Criminal Procedure CODE Cheat Sheet PDF

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CRIMINAL PROCEDURE CODE I CHEAT SHEET BY AMIRAH ISRAFI LEB150097/ UNIVERSITI MALAYA/ 44 TH BATCH ARREST(Power is discretionary & not mandatory) Must be exercised carefully  R v Inwood: “It all depends on the circumstances of any particular case whether in fact it has been shown that a man has been arrested, and the court considers it unwise to say that there should be any particular formula followed. No formula will suit every case and it may well be that different procedures might have to be followed with different persons depending on their age, ethnic origin, knowledge of English, intellectual qualities, physical or mental disabilities. There is no magic formula; only the obligation to make it plain to the suspect by what is said and done that he is no longer a free man.” Art 5: No person shall be deprived of his life or personal liberty save in accordance with law. Who can arrest without warrant: Police/ Mgt/ Penghulu/ Private Person Writ can be issued by: Session Ct (Registrar)/ Mgt on either class Without warrant: s23(1) CPC When police or penghulu may arrest without warrant How may arrest: s15 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. Degree: s15 CPC (1) Touch/confine unless there is submission to custody by word/ action. If resist (2) use all means necessary. (3) Does not give right to cause death if not punishable with death/ imprisonment for life  Lim Hock Boon: 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.

arrested and charged under S347 of the Penal Code for wrongful  Metro (Golden Mile) Pte Ltd: Strict view. Commission of offence in his sight. Then only can be rendered as lawful arrest. Must witness the confinement to extort money. The contractor was acquitted and discharged. Then claimed damages for wrongful arrest. Court held that commission of the offence! there was no reasonable complaint on the facts.  Walters v WH Smith (Common Law): It is necessary for a private person to prove that the same felony had been committed. The offence Credible information had been committed in front of the eyes! Information that is reliable or can be believed. Bare assertion without anything more cannot amount to credible information. Without unnecessary delay  Hashim bin Saud v Yahya bin Hashim There have been information  John Lewis & Co Ltd: The Resp and her daughter were detained by two store detectives of a shop until the managing director and the chief given to the police that the accused were involved in electricity store heard the reports. Then the police were called. Charged for generator and cement mixture theft. The police obtained remand order shoplifting. Court held - no unnecessary delay in handing them over to for further investigation.The plaintiff brought an action against the the police because they were given the opportunity to answer the defendants for wrongful detention. The information must be credible allegation of theft. before arrest can be made. In this case, it was credible because the informant was credible and in the past, he had given credible Arrest with Warrant information. Reasonable Suspicion Depends on facts and it is for the court to decide.

Section 41

Section 42  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 RIGHTS & REMEDIES FOR ARRESTED PERSON did not stop. The two Resps were arrested at 7 am on July 11 and detained on suspicion that one of them had driven the lorry in a rash Possible remedies: Right to private self defence/ habeas corpus/ damages and negligent manner. Their alibi found to be false and they were further detained. Lawfulness of arrest made by the police officer, there Rights to be informed on ground of arrest were two stages of arrest in this case as follows:

2. 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.

Art 5(3) FC: Right to be informed on ground of arrest (Read together with s28A CPC)  Christie & Anor v Leachinsky provides that if the reason of arrest was withheld, it would amount to false imprisonment until the ground of arrest is informed. Police officer d on’ t need to inform ground of arrest:

 Shaaban & Ors v Chong Fook Kam: Privy Council - 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: 1) Where a police officer states in terms that he is arresting

the nearest Magistrate unless before that time his true name and residence are ascertained.

2) Police officer uses force to restrain the person sought to be arrested

Arrest by Penghulu - S25 CPC

3) 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.

Arrest by private person - S27 CPC

 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.

Reasonable Complaint S2 CPC definition of complaint  Tan Kay Teck & Anor: An objective test is to be used to determine whether a complaint is reasonable or not. 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

s28 CPC Computation of 24 hours s54(1)(b) Interpretation Act if last day of the period includes excluded day, the period shall be included the following day which is not included. it’s not applicable for holidays within 6 days S117 CPC Procedure where investigation cannot complete within 24 hours  Re Detention of R Sivarasa & Ors: 'It will be noted that sections 28 and 117 have been inserted into the Criminal Procedure Code for a good reason, so that the detention by the police of a person beyond 24 hours after his arrest is not as a result of an executive act but as a result of a judicial decision in consonance with Article 5(4) of the federal Constitution.'  Ramli bin Salleh v Inspector Yahya b. Hashim judicial discretion to order the remand of the arrested person under Section 117 of the Criminal Procedure Code should be exercised sparingly, and among other factors to be taken into consideration before making such order are, the seriousness of the offence, and whether a shorter period would be sufficient to enable the police to complete investigation. Right to be release pending trial i.e. right to bail

