The guidelines for Criminal Procedure in Malaysia is founded

primarily in the Criminal Procedure Code (Act 593) or

abbreviated CPC
The application of the CPC is applied tracing back to 10 January
1976 and was then revised in 1999 with amendment. The latest
amendment is in 2006
Provides general criminal procedure
Additional rules of criminal procedure governing specific functions
e.g Dangerous Drug Act, Internal Security Act,
Anti-Corruption Act
Pre-Trial
and Child Act 2001
Criminal

Criminal
Process
Process

Trial
Post-Trial

Presentation Question
Ali and Abu are both fresh graduates from Multimedia
University without any criminal records. Recently, they
had been offered to work as an accountant in Shell
Company. In the same time, they rented a house near to
their office. They did not know that the house that they
rented used to be a drug dealing centre. One day, while
they were cleaning up the rented house, they had been
surrounded by several police officers. They were afraid
and tried to run away but unfortunately, they been
caught by the police officers in charge and was not been
inform what are the grounds of arrest. As a lawyer, you
are asked to advice them regarding their rights.
You may discuss the above question relevant

II
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Being fresh grads, Ali and Abu find themselves in the

Being
fresh grads, Ali and Abu find themselves in the
employment of Shell company hence, renting a place
employment of Shell company hence, renting a place
nearby
nearby

the absence of their knowledge, the place rented was a

InInthe
absence of their knowledge, the place rented was a
drug dealing facility
drug dealing facility
After several days, they had a police raid on their hands
After
several days, they had a police raid on their hands
and in the moment of panic they tried to escape but
and in the moment of panic they tried to escape but
unsuccessful
unsuccessful
They were caught by the police officers without being
They were caught by the police officers without being
informed on the grounds of arrest
informed on the grounds of arrest
The relevant element was on the criminal process
The
relevant element was on the criminal process

Investigation
Investigation of
of Offences
Offences (Pre(Pre Criminal investigations Trial)
in Malaysia are conducted by a
Trial)
number of enforcement agencies such as PDRM, AntiCorruption Agency (ACA), Royal Customs and Excise
Department and the Immigration Department.
Powers of police to investigate are found in Chapter XIII
(ss107-120) of Criminal Procedure Code and Police Act
(Act 344).
Investigation powers are vary depending on whether the
offence complained is:
1. Seizable
2. Non-seizable

Seizable offence
An offence for which a police officer may ordinarily
investigate without an order from public prosecutor and
arrest without warrant from magistrate.
Seizable offences are the more serious offences, such as:
1.
2.
3.
4.
5.

housebreaking
kidnapping
murder
rape
terrorism offences

Police investigations begin once a

first information report (FIR) or
police report is made under Section
107 of CPC.

Section
Section 107
107 :: Information
Information of
of offences
offences
(1) Every information related to the commission of an offence, if given orally to an
officer in charge of a police station shall be reduced to writing by him or under his
direction and be read over to the informant.
(2) Every information shall be entered in a book to be kept by that officer, who shall
append to such entry the date and hour on which that information was given, and
whether given in writing or reduced to writing as aforesaid shall be signed by the
person giving it.
(3)(a) Information given by a person relating to the commission of an offence to a
police officer, who at the time of receiving the information is not in a police station
shall be deemed to be received at a police station
(b) A police officer receiving such information under paragraph (a) where
practicable shall record or cause to be recorded the name and address of the
informant, the date and time of the receipt of such information, and shall convey such
information to an officer in charge od a police station of any police officer whose duty
is to receive such information.
(c) Such information shall be reduced to writing and entered in a book in

Section 107A Report on status of investigation

Section 120 Report of police office

Arrest
Arrest
An arrest is the deprivation of a persons liberty by lawful
authority to compel that persons appearance to answer a
criminal charge or to comply with a judgement of a court.
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.

