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10/9/2016 Comparison of Police Powers of Arrest in Malaysia and the United Kingdom — Jevinder Singh (Loyarburok.

com) | What You Think | Malay Mail On…

What You Think

Comparison of Police Powers of Arrest in


Malaysia and the United Kingdom — Jevinder
Singh (Loyarburok.com)
DECEMBER 25, 2013

DEC 25 — A police oᴀ甇cer’s duty is to combat crime and provide protection to the citizens
of the country. In order to carry out their duties well, they are granted certain powers. The
most fundamental power given to them as police oᴀ甇cers is the right to arrest. Arrest is the
“restraint of a man’s person, obliging him to be obedient to the law and deᴀ밄ned to be the
execution of the command of some court of record or oᴀ甇cer of justice” (Krishnan, 2008).
Police oᴀ甇cers are not allowed to abuse their power by simply arresting whoever they want
because there are certain ᴀ밄xed guidelines as well as fundamental liberties granted to us as
citizens. They will require proper grounds to take someone into custody for them to be
able to conduct further investigations and to strengthen their case over the accused or
suspected oᴀ洅ender.

An arrest has to be done in line with the law of Malaysia because Article 5 of the Federal Constitution of Malaysia
states that personal freedom is part of a citizen’s 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. There are two types of arrest which are known as an arrest with warrant and an arrest without warrant.
An arrest without warrant is also known as a “seizable oᴀ洅ence”. The third column of the First Schedule to the CPC
shows that oᴀ洅ences under the Penal Code which are punishable with imprisonment of three years and above are
seizable oᴀ洅ences. This means that the police may just arrest you without a warrant for any oᴀ洅ence in violation of
the Penal Code. An example would be theft. According to the Penal Code, the crime of theft is a seizable oᴀ洅ence
under s 379. section 23 of the CPC provides power to police oᴀ甇cers to arrest without a warrant under certain
circumstances. section 23(1)(a) is often the provision used by judges when deciding on a case. section 23(1)(a) 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 any oᴀ洅ence committed anywhere in Malaysia which is a seizable oᴀ洅ence under any law in force
in that part of Malaysia 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”. In the
case Tan Eng Hoe v AG, the claimant was arrested mistakenly for a fraud case because he matched the description of
the actual oᴀ洅ender. He then sued for wrongful arrest but Whitley J held that a reasonable man would have thought
he was the oᴀ洅ender due to the similarities. The police were justiᴀ밄ed for arresting him without a warrant. 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. In Hashim bin Saud v
Yahaya bin Hashim & Anor, an electricity generator was stolen and a report was lodged. The plaintiᴀ洅 was arrested as
instructed by the ᴀ밄rst defendant, Inspector Yahaya without a warrant after information was given by an informant
about a stolen cement mixer. The plaintiᴀ洅 then took action against the defendants for wrongful detention but
Harun J held that the information that was given by the plaintiᴀ洅 had proven to be reliable and credible in the past.
Therefore, the arrest of the plaintiᴀ洅 without a warrant was proven to be lawful.

A “non-seizable oᴀ洅ence” is an oᴀ洅ence where police oᴀ甇cers are only allowed to arrest you with a warrant according
to the third column of the First Schedule to the CPC. Therefore, a police oᴀ甇cer is not allowed to arrest without a
warrant if the punishment of the oᴀ洅ence is less than three years. That being said, if there is any written law that
states an oᴀ洅ence is seizable even though the punishment is less than three years imprisonment is therefore
seizable under the principle of generalia specialibus non derogant. This latin phrase means that when a matter falls
under any speciᴀ밄c provision, then it must be governed by that provision and not by the general provision (US Legal,
n.d.).

