What is an arrest?
Section 15(1) of the Criminal Procedure Code (“CPC”) states three manners of arrest:
(1) actual touching of the body;
(2) confining the body; or
(3) submission to custody by the suspect.
It is insufficient for the police officer to tell you that “you are under arrest” as the statement alone does not amount to an arrest. The police officer must “touch or confine” your body so that the action constitutes an arrest in the eyes of the law, unless the arrested person surrenders himself by word or conduct.
In the event a police officer tells you that “you are under arrest” and you stop moving, then there’s submission to custody and this can constitute as an arrest.
If the police officer restrains you when you try to run away, the act of restraining constitutes “touching or confining the body of the person” and it is an arrest. The use of handcuff is also a sign that you are being arrested.
What are my rights if I am being arrested by the police?
Section 28A(1) to (9) of the CPC provides for the rights of an arrested person, inter alia:
You have a right to be informed of the reason why you are arrested by the arresting officer.
“If the arresting officer fails to inform you the grounds of your arrest, the arrest is unlawful [Polis
Diraja Malaysia v Audrey Keong Mei Cheng [1994] 3 CLJ 362, HC]”
You have the right to communicate with a relative / friend and a lawyer of your choice to inform that you have been arrested or your whereabouts.
You have the right to request for a consultation with a lawyer of your choice at the place where you are being detained and within the sight of a police officer but private enough to ensure that the conversation will not be overheard by the police.
The police officer shall defer any questioning with the arrested person until the consultation with his or her lawyer of choice has taken place. The right to consult a lawyer begins from the moment of arrest but before any questioning of the accused by the police takes place.
However, a police officer not below the rank of Deputy Superintendent may waive your rights to the above if he reasonably believes that:
a. an accomplice of the arrested person may take steps to avoid getting arrested;
b. there is a possibility of concealment, fabrication, or destruction of evidence or intimidation of a
witness; or
c. the questioning or recording of any statement is so urgent that it should not be delayed having
regard to the safety of other persons.
The police officer must record his grounds of belief in writing and the record should be made as soon as practicable.
You have the right to be brought in front of a Magistrate within 24 hours from your arrest.
What is a Remand Order?
Under Article 5(4) of the Federal Constitution, the police can detain you no longer than 24 hours from the time they arrest you (excluding the time for any necessary journey) at the police station or in a lock-up. In the event the police could not complete their investigation within the first 24 hours, the police can apply to the Magistrate for a Remand Order to detain you for more than 24 hours.
The purpose of a Remand Order is to allow more time for the police to conduct further investigation.
How long is a Remand Order?
The period of detention is dependent on the offence you are accused of.
If the offence carries a jail sentence of 14 years or less, the extended remand period granted for the first application must not be more than 4 days and the remand period granted for the second application must not be more than 3 days. Total remand period granted must not exceed 7 days.
If the offence carries a jail sentence of more than 14 years, the remand period for the first application must not be more than 7 days and the second application must not be more than 7 days. Total remand period granted must not exceed 14 days.
However, if you are investigated for an offence that carries the death sentence such as drug trafficking under section 39B of the Dangerous Drugs Act or murder under Section 302 of the Penal Code, among others, you may be kept in custody until the completion of your trial.
Authored by Haziq Aziz
Kindly note that this legal article does not, and is not intended to, constitute formal legal advice by the Firm, instead all information, content and materials available on this site are for general informational purposes only. If readers require further clarification or legal advice, please email office@kevinwuassociates.com.
Article 5(4) of the Malaysian Federal Constitution states that “Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate's authority....”
