CHAPTER 2 : ARREST or action
Definition Arrest comprises of 2 situations:
- Deprivation of personal liberty by a
legal authority
- Apprehension of a person by legal
authority resulting in deprivation of his
personal liberty
Christie v Leachinsky
Arrest is the first step in a criminal
proceedings against a suspected
person
Article 5 FC - personal liberty as a
fundamental rights, therefore, arrest
must be done in accordance with
law
Types of arrest:
i. Arrest with warrant
ii. Arrest without warrant
* the difference between both is
depends on the type of offences
1) Modes of Arrest
Main Question : Whether an arrest
is valid or not (Ada arrest or tak ada
arrest?)
- why so important ? Because liberty
of individual arrested is at stake
How an arrest is made?
3 modes of arrest as stated in CPC:
S 15 (1) CPC -
i. Actually touching;
ii. Actually confining the body of the
pax sought to be arrested; or
iii. Submission to the custody by words
Nelfi Amiera Mizan
FOL MMU
i. Seizure or touching of a paxs
body with a view to his
retrain; or
ii. Words may amount to an
arrest if they are calculated to
bring and do bring notice, that
a pax is under compulsion
and he later submits to the
compulsion
Shaaban v Chong Fook Kam
1969
PC / L.Devlin
Issue: What element constitute a
valid arrest?
arrest is when PO states -
i- he is arresting; or
ii- he uses force to restrain the
individual concerned
iii- PO makes it clear by words or
conduct that he will use force if
necessary, to prevent the pax
concerned from going where he
may want to go
- However, Shaaban did not
discussed S 15 (1) CPC
* if PO stops someone to merely
make an inquiry - not arrest
Alderson v Booth 1969
COA/Parker CJ
Issue: What element constitute a
valid arrest?
F: PO had said to Df I shall have to
ask you to come to the police
station for further tests
H: BEFORE - there could be no
lawful arrest unless there was an
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actual seizing or touching
NOW - that is no longer the law.
may be arrest by mere words by
saying I arrest you without
touching provided the Df submits
and goes with the police officer
May be any form of words use and it
was calculated to bring and did
bring to the Dfs notice that he was
under compulsion and later he
submitted to that compulsion
* Shaaban use English concept
(Alderson v Booth)
Lee Cher Joo v Mohd Sharif 2009
F: Pfs claimed that they had been
wrongly arrested and detained by the
Dfs at the Buluh Kasap Police Station.
Pfs had gone to the police station at
6:30 pm in response to the request of
police officers. Then they were asked
by the officer to wait until 9:00pm and
subsequently arrested and detained at
the lock up of Segamat Police Station.
H: There was no arrest between 6:30
pm - 9:00 pm as they were asked by
the police officers 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 or agree
to wait is not equivalent to being put
under arrest and there was no
evidence that the Pf were
prevented from leaving at any
point of time. Further they went to
the police station by their own volition.
- S 15 does not provide constructive
arrest (Means that S 15 - actual arrest)
Amendment to Section 113 CPC
there is no requirement for caution
before effecting an arrest for
offenses under the PC
Nelfi Amiera Mizan
FOL MMU
A- Cases where actual arrest is
required before caution is
administered
- Sec. 113 CPC - there is no
requirement for caution before
effecting an arrest for offenses
under the PC.
Except caution is still needed:
for offences under:
- DDA 1952
- MACC 2009
- Kidnapping Act 1961
Admission of statements in
evidence:
1. If statement made before arrest
= admissible
2. If statement made after arrest ,
but without caution = x
admissible
3. If statement made after arrest,
and after caution - admissible
PP v Lim Hock Boon 1
F: Upon information receive, car of
accused was stop by police.
Window down and the accused
went off the car and police took the
key.
DC: There was arrest as there was
a confinement
H: actual or constructive not
helpful. Better terus submit S 15
(1) CPC
PP v Lim Hock Boon 2 2009
Nick Hashim
H: Arrest is actual arrest. Foll.
Salleh Saad
Jayaraman v PP
Suffian LP/FC
F: ASP did not administer the
cautions before the accused person
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made the statements. Issue was
whether there was arrest or not.
Rusuhan in tample, and police asked to
stay in tample.
H: There was no arrest and hence the
statement were admissible even no
caution was administered
- Arrest is a question of facts
PP v Salleh bin Saad 1983
Syed Agil Barakbah
F: Accused was charged with the
offence of drug trafficking. Acting on
information, the custom officers raided
the accuseds house.
