Unlawful arrest

An arrest has to be done in line with the law of Malaysia because Article 5 of the Federal
Constitution states that personal freedom is part of a citizens fundamental liberties and the
Federal Constitution is the highest source of law in Malaysia. Malaysia has its own Criminal
Procedure Code (CPC) that is used to govern the arrest procedure.
An arrest without warrant is also known as a seizable offence. The third column of the First
Schedule to the CPC shows that offences under the Penal Code which are punishable with
imprisonment of three years and above are seizable offences. This means that the police may
just arrest you without a warrant for any offence in violation of the Penal Code.
An example would be theft. According to the Penal Code, the crime of theft is a seizable
offence under s 379. Section 23 of the CPC provides power to police officers to arrest without
a warrant under certain circumstances.
Section 23 of the Code states that the police without an order from a Magistrate and without
a warrant of arrest may arrest any person who has been concerned in committed a seizable
offence in 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.
Arrest and investigation are not the same, though they are interrelated. Police investigation
normally commences when the police have information whether receive through their own
wits or intelligence (credible information) or reasonable suspicion.
According to Sidhu (2008), credible information means that the information received by
the police has to be reliable. A plain allegation without any other concrete evidence is not
considered to be credible information.
A non-seizable offence is an offence where police officers are only allowed to arrest you
with a warrant according to the third column of the First Schedule to the CPC.
Therefore, a police officer is not allowed to arrest without a warrant if the punishment of the
offence is less than three years.
CPC states Section 15of the procedure to arrest and remand. Under section 15, police may
arrest by touching the body of the person to be arrested, confining the body of the person to
be arrested or where there is submission to custody by word or action.
In the appeal case of Shaaban & Ors v Chong Fook Kam & Anor, the Privy Council had
the case to consider what elements constitute a valid arrest. Devlin LJ said that, 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. A police officer stopping someone to make an enquiry is therefore not considered an
arrest (Sidhu, 2008).

The Federal Constitution of Malaysia grants Malaysians certain rights when it comes to
police arrest.
Article 5(3) of the Federal Constitution gives an arrested person the right to be 'informed as
soon as may be of the grounds of his arrest'.
An arrested person must be informed of the reason of the arrest instantly. After which if the
reason is withheld, the arrest as well as the imprisonment would amount to false
imprisonment. Hence, the police officer that arrested the person would be held liable for false
imprisonment.
In Abdul Rahman v Tan Jo Koh, the Federal Court that a person arrested on suspicion of
committing an offence, is entitled to immediately know the reason for his arrest. It was also
held that if the reason was withheld, the arrest and detention would amount to false
imprisonment, until the time he was told the reason.
The justification for such right is to ensure that the accused person will know why he is
arrested and have sufficient information in order to enable him to defend himself at the police
station. Such aright is also important for an effective right to counsel.
Besides that, according to Article 5(4) of the Federal Constitution, a person that is arrested
must be presented to a Magistrates Court without any unreasonable delay within 24 hours.
The arrested cannot further remain in police custody without a Magistrates order.
Section 28 of the Criminal Procedure Code which deals with the arrest of a person also
echoes the same principle whereby an arrested person has rights to be informed the basis of
his arrest as soon as may be, a right to contact a legal practitioner within 24 hours of the
arrest, rights to communicate with a relative or a friend to notify about his whereabouts
within 24 hours of the arrest, as well as to be able to contact a lawyer.
Any detention beyond 24 hours must be subjected to judicial scrutiny pursuant to Section 117
of the Criminal Procedure Code
Illegal Act of the police
Police brutality, police intimidation and verbal abuse are the most prevalent and common
source of police assault and abuse complaints. These types of police brutality and police
intimidation cases include physical attacks and verbal abuse.
The police cannot make arrests, search citizens and their property or seize objects unless
given prior authorization from a judge or if the circumstances of the situation necessitate a
search or seizure without court approval.
Police harassment is an abuse of an officers authority by conducting an unwarranted or
illegal search and seizure. The harassment is commonly an attempt to coerce someone into
admitting complicity in a crime, or by threatening or intimidating a person to obtain
information.