Section 15(1) of the CPC states the procedure to arrest and remand. Under section 15(1), there are three ways a
police oᴀ甇cer may arrest you. Police may arrest by touching the body of the person to be arrested, conᴀ밄ning 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 oᴀ甇cer states in terms that he is arresting or when he
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arrest. Devlin LJ said that, “An arrest occurs when a police oᴀ甇cer 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 oᴀ甇cer 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. According to
Article 5(3), as soon as someone is arrested, they must be notiᴀ밄ed of the grounds of the arrest. In the case of
Christie & Anor v Leachinsky, the House of Lords explained that 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 oᴀ甇cer that arrested the person would be held liable for false imprisonment.
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 excluding the travel time. The arrested cannot
further remain in police custody without a Magistrate’s order. Under section 28(A) of the CPC, 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. The lawyer is allowed to be present at the location of
detainment before the police oᴀ甇cers proceed with their questioning or recording of statements from the person
arrested.

In the United Kingdom (UK), no written constitution exists. Instead, the UK uses a compilation of statutes,
conventions, judicial precedents and treaties which form the British unwritten constitution. The British Constitution
can be described in eight words: “What the Queen in Parliament enacts is law.” (Ucl Constitution, n.d.) What this
means is that decisions made in Parliament with the power of the Crown cannot be challenged by anyone, making
Parliament the most supreme in the UK. In the UK, there are three categories of lawful arrest — arrest under
warrant, arrest without warrant under common law, and arrest without a warrant under statute. If a person claims
that he had been wrongfully arrested and detained under statute and if he can prove it, he is entitled to damages
as stated in the Police and Criminal Evidence Act 1984 (PACE), s 34; Criminal Justice (Scotland) Act 1980 (Barnett,
2011).

The UK has the PACE and the accompanying codes of practice which assist them in providing the core context of
police powers and safeguards around stop and search, arrest, detention, investigation, identiᴀ밄cation and
interviewing detainees. Code G of the PACE code is the code of practice for the statutory power of arrest by police
oᴀ甇cers. The power of arrest must be used fairly, responsibly, with respect for people suspected of committing
oᴀ洅ences and without unlawful discrimination as stated in s 1.1 of Code G. The Elements of Arrest under s 24 of the
PACE states that a lawful arrest requires two elements. The ᴀ밄rst is to arrest a person, there must be an involvement,
suspected involvement or attempted involvement in the commission of a criminal oᴀ洅ence and also reasonable
grounds for believing that person is worthy of an arrest. Both of these elements have to be fulᴀ밄lled for an arrest to
take place and nobody can ever be arrested without any reasonable grounds. In the case of Hough v Chief Constable
of Staᴀ洅ordshire, the police oᴀ甇cer that carried out the arrest got the information from the police national computer.
This was in fact wrong. However, the court held that there was reasonable suspicion.

Section 1(1) of the Magistrates’ Courts Act 1980, states that a warrant for arrest can only be issued if the person is
suspected of having committed an oᴀ洅ence. The warrant is issued after a written submission by a police oᴀ甇cer has
been veriᴀ밄ed on oath by a magistrate. It must identify the suspect and the oᴀ洅ence that the suspect had committed.
In the case that the police oᴀ甇cer does not have the warrant at his disposal, he is allowed to carry out the arrest ᴀ밄rst
but he is obligated to present the warrant before the person arrested as soon as possible in accordance to the
Magistrates’ Courts Act 1980, section 125(3). Once the warrant is issued, a police oᴀ甇cer is allowed to search the
premises and surroundings to make an arrest. The oᴀ甇cer may use reasonable force if deemed necessary.

As mentioned earlier, the UK can arrest a person without warrant under the common law. That being said however,
an arrest without a warrant under the common law can only be carried out if there is reasonable grounds for
suspicion that a breach of the peace is about to occur or has been committed and is likely to continue or to reoccur.
If a breach of peace has occurred, but has come to an end, the power to arrest ceases. In Bibby v Chief Constable of
Essex Police, a bailiᴀ洅 had gone to the premises of a debtor under a liability order issued by a magistrate’s court to
seize assets. The debtor however retaliated and threatened to call his friends to prevent the seizure of his assets. A
police constable was called to the scene. Fearing a breach of peace, he ordered the bailiᴀ洅 to leave. He arrested the
bailiᴀ洅 when he refused to leave with handcuᴀ洅s and took him to the police station but was released without any
charge. The bailiᴀ洅 sued the constable for assault and wrongful imprisonment. The Court of Appeal held that the
bailiᴀ洅 was acting lawfully. Neither the arrest nor the use of handcuᴀ洅s was justiᴀ밄ed. The same verdict was held in
Redmond-Bate v Director of Public Prosecutions.

