ARREST / TANGKAPAN

1
 Learning outcomes
Know the meaning of ARREST and the
situations where a person is said to have been
arrested
Powers of the police and private person
(preman) to arrest
Rights (the arrested person) and
responsibilities (of the arresting authority)
upon arrest

2
 An arrest involves the restraint of a
persons liberty of movement and is
usually done in order to oblige a
person to be obedient to the law.

3
 R v Inwood [1973] 1 WLR 647
what must be done to constitute an
arrest?
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. Whether that
obligation has been discharged is a
question of fact, not of law.
4
 Article 5 of the Federal Constitution
provides that there can be no
deprivation of the personal liberty of
a person save in accordance with
law.

5
WHO CAN EFFECT AN ARREST ?

6
4 categories of individuals:

Police
Penghulu
Officer

Magistrate/
Private
Justice of
Person
Peace

7
 All the abovestated persons may effect such
arrests without having a prior warrant
arrests may also be effected with warrants
issued by either the Sessions Court, its
Registrar or Magistrate of either class

8
Arrest without warrant by a
police officer/penghulu
Section 23(1) lists out 11 categories where
a police officer or penghulu may arrest a
person without any order from a
Magistrate and without a warrant.

9
 there exists various provisions for arrest without a
warrant in other statutes, namely the DDA 1952 and
the Police Act 1967.
Section 31 allows any police officer or customs
officer to arrest without a warrant any person whom
he reasonably believes to have committed or to be
committing an offence against the Act. A penghulu is
not similarly empowered.

10
 Power to arrest is discretionary and not
mandatory!
Must be exercised carefully

11
Section 23(i)(a) sets out four
categories of persons
against whom arrest can be effected
without warrant

12
 any person who has been concerned in any
seizable offence commited anywhere in
Malaysia;
any person against whom a reasonable
complaint has been made.
any person against whom credible
information has been received..
any person against whom reasonable
suspicion exists..

13
 any police officer

A Police officer means any member of the

Royal Malaysia Police, from the rank of police
constable all the way to the Inspector General
of Police (IGP)[1] and includes any policer who
is acting, on probation or on cadetship

[1] Police Act 1967 (Act 344) s 2(1).

14
 penghulu
A Penghulu means a penghulu authorized by kuasa
to hold court and includes a penggawa, an assistant
penggawa and an assistant penghulu with like
authority
similar powers to that of a police officer
However, whenever a penghulu makes an arrest
without a warrant he is obliged to make over the
person so arrested to the nearest police station

15
MODE of ARREST

Section 15 CPC

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 S 15 Arrest, how made
(1) In making an arrest the PO or other person making
the same shall actually touch or confine the body
of the person to be arrested unless there is a
submission to the custody by word or action
(2) If such person forcibly resist the endeavour to
arrest him or attempt to evade the arrest such
officer or other person may use all means
necessary to effect the arrest.

17
(3) Nothing in this section gives a right to cause
the death of a person who is not accused of
an offence punishable with death or with
imprisonment for life.

18
 Gopal Sri Ram JCA, in Lim Hock Boon v PP [2007] 4
CLJ 114 at p. 120 said "... whether a person is under
arrest is an issue of inferential fact. In other words, it
is a fact that is to be reasonably inferred from proved
or admitted facts. No better passage than that from
the judgment of Shanker J in PP v Kang Ho Soh [1991]
3 CLJ 2914 is needed to bring home the point: "... But
whether in a particular case a person was under
actual arrest at a given moment in time is a question
of fact to be decided according to the circumstances
of each case ..."
19
 Lee Cher Joo @ Lee Sujan v Mohd Sharif
Othman & 3 Ors [2009] 6 CLJ 165 [2009] 1 LNS 85
The plaintiffs had gone to Balai Polis Buloh Kasap on
their own volition. They were only told to wait till
9pm. This did not amount to an arrest. There was no
evidence that the plaintiffs were prevented from
leaving the Balai at any point of time

20
 Local courts have also endorsed
Propositions by Lord Devlin in the Privy Council
case of Shaaban & Ors v Chong Fook Kam &
Anor [1969] 2 MLJ 219.

21
 An arrest occurs
(I) when a police officer states in terms that he is
arresting or
(II) When he uses force to restrain the individual
concerned. It occurs also
(III) When by words or conduct he makes it clear that he will,
if necessary, use force to prevent the individual from
going where he may want to go. It does not occur when
he stops an individual to make enquiries.

