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.
Remand and Investigations
Section 117 of the Criminal Procedure Code is the mechanism which allows the detention of a suspect for more than 24 hours to enable the police to complete their investigation. Under the new Section 117(2), where investigations cannot be completed within 24 hours from the time of the person’s arrest, the arrested person shall be produced before a Magistrates who shall then authorize the person to be remanded for a period not exceeding 7 days if the offence investigated is punishable with imprisonment with less than 14 years and not exceeding 14 days if the offence investigated is punishable with death or imprisonment of 14 years or more.
Before its amendment, Section 117 had been opened to abuse. First, there is what is known as the practice of obtaining a ‘chain smoking’ remand order from a Magistrate. This is where a person who is arrested for the purposes of an investigation into an offence committed in the jurisdiction of a Magistrate Court, is taken, after a remand order is obtained, to another Magistrate Court outside jurisdiction to obtain a further demand order on the basis of investigating some other purported offence. Through this practice, the provisions of the previous Section 117(2) of the Criminal Code Procedure were circumvented and a total remand period could well exceed the 15 days.
This practice has led to an arrested person being subjected to physical and mental torture and there were instances of arrested persons dying in custody during the remand period. The power to grant a remand period of 15 days in total has also led to a tendency on the part of police to “arrest first and investigate later”.
Therefore, to put this in check a new subsection (2) was introduced to replace the previous subsection (2) of Section 117 together with the introduction of subsections (3), (4), (5), (6) and (7).
The most fundamental significance of the amendments to the Criminal Procedure Code, is the right of an arrested person to be represented by Counsel during remand proceedings and that an arrested person is not subjected to lengthy remand periods.
The new subsection (2) to section 117 is divided into two distinct stages. First, if the offence which is being investigated is punishable with imprisonment for less than 14 years, the detention shall not be more than 4 days on the first application and shall not be more than 3 days on the second application. However, where the offence being investigated is punishable with death or imprisonment of 14 years or more, the detention shall not be more than 7 days on the first application and shall not be more than 7 days on the second application.
Section 117 is now reproduced:
Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 28 and there are grounds for believing that the accusation or information is well founded the police making the investigation shall immediately transmit to a Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time produce the accused before the Magistrate.
117(2) The Magistrate before whom an accused person is produced under this section may, whether he has or has not jurisdiction to try the case, authorize the detention of the accused in such custody as follows: –
(a) If the offence which is being investigated is punishable with imprisonment of less than fourteen years, the detention shall not be more than four days on the first application and shall not be more than three days on the second application;
(b) If the offence which is being investigated is punishable with imprisonment of less than fourteen years, the detention shall not be more than four days on the first application and shall not be more than seven days on the second application.
(c) The officer making the investigation shall state in the copy of the entries in the diary referred to in subsection (1), any period of detention of the accused immediately prior to the application, whether or not such detention relates to the application.
(d) The Magistrate, in deciding the period of detention of the accused person, shall take into consideration any detention period immediately prior to the application, whether or not such detention relates to the application.
(e) The Magistrate in deciding the period of detention of the accused shall allow representations to be made either by the accused himself of through a counsel of his choice.
(f) If the Magistrate has no jurisdiction to try the case and considers further detention unnecessary he may order the accused person to be produced before a Magistrate having such jurisdiction or, if the case is triable only by the High Court, before himself or another Magistrate having jurisdiction with a view to transmission for trial by the High Court.
(g) A Magistrate authorizing under his section detention in the custody of the police shall record his reasons for so doing.
Commentary:- With this new subsection on the period of detention, it is hoped that it would rid the police of “arrest first and investigate later”. The period of detention provided for under the new subsection is reasonable in the circumstances, since offences punishable by death or imprisonment of 14 years or more are much more complex in nature, thus, requiring for the purpose of investigation and the collection of evidence as compared to an offence punishable by imprisonment of less than 14 years.
The application for remand which is divided into two stages of application makes it much more controlled.