Police have broad freedom in carrying out their function to fight crime and to protect citizens.
If the officer had probable cause to believe you may have committed a crime, your arrest is
most likely proper, and you will have no legal recourse.
Most violations are based on excessive force. Even if the officers had sound intentions when
restraining you, they may not cause unwarranted serious bodily harm or death, such as
punched you and used as a footstool while you are handcuffed and posing no danger.
Whether the officers used excessive or unreasonable force is based on the surrounding facts
and circumstances that your attorney will carefully investigate.
Examples
Reasonable suspicion
1. First case
The arresting officer must form an opinion to satisfy himself that there is evidence for him to
reasonably suspect that an offence had been committed and it is committed by the appellants.
The burden to prove that the arrest was lawful and that the evidence on which the arrest was
grounded had satisfied the test of reasonable suspicion rested entirely on the first respondent.
Whether there exists a reasonable ground for the suspicion to justify the arrest and detention
is partly subjective and partly objective. The subjective part is that the arresting officer must
have formed a genuine suspicion at the time of making the arrest that the person being
arrested is committing the offence under the relevant Acts. The objective part is that the
arresting officer must show or must have reasonable grounds for forming such suspicion.
The first respondent was justified in his opinion that there was reasonable suspicion that the
first appellant had contravened the provision of
He failed to take into consideration the entire facts and evidence that the arrest of the first
appellant is unlawful and wrong in law and that the first appellant's constitutional rights were
violated or the arrest was affected with malice.
In their defence, the respondents contended that the arrest of the first appellant and the
seizure of the books were lawful and was done in accordance with the law. The respondents
also pleaded in their defence that the first respondent upon perusing(examine thoroughly) and
checking the contents of the book had formed a reasonable opinion and suspicion that the
publication was an offence under the Sedition Act
Legal issue: Whether the actions by DW1 were reasonable to justify that the arrest of the first
appellant.
In the present case the defendant relied on section 23 of the CPC. In the provisions the
expressions 'reasonable suspicion', 'reasonably suspected of unlawful possession' and
'reasonably suspected of committing any offense' are used.

These expressions show that the arresting officer must form an opinion to satisfy himself that
there is evidence for him or her to reasonably suspect that an offence has been committed and
it is committed by the appellants. Therefore, having regard to the language used in the
provision relied on by the arresting officer (that is the first respondent) to arrest the first
appellant in this case, we are of the view that the burden to prove that the arrest was lawful
and that the evidence on which the arrest was grounded had satisfied the test of reasonable
suspicion rests entirely on the first respondent. This burden never shifts.
An officer of the Department of Irrigation and Drainage had made a report to the effect that a
part of the irrigation bund in Kampung Perol had been damaged by some person or persons
unknown. Acting on information received, one Corp Jalal, the officer in charge of the police
station concerned, arrested a person. The issue in Ramly & Ors's case is whether the
statement made by Zakaria to Corp Jalal in the course of the interrogation is a credible
information or whether it gives rise to reasonable suspicion against the respondent within the
meaning of s 23(1)(a) of the CPC.
The question is not whether the means employed to extract the information is right or wrong
but
Legal issue: Whether his suspicion was reasonable judging from the facts he had before him.
The judge has found that the means employed was persuasion which is a most commendable
way of obtaining information. It is not suggested that the Corp persuaded Zakaria to implicate
respondent but only that he persuaded him to tell the truth. If the Corp had persuaded Zakaria
to implicate the respondent then he must have had information from somewhere else that the
respondent was involved, in which case, he need not have persuaded Zakaria to implicate him
for the purpose.
In my view, there was a reasonable suspicion that the respondent was concerned in a seizable
offence
The facts of this case (precedent case) show that the first respondent acting on information
received
The next complaint by the first appellant is that his detention after the arrest was
unreasonable. Therefore, it appears that the first appellant was in the custody of the arresting
officer between 4pm on the date of arrest ie 24 September 2010 until midnight the same day
before the first appellant was handed over to the investigating officer ('IO') at Sepang Police
Station. The fact that the first appellant was brought from one police station to another before
he was handed over to the IO and held at the Sepang Police Station for a night is not disputed.
It is the contention of the appellants that this conduct of the police in arresting, detaining and
transportation of the first appellant from the time of arrest until the handing over to the IO at
Sepang Police Station is indicative of the malicious nature of the arrest.
We will start our discussion on this issue by referring to art 5(1) of the Federal
Constitution which provides that no person shall be deprived of his life or personal liberty
save in accordance with law.

