ARREST

is up to the court to decide. Was applied in

Mahmood v Govt of Malaysia

DEFINITION

Art 5(1) No person shall be deprived of his

personal liberty save in accordance of law.
Viscount Dilhorne in Spicer v Holt defines
arrest as deprivation of personal liberty
regardless of legality of an arrest.
Lord Devlin in Shaaban v Chong Fook Kam
define arrest wider than what was on S15 of CPC
mere words or action is sufficient to constitute an
arrest, and the accused should know that force
may be used in event of any attempt to escape.
Mahmood v Govt of Malaysia applied
definition by Lord Devlin where the action of
police oficer shooting and wounding the person
is justified as he is under the impression the
person is trying to resist the arrest by escaping
from a scene in which the oficer is under
impression as to be a crime scene.

b.
i.

ii.

c.
i.

HOW ARREST MADE

ii.
S15 of CPC Arrest is made by touching the
body of a person with the purpose to seize him
unless there is a voluntary submission, and a
police oficer is authorized to use any means
necessary to afect the arrest without causing
death except for ofence punishable by death or
life imprisonment.
However, Lord Devlin in Shaaban gave a wider
meaning to the definition of arrest and how it is
made.

iii.

MODE OF ARREST

d.
i.

S2 of CPC defined
a. Sizeable offence as an ofence which
police may ordinarily arrest without
warrant.
b. Non sizeable offence as an ofence which
police may not ordinarily arrest without
warrant.
Complaint is defined as an allegation of ofence
whether in writing or oral form.
Arrest with warrant
a. S5 of Subordinate Court Act, provide
Penghulu, Magistrate, Session Court may
issue warrant.
b. S38 of CPC the warrant must be in writing
and signed, and shall remain in force until
cancelled or executed

WHO CAN ARREST

a.
i.

ii.
iii.
iv.

Police officer & Penghulu (Sizeable offence /

without warrant)
S23 of CPC may arrest without warrant any
person for seizable ofence against whom
reasonable complaint is made, or against whom
credible information has been issued, or
against whom reasonable suspicion exist.
Tan Kay Teck v AG objective test is to be
used in determining reasonableness of a
complaint.
Hashim b Saud v Yahaya b Hashim
credible information is information that is
reliable or can be believed.
Shaaban v Chong Fook Kam reasonable
suspicion depends on the fact of the case and

ii.

Police officer & Penghulu (Non Sizeable

offence / with warrant)
S24 of CPC provide that police oficer and
penghulu may demand the name and address
of the person committing non seizable ofence,
and may arrest and brought to magistrate if
such person refuse to give name and address
or give a false name and address.
S25 of CPC furthermore provide that the
person arrested by penghulu shall, be brought
to nearest police oficer or nearest police
station to be re-arrested under S23 of CPC or
S24 of CPC.
Private person
S27 of CPC a person may arrest, a person who
in his view commits a non bailable and
seizable offence and without unnecessary
delay, produce him to the nearest police oficer
or police station.
PP v Sam Hong Choy court held that in his
view means in his presence or within his sight
that he should be certain that the person being
arrested is the ofender based on the close
proximity. He however cannot arrest base on
suspicion or information.
John Lewis v Timms court held that without
unnecessary delay is not applicable in this
case, as the delay was because the person
arresting is giving a chance to answer
allegation of theft.
Magistrate or Justice of Peace
S30 of CPC empower a magistrate and JoP to
arrest person committing ofence in his
presence within his local jurisdiction.
S31 of CPC provide that only magistrate may
authorize or arrest at any time for whose arrest
he is competent at the time & circumstances to
issue warrant.

ARREST
S112 of CPC
a. Police oficer may examine a person for his
statement in a police investigation for the
facts and circumstances of the case, and the
statement, where possible, shall be taken
down in writing and signed or afixed with
thumb print of the maker of statement.

S113 of CPC
a. The statement in obtained in the course of
police investigation may not be used as
evidence except;
The court may, in the interest of justice,
i.
direct the statement made be used to
impeach the credit of the witness.
ii.
The accused may use his own statement
during the course of investigation as
evidence to support his defense.
RIGHT OF AN ARRESTED PERSON
a. Right to be informed ground of arrest.
i.
Art 5(3) of FC ground of arrest must be
informed as soon as may be.
ii.
S28A (1) of CPC ground of arrest must be
informed as soon as may be.