1. When the corporal detained the two Resps 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.

1. If the arrested person knows the general nature of the alleged offence for which he is arrested.  Mahmood v Govt of Malaysia the plaintiff sued defendants alleging that he was negligently shot at and wounded by a police officer at the 2. If the person arrested makes it practically impossible to inform him. 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 Right to legal representative two men running away. The police officer had a reasonable suspicion that a seizable offence had been committed.The Court held that the  Ooi Ah Phua v Officer-in-Charge: 'The right of an arrested person to consult his lawyer begins from the moment of arrest but that right police officer had not exceeded his power under S15(2) of the CPC as he may use all necessary mean to effect the arrest cannot be exercised immediately after arrest. ...' balance has to be made between the rights of arrested person to have a lawyer and the  Tan Eng Hoe v AG The App was mistakenly arrested for a cheating duty of the police officer to ensure that the public is protected. case as he fitted the description of an offender, Seah Eng Tan where both of them hotel, age, region, attire and bags are similar. Held  Ramli bin Salleh v Inspector Yahaya bin Hashim: In order to satisfy reasonable man would have suspected - RS exists the constitutional requirement of clause (1) of Article 5 that right should be subject to certain legitimate restrictions which necessarily S24 CPC: Police officer/ penghulu- non seizable offence- name or arise in the course of police investigation, the main object being to residence may be ascertained, and he shall, within twenty-four hours of ensure a proper and speedy trial in the court of law;' the arrest, exclusive of the time necessary for the journey, be taken before

Fed Court - on the facts, it cannot be said that the Resp had been arrested by PW8 when he blocked the Resp's car and switched off the engine and took possessions of the keys, for he had stopped him to make inquiries.

Art 5(4) FC: Right of an arrested person to be produced before a Magistrate without unreasonable delay, and in any case within 24 hours of arrest.

In his view

 Mohamad Ezam Mohd Nor & Ors v Menteri Dalam Negeri & Ors The app had been arrested for an offence under the Police Act 1967. While under the said detention, the applicants were accorded right of access to counsel,but only allowed within the sight and hearing of the officers of the centre, and not otherwise. The app averred that it is an illegitimate restraint to their right to consult their counsel in confidence, and was in breach of their fundamental rights as enshrined in Article 5(3) of the Federal Constitution. The said application, however, was dismissed.

Art 5(4) FC S29 CPC Release of person arrested S387 CPC for “bailable offences” (when person may be released on bail) S388 CPC for “non-bailable offences” (when a person accused of non-bailable offence may be released on bail) S117 CPC  Re Detention of R Sivarasa & Ors: Check case above  Re Detention of Leonard Teoh: The investigation diary was produced, plus a letter from the investigating officerwith reasons why they should detain the accused. The diary contained contemporaneous detail on what the police had done so far. The mgt was right in issuing remand.  Abdul Ghani Haroon Right to remain silent S112 CPC  Omar bin Daud & Anor v Public Prosecutor the accused was asked to explain why he had elected to say nothing when he was cautioned. In disallowing the question Edgar Joseph Jr J said: 'I disallowed that question because, in my view, in electing to remain silent the accused was merely exercising a legal right and therefore no inference of guilt could be drawn against him.' Self Defence

 PP v Kok Khee Hawking vegetables without license. Using criminal  PP v Sam Hong Choy: In his view to mean his presence or within his force on a police constable in the execution of his duty. Police did not sight. cover situations that although private person did not actually give grounds for arrest. Confiscated the dacing and accused assaulted witness a non-balaible and seizable offence being committed, but he  Saul Hamid v PP Arrested person has the right to be represented by a the officer by hitting the dacing on the police constable. It was held that was certain that the persons running away or trying to escape were the offender was justified in putting up a struggle since he was resisting practitioner during remand proceeding before a Magistrate under offenders themselves as he was in such a close proximity to the scene of an illegal arrest or unjustifiable use of force towards him s117. the crime. A private person cannot therefore arrest on mere suspicion or on information received no matter how credible the information is. Habeas Corpus The Right to Production before a Magistrate S5(2) FC

CRIMINAL PROCEDURE CODE I CHEAT SHEET BY AMIRAH ISRAFI LEB150097/ UNIVERSITI MALAYA/ 44 TH BATCH  Omar b. Daud v PP the accused was asked to explain why he had elected to say nothing when he was cautioned. In disallowing the question Edgar Joseph Jr J said: 'I disallowed that question because, in my view, in electing to remain silent the accused was merely exercising a legal right and therefore no inference of guilt could be drawn against him.

 SEIZURE S20 CPC police officer may seize / kept any items which may relate to the crime until such arrested person is discharge / acquitted from such offence. S21 CPC The officer who making an arrest may seize any offensive weapon from the arrested person.

