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(11) CHIEF INSPECTOR (CI) (NO LONGER IN FORCE)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.loyarburok.com/.../comparison-police-powers-arrest-malaysia-united-kingdom