Cecily Zamora
In Malaysia, an arrest occurs when a police officer (or other legally empowered persons) touches or confines the body of the person to be arrested or when a suspect submits to custody voluntarily through words or actions. According to Section 15(1) of the Criminal Procedure Code (CPC), an arrest can be made by actually touching or confining the body of the person to be arrested or when the suspect submits to custody. This can include restraining a person who attempts to flee, which constitutes touching or confining the body. The use of handcuffs is also a clear indicator of an arrest. Under common law, an arrest occurs when a police officer states their intention to arrest, uses force to restrain, or makes it clear that force will be used if necessary to prevent the individual from leaving. This can include accompanying a police officer to a station or being escorted by officers. Understanding the definition of an arrest is crucial, as it triggers specific rights and procedures outlined in the CPC and the Federal Constitution.
| Characteristics | Values |
|---|---|
| Definition of arrest | An arrest happens when a police officer touches or confines the body of the person to be arrested or when you submit to custody voluntarily by word or action. |
| Who can arrest? | A police officer or penghulu |
| Grounds for arrest | Reasonable grounds to believe that a person has committed or is about to commit a criminal offense. |
| Types of arrest | Warrantless arrest, warrant of arrest |
| Rights of arrested person | To be informed of the grounds of arrest, to communicate with a relative/friend and a lawyer, to consult a lawyer, to be brought before a Magistrate within 24 hours of arrest |
| Duties of arresting officer | To inform the arrested person of the grounds for arrest and the offense they are being charged with, to prepare a written record of the arrest |
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What You'll Learn
'Arrest' definition at common law
An arrest is the act of apprehending and taking a person into legal custody, usually because the person has been suspected of or observed committing a crime. The definition of arrest at common law is the power to arrest for a breach of the peace, which applies to everyone, including constables, and the powers to arrest otherwise than for an offence, which apply only to constables.
In the United States, there is a distinction between an investigatory stop or detention and an arrest. This distinction is based on whether the stop is "brief and cursory" and whether a reasonable individual would feel free to leave. When there is probable cause to believe that a person has committed a minor crime, law enforcement typically issues a citation but does not detain them.
Under common law, a citizen may make an arrest for any felony committed or for a breach of the peace committed in their presence. For example, in California, a citizen's arrest is permitted, and any person can arrest someone whom they have reasonable grounds to suspect of committing an indictable offence.
The right to consult a lawyer begins from the moment of arrest but before any questioning by the police. The police must also inform the person being arrested of the reason for their arrest.
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CPC's three manners of arrest
In Malaysia, an arrest happens when a police officer (or other persons empowered by the law) touches or confines the body of the person to be arrested or when the person submits to custody voluntarily by word or action. Section 15(1) of the Criminal Procedure Code (CPC) outlines three manners of arrest:
- By actually touching the body of the person to be arrested.
- By actually confining the body of the person to be arrested.
- When there is a submission to custody by word or action.
For example, accompanying a police officer to a police station at the officer's direction, being accompanied and escorted by police officers from a bus to a police station, or putting your hands up in surrender.
It is insufficient for a police officer to simply state that a person is "under arrest"; this statement alone does not amount to an arrest. The officer must physically "touch or confine" the person's body, unless the person surrenders themselves into custody.
Under Article 5 of the Federal Constitution, which is further codified in Section 28A of the CPC, an arrested person has the following rights:
- To be informed of the reason for their arrest by the arresting officer.
- To communicate with a relative or friend, and a lawyer of their choice, to inform them of their arrest and whereabouts.
- To request a consultation with a lawyer of their choice at the place of detention and within the sight of a police officer, but with privacy to ensure the conversation cannot be overheard.
Additionally, the police can only detain an arrested person for up to 24 hours (excluding the time for any necessary journey) before producing them before a magistrate. If the investigation cannot be completed within 24 hours, the police can apply for a Remand Order to extend the detention period.
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Rights of the arrested
In Malaysia, an arrest happens when a police officer (or other persons empowered by the law) touches or confines the body of the person to be arrested or when you submit to custody voluntarily by word or action.
Upon arrest, a person has the following rights:
Right to be informed of the grounds of arrest
The arresting officer must inform the arrested person of the true grounds of their arrest as soon as possible, either while arresting or immediately after. Failure to do so makes the arrest unlawful. However, this right does not apply if the arrested person already knows the reason for their arrest, such as being caught in the act, or if their behaviour prevents the police from informing them, such as through violence or attempting to flee.
Right to communicate with a relative, friend, or lawyer
The arrested person has the right to communicate with two classes of persons, being their relative/friend and a lawyer, to inform them that they have been arrested and of their whereabouts. However, this right may be waived if the police reasonably believe that doing so may lead to an accomplice evading arrest, evidence being tampered with, or intimidation of a potential witness.
