Chapter 5- Rights of Arrested Person

This chapter discusses on two main topics: 1) the rights of an arrested person. 2) remedies
available in the event of violation of such rights.

Rights of an arrested person

a) Right to be informed of grounds of arrest
Article 5(3) of FC provides that a person arrested shall be informed as soon as may be of the
grounds of his arrest.

In the case of Christie v Leachinsky, the court explained the right in which it was held that an
arrested person must be informed of the true grounds of his arrest and if the reason was
withheld, the arrest and detention would amount to false imprisonment, which the police
officer may be liable for.

The FC in Malaysia in the case of Abdul Rahman v Tan Jo Koh had also referred to the above
case with approval and held that pursuant to this right, 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.

in the case of Abdul Ghani Haroon v Ketua Polis Negara, the applicant was arrested under the
ISA and the police officers did not state the grounds of detention clearly. The court held that
the detention of the applicant was unlawful and contrary to A5(3) as the police officer did not
inform the applicant of the ground of his arrest.

Hence, it is clear that a person arrested has the right to be informed of the ground of arrest 1.

S28A(1) of the CPC also provides that a person arrested without a warrant shall be informed
as soon as may be of the grounds of his arrest.

b) Right to legal counsel

A5(3) of FC allows every person arrested to be consulted and defended by a legal practitioner
of his choice.

1
However, in practice, the police is not needed to inform an arrested person of the ground if he should know
the general nature of the offence for which he is arrested. For e.g., if a person is arrested for stealing a car, he
should know the reason why he is arrested. Technical legal and precise language is also not needed to be used
to inform a person of the ground of arrest. Besides, the police also need not inform the Arrested person
grounds of arrest if he makes it practically impossible to inform him. E.g, he assaults the police officer.
In the case of Ooi Ah Phua v OCCI Kedah, it was held that every accused person has a right to
be defended by an advocate. However, a balance has to be struck between the right of the
arrested person to consult his lawyers on the one hand and on the other the duty of the police
to protect the public from wrongdoers by apprehending them and collecting whatever
evidence exists against them. The right should not be exercised to the detriment of any
investigation by the police. The onus is on the police to deny legal representation on the
ground that interference may encourage the suspect to fabricate stories.

Likewise, in the case of Hashim bin Saud, the court held that the right to legal counsel starts
right from the day of arrest 2 but it cannot be exercised immediately after the arrest if it
impedes police investigation or the administration of justice. The burden lies on the police to
prove that giving the immediate right to counsel would impede police investigation or the
administration of justice. In this case, the police had successfully discharge the burden as they
had given good and sufficient reason to suspend such right for 1 week.

In the case of Mohammad Shafiq Dollah v Sarjan Mejar Abdul Manaf Jusoh, the court held
that both S28A of CPC and A5(3) of FC are joint rights of an accused person 3. Regarding the
right to legal counsel, the court held that it is the duty of the DF police to inform the accused
of their fundamental right to consult or hire a legal representative before any questions are
posed to them after the arrest. As the right to legal representation had been denied by the Df
police, the arrest thus becomes an unlawful one.

In the case of Mohamed bin Abdullah v PP, at the date of the hearing of the case, counsel for
the accused was not present as he had another urgent matter to attend to. Eventually, the
accused was convicted and sentenced to 18-months imprisonment. The Accused appealed on
the ground that the court erred in proceeding to hear and determine the case without the
presence of the defence counsel. The court dismissed the appeal and held that there was no
miscarriage of justice. This happens because if counsel is absent on the date of hearing, it is a
matter between the client and counsel. The right is only to choice a counsel who is willing and
able to represent the accused. A5(3) does not in any way restrict the power of the court to fix
any date for the hearing of the case nor does it prohibit the court from hearing the case in
the absence of counsel.

The right to legal counsel is also provided under S28A of CPC.

S28A(4)(a)+(b)- the arrested person can request and the police officer shall allow a reasonable
time for the consultation to take place.

S28A(5), (6) and (7) provides certain details on how to conduct the consultation.