As far as the law is concerned, we will now refer to s 28 of the CPC which provides as
follows Under the above provision of the CPC, a person should not be arrested and
detained without warrant for more than 24 hours without him being released either on bail or
on his own cognisance or being brought before a magistrate for further order including an
order for further detention exceeding 24 hours, if necessary, in order to assist the police
investigation.
It is also pertinent to note that under s 28(2) of the CPC, it is provided that no police officer
shall detain in custody a person arrested without a warrant for a longer period than under all
the circumstances of the case is reasonable. In our view, the period referred to under this
section does not include the first 24 hours from the time the arrest was made.
We are of the view that the period referred to in this section is the period ordered by the
magistrate pursuant to s 117 of the CPC. This is obvious from the reading of s 28(3) of
the CPC. Reading ss 28(3) and 117 of the CPC, it is clear that a magistrate before whom a
person arrested without warrant is produced can order a further detention of the person
arrested for a period not exceeding 15 days in the whole excluding the first 24 hours.
However, in determining the length of detention under s 117 of the CPC, the magistrate has to
satisfy himself that the detention beyond the first 24 hours is necessary because the
investigation into the matter for which the person was arrested, cannot be completed within
the first 24 hours and that further detention is necessary to assist the police in completing the
investigation. We say so because before the magistrate makes an order under s 117 of
the CPC, he must satisfy himself as to the need or necessity for further detention by
examining the entries in the investigation diary that must be produced before him which
entries prescribe the investigation relating to the case for which further order of detention is
sought.
In the case of Likewise in this case, the first appellant was first detained on reasonable
suspicion of committing a crime and he was subsequently further detained under a valid order
by a magistrate pursuant to s 117 of the CPC. Therefore we conclude that the first appellant's
detention and further detention is lawful.
2. Second case
The defendant did not authorise the arrest of the plaintiff nor did he make any charge on
which it became the duty of the police to act. The police acted on their own initiative in
effecting the arrest 3 days later, presumably on the ground contained in section 31(1)(a) of
theCriminal Procedure Code, (Cap. 132) which entitles a police officer to arrest without a
warrant any person against whom a reasonable complaint has been made or credible
information has been received or a reasonable suspicion exists of his having been concerned
in any seizable offence.
In making the arrest the police must be taken to have been so satisfied although eventually,
after further investigation, a decision was taken by the deputy public prosecutor not to
prosecute the defendant. In the circumstances I cannot see how the defendant can be held

liable for directing a wrongful arrest. I find that the defendant had just cause and excuse for
making his report and that he did not act maliciously or make a false report. He was
genuinely frightened and nervous after receiving the telephone call in question and passed on
his fears in information to the police on which they took independent action.
The extent of the power of a police officer to arrest without a warrant a person whom he
suspects of having committed a seizable offence is enumerated in section 23(i)(a) of
the Criminal Procedure Code, and the procedure to be taken after arrest is contained in
section 28. To justify a police officer to arrest under section 23(i)(a) there must be a
reasonable complaint or suspicion or credible information of the person to be arrested
having been concerned in a seizable offence. It is not possible to lay down any abstract rule
as to whether it may or it may not be a reasonable suspicion or complaint to insist upon
without reference to the particular facts and circumstances which are established in the
individual case. In any event it must be founded on some tangible legal evidence within the
congnisance of the police officer to justify a reasonable person in concluding that the suspect
is guilty of a seizable crime. The evidence need not be of such a nature as to constitute proof
or to convince a court of law beyond a reasonable doubt; it may, upon examination after
arrest, turn out to be insubstantial so long as the arresting officer had some solid basis for
believing it to be substantial at the time he acted.
In my opinion, a reasonable complaint or suspicion may be equated with reasonable or
probable cause as found in the English authorities. I find support in this assertion in a passage
of Whyatt C.J. in Tan Kay Teck & Anor Attorney-General [1957] MLJ 237 where, after
noting that in John Lewis & Co Ltd Tims [1952] 1 All ER 1203 an objective test is required of
what constitutes a reasonable complaint, said that the reasonable or probable cause required
at common law to justify an arrest without warrant of a person suspected of felony is in pari
materia with arrest under statutory powers upon a reasonable complaint and that in his view
the same principles apply.
What is a reasonable complaint or suspicion or, to use the English alternative phrase,
reasonable or probable cause to justify an arrest without warrant is in my view a state of facts
which would lead a man of ordinary care and prudence to believe or entertain an honest and
strong suspicion that the suspect is guilty of an offence.
Whether the accused was in lawful custody after the expiry of 24 hours from 7.55 a.m. It is
evident from the facts in the present case that up to the time the plaintiffs left the police
station at 8.30 a.m. on 12th July, 1965 they were already in police custody for 24 hours 35
minutes. Section 28 of the Criminal Procedure Code expressly states that the necessary time
taken for the journey from Bukit Tinggi to the magistrate's court at Temerloh must be
excluded. The distance between these two places I take it to be more than 50 miles of hilly
country which in normal circumstances would take more than an hour. It is therefore fair to
say that in the circumstances the plaintiffs were in lawful custody well within 24 hours.
The learned judge then went on to say that he could not regard Zakaria's statement to corporal
Jalal as a complaint within the meaning of section 23 of the Criminal Procedure

