PART 2

Rights of Arrested Person

(i) Right to be brought before magistrate (s.28 CPC & A.5(4) FC)

(ii) Right to be informed of grounds of arrest (s.28A(1) & A.5(3))

(iii) Right to counsel (s.28A(2)(b) & A.5(3))

(iv) Right to silence & privilege against self-incrimination.

1. Right to be Brought before a Magistrate within 24hrs

A.5(4) FC

An arrested person must be produced before a Magistrate

without unreasonable delay, and in any case within 24 hours of
arrest.

After 24 hrs, the arrested person cannot be detained any

further without the Magistrate's authority.

Exceptions:
(i) Not applicable to the arrest/detention of any person under the
existing law relating to restricted residence.
(ii) In its application to a non-citizen who is arrested/detained under
the law relating to immigration, within 24hrs read as within 14 days.
(iii) In the case of an arrest for an offence which is triable by a Syariah
court, magistrate shall be construed as including a judge of a Syariah
court.
S.28 CPC

A police officer making an arrest without a warrant

Shall without unnecessary delay take/send the person arrested

before a Magistrate. (subject to the provisions as to bail or
previous release)
- take/send physically- not constructive e.g. by letter/phone
- Magistrate also must presence physically

The arrested person cannot be detained for a longer period

than under all circumstances of the case is reasonable

and that period shall not exceed 24 hrs. (except with a special
order of a Magistrate under s.117)

Kwan Hung Cheong v Inspector Yusof Haji Othman [2009] 3 MLJ

263
Any detention beyond 24 hrs must be subjected to judicial
scrutiny pursuant to s.117 CPC to ensure a proper check and
balance. (remand order)

S.117 - Procedure where investigation cannot be completed

within twenty-four hours as fixed by S.28
- If there are grounds for believing that the accusation or
information is well founded
- the police officer making the investigation (IO) shall
- immediately transmit to a Magistrate a copy of the entries in
the diary relating to the case (investigation diary) &
- at the same time produce the accused before the
Magistrate.
S.117(2): The Magistrate may (whether he has/has no
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 14 years
-not more than 4 days on the 1st application
-not more than 3 days on the 2nd application

(b) if the offence which is being investigated is punishable with

death/ imprisonment of 14 years/more
-not more than 7 days on the 1st application
-not more than 7 days on the 2nd application

S.117
- Exception to s.28
- Power of court not the police

Maja anak Kus [1985] 1 MLJ 311

Ramli bin Salleh v Inspektor Yahya bin Hashim [1973] 1 MLJ 54
Hashim bin Saud
Re Detention of R Sivarasa
KC Vohrah J explained the rationale for such limitation upon
the police power of arrest.

'It will be noted that s.28 and 117 have been inserted into the
CPC for a good reason, so that the detention by the police of
a person beyond 24 hours after his arrest is not as a result of an
executive act but as a result of a judicial decision in
consonance with A.5(4) of the FC.

Ramli bin Salleh v Inspector Yahya bin Hashim

According to Syed Agil Barakbah J, judicial discretion to order
the remand of the arrested person under s.117 of the CPC
should be exercised sparingly, and among other factors to be
taken into consideration before making such order are; the
seriousness of the offence, and whether a shorter period would
be sufficient to enable the police to complete investigation.
Computation of 24 hrs

Commences from the time the suspect is arrested and ends

when he leaves to appear before the magistrate.

Although s.28(3) exclude the time of journey, it is incumbent

on the magistrate to see that the time taken for the journey is a
reasonable. Chong Fook Kam v Shaaban

Problem if the accused was arrested on a weekly holiday and

the following day is a weekly holiday as well.

e.g. A is arrested in Penang at 5pm on Saturday.

The computation begins at 5pm Saturday or at 12.01am

Monday?
There are 2 views:

1st View: According to s.54(1)(b) of the Interpretation Acts 1948

& 1967 if the last day is a weekly holiday/public holiday (called
excluded day), the period shall exclude the next following day
which is not an excluded day.

S.54(1)(c) further provides - if that day happens to be an

excluded day, the proceedings shall ben considered as
done/taken in due time as if it is done/taken on the next
following day which is not an excluded day.

Applying this, it will be seen that Saturday afternoons & Sundays

being weekly holidays are excluded days within the meaning of
the Act. Hence the computation would begin on the next
following day which is not an excluded day, which is 12.01am
Monday.
2nd View: A.5 provides for fundamental liberties and should be
strictly construed. Hence, when A.5(4) states 24hrs it should be
construed as 24hrs.

Furthermore, the accused need to brought before a Magistrate

not a Magistrates Court. He can always be brought outside
office hours or at home.