2
Strictly speaking, the right to legal advice arises as early as when the arrested person is brought before a
magistrate to obtain a remand order.
3
Can use this case to bring out the point that S28A of CPC could be used. Not only on the part of legal counsel,
but also grounds of arrest.
HOWEVER, under S28A(8), it provides situations where the right to legal counsel could be
suspended.

Under S28A(9), such suspension shall only apply when there is authorization by a police officer
not below the rank of deputy superintendent of police.

Under S28A(10), record must be made if suspend the right.

S28A(11), the IO shall comply with the right after the conditions in subsection 8 ceases.

c) Right to be brought before a magistrate within 24 hours

A5(4) of the FC requires an arrested person to be produced before a magistrate within 24
hours without unreasonable delay.

A similar provision is also enacted in s28 of the CPC in which it was provided that a police
officer making an arrest shall without unnecessary delay send the arrested person before a
magistrate4 and in subsection 3, it was provided that such period shall not in the absence if a
special order (remand) under S117, exceed 24 hours5.

The provision of S28 is clear. Now, we would look into the application of remand order
governed by S1176.

S117(1) provides that whenever the investigation of any person arrested cannot be
completed within 24 hours, and there are grounds for believing that the accusation or
information is well founded, the police officer making the investigation shall immediately
transmit to a magistrate a copy of the entries in the diary7 and shall at the same time produce
the accused before the magistrate.

S117(2) provides that the magistrate could authorize the detention of the accused in custody:
if the offence being investigated is punishable with imprisonment of less than 14 years, not
more than 4 days and on 2nd application, not more than 3 days. If the offence is punishable

4
Take note that the law does not use the words ‘magistrate court’, but rather ‘magistrate’. This infers that as
long as the arrested person was brought before a magistrate, it suffices. The venue where the magistrate sits is
of no importance. It may be in the court/ at the magistrate’s residence/ other places. And it will not be
hindered by restriction of office hours. Hence, even in a public holiday, the arrested person could be brought
before the magistrate before the expiry of 24 hours.
5
Take note that if the arrested person is a child, Section 28 and 117 does not apply because S83(1) of Child Act
provides that a child shall not be detained except in accordance with this act. In the case of Re N (a Child), the
arrested person was a minor and the police applied for remand under S117. The court converted the
application to one under S84(2) of Child Act and held that as S84(2) Child act which deals with the detention of
a child does not prescribe any time period of detention, the length of time for which a child may be detained is
for a period which is necessary as decided by the court on the facts of each case.
6
Take note that almost every time we discuss on s28, would need to link to s117 if there is a need to extend
the detention period.
7
Take note that under S119 CPC, it is the duty of every police officer to record a diary. The rules governing the
revealing of the diary is also provided in that section.
with death or imprisonment of 14 years or more, shall not be more than 7 days on 1st
application and on 2nd application, not more than 7 days.

S117(3) provides that the officer making the investigation shall state in the diary any period
of detention of the accused immediately prior to the application and S117(4) provides that
the magistrate shall take into consideration any prior detention.

S117(5) provides that the accused could give representations by himself or through a counsel
during the application proceeding.

S117(7)- reasons of granting remand order to be recorded.

In the case of Re The Detention of R Sivarasa, no copy of the entries in the diary was
transmitted to the magistrate. What was transmitted was merely 3 sheets of paper recording
the event. The court held that the 3 sheets of paper is not copies of entries in the diary and
the police had a mandatory duty under S117 to transmit to the magistrate a copy of the
entries in the diary. The failure to transmit it was fatal to the application before the magistrate
as it meant that the magistrate did not have the necessary material to act upon to decide
whether to order further remand. The magistrate had no jurisdiction to make a remand order
and thus, the remand order was set aside.

Likewise, in the case of PP v Audrey Keong Mei Cheng8, there was no diary produced, but
merely a letter setting out the circumstances of the application. The court held that the letter
did not satisfy the requirement. Thus, there was not right to order the detention.