Christie v Leachinsky provides that if the

reason of arrest was withheld, it would
amount to false imprisonment until the
ground of arrest is informed. The case
furthermore, laid down guideline governing
the right to be informed of ground of arrest.
Police oficer does not need to inform the
ground of arrest:
o If the arrested person knows the general
nature of the alleged ofence for which he
is arrested.
o If the person arrested himself makes it
practically impossible to inform him.

iii.

b. Right to legal counsel.

i.
Art 5(3) of FC he shall be allowed to consult
and defend by counsel.
ii.
S28A (2)/(4) of CPC police shall allow the
arrested person to communicate and to consult
with legal practitioner.
iii.
Ooi Ah Phua v OCCI Kedah/Perlis where
court held that the onus is on the police to
deny legal representation on the ground that it
may encourage fabrication of stories.
c.

Right to be produced before Magistrate.

i.
Art 5(4) of FC must be produce without
unnecessary delay within 24 hours
ii.
S28 (3) of CPC also provide 24 hours
exclusive time of journey to be produced to
Magistrate.

d. Right to communicate
i. S28A (2) / (3) of CPC police shall allowed the
arrested person to communicate with relative
or friend to inform of his whereabouts.
e. Right against wrongful arrest and detention
i.
PP v Ong Kee Seong where court stated that
a person has the right to defend himself or
property to an unlawful arrest.
ii.
Tan Kay Teck v AG where court held that a
person may bring civil action for unlawful
arrest. However, if the mistake is a genuine and
reasonable, by virtue of Tan Eng Hoe v AG,
damages may not be granted.
iii.
S365 of CPC allows a person that is illegally
detained to apply for habeas corpus.
iv.
In Saw Kim Hai v R, the court held a person
may only claim damages from wrongful arrest,
but it will not afect the court jurisdiction to try
him.

FIR

Not define in statutes.

It is information given to police as to the
commission or occurrence of an ofence.
The informer needs not to take an oath.
FIR is not substantial evidence.
S107 (1) of CPC Complaint or information of
an ofense to the police must be reduce into
writing if made orally.
Not a requirement to commencement of police
investigation.
Tan Cheng Kooi v PP Not important to be
held as evidence and inadmissible. It can be
used as corroborative or contradictive evidence.
S107 (4) of CPC police officer is duty bound to
receive any information in relation to any ofence
committed anywhere in Malaysia.

WHO CAN LODGE FIR

Eye-witness
Victim or aggravated person
Passer-by or hearsay
Police officer having knowledge or suspects the
occurrence of crime
Person aware of the occurrence of an ofence
without having personal knowledge
Relative or friend or well-wisher of the
aggravated person
The accused person himself

OMISSION TO MENTION PARTICULAR OF FIR

Omission of some complaint points in FIR can

have negative efect.
Lee Ah Seng v PP court dismissed the case
on the ground the complaint failed to mentioned
certain things in the FIR, which contradict the
sworn statement.

FAILURE TO REDUCE FIR INTO WRITING OR

FAILURE TO PRODUCE AT TRIAL

PP v Fong Chee Cheong High Court overturn

Session Court. FIR is not a condition precedent to
start criminal investigation. If FIR not reduce into
writing after commencement of investigation, it
is not admissible as evidence but can be used to
corroborate or contradict.

ADMISSIBILITY OF FIR & ENTITLEMENT TO

RECEIVE FIR COPY BY ACCUSED

Anuar Abdul Aziz v PP FIR is not substantive

evidence, but can be used to corroborate or
contradict testimony of witness. A report
pertaining to the arrest of an accused is not FIR
but an arrest report.
S51A of CPC provides that prosecution shall
deliver to the accused certain documents before
the commencement of the trial, e.g. FIR made
under S107 of CPC.

BAIL
Definition
a. Bail
o Yusof Mohamed v PP bail is a form of
security taken from a person as a guarantee
to appear on a fixed date before court for
trial.
b. Bond
o S173A & S294A provides bond is an
instrument binding on a person who
executes it whether to be of good behavior
or to appear in court.
Type of offences
a. Bailable offences
o S2 of CPC define it as an ofence being
st

shown bailable in the 1 Schedule of CPC

S387 (1) of CPC provides it that accused
is entitled to bail as of right for bailable
ofence.
Mohd Jalil v PP where court held word

shall be released on bail in S387 (1) of

CPC is mandatory thus, means as of right.
Maja anak Kus provides that right of bail
is subjected to remand order. And in such
cases, S117 of CPC (remand order) shall
supersedes S387 of CPC.

b. Non bailable offences

o S2 of CPC define non bailable ofences as
any other offences aside from ofences

st

being shown bailable in the 1 Schedule in

CPC.
S388 grant of bail for non bailable
ofences is at the discretion of court.