A
R
R
E
S
T

An arrest may be made with or without warrant of

An arrest may be made with or without warrant of
arrest depending on whether the offence committed
arrest depending on whether the offence committed
is seizable or non-seizable.
is seizable or non-seizable.
A warrant of arrest is an order issued by a magistrate.
A warrant of arrest is an order issued by a magistrate.
It is ordinarily directed to a police officer directing
It is ordinarily directed to a police officer directing
such officer to arrest the person.
such officer to arrest the person.
A police officer who executes a warrant must bring
A police officer who executes a warrant must bring
along the original sealed warrant, notify the person to
along the original sealed warrant, notify the person to
be arrested the substance of the warrant, and, if
be arrested the substance of the warrant, and, if
required, show the person the warrant or a copy.
required, show the person the warrant or a copy.
However, where the issuing magistrate by an
However, where the issuing magistrate by an
indorsement on the warrant authorized the police
indorsement on the warrant authorized the police
officer to release on bail the person arrested, such
officer to release on bail the person arrested, such
person, if he or she accepts the bail, will appear in
person, if he or she accepts the bail, will appear in
court on the date specified in the bailment.
court on the date specified in the bailment.

 Under Criminal Procedure Code, there are

five categories of persons who may arrest
without a warrant:
1. Any police officer (s.23)
2. Any penghulu (s.23)
3. Any private person (s.27)
4. A magistrate (s.30, s.31)
5. A justice of peace (s.30)

 A police officer or penghulu may arrest without warrant a

person in any of the circumstances listed in Section 23.
S.23 does not limit the power of the police officer or
penghulu to arrest without warrant under any other
written law.
Generally, a police officer or a penghulu may arrest
without warrant only in seizable cases, such officer or
penghulu may arrest without a warrant a person who
commits a non-seizable offence in the presence of the
officer or penghulu and when requested to give his or her
name and address, either:
refuses
gives name and address reasonably believed to be false
gives an address not within Malaysia

 Under Section 27, any private person may arrest a

person who commits a non-bailable and seizable offence
or who has been proclaimed under s.44 as absconding or
hiding to avoid a warrant of arrest from being executed.
Section 30 empowers a magistrate or a Justice of the
Peace to arrest or authorizes the arrest of a person who
has committed an offence in his or her presence.
Section 31 further empowers a magistrate (but not
Justice of the Peace) to arrest or authorizes the arrest of
his or her presence a person for whose arrest he is
competent to issue a warrant.

An arrest to be lawful must comply with the

requirements and be justified by the circumstances set
out in Criminal Procedure Code.

 Issue
Whether the arrest of Ali and Abu by the police
officers is lawful?
Ali and Abu are both fresh graduates without any criminal
records. One day, they were surrounded by police officers and
had been caught by the police officers in-charge and was not
been inform what are the grounds of arrest.
However 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.

But, any person who has been accused or connected with or suspected of
committing an offence may be arrested by police. Where a seizable offence
e.g. murder, robbery or theft is suspected to have been committed, a police
officer may arrest the offender with or without warrant or order from the
Public Prosecutor in the course of investigation.
Moreover, a police officer or penghulu may arrest without warrant a
person in any of the circumstances listed in Section 23. Section 23 does not
limit the power of the police officer or penghulu to arrest without warrant
under any other written law. Generally, a police officer may arrest a person
without warrant in seizable cases.
Therefore, the arrest of Ali and Abu by police officers is lawful.

ISSUE
Whether the police officers may arrest
Ali and Abu without informing the
grounds of arrest?
In the moment of panic, Ali and Abu at the
spur of the moment tried to escape from the
reach of the police but failed. However, when
arrested they were not informed on the
grounds of arrest.

RULES
-Article 5(1) of Federal Constitution provides
that no person shall be denied of his personal
liberty unless the law allows it to be.
-Article 5(3) of the Federal Constitution
states that where a person is arrested he
shall be informed as soon as may be of the
grounds of his arrest and shall be allowed to
consult and defended by a legal practitioner
of his choice.

-Section

19(1) of Criminal Procedure

Code provides that the person
arrested shall not be subjected to
more restraint than is necessary to
prevent his escape.

-Section 28A of Criminal Procedure Code

supplements and amplifies Article 5(3).
Sec 28(A)(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

(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

(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
overheard.
(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) or the consultation
under subsection (4) has been made.
(7) The police officer shall provide reasonable facilities
for the communication and consultation under this section

(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 not be delayed.