Right to consult a lawyer
The arrested person has the right to consult and be represented by a lawyer of their choice at the place of detention and within sight of the police. The police must defer any questioning or recording of statements until this consultation has taken place, but only for a reasonable time. This right may be waived by a police officer not below the rank of Deputy Superintendent if they reasonably believe that doing so is necessary to prevent an accomplice from evading arrest, evidence being tampered with, or to act with urgency due to the safety of other persons. The police officer must record their grounds for waiving this right in writing as soon as practicable.
Right to be brought before a Magistrate within 24 hours
Under Article 5(4) of the Federal Constitution, the police can detain an arrested person for up to 24 hours, excluding the time for any necessary journey, to carry out investigations. After this period, the police must release the person if they believe there is no case against them or bring them before a Magistrate to apply for further detention or to lay charges.
Right to remain silent
During police questioning, an arrested person has the right to remain silent and refuse to answer questions that may incriminate them. The police are required to caution the person of this right at the start of any interview.
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Arrest procedure in Malaysia
The arrest procedure in Malaysia is governed by the Criminal Procedure Code (CPC) and other relevant laws, depending on the specifics of the case.
An arrest in Malaysia is typically carried out by the police when they have reasonable grounds to believe that a person has committed or is about to commit a criminal offence. An arrest can be warrantless in certain situations, such as when an offence is committed in the presence of a police officer or when the police officer has reasonable grounds to believe that a person has committed a non-bailable offence.
During an arrest, the police officer must "touch or confine" the body of the person being arrested, unless the person submits to custody by word or action. This can include the use of handcuffs or restraining a person who is attempting to flee.
After an arrest, the police will prepare a written record, including details such as the time, place, reason for arrest, and personal information of the arrested individual. The police can then search the arrested person for evidence related to the offence, respecting their dignity and privacy.
The arrested person has rights, which are stated in Article 5 of the Federal Constitution and further detailed in Section 28A(1) to (9) of the CPC. These rights include:
- The right to be informed of the grounds for their arrest by the arresting officer, unless the person is violent, attempts to flee, or is caught in the act.
- The right to communicate with a relative, friend, or lawyer to inform them of their arrest and whereabouts.
- The right to consult with a lawyer of their choice at the place of detention, out of sight but within the sight of a police officer, before any questioning by the police.
- The right to be brought before a Magistrate within 24 hours of their arrest, excluding necessary journey time. During this time, the police may detain the individual for investigations.
Following the arrest, the police may grant bail depending on the offence, allowing the person to be released from custody while the legal process continues, provided they comply with certain conditions.
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Police powers of arrest
In Malaysia, an arrest occurs when a police officer touches or confines the body of the person being arrested, or when the person submits to custody by word or action. This is outlined in Section 15(1) of the Criminal Procedure Code ("CPC"), which states:
> "In making an arrest, the police officer 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."
Additionally, according to common law, an arrest occurs when a police officer states that they are arresting someone, uses force to restrain the individual, or makes it clear that they will use force if necessary to prevent the individual from going where they may want to go. This is supported by the case of *Chong Fook Kam & Anor v. Shaaban & Ors [1968]*.
The CPC further outlines the police powers of arrest in Malaysia. Specifically, Section 12 of the CPC states that a police officer may arrest without a warrant:
- Any person who has committed or is reasonably suspected of committing a seizable offence in Malaysia, or against whom a reasonable complaint has been made or credible information has been received.
- Any person found in possession of house-breaking implements without a lawful excuse.
- Any person who has been proclaimed under Section 44 of the CPC.
- Any person found in possession of stolen or fraudulently obtained property and who is reasonably suspected of committing an offence related to that property.
- Any person who obstructs a police officer in the execution of their duty or who has escaped from custody.
Furthermore, Section 13 of the CPC states that a police officer may arrest without a warrant any person who, in the presence of the officer, commits or is accused of committing a non-seizable offence and refuses to provide their name and residence or provides false information. In such cases, the person must be brought before a Magistrate within 24 hours of the arrest to ascertain their true name and residence.
It is important to note that, upon arrest, the police are required to inform the person of the grounds for their arrest and the offence they are being charged with. This is outlined in Article 5(3) of the Federal Constitution, which 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."
Additionally, the person has the right to communicate with a relative or friend and a lawyer of their choice to inform them of their arrest and whereabouts. They also have the right to request a consultation with their lawyer at the place of detention, within sight of the police but with privacy to ensure the conversation is not overheard. These rights are provided under Section 28A(1) to (9) of the CPC.
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