Unbailable offences
Ofence which bail is not allowed and is
outside the power of court. Mostly for
ofence under Dangerous Drug Act,
Essential (Security Cases) Regulation,
Firearms (Increased Penalties) Act.
st
Schedule in CPC
o Last paragraph of 1
provide that ofence punishable with less
than 3 years or fine only is bailable while
punishable with more than 3 years or
death is non bailable.
o However, the maxin of generalibus
specialia non derogant where general
things do not derived from special things,
thus, if a specific provision provides for bail
then it would supersedes the last
st
paragraph of 1
Schedule as was
illustrated in the case Chew Siew Luan.
Factors to consider for grant of bail

c.

PP v Wee Swee Siang

1. Reasonable ground to believe accused is
guilty.
2. Nature and gravity of seriousness of ofence.
3. Seriousness of the punishment.
4. Danger of breach of bail.
5. Accused character and status.
6. Danger of ofence being repeated if bail is
granted.
7. Danger of witness being tampered if released
on bail.
8. Opportunity to prepare for defense.
9. Long period of detention between date of
charge and trial.

Bail and condition

o PP v Dato Mat court cannot impose condition
on bail for bailable ofence except stating
amount and sureties as the bail is as of right.
o PP v Dato Balwant Singh provides
a. The purpose of bail is to secure attendance
in court during the afixed date for trial.
b. However, it may be inferred in S388 that
the grant of bail for non bailable ofence is
under the discretion of court.
c. In this case, as the accused was an old
man and sick, the grant of bail is in line
with the wording of S388.
d. The discretionary power of granting of bail
implies that the court may also impose
reasonable condition with the grant of bail.
e. The type of condition imposed with bail in

this case was:

To surrender firearms and all license
relating thereto to police.
ii.
To surrender all passport.
iii.
To report to police once in 2 weeks.
iv.
To remain indoors at 6p.m until 8a.m
v.
Not to present in open public places or
functions.
vi.
Not allowed to leave KL and PJ without
leave of court
Wong Kim Woon v PP provides that court
may revoke bail if accused breached the
fundamental bail term.
a. But the accused must first be given an
opportunity to be heard as to why the bail
should not be revoked.
i.

Zulkiflee bin Haji Hassan v PP provides that

bail is not a punishment but only a security to
secure attendance in court, thus it should not
be excessive and thus, the court reduce the
amount of bail in this case.

PARTIES

There must be parties at least 1 Plaintif and 1

Defendant
Parties in action (whether suing or being sued)
must be as follows:
a) Sui juris (age of majority); which the Age of
Majority Act provided as 18 years old.
b) Compos mentis (sound of mind); must not be
a patient as defined in Mental Disorder
Ordinance.
c) Acting personally (pursuing his own claim or
in a representative capacity).
Person not fulfilling the requirement of sui juris &
compos mentis is considered to be person under
disability.
a) Order 76 Rule 1 Rule of High Court 1980
(RHC) provided that person under disability is
an infant or a child.
b) Order 76 Rule 2(1) RHC provided person
under disability may be represented by his
next friend or guardian ad litem.
c) Order 76 Rule 3(2) RHC stated that the
representation made must be through a
solicitor.

WHO CAN BE THE PLAINTIFF/DEFENDANT?

Right to sue in person (Order 5 r6)

Corporation must be represented by solicitor
(Order 5 r6(2).
Person under disability (Order 76)
Firms/Partnership (Order 77)
Sole Proprietorship (Order 77 r9)
Societies (Section 9(c) of the Societies Act 1966)
Trade Unions
Government (Order 73)
YDPA (Article 183 of FC)
Deceased Persons (Section 8(1) of the Civil Law
Act 1956, Order 15 r7(2