- 2 sacks found in car which were
searched
- On being questioned by a senior
custom officer, the accused replied
they contained
morphine x9
Chandu x11
- Accused was then arrested and
taken together with his family to the
custom office where their statement
were duly recorded.
Issue: Wtr statement made before the
custom officer was admissible as no
statutory caution was administered?
- must consider wtr there was an
arrest when the statement was made
H: the words after his arrest in S 37A
(1) DDA [old CPC] mean after actual
arrest and not constructive arrest.
Judge opined that the accused was only
under constructive arrest when the
statement was made. Actual arrest only
took place when he was taken in.
Therefore, the custom officer does not
need to administer caution since there
was no arrest and hence his statement
was admissible.
[Situation 1]
PP V Lim Kin Ann 1988
Vorah J
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F: accused was charged with
trafficking on his own behalf 383
grammes of heroin in
contravention of Sec. 39(B) (1) (a)
DDA. Acting on information, the
police went to a house and found 4
person inside including the
accused. The police also recovered
3 suitcases.
- On being questioned, the
accused replied that the 2
suitcases belong to him.
- 1 of the 2 briefcases had the
name Lim.
The accused open it after being
ordered and police found 3 packets
which they suspected to contain
drugs. Police than handcuffed the
accused and informed all the 4
occupants that they were under
arrest
DC statement made by the
accused admitting ownership of
the 2 suitcases and all other
statement uttered by the accused
when the contents in the suitcases
were examined were inadmissible
under S 37A DDA because no
caution made. in the DDA because
no statutory caution was
administered.
- 4 person inside the room would
have been prevented from leaving
the room if they had attempted to
do so and their submission
amounted to their having been in
custody and therefore under arrest
[Situation 2]
H: LC Vorah J agreed with Salleh
Saad that after his arrest means
after actual arrest and held that at
the material time, a valid arrest
had not been effected yet and thus
there was no need for statutory
caution. Accused statement was
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admissible.
- custody shall not be equated with
arrest
[Ref. To Actual Arrest/no actual
arrest/situation 1]
Krishnan v PP
SC
F: A was charge with drug trafficking
under DDA. Cautions only administerd
after 2nd discovery of drugs
H: Since cautions was not administered
ASAP after arrest, the statement was
inadmissible
PP v Tan Chye Joo 1989
Wan Adnan J
F: Charged under S 39(B) DDA. Police
entered a premise and found 2 accused
person in hall. On searching the house,
the police found the biscuit tin in the
ceiling. When asked, 1st accused replied
that it contained ubat cina. This lid of
tin was removed and found substance
believe to be opium. 2 accused was
placed under arrest.
DC the statement made by 1st
accused ubat cina was not admissible
as at the time of making it, he was
already under arrest and there is no
caution [Situation 2]
- the accused was not fee to go as he
like when the search was on
H: accused was arrested only after
discovery of drugs in the biscuit tin,
hence the statement ubat cina was
admissible.
- Even it was said that the accused
was not free to go during the search it
does not mean that accused was
arrested and no evidence that he tried
to run
[Situation 1]
Abdul Rahim Kalandari 1998
Abdul Hamid Mohamah J
Nelfi Amiera Mizan
FOL MMU
F: Accuseds house was raided by
police and when they search the
house, they found a weighing scale
and few empty plastic bags. Police
asked the accused where are the
drug stored - upstairs
Police search the room and found 2
bags of cannabbis. Upon discovery,
police handcuffed the accused and
brought him to police station.
H: the arrest was only affected
when accused was handcuffed thus
the statement made by him before
the arrest was admissible.
B - Cases where constructive
arrest suffices before caution is
administered
PP v Tan Seow Chuan 1985
Peh Swee Chin J
F: Acting on information received
that the offence relating to
dangerous drug was being
committed , the police raided the
house and asked the accused, an
old man, infirm and sickly to show
them the room. On searching, the
police found certain items which
contained a substance which was
later analyzed and found to be
opium. Accused was charged for
drug trafficking.
H: Accused was under arrest as
soon as police officer showed his
authority card and accused was
guarded by a corporal although
there were no handcuffs or words
of arrest. Since no caution was
administered, the accused
statement was inadmissible.
