Comparison of Police Powers of Arrest in Malaysia and the United Kingdom
Jevinder Singh compares the police powers of arrest in Malaysia and the UK and comes with some frank observations.
A police officer’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 officers is the right to arrest.
Jevinder Singh, Loyar Burok
A police officer’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 officers is the right to arrest. Arrest is the “restraint of a man’s person, obliging him to be obedient to the law and defined to be the execution of the command of some court of record or officer of justice” (Krishnan, 2008). Police officers are not allowed to abuse their power by simply arresting whoever they want because there are certain fixed 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 offender.
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 offence”. The third column of the First Schedule to the CPC shows that offences under the Penal Code which are punishable with imprisonment of three years and above are seizable offences. This means that the police may just arrest you without a warrant for any offence in violation of the Penal Code. An example would be theft. According to the Penal Code, the crime of theft is a seizable offence under s 379. section 23 of the CPC provides power to police officers 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 offence committed anywhere in Malaysia which is a seizable offence 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 offender. He then sued for wrongful arrest but Whitley J held that a reasonable man would have thought he was the offender due to the similarities. The police were justified 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 plaintiff was arrested as instructed by the first defendant, Inspector Yahaya without a warrant after information was given by an informant about a stolen cement mixer. The plaintiff then took action against the defendants for wrongful detention but Harun J held that the information that was given by the plaintiff had proven to be reliable and credible in the past. Therefore, the arrest of the plaintiff without a warrant was proven to be lawful.
A “non-seizable offence” is an offence where police officers are only allowed to arrest you with a warrant according to the third column of the First Schedule to the CPC. Therefore, a police officer is not allowed to arrest without a warrant if the punishment of the offence is less than three years. That being said, if there is any written law that states an offence 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 specific 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 officer may arrest you. Police may arrest by touching the body of the person to be arrested, confining 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 officer 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 officer 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 notified 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 officer 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 officers proceed with their questioning or recording of statements from the person arrested.