In the case of Ramli bin Salleh v Inspecter Yahya bin Hashim, the court held that the
discretionary power to order the remand should be exercised sparingly and cautiously
because it requires the magistrate to record his grounds for making the order. Likewise, in
the case of Sivarasa discussed above, the court also held that a magistrate must always satisfy
himself as to the necessity to give a remand order. No remand should be made where such
necessities are unknown.

Besides, it is a cardinal principle under section 117 that this section cannot be used to compel
a witness or potential witness to assist in investigation. Only the accused/ suspects could be
detained under S117.

In the case of PP v Audrey Keong Mei Cheng, the husband of the respondent was charged
with Criminal breach of trust. The wife turned up at the police station and refused to hand in
certain scripts. The court held that the law did not allow an arrest based on the respondent’s
status as wife of the accused or on the anger of the police merely because she did not
cooperate with them. It would be an abuse of the process of law for police officers to use

8
The same principle also held in the case of PP v Ayar where the court stated that the failure to transmit a
copy of the diary, the effect is fatal to the application of the remand order.
S117 to compel witnesses or potentioal witnesses to come forward to assist in the
investigation. There are other provisions in the CPC for this purpose.

In the case of Re The Detention of Leonard Teoh Hooi Leong, the accused is a solicitor acting
for a muslim girl who wanted to convert to Christianity as she fell in love with a Christian man.
The Girl later disappeared and the accused was questioned on the whereabouts of her, but
he refused to answer. He was later detained and a remand order was granted. The court
reiterated the principle that S117 could only be invoked on the suspect and not a witness.
However, the court further held that the grant of remand order under S117 was not wrong in
this case as the accused was not merely a potential witness, but a prime suspect in the
abduction of the Muslim girl.

d) Right to Communicate
According to S28A(2), a police officer shall, before commencing any form of questioning or
recording, inform the person that he may communicate or attempt to communicate with a
relative or a fried to inform of his whereabouts. This section also provides that the arrested
person could communicate and consult a legal practitioner of his choice.

According to S28A(3), if an arrested person wishes to communicate, the police officer shall,
as soon as may be, allow him to do so.

Right to remedies for wrongful arrest and detention9

a) Right of private or self defence
Where the arrest is unlawful, the arrested person is justified in using force or inflicting
reasonable harm in order to prevent or resist the illegal arrest or the unlawful seizure of
his goods. (PP v Kok Khee)

In the case of Khor Ah Kah v PP, the accused, a handkerchief vendor assaulted the police
officer when they wanted to confiscate her goods. He was later charged for using criminal
force to deter a public servant from discharge of his duty under S353 penal code. The
court held that the police officer in this case was not in law a public servant acting ‘in the
execution of his duty’. Hence, any act of arrest of the police officer was unlawful and the

9
Take note that this right is based on the establishment that there was wrongful/ illegal arrest. If there was no
such illegality, the arrested person has no remedies. He can’t self-defence/ claim remedies etc (except right to
bail, which I don’t really understand why is this right within this category.)
accused is justified in using force or reasonable harm in order to resist the illegal arrest or
the unlawful seizure of his goods.

In the case of PP v Kok Khee, the accused was a vegetable seller who was arrested by the
enforcement officers without giving grounds of arrest. When they proceeded to
confiscate his goods, the accused assaulted the police officers. He was later charged under
S353 Penal Code. The court held, unless and until an arrest is legally made under S15(1)
CPC, the accused is entitled to prevent or resist the unlawful seizure of his goods, which
is his private property. Accused acquitted.

b) Right to take civil action/ to claim damages

In the case of PP v Kok Khee, it was held that an arrested person who is unlawfully arrested
may bring a civil action for damages. The causes of action may range from wrongful arrest,
trespass, and false imprisonment.

