Contents are listed in the 1st page. P/S : I am sharing my personal notes of law-related subjects. Some parts of them are explained in a very informal-relaxed way and mix of languages (BM and English), if you are a grammar nazi person, my notes are definitely not a good reference yeah:) Last but not least, as law revolves everyday, you might find some of my notes are outdated. 2 ways of handling it.. (1) double check with the latest law and keep it to yourself (2) same with No. 1 but SHARE WITH ME OTHERS! Have a good day.

1. 1
ARREST, SUMMONS & WARRANT
Arrest
I. What Is Arrest?.................................................................................................................................................2
II. Mode Of Arrest................................................................................................................................................3
III. Type Of Arrestable Offence.....................................................................................................................8
Iv. Categories Of Persons Who Can Arrest (‘The Arrestor’):.....................................................9
V. The Notion Of Rights In Arrest...........................................................................................................17
Vi. Categories Of Rights In Arrest............................................................................................................19
Vii. Rights Of Arrestee.......................................................................................................................................19
Viii. Rights Of Arrestor .......................................................................................................................................28
Ix. Duties Of The Public:.................................................................................................................................32
X. Consequences Of An Unlawful Arrest...........................................................................................33
Xi. Remedies...........................................................................................................................................................33
Warrant/ Summons
I. Warrant Of Arrest - Sections 38-50 Cpc......................................................................................35
Ii. Summons..........................................................................................................................................................35
Iii. Distinction Between Summons And Warrant...........................................................................35
Iv. Relationship Between Modes Of Commencement With Jurisdiction Of Criminal Court
………………………………………………………………………………………37

2. 2
I. WHAT IS ARREST?
A. CONCEPT
1. Arrest : 1st step in criminal proceedings against a suspected person.
2. "arrest" literally means deprivation of personal liberty by a legal authorityAND
an apprehension of a person by legal authority resulting in deprivation of his
personal liberty.
3. ARTICLE 5 FEDERAL CONSTITUTION: “No person shall be deprived of his
personal liberty save in accordance with d law”
4. Thus Arrest must be in accordance with law, otherwise the suspected person
will be deprived his personal liberty
B. CASES
Inwoods
[1973]
 Whether a person is under arrest or not depends on all the circumstances of
the case.
 Law places an obligation to make it plain to the suspect that he is no longer a
free man -(duty to inform)
R v Brosch  Arrest is constituted by the physical touching or seizure of the suspect’s body
with a view to his detention.”
 Intention to arrest is the essential element to constitute an arrest.
Inwoods &
Brosch
To constitute a lawful arrest, the arrested person must at the time of the arrest or as
soon as practicable after the arrest be informed that he is under arrest and the
ground of his arrest. [Inwoods and Brosch]

3. 3
II. MODE OF ARREST
A. KENAPA KENA TAHU MODE OF ARREST?
1. It is important to know whether an arrest is valid or not because the liberty of
the individual arrested is at stake; thus it depends on how the arrest is made.
2. FORMER S. 113 OF CPC/SECT 37A(1)(B)DDA
a) Any statement made after arrest can be used against the arrested
person, provided that the police officer who arrests him gave him a cautioned
statement
B. POSITION AT COMMON LAW
1. refer inwood and brosch’s case
C. POSITION IN MALAYSIA
1. Section 15 : there are three modes by which a person may be arrested,
comprising of
a) actual touching or
b) confining the body of the person sought to be arrested or
c) submission to the custody by word or action
2. An arrest comprises of the seizure or touching of a person's body with a view
to his restraint; or words may, alternatively amount to an arrest if, in the
circumstances of the case, they are calculated to bring a person's notice that he is
under compulsion and he thereafter submits to the compulsion

4. 4
D. CASES
Sha’aban v.
Chong
Fook Kam
[1969] –
highlighted
the
elements
constitute a
valid arrest
Held Privy Council -
 an arrest occurs when a police officer states in terms that he is
arresting or when he uses force to restrain the individual concerned.
 It occurs 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. (from police perspective).
 An arrest does not occur when a police officer stops someone to
merely make an inquiry.
 Three situations were stated as to what constitutes a valid
arrest:
1) Arrest happens when the arrestor states in term. E.g: “Stop, you
are under arrest”
2) Use of force by the arrestor
3) Arrestor did not use force but it’s clear from his words or action
that he will use force to prevent the person from going away
Criticism the Privy Council in this case neither (failure) referred nor discussed
Section 15(1) of the CPC
the propositions are inconsidtent with sec . 15
Jayaraman
v PP [1982]
Facts  A series of attacks had happened at a Hindu temple.
 One night, 2 men reported to the police that 8 men attacked the
temple.
 They managed to detain some men. and when the police arrived,
one Corp. Ghani told the 8 appellants “not to leave the place”
 Later ASP Jamaluddin came and these men were questioned.
 They gave very incriminating oral replies to the questions.
Issue Was there an arrest before the questionings by ASP Jamaluddin when
one Koperal Ghani told them “Don’t go anywhere”.
Held Suffian LP referred to s.15 CPC and Shaaban