- the police were acting on prior
information when they raided the
accuseds house as opposed to
making a routine check without
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anticipating of finding anything. are not to be treated as law

PP v Johari Abdul Kadir S 15 (2) CPC - if a person

F: Accused was charged under 39B DDA resist an arrest, then the
H: Accused was under arrest when he police / other pax making arrest
was taken from the bus to police may use all means necessary to
station where cannabis was found in effect the arrest
bag opened by the accused. Since no S 15 (3) CPC - officer / other
caution was administered, the person does not have the right
statement inadmissible. to cause the death of a person
who is not the accused of an
PP v Rosyatimah Neza 1989 offence punishable by death or
Pah Swee Chin J life imprisonment
F: Acting on information, PO raided a
shop house. Upon searching, Police
found a bag of cannabis. When asked,
1st accused said it belonged to her bf,
2nd accused.
H: 1st accused was under arrest when
she made the statement that the bag
belong to her bf after police found the
cannabis in the bag. Since no caution,
her statement is inadmissible.

PR v Kang Ho Soh
Shankar J
F: Acting on information, police set up a
road block and stopped the accused.
When asked to come out of car,
accused resisted and put up struggle
before going to the boot. On being
questioned, accused belong the bag
belong to him, which later police found
heroin in the bag.
H:
1 - Whenever a pax was stopped by the
police as a result of prior information, it
would constitute arrest. at road block, it
constitute arrest
2 - When pax stopped by police as a
result of a general enquiry, there was
no arrest
- Judge did not find the distinction 2) Persons who may
between constructive and legal arrest is
helpful. Each decision should be made arrest
on facts of case and conclusion of facts

Nelfi Amiera Mizan 5

FOL MMU
i. Police officer
ii. Penghulu
iii. Magistrate
iv. Justice of Peace
v. Private person Sec. 2 CPC : complaint -
allegation made orally or in
A) Police Officer & Penghulu writing to a magistrate with a
view to his taking action under
Def: any member of the Royal CPC that a person known or
Malaysian Police and includes an officer unknown has committed or is
from the rank of police constable up to guilty of an offence
Inspector General of Police - Sec. 2 of
Police Act
A) Reasonable
Way of arrest:
i. Seizable
Complaint
ii. Non-seizable
Tan Kay Teck v AG 1957
a) Seizable offcence An objective test is to be used to
Def: determine whether a complaint is
Sec. 2 (1) CPC - offence on which reasonable or not
PO may ordinarily arrest without a F: subcontractor complaint to
warrant according to the 3rd police that he was confined by the
column of 1st Schedule. contractor in a room to discuss
- offences under PC which are payment of the work done but he
punishable with imprisonment of 3 refuse to accept lower payment.
years and above Contractor was arrested and
- Eg: Sec. 379 PC , Theft charged under S347 PC for
wrongful confinement to extort
Sec. 23 (1) (a) - (k) CPC - money. However, the contractor
situations which empowers police was acquitted later and he claimed
officer/penghulu to arrest without damages for wrongful arrest
warrant H: No reasonable complaint on the
facts
- Eg: Sec 23 (1) (a) - if any seizable
offence committed, police
officer/penghulu may arrest without B)Credible Information
warrant any person who has been
- information that is reliable or
concerned in any such offence or
can be believed
against whom:
- Bare assertion without anything
A reasonable complaint has been
more cannot amount to credible
made
information
A credible information has been
received Hashim Saud v Yahaya Hashim
Reasonable suspicion exists Harun J

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FOL MMU
F: Report was lodged that an electricity
generator was stolen. Pf was arrested
by PO (Sgt. Mohamad) as instructed by
Inspector (Yahaya) without warrant and
based on information given by
informant regarding a stolen cement
mixer. Police obtain remand under sec.
117 CPC for investigation. Pf brought
action against Df for wrongful
detention.
H: Information against Pf was credible
in previous cases, information given by
informant was proved reliable as it
led to arrest, prosecution and
convictions. Therefore, arrest without
warrant was lawful not only on credible
information but also on reasonable
suspicion.
C) Reasonable Suspicion
Tan Eng Hoe v AG 1933
F: Applicant ws mistakenly arrested for
cheating case as he fit the description
of an offender (Seah Eng Tan)
- both stayed at same hotel at the
material time
- about same age
- from Malacca
- names sounded familiar
- wore same cloths
- carried black bags
Applicant sued for wrongful arrest
H: reasonable man would have
suspected the applicant as the
offender where there were so many
similarities. PO was justified in
arresting.
Nor Maziah v Mohd Haris Abd
Rahim 2009
F: Pf was arrested in a hotel coffee shop
for suspicion of baby dumping at a
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nearby building. Witnesses
claimed:
- they saw a teenage girl with
blood stains on her back around
that area
- janitors gave a photofit
description of a girl with a black
plastic bag at the toilet
- a couple at the hotel coffee shop
- Pf and her bf checked in and their
bed had patches of blood
The police then arrested Pf and her
bf and detained. She was subjected
to a medical examination in which
results shows that she was never
regnant before
H: Ct dismissed the application for
wrongful arrest as there was
reasonable suspicion based on
the facts for the PO to arrest Pf and
her bf.