S.54(1)(d) also stated where any act is allowed to be done

within anytime not exceeding 6 days, excluded days shall not
be reckoned in the computation.

Hence the computation would begin at 5pm Saturday

 Even though it appears that there are some safeguards
under S.117 of the CPC, in practice it is a totally different
scenario altogether. For instance there is what is called 'chain-
smoking remand order', where the arrested person is taken to
one Magistrate for 7 days, then to a different Magistrate for
another 7 days and it continues like that.

The case of Dasthigeer Mohamed Ismail v Kerajaan

Malaysia is an illustration of this abuse of the court process.

Abdul Wahab Patail J held that the proper way to avoid such
abuse is by the Courts applying s.117 strictly and exercising its
discretion to remand under S.117 not solely by the demands of
convenience of the investigative and prosecution authorities,
but by balancing such needs against the fact that any remand
order is a restriction of a fundamental liberty against a person
who has not been convicted of a offence.
2. Right to be Informed of grounds of arrest

A.5(3)FC: An arrested person must be informed as soon as

may be of the grounds of his arrest.

S.28A(1)- A person arrested without a warrant must be

informed as soon as may be of the grounds of his arrest by the
police officer making the arrest

Abdul Rahman v Tan Jo Koh [1968] 1 MLJ 205

The Federal Court referred to and approved the principle
enunciated in Christie v Leachinsky, where the English House of
Lords held that a person arrested on suspicion of committing an
offence, is entitled to immediately know the reason for his
arrest. It was also held that if the reason was withheld, the arrest
and detention would amount to false imprisonment, until the
time he was told the reason.
Aminah v Superintendent of Prison, Pengkalan Chepa Kelantan
[1968] 1 MLJ 92
Assa Singh v Menteri Besar Johor [1969] 2 MLJ 30

- May be informed orally

Re PE Long @ Jimmy [1976] 2MLJ 133

The justification for such right is to ensure that the accused

know the reason for his arrest & have sufficient information in
order to enable him to defend himself at the police station.

Such aright is also important for an effective right to counsel.

This right is in reality an illusion and offers no real safeguard to

the accused person. If at all, it is only useful in bringing a civil
claim against the arresting officer for wrongful arrest/false
imprisonment.
3. Right to Counsel

A.5(3) FC: An arrested person must be allowed to consult and

be defended by a legal practitioner of his choice.

S.28A(2)(b): A police officer shall, before commencing any

form of questioning/recording of any statement from the person
arrested, inform the person that he may -
-communicate/attempt to communicate; &
- consult with a legal practitioner of his choice.

S.28A(3): If the person arrested wishes to communicate/attempt

to communicate and consult with a legal practitioner of his
choice, the police officer must, as soon as may be, allow the
arrested person to do so
Consultation
S.28A(4): If 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.

S.28A(5): The consultation shall be within the sight of a police

officer and in circumstances, in so far as practicable, where
their communication will not be overheard.

S.28A(7): The police officer shall provide reasonable facilities

for the communication & consultation under this section and all
such facilities provided shall be free of charge.
Exception:

S.28A(8): Not applicable 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/destruction of evidence/ the
intimidation of a witness; or

(b)having regard to the safety of other persons the

questioning/recording of any statement is so urgent that it
should not be delayed.

oS.28A(9): Must be authorize by a police officer not below the

rank of Deputy Superintendent of Police.
 Legal representation in remand proceedings (s.117)

- May be given, unless the police can discharge the onus of

satisfying the magistrate that to allow the arrested person to
exercise that right would result in undue interference with the
course of investigation
Saul Hamid [1987] 2 MLJ 736
Balakrishna v Emperor AIR 1931 Lah 99

- Hence the right to consult a lawyer begins from the moment of

arrest. However, that right cannot be exercised immediately
after arrest if it impedes police investigation/the administration
of justice.

Hashim bin Saud v Yahaya bin Hashim [1977] 2 MLJ 116, FC

Ooi Ah Phuan v Officer in Charge, Criminal Investigation s,
Kedah/Perlis [1975] 2 MLJ 198, FC
The rationale for such right is to ensure that an arrested person
may properly defend himself against his arrest and not merely
when he is charged in court.

Such rationale is part of the principle of due process and to a

certain extent stems from and is linked to privilege against self-
incrimination.

This is to ensure that the authorities do not resort to

questionable means against the suspect during the course of
their investigations, or even if they do, the suspect would be
able to protect himself against it.

The reality, however, is very different. Even if this right is

guaranteed by the Constitution, it does not operate
automatically. That right cannot be exercised immediately after
arrest if it impedes police investigation. Hence, the right of an
arrested person ranks lower than that of the police's duty to
investigate the alleged crime
4. Right of Silence & Privilege against self-incrimination

The right of silence & privilege against self-incrimination is

inextricably linked with the presumption of innocence.