5. 5
1) It was not obvious that the constable wanted to arrest.[failure to
state in term]
2) The statement given by Koperal Ghani does not constitute an
arrest.
3) No force use to restrain nor
4) Made clear by words or conduct that he would use force if
necessary.
Criticism  There was an arrest because the liberty of these people were
restrained.
 Looking at the circumstances surrounding the case, there had
been attacks and 4 murders had been committed, thus it would
be rational not to move when you are told so by the police.
Lim Hock
Boon v PP
Facts  Acting on information, the police set up a road block and stopped
the accused. When being asked by the police to come out of the car
to go to the boot, the accused resisted before going to the boot.
 On being questioned by the police, the accused replied that bag
belonged to him.
 The police then found heroin in the bag and accused was charged
for drug trafficking under S39B of DDA.
Issue admissibility of statements made by the accused from the time he was
stopped.
Held  Whenever a person is stopped by the police as a result of prior
information, it would constitute an arrest.
 However, whenever a person is stopped by the police as a result of
general inquiry by the police, then there is no arrest.
 Each decision whether arrest has been made or not was made on
the facts of each particular case and the conclusions of facts are not
to be treated as law.
Lee Cher Facts  Pfs had gone to the Buloh Kasap Police Station at 6.30 pm in

6. 6
Joo v PP response to the requests of the police officer.
 They were then told to wait until 9 pm in which they were
subsequently arrested and detained at the lock-up of Segamat
Police Station. at any point of time
Held  there was no arrest between 6.30 to 9pm as they were asked to wait
and if they were under arrest there was no necessity for the officers
to tell them to do so.
 The willingness to wait is not equivalent to being put under arrest
and no evidence prevented the Pfs from leaving
E. DIFFERENCE BETWEEN ACTUAL AND CONSTRUCTIVE ARREST
1. Actual / Statutory Arrest
a) Whatever that constitutes valid arrest under CPC
2. Constructive Arrest
a) Refers to a situation where a person had submitted to custody but the
facts of the case did not warrant the inference of an arrest.
b) MAD ROZI CHE DIN v. PP [2013] 8 CLJ 297
Facts  A custom officer had detained ('menahan') the appellant to make inquiries and to scan the
lorry based on the information received.
 At that point in time, custom officer had no knowledge that the appellant was transporting
the offending cannabis.
 The appellant make a statement that he was carrying ganja and later he was arrested and
handcuffed.
Issue Whether the appellant’s statement is admissible

7. 7
Held  the word "menahan" used by the officer simply meant to make inquiries and to carry out a
search on the lorry, as he was permitted to do so under the provisions of ss. 101 and 111 of
the Customs Act 1967
 That being the case, the appellant was not under arrest the moment the custom officer
"menahan" the appellant prior to the discovery of the five plastic bags of cannabis.
 Given that the appellant at the time he made the statement was not yet under arrest, his
statement that he was carrying "ganja" was therefore admissiblein evidence.
c) PP v Tan Seow Chuan [1985]1 MLJ 318,
Facts Police raided a house after receiving an information received that an offence relation to
dangerous drugs was being committed in the same house. The police asked the accused to
show them his room and later the police found opium in the room. Accused was charged for
drug trafficking under Section 39B of Dangerous Drugs Act 1952
Issue Whether the statements made by the accused were admissible
Held o the accused was under arrest as soon as the police officer showed his authority card and the
accused was guarded by a corporal although there was no handcuffs or words of arrest.
o Since no caution was administered, the accused’s statement was inadmissible.
o No caution refers to situation when the police were acting on prior information when they
raided the accused’s house as opposed to making a routine check without anticipating of
finding anything
3. Solution : Mallal’s criminal procedure, 5th Edition
a) The distinction between actual arrest and constructive arrest was
abolished and declared uncsuccesful in the case of PP v Kang Ho Soh (1991)
b) The term and ‘actual arrest’ and ‘constructive arrest’ have not been
judicially defined as it depend on the facts and circumstances of each case.no
rigid dichotomy between them.
F. DEGREE OF FORCE IN EFFECTING ARREST
15 (2) if a person resists an arrest, then the police officer or other person making the arrest may

8. 8
use all means necessary to effect the arrest.
15 (3) However, the police officer or other person does not have a right to cause death of a
person who is not the accused of an offence punishable with death or with life
imprisonment.
G. OTHER INCIDENTAL POWERS IN RELATION TO ARREST
18 Power to break open any place for purpose of liberation
32 Power on excape to pursue or retake
 If a person in lawful cutody escapes or is rescued the person from whose custody
escapes or was rescued may immediately pursue and arrest him in any place, either
within or without the jurisdiction where he was so in custody
III. TYPE OF ARRESTABLE OFFENCE
Type of arrest Type of affence
arrest for
seizable offence
 Offences punishable with death or with imprisonment for 3 years and
upwards.
 example : theft under s. 379 Penal Code
 also described as offences where the offender uses 'dangerous weapons
or means' to cause hurt, or causes 'grievous hurt' which is defined as
permanent loss of sight or hearing, fracture or dislocation of the bones.
109&110 police rank at least Sergeant is not required to obtain order from
Public Prosecutor to investigate and may exercise their special
powers relating to police investigations
arrest for non-
seizable offence
 offence where police officers are only allowed to arrest with a warrant
according to the 3rd column of the 1st Schedule of CPC.
 Therefore, a police officer is not allowed to arrest without a warrant if the
punishment of the offence is less than three years.

