PART 2

(3) Arrest Without

warrant by
Private Person Citizen Arrest

S.27(5)
S.27(1)
Offence related to
Seizable offence
property

Person whose property

was injured/user of
injured property
(i) S.27(1): ‘May’ arrest any person, ‘in his view’ commits
(i) a non-bailable & seizable offence; or
(ii) proclaimed under s.44 (warrant issued vs person absconded)

o ‘in his view’

(i) Strict interpretation - ‘in his sight’

India
Durga Singh [1963] 1 Cr LJ 827

Singapore
Metro (Golden Mile) Pte Ltd v (unreported)
Choor Singh J held that the offence of theft must have been
committed in the sight of the private person before the arrest
becomes lawful and that mere opinion is insufficient.
(ii) Liberal interpretation – ‘in his opinion’ & ‘in his presence’

India
Nazir v R AIR (1951) All 3
– not only ‘in his sight’ but also ‘in his presence’

Queen Empress v Potadu 11 M 48

- in his opinion

Malaysia
Sam Hong Choy [1999] 4 MLJ 433
- not only ‘in his sight’ but also ‘in his presence’
- going beyond mere opinion, must be certain
- cannot arrest on mere suspicion/information
Procedure
o without unnecessary delay take the arrestee to the nearest police
officer/police station. (S.27(1))
(because private person has no power to detain)
If there is a reason to
believe that the
arrestee

comes under s.23 committed a non-seizable

(seizable offence) offence & refuses to give
name & residence -dealt
under s.24. (s.27(3))

o If there is no reason to believe that he has committed an offence

he shall be at once released. (s.27(4))
(ii) S.27(5): Specific person

Person
whose (including his
servant/authorized
property person)
was
injured

• may arrest any person who commits an offence on/with

respect to their property

• can also detain him until

- he gives his name & address and satisfies such person that the
name & address so given are correct; or
- he can be delivered into the custody of a police officer
 (4) Arrest Without Warrant by
Magistrate

S.30
S.31
Seizable & Non-
seizable offence

Committed in his
Person whose arrest
presence & within
he is competent to
his local
issue warrant
jurisdiction
(i) S.30
o Any offence
o committed in the presence of Magistrate (physically)
o within the local limits of his jurisdiction

o Magistrate may
-himself arrest the offender; or
-authorize any person to arrest the offender

o Thereafter, Magistrate may also commit the offender to custody

(remand)

o A Magistrate who makes an arrest/authorizes it, should not try

any case to which he has personally interested (s.439)
(ii) S.31
o Magistrate may
-himself arrest; or
-authorize any person to arrest in his presence

o Any person whose arrest he is competent to issue warrant

(warrant case – column 4, 1st Schedule – not based on trial
jurisdiction)

[here no requirement that the offence be committed in the

Magistrate’s presence, only the arrest must be made in his
presence]
(5) Arrest Without warrant
by Justice of Peace (JP)

S.30
Seizable/Non-
seizable offence
S.30
o Any offence (seizable/non-seizable)
o committed in the presence of JP (physically)

o within the local limits of his jurisdiction

o JP may
-himself arrest the offender; or
-authorize any person to arrest the offender

o
 Arrest With
Warrant
Non-Seizable
Offence

Police

S.40(2): The Court issuing a

warrant may direct it to any
person/persons by name
not being police officers and
all/ any one/more of such
persons may execute the
same.
Warrant of Arrest (S.38- 50)

o Arresting officer must have the warrant in his possession .

o Warrant is an order in writing, signed & sealed by the court

authorising a police officer/a person to arrest & bring before the
court the person named in the warrant.

o S.38 CPC: Form of warrant. It remain inforce until cancelled by

court or executed.

o S.41 CPC: The police officer shall notify the substance thereof to
the person arrested. The person sought to be arrested has a right
to demand that the warrant (or its copy) and its content be shown
to him.

o
Kuan Kwai Choi v Ak Zaidi bin Pg Metali (1993) 2 MLJ 207
If a court is not sitting, or a magistrate is not available, at the time
when the arrest takes place, I would regard this as a necessary
delay. But I cannot find that there was a necessary delay in this
case. The defendant was arrested shortly after 10pm and the
magistrate should have been available for some 6 hours thereafter.
No effort, however, was made to take her in front of a magistrate
during that time

S 48 (1): Warrants of arrest issued by a Magistrate’s Court may be

served or executed as the case may be in any part of Malaysia.
F. Power of Arrestor

❑ Power to any place.

