Topic 3 Arrest

PART I
A. Concept
o Arrest is the first step in criminal proceedings against a suspected

person. Christie v Leachinsky [1947] AC 573
B. Definition
Directorate of Enforcement v Deepak Mahajan (1994) 3 SCC 440

Roshan Beevi vs Joint Secretary To Government of Tamil Nadu
(1984) CR LJ 134
o Ordinary and natural sense: The apprehension of a person/the
deprivation of a person's liberty.
o Legal sense: The taking into custody of another person under

authority empowered by law, to be held or detained to answer a
criminal charge or to prevent the commission of a criminal or
further offence.
o The essential elements to constitute an arrest in the above sense

are that there must be an intent to arrest under the authority,
accompanied by a seizure or detention of the person in the
manner known to law, which is so understood by the person
arrested.
C. Mode of Arrest
How arrest is made? What constitute an arrest?
Malaysia: S.15(1)
o Police officer/other person (Arrester)
- actually touch
Actual Arrest
- actually confine
the body of the person to be arrested
o Unless there is a submission (by the person to be arrested) to the

custody by word/action. (dont have to touch or confine if he
submits to custody)
?
o Voluntary attendance at a police station?
o The mere surrounding of a person by the police?
o Stopped at a road block?

Jayaraman [1982] 2 MLJ 273, COA
(the corporal told them not to leave the place)
- a physical seizure/touching of the accused persons body with a view
to his detention.
- it can also include by mere words without touching. Provided that
the person submits to the command.
-Whether or not there is an arrest is a question of fact to be
determined by the trial court.
Jayaraman [1982] 2 MLJ 306, FC

The actual seizing or touching of the body of the person to be
arrested is not necessary in a case where the arrester by word brings
to the accused's notice that he is under compulsion and thereafter he
submits to that compulsion.
Common L aw
Russen v Lucas (1824) 1 Car & P153

There was no arrest where a Sheriffs officer merely told a person that
he wanted him but did not touch or restrain him.
Sandon v Jarvis (1859) 28 LJ Ex 156
Alderson v Booth [1969] 2 QB 216, Parker CJ:

There are a number of cases, both ancient and modern, as to what
constitutes an arrest, and whereas there was a time when it was held that
there could be no lawful arrest unless there was an actual seizing or
touching, it is quite clear that that is no longer the law.
There may be an arrest by mere words, by saying "I arrest you" without
any touching, provided, of course, that the defendant submits and goes
with the police officer. Equally it is clearthat an arrest is constituted
when any form of words is used which in the circumstances of the case
were calculated to bring to the defendant's notice, and did bring to the
defendant's notice, that he was under compulsion and thereafter he
submitted to that compulsion.
Shaaban v Chong Fook Kam [1969] 2 MLJ 219, PC - Lord Devlin

o when a police officer states in terms that he is arresting
o when he uses force to refrain the individual concerned
o when he makes it clear that he will, if necessary, use force to
prevent the individual from going where he may want to go.
o It does not occur when he stops an individual to make enquiries.
India
Aludomal v Emperor 17 Cr LJ 87
There is no arrest when an arresting officer tells a person on the
street that he is under arrest, and the person walks away.
Roshan Beevi vs Joint Secretary To Government of Tamil Nadu

the mere utterance of a guttural word or sound, a gesture of the
index finger or hand, the sway of the head or even the flicker of an
eye are enough to convey the meaning to the person concerned that
he has lost his liberty and brought under arrest will not only be in
conflict with the modality of arrest prescribed in Section 46 of the
Cr.P.C. but also will lead to a startling anomaly and cause serious
consequences.
Submission to Custody
o Custody differ from Arrest.
o An arrest is a mode of formally taking a person into an arresting

officers custody.
o However, a person may be in custody without having been arrested.
Harbansingh Sardar Lanansingh v State AIR 1970 Bom 79

When a person drives away accompanied by several officers in his
car, there is no arrest but merely placing that person in the custody of
those officers.
(i) Submission to custody amounting to arrest
KN Cheriyon v Johnson (196) Mad LJ (Cr) 765

Accompanying a police officer to a police station on his
direction may amount to submission to custody.
Paramhansa Jadab vs The State AIR 1964 Ori 144

Police custody would commence from the moment when his
movements are restricted and he is kept in some sort of
direct or indirect police surveillance
Roshan Beevi
Malaysian cases (there was a confinement)
Tan Seow Chuan [1985] 1 MLJ 318, HC the moment the police
officer showed his authority card and another police officer was asked
to guard the accused restraint of personal liberty can be implied
from surrounding circumstances.
Rosyatimah bte Neza [1989] 1 MLJ 360, HC being

watched/guarded to prevent his escape, or from the circumstances, it
can be implied that his personal liberty has been restrained
Kang Ho Soh [1992] 1 MLJ 360, HC car was stopped at a road

block, ordered to open the car door
Shee Chin Wah [1998] 5 MLJ 429, HC car was stopped by police
Lim Hock Boon [2007] 1 MLJ 46, COA car was blocked, engine
switched off under arrest
Lim Hock Boon [2009] 3 MLJ 604, FC actual arrest

