Chapter 2 - Arrest Flashcards

Question

ARREST WITHOUT WARRANT BY POLICE OR PENGHULU FOR REFUSAL TO GIVE NAME & ADDRESS There must be refusal

Answer 1

PP v Ong Kee Seong: - OTF, there was no suggestion that the respondent refused to give his name & address on demand by the police officer. - Held: the arrest could not be justified under S.24.

Answer 2

S.24(1): - be taken before Magistrate within 24 hours unless the name & address has been ascertained.

Answer 3

1) The law & scope 2) Meaning of "in his view" 3) Post-arrest 4) Effect of delay

Answer 4

1) The law: - S.27 2) the scope: - non-bailable & seizable offence; and - committed in his view.

Answer 5

1) Indian position: Nazir v Rex - The word “in his view” must be given liberal interpretation; - it meant not only “in his sight” but also “in his presence”. 2) Singaporean position: Metro (Golden Miles) Pte Ltd v Paul Chua: - The offence committed must have been in sight of the private person before the arrest can be lawful. 3) Malaysian position - Sam Hong Choy v PP: - “in his view” not only mean “within his sight” but also “in his presence”. - therefore, when a person found committing the offence or found him running away immediately after the commission of the offence, he is entitled to be arrested.

Answer 6

1) S.27(2): Re-arrest; OR 2) S.27(4): Release; OR 3) S.27(3) commission of non-seizable offence.

Answer 7

1) John Lewis & Co Ltd v Tims: - Private person arresting must take the arrested person before a justice or to a police station as soon as he reasonably can; - Failure amounts to exposing himself to a civil liability for false imprisonment & assault. 2) S.430: - reward for unusual extortion may be allowed.

Answer 8

1) Mere words tantamount to arrest 2) Constructive or actual arrest 3) Recovery of incriminating exhibits 4) Ranking of police officer 5) Stopping of making inquiries 6) Restriction of liberty 7) Recent application

Answer 9

1) Sha’ban & Ors v Chong Fook Kam: - An arrest occurs when: * A police officer states in terms that he is arresting; or * He uses force to restrain the individual concerned; or * By words or conduct he makes it clear that he will, if necessary, use force to prevent the individual from going anywhere. - An arrest does NOT occur when: * The police officer stops an individual to make enquiries. 2) Jayarahman & ors v PP: - Mere request not to leave the compound does not amount to arrest; - Something extra is required for a person to be considered under arrest. - It was held that an arrest had not taken place since it was a matter for the ASP and not Corporal to decide whether or not the applicants should be arrested.

Answer 10

PP v Shee Chin Wah: 1) Actual arrest: - Actual act of arresting is required, does not have prior knowledge or information of the offence committed. - Pursuant to an investigation or finding. 2) Constructive arrest: - Sufficient if a person is already in a state of being watched or guarded to prevent his escape. - Done with prior information or knowledge of the offence committed.

Answer 11

PP v David Ackowuah Bonsu: - Reasonable suspicion is an important factor to be taken into account by the court in deciding whether or not there is constructive arrest in a situation where incriminating exhibits are recovered.

Answer 12

Jayarahman & Ors v PP: - In the circumstances, it was a matter for the ASP and not Corporal to decide whether or not the applicants should be arrested. - OTF of this case, the ranking of the police officer does matter when it comes to a decision whether an act of telling not to leave a place amounts to arrest.

Answer 13

Distinction between two kind of stopping of making inquiries - PP v See Chin Wah: 1) Merely or randomly stopping for inquiries - Sha’ban & Ors v Chong Fook Kam: - Does not amount to arrest. 2) Stopping for inquiries with prior information of the commission of the crime - Kang Ho Soh: - Court will be more inclined to infer that an arrest had taken place.

Answer 14

1) Determining the restriction - PP v Tan Seow Chuan: - Court must look at the surrounding circumstances to imply so. 2) Example - accompany the police to station - Zainal bin Kuning v Chan Sin Mian Michael & Anor: - Court held that a person is arrested when he is compelled to accompany a police officer; - In such a situation, there is a restriction of liberty and neither words of arrest nor physical restraint need to be present. 3) Example - not free to leave - PP v Teoh Meng Kee (CA, 2016): - although Teoh Beng Hock had not been officially arrested yet he was not free to leave the MACC Office as he pleased, his handphone was taken away & he is not allowed to have his lawyer present with him. - He was in effect and in law under constructive arrest by the MACC officers.