S 16(2): If a police officer is not allowed free ingress

- he may enter into the place and break open any outer/ inner door
or window of that place in order to effect an entrance
- in any case in which a warrant may issue but cannot be obtained
without affording the person to be arrested an opportunity to
escape
- after notification of his authority and purpose and demand of
admittance was duly made

❑ Power to search (body & premise) & to seize property.

[S.16, 17, 20, 21, 22]
G. Release of person arrested

❑ S.29: No person who has been arrested by a police officer

(with/without warrant) shall be released
- except on his own bond/on bail (if bailable offence); or
- under the order in writing of a Magistrate/(during remand)
- under the order in writing of a police officer not below the rank of
Inspector.

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

263; Punaneswaran a/l Kesavan [2007] 3 MLJ 203
H. Rights of Arrested Person
Right to be
informed of
grounds of arrest
(A.5(3) & s.28A(1))

Right to silence &

privilege against
self-incrimination.
(s.112)

Right to communicate
& consult a counsel
(A.5(3) & s.28A(3))
➢ These rights are only available for ‘Arrested person’

Suruhanjaya Pencegahan Rasuah Malaysia v Latheefa Beebi

Koya [2017] MLJU 1184
Art.5(3) speaks of a right of an arrested person to consult & to be
defended by a legal practitioner of his choice. The respondents'
client is the complainant against a suspect in the commission of a
corruption offence under s.16(b) of the Act. He is a witness and not
a suspect / an arrested person / a person 'unlawfully detained'. So
Art.5(2) / 5(3) of the Constitution does not confer any constitutional
right on the complainant to be represented by counsel during the
recording of his statement as a witness. Learned counsel's
contention that their client has a constitutional right under Art.5 to
be represented by counsel is just a bare assertion. Not a single
authority is cited to us to back up such contention.
[1] Right to be Informed of Grounds of Arrest

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

be of the grounds of his arrest.

o S.28A(1) CPC: 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 [1968] 1 MLJ 205, FC

The FC 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, FC

➢ May be
Re PE Long @ Jimmy [1976] 2MLJ 133

➢ The justification for such right is to ensure that the accused have
sufficient information in order to enable him to defend himself
at the police station.

➢ However, this right is in reality an illusion and offers no real

safeguard to the accused person.
[2] Right to Communicate with Relative & Friend

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

attempt to communicate with the person referred to para (a) (i.e.
relative/friend), the police officer must, as soon as may be, allow
the arrested person to do so.

➢ S.28A(2)(a): the person arrested may communicate/ attempt to

communicate, with a relative/friend to inform of his
whereabouts

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

for the communication …under this section and all such
facilities provided shall be free of charge.
Right to be Informed of Right to Communicate with Relative &
Friend

➢ S.28A(2)(a): 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, with a
relative/friend to inform of his whereabouts…

Right of relatives & friends to visit the arrested person

A prisoner shall be entitled to such visits from his relatives, friends

and advocates as are consistent with the proper discipline of the
lockup.
Exceptions:
❑ S.28A(8): The right 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.

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

rank of Deputy Superintendent of Police.

❑ S.28A(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.
[3] Right to Communicate & Consult with a Lawyer

➢ Before amendment to s.28, there is already right to legal

representation in FC. (but no right to be informed)

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

defended by a legal practitioner of his choice.