9. 9
 Example: cheating under section 417 of Penal Code
108 order to investigate must be obtained from Public Prosecutor. Such
order is needed to enable the police to exercise their special powers in
relation to police investigations such as recording statements from
witnesses under s 112 of the CPC.
arrest for
offence against
law other than
PC,
 the last part of 1st schedule
 If imprisonment is less than 3 years or a fine: arrest shall be with warrant
UNLESS any written law provides otherwise
IV. CATEGORIES OF PERSONS WHO CAN ARREST (‘THE ARRESTOR’):
arrest without warrant
(for seizable offence)
arrest With warrant
(for non-seizable offence)
By police officer/penghulu 23,24 by police officer 41,42
By penghulu only 25 By magistrate & justice of peace 30,31
By police only 105
A. ARREST BY POLICE OFFICER/PENGHULU WITHOUT WARRANT
1. Section 23 (bila polis atau penghulu boleh tangkap tanpa waran)
23(1)(a) Any police officer or penghulu may without an order from a Magistrate and without a
warrant arrest
(a) any person who has been concerned in any offence committed anywhere in
Malaysia which is a seizable offence under any law in force in that part of Malaysia in
Police Penghulu Magistrate& JOP Privateperson

10. 10
which it was committed or against whom
 a reasonable complaint has been made or
 credible information has been received or
 a reasonable suspicion exists of his having been so concerned.
2. Reasonable complaint:
Section 2 complaint : 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 guilty of an offence.
Tan Kay Teck
& Anor
Facts  the sub-contractor complained to the police that he was confined by
the contractor in a room to discuss payment for the work done but
the sub-cons refused to accept the lower payment.
 The contractor was arrested and charged under S347 of the Penal
Code for wrongful confinement to extort money.
 The contractor was acquitted and discharged. Then claimed damages
for wrongful arrest.
Issue OBJECTIVE TEST (used in Tims v John [1951]): whether a complaint is
reasonable or not
Held  The question whether a complaint was reasonable or not is one which
objectively the court has to decide on the evidence before it…The
court must first ascertain what facts were known to the arresting
officer and then decide whether these facts amounted to a
reasonable complaint that a person to be arrested was concerned in
the commission of a seizable offence
 The arrest made was unlawful because the complaint was
unreasonable.
 The report made by sub con not disclose an offence of confining a
person for the purpose of extorting property under Section 347 of
Penal Code but his main concern was with the civil law.

11. 11
3. Credible information
a) Credible information must be based upon definite facts and
materials placed before him, which that officer must consider for
himself, before he takes any action.
b) It is not sufficient if there is likelihood of a seizable offence being
committed in the future/ bare assertion without anything more
c) The existence of a warrant is equivalent to credible information.
d) Hashim bin Saud v Yahaya bin Hashim and Anor [1977]
Facts  There have been information given to the police that the accused were involved in
electricity generator and cement mixture theft.
 The police obtained remand order for further investigation.
 The plaintiff brought an action against the defendants for wrongful detention.
Held  The information must be credible before arrest can be made.
 In this case, it was credible because the informant was credible and in the past, he had
given credible information.
4. Reasonable suspicion
a) Whether there is reasonable suspicion in a particular case depends on
its facts and it is for the court to decide.
b) The case of Tan Eng Hoe v AG [1933] is illustrative
Facts The applicant was mistakenly arrested for a cheating case as he fitted the description of
an offender, Seah Eng Tan where both of them
 stayed at the same hotel at the material time
 were about the same age
 both were from Malacca

12. 12
 their names sounded familiar and
 they wore similar clothes and carried black bags
Issue whether the arrest was wrongful?
Held  a reasonable man would have suspected the applicant of being the offender in the
circumstances.
 Thus, the police was justified in arresting him without a warrant.
c) Sha’aban v Chong Fook Kam
Held
(Privy
Council)
 Lord Devlin distinguished prima facie proof and reasonable suspicion.
prima facie proof reasonable suspicion.
Prima facie proof is at
the end of the police
investigation and made up
of admissible evidence.
 “Suspicion” means “I suspect but I cannot prove”.
 Suspicion is the starting point of a police
investigation.
 Suspicion only comprise evidence which are not
admissible; like hearsay information etc.
d) Mahmood v GOM1
Facts  the plaintiff sued defendants alleging that he was negligently shot at and wounded by
a police officer at the Lake Gardens.
 The defence was that the police officer was doing his duty as he had screams of help
of a woman at about 2.20am and saw two men running away.
 The police officer had a reasonable suspicion that a seizable offence had been
committed.
Issue whether there exist sufficient grounds to raise a reasonable suspicion
Held the police officer had not exceeded his power under S15(2) of the CPC as he may use all
necessary mean to effect the arrest
1
Government of malaysia

13. 13
5. Section 24 CPC - 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, he may be
arrested by that police officer or penghulu in order that his name or residence
may be ascertained, 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.
6. Section 105 – APPLIES TO POLICE OFFICER ONLY
A police officer knowing of a design to commit any seizable offence may arrest
without orders from a Magistrate and without a warrant the person so designing if it
appears to the officer that the commission of the offence cannot otherwise be
prevented.
B. ARREST BY PENGHULU WITHOUT WARRANT -SECTION 25
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
C. ARREST BY POLICE OFFICER WITH WARRANT
s. 41 The police officer or other person executing a warrant of arrest shall notify the substance
thereof to the person arrested and if so required shall show him the warrant or a copy
thereof under the seal of the Court issuing the warrant
s.42 The police officer or other person executing a warrant of arrest shall, subject to the

14. 14
provisions of section 39 as to security, without unnecessary delay bring the person
arrested
before the Court before which he is required by law to produce that person.
D. ARREST BY PRIVATE PERSON – S. 27 CPC
1. A private person is entitled to arrest any person who:
a) “ in his view” commits a non-bailable and seizable offence
Or
b) who is a proclaimed offender under section 44 CPC.
c) the private person must without unnecessary delay make over such
person (arrestee) to a police officer or either take him or cause him to be
taken to the nearest police station.
2. If the arrestee is liable to be arrested, he shall be rearrested by the police
officer.
3. If he is believed to have committed no offence, he is to be set at liberty.
4. Element 1: ‘In his view’; Does it mean “in his sight” or “in his opinion”?
Strict interpretation Wider Interpretation
In his sight In his opinion