Answer 15

PP v Teoh Meng Kee (CA, 2016): - although Teoh Beng Hock had not been officially arrested yet he was not free to leave the MACC Office as he pleased, his handphone was taken away & he is not allowed to have his lawyer present with him. - He was in effect and in law under constructive arrest by the MACC officers.

Answer 16

1) The law & scope 2) Meaning of "all means necessary" 3) Causing death, whether allowed

Answer 17

1) The law: - S.15 2) Scope: - Actual touching; - Confining the body; - Submission to custody

Answer 18

1) The law - S.15(2): - Police officer may use all means necessary. 2) Example - Mahmood v Govt of Malaysia: - OTF, shooting & wounding the Plaintiff is justified; - P was attempting to evade the arretst. 3) Evading arrest: - GR: offence under S.353 PC; - Exception: if the arrest is obviously and clearly unlawful, arrestee is entitled to resist the arrest (PP v Khor Khee).

Answer 19

1) The law: S.15(3) - not allowed unless the offence involve death penalty or life imprisonment. 2) The law: Inspector General Standing Orders (IGSO) - shots cannot be fired unless the police officer finds himself in a situation where he is under attacked and he believes that his life is in danger or under threat of grievous injury. 3) Effect of causing death in non-permitted situation - KETUA POLIS DAERAH SHAH ALAM & ORS v. NOR AZURA AMZAH & ANOR AND ANOTHER APPEAL (CA, 2018): - Exposed the officer for claims for assault and battery; - OTF, the fact that the first defendant fired the fatal shot was undisputed & he admitted that his patrol car was behind the deceased's car and was pursuing it when the shots were fired. - The first defendant further admitted that it was wrong for him to have done that. - The evidence clearly showed that at the time the fatal shot was fired, the deceased posed no threat to the police personnel. - Learned counsel also argued that contributory negligence is not a defence in cases of assault and battery. - CA held that it was a patent instance of negligence on the part of the first defendant & on the totality of the evidence, the action of the first defendant in firing the fatal shot which resulted in the death of the deceased was clearly unwarranted, unreasonable and unjustified.

Answer 20

1) On subsequent proceeding | 2) On personal liability

Answer 21

1) Saw Kim Hai & Anor v R: - When an accused person is brought before a court, the court has a jurisdiction to try him; - This is notwithstanding the fact that his arrest may have been illegal. 2) Bird Dominic Jude v PP: - Any irregularity of the initial arrest has been overtaken by subsequent event when the accused was subsequently brought to the court. - The court has the jurisdiction to hear the second stage of the application notwithstanding of any irregularity or flaw in the terms of the warrant of arrest.

Answer 22

Tan Kay Teck & Anor v AG: - Ref. Dumbell v. Roberts: where a person has been wrongfully arrested and detained, it is in the public interest that sufficient damages should be awarded in order to give reality to the protection afforded by the law to personal freedom. - Ref. Walter v. Alltools: a false imprisonment does not merely affect a man's liberty; it also affect his reputation. - Therefore, reasonable amount of damages could be awarded taking into account all circumstances.

Answer 23

1) General: - A person cannot be detained for more than 24 hours; - An arrested person has various rights, inter alia, to consult legal practitioner of his choice; - Where a person is arrested, a statutory caution might need to be administered before his statement is admitted in court. i. e. statement before arrest: admissible & does not need statutory caution. i. e. statement after arrest: inadmissible & need statutory caution. 2) Administration of statutory caution after arrest has been effected - Tan Chun Heng v PP (CA, 2020): - CA referred to Jayarahman & Ors v PP & S.15(1) and took the position that the accused was for all intents and purposes under arrest. - Any statement made by him under arrest is inadmissible. *Ref. Pendakwa Raya v Kang Ho Soh: - Any statements made to a police officer by a person after arrest is inadmissible unless the statutory preconditions laid down by section 37B of the Act are satisfied. - i.e. the statutory requirement is that the arresting officer must have administered the caution as stipulated in section 37B(1)(b) of the Act. * Ref. Mohd Zaiham Mislan v PP: - there may still be a requirement for the caution to be explained in appropriate cases or circumstances. OTF, CA held that: - Mere reading of the caution would not suffice. - There is a requirement in law for the caution and its consequences to be explained to the accused.

