Tatacara Jenayah 1

UUUK4033

DR. MUHAMAD HELMI BIN MD. SAID, FUU UKM

RIGHTS OF ARRESTED PERSON
 Right to be Informed of
Grounds of Arrest

šWhen the person is arrested, Article 5 of

FC, requires that he shall be informed as
soon as may be of the ground of arrest
šArticle 5 (3) states
“ Where a person is arrested he shall be
informed as soon as may be of the grounds
of his arrest and shall be allowed to consult
and be defended by a legal practitioner of
his choice.”
šThe HOL in Christie v
Leachinsky(1947) AC 573, explained
this right in detail..
šThe Federal Court in Abdul Rahman v
Tan Jo Koh refered to the above
case(1968) 1 MLJ 205
“ It would follow therefore from this
proposition, that a person arrested
without being told the reason is
entitled to resist the arrest and any
force used to overcome the resistance
would amount to assault”
šAminah v Superintendant ofPrison,
Pengkalan Chepa kelantan(1968) 1
MLJ 92
šYin Hon Kit V Minister Home Affairs
Malaysia(1988) 2 MLJ 38
šChong Kim Loy V Timbalan Menteri
Dalam Negeri Malaysia & Anor (1990)
1 CLJ (Rep) 73
šKhaeryl Benjamin Ibrahim V Ketua
Polis Negara(2010) 6 CLJ 777
The right to consult and be defended
by a legal practitioner of choice

šArticle 5(3) of FC
šSection 28A CPC-Subsection 1-
11-Amendment was inserted
2007
šThe right to legal advice upon arrest arises
where the arrested person is brought
before a magistrate within 24 hrs as
required under s.28 of CPC
šThe purpose to bring him before the
magistrate is to obtain a remand order
under s.117 CPC so that investigations can
be completed
šIn the case of Ooi Ah Pua V OCCI
Kedah/Perlis (1975) 2 MLJ 198
“ The court held the onus is on the police to
deny legal representation on the ground
that interference may encourage the
suspect to fabricate stories”
šFor the right to legal advice during
remand proceedings
šCase: Saul Hamid V PP (1987) 2 MLJ 736
“A Person in remand proceedings is entitled
to legal representation and the burden lies
on the police to prove that there will be
interruptions in their investigation”
-Furthermore, in this case, the judge has
referred to section 255 of the CPC, wherein
every person accused before any criminal
court may have advocate of their own to
defend them
šLee Mau Seng V Minister Home
Affairs (1971) 2 MLJ 137
“The court held that under Article 5(3) Of the
FC, the accused has the right to legal
representatives within a reasonable timer after
his arrest”
š Mohamed B. Abdullah V PP(1980) 2 MLJ 201
š It also happen in the case of Chong Fah Hin
V PP(1949) MLJ 114
š Trans Huu Thoe V PP (2009)3 CLJ 102
š Ramli B Salleh v Inspector Yahya Hashim(1973)
1 MLJ 54
š PP V Mah Chuen Lim(1975) 1 MLJ 95
š Fadiah Nadwa Fikri (2015) 10 CLJ 259
Section 28A of the CPC

šThe sections consist of:

1.Informations on the grounds of
arrest
2.Information to a relative or friend
of the arrest
3.Consultation with a counsel
 Grounds of Arrest

š28a. (1) A person arrested

without a warrant shall be
informed
as soon as may be of the grounds
of his arrest by the police officer
making the arrest.
Case: Mohammad Shafiq Dollah V
Sarjan Mejar Abdul Manaf Jusoh
(2013) 2 CLJ 1096
 Right to be defended by a
Legal Practitioner of Choice

šSim Kee Guan V PP(1988)

2 MLJ 382
Right to be brought before a
Magistrate within 24 Hours

šArt. 5 (4) Where a person is arrested and

not released he shall without
unreasonable delay, and in any case
within twenty-four hours (excluding the
time of any necessary journey) be
produced before a magistrate and shall
not be further detained in custody without
the magistrate’s authority:
šSaul Hamid B Parkir Mahamad V Inspector
Abd Fattah(1999) 6 MLJ 800
šBREAK for 5 MINUTES
REMAND-117 CPC
RATIONAL FOR HAVING A
REMAND
šIf the investigation cannot be completed
within 24 hours and there are grounds to
believe that the accusations or
information is well founded by virtue of
s.117 of the CPC, the police officer must
produce the accused and a copy of the
entries in the diary before Magistrate
šThe magistrate may then authorize the
further detention of the accused and the
Magistrate shall record his reasons for
granting the remand order.
šRe The Detention of R
Sivarasa(1996)3 MLJ 611
šBal Krishna V Emperor(AIR) 1931
1 Lah 99
šNabachandrar V Manipur
Administration (AIR) 1964 39
šFrom the above cases, it is the principle
that the detention by the police
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 Art. 5 (4) of the FC
šPP v Rajisenagar(2006) 2 AMR
624,(2006) 2 MLJ 43
šRamli Salleh V inspector Yahya
Hashim(1973) 1 MLJ 54
š In 2006, 117(2) of the CPC was amended, consequently
there are two types of order of detention based on the
maximum punishment for offences being investigated
Category Duration of Detention