Lee Mau Seng v Minister of Home Affairs, Singapore (1973) 1 MLJ

54
Dato’ Sri Khalid Abu Bakar v N Indera a/p Nalathambi
(Administrator of Estate of Kugan a/l Ananthan) (2015) 1 MLJ 353

The right is only to choice of counsel who is willing and able to act.
It does not confer a right to counsel in every case, that is to say, it
does not mean that an accused person cannot be tried unless he is
represented by counsel.
Hashim bin Saud v Yahaya bin Hashim [1977] 2 MLJ 116, FC
The right of an arrested person to choose a legal practitioner of his
choice can be divided into 2 parts.

A.5(3) prescribes that an arrested person shall be informed of the

grounds of his arrest but does not prescribe that the arrested
person shall be informed of his right to consult and be defended
by a legal practitioner of his choice. It merely prescribes that he
shall be allowed. (to consult & be defended by a legal
practitioner of his choice)

Unlike in America, therefore there is no duty on the part of the

police to inform the arrested person of his right to counsel. It may
be that Malaysians are more aware of their constitutional rights
than Americans and are expected to exercise it the moment they
are arrested without having to be reminded of their rights.
Right to communicate

➢ S.28A(3): If the person arrested wishes to

communicate/attempt to communicate… with the persons
referred to in paragraphs (2)(b) (i.e. a legal practitioner of his
choice), the police officer must, as soon as may be, allow the
arrested person to do so.

➢ S.28A(2)(b): the arrested person may communicate/attempt to

communicate & consult with a legal practitioner of his choice.

➢ 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(6): The police shall defer recording any statement for a
reasonable period until the arrested person consults a lawyer.

➢ 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. (sound proof)

➢ 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.
Exceptions: (same as relatives & friends)
❑ S.28A(8): The right 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.

❑ S.28A(9):

❑ S.28A(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.
Fadiah Nadwa Fikri v. Konstable Fauziah Mustafa [2015] 10 CLJ
259
The court refers to s. 28A(8) which clearly provides that the
requirements under s. 28A(2), (3), (4), (5), (6) and (7) may be
suspended. But s. 28A(8) is to be read with s. 28A(9), (10) and (11).
The key words in s. 28A(8) is "reasonably believes". This court
finds that the reasons advanced in his witness statement and
during cross-examination by SD6 for invoking s. 28A(8) to be
unreasonable in the circumstances and factual situation of the
candlelight vigil outside the BPS….
Right to be Informed of Right to Communicate & Consult with
a Lawyer

➢ 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 and consult with a
legal practitioner of his choice.

Mohd Syafiq Dollah lwn Sarjan Mejar Abdul Manaf Jusoh [2013]
2 CLJ 1096
➢When

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

communicate & consult with a legal practitioner of his choice, the
police officer must, as soon as may be, allow the arrested person to
do so.

Mah Chuen Lim [1975] 1 LNS 132. Syed Othman J said:

"... the right is to be given 'with all convenient speed'. What is
'convenient speed' would depend on the circumstances of each
particular case.”

Ramli Bin Salleh v. Inspector Yahya Bin Hashim [1972] 1 LNS 121.
Syed Agil Barakbah J said:
"that right should be subject to certain legitimate restrictions
which necessarily arise in the course of police investigation... such
restrictions may relate to time and convenience of both the police
and the person seeking the interview and should not be subject to
any abuse by either party."
Ooi Ah Phuan v Officer in Charge, Criminal Investigation s,
Kedah/Perlis [1975] 2 MLJ 198, FC,
Suffian L.P. said -
"......... that the right of an arrested person to consult his lawyer
begins from the moment of arrest…but I am of the opinion that that
right cannot be exercised immediately after arrest. A balance has
to be struck between the right of the arrested person to consult his
lawyer on the one hand and on the other the duty of the police to
protect the public from wrongdoers by apprehending them and
collecting whatever evidence exists against them. The interest of
justice is as important as the interest of arrested persons and it is
well known that criminal elements are deterred most of all by
certainty of detection, arrest, and punishment.”

Hashim Yeop A Sani J said:

"the right... should be reconciled with the duty of the police to
investigate into the offence and such right should not be exercised
to the detriment of such investigation."
 Is the arrested person entitled to legal representation
during remand proceedings?

S.117 (5)
- Magistrate shall allow representation to be made… through a
counsel of his choice.