15. 15
a) STRICT INTERPRETATION : “in his view” means “in his sight”
(1) held by the Indian courts in Durga Singh and Kartar Singh as
well as the Singapore court in the case of Metro (Golden Mile) Pte. Ltd
v Paul ChuaWah Liang
(2) Means the private person must witness the commission of crime
(3) take note that Indian CPC now uses the term “in his presence”
b) WIDER INTERPRETATION: “in his view” means “in his opinion”
(1) held in the English case of Walters v WH Smith & Son Ltd. The
leading authority in Malaysia : Sam Hong Choy.
Facts a private person heard a gunshot and shouts of help in a robbery and saw 2 men
running away.
He gave chase and arrested the accused.
Held  “in his view” can mean “in his presence” or “within his sight”.
 Although the private person did not actually witness a non bailable and
seizable offence being committed, but he was certain that the person running
 away or trying to escape were offenders themselves as he was in such close
proximity to the scene of the crime.
 A private person cannot therefore arrest on mere suspicion or on information
received no matter how credible the information is.

16. 16
5. Element 2 : “ without unnecessary delay”
a) Once a private person effects an arrest without warrant, he will have to
make over the person to the police officer or police station without
unnecessary delay.
b) Tims v John Lewis & Co Ltd [1952]
Held the mother and daughter were made to wait for nearly an hour until the chief store
detective and managing director of the shop were sent for and heard the account to
obtain their authority to prosecute before they were taken to the police station was held
not to constitute an ‘unreasonable delay’, the law being that an arrested person should be
taken by the private person before a Justice of Peace or a police officer as soon as was
reasonably possible and not necessary forthwith

17. 17
E. ARREST BY MAGISTRATE/JUSTICE OF THE PEACE WITH WARRANT
30 Justice of Peace and Magistrate can arrest within the local limits
31 Arrest by Magistrate
 The warrant must signed and sealed.
 It can be executed anywhere in Malaysia.
 If a warrant is to be executed in Sabah or Sarawak, it must be endorsed first by
Magistrate in Sabah/ Sarawak.
 This is by virtue of Summonses and Warrants (Special Provisions) Act 1965.
 It can also be enforced in Singapore and Brunei, but must also be endorsed by
Magistrate.
 Once a warrant is issued, it will be not enforceable if:-
1) It is cancelled by the court which issued it
2) It has been executed and the person was arrested.
V. THE NOTION OF RIGHTS IN ARREST
A. THE FUSION OF S. 28 AND ARTICLE 5 OF FC
1. Safeguards of the rights are found in Article 5 of FC
2. Article 5(1) : “No person shall be deprived of his … or personal liberty save in
accordance with law.”
3. Article 5(4) :“Where a person is arrested and not released he shall without
unnecessary delay, and in any case within (24) hours (excluding the time of any
unnecessary journey) be produced before a Magistrate and shall not be further
detained in custody without the magistrate’s authority.”

18. 18
4. Take note of the “sync” with s.28 CPC.
5. Hence before reading s. 28(2) CPC, you have to bear in mind Article 5(4) FC.
6. The Magistrate’s authority in Art. 5(4) FC is clarified in s. 28(3) CPC.
a) Section 28(3) : if there is no remand order by the Magistrate an arrestee
can only be detained for 24 hours. The 24 hours is calculated after discounting
the time spent for the journey from the place of arrest to the Magistrate.
b) The phrase “Magistrate” has to be read as the “nearest Magistrate” as
at times there may not be available a Magistrate at the place of arrest at a
particular time.
7. It is in fact the “special order of a Magistrate under section 117 CPC” or
referred to as the “remand order by the Magistrate”.
B. ISSUE : HOW DO YOU TIE THIS UP WITH THE PRINCIPLE OF CRIMINAL JURISDICTION
THAT “ALL CRIMES ARE LOCAL IN NATURE”?
1. S. 117(2)CPC which renders “The Magistrate before whom an accused person
is produced under this section may, whether he has or has no jurisdiction to try the
case, authorize the detention of the accused …”
2. Back to section 28(2) CPC which renders that an arrestee shall not be detained
in custody for a longer period (meaning more than 24 hours as a starting point)
unless permitted by reasonable circumstances of the case.
3. “reasonable circumstance” under section 117(1) CPC means “Whenever any
person is arrested and detained in custody and it appears that the investigation
cannot be completed within the period of 24 hours.” Thus the reasonable
circumstance has to that police investigation cannot be completed within the
period of 24 hours.

19. 19
4. Issue : Does the law enforcement official need more than 24 hours to
investigate an offence committed by a person who is arrested when committing a
criminal offence? Like snatch theft, shoplifting, pick-pocketing etc.
VI. CATEGORIES OF RIGHTS IN ARREST
VII. RIGHTS OF ARRESTEE
Rights
Rights of arrestee
9 rights in total
Rights of arrestor
to use force
to conduct
investigation
to apply for
remand order
Right to self-defense.
Right to be produced
before a Magistrate.
Right to be released on
bail; see section 29 CPC.
Right to remain silent.
Right to communicate
with counsel.
Right to legal
representation.
Right to consult counsel
(able and willing) and of
own choice.
Right to apply for a writ
of habeas corpus.
Right to claim damages
in the civil court for
unlawful arrest (civil
action lies in e.g. a tort
of false imprisonment )

20. 20
A. RIGHT OF ARRESTEE IN GENERAL
1. Section 28A is inserted to the Code to provide further safe guards. Among
them are as follows:
(i) right to be informed of the arrest;
(ii) right to inform relative or friend or legal practitioner and consult;
(iii) to provide reasonable time to consult legal practitioner within the sight of a
police officer and as far as practicable the conversation must not be overheard;
(iv) police officer may have to differ questioning until consultation is over;
(v) police officer must provide reasonable facilities for the consultation
B. RIGHT TO BE INFORMED OF THE GROUNDS OF ARREST:
1. Law:
Article 5(3) of FC gives an arrested person the right to be 'informed as soon as may be of the
grounds of his arrest'
Section 28A CPC
(incorporated in
2007)
The words “as soon as may be” must be construed strictly to means
“forthwith”.
a) Mohammad Shafiq Dollah & Anor v Sarjan Mejar Abdul Manaf
Jusoh, it was held that both s.28A of CPC and Article 5(3) of FC are joint rights
of an accused person.

