ARREST note

Under Section 15(1) of the Criminal Procedure Code (“CPC), an arrest may be made in the following manner: -

(a) by actually touching the body of the person to be arrested; or

(b) by actually confining the body of the person to be arrested; or

(c) where there is submission to custody by word or action.

Apart from the mode of arrest prescribed by Section 15(1), in Malaysia there also exists what is known as common law arrest. This is where a police officer states in terms that he is arresting or when he uses force to refrain the individual concerned or when he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go.

When arrested, a person has a fundamental right under the Federal Constitution to be informed as soon as possible in ordinary language, of the grounds of his arrest unless that can be inferred from the surrounding circumstances or if he makes it impossible for the person making the arrest to inform him. Thus, a person arrested is entitled to ask the reasons for his arrest as well as to which police station he is being taken to. The police must bring a person arrested immediately to the nearest police station and nowhere else.

The Federal Constitution also gives the arrested person a right to consult and he defended by a legal practitioner of his choice. A person arrested has the right to remain silent and refuse to answer any questions.

A police officer who has taken a person into custody must produce him before a Magistrate without necessary delay. Police detention of the arrested person must not exceed 24 hours (excluding the time taken for the journey from the place of arrest to the Magistrate Court).

Under the new Section 28A of the Criminal Procedure Code which came into force since September 2007 the rights of an arrested person are clearly spelt out.

Under this new section, an arrested person will have the following rights: -

• to be informed as soon as may be the grounds for this arrest;

• right to contact a legal practitioner of his choice within 24 hours from the time of his arrest;

• right to communicate with a relative or friend of his with regards to his whereabouts within 24 hours from the time of his arrest;

• right to consult with his lawyer and the lawyer is allowed to be present and to meet the arrested person at the place of detention before the police commences any form of questioning or recording of any statement from the person arrested.

However, the right to communicate with a relative, counsel or friend and the right to consult a counsel of his choice will be refused where there is reasonable belief that to do so could result in an accomplice of the person arrested taking steps to avoid apprehension or there would be destruction, concealment or fabrication of evidence or intimidation of witnesses or where taking regard to the safety of other persons, the questioning or recording of any statement should not be delayed.