For offences which are punishable with
imprisonment of less than 14 years
For offences which are punishable with
death or imprisonment of 14 years or
more
The detention shall not be more than 4
days on the first application and shall not
be more than 3 days on the second
application
The detention shall not be more than 7
days on the first application and the
detention shall not be more than 7 days
on the second application
šSection 388(2) CPC states:
(2) If it appears to such officer or Court at
any stage of the investigation, inquiry or trial,
as the case may be, that there are no
reasonable grounds for believing that the
accused has committed a non-bailable
offence, but there are sufficient grounds for
further inquiry into his guilt, the accused
shall, pending such inquiry, be released on
bail, or, at the discretion of that officer or
Court, on the execution by him of a bond
without sureties for his appearance as
hereinafter provided.
š Kwan Hung Cheong V. Inspector Yusof Hj
Othman &ors(2009) 3 MLJ 263- High Court
Held: The defendant reliance on S.388(2) of the
CPC to issue the police bail bond was not
justified from the notes of proceedings of the
Magistrate, it does not show that there were no
reasonable grounds for believing that the
accused had committed a non-bailable
offence. Moreover the Magistrate ordered the
released of the plaintif without conditions
šHowever, In the same case at
the Federal Court; FC ruled
several rulings. Inspector Yusof Hj
Othman V. Kwan Hon
Cheong(2011) 6 AMR 289, (2011)
8 CLJ 1
šPP V. Audrey Keong Mei
Chong(1997) 3 MLJ 477,(1997)
4 AMR 3584
“S.117 cannot be used to
compel a potential witness to
assists in investigations”
šRe the detention of Leonard Teoh Hooi
Leong(1998) 1 MLJ 757
“Before granting the remand order, the
Magistrate should satisfy himself that there
are grounds to believe that the accusation is
well founded and the presence of the
accused is required in the investigation by
the police. However it is not sufficient reason
to grant a remand order on mere
expectations that time will show the guilt of
the accused or that further facts will come
to life and s.117 of the CPC only for suspects
not for potential witnesses”
The mandatory requirement to produce the
investigation diary when applying for a
remand order

šCase: PP V Ayar &ors (2010) 5 AMR 362

Facts:19 Fishermen from Indonesia were
detained for an investigations for an offence
under section 15 of the Fisheries Act 1985
Held: The procedure laid down in CPC shall
be applicable and it is mandatory for the
enforcement agency to produce
Investigation Diary
š Dasthigeer Mohd Ismail(1999) 6 CLJ 317
š Re Mohamed Ezam Mohd Noor(2001) 3 MLJ 372
š PP V N(A Child)(2004) 2 MLJ 299
š PP v Duis Akim(2005) 2 CLJ 931
š Ketua Polis Daerah JB V Ngui Tek Choi(2013) 4 CLJ
47
š Dato Seri Khalid Abu Bakar V Indra AP
Nallathamby(Kugan’s Case)
(2015) 1 MLJ 353
Mohd Hady b Yaakop V Hassan Marsom& ors(2016)
MLJU 312
Hassan Marsom V Mohd Hady B. Yaakop(2018)
MLJU 683
Right to remedies for wrongful arrest and
detention

šRight of Private or self defence

“ A person has a right to defend
himself or his property to resist an
unlawful arrest”
PP v Ong Kee Seong(1960) MLJ 156
PP V Kok Khee(1963) MLJ 362
Khor Ah Kah V PP(1964) MLJ 304
 Right to take civil
action/compensation/damages

“ A Person who is unlawfully arrested

may bring a civil action for damages”