Answer 24

1) The law & scope 2) Reasonable use of force 3) Informed on ground of arrest 4) Private or self-defence 5) Communicate with relative or friend 6) Legal representation 7) Remain silent 8) Be produced before a Magistrate 9) Be released on bail 10) Apply writ of habeas corpus

Answer 25

1) The law: S.15(3) - not allowed to cause death unless the offence involve death penalty or life imprisonment. 2) The law: Inspector General Standing Orders (IGSO) - shots cannot be fired unless the police officer finds himself in a situation where he is under attacked and he believes that his life is in danger or under threat of grievous injury. 3) Effect of causing death in non-permitted situation - KETUA POLIS DAERAH SHAH ALAM & ORS v. NOR AZURA AMZAH & ANOR AND ANOTHER APPEAL (CA, 2018): - Exposed the officer for claims for assault and battery; - OTF, the fact that the first defendant fired the fatal shot was undisputed & he admitted that his patrol car was behind the deceased's car and was pursuing it when the shots were fired. - The first defendant further admitted that it was wrong for him to have done that. - The evidence clearly showed that at the time the fatal shot was fired, the deceased posed no threat to the police personnel. - Learned counsel also argued that contributory negligence is not a defence in cases of assault and battery. - CA held that it was a patent instance of negligence on the part of the first defendant & on the totality of the evidence, the action of the first defendant in firing the fatal shot which resulted in the death of the deceased was clearly unwarranted, unreasonable and unjustified. 4) Exception - PP v Khor Khee: - if the arrest is obviously and clearly unlawful, arrestee is entitled to resist the arrest.

Answer 26

1) GR: Art. 5(3) FC: - he shall be informed as soon as may be of the grounds of arrest. 2) Exception - Christie v Leachinsky: - He must have known the general nature of the alleged offence, i.e. when he is caught red-handed. - He makes it practically impossible to inform him on the grounds of arrest, i.e. immediate counter-attack or run away. 3) Effect of withholding ground - Christie v Leachinsky: - Where the reasons for the arrest or detention is deliberately withheld, it amounts to false imprisonment.

Answer 27

1) PP v Ong Kee Seong: - only exercisable in a situation where the arrest and/or detention is clearly wrongful. - OTF, the police entered the premise without required warrant & the accused kicked the officers in the stomach and bite the legs. - Since the police had not obtained the search warrant, their act is justified.

Answer 28

The law: - S.28A(a)

Answer 29

1) The law: - S.28A(2)(b) 2) Scope of right - Badrul Hisham Hashim v PP: - a two-tiered right. - S.28A: after an arrest is made; - S.255: when the person arrested is charged.

Answer 30

1) The law - S.28(2)(b) & (6): - The right of a counsel begins from the moment of arrest; - But before any questioning of the accused by the police can take place. - Ref. Miranda v State of Arizona: Where interrogation is taken place without presence of attorney, the burden is cast on the prosecution to demonstrate that the accused knowingly & intelligently waived his right to have attorney present. 2) Application - Ooi Ah Phua v O-i-C CID Kedah / Perlis: - Right cannot be exercised immediately after the arrest; - The interest of the justice is as important as the interest of the arrested persons.

Answer 31

Datuk Hasanah Abdul Hamid v SPRM & Anor: - Both sections do not envisage total denial of right to counsel but postponement of the right to avoid any impediment to the investigation. - S.28A(8) & (9) of the CPC also apply equally to any arrested person. - The provisions are not discriminatory & do not infringe art. 8(1) of the FC. - The subsections apply to all arrested persons and hence, are valid and good law.

Answer 32

Mohamad Ezam bin Mohd Noor v Ketua Polis Negara: - Police must act promptly and make the investigation a priority without an unreasonable delay; This is so as to not deny the

Answer 33

Saul Hamid v PP: - General rule: An arrested person has the right to be represented at remand proceedings; - Exception: Unless police can satisfy the Magistrates that to allow the suspect to be represented would result in undue interference with the course of investigation.

