons 

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Warrant of arrest  Sec 38 CPC – Form of warrant of arrest  SeC 39 CPC – Court may direct by indorsement on warrant security to be taken  Sec 40 CPC – Warrants to whom directed  Sec 41 CPC – Notification of substance of warrant  Sec 42 CPC – Persons arrested to be brought before court without delay  Sec 43 CPC – Procedure on arrest of person outside local jurisdiction  Sec 47 CPC – Issue of warrant in lieu of or in additional to summons Summons – Sec 34-37 CPC Distinction between summons case and warrant case: Karpal Singh...