Tan Kay Teck V AG(1957) MLJ 237

PP V Khok Khee(1963) MLJ 362
“If there is a genuinely
reasonably mistake in the
unlawful arrest, the damages
may not be granted”
Tan Eng Hoe V AG(1933) MLJ
150
Right to apply for writ of Habeas Corpus
š 365. The High Court may whenever it thinks fit
direct—
(a) that any person who:
(i) is detained in any prison within the limits of
Malaysia on a warrant of extradition whether under
the Extradition Act 1992 [Act 479]; or
(ii) is alleged to be illegally or improperly detained in
public or private custody within the limits of
Malaysia,
be set at liberty;
(b) that any defendant in custody under a writ of
attachment be brought before the Court to be
dealt with according to law.
š S.365 of the CPC provides that an application
may be made to the High Court for an order to
release a person who is illegally or improperly
detained.
Case: Uthayakumar A/L Ponnusamy V Menteri
Kementerian Dalam Negeri Malaysia(2009) 1 AMR
380,(2009) 1 CLJ 546
Fact: The applicant in this case was denied release under the
writ of habeas corpus. He filed the writ again but the different
grounds,citing the Canadian legal position, where the
detention has become unlawful due to subsequent inhumane
conditions
Held:The Malaysian position on Habeas corpus is only limited to
the legal status of the detention. Court dismissed the
application
Case:Puvaneswaran Murugiah V Menteri KDN(1991)3 CLJ 649
Abd Ghani Haron V KPN(2001) 2 CLJ 709
The effect of non compliance
Habeas Corpus
š Muhammad Jailani Kasom V Timbalan Menteri
KDN(2006) 5 AMR 689-Federal Court
“It follows that if a detention is procured by steps
which are not regular, the court is empowered to
set aside the detention order. It means that every
step which is necessary for the making of the
detention order is subject to review by the court”
“In this case, the preconditions to the exercise of
powers under section 6(1) of the dangerous Drug
Act 1985 are part of the decision making process
and thus can be subjected to judicial review”
Thus the appeal was allowed.
Other cases relate with Non-
Compliance

šSK Tangaliswaran Krishnan V

Menteri KDN(2009) 6 CLJ 705
šMurugan Supparamaniam V
Timbalan Menteri KDN(2010) 3
AMR 703
šChong Boon Pua V Timbalan
Menteri KDN (2004) 4 CLJ 838
Remedies for wrongful Arrest

šWhere the arrest is unlawful, the

arrested person is justified in using
force or inflicting harm in order to
resist the illegal arrest
Case:Gabriel V PP(1992) 1 MLJ 593
PP V Ong Ka Seong(1960) MLJ 156
Khor Ah Kah(1964) MLJ 304
 RIGHTS OF PERSON REMEDIES FOR WARRANT OF
ARRESTED WRONGFUL ARREST AND
ARREST SUMMONS
• Right to be informed of ground • Self-defence • Warrant of Arrest:
of arrest May use force to resist -S 38 CPC: Form of
-Art 5(3) FC illegal arrest Warrant of Arrest
-S 28A(1) CPC -Ong Kee Seong -S 39 CPC: Court may
-Christie v Leachinsky -Khor Ah Kah direct by indorsement
• Arrested person must be informed -Kok Khee on warrant security to
of true grounds of his arrest be taken.
• Police may be liable for false • Civil Action -S 40 CPC: Warrant to
imprisonment if true grounds not Sue for damages for whom directed.
informed tort of assault, or -S 41 CPC: Notification
• Need not inform if the arrested trespass to person, or of substance of
person should know the general false imprisonment. warrant.-S -42 CPC:
nature of the offence he is -Kok Khee person arrested to be
arrested for or he has made it
-Tan Kay Teck brought before court
difficult for himself to be informed
-Tan Eng Hoe without delay.
• Technical and precise language
need not be used. -S 43 CPC: Procedure
-Abdul Rahman v Tan Jo Koh • Writ of Habeas Corpus on arrest of person
-Mohammad Shafiq Dollah -S 365 CPC outside local
-Procedures : SS 366- jurisdiction.
• Right to legal representation; 374 CPC -S 47 CPC: Issue of
-Art 5(3) FC -Uthayakumar warrant in lieu of or in
-S 28A(2), (4) CPC a/lPonnusamy, addition to summons
-Ooi Ah Phua v OCCI Puvaneswaran
-Saul Hamid Murugiah,Muhammad • Summons: ss 34-37
-Lee Mau Seng (S’re) Jailani Kasom, CPC
-Mohamed bin Abdullah Parasuraman a/l Velu,
-Chong Fah Hin SK Tangaliswaran • Distinction between
-Trans Huu Tho Krishnan, Murugan summons case and
Suppramaniam warrant case : see
Karpal Singh
• Rights to communicate to
relative/friend
-S 28A(2) and (3) CPC • Criminal Proceedings
• General rule: Illegality
• Exception to S 28A(2)-(7) has no consequence Baljit Singh Book
-S 28A(8) and (9) CPC in criminal
proceedings.
-Saminathan
• Right to be brought before
-Gabriel
Magistrate within 24 hours
-Art 5(4) FC -Saw Kim Hai
-S 28(3) CPC (R Sivarasa, -Ramanathan Chelliah
Rajisegar a/l Munisamy, Ramli b
Salleh) • Exception
-ss 117 and 119 CPC -Ong Kee Seong
-Audrey Keong Mei Cheng, -Khor Ah Kah
Leornard Teoh Hooi Leong, PP v -Kok Khee
Ayar, Insdpector Yusof Hj
Othman; Chong Kim Boon)

• Right to Bail
-Maja anak Kus, Kwang Hung
Cheong
THANK YOU