Shaaban v Chong Fook Kam
1969
L. Devlin
F: 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. 2 Resp were arrested
and detained on suspicion that one
of them had driven the lorry in a
rash and negligent manner which
results for the falling of the wood.
The explanation of alibi were found
to be false and they were further
detained.
P:
Distinction btwn prima facie
proof and reasonable suspicion
1. Suspicion is a stage of
conjecture or surmise whilst
proof is lacking
2. Suspicion arises at or near the
starting point of a police
investigation of which the
obtaining of prima facie proof is
at the end
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3. 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; disagree that there ought
to be a prima facie proof before an
arrest could be made. Suspicion is
the starting point of police
investigation where prima facie
proof is at the end of police
investigation.
- Eg: After 15 days of arrest is
allowed under CPC, this shows that
prima facie proof is not prerequisite for
arrest
- There were 2 stages of arrest:
i. When police detained 2 resp when
he suspected that one of them had
driven the lorry was unlawful
because circumstances were such
that there were no reasonable
suspicion
ii. When defence alibi was discounted,
they were further detained, the
arrest and detention were lawful as
there were reasonable suspicion
that one of them had driven the
lorry
Lee Cher Joo v Mohd Sharif Othman
2009
HC
Foll. Shaaban : reasonable suspicion
that one has committed an offence is
enough to effect an arrest and the
standard is much lower than required to
show the existence of a prima facie
case
Mahmood v GOM 1974
F: Pf sued Df alleging that he was
Nelfi Amiera Mizan
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unlawfully and negligently shot at
and wounded by a PO at Lake
Gardens.
Defence: PO was doing his duty
as PO heard screams of help from
a women at 2am and two men
running away.
H: Court will decide wtr there exist
sufficient grounds to raise a
reasonable suspicion. Wtr there
is a reasonable suspicion depends
on its facts and it is for the ct to
decide
- PO had reasonable suspicion
that a seizable offence had been
committed & the PO had not
exceeded this power under
S.15(2) CPC as he may use all
means necessary to effect the
arrest
Whether an arrest was lawful?
Masa a/k Nangkai v Sgt Edwin
Nancha 2004/2005
F: Upon receiving information, PO
arrested 1st Pf and 5 others who
were suspected to be connected
with the victim who had been
murdered. Suspicion was based on:
- all pfs and victim were present in
a drinking session when a fight
took place involving deceased who
was then reported missing. 1st Pf
was released due to insufficient
evidence. He later brought an
action alleging his arrest was
without warrant and wrongful
H:
- To make a lawful arrest under
Sec. 23 (1) (a) CPC, PO mus had
credible information or
reasonable suspicion that the 1st
Pf was involved in a seizable
offence.
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- For reasonable suspicion, there is
no need to establish prima facie proof
that the first Pf has committed the
offence (Foll. Shaaban) - on facts there
is reasonable suspicion
- detention of Pf for 8 days was lawful
as Mg. Had given remand order under
Sec. 117 CPC
- If arrest was wrongful, nominal
damages of RM 5,000 may be awarded
as general damages
Mohammad Shafiq Dollah v Sarjan
Mejar Abd Manaf Jusoh 2013
F: Pf and Hafiz filed 2 separate claims
for wrongful arrest against the Df. Both
Pf was arrested as they were suspected
to be involve in theft of motorcycle.
They were abused while under arrest
and the injuries were severe as they
need to get medical treatment
H: Foll Masa ak Nangkai - S 23 (1) (a)
CPC only apply if there was reasonable
suspicion for arrest and police has
failed to est that.
Saul Hamid v Inspector Abdul
Fattah 2007
COA
F: 2 different versions of police reports
regarding offences lodges by Sukah and
Pf.
H: Ct dismissed Pfs appeal on grounds
that the Df had acted reasonably in
deciding to arrest the Pf based on his
suspicion at the time of arrest
- Df belived he report by Sukah and not
by Pf. He took into consideration the
Pfs body size and said through his
experience, Sukah could not be an
aggressor. As to Pfs allegation that he
was assaulted, Df observed that there
ws no marks of injuries. Df also
consulted his superior and they were
satisfies that the report by Sukah was
reasonable.