The most fundamental aspect to S.117 in its current form is the arrestee’s right to be represented by counsel during the remand proceedings and that the period of detention is controlled. This would ensure that a person arrested is not remanded save on strong and reasonable grounds.
The new subsection (3) and (4) of the amended S117 makes it imperative for the police officer seeking the remand order from the Magistrate to inform the Magistrate any period of detention made prior to the application whether such detention relates to the application, and it is compulsory for the Magistrate to take into account such period detention in allowing the said application.
(a) How person arrested is to be dealt with and detention for more than twenty-four hours.
Section 28 of the Criminal Procedure Code provides: –
(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’s Court.
(2) No 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) Such period shall not in the absence or after the expiry of a special order of a Magistrate under section 117 exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.
Commentary:- Before the new section 28A a person arrested under this section is almost always not informed of the grounds in which he is arrested not afforded the right to counsel. Further, an arrested person is also deprived from communicating with his family or friends with regards to his detention.
This has resulted in his family and/or counsel being unaware as to when the person arrested would be produced in court for remand or be charged. This has led to arrested persons being remanded and/or charged in the absence of his counsel and/or family.
(b) Rights of Person Arrested
Section 28A provides: –
(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.
(2) A police officer shall, before commencing any form of questioning or recording of any statement from the person arrested, inform the person that he may –
(a) communicate or attempt to communicate, with a relative or friend to inform of his whereabouts; and
(b) communicate or attempt to communicate and consult with a legal practitioner of his choice.
(3) Where the person arrested wishes to communicate or attempt to communicate with the persons referred to in paragraphs 2(a) and (b), the police officer shall, as soon as may be, allow the arrested person to do so.
(4) Where the person arrested has requested for a legal practitioner to be consulted the police officer shall allow a reasonable time-
(a) for the legal practitioner to be present to meet the person arrested at his place of detention; and
(b) for the consultation to take place.
(5) The consultation under subsection (4) shall be within the sight of a police officer and in circumstances, in so far as practicable, where their communication will not be over heard.
(6) The police officer shall defer any questioning or recording of any statement from the person arrested for a reasonable time until the communication or attempted communication under paragraph 2(b) of the consultation under paragraph (4) has been made;
(7) The police officer shall provide reasonable facilities for the communication and consultation under this section and all such facilities provided shall be free of charge.
(8) The requirements under subsections (2), (3), (4), (5), (6) and (7) shall not apply where the police officer reasonably believes that-
(a) compliance with any of the requirements is likely to result in-
(I) an accomplice of the person arrested taking steps to avoid apprehension; or
(II) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or
(b) having regard to the safety of other persons the questioning or recording of any statement is so urgent that it should be not delayed.
(9) Subsection (8) shall only apply upon authorization by a police officer not below the rank of Deputy Superitendent of Police.
(10) The police officer giving the authorization under subsection (9) shall record the grounds of belief of the police officer that the conditions specified under subsection (8) will arise and such record shall be made as soon as practicable.
(11) The Investigating officer shall comply with the requirements under subsections (2), (3), (4), (5), (6) and (7), as soon as possible after conditions specified under subsection (8) have ceased to apply where the person arrested is still under detention under this section or under section 117.
Commentary:- This new section 28A, clearly spells out the rights of an arrested person, thus, making it compulsory for the police to comply with the same. Under this new section, not only must a person arrested be informed of the grounds for his arrest, but he is also afforded the right to contact a legal practitioner of his choice within 24 hours from the time of his arrest.
Besides this, under this new section, an arrested person shall also be allowed to communicate with a relative or friend of his with regards to his whereabouts within 24 hours from the time of his arrest. The new section 28A also provides that an arrested person shall be given the right to counsel before the police commences any form of questioning or recording of any statement from the person arrested, subject to the exceptions laid down in Section 28(8).
The new section 28A reflects the rights of an arrested person as enshrined under Article 5 of the Federal Constitution. With clearly spelt out rights under this new section, it is hoped that the police would comply strictly with the same.
Extracted from The Malaysian Bar