Professional Documents
Culture Documents
Malaysia Legal System (Criminal Proceeding)
Malaysia Legal System (Criminal Proceeding)
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
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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
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
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
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
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.
Conclusion
The police officers may not
arrest Ali and Abu without
informing the grounds of arrest.
Silence
Malaysia
po
a
g
Sin re
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.
Whats in a
charge?
Provision providing
the Punishment
S.152(
1)
Time, Date, Place of
Offence
Offence
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.
General rule : each charge must disclose only one offence and every charge must
tried separately.
However, the joinder of charges and trials maybe permitted.
Bail
Section 387 of CPC provides the bailable
offences while Section 388 of CPC states
the non-bailable offences.
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.
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.