(9) Subsection (8) shall only apply upon authorization by a police

officer not below the rank of Deputy Superintendent 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 the conditions specified under subsection (8) have
ceased to apply where the person arrested is still under detention
under this section or under section 117.

APPLICATION
Article 5(3) of the Federal Constitution states that
where a person is arrested he shall be informed as
soon as may be of the grounds of his arrest and shall
be allowed to consult and defended by a legal
practitioner of his choice.
Ali and Abu were not informed what the grounds of
arrest are and caught by the police officers.
Hence, Ali and Abu need to be informed on the
grounds of arrest.

Section 28A(1) provides that 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
Ali and Abu were not informed by the police officer
making the arrest what the grounds of arrest are.
Hence, Ali and Abu shall be informed of the grounds
of arrest.

Conclusion
The police officers may not
arrest Ali and Abu without
informing the grounds of arrest.

Search & Seizure- Body Search

Issue: Whether the police officers have the authority
to proceed body search before or after arrest?
During the arrest assuming the police performs a
body search on Ali and Abu, is it lawful for police
officers to put their hands on Ali and Abu before or
after the arrest.

S17 of CPC illustrates the body search before arrest as

whenever a search for anything is or is about to be lawfully
made in any place in respect of any offence all persons
found therein may be lawfully detained until the search is
completed, and they may, if the thing sought is in its nature
capable of being concealed upon the person, be searched
for it by or in the presence of a Magistrate or Justice of the
Peace or a police officer not below the rank of Inspector.

S20 of CPC deals with body search after arrest whereby a

person arrested:
-under a warrant of arrest which does not provide for the
tasking of bail, or
-under a warrant of arrest which provide for the tasking of
bail but the person arrested cannot furnish bail, or
-without a warrant of arrest
may be searched and all articles other than necessary
wearing apparel found on them will be placed in a safe
custody. However, any offensive weapon found on the
person upon his or her arrest may be taken away.

Hence, with the provisions form Section 17 and

Section 20, police officers are allowed to proceed
body search on the suspect either before or after
the arrestment.

Issue : Whether Ali and Abu has the right to

remain
silent?
S. 112 Examination of witness by Police
All statements from anyone who is acquainted with the facts of
circumstances of the case under investigation are made and recorded by a
police officer of the rank of sergeant or above. (Recording Officer/OR).
Before recording a statement,
Language used must be understood by the person being questioned.
Such person must be informed that
He or she must answer all questions concerning the case except any
question the answer to which would have tendency to expose him or
her to a criminal charge, or penalty or forfeiture.
He or she is legally bound to state the truth.
After recording, the content of the recording will be read back to the person
being questioned. Such recording is subjected to correction before he or
she affixed his or her signature or thumbnail print.

S.113 Admission of Statements in Evidence

Any statement made by an accused person, at any time, to or in the hearing of any
police officer of or above the rank of inspector, is admissible as evidence at the
persons trial subject to the condition below :
Statement must be made voluntarily without any inducement, threat or promise
Where the statement is made by an accused person after his or her arrest, a
caution such as that specified in S.113 or words to the same effect must have
been administered to the accused before he or she made the statement or as
Right to
soon as possible afterward.
Un
Kin ite
gd d
om

Silence

Malaysia

po
a
g
Sin re

The accused has the right to silence during questioning time.

However, Malaysia is moving towards removal of such right and cautioned
statements for several factors as such :
Cautioned statements delay trials.
Admission in the absence of defence council creates a negative image of police.
Slipshod police investigation

All statements made during police investigation

is inadmissible except:
Any statement made by a witness may be used,
after the accused is given a copy of it, to impeach
the credit of witness.
A statement made by the accused may be admitted
in evidence to support his or her defence.
The statement may be used as evidence in the case
where a person is charged with any offence
regarding the making or content of any statement.

After the preliminary investigations, the investigation

papers are sent to Attorney Generals Chambers.
If the Deputy Public Prosecutors is satisfied that the
evidence is sufficient to prosecute a person, a charge
will be drafted to grant authority to prosecute such
person.