22
 Impact?
Material differences with the statutory modes
set out in s 15(i) (iii)!
This principle was officially adopted in
Jayaraman v PP

23
i any person who has been
concerned
in any seizable offence committed
anywhere in Malaysia

24
 essential precondition for arrest under this
subsection that a seizable offence has been
committed
There is no question of reasonable cause to
suspect that the person is committing such an
offence. Either he is or he is not.

25
 reasonable complaint has been
made
A complaint means an allegation made orally
or in writing to a magistrate with a view to his
taking action under the CPC that some person
whether known or unknown has committed or
is guilty of an offence

26
 A complaint in this case need not only be
made to a magistrate, but can also be made to
a police officer who makes the arrest or to any
person entitled to entertain its sufficiency

27
 TAN KAY TEAK & Anor v AG [1957] MLJ 237
In this case the complainant, Ng went to the plaintiffs
house one night upon the latters invitation to settle
a sum of RM 5000 owed to him. Upon reaching the
house, Ng was brought inside and Tans wife locked
the door and there were 2 additional men standing
looking at Ng in a menacing manner. Ng was asked
if he received the money , and when he remained
silent Tan banged the table asking him to speak up
to which he replied in the negative. Tan offered to
pay him RM1000 as full settlement but this was not
accepted.

28
Meeting subsequently ended with Tan sending Ng back as far
as the bus stop. 2 days later Ng told this story to ASP Jones
when he made a police report and his reason for making
such report was that he heard that the earlier discussion
regarding the debt was secretly recorded by Tan and a tape
recorder and he was afraid that it might be used against him
in the pending civil proceeding. Despite all these, ASP Jones
thought it fit to arrest Tan and his wife around midnight the
same day and detained them.

29
The judge held that the report made by Ng did
not disclose an offence of confining a person
for the purpose of extorting property from
him under section 347 Penal Code as
contended by ASP Jones.

30
It follows therefore, that to determine whether a particular
arrest was made upon a reasonable complaint, the court
must first ascertain what facts were known to the arresting
officer and then decide whether those facts amount to a
reasonable complaint that the person to be arrested was
concerned in the commission of a seizable offence. Further,
this case pointed out that complaint in the context of s 23
could not be restricted to the meaning set out under s 2 but
must be given an extended meaning to include reports made
to the police.

31
credible information

HASHIM BIN SAUD V YAHYA B

HASIM & ANOR [1977] 1 MLJ 259

32
 This case was related to the investigations into the theft of
an electric generator and a cement mixer. Inspector Yahya
received information that the plaintiff was involved in the
theft of the electric generator and subsequently ordered him
to be arrested.
Harun J held that there
was credible information
against the plaintiff in that the source had
previously proved to be reliable in the sense
that information given by this source had led
to arrests, prosecutions and convictions.

33
(This case also dealt with the 4th limb where it was held
that the information give was sufficient to arouse the
suspicion of any reasonable person that the plaintiff
was concerned with the theft.)
Accordingly, the plaintiffs claim for damages for
alleged wrongful detention was dismissed with costs.

34
reasonable suspicion

SHAABAN & ORS V CHONG FOOK

KAM & ANOR [1969] 2 MLJ 219.

35
 This case was about a claim brought against
two police officers and the Govt of Malaysia
for false imprisonment.
The chronology of events in this case is
imperative.

36
 10th July 1965

9.15 pm (Saturday) A car on which the complainant

and 4 of his friends was travelling on was driven somewhere
along Mentakab when a lorry with a trailer loaded with
timber drove past them in the opposite direction. The
complainant reported that a piece of timber fell from the
lorry, hitting the windscreen of his car and injuring two men in
the car, one of whom subsequently died. They claimed the
lorry did not stop.
10.15 pm A police report was lodged by the
complainant at the Mentakab police station and initial
inquiries led the police to conclude that the purported lorry
was numbered PC 8200. Instructions were then given out to
look for and to detain the said lorry.

37
 11th July 1965
7.55 am (Sunday) A constable spotted the said
lorry in front of a coffee shop somewhere in Bukit
Tinggi. The corporal in charge of the police station
arrived about 10 minutes later and proceeded to
detain both the plaintiffs, ie, the driver and the
attendant, purportedly on suspicion of a fatal road
accident case. Both the plaintiffs were then made to
wait at the shop.