Not under arrest when police blocked the accused's car, switched off
the engine and took possession of the keys
Sambu [1947]
Tan Shu En [1948]
Johari Abdul Kadir [1987] 2 CLJ 66
(ii) Submission to custody not amounting to arrest
Paramshansar v State AIR 1964 Ori 144
-voluntarily accompanying a police officer to a certain place.
Bharosa Ramdayal v Emperor MR 1941

-making statement accusing himself of an offence to a police officer
Lee Cher Joo @ Lee Sujan v Mohd Sharif bin Othman & Ors [2009]
9 MLJ 352, HC voluntarily came to the police station
Constructive arrest?
Tan Seow Chuan [1985] 1 MLJ 318, HC restraint of personal

liberty can be implied from surrounding circumstances.
Rosyatimah bte Neza [1989] 1 MLJ 360, HC it can be implied that

his personal liberty has been restrained
Kang Ho Soh [1992] 1 MLJ 360, HC actual arrest

Shee Chin Wah [1998] 5 MLJ 429, HC
Lee Cher Joo @ Lee Sujan v Mohd Sharif bin Othman & Ors [2009]
9 MLJ 352, HC voluntarily came to the police station
-no such thing as constructive arrest
Lim Hock Boon [2009] 3 MLJ 604, FC actual arrest

Not under arrest when police blocked the accused's car, switched off
the engine and took possession of the keys
D. Means to effect arrest &degree of force
S.15(2)
o may use all means necessary to effect arrest includes:
(i) take assistance from others

Nazir v R AIR (1951) All 3; Sheo Balak v Emperor AIR 1948
(ii) wounding a person is justified if there is no other way to effect the

arrest - Said Mahmud v Emperor AIR 1935 Pesh 83
(iii) use of fire arms as last resort; shooting over the head
Mahmood v Gov of Malaysia [1974] 1 MLJ 103
Limit
S.15(3): no right to cause death while trying to arrest a person not

accused of an offence punishable with death or imprisonment for life.
Dakki Singh v State

Karam Singh v Hardayal Singh
E. Unlawful Arrest
o A person is entitled to resist arrest if it is illegal or unjustifiable
Kok Khee [1963] MLJ 362

The respondent was justified to put up a struggle since he was
resisting an illegal or unjustifiable use of force against him.
Ong Kee Seong [1960] MLJ 156

Khor Ah Kah [1964] MLJ 309
o Entitled to claim damages for false imprisonment
Shaaban
o Effect of illegal arrest court has jurisdiction to hear, and not

initiate any criminal proceedings or conviction
Types of
Arrest
With Without
Warrant Warrant
Non-Seizable Seizable
offence offence
an offence for which a

an offence for which a
police officer may
police officer require a
ordinarily arrest
warrant to make an
without warrant
arrest according to the
according to the 3rd
3rd column of the 1st
column of the 1st
Schedule;
Schedule;
o Arresting officer must have the warrant in his possession
o The person sought to be arrested has a right to demand that the

warrant and its content be shown to him
o Where the offence is a summons case not a warrant case, a

summons should be issued not warrant
Karpal Singh [1986] 2 MLJ 319

Persons who may arrest
(i) Police (iii) Private

Officer (ii) Penghulu (iv) (v) Justice
Person Magistrate of Peace
S.23(1) S.23(1),
S.27(1) & S.30, S.31 S.30
S.24(1) & (3) S.24(1) & (3)
(5)
S.105
(1) Arrest by Police officer & Penghulu
o S.23(1) (a) (k), S.124 (1) & (3)
(i) S.23 (1) (a)

o may arrest without warrant
o seizable offence
o reasonable complaint
complaint to police officer, not complaint to magistrate under
s.133 and define under s.2
Objective test
Tan Kay Teck v AG [1957] MLJ 237

Choong Fook Kam v Shaaban bin Hussein [1967]
Ramly v Jaafar [1968] 1 MLJ 209
Tims v John Lewis & Co. [1951] 2 KB 459

o Credible information
- Any information that is reliable or can be believed.
- A bare assertion will not suffice
Hashim bin Saud v Yahya bin Hashim [1977] 1 MLJ 259
Zainal bin Kuning v Chan Sin Mian Michael (1996)

o Reasonable suspicion
Tan Eng Hoe v AG [1933] MLJ 151

Applicants habits & movements had answered to the description of
offender, any reasonable man would suspect the applicant of being the
offender
Ramly v Jaafar [1968]