Damages s62A Counterfeit coin s62B Counterfeit currency  Saw Kim Hai v R, the court held a person may only claim damages from wrongful arrest, but it will not affect the court jurisdiction to try him. SEARCH &SEIZURE

S64 CPC List of items seized via search must be served & signed by officer in charge of search S435 CPC Power of member of police to seize

 SEARCH

s413 CPC Procedure for seizure

Types: (1) Body (2) Person/ premise (3)Premise (with/ without warrant)

s414 Duration to claim property & expiration of 6 months after public notification

1. Body search

S172 of 2nd schedule Such charge must be signed by PP. If he kept silence, this is equivalent to the act of demanding for trial / defence. S152 Contents of charge S153 Contents of charge in different situations S154 & Illustration (b) When the offence does not give sufficient notice on the matter of the charge, the charge should be added with particulars Illustration (b) Charge must set out manner S155 Every words used must related to offence S156 Errors are not fatal unless accused misled by it. Can be cured via s422 S158 Court has power to alter / amend the charge at any time before the judgment is pronounced. Every amendment has to be reread and explained to the accused. Lim Beh v Opium Farmer The offence must be stated precisely & positively, so that the accused may know with certainty what he is charged on. This will enable him to answer the charge in the best possible way.

best position for the court to decide clearly on what is actually the COA is the accused is required to meet. Letchumanan a/l Suppiah As per S3 of CJA, no final order over the charge. Here, the FC held that PP can always appeal vs the decision of the COA that ordered the charge to be amended from trafficking to only possession. Procedure after the amendment of charge S158(2): New amended charge shall be read & explained to the accused. S173(i): The charge amended must be read to the accused and asked him whether he is guilty of the offence stated in such amended charge? Either

S159: (PLEA) The court shall call upon the accused to state whether he is Margarita B Cruz The charge in this case was appeared as if it had gone ready to be tried based on such amended charge. Then court may proceed into the mangling machine. It is so badly drafted. DPP and magistrate with the trial immediately; or as stated in S160: The court may adjourn the trial / order new trial with the basis using such amended charge. should read the provision in the Act which create the offence.

s415 Items perishable/small value S17 CPC: In the presence of Mgt/ Justice of Peace/ Public Officer not below the rank of Inspector

s416 If owner absent

Low Kiat Leng The date of the offence is not always significant unless it us a material part of the alleged offence.

or: S161: (STAY PROCEEDING) – compulsory to provide sanction.

S19(ii) A search upon a woman shall be conducted by another woman officer & must be done with full decency S20 CPC Valid search by Police Officer/ Private person S20A CPC Procedure for search of person S22 CPC Search allowed to obtain name/ address of person 4th Schedule CPC:(1)Pat down (2)Strip (3)Intimate (4) Intrusive 2. Person in Premise search S17 CPC search with warrant done by police not below Inspector/ Mgt/ Justice of Peace s58 CPC Person is wrongfully confined, Mgt may grant warrant to search that person and later make order accordingly 3. Premise/ Place search S51 CPC Power to get property with existence of summon With warrant S54(2): Possibility of property would not be produced/ not known/ required for the purpose of justice

 Chic Fashion (West Wales) Ltd v Jones The police with the search warrant has look for the goods which had been stolen from the Ian Peters Ltd. They did not find any specified goods but instead seized goods of other makes of the kind which had been stolen previously & which the police thought to be stolen. It turned out later that such goods were not the stolen goods. The Pf sued police for trespass. It was held that the police was not liable for trespass. Lord Denning in his judgment stated that when a police enters a premise with the search warrant, he is not only entitle to seize the property listed in the warrant but also empowered to seize any property that he is reasonably believes to have been stolen & to be material evidence on the charge of stealing. (Similar to S435 of CPC) Lord Denning also added that so long as he acted reasonably and did not retain them longer than necessary, he is protected. The lawfulness of the police conduct must be judges at the time when the incident occurred & not by what happen afterwards.  Ghani & Ors v Jones A Pakistan girl has went missing and was believed to have been killed. Police, out of reasonable suspicion has seized the dad in law, mom in law, and sister in law’s passport and several letters. Later, the pf (all the above) claim vs the police to get back their travel documents & damages. The lawfulness of the police in conducting such search must be judged at the time when incident occurs not afterwards. In this case, the police have failed to prove that such passports & letters are material evidence for the murder of the Pakistan woman. When there is unlawful seize, the police is not just committing a trespass over a person, but also such seized property cannot at all be admitted / accepted by the court.

Dato’ Seri Anwar Ibrahim The date of the offence as if its stated within the charge would signify that such date is material and significant for the alleged offence.

S162: Witness shall be allowed to be recalled.

To Cure Errors As Per Under S422

S173(j)(iii): IF HE IS CALLED TO ENTER HIS DEFENCE - The accused shall be allowed to produce his evidence + to recall the witnesses + cross-examine any witnesses present.

Ishak Shaari As CPC is procedural in nature, it is designed to further the end of justice & not to frustrate them by introducing the endless technicalities. Amendment of Charge S158: (Refer above) S173(h)(ii): Court to amend charge if there is a prima facie for another offence to be in existence. 173(i): The charge amended must be read to the accused and asked him whether he is guilty of the offence stated in such amended charge.

S153(2): CBT (Where the commission of such offence more than once may be put together as in the manner prescribed in S164)

S173(j)(ii): If He Does Not Pleaded Gulity

1 Charge, 1 trial

S173(j)(iii): If He Is Called To Enter His Defence

Except for;

PROVISO: However if the accused is to be called as a witness, his evidence must be tak...