21. 21
2. Christie v. Leachinsky [1974] (followed by Abdul Rahman v Tan Jo Koh)
a) Viscount Simon (HOL): He proposes 5 propositions:-
(1) If a policeman arrests without warrant on reasonable suspicion
of felony, the arrestee is entitled to know on what charge or on
suspicion of what crime he is being seized.
(2) If the citizen is not so informed but is nevertheless seized, the
policeman is liable for false imprisonment.
(3) the person should be informed of the reason why he is seized
naturally does not exist if the circumstances are such that he must
know the general nature of the alleged offence for which he is
detained.
(4) what language x penting, as long as he knows in substance the
reason why these restraints should be imposed.
(5) The arrestee cannot complain that he has not been supplied
with the above information as and when he should be if he himself
produces the situation which makes it practically impossible to inform
him.
3. Limitation of rights to be informed:
a) there is no need to inform if the nature of the crime is obvious.
b) cannot demand the information in precise and technical language.
c) if you yourself makes it hard for you to know, you can’t claim that you
have not been informed.

22. 22
C. RIGHT TO LEGAL REPRESENTATION AND COMMUNICATION WITH COUNSEL
1. Right 1- Not yet represented, just consulting a lawyer.
a) Article 5(3) of FC- right to be consulted and defended by legal
practitioner of his choice.
(1) This right envisages two separate scenarios:
b) The rationale for such right (right to consult), inter alia, is to ensure that
an arrested person may properly defend himself against his arrest and not
merely when he is charged in court
c) The reality, however, is very different. Even if this right is guaranteed by
the Constitution, it does not operate automatically:
Ooi Ah Phua v
Officer-in-Charge,
Criminal
Investigation,
Kedah/Perlis,
 Tun Suffian LP in the Federal Court held that:
'The right of an arrested person to consult his lawyer begins from the
moment of arrest but that right cannot be exercised immediately after
arrest. ...The right should not be exercised to the detriment of any
investigation by the police.'
 Therefore, balance has to be made between the rights of arrested
person to have a lawyer and the duty of the police officer to ensure
that the public is protected.
2. Right 2- representation during remand proceedings
a) The police can discharge the onus of satisfying the Magistrate that to
allow him to exercise that right would allow result in undue interference with
the course of investigation:
Saul Hamid v. PP Arrested person has right to be represented by a practitioner during
consultation at the police station upon being arrest representation in court

23. 23
[1987] remand proceeding before a Magistrate under section 117.
D. RIGHT TO BE PRODUCED BEFORE A MAGISTRATE:
Article 5(4) FC The person arrested shall without unreasonable delay be produced before a
Magistrate within 24 hrs of arrest
28 of CPC How a person is to be dealt with and detention for more than 24 hours
 'No police officer shall detain in custody a person arrested without a
warrant for a longer period than under all circumstances of the case is
reasonable.'
 'Such period shall not in the absence or after the expiry of a special order
of a Magistrate under section 117 exceed twenty-four hours exclusive of
the time necessary for the journey from the place of arrest to the
Magistrate's court.'
54(1)(b) of
Interpretation
Act
computation of 24 hours
 if last day of the period includes excluded day, the period shall be included
the following day which is not included.
 it’s not applicable for holidays within 6 days
117 CPC Procedure where investigation cannot be completed within 24 hours
1. Cases
Re Detention of R
Sivarasa & Ors
the rationale for such limitation upon the police power of arrest:
 'It will be noted that sections 28 and 117 have been inserted into the
Criminal Procedure Code for a good reason, so that the detention by
the police of a person beyond 24 hours after his arrest is not as a
result of an executive act but as a result of a judicial decision in
consonance with Article 5(4) of the federal Constitution.'
Ramli bin Salleh v
Inspector Yahya b.
Hashim
judicial discretion to order the remand of the arrested person under Section
117 of the Criminal Procedure Code should be exercised sparingly, and
among other factors to be taken into consideration before making such order

24. 24
are, the seriousness of the offence, and whether a shorter period would
be sufficient to enable the police to complete investigation.
E. RIGHT TO BE RELEASE PENDING TRIAL : RIGHT TO BAIL
1. Concept/ why ada hak ni?
a) Since a person is presumed to be innocent until proven otherwise, once
a person has been charged and brought before a court, he should be released
pending trial on bail.
b) The grant or refusal of bail is a matter of foremost importance to the
accused person because the refusal or denial of bail is clearly a disadvantage
to his preparation of his defence or in his attempts to raise funds to engage
counsel of his choice.
c) On the other hand, the prosecution will argue that to allow an accused
person to be out on bail is not in the interest of the public as there could be
the possibility of tampering with witnesses.
2. Definition of bail
a) Some form of property which is deposited or pledged to a court in
order to persuade it to release suspect from custody, on the understanding
that the suspect will return for tiral or forfeit the bail.
b) In most cases, bail securities will be returned at the end of the trial, if all
court appearances are made