Code because that statement was made in the course of police investigations. He then posed
to himself the following questions:
"Had credible information been received, or did a reasonable suspicion exist of the plaintiff
having been concerned in this seizable offence? In short, did D.6 and the alleged information
given by Zakaria P.W.2 amount to 'credible information' or give rise to 'reasonable
suspicion' against plaintiff?"
The learned judge found that the statement made by Zakaria to corporal Jalal as neither
a credible information nor did it give rise to reasonable suspicion as against the respondent
within the meaning of the words in section 23(i)(a) of the Criminal Procedure Code.
3. Example 3
After examining these and other authorities I come to the conclusion that if there exist
sufficient grounds to raise a reasonable suspicion in the minds of a police officer that (i) a
seizable offence has been committed and that (ii) the persons seen running away from the
scene are concerned in its commission, he may arrest them, and may after disclosing his
police identity and after issuing the necessary warnings take all steps including the use of
firearms as a last resort, to prevent them from escaping. Should such persons in attempting to
escape ignore such warnings and are injured they have themselves to be blamed. A police
officer cannot however use more force than is necessary to effect their arrest or capture nor
can he cause their death unless the alleged offence is one punishable with death or
imprisonment for life. The question whether there existed sufficient grounds to raise such a
reasonable suspicion, is a question for the court to decide.
On the evidence before me I am satisfied and find that there existed sufficient grounds to
raise a reasonable suspicion in the minds of the second defendant that (i) a seizable offence
has been committed and (ii) that the two persons (plaintiff and Sulaiman) seen running away
from the scene were concerned in the offence and that under section 23(i)(a) of the Criminal
Procedure Code, second defendant was empowered to arrest them and under section 15(ii) he
was entitled to use all means necessary to effect their arrest and capture. In the circumstances
of this case second defendant was not negligent and was justified as a last resort to fire the
second shot to effect the plaintiff's arrest, otherwise he would have escaped and disappeared
into the darkness as his companion did.
I find as a fact that the plaintiff knew that the person asking him not to run away was a
policeman and that inspite of his repeated warnings he chose to continue to run away to
escape. He also knew that if he did not stop running away he would be shot.
4. Shaaban v Chong Fook Kam
But even if the complaint or suspicion was reasonable and the information was credible, it is
important to observe that the complaint, information or suspicion must relate not to any
offence; it must relate to a seizable offence. I considered the information available to the
police before and even after the arrest. Even assuming that the lorry, the driver and the
attendant were involved in the accident, in my judgment the information available to the