Nelfi Amiera Mizan
FOL MMU
Other situations under CPC
where Police Officer / Penghulu
may arrest without warrant:
When any person in possession
of any implement of house
breaking without lawful excuse
- Sec. 23 (1) (b)
Proclaimed under Sec. 44
(absconded) - Sec. 23 (1) (c)
Suspected to posses stolen
property - Sec. 23 (1) (d)
Obstruct the duty of PO or
escapes or attempts to escape -
Sec. 23 (1) (e)
Suspected of deserting the
Armed Forces of the Federation
Sec. 23 (1) (f)
Hiding himself with intent to
commit a seizable offence -
Sec. 23 (1) (g)
Who cannot account for his
standard of living - Sec. 23 (1)
(h)
Habitual criminal - Sec. 23 (1)
(i)
Who is in the act of committing
a breach of peace - Sec. 23 (1)
(j)
Who fails to comply Sec. 296
COC under PO supervision -
Sec. 23 (1) (k)
(b) Non-Seizable Offence
Sec. 2 CPC - offence for which
a PO may not ordinarily
arrest without warrant
according to the 3rd column of
the 1st Schedule of CPC
- offences under PC which are
punishable with imprisonment of
less than 3 years are non-seizable
offence
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- Eg: Sec. 417 PC, cheating
When can police/penghulu arrest for
non-seizable offences without
warrant?
- Sec. 24 CPC , may arrest without
warrant any person who commits or
accused of committing non-seizable
offence in his presence and refuses to
give his name and address (or if given
it was believe to be false)
- purpose of arrest is to ascertain his
true name or residence and person
must be brought before a Mg. within
24H excluding the time of journey
- If his true name / residence is
ascertained before 24H, he must be
released on his executing bond for his
appearance before a Mg. if so required
Saul Hamid v Inspektor Abdul
Fattah
F: Pf had been investigated on
suspicion of committing Robbery Sec.
392 PC (Seizable) & Sec. 323 PC (Non-
Seizable)
H: Df did not need warrant for Sec. 323
PCas Pf had lawfully arrested and
detained for committing offence under
Sec. 392 PC
What Penghulu must do after
arrest ?
Sec. 25 CPC - compels him to hand
over the arrested person to the
nearest PO/ PS without unnecessary
delay
- PO need to rearrest such person so
arrested
- In rearresting, PO has to examine
wheter offence is seizable or non-
seizable
B) Magistrate / JP
S 30 CPC - to arrest or authorise
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any person to arrest an
offender who has committed an
offence in his presence and
within the local limits of his
jurisdiction
S 31 CPC - 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
warrant
Hariharanand v The Jailor 1954
F: Mg. arresting a person under the
power given should not, legally and
morally, try the case himself. The
person so arrested by the mg shall
be produced before another mg
within 24H. If fail, arrest is illegal
Queen Empress v Venkana
The person so arrested by Mg.
Shall be produced within 24H
before another competent Mg. If
fail arrest was illegal
C) Private Persons
S. 27 CPC - 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 - absconded. Private
person must then without
unnecessary delay hand over
such person so arrested to the
nearest police officer/police
station
- Police officer will examine case
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and shall re arrest under S 23 and 24
S 27 (4) - If no reason to believe
that arrested person has committed
an offence, he shall be released
S 28 CPC - person must be brought
before a mg within 24H
2 interpretation on words in his
view:
i. Strict - in his sight
Durga Singh & Kartar Singh v
State
ii. Wide - in his opinion
Walters v Smith
Without necessary delay
John Lewis v Tims
F: Resp and her daughter were
detained by 2 store detectives of
shop until the MD heard the
reports. Later police was called.
Resp and daughter were charged
for shoplifting and Resps charge
withdrawn, but daughter was
charged and convicted. Both claim
damages
H: There was no unnecessary delay
in handling them to police because
they were given opportunity to
answer the allegation of theft

Sam Hong Choy v PP 1999

HC
F: Private person heard a gunshot and
shouts of help in a robbery and saw 2
men running away. He chase and
arrested the accused.
H: when the man commits a non-
bailable and seizable offence and then
tries to escape. The whole transaction
is treated as 1 transaction and a private
person who either sees him committing
the offence or running immediately
after the commission of the offence is
entitle to arrest him
- in his view = in his presence or
within his sight
- cover situation that although the
private person did not actually witness
a non-bailable and seizable offence
being committed but he was certain
that the persons running away or trying
to escape were offenders in such a
close proximity to the scene of the
crime
- private person cannot arrest on
mere suspicion/information receive no
matter how credible
H: (COA) agree with HC
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