In the case of Kuan Kwai Choi v AK Zaidi, a warrant was issued authorizing the police officer
to arrest the Df and to produce the Pf before the court. The Pf was later kept in custody
for 52 hours before finally being taken to the court. The Pf claimed for damages for false
imprisonment. The court held that a public servant could be sued, in a personal capacity
for tortious acts which he carried out, as part of his official duties. In this case, there was
unnecessary delay as the Pf made no effort to take the Pf to the magistrate. Hence, the Pf
was falsely imprisoned and damages amounting to RM3000 was awarded for false
imprisonment.

In the case of Selvakumar v Penguasa Pusat Pemulihan Akhlak Simpang Renggam, Johor,
the Pf was being unlawfully detained for a total of 826 days. The court allowed the claim
for damages for the unlawful detention amounting to nearly RM 1 Million.

Take note that in the case of Tan Eng Hoe v AG, the Pf was also illegally arrested. However,
the court dismissed his claim for damages as the illegal arrest was a mistake and the
mistake was genuine and reasonable.

c) Right to apply for writ of habeas corpus

Basically, a writ of habeas corpus is given to free someone who has been unlawfully
detained. If there is illegality on the detention of an arrested person, he could apply for a
writ of habeas corpus to be released from custody. Hence, it is essential for the detaining
authorities to strictly comply with all the rules and procedures of detention.

This right is enshrined in A5(2) in which it is provided that ‘where complaint is made to a
high court or any judge thereof that a person is being unlawfully detained, the court shall
inquire into the complaint and, unless satisfied that the detention is lawful, shall order
him to be produced before the court and release him.’

The right to apply for habeas corpus is also provided in S365a(ii) in which it is provided
that the high court may set a person who is illegally or improperly detained at liberty.

S366-368 CPC discusses on how the application for a writ of habeas corpus is to be made.

S369-373 discusses on the warrant of the court requiring the applicant to be delivered
before the court in order that the court may hear his application.

In the case of Abdul Ghani Haroon v Ketua Polis Negara, the applicant was arrested under
the ISA and the police officers did not state the grounds of detention clearly. The
detention was later extended twice and the applicant apply for a writ of habeas corpus.
The court held that the right to apply for a writ of habeas corpus is not merely a legal right
but also a Constitutional right available to any person who believes that he has been
unlawfully detained. The cardinal principle is that every detention is prima facie unlawful
and the burden of proof is on the detainer to justify it. In this case, the detention of the
applicant was unlawful as 1) the detention was contrary to A5(3) as the police officer did
not inform the applicant of the ground of his arrest. 2) Besides, the further detention was
also unlawful as the police officers did not fulfil the requirement under the ISA to allow
further detention. 3) The detention was also malafide and unlawful as the applicant had
been denied communication with his family members and lawyers for almost 40 days. For
the reasons above, the applicant was ordered to be produced before the court and
released. Writ of habeas corpus granted.

In the case of SK Tangaliswaran Krishnan v Menteri Dalam Negeri Malaysia, the court
reiterated the fundamental principle that it is settled law that on an application for habeas
corpus, the burden of satisfying the court that the detention is lawful lies on the detaining
authority. In this case, the applicant had applied for the writ as he claimed that the
detaining authorities failed to make a recommendation of his case to the YDPA as required
under the statute he was detained. As the Detaining failed to discharge their burden that
they had made such recommendation, the application was allowed and the applicant was
released.

Likewise, in the case of Muhammad Jailani Kasom v Timbalan Menteri Keselamatan Dalam
Negeri, the applicant brought the case before the court on the ground that there was
illegal detention as the detaining authority had failed to carried out an investigation prior
as required under the act. The court held that if the detention is procured by steps which
are not regular, the court is empowered to set aside the detention order. As the detaining
authorities failed to prove that they had complied with the act, the writ of habeas corpus
was granted.