Incorporated bodies/companies
a) A body shall have a corporate status upon
recognition under the Companies Act.
b) Section 16(5) of Companies Act provided that a
company may sue or be sued under its own

name as this section granted a legal status to a

company.
c) Order 5 Rule 6(2) Subordinate Court Rule
1980(SCR) provide that a company must act
through solicitor in its action.
Firm/Partnership
a) Section 6 of Partnership Act defined a firm as a
person who has entered partnership with
another.
b) Order 77 Rule 1 RHC provide a firm may sue or
be sued in the name of the firm.
Individual trading as a firm/ sole proprietor
business
a) Order 77 Rule 9 RHC provide that ;
i. He may be sued under the name of the
business.
ii. He however, may only sue under his own
name.
Estate of a deceased person.
a) Section 8(1) of Civil Law Act provides that cause
of action may survive against tortfeasor death
and by virtue of Order 15 Rule 6A RHC, action
may be taken against his estate.
b) A person may die in two ways;
i. Testate (with a will) Executor/Executrix
may sue on behalf of the estate prior to the
extraction of the grant but may not be sued
prior to the extraction.
ii. Intestate (without a will).
Representative Action
a) Order 15 Rule 12 RHC stated that where a
numerous person have the same interest in any
proceeding, be represented by one of the
interested person.
b) Vellasamy v Gurbachan Singh - 3 criteria for
representative action i) Common interest; ii)
Common grievance and; iii) And the relief sought
must be beneficial to all
Joinder of Parties
a) Order 15 Rule 4 RHC provide that two or more
persons may be joined together as p/f or d/f if;
i. If a separate action were brought, a same
question of law or fact would arise in all the
action and;
ii. The claims arise out of the same
transaction/series of transaction.

Cause
Standi

of

Action

Locus

Lim Kean v Choo Koon A cause of action

accrues when there is in existence a person who
can sue and another who can be sued, and when
all the facts have happened which are material to
be proved to etitled the plaintif to succeed.
Taib bin Awang v Mohamad bin Abdullah
The plaintif was convicted in the Kadis court.
Pending his appeal, he commenced an action
against the defendant for malicious prosecution.
The plaintifs action failed because his cause of
action was incomplete. This is because the
Plaintif failed to fulfill all elements of malicious
prosecution i.e. there must have been a previous
prosecution against the plaintif.
Locus Standi - The right of a party to bring an
action. Locus standi is the precedent condition
to a cause of action. Although a party may
have a cause of action to bring in court, he will

still be barred from that right if he does not have

the locus standi to start the proceeding.
Government of Malaysia v Lim Kit Siang The respondent filed a declaration that the letter
of intent issued by the Government to UEM in
respect of a construction of NSE highway.
Whether the respondent had a cause of action.
The respondent lack of locus standi to
pursue the action. He was not prejudiced with
the letter of intent and therefore had no cause of
action.

LIMITATIONS

Limitation period can be postponed or extended

on various grounds.
Therefore, the parties may plead extension of
limitation period even though prima facie, the
matter has exceeded its limitation.
The court have no power to extend a limitation
period in a statute unless it has been expressly
provided under the statute or any other written
law.

Limitations Act (LA)

Sec

Extension of limitation on the ground of:

S24

Disability
-

S26

The person whose rights under the

limitation period is described under the Act
and accrued when he was under a
disability, he may take an action at any
time before the expiration of 6 years from
the date he ceases to be under disability.
Phua Chin Chew & Ors v M.K. & Ors
Under sec 2(2) of LA, disability = an infant
or of unsound mind.
Revival of cause of action on
acknowledgment and part payment

S27
S28

S29

Applies to action to recover land/enforce a

mortgage/charge; the fresh accrual of
action accrued on the date of
acknowledgement or last payment.
Writing and signed by the person who
making the acknowledgment and it shall
bind other persons.
Fraud, concealment & mistake

The period of limitation does not begin to

run until the plaintif has discovered the
fraud, concealment or mistake or could
with reasonable diligence have discovered
it.
Beaman v A.R.T.S [1949]
Shephard v Cartwright [1953]
Credit Corporation (M) Bhd v Fong Tak Sin
Lim Yoke Kong v Sivapiran
Yong & Co v Wee Hood Teck Corp
Civil Law Act 1956
-

o
o

S7 (5) A claim for loss of support by the

dependant relatives shall be brought within 3
years after the death of the the person
deceased.
Kuan Hip Peng v Yap Yin & Anor
Ban Guan Hin Realty v Sunny Yap
S8 (3) - No action against the estate of deceased
person shall be instituted unless proceedings:
Were pending at the date of his death; or
Are taken not later than 6 months after his
personal
representative
took
out
representation.
Rinya ak Kassi v Wong Sie King
Order 16 r 6A: An executor cannot be sued until
the grant of probate is extracted or that an
administrator cannot be sued until the grant of
administration is extracted
Airey v Airey
Yong Siew Choon V Kerajaan Malaysia