On the other hand, privilege against self-incrimination is

supposed to protect a person against laws which compel him
to do certain things, such as to supply certain information/to
answer questions, on pain of conviction and punishment for
failure to do so.

The right to silence, merely restricts the extent to which

adverse inferences may be drawn from a failure to answer
questions/to supply information.
 This right of the accused was emphasized in strong terms by
Lord Diplock in Hall v R.

'It is a clear and widely known principle of the common law in

Jamaica, as in England, that a person is entitled to refrain from
answering a question put to him for the purpose of discovering
whether he has committed a criminal offence. A fortiori he is
under no obligation to comment when he is informed that
someone else has accused him of an offence. It may be that in
very exceptional circumstances an inference may be drawn
from a failure to give an explanation or a disclaimer, but in their
Lordships' view silence alone on being informed by a police
officer that someone else had made an accusation against him
cannot give rise to an inference that the person to whom this
information is communicated accepts the truth of the
accusation.'
 In Malaysia, the right to remain silent has also been
incorporated in s.37A of the DDA1952 & s.113 CPC
Saubin Beatrice
B.T.H. Lee J endorsed and adopted the integrity of the principle
asserted by Lord Hewart CJ in the case of Reginald Francis
Naylor :
'We are of opinion that that was a misdirection. The case is really
a fortiori upon the case of WHITEHEAD, 21 Cr App R 23; [1929] 1
KB 991 where it was held: that it is not corroboration of
incriminating evidence that the accused did not deny the
charge or was silent about it. But it is well to add something
further.
When one looks at the words of the formula which must be
deliberately framed, it is quite obvious that they were intended to
convey and do convey to the prisoner the belief that he is not obliged
to say anything unless he desires to do so. Now if those words are really
to be construed in this sense, that, having heard them, an accused
person remains silent at his peril and may find it a strong point against
him at his trial that he did not say anything after being told he was not
obliged to say anything, one can only think that this form of words is
most unfortunate and misleading. We think that these words mean
what they say and that an accused person is quite entitled to say: 'I do
not wish to say anything except that I am innocent. The matter
becomes even stronger when one reflects that what was done here
was done on the advice of an able and experienced solicitor. It would
be strange if a point could properly be made against an accused
person if, acting on the advice of his solicitor and following the very
words of that which is said to him, he remains silent, that he did not
then and there disclose his defence.
Mohd Fahmi bin Hamzah
Augustine Paul J (as he then was) commented that:

'The requirement that the Court must be satisfied that a caution

was administered '...in the following words or words to the like
effect ...' is a statutory direction to the Court to ensure that the
prescribed caution has been administered. This means that
there must be evidence of the caution that was administered. In
the absence of such evidence the Court will not be able to rule
whether the prescribed caution or words to the like effect were
administered. Thus the actual words of the caution that was
administered must be adduced in evidence. This is significant as
the caution enshrines certain inbuilt rights like, for instance, the
right of silence. It is therefore important to ensure that these
rights have been properly communicated to an accused
person.'
Privilege against self-incrimination

Blunt v Park Lane Hotel Ltd

Goddard LJ:
It is a fundamental principle of the common law that, in civil and
criminal cases, a person is not obliged to answer any question or
produce any document if the answer of the document would
have a tendency to expose that person, either directly/
indirectly, to a criminal conviction, the imposition of a penalty or
the forfeiture of a estate.

A.14(3) (g) of the International Covenant on Civil and Political

Rights describes the privilege as the right 'not to be compelled
to testify against himself /to confess guilt'.
In the course of police investigation pursuant to S.112 of the
CPC, a police officer may examine any person who is supposed
to be acquainted with the facts and circumstances of a case,
and such person shall be bound to answer all questions that are
put to him by the said officer.

The person, however, may refuse to answer any question the

answer to which would have a tendency to expose him to a
criminal charge or penalty of forfeiture.

The privilege against self-incrimination is closely linked with the

right of silence. Its aim is to provide an accused person with
protection against improper compulsion by the authorities and
thus avoiding miscarriages of justice.
The right not to incriminate one's self is primarily concerned
with respecting the will of an accused person to remain silent
and presupposes that the prosecution in a criminal case seeks
to prove the case against the accused without having to resort
to evidence obtained through methods of coercion or
oppression in defiance of the will of the accused person.
There are at least 2 possible reasons to justify the support for
such a privilege in the local context.

(i) to reduce, if not eliminate, the unintentional conviction of the

innocent, which is a greater evil than the unintentional acquittal
of the guilty.

(ii) it would be an abuse of the power of the State to have

powers to compel, question individuals in order to obtain
evidence which helps the prosecution case against the
individuals..