25. 25
c) Whether suspect is found guilty or not has no impact on the return of
bail.
3. BAIL; at this point it is always “police bail” (commonly referred to as opposed
to a “Court bail”) as the arrestee is yet to be charged for a criminal offence in open
court.
29 Release of person arrested
 No person who has been arrested by a police officer shall be released except on his
own bond or on bail or under the order in writing of a Magistrate or of a police officrr
not below the rank of Inspector
387 for “bailable offences” (when person may be released on bail)
 where any person other than the accused person of a non-bailable offence is arrested
or detained without warrant by a police officer or is brought before the court and
prepared to give bail, such person shall be released on bail.
 A person who is entitled to bail under this Section is one who is:
i. Accused of a non-bailable offence; and
ii. Arrested or detained without warrant by a police officer; or
iii. Appears or is brought before a court; and
iv. Is prepared to give bail
Type of offence
Bailable Offence
Imprisonment less than
3 years or with fine
only.
Right of accused
Non-bailable Offence
Imprisonment more than
3 years and death
penalty.
Discretion of Court
Unbailable Offence
Specific provisions in
statutes "unbailable".
Absolutely unbailable.

26. 26
388 for “non-bailable offences” (when a person accused of non-bailable offence may be
released on bail)
(1) When any person accused of any non-bailable offence is arrested or detained
without warrant, he may be released on bail BUT SHALL NOT BE SO RELEASED IF
there appears reasonable grounds for believing that he has been guilty of an
punishable with death or imprisonment for life
Provided that the Court may direct any person under age of 16 years, or
any woman or any sick or infirm accused person of such an offence be released on
bail.
(2) If it appears that at any stage or proceedings there are not reasonable grounds for
believing the accused committed such offence, but there are sufficient grounds for
further inquiry, accused shall pending inquiry be released on bail or at the discretion of
Court on the execution by him of a bond without sureties for his appearance
a) Take note that the three (3) section speaks of “execution of a bond with
or without sureties”.
b) The “bond” is to ensure the arrestee’s presence in Court on a
subsequent date.
F. RIGHT TO SELF-DEFENCE:
1. Regina v See Kah Loon (1881)
Facts The police was trying to effect an arrest with warrant.
He had accidentally left the warrant at the police station.
Held If there is an unlawful arrest, The arrestee can use force to prevent it.

27. 27
2. PP v Kok Khee [1963] MLJ 362
Facts  Hawking vegetables without license.
 Using criminal force on a police constable in the execution of his duty.
 Police did not give grounds for arrest. Confiscated the dacing and accused assulted
the officer by hitting the dacing on the police constable.
Issue Can he use force when arrested?
Held The offender was justified in putting up a struggle since he was resisting an illegal arrest
or unjustifiable use of force towards him
G. RIGHT TO REMEDIES FOR WRONGFUL ARREST AND DETENTION
1. Habeas Corpus
2. right to initiate civil action for damages
H. RIGHT TO REMAIN SILENT
1. Section 37 DDA 1952
2. Proviso to section 112(2) CPC
3. S. 113
4. an accused person is not obliged to answer a question put to him for the
purpose of discovering whether he has committed a criminal offence, he also may
not be cross-examined on his reasons for refusing to answer a question after he has
been cautioned by the police.
Omar b. Daud v
PP
 the accused was asked to explain why he had elected to say nothing when
he was cautioned.
 In disallowing the question Edgar Joseph Jr J said:
'I disallowed that question because, in my view, in electing to remain silent
the accused was merely exercising a legal right and therefore no inference

28. 28
of guilt could be drawn against him
VIII. RIGHTS OF ARRESTOR
A. RIGHTS TO USE FORCE
1. Extent of arrestor to use force masa nak tangkap:
15(3) Cannot cause death of a person who is not accused of an offence punishable with death
or with imprisonment for life
19(1) not subject to more restraint than necessary to prevent escape
2. Issue: in using handcuffs, because “no man in guilty until proven guilty”.
Should we handcuff?
a) Ramanathan s/o Chelliah v. PP [1996] 2 MLJ 538
Held by Shaik Daud JCA:
 In the final analysis, it is in the sole discretion of the presiding officer to consider whether it
is essential to have the accused person handcuffed be it during the entire trial or at the
arrangement if and when the application is made by the prosecution.
 Needless to say, such discretion must be exercised judiciously and not merely because the
prosecution wants it to be…In the present appeal involving Mr Ramanathan, we could not
find anywhere that an application was made by the learned DPP nor we could find any
credible material put before the court.
 We are unanimously of the view that based on the alleged charges faced by the appellant, it
can be hardly justified for him to be handcuffed…It is therefore, timely to remind lower
courts to bear these observations in mind when exercising their discretion in such situations.

29. 29
B. RIGHTS TO OBTAIN A REMAND ORDER
1. The law allows for an arrestee to be detained in custody (kept in the prison)
pending completion of investigation of the crime.
117 Remand Order When investigation cannot be completed within 24 hrs.
1- When any person is arrested and detained in custody.
2- Investigations cannot be completed within 24 hours.
3- There are grounds to show that the accusation was well-founded
4- Police has to transmit an investigation diary to the Magistrate.
119 diary of proceedings in investigation
 The diaries are very crucial, the magistrate must have a copy to scrutinize the
development of the police investigations.
 the existence of an ID + The ID is maintained by the IO on a daily basis.
2. Content of ID :
3. PDRM v Audrey Keong Mei Cheng [1994]
Held
 ID must be complete with grounds indicating that the information against the
(1)
The time at which the order to
investigate reached the IO.
Normally all crime
investigation precedes a
police report.
(2)
The time at
which the IO
began the
investigation
(3)
The time at which
the IO closed the
investigation.
(4)
The place
or places
visited by
the IO
(5)
A statement of the circumstances ascertained through the investigation. An
IO will ascertain the facts and circumstances of the crime through interview
of witnesses. The interview is done by way of recording statements from
those witnesses. The witnesses are those who are acquainted with the
facts and circumstances of the case. In this regard bear in mind section 111
and 112 of the CPC.