Conclusion
In this case, Ali and Abu have the
right to remain silent. However, the
judge may draw inference from
their refusal to answer during
police investigation and this failure
can be a part of the evidence
against the accused.

Issue : Whether the accused have the right to be informed of

the ground of arrest?
The charge must be conveyed to the accused with clarity and
certainty.

Whats in a
charge?
Provision providing
the Punishment

S.152(
1)
Time, Date, Place of
Offence
Offence

Provision of law under

which the accused is
prosecuted

S.153(
1)

S.152(4
)

The general rule is that each charge must disclose only one offence and every
charge must be tried separately. However, the joinder of charges and trials
maybe permitted.

What if the particulars described still do not give sufficient notice

of the offences.
S.154
The prosecution is required to set out the particulars of manner in which the alleged
offence was committed.

General rule : each charge must disclose only one offence and every charge must
tried separately.
However, the joinder of charges and trials maybe permitted.

However, the charge may be amended by the prosecution or the court

anytime before judgment.

Art. 5(3) of Federal Constitution

Where a person is arrested he shall be informed as soon as may be of
the grounds of his arrest and shall be allowed to consult and be defended
by a legal practitioner of his choice.

S.28A of Criminal Procedure Code further supplements and amplifies Art.5(3) of

Federal Constitution.

S.28A(8) :However, these requirements do not apply where the police

officer reasonably believes that :
Compliance with any of these requirements is likely to result
in :
An accomplice of the person arrested taking steps to avoid
arrest
The concealment or destruction of evidence or the
intimidation of witness
Charge must be informed to Ali and Abu on the ground they are
accusedregard
of under
Art.5(3)
ofof
Federal
Constitution.
Having
to the
safety
other persons
Every essential particulars must be stated in the charge, inter
alia offence, time, date and place of the alleged offence,
Conclusion
provision of law which the accused is prosecuted as well as the
:
punishment under Sections 152 and 153.
Ali and Abu can lawfully communicate with their counsel under
S.28A(3) of Criminal Procedure Code unless the police officer
reasonably believes that such act will lead to any situation as

Bail
Section 387 of CPC provides the bailable
offences while Section 388 of CPC states
the non-bailable offences.

S387 provides that when any person other than a person

accused of a non-bailable offence is arrested or detained
without warrant by a police officer or appears or is brought
before a Court and is prepared at any time while in the
custody of the officer or at any stage of the proceedings
before the Court to give bail, that person shall be released
on bail by any police officer in charge of a police station or
by any police officer not under the rank of Corporal or by
that Court.
The police officer or the Court, if he or it thinks fit, may
instead of taking bail from that person, discharge him on
his executing a bond without sureties for his appearance as
hereinafter provided.

S388 states that when any person accused of any nonbailable offence is arrested or detained without warrant by a
police officer or appears or is brought before a Court, he
may be released on bail by the officer in charge of the
Police District or by that Court, but he shall not be released
if there appears reasonable grounds for believing that he
has been guilty of an offence punishable with death or
imprisonment for life.
Provided that the Court may direct that any person under
the age of sixteen years or any woman or any sic or infirm
person accused of such offence be released on bail.

However, if it appears to such officer or Court at any

stage of the investigation, inquiry or trial, as the case
may be, that there are no reasonable grounds for
believing that the accused has committed a non-bailable
offence, but there are sufficient grounds forfurther
inquiry into his guilt, the accused shall, pending such
inquiry, be released on bail, or, at the discretion of that
officer or Court, on the execution by him of a bond
without sureties for his appearance as hereafter
provided.

Hence, the question of bail depends on

the circumstances provided as Section
387 and Section 388 of CPC illustrated
the situation of bailable and non-bailable
offences.

Conclusion
The arrest of Ali and Abu by police officers is lawful
The police officers may not arrest Ali and Abu
without informing the grounds of arrest.
Police officers are allowed to proceed body search
on the suspect either before or after the
arrestment.
The question of bail depends on the circumstances
provided as Section 387 and Section 388 of CPC
illustrated the situation of bailable and nonbailable offences.