Saul Hamid [1987] 2 MLJ 736 (Revision case) Edgar Joseph

An arrested person had the right to be represented by Counsel in
remand proceedings under s.117 before a judicial officer

Balakrishna v Emperor AIR 1931 Lah 99

▪The lawyer must be allowed access to person arrested (his client)

at the lock-up.

Rules 1953

The arrested person/the detainee has the right to be visited by his

lawyer so far as is necessary to prepare for his defence.
[4] Right to be Brought before a Magistrate within 24hrs

(i) 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”.
(ii) S.28 CPC

▪ A police officer making an arrest without a warrant

▪ Shall without unnecessary delay take/send the person arrested

before a Magistrate.
- take/send must be 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 [2009] 3 MLJ 263

(iii) S. CPC

▪ A police officer/other person executing warrant of arrest

▪ Shall without unnecessary delay bring the person arrested

before the Court before which he is required by law to produce
such person.
Right to be released on bail (pending investigation)

- Police must release a person whom has been arrested/detained

without warrant on bail unless it is a non- bailable offence (s.387 –
Bailable)

- Bailable: should be released on bail as of right/mandatory

Yusof bin Mohamed [1995] 3 MLJ 66
Mohd Azran bin Rahmat v (2016) 4 MLJ 337,
CA
However, this right to bail is subject to the power of the M to
remand a person in custody pending completion of police
investigation pursuant to s.117.

Maja anak Kus [1985] HC

…after a person is arrested without warrant, the police, in the
absence of a special order of a magistrate, are not authorised to
detain the person arrested in custody beyond 24 hours. If the
police are unable to complete investigation within that period, and,
as here, the offence concerned is a bailable offence, the person
arrested must be given bail, if he is prepared to furnish bail (s
387(i)), if the provisions of s 117 are not invoked. On the other
hand, if the police, after 24 hours of the arrest, resort to the special
provisions of s 117, the magistrate before whom the person
arrested is brought may, if deemed appropriate, authorise
detention for a term not exceeding 15 days (s 117(ii), after
complying with s 117(iii)).
Exception: S.117 CPC(remand application)

▪ Any detention beyond 24 hrs must be subjected to judicial

scrutiny pursuant to s.117 to ensure a proper check & balance.

▪ S.117 - Procedure where investigation cannot be completed

within 24 hrs as fixed by S.28
- If there are grounds for believing that the accusation/ information
is well founded
- the police officer making the investigation (IO) shall
(i) immediately transmit to a Magistrate a copy of the entries in the
diary relating to the case (investigation diary) &
(ii)
▪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:

Remand
Order

(a) (b)
offence being investigated offence being investigated
punishable with punishable with
imprisonment of death / imprisonment of
less than 14 years 14 years/more

not more than 4 days

- 1st application
not more than 3 days
- 2nd application
▪ Remand: Power of court/Judicial Power not the police
Maja anak Kus [1985] 1 MLJ 311
Hashim bin Saud [1976] 1 LNS 40

Ramli bin Salleh v Inspector Yahya bin Hashim [1973] 1 MLJ 54

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 (carefully), 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.

KC Vohrah J explained the rationale for the limitation upon the

police power of arrest.
'It will be noted that s.28 & 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.
o Even though it appears that there are some safeguards under
S.117 of the CPC, in practice it is a totally different scenario
altogether.

o 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.

o 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.
[5] Right of Silence & Privilege against self-incrimination

❑ The right of silence & privilege against self-incrimination is

inextricably linked with the presumption of innocence.

❑ 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.

❑ S.112 CPC gives power to the police to interrogate the accused

and witnesses. Under s.112(2), the person interrogated MUST
answer questions asks by a police officer UNLESS
• Example of such a question would be:
Did you set fire to the house?

• This kind of question has the chance of exposing this person to

a criminal charge, and so, he would be under no obligation to
answer it.