38
 1 pm (Sunday) The two defendants, the
police officers, namely the area inspector and the
district superintendent, arrived at the coffee shop.
On interrogation, it appeared that the plaintiffs had
an alibi that they were not the place of incident at
the time when the alleged accident took place. They
claimed that they had bought food in Mentakab and
one of them even had a haircut at a barbers shop.

39
 Sunday
2.00 pm Dissatisfied with their explanation,
the police officers took them back to Mentakab to
check on the story, arriving about 5 pm. The plaintiffs
were then taken to the two shops but the witnesses
pointed out by them could not corroborate their
story.
6.15 pm Both the plaintiffs were taken back
to the police station and put in the lock-up.

40
 12th July 1965(Monday)
8.30 am Both plaintiffs were taken from
the Mentakab police station to be produced
before the Temerloh magistrate. Journey from
Bukit Tinggi to Temerloh itself takes more than
1 hour, let alone the longer distance from
Mentakab.

41
 Lord Devlin in this case distinguished two
material stages in this case because it is
important to determine exactly when
reasonable suspicion existed to effect a legal
arrest.

42
 The First Stage -
was when the Corporal detained the
respondents when he had reasonable
suspicion that one of them had driven the
lorry which a timber fell off and hit the
complainants.

43
 The Second Stage
was when the police had reasonable suspicion
that one of the respondents was driving in a
rash and negligent manner, that is, when the
defence of alibi was dismissed added to the
fact that the lorry did not stop. Lawful arrest
had taken place at the second material time.

44
 Accordingly, the prior arrest made at the
coffee shop was unlawful because reasonable
suspicion that the alleged offence took place
did not exist then. Therefore there was false
imprisonment until the time when the
respondents were detained at the second
material time.

45
 Nor Maziah v Mohd Haris Abd
Rahim & Ors [2009] 8 CLJ 681
Plaintiff was arrested in a hotel coffee shop for
suspicion of baby dumping at a nearby hotel in Alor
Star. Several witnesses claimed that they saw a
teenage girl with blood stains on her back around the
area. 2 janitors gave a photofit description of a girl
with a black plastic bag at the said toilet. Another
witness saw a coupleat the hotel coffee chop and in
that same hotel the worker claimed that the plaintiff
and her boyfriend checked in and that their bed had
patches of blood.

46
 Following the information provided by the witnesses
the police arrested the plaintiff and her boyfriend on
reasonable suspicion that they had committed an
offence. They were detained and the plaintiff was
subjected to medical examination in which it was
revealed that she had never been pregnant before.
The court dismissed the application for wrongful
arrest as there was reasonable suspicion based on
the facts above for the police to arrest the plaintiff at
that time.
47
Mahmood v Govt of Malaysia &
Anor [1974] 1 MLJ 103

48
This was a claim for damages for negligent shooting by
a police officer shooting at a person running away
from scene of suspected offence. The defence was
that when the police officer fired the shots he was
lawfully discharging his police duties to prevent the
plaintiff from escaping from the scene where an
offence was reasonably suspected to have been
committed.

49
At the material night in question, about 1 am
exactly, while on police duties in the Lake
Gardens the defendant heard a woman
screaming for help. He and another constable
rushed towards her direction and saw the
plaintiff and another Malay running away
from the scene.

50
He chased and shouted to them to stop. They however
ignored his warnings and continued to run away. He
then fired a warning shot. As they still persisted
running, a second shot was fire which hit the plaintiff
and halted him. The defence contended that when
the 2nd defendant fired those shots he was lawfully
discharging his police duties to prevent the plaintiff
from escaping.

51
 The question before the court was whether
the defendants were justified or negligent
under the circumstances in this case in firing
the second shot resulting in injuring the
plaintiff.

52
 In his defence, the police officer ..

contended that he had to fire the shot towards the

plaintiff as the latter ignored his earlier shouts and
warning shots. He deemed it necessary to shoot as
the plaintiff was running away towards the dark and
he suspected and believed that the plaintiff had
committed rape or robbery or grievous hurt to the
woman who screamed. Furthermore, acknowledging
that the act of shooting is a dangerous act, he fired
and aimed towards the legs.

53
 Ong J, in discussing the components of s 15(ii)[2]
quoted D.V. Chitaleys[3] comments on the meaning
of the words use all means necessary to effect the
arrest:

[2] This section is similar to s 46(2) of the Indian Code of Criminal Procedure of
1898.
[3] In A.I.R. Commentaries on the Code of Criminal Procedure 6th Ed. (1965) vol 1,
p 219.