Public Authorities Protection Act 1948

S2 action against the Government must be

taken within 36 months after the act complained
thereof.
Bradford Corporation v Myers
Lee Hock Ning v Government of Malaysia

ENFORCEMENT
JUDGEMENT

OF

Order 42 r1 Provides that every judgment

after trial must be pronounced in open court,
either immediately on the conclusion of the trial
or some other date.

Order 52 r2A Every judgment delivered in

open court shall be made available to the public
upon payment of fee.
METHODS OF ENFORCEMENT

Order 47 - Writ of Seizure & Sale

To seize and sell the property to satisfy the
judgment debtor.

Order 49 - Garnishee Proceeding

o Where a 3rd party owes monies to the judgment
debtor, the judgment debtor can seek court
order to compel the 3rd party to pay directly to
the judgment creditor to satisfy the debt.

Order 45 r 3 - Writ of Possession

Order 45 r4 - Writ of delivery

Order 50 - Charging Order

o Court may impose interest which judgment
debtor is beneficially entitled.
o The type of securities in which the Charging
Order may be imposed applies to government
stock, stock of any registered company under
any written law, or any dividend. Order 50 Rule
2
o

SUMMARY JUDGMENT

O14 R1 To obtain judgment before trial. Where

plaintif has unanswerable case, or defendant is
unable to provide defences, it is not justified to
make the plaintif wait.

TIME & GROUND FOR SUMMARY JUDGMENT

O14 R1
Defendant has enters an appearance.
After SOC have been served to defendant.
After plaintif shows that defendant has no
valid defences to the claim.

O14 R1 (2) Application of SJ is not applicable

in;

Allegation of fraud, seduction, breach of

promise to marry, malicious prosecution,
wrongful imprisonment, defamation.

PROCEDURE TO MAKE APPLICATION FOR SJ

O14 R2 The summons must be supported by
an affidavit that must state the deponent belief
that defendant has no reliable defence.

O14 R2A Provide that O32 R2 is applicable

Affidavit intended to be used in support of

the application must be filed and served to
the other party within 14 days of filing.

Court has discretion to dismiss or allow

adjournment o enable plaintif to rectify
omission (to file a corrective affidavit stating
deponents belief that defendant has defence
to the claim).
O14 R2 (3) The document in of application to
SJ must be served to other party in 14 days from
the issue of the summons.

O62 R6 afecting service

Leaving document at proper address of

defendant.

By prepaid registered post

By Court direction.

Business address of defendants solicitor.

Last known address.

Search FJ in National Company for Foreign

Trade v Kayu Raya

Order 14 application will only be considered if:

Defendant has entered an appearance.

SOC has been served to defendant.

O14 R2 has been complied issue summons

supported by affidavit stating deponent
belief that defendant has no reliable defence
to plaintifs claim.

Was further held that, O14 application will not be

allowed if;

No SOC has been served.

Endorsement on writ is outside the scope of

O14

The affidavit made in support of the

application is defective.

Be made against government.

Industrial Court

Adjudicatory Body established under the

Industrial Relations Act 1967 (IRA) [sections 21 until
33B]
Adjudication trade dispute between
employer-employee
(Industrial
Court)
(-after
Negotiation and Conciliation failed to settle trade
dispute)
Members of Industrial Court [section 21(1)
(a)(b)]
Number of members to convene the
proceedings of the Industrial Court section 22
Industrial Court has divisions, with Chairman
(as the Head of Division) section 23 [Presidentheads the Industrial Court]
Qualification of President of Industrial Court
& Chairman of any Division of the Court section
23A(1)

Methods/Modes of Reference to the Industrial

Court [section 26(1)(2)]
Parties that can attend the proceedings
before the Industrial Court (appearance and
representation) [section 27]
Powers of the Industrial Court [section 29]
Matters relevant to Award (Decision) of the
Industrial Court [section 30]
The binding efect of award on parties
[section 32]
Finality of award section 33B
Reference to the High Court on question of
law section 33A