30. 30
accused is well founded.
 In this case, a letter setting out the circumstances of the application which was
produced did not satisfy the requirement of an ID under section 117 CPC
4. section 117(1) : “Every police officer making a police investigation (IO) shall
day by day (daily) enter his proceedings in the investigation (steps, measures, actions
etc taken in the investigation of a crime) in a diary (ID) …”
5. Admissibility of the ID as evidence in a criminal trial , HOW?:
a) The proviso to section 119(2) allows for the IO to refer to the ID when
he is testifying in Court.

31. 31
b) Normally the IO will testify in Court in accordance with his ID. Hence
the importance of the IO maintaining a thorough and comprehensive ID.
c) The IO can refer to his ID when he is testifying (giving evidence) in
Court. He can do so by virtue of section 159 or 160 of the Evidence Act 1950.
d) Section 159 and 160 refers to “refreshing memory” by a witness in
court when he refers to his writing or document made contemporaneously. Is
an ID made contemporaneously?
e) S.119(2) CPC: accused is not entitled to “call for or inspect” ID
f) However if the IO refers to the entries in his ID when he is testifying
(giving sworn testimony), the accused is entitled to look only at the entries
referred to by the IO in evidence.
g) Can the accused take a step further say for example to create doubt on
the integrity of the investigation by the IO?
h) RE THE DETENTION OF R SIVARASA & ORS [1996]
Facts  The suspects were remanded under s. 117 CPC for an initial period of 3 days.
 An application was subsequently made for an extension of the detention period of
the suspects under section 117 CPC.
 The grounds of application : the initial detention period was too short and was
insufficient for the police to complete their investigation.
 The ID which was forwarded to the magistrate consisted nothing more than 3 sheets
of typewritten paper and a timetable of when the suspects were being taken out from
and sent back to the cells where they were detained.
Held Magistrate  she was satisfied with the reasons in the application and also in the ID
that was produced .
 Hence, she allowed the application for the extension of detention.
High Court  Set aside the remand order made by the magistrate.

32. 32
 the 3 sheets of paper did not contain copies of entries in the diary
prescribed under s.119 CPC and did not relate to the day to day
proceedings of the IO which were entered into his diary.
 the timetable could not also be considered as copies of the entries
prescribed under section 119 CPC.
 “The failure to transmit a copy of the entries was fatal to the
application before the magistrate as it meant that the magistrate did
not have the prescribed material…to act upon in her judicial enquiry
whether to order further remand… She had no jurisdiction to make the
order of remand.”
 there was no nexus between the suspects and a suspected offence or
offences.
 Hence whatever vague reasons shown on the application for the
continued detention of each of the suspects were without any
foundation.
 Sections 28 and 117 were inserted into the CPC so that the detention
by the police of a person beyond 24 hours after his arrest is not as a
result of an executive act but as a result of a judicial decision
consonant with Article 5(4) FC.
 See now the present version of section 117 in particular 117(2) to (7)
CPC. The amendments came about in the year 2006. The safeguards
are now contained in the legal provision itself.
IX. DUTIES OF THE PUBLIC:
13
Duty of public to give information of certain matters referred to in the section.
14
Duty of a police officer to report information received from the public on the occurrence of
any sudden death or finding of a dead body

33. 33
X. CONSEQUENCES OF AN UNLAWFUL ARREST
A. CASES
1. Regina v See Kah Loon (1881) and PP v Kok Khee [1963] dalam right to self
defense
1. Saminathan v PP [1937] - legality or illegality of the person’s arrest does not
concern the court which is trying him.
XI. REMEDIES
A. CLAIM FOR DAMAGES IN THE CIVIL COURT FOR TORT OF FALSE IMPRISONMENT
1. Tan Kay Teck & Anor v Government of Malaysia [1957] – kes bawah elemen
reasonable complain
a) The subcon boleh bawak civil action
B. RIGHT TO APPLY FOR A WRIT OF HABEAS CORPUS: SECTION 365-374 CPC
1. Law ;CPC
Right 365 An application may be made to the HC for an order to release a person who is
illegally or improperly detained
Procedure 366 Support the application dengan affidavit (states the person detained and the
facts relating to the detention
367 The affidavit shall be made by the person detained, kalau ada coercion atau
apa2 halangna lain baru boleh other person
368 Sertakan sekali waran tangkap

34. 34
2. Re Ongkar Shrian [1970] 1 MLJ 28
Facts 1) the applicant, who is a foreigner, was arrested in Singapore at his hotel by the
police on 17 July 1969 at 3 a.m. without a warrant of arrest for an offence alleged
to have been committed in Kuala Lumpur.
2) He was produced before the ninth Magistrate's Court in Singapore on the same
day and there he learnt that a warrant for his arrest purportedly issued by the Kuala
Lumpur sessions Court had arrived in Singapore at 8.30 a.m. that day.
3) It is alleged that a little later this warrant was endorsed by a Singapore Magistrate
and that the said warrant bears no authentication of any shape or form.
4) At 4 p.m. the same day the applicant was released on cash bail in the sum of
$5,000 and the proceedings were adjourned until 3 p.m. the following day.
5) On 18 July 1969 at 3 p.m. the applicant appeared in the ninth Magistrate's Court
where the DPP made an application to the Court to order the return of the
applicant to Malaysia under the provisions of s. 54 of the Criminal Procedure Code.
Held This application was opposed by Counsel for the applicant on several grounds whereupon
the ninth Magistrate's Court adjourned the proceedings to 1 August 1969 to enable the
applicant to apply for habeas corpus.
Mode of commencement of a criminal proceeding
(summons OR warrant)