54
 On the other hand, the person effecting the arrest
is justified under subsection (2) of the section in
using so much violence as is necessary to effect his
object, with this qualification, namely, that his right
does not, except in the two cases mentioned in
subsection (3) extend to causing death of the
person sought to be arrested.

55
Thus, where a chowkeedar seeking to arrest a
fugitive thief, seeing no other means of
capturing him, wounded him with a spear, it
was held that he was justified in doing so.
Similarly, a shot fired over the head of a
suspect, a dangerous person, in order to effect
his arrest, was held to be justified.

56
Where a supposed offender took shelter in his own
house and would not come out when called by the
police officer desiring to effect his arrest it was held
that the latter was justified in firing a shot at the
house as last extremity and committed no offence if
the shot fired by him killed the offender who could
not be seen from the place from which the officer
fired.

57
 On the issue of reasonable suspicion,
D.V.Chitaley said:
What is a reasonable complaint or suspicion
must depend upon the circumstances of each
particular case; but it should be at least
founded on some definite fact tending to
throw suspicion on the person arrested, and
not a mere vague surmise

58
The words reasonable suspicion have been held to mean a
bona fide belief on the part of the police officer that an
offence has been committed, or is about to be committed.
Where there is personal enmity between the police officer
concerned and the person arrested, a very high standard of
evidence would be required to prove that the police officer
had acted in good faith.

59
 In Mahmoods case,
the judge concluded that there existed sufficient
grounds[1] to raise a reasonable suspicion in the
minds of a police officer that one, a seizable offence
has been committed and two, that the persons seen
running away from the scene are concerned with its
commission. Based on those reasons, the police may
arrest them, and may after disclosing his police
identity and after issuing necessary warnings take all
steps including the use of firearms as a last resort, to
prevent them from escaping.

60
Ong J listed eight gounds, inter alia,
that a woman was heard crying and screaming for help in the
early hours of 2.20 am in or near the areas where many
robberies and rapes had recently taken place; the Security
Department had to even station several special constables to
patrol these areas; that the distressing screams naturally
would lead any reasonable person to suspect that the
woman screaming was either being raped, robbed, stabbed
or murdered; even the plaintiff himself thought that the
woman was being raped by his friend and they were running
away towards darkness in spite of repeated police warnings
asking them to stop. See p 107.

61
In the circumstances of this case therefore, the
defendant was held to be not negligent and
was justified to fire the second shot.

62
 Tan Eng Hoe v AG [1993] MLJ 151.
The applicants movements and habits fitted the
descriptions given of those of another person,
against whom a report of cheating was made.
Applicant was arrested and after further
investigation it was discovered that he was not the
actual offender. Since any reasonable man would
fairly suspect applicant being the person, the police
was justified in arresting him.

63
 (b)- having in his possession any implement of
house breaking
- PP v Chong Ing Chu [1984] 1 MLJ 391
(c)- any person proclaimed under s.44 CPC

64
 (d)- 1in possession of property suspected to
be stolen or fraudulently obtained and that
2he may be reasonably suspected of
committing an offence with reference to that
thing
- Abdul Razak [1961] MLJ 105

65
 (e)- 1obstructs police in execution of his duty
or 2has escaped or attempts to escape from
lawful custody
- Ong Kee Seong [1960] MLJ 156
(f) deserter from army

66
 (g)person taking precaution to conceal his
presence under circumstances which afford
reason to believe that he is taking such
precautions with a view to committing a
seizable offence

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 (h) no ostensible means of subsistence or
who cannot give satisfactory account of
himself
(i)by repute a habitual robber, housebreaker,
thief, receiver of stolen property

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 (j)commits breach of the peace
(k) failure to comply with police supervision
order

69
 Section 24: Refusal to give name and
address
When any person in the presence of a police officer
or penghulu commits or is accused of committing a
non-seizable offence and refuses on the demand of a
police officer or penghulu to give his name and
residence or gives a name or residence which the
officer has reason to believe to be false, he may be
arrested by that police officer or penghulu in order
that his name or residence may be ascertained,

70
and he shall, within twenty-four hours of the arrest,
exclusive of the time necessary for the journey, be
taken before the nearest Magistrate unless before
that time his true name and residence are
ascertained, in which case he shall be immediately
released on his executing a bond for his appearance
before a Magistrate if so required.

