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POLICE POWER
FIR – SECTION 107

SECTION 111 SECTION 117

SECTION 112
issue selalu keluar pyq :
 Fir not tendered
 Determine w/er police report = FIR? To require attendance of witness  Section 112(1) of CPC  Remand
If the police report triggers investigation, yes it is FIR IO – must be sergeant and above Power to examine person acquainted with fact circumstances
Section 108 of case….
Section 109  Case Sandra Margaret 1. Produce person to Magistrate
 Section 13 (1)(a) CPC public aware of crime is compelled to gv 2. Inv diary
S 111 (1) CPC info to police = that person falls within the phrase “person 3. Punishment
presumption under S 114(g) EA “police officer making an acquainted with facts and circumstances of the case” within S 4. 14days
investigation” 112 4 + 3 days
When police x tender FIR, can or cannot the court make “in writing” 5. Grounds for remand
inference under s114(g)? “a person acquainted with the investigation
S 112(&(3) MUST ANSWER & ANSWER THE TRUTH
Ans : only when there’s no FIR. Yes it will invite facts and circumstances of the a. Hasyim Saud case
 Section 112(2) - legally bound to answer 6. Cannot merely to complete
presumption under s114(g) case”
Proviso to S 112 (2) - allows right to refuse to answer
But if got FIR, np. investigation
incriminating question
S 111 (2) – refuse to attend = 7. Must be accused, not
 Section 112(3) - obligation to answer truthfully. potential witness
 Balachandran case Magistrate issue a warrant for
 backed up by Section 176 and 177 of the Penal Code
 Abd Razak case appearance

S 110 (1) Sergeant n above or

officer in charge of a police  Negative test
station may delegate to his The test w/er a person is legally bound to give information or to
subordinate officers do anything else : by asking whether the omission to do so
+ read together S 110 (3) must would be ‘illegal’ within the meaning of Section 43 of Penal
also be read together – cannot Code. Section 43 explains, a person is said to be “legally bound
delegate to exercise special to do” whatever is illegal in him to omit.
powers given under Section 111,  Section 112(4) of CPC - warn the person as to his obligation unde
112, 116 and 117. sub 2 and sub 3
 Yusuf b Omar v PP
 Uthayakumar a/l  S 112 (5) CPC – reduce statement in writing and read back to
Ponnusamy v PP the person examined
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2. MANNER OF ARREST 1. GROUNDS OF ARREST

ARREST BY POLICE – Whether arrest lawful
 Section 15 (1) (2) (3)  Section 23 (1)(a) CPC -police may without warrant arrest any person….
 3 grounds - there must be either a reasonable complaint made, or credible info received, or
reasonable suspicion for the police to effect an arrest against the person.

2. ACTUAL ARREST VS CONSTRUCTIVE ARREST.  Polis Di Raja Malaysia v Keong Mei Cheng Audrey
there must always be some lawful basis for an arrest and detention including a clear nexus between
 PP v Lee hock Boon - constructive arrest is not an arrest. the suspect and offence.
 Shaaban v Chong Fook Kam - interpretation of the word “arrest” can be referred to the case of
 Pp v Johari abdul kadin - ‘Constructive arrest’
court look into surrounding circumstances
3 questions
Is there is some sort of restrained imposed on the movement of the person
or if the person is in a state of being watched or guarded by police in order to prevent the person from escape REASONABLE COMPLAINT CREDIBLE INFORMATION
or if from surrounding circumstances, it can be implied that the person’s personal liberty has been restrained
Section 2 CPC defines complaint 2 questions to consider :
 distinguish an arrest from instruction to wait, inquiries and custody. 1. Does the police make arrest based on a credible
Yong Moi Sing, the court explained : a info that he knows
reasonable complaint can come in the 2. Or is the info derived from a credible spurce?
Instruction to wait Inquiries Custody form of FIR which was lodged by the
complainant. Hasyim bin Saud v Yahya -Credible info can come from a
source that had been previously proved to be reliable
Jayaraman & ors v PP 1982 2mlj 306 Shaaban & Anor v Chong Fook Kam Yong moi sing v kerajaan malaysia & the test : Tan Kay Teck 1957 MLJ 237 an
(riot at hindu temple) anor 2000 1 mlj 35 objective test is to determine whether a Chong Fook Kam – reliance cannot be made to vague
arrest did not occur when the police complaint is reasonable or not. assumptions
The issue before court is whether officer stops an individual to make Court highlighted that the word
compliance by any person to a request inquiries. And the court went on to custody to be distinguised from arrest
Yong Moi Sin – info is credible bcs I tleads to discovery
by a police officer not to leave a say an arrest only occurs if police
prescribed place constitutes states in term he’s arresting or he Court : a person may be in custody
submission to custody by that person uses force, if necessary to restrain without necessarily being arrested.
within the meaning of section 15 of individual from escaping. t/4 being in custody can never be
the Criminal Procedure Code. The equated with being arrested.
Federal Court held that they had not REASONABLE SUSPICION
Test to determine w/er or not
been arrested
custody took place : what would hv
happened if at the time he tried to What amount to reasonable suspicion can be seen in these cases :
run away. Could a person walk away
if he wished to do so? If can walk away i. In the matter of right of Tan Eng Hoe v AG
– not an arrest a reasonable man would have suspected the applicant being the offender in such circumstances
(having similar physical characteristics, stayed at same hotel)