Answer 34

SPRM & Ors v Latheefa Koya & Anor: - A witness in criminal cases cannot claim a constitutional right to be represented by counsel. - Art. 5(2) only speaks of the right of a person unlawfully detained & it does not confer any constitutional right on the complainant to be represented by counsel during the recording of his statement as a witness.

Answer 35

1) Proviso S.112(2): 2) S.37B DDA: 3) S.75(2) ISA: 4) S.30(3)(b) MACC Act:

Answer 36

1) The law: - Art. 5(4); - S.28; - S.117 2) Scope of S.28 - Zulkiflee bin SM Ulhaque: - A person shall not be arrested & detained without warrant for more than 24 hours w/o him being released either: * On bail; or * On his own cognizance; or * Being brought before a Magistrate for a further detention to assist police investigation. 3) Meaning of period of S.28(3) - Zulkiflee bin SM Ulhaque: - does not include first 24 hours; - purely the period ordered by Magistrate under S.117. 4) Period of remand permitted - Zulkiflee bin SM Ulhaque: - not exceeding 15 days excluding the first 24 hours; - but all the usual conditions for remand (i.e. necessity for investigation) must be fulfilled. 4) Meaning of unnecessary delay - Kuan Kwai Choi v Ak Zaidi Pg Metali: - HC found that there was unnecessary delay in bringing the plaintiff before the magistrate as no effort was made to take the P to magistrate at that time. - damages awarded for unlawful detention. 5) S.117 CPC & S.32 Police Act - Dato’ Sri Khalid Abu Bakar v N Indera a/p Nalathambi: - S.32(1) of the Police Act 1967 (non-liability if acting under warrant) does not assist the defendants as the acts committed was not done in obedience of the remand warrant issued by the magistrate.

Answer 37

1) The law: - S.29 CPC 2) Scope of S.29 - Kwan Hung Cheong v Inspector Yusof Haji Osman: - S.29 is a general provision which emphasises that upon arrested by the police officer, the arrestee can only be released; - i.e. on his own bond; or a police officer not below the rank of Inspector. 3) Application - Dasthigeer Mohd Ismail v Kerajaan Malaysia: - W/o reasonable belief that the accused may abscond, the person should be released on a police bond under S.29. 4) Bail for suspect in remand - Maja anak Kus v PP: - S.387(1) CPC does not override the provisions of section 117 CPC. - S.387 is only applicable if S.117 is not invoked. therefore, when a person is in remand, he is not entitled to bail.

Answer 38

1) Requirements & scope of rights - Madjai Sanusi v Pengarah Imigresen, Johor: - Applicant must show that he was ILEGALLY or IMPROPERLY detained. - Habeas corpus will not issue if: * the accused is detained in custody under a warrant of remand lawfully passed; * the arrested person is facing an execution of a sentence passed by a court of law legally competent to do so; - In such a case, the remedy is appeal or revision and no habeas corpus can be issued. - Lawful order of remand may only be appealed or revised against. 2) When can be exercised - Re Detention of Leonard Teoh: - Such right would only be exercisable where the alleged unlawful detention is still continuing.

Answer 39

1) Civil claims for damages | 2) Writ of habeas corpus

Answer 40

1) Scope of remedy - Tan Kay Teck & Anor v AG: - Ref. Dumbell v. Roberts: where a person has been wrongfully arrested and detained, it is in the public interest that sufficient damages should be awarded in order to give reality to the protection afforded by the law to personal freedom. - Ref. Walter v. Alltools: a false imprisonment does not merely affect a man's liberty; it also affect his reputation. - Therefore, reasonable amount of damages could be awarded taking into account all circumstances. 2) Whether remand order can be challenge in civil claims for damages - Hassan bin Marsom & Ors v Mohd Hady bin Yaakop (FC, 2018) - Any challenge to the unlawfulness of the remand order is not limited to an appeal or revision under the CPC but could still be pursued if specifically pleaded in a civil action.

Answer 41

1) The law: - S.365 - 374 2) Requirements: - Re Detention of Leonard Teoh: Such right would only be exercisable where the alleged unlawful detention is still continuing. - Madjai Sanusi v Pengarah Imigresen, Johor: Applicant must show that he was ILEGALLY or IMPROPERLY detained.

Chapter 2 - Arrest Flashcards

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