Shaaban v Chong Fook Kam [1969] 2 MLJ 219
Mahmood v Government of Malaysia [1974] 1 MLJ 103
Saul Hamid
Nor Maziah bt Ibrahim v Mohd. Haris bin Abd. Rahim [2009]
Masa a/k Nangkai & Ors v Sgt Edwin Nancha [2005] 1 MLJ 581
(1) Arrest by Police officer & Penghulu
o S.24(1) & (3) commits/accused of committing a non-seizable
offence (with warrant)
(ii) Arrest by private person
Non-bailable & seizable offence
29
in his view
(i) Strict interpretation - in his sight
Durga Singh [1963] 1 Gr Lj 827
Kartar Singh v State AIR 1956b Punj 122
(ii) Liberal interpretation

Walters v WH Smith & Sons Ltd [1947] 1 KB 595
Sam Hong Choy v PP [1999] 4 MLJ 433
without unnecessary delay
S 28(1) CPC
Brought before a magistrate within 24 hours
John Lewis & Co Ltd v Tims [1952] 1 All ER 1203
31
7/30/2017
RIGHTS OF ARRESTED PERSON
Article 5(3)
Article (4)
hours
28. (1) 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.
(2) N o 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.
(3) S uch period shall not in the absence or after the expiry of
a special order of a Magistrate under section 117 exceed twentyfour
hours exclusive of the time necessary for the journey from
the place of arrest to the Magistrate.)
Rights of person arrested
28a. (1) A person arrested without a warrant shall be informed
as soon as may be of the grounds of his arrest by the police
officer making the arrest

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PART I

o Arrest is the first step in criminal proceedings against a suspected

Directorate of Enforcement v Deepak Mahajan (1994) 3 SCC 440

o Legal sense: The taking into custody of another person under

o The essential elements to constitute an arrest in the above sense

How arrest is made? What constitute an arrest?

o Unless there is a submission (by the person to be arrested) to the

o The mere surrounding of a person by the police?

o Stopped at a road block?

Jayaraman [1982] 2 MLJ 306, FC

Russen v Lucas (1824) 1 Car & P153

Sandon v Jarvis (1859) 28 LJ Ex 156

Alderson v Booth [1969] 2 QB 216, Parker CJ:

Shaaban v Chong Fook Kam [1969] 2 MLJ 219, PC - Lord Devlin

Roshan Beevi vs Joint Secretary To Government of Tamil Nadu

o Custody differ from Arrest.

o An arrest is a mode of formally taking a person into an arresting

o However, a person may be in custody without having been arrested.

Harbansingh Sardar Lanansingh v State AIR 1970 Bom 79

KN Cheriyon v Johnson (196) Mad LJ (Cr) 765

Paramhansa Jadab vs The State AIR 1964 Ori 144

Rosyatimah bte Neza [1989] 1 MLJ 360, HC being

Kang Ho Soh [1992] 1 MLJ 360, HC car was stopped at a road

Lim Hock Boon [2009] 3 MLJ 604, FC actual arrest

Bharosa Ramdayal v Emperor MR 1941

Tan Seow Chuan [1985] 1 MLJ 318, HC restraint of personal

Rosyatimah bte Neza [1989] 1 MLJ 360, HC it can be implied that

Kang Ho Soh [1992] 1 MLJ 360, HC actual arrest

Lim Hock Boon [2009] 3 MLJ 604, FC actual arrest

(i) take assistance from others

(ii) wounding a person is justified if there is no other way to effect the

S.15(3): no right to cause death while trying to arrest a person not

Dakki Singh v State

o A person is entitled to resist arrest if it is illegal or unjustifiable

Kok Khee [1963] MLJ 362

Ong Kee Seong [1960] MLJ 156

o Effect of illegal arrest court has jurisdiction to hear, and not

an offence for which a

o The person sought to be arrested has a right to demand that the

o Where the offence is a summons case not a warrant case, a

Karpal Singh [1986] 2 MLJ 319

(i) Police (iii) Private

(i) S.23 (1) (a)

Tan Kay Teck v AG [1957] MLJ 237

Tims v John Lewis & Co. [1951] 2 KB 459

- Any information that is reliable or can be believed.

- A bare assertion will not suffice

Hashim bin Saud v Yahya bin Hashim [1977] 1 MLJ 259

Zainal bin Kuning v Chan Sin Mian Michael (1996)

Tan Eng Hoe v AG [1933] MLJ 151

Ramly v Jaafar [1968]

Non-bailable & seizable offence

(ii) Liberal interpretation

John Lewis & Co Ltd v Tims [1952] 1 All ER 1203

RIGHTS OF ARRESTED PERSON

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