inspector and the O.C.P.D. was insufficient to prove prima facie a case against the plaintiffs
under section 304A of the Penal Code or under section 34A of the Road Traffic Ordinance. It
is true that Govindan's death was tragic and whoever was criminally responsible for it should
be caught and punished, but the death alone does not prima facie prove rashness or
negligence or reckless or dangerous driving on the part of the driver and still less of the
attendant. The timber which fell off might have been properly secured.
But even if the complaint or suspicion was reasonable and the information was credible, it is
important to observe that the complaint, information or suspicion must relate not to any
offence; it must relate to a seizable offence. I considered the information available to the
police before and even after the arrest. Even assuming that the lorry, the driver and the
attendant were involved in the accident, in my judgment the information available to the
inspector and the O.C.P.D. was insufficient to prove prima facie a case against the plaintiffs
under section 304A of the Penal Code or under section 34A of the Road Traffic Ordinance. It
is true that Govindan's death was tragic and whoever was criminally responsible for it should
be caught and punished, but the death alone does not prima facie prove rashness or
negligence or reckless or dangerous driving on the part of the driver and still less of the
attendant. The timber which fell off might have been properly secured
5. Hashim v Yahaya
In this case there was a police report of the theftNo. 461/69. 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.
And finally the gist of the information given on August 5, 1972 to Inspector Yahaya
concerning the plaintiff was sufficient to arouse the suspicion of any reasonable person that
the plaintiff was concerned with the theft. The test of reasonable suspicion to be applied in a
case like the present is dealt with by the Privy Council inShaaban & Ors v Chong Fook Kam
& Anor [1969] 2 MLJ 219 and I am satisfied that the arrest of the plaintiff was in accord with
that test and was lawful. It follows that his subsequent detention by the police under section
28 of the C.P.C. was also lawful as investigations were in progress and the plaintiff was
produced before a Magistrate within 24 hours of his arrest. His subsequent detention up to
August 14, 1972 is clearly lawful as it was by a special order of a Magistrate under section
117 C.P.C.: see the decision of the Federal Court in Chong Fook Kam & Anor v Shaaban &
Ors [1968] 2 MLJ 53
Putting it in another way, the legal position is that where a person is lawfully detained, his
detention does not become unlawful if the police deny that person his right to consult and be
defended by a legal practitioner of his choice. When there is a denial of the right the
aggrieved person's remedy lies elsewhere
The right of an arrested person to choose a legal practitioner of his choice can be divided into
two parts. There is the right which the Constitution recognises. Article 5(3) prescribes that an
arrested person shall be informedof the grounds of his arrest but does not prescribe that the
arrested person shall be informed of his right to consult and be defended by a legal
practitioner of his choice. It merely prescribes that he shall be allowed. Unlike in America,

therefore there is no duty on the part of the police to inform the arrested person of his right to
counsel. It may be that Malaysians are more aware of their constitutional rights than
Americans and are expected to exercise it the moment they are arrested without having to be
reminded of their rights.
Then there is the choice. It is argued that if an arrested person does not exercise this right then
no lawyer can see him even though instructed by relatives. I do not think this constitutional
provision was intended to go so far. It is fair to say that it is a common occurrence for the
relatives of an arrested person to instruct a lawyer to look after the interests of a member of
the family who has been arrested. It is also fair to say that-most citizens in this country do not
personally know any lawyers and for the most part of their lives there is no need to. In such
circumstances, it is too much to expect an arrested person, even if he is aware of his
constitutional rights to make a choice of his lawyer. I do not think that this constitutional
provision is intended to be obstructive. Rather I would expect those in authority to do
everything possible that is reasonable to uphold the Constitution both in letter and spirit. It
will not be unconstitutional for the police to inform an arrested person of his right to consult a
lawyer, or if a lawyer has been instructed by relatives for the police to convey this
information to an arrested person or even allow the lawyer to see the arrested person. It is
then up to the arrested person to exercise his choice. He can decide he does not want the
lawyer appointed by his relatives or even that he does not require any legal assistance at all. I
agree that a lawyer has no constitutional right of access to an arrested person but I do not
agree to the proposition that unless an arrested person has exercised his right to consult a
lawyer and made his choice of a particular lawyer then no lawyer shall be permitted to see
him.
Applying the law as stated to the facts of this case I find that the right to exercise the right to
consult counsel occurred during two periods, viz:

1.

When the plaintiff was first detained by the police under section 28 of the Criminal Procedure
Code, i.e. within the first 24 hours after his arrest. The right, however, was not exercised by
the plaintiff during this period and in fact there is no claim arising out of this detention.

2.

When the plaintiff was detained by order of the Magistrate under section 117 C.P.C. That
section provides:
"117(i) Whenever any person is arrested and detained in custody and it appears that the
investigation cannot be completed within the period of twenty-four hours fixed by section 28
and there are grounds for believing that the accusation or information is well founded the
police officer making the investigation shall forthwith transmit to a Magistrate a copy of the
entries in the diary hereinafter prescribed relating to the case and shall at the same time
produce the accused before such Magistrate.