ii. Shaaban bin Hussein & Ors v Chong Fook Kam

Why cstody =/ arrest

Shaaban case cakap kena ada ACTUAL

iii. Mahmood v Government of Malaysia (1974) 1 MLJ 103
arrest
Lake Garden case – police patrolling – 2.20am – heard scream of help of a woman – area where
SO IF NOT SURE IF THERE’S ACTUAL any reported robbery n rape took place – saw 2 men lari – police warned don’t run but ran
ARREST OR NOT, ALWAYS GO BACK TO instead – shot (+ s15 sub 2)
SHAABAN’S DEFINITION OF ARREST



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ARREST BY PRIVATE PERSON RIGHTS OF ARRESTED PERSON (additional lecture dr naz)

Section 27(1)
Elements (fulfill all) : non bailable, non seizable Section 28
Section 28A added in light of Art 5 Fed Consti Nevertheless the law tries to strike a balance between
offence, in his view accused under s28A and police investigation
(This provision explains the mode unlike art 5(3) FC only mentions the
right
“in his view” S28A (8) – the exceptions where sub 2 until sub 7
To what extent Sec 28A is important? SHALL NOT APPLY where
Sam Hong Choy (extended/liberal meaning)
Heard gun fire, heard someone shouting “tolong, 1. Inform ground of arrest as soon as may be (in the shortest
practicable time) (8)(a)(i) – accomplice taking steps to avoid
kejar perompak”, saw 2 men running past him. apprehension
Even he didn’t see what happen but there’s a close 2. Right to communicate, before commencing any form of
questions/recording statement, polis kena inform the person (8)(a)(ii) - open possibilities of concealment
proximity /fabrication/destruction of evidence
that he may communicate with relatives/[Link] of his
choice (8)(b) – urgency n safety
Metro (Golden Mile) PTe LTD (strict interpretation)
Must happen WITHIN HIS SIGHT 3. Police shall allow if the arrested person wishes so.
Police cannot say no S28A(9) - If police decides to invoke Section28A (8),
Case : Ooi Ah Phua must get authorization

ARREST BY MAGISTRATE S28A(10) –police must state the ground/justification

4. Obligation on police to alow reasonable time
5. In what way police can interfere, to invoke (8)
Section 30,31 CPC
Section 11 CPC – every person is bound to assist within sight only, but cannot overheard the conversation
6. No recording can take place before allowing the arrested person
magistrate n police demanding his aid (seizable
offences) with right under (2) an (4)
7. police to provide necessary facilities

SEARCH

ON PREMISE
ON PERSON
Without warrant
Sec 62 - elements
1. Stolen property
1. Pat down
2. Rank : inspector above
2. Intrusice Need prior 3. Credible info/reasonable ground
3. Intimate
authorization 4. Delay = removal of the evidence
4. Strip search
Observe the + sub 2 : list(case : Yong Moi Sin)
right rank + sub 3 : owner premise accompany police

Issues in Yong Moi Sin

To determine which one, see if the objective fits - Search list
- Presence of owner
Eg : nak cari phone – pat down je, no need intrusive If tak ada these two, non fatal, as long as satisfy the 4 elements

Another issue, satu warrant for one search only, not for multiple entry
Section 55 : power to restrict search warrant (which unit can search, not extend to other area
for instance – confinement of search area)
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INSTITUTION OF PROCEEDINGS BAIL

BAILABLE NON BAILABLE

S 128 : Mg takes cognisance
S 133 : Mg examine complainant To be given as of right. Not punishable with death/life imprisonment : usually give bail attached with condition
1A & 1B – power of DPP No condition can be attached
S 134 : Postpone If punished with death/life imprisonment :
S 135 : saman / waran tangkap (which one? See 1. Kid below 16 years
4th column of the schedule) 2. Woman
3. Sick people
S 136 : prima facie
Until this day, only in two cases accused dpt ikat jamin in murder case :
Balwant Singh (sick)
Samirah (cradle ceo case) – woman & kid below 16yo
S 47 : boleh ke Mg issue warrant of arrest instead
of summon for a summon case? SECURITY
Can but in 3 situations only (prove all) - Cannot use cash
1. Accused absconded - Must open special account
2. Acused disobey
3. urgency Section 404
- Accused jump bail
Court cannot straight away confiscate the security money
Must give opportunity to show cause and explain why the security $ shouldn’t be forfeited

See textbook page 325,326

court’s procedure relating to jump bail - Forfeiture of bail bond

illustration mami in tuto :

in a situation where ada 2 bailor for a rm10k bail

bailor A bagi rm5k
bailor B bagi rm5k

accused absconded
bailor A diligently urge/advise the accused to come forward
bailor B didn’t even remind the accused to appear

= court can forfeit rm5k from bailor B

Last issue : court’s acceptance towards the bailor

For example, if he’s an accomplice, or if he resides jauh from the court (cannot ensure his
attendance)

Cases : Mohan
Manickam – sufficiency of surety