In the case of Rajeshkanna v Tn Hj Abdul Wahab, the applicant was detained for alleged
offence under the dangerous drugs act. The applicant later applied for a writ of habeas
corpus pursuant to A5 of the FC and S365 of CPC based on the condition of the detention
in the prison. The applicant submitted that the conditions under which the applicant was
detained came within the phrase ‘improperly detained’ under S365. The court rejected
the application as the applicant failed to prove that the condition of the prison was
improper in which it violated any existing prison rules or regulation. However, the court
continued to hold in obiter that ‘There are two distinct and separate parts to every
prisoner's detention, ie the order by a court to detain and then the physical detention
itself in an authorized place. A lawful detention that commences as a perfectly legal
detention can become unlawful if the lawful detention is carried out 'improperly'. Thus, if
the lawful detention is carried out in breach of any fundamental rules or regulations
pertaining to condition of detention then the detention itself becomes unlawful and
improper and may attract the interference of the High Court on an application for a writ
of habeas corpus……..If the prisoner is subjected, in the prison, to unnecessary cruel
treatment, torture or unjust or unlawful punishment that prisoner must be able to come
to the High Court and move the court to order the prison authorities or persons
responsible to stop that treatment. If he is still subjected to such treatment despite a court
order to desist then, in such a case, the scope of the writ of habeas corpus ought to be
wide enough to include the setting at liberty of that person. Thus, it cannot be said, in this
day and age, that as long as a prisoner is in prison pursuant to a lawful order by a court of
competent jurisdiction, the conditions (if unlawful) under which the imprisonment is
being carried out do not matter to warrant interference on an application for a writ of
habeas corpus. The courts have a responsibility to ensure that the prisoner sent to the
prison to be lawfully held is not improperly treated. The person who is sentenced to or
remanded in prison ought to suffer such imprisonment only in accordance with the
Regulations failing which the imprisonment becomes improper and unlawful in that the
imprisonment then will not be in accordance with law.’

d) Right to bail
If a person is not being detained with a non-bailable offence, he has a right to bail.

In the case of Maja Anak Kus v PP, the applicant had been arrested of a bailable offence.
A remand order was granted pursuant to S117 authorising the further detention of 14
days. The applicant argued that although he is further detained under a remand order, his
right to bail remains, and the magistrate is bound to grant him bail pursuant to S387 if he
is prepared to give bail. Hence, the issue before the court is whether the applicant could
exercise his right to bail in view that there is a remand order. The court rejected the
applicant’s argument and held that such argument could only be valid if S387 is construed
as to override S117. The court rejected such view as such position would render S117
nugatory. S117 should override S387.
Misc issue: Effect of wrongful arrest/detention
towards the criminal proceeding.
As discussed in this chapter, every accused person has certain rights under the law and if
these right are being refused, it may amount to illegal detention. Moreover, the statutes also
laid out procedures needed to be adhered to in effectuating an arrest. Any non-compliance
of which would render the detention to be unlawful. The relevant issue at this juncture is
what is the effect of these procedural illegality on the criminal liability of the arrested person?
Does it negate the criminal liability of the arrested person if he had committed a crime? The
general rule to this answer is that procedural illegality has no consequence in criminal
proceedings. A person who is unlawfully arrested can still be tried in a court for his alleged
crime committed.

In the case of Gabriel v PP, the accused was detained for more than 24 hours without a
remand order (which is contrary to S28(3) CPC). He was later charged and convicted for the
offence of theft. On appeal, the accused argued that there was illegality in the detention as it
contravenes S28(3). The court rejected his argument and held that as the accused had not
been materially prejudiced by the detention, the breach of S28(3) in itself, even if true, would
not render the subsequent proceedings illegal. If the accused considers himself to be
aggrieved by the detention, he may sue for damages for non-compliance with the procedural
rules.

Likewise, in the case of Saw Kim Hai, the court held that any unlawful arrest of the detaining
autborities would not affect the court’s jurisdiction to try to accused.

It is clear that even if there is a breach of procedural rules, the accused could still be charged10
and convicted for the offence. Hence, if there is illegality in the detention, what the accused
can do is to apply a for a writ of habeas corpus so that he could be set free and to initiate a
separate action to claim for remedies for the wrongful detention. BUT still, remember that a
crime committed is still a crime. You are still liable for that crime regardless of the procedural
illegality.

10
Except if such breach materially prejudiced the accused which caused a failure of justice. Very hard to proof.