(ii) The Magistrate before whom an accused person is produced under this section may,
whether he has or has not jurisdiction to try the case, from time to time authorise the
detention of the accused in such custody as such Magistrate thinks fit for a term not
exceeding fifteen days in the whole. If he has not jurisdiction to try the case and considers
further detention unnecessary he may order the accused person to be produced before a
Magistrate having such jurisdiction or, if the case is triable only by the High Court, before
himself or another Magistrate having jurisdiction with a view to committal for trial by the
High Court.
(iii) A Magistrate authorising under this section detention in the custody of the police shall
record his reasons for so doing."
The purpose of a detention under section 117 C.P.C. therefore is to enable the police
to complete investigations. The detention itself is subject to judicial control. The power to
detain rests squarely and fully on the Magistrate not the police.The Magistrate is required to
satisfy himelf on every occasion if detention is at all necessary and if so to determine the
length of time actually required to complete the investigationsection 117(ii) C.P.C. If he
orders detention he must record his reasons for doing sosection 117(iii) C.P.C. To enable
the Magistrate to make the decision whether to detain or not the police must supply the
Magistrate a copy of the investigation diarysection 117(i) C.P.C. This copy of the
investigation diary to be transmitted to the Magistrate must contain all the particulars as
required under section 119 C.P.C., that is to say, the police must tell the Magistrate all they
know so far up to time of application and not what they think the Magistrate need only know.
I pause here to observe that such diaries are likely to contain particulars which would not be
admissible evidence at a trial. The law, however, requires that the Magistrate should be
supplied with all this information. A likely consequence would be that where a Magistrate has
made an order of detention based on such inadmissible or prejudicial evidence, he should not
subsequently hear the case. Instances of such evidence appear in the Investigation Diary of
this case e.g. what the informer told Inspector Yahaya (although if there is a trial, the informer
will not be called) and the plaintiff's admission that he was involved in the theft of the cement
mixer and in the conspiracy to steal the electricity generator.
It will be seen that the law regarding the constitutional right to consult counsel must be
reconciled with actual practice with regard to police investigations under the Criminal
Procedure Code. It seems to me that as the purpose of detention under section 117 C.P.C. is
for the purpose of completing investigations and as the constitutional right to consult counsel
"should not be exercised to the detriment of investigation", then for so long as an arrested
person is detained under section 117 C.P.C. he cannot exercise his right to consult counsel. I
therefore hold that the right to consult counsel begins from the moment of arrest but the
exercise of that right is postponed for so long as the arrested person is detained under section
117 C.P.C.
In this case the request to consult counsel was made during the period the plaintiff was under,
detention under section 117 C.P.C. The plaintiff therefore, could not exercise his right at the
material time and consequently there could not be a denial of such right.

In the event I hold that:

(a) the plaintiff was not illegally or unlawfully detained by the defendants at any time;

(b) there was no denial by the defendants of the plaintiff's constitutional right to
consult counsel.

6. Police diraja v Kheong

Factors for consideration before arrest
The actions taken in this case reflect poorly on the officials who should know better the
proper execution of their duties in a professional manner.
It is true that:
The requirement that the person arrested 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.
The learned DPP sought to advance these reasons, eg the respondent knew of her husband's
arrest and charge in court, her visit to the police headquarters in the same connection to
recover/discover share scrips and cash, and her avoidance of the police thereafter with the
view of proving that the police action was legal thereunder. If indeed it was all that simple
then why was it so hard for the authorities to first inform the respondent of the reasons? As
can be seen from the evidence, the arresting officer did not know of the reasons.
It is not clear whether she knew of the general nature of the offence she (not her husband)
was involved in at the time. It is a travesty of justice to allow a deficient arrest to be
converted into one of respectability and legality.
Taking into consideration the actions and principles of law applicable in this case, I am of the
opinion that the arrest of the respondent was not effected in accordance with the total
requirements of law and that the registrar's order was correct and proper as the police failed
or neglected to provide a copy of the diary specified under the CPC.
7. Yong Moi Sin v Kerajaan Malaysia
The appellant was concerned in a seizable offence as offence under s 411 of the Penal Code.
A reasonable complaint in the form of a police report was made and credible information
pertaining to the gold locket was provided by Khoo which information linked the appellant to
the gold locket. In the mind of the second respondent, a reasonable suspicion existed as to the
role of the appellant in the whole episode.
There was thus sufficient basis for the second respondent to arrest the appellant and that
arrest was legally effected within the provisions of the Criminal Procedure Code.