The police can also arrest without warrant under statutes. The police powers of arrest under the PACE are based on
the concept of the importance of the oᴀ洅ence in question. Sections 110 and 111 of the Serious Organised Crime and
Police Act 2005 (SOCPA), however, amend these powers. Section 110 provides a replacement for section 24 of the
PACE. The power of arrest without a warrant for an ‘arrestable oᴀ洅ence’ is replaced with the power of arrest without
warrant for an ‘oᴀ洅ence’ (Barnett, 2011). Under the new section 24(1), a constable has the power to arrest without a
warrant in relation to anyone who is about to commit and oᴀ洅ence, anyone who is in the act of committing and

oᴀ洅ence, anyone whom he has reasonable grounds of suspicion of being about to commit an oᴀ洅ence and anyone he
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oᴀ洅ence, anyone whom he has reasonable grounds of suspicion of being about to commit an oᴀ洅ence and anyone he
has reasonable grounds for suspecting to be committing an oᴀ洅ence. A failure to give reasons for the arrest would
make it unlawful. In Christie v Leachinsky, the House of Lords ruled that a person must be notiᴀ밄ed of the grounds of
arrest, although it is not necessary to be done if the situation is obvious and if it is diᴀ甇cult to communicate with the
arrested person.

While the law is objective, it can be viewed from a subjective point of view. I feel that there can be rooms of
improvement and amendments that can be done to make it more eᴀ洅ective. I personally feel that the power granted
to the police to arrest without warrant is a breach of privacy. Reasonable suspicion is not reliable and it diᴀ洅ers from
everyone’s point of view. There have been many cases where reasonable suspicion has panned out the wrong way
as well proving it to be unreliable and not concrete enough to bring justice. Besides that, I feel that the rights of the
person arrested should be upheld at all times, and it is upheld and protected more in the UK compared to Malaysia.
The best example would be the case of A. Kuhan. He was a suspected car thief who died while in police custody.
According to media reports at that time, the death of Kuhan was the 126th death under police custody in the past
10 years. The police owe the people they arrest a duty of care. If everyone who is arrested gets treated like Kuhan
and the other 125 who died, the public will lose faith in the police force, which is rather ironic since they are the
ones who are supposed to safeguard us.

Besides that, the arrest of the innocent people who participated in the Bersih rallies clearly proves that the police in
Malaysia do abuse their power. In the Federal Constitution, Article 10 provides Malaysians with freedom of speech,
assembly and association. Yet the police intervened and arrested many innocent and harmless people, as well as
beat them up. The CPC states that a use of reasonable force is allowed. Based on video evidence that has since
circulated through the internet, it is evident that it was not “reasonable force” that had been administered. Firing
tear gas and shooting water cannons at citizens who are ᴀ밄ghting and upholding justice for their own country is an
inhumane thing to do. The police are part of the executive body in the separation of powers in Malaysia. Their duty
is to implement the law, but it is evident that there is abuse to the power granted to them.

To sum everything up, it can be said without a shadow of a doubt that the law in the UK preserves the rights of the
citizens of the UK as well as actively providing the police with a more than suᴀ甇cient amount of power to carry out
their duties, which is to provide a safe environment for the citizens and to ensure that their safety is not at
jeopardy. As Malaysians, we should ᴀ밄ght for our rights and not sit back and relax. John F. Kennedy once said, “The
rights of every man is diminished when the rights of one man is threatened.” I hold those words in very close regard
to our current situation now. I hope that amendments can be made and justice be served to everyone. If this
continues, the country will be aᴀ洅ected in more ways than you can imagine in time to come. In the wise words of
Hunter S. Thompson, “We cannot expect people to have respect for law and order until we teach respect to those
we have entrusted to enforce the laws.” — loyarburok.com

** This is the personal opinion of the writer or publication and does not necessarily represent the views of The
Malay Mail Online. 

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