35. 35
I. WARRANT OF ARREST - SECTIONS 38-50 CPC
A. DEFINITION
1. Warrant is not defined in the code.
2. Generally it means an order in writing, signed and sealed by the court
authorising a police officer to arrest and bring before the court the person named
II. SUMMONS
A. DEFINITION
1. The word summons is not defined in the Code.
2. It means a form of process issued by a court ordering him to appear before it,
for a particular purpose or to answer a particular charge.
3. For a summon to be valid, it must satisfy the requirement under section 35 of
the Code which are it must be in writing, clear and specific, signed by Registrar and
sealed by the court.
III. DISTINCTION BETWEEN SUMMONS AND WARRANT
Summons Warrant
 Summon directs a person to appear before
the court.
 Warrant directs a person to arrest or do a
particular act as specified in the warrant.
 Summon is a mild form of court process can
even be served by substitute service.
 Warrant is more serious in nature and must
be served personally.

 Summons case relate to an offence which
is not punishable with death or
imprisonment for a term exceeding 6
 Warrant case relate to an offence
punishable with death or imprisonment of a
term exceeding 6 months.

36. 36
months unless otherwise provided by law.
 example
section 120B(1) of PC: offence of criminal
conspiracy under, the case of a party to a
criminal conspiracy to commit an offence is
a warrant case as the section expressly
state the term of imprisonment of two
years.
 Example
 s 120B(2) of PC :a case of party to a
criminal conspiracy other than a criminal
conspiracy to commit an offence is a
summon case as the punishment stated in
the section is punishable not exceeding six
months.
 When the criminal offence is a summons
case (refer to the First Schedule) and not a
warrant case, a summons should be issued
in the first instance for a criminal
proceeding and not a warrant.
 Karpal Singh v PP [1986] 2 MLJ 319.
“If a warrant is issued instead in a summons
case and an arrest is made under such
warrant, the arrest would be unlawful”
 Section 47 - Issue of warrant in lieu of or
in addition to summons
A criminal Court may in any case in which it
is empowered to issue a summons for the
appearance of any person other than a juror
or assessor issue, after recording its reasons
in writing, a warrant for his arrest—
(a) if either before the issue of summons or after
the issue of the same but before the time fixed
for his appearance the Court sees reason to
believe that he has absconded or will not obey
the summons; or
 When a warrant of arrest is issued for a
person’s arrest, the arresting officer must
have the warrant in his possession at the
time of arrest. The person sought to be
arrested (arrestee) has a right to demand
that the warrant and its contents to be
shown to him.
 This will be consistent with the right to be
informed of the grounds of his arrest, as the
warrant of arrest is supposed to contain the
grounds.
 This is in line with section 41 of CPC ;
S41- Notification of substance of warrant
The police officer or other person executing
a warrant of arrest shall notify the substance
thereof to the person arrested and if so
required shall show him the warrant or a
copy thereof under the seal of the Court
issuing the warrant.

37. 37
(b) if at such time he fails to appear and the
summons is proved to have been duly served in
time to admit of his appearing in accordance
therewith and no reasonable excuse is offered
for such failure.
IV. RELATIONSHIP BETWEEN MODES OF COMMENCEMENT WITH
JURISDICTION OF CRIMINAL COURT
A. SECTION 5(1) OF THE SUBORDINATE ACT 1948,
a warrant of arrest may be issued either by a Session’s court or its Registrar, or a
Magistrate’s Court of either class, or the Penghulu’s court.
B. SECTION 38(1) OF THE CPC
Every warrant of arrest issued by the court under CPC must be in writing and signed
as provided by the Court of Judicature Act 1964, or Subordinate Courts Act 1948, and
must bear the seal of the court as required under
C. PROCEDURE ON ARREST OF PERSON OUTSIDE LOCAL JURISDICTION
1. section 43 of the CPC : where a warrant of arrest is executed outside the local
jurisdiction, the person arrested must, subject to section 39 of the CPC, be brought
before the nearest magistrate.

38. 38
2. When the criminal offence is a summons case (refer to the First Schedule) and
not a warrant case, a summons should be issued in the first instance for a criminal
proceeding and not a warrant.
3. The terms “summon case” and “warrant case” are defined in section 2(1) of the
CPC.
4. If a warrant is issued instead of a summons case and an arrest is made under
such warrant, the arrest would be considered as unlawful as can be seen in the case
of Karpal Singh v PP [1986] 2 MLJ 319 that held section 47 of the CPC is not
satisfied and hence the issue of the warrant was unlawful.
5. Therefore, to put in the simplest way, the court will not be conducting a trial if
the arrest was made on a warrant arrest instead of when the correct way it should be
fall under a summon case.
6. However, if the arrest made is made in illegal or unlawful way, it does not
affect the court having jurisdiction to try an accused person;
a) Saw Kim Hai & Anor v R [1956] MLJ 21:
the court held that a person can only claim damages for false imprisonment
due to the wrongful arrest.
b) However, the wrongful arrest will not affect the court’s jurisdiction to
try him.
(1) Saminathan v PP [1937] MLJ 39:
the court held that the legality or illegality of the person’s arrest does
not concern the court which is trying him.