(2) Since the appellant was legally arrested, the detention of the appellant was likewise lawful
and consequently there was neither unlawful imprisonment nor criminal trespass occasioned
by the second respondent.
(3) Based on authorities, the fact that the evidence was illegally obtained would not affect the
question of its admissibility. Further, an illegal search by the police can never be construed to
be a criminal trespass and the police would not be guilty of it. An illegal search, in the context
of the present appeal, can never give rise to an unlawful imprisonment. The appellant was
detained for 15 hours and there was no necessity to produce him before a magistrate for
detention under s 117 of the Criminal Procedure Code (see p 56BC, EF).
(4) The power to search must go hand in hand with the power to investigate. That being the
case, when the second respondent took the appellant who was reasonably suspected of
committing an offence under s 411 of the Penal Code to the appellant's factory, that was the
right course of action for the second respondent to take. There was evidence emanating from
the second respondent that gold items can easily be melted away so as to avoid detection.It
was to prevent vital evidence from disappearing that the search was conducted without a
search warrant. The second respondent was justified in doing so by virtue of s 62 of the
Criminal Procedure Code (see pp 56GH, 57AC).
(5) No inference should be drawn against a party for not producing a material witness where
the question of the absence of such witness was not raised at the trial at all. The absence of
the complainant of the police report was not raised at all before the sessions court and so it
was too late in the day for the appellant to raise the issue of adverse inference in the appeal. It
was not legitimate for the appellate court to draw an adverse inference against the
respondents for the failure of calling the complainant of the police report.
8. Saul Hamid v Inspector
In deciding whether there exists 'reasonable suspicion', account is to be taken of the
circumstances as they appeared at the time of the arrest and detention. The court is concerned
to discover whether the authorities acted in bad faith or whether the arrest or detention is an
arbitrary act and whether the law was correctly applied and interpreted.
The court has to keep foremost in its mind the distinction between 'reasonable suspicion' and
'prima facie proof'. 'Prima facie proof' consists of admissible evidence whilst 'suspicion' can
take into account matters that may not be put in evidence at all (see p 811EF). On the facts,
the police had not acted arbitrarily and had not abused their statutory power of arrest by
arresting the plaintiff on 21 March 1987. On the facts and information before the first
defendant then, he was right in concluding that there was reason to believe that the plaintiff
had been concerned with two seizable offences.

LIABILITY
Whether the arrest of the plaintiff was lawful?
Firstly, the challenge as to the legality of the arrest of the plaintiff. The issue for
determination is whether the arrest effected is authorized by law.
It has been authoritatively held that in deciding this issue whether there existed 'reasonable
suspicion', account is taken of the circumstances as they appeared at the time of the arrest and
detention. The court is concerned to discover whether the authorities acted in bad faith or
whether the arrest or detention is an arbitrary act and whether the law was correctly applied
and interpreted.
In determining this issue the court has to keep foremost in its mind the distinction between
'reasonable suspicion' and 'prima facie proof'. That'prima facie' proof consists of admissible
evidence whilst 'suspicion' can take into account matters that could not be put in evidence at
all.
In the Privy Council case of Shaaban & Ors v Chong Fook Kam & Anor [1969] 2 MLJ 219,
Lord Devlin held that the test to be applied in the exercise of the power under s 23(i)(a) of the
Code is the 'reasonable suspicion' test. At p 221 His Lordship held that:
Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I
suspect but I cannot prove'. Suspicion arises at or near the starting point of an investigation of
which the obtaining of prima facie proof is the end. When such proof has been obtained the
police case is complete; it is ready for trial and passes on to its next stage. It is indeed
desirable as a general rule that an arrest should not be made until the case is completed. But if
arrest before that is forbidden, it could seriously hamper the police. To give power to arrest
on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It
means that there is an executive discretion.
In the exercise of it many factors have to be considered besides the strength of the case. The
possibility of escape, the prevention of further crime and the obstruction of police enquiries
are examples of those factors with which all judges who have had to grant or refuse bail are
familiar.
As to the meaning to be ascribed to the phrase 'reasonable suspicion exists of his having been
so concerned' in s 23(i)(a), this has been held to mean a bona fide belief on the part of the
police officer that an offence has been committed.
It is therefore now incumbent on this court to apply the above principles, to apply the
objective test to the evidence presented before the court, and then decide what the police
ought to have thought. Thereafter, to then decide whether the police were, on the facts of this
case, right in concluding that a reasonable suspicion exists that the plaintiff had been
concerned with two offences of robbery and assault warranting them to invoke their statutory
power of arrest under s 23(i)(a) of the Code

Whether the detention of the plaintiff was lawful?