71
This section empowers a police
officer or penghulu to arrest
any person who commits a non-
seizable offence in his presence; and
who

72
 refuses to give his name and address of
residence when demanded by the officer;
gives a name or residence which the officer has
reason to believe to be false; or
gives as his residence a place not within the
Federation.

73
S 25 : How person arrested by penghulu is to be
dealt with
A penghulu making an arrest without a warrant
shall without unnecessary delay hand over the
person so arrested to the nearest police
officer or in the absence of a police officer
take such person to the nearest police station,
and a police officer shall re-arrest every
person so arrested.

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 Section 27

Arrest by private persons and

procedure in such cases

75
Any private person may arrest any person who,
in his view, commits a non-bailable and
seizable offence or who has been proclaimed
under section 44 and shall without
unnecessary delay make over the person so
arrested to the nearest police officer or, in
the absence of a police officer, take such
person to the nearest police station.

76
 If there is reason to believe that such person come
under the provisions of section 23 a police officer
shall re-arrest him.
If there is reason to believe that he has committed
a non-seizable offence and he refuses on the
demand of a police officer to give his name and
residence or gives a name or residence which such
officer has reason to believe to be false or gives a
residence which is not within the Federation he
shall be dealt with under section 24.

77
 in his view

first criteria for an arrest to be legally made by a

private person is that the offence is seizable and
non-bailable offence must be committed in his
view.

78
 A few Indian cases seemed to prefer the stricter[1]
opinion of the phrase whereas one decision[2]
opted for a more liberal approach by allowing it to
also mean in his presence. As if to mark such
approval, in 1973, the new section 43 of the Indian
Code used the phrase in his presence.
[1] See Durga Singh [1963] 1 Cr LJ 827 and Kartar Singh AIR (1956) Punj 122.
[2] See Nazir v Rex AIR (1951) All 3.

79
 In England, common law demands that a strict
view be taken in respect of private persons
exercising arrest powers. In Walters v WH
Smith & Son Ltd [1914] 1 KB 595, Sir Rufus
Isaacs CJ said,

80
 [a]t common law, a police constable may arrest a person if he
has reasonable cause to suspect that a felony has been
committed although it afterwards appears that no felony has
been committed, but that is not so when a private person
makes or causes the arrest, for to justify his action he must
prove, among other things, that a felony has actually been
committed. it is necessary for a private person to prove that
the same felony had been committed for which the [arrested
person] had been given into custody.

81
 In Singapore too,
a stricter view is preferred, namely, that the offence
must have been committed in the sight of the private
person before the arrest becomes lawful.[1]

[1] See Metro (Golden Mile) Pte Ltd v Paul Chua Wah Liang (unreported).
See also Hwang, H. I., Wrongful Arrests by Private Persons (1981) 23
Mal.L.R. 182 especially p185. Note also the criticisms against s 31 of the
Singaporean Code, analogous to the local s 27. Inter alia, that it is unduly
restrictive and discourages a citizens liberty in effecting an arrest when he
reasonably suspects that a felony has taken place.

82
 Malaysia has opted for the liberal approach
in his view = in his presence = in his
sight

83
 PP v Sam Hong Choy,
High Court held that when a man is found
committing a non-bailable and seizable offence and
then tries to escape, the whole transaction is to be
treated as one single transaction and any person
who either sees him committing the offence or
running immediately after the commission of the
offence would be entitled to arrest him. The court
also decided that that the words in his view can also
mean in his presence or in his sight.

84
 The action of the accused in running away was
part of the same transaction as the robbery &
in the circumstances the commission of the
offence was committed within sight of PW9 &
hence would fall within the meaning of the
words in his view

85
 The words in his view
would cover situations as found in the instant
case where although the private person did
not actually witness the non-bailable &
seizable offence being committed, he was
certain that those persons running away or
trying to escape were the offenders
themselves as he was in such close proximity
to the scene of the crime.

86
 (4) without unnecessary delay hand to nearest
police officer or police station
- John Lewis & Co Ltd v Tims [1952] 1 All ER 1203

87
 Tangkapan dengan waran
-s.5 SCA/ s.38 CPC
-s.38CPC- form of warrant
-s.40- directed to IGP and all police officers

88
 -s.41- substance of warrant to be notified
See Kah Loon (1881) SSLR 101
-s.42- brought to court without delay
Kuan Kwai Choi [1993] 2 MLJ 207

89