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.‘
▪ This right of the accused was emphasized in strong terms by Lord
Diplock in Hall v R [1971] 1 All ER 322

'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/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 been incorporated in
s.113 CPC (before amendment) and

“It is my duty to warn you that you are not obliged to say anything or
to answer any question, but anything you say, whether in answer to a
question or not, may be given in evidence”
Saubin Beatrice [1983] 1 MLJ 307
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 :
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.‘
H. Unlawful/Illegal Arrest

o Detention, confinement/the use of force on a person not in

pursuance with the procedures - amounts to an unlawful arrest.

o The person to be arrested entitled to resist arrest if it is

illegal/unjustifiable

Ong Kee Seong [1960] MLJ 156

If the arrest itself is illegal the resistance to such arrest is not
unlawful…in my opinion the search itself was illegal, as well as
the arrest, the assault committed on the police is not punishable
under s. 353 of the Penal Code. (using criminal force to deter a
public servant from discharge of his duty)

Kok Khee [1963] MLJ 362; Khor Ah Kah [1964] MLJ 309
• The arrester can be charged for criminal offence under s.220
PC (Commitment for trial/confinement by a person having
authority who knows that he is acting contrary to law)

Effect of illegal arrest

• It will not vitiate any criminal proceedings/conviction arising

thereof.

• Court still has jurisdiction to try an accused person

notwithstanding the fact that his arrest may have been illegal.
Remedies

(i) Civil claim for damages (torts)

Entitled to claim damages for false imprisonment

Shaaban
Tan Kay Teck v The AG (1957) 1 MLJ 237
Kuan Kwai Choi v Ak Zaidi bin Pg Metali (1993) 2 MLJ 207
Mohd Azran bin Rahmat v Mazlan bin Aliman (2016) 4 MLJ 337,
CA
Mohd Hady bin Ya’Akop v Hassan bin Marsom (2016) 4 MLJ 141,
CA
(ii) Writ of Habeas Corpus:

• Habeas corpus literally= ‘show the body’/‘bring the body’.

• A right given under A 5(2) FC: Where complaint is made to a

HC/any judge thereof that a person is being unlawfully detained the
court shall inquire into the complaint and, unless satisfied that the
detention is lawful, shall order him to be produced before the
court and release him.

• S 365 (a) (ii) CPC: The HC may whenever it thinks fit direct that
any person who is alleged to be illegally or improperly detained in
public/private custody within the limits of Malaysia, be set at
liberty.
Re Ongkar Shrian (1970) 1 MLJ 28
Madjai bin Sanusi v Pengarah Imigresen, Johor [2000] 5 MLJ 116
Mohd Faizol bin Mohamad v Magistrate, Magistrate’s
Court,Kulim [1998] 4 MLJ 442
• Procedure: s 366 - 374 CPC

• Application to the HC can be filed by the detainee/other person

on his behalf.

• The application must be supported by affidavit stating

- where & by whom the person is detained; and
- the facts relating to the detention, with the object of satisfying
the Court that there is probable ground for supposing that the
person is detained against his will and without just cause. (S
366)

• The affidavit must be made & signed by the detainee unless it

be shown that by reason of restraint/coercion/other sufficient
cause he is unable to make it, in which case it shall be made by
some other person.
Aminah v (1968) 1 MLJ 92
There is no fixed test as to what amount to ‘unlawful detention’. But
generally, it is a detention that is done without proper reason and
without following procedure.

Assa Singh v MB Johore (1969) 2 MLJ 30, FC

Ramli bin Salleh v Insp Yahaya bin Hashim (1973) 1 MLJ 54
Karpal Singh s/o Ram Singh v Menteri Hal Ehwal Dalam Negeri
Malaysia (1988) 1 MLJ 469
Morgan a/l Perumal v K/Insp Hussin Majid (1996) 3 MLJ 281, CA
Uthayakumar a/l Ponnusamy v Menteri Keselamatan Dalam
Negeri, Malaysia [2009] 1 MLJ 357
Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan [2021] 3
MLJ 759
Ho Kim Long v Ketua Polis Negara Malaysia [2021] MLJU 21

S 374: Any person aggrieved by any decision or direction of the

HC may appeal to the FC……………