The arrest for the purpose of using the period of detention to dispel or confirm the reasonable
suspicion by questioning the suspect or seeking further evidence with his assistance is well
established as one of the primary purpose upon detention.
Article 5(4) of the Federal Constitution provides that '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...'.
Section 28 Criminal Procedure Code makes the same provision. It reads:
(i) A police officer making an arrest without a warrant shall without unnecessary delay and
subject to the provisions herein as to bail or previous release take or send the person arrested
before a Magistrate's Court.
(ii) No police officer shall detain in custody a person arrested without a warrant for a longer
period than under all the circumstances of the case is reasonable.
(iii) Such period shall not in the absence of or after the expiry of a special order of a
Magistrate under s 117 exceed twenty-four hours exclusive of the time necessary for the
journey from the place of arrest to the Magistrate's Court.
What happens when the police cannot complete his investigations within the twenty-four
hours fixed by s 28 and wishes to further detain the arrested person? He could act under s 117
which reads:
(1) Whenever any person is arrested and detained in custody and it appears that the
investigations cannot be completed within the period of twenty-four hours fixed by s 28 and
there are grounds for believing that the accusation or information is well founded the police
officer making the investigation shall forthwith transmit to the Magistrate a copy of the
entries in the diary hereinafter prescribed relating to the case and shall at the same time
produce the accused before the Magistrate.
(2) The Magistrate before whom an accused is produced under this section may, whether he
has or has no jurisdiction to try the case, from time to time authorise the detention of the
accused in such custody as such Magistrate thinks fit for a term not exceeding fifteen days in
the whole.
(3) A Magistrate authorising under this section detention in the custody of the police shall
record his reasons for doing so.
On the facts of this case it is not in issue that the plaintiff was arrested on the 21 March 1987
which is a Saturday. The 22 March 1987, being a Sunday, is an excluded day. The plaintiff
was produced before the Magistrate on Monday 23 March 1987 at about 10.30 am where the
application for a remand order under s 117 of the Code was made by the first defendant,

which was granted by the Magistrate for a period of two days from 23 March 1987 to 25
March 1987.
Be that as it may I am of the considered opinion that even if this court were to accept this
ruling that the plaintiff had a right to be represented by counsel in remand proceedings, it
does not necessarily follow as a matter of course that an action will lie against the police
officer who acted on the order of remand made by the Sessions Court President for the
following two reasons.
In the first place, the President Sessions Court is immune from civil proceedings by reason of
s 107 (1) Subordinate Courts Act 1948. See Chong Fook Kam & Anor v Shaaban &
Ors [1968] 2 MLJ 50 at p 52 where it was held:
that an order of a Magistrate authorising the detention of the arrested person beyond the
period of 24 hours made under s 117 is a judicial act and cannot found a claim for damages
against the magistrate.
Nor may such an order found a claim for damages against the police by reason of the
immunity conferred upon them by s 32(1) of the Police Act 1967 which reads as follows:
(1) Where the defence to any suit instituted against a police officer. Is that the act complained
of was done in obedience to a warrant purporting to be issued by any competent authority, the
court shall, upon production of the warrant containing the signature of such authority and
upon proof that the act complained of was done in obedience to such warrant enter judgment
in favour of such police officer
Applying these statutory provisions to the facts of this case, as it is not in issue that the
detention of the plaintiff from 23 March 1987 to 29 March 1987 by the police pending
investigations was clearly in obedience of two orders issued by two judicial officers which
are valid on the face of it, therefore hold that the remand subsequent to the order of the
judicial officer was the action of the Magistrate/Sessions Court President for which the first
defendant cannot be held responsible for false imprisonment. In these circumstance the claim
of the plaintiff that he was unlawfully detained from 25 March 1987 to 29 March 1987 is
clearly unsustainable in law.