Malaysia Legal System (Criminal Proceeding)

8/16/2019 Malaysia Legal System (Criminal Proceeding)

http://slidepdf.com/reader/full/malaysia-legal-system-criminal-proceeding 1/47

• The guidelines for Criminal Procedure in Malaysia is foundedprimarily in the Criminal Procedure Code (Act 593) orabbreviated CPC

• The application of the CPC is applied tracing back to 10 Janu1976 and was then revised in 1999 with amendment. The latesamendment is in 2006

• Provides general criminal procedure• Additional rules of criminal procedure governing speci c functions

e.g Dangerous Drug Act !nternal "ecurity Act Anti#Corruption Actand Child Act $%%&

CriminalProcess

Pre#Trial

Trial

Post#Trial



Presentation 'uestion•

Ali and Abu are both fresh graduates from Multimedia(niversity without any criminal records. )ecently theyhad been o*ered to work as an accountant in "hellCompany. !n the same time they rented a house near totheir o+ce. They did not know that the house that theyrented used to be a drug dealing centre. ,ne day whilethey were cleaning up the rented house they had beensurrounded by several police o+cers. They were afraidand tried to run away but unfortunately they beencaught by the police o+cers in charge and was not beeninform what are the grounds of arrest. As a lawyerare as!ed to advice t"em re#ardin# t"eir ri#"ts$

%ou may discuss t"e a&ove 'uestion relevant



I N T R O D U C T I O N

• -eing fresh grads Ali and Abu nd themselves in theemployment of "hell company hence renting a placenearby

• !n the absence of their knowledge the place rented was adrug dealing facility

• After several days they had a police raid on their handsand in the moment of panic they tried to escape butunsuccessful

• They were caught by the police o+cers without beinginformed on the grounds of arrest

• The relevant element was on the criminal process



•

Criminal investigations in Malaysia are conducted by anumber of enforcement agencies such as P *+ AntiCorru tion A#ency (ACA) *oyal Customs and -.cise

e artment and the /mmi#ration e artment .• Powers of police to investigate are found in C"a ter ///

(ss107,120) of Criminal Procedure Code and Police ActAct /001.

• !nvestigation powers are vary depending on whether theo*ence complained is2

1$ ei a&le2$ on,sei a&le

!nvestigation of ,*ences

4rial)



•

An o*ence for which a police o+cer may ordinarilyinvestigate without an order from public prosecutor andarrest without warrant from magistrate.

• "ei3able o*ences are the more serious o*ences such as2&. housebreaking

$. kidnapping/. murder0. rape4. terrorism o*ences

"ei3able o*ence



Police investigations begin once a5 rst information report6 7!)1 or

police report is made under "ection&%8 of CPC .



"ection &%8 2 !nformation of o*ences(1) 9very information related to the commission of an o*ence if given orally to ano+cer in charge of a police station shall be reduced to writing by him or under hisdirection and be read over to the informant.

(2) 9very information shall be entered in a book to be kept by that o+cer who shallappend to such entry the date and hour on which that information was given andwhether given in writing or reduced to writing as aforesaid shall be signed by theperson giving it.

(3)(a) !nformation given by a person relating to the commission of an o*ence to apolice o+cer who at the time of receiving the information is not in a police stationshall be deemed to be received at a police station

(&) A police o+cer receiving such information under paragraph a1 wherepracticable shall record or cause to be recorded the name and address of theinformant the date and time of the receipt of such information and shall convey suchinformation to an o+cer in charge od a police station of any police o+cer whose duty

is to receive such information.c "uch information shall be reduced to writin and entered in a book in



"ection &%8 A )eport on status of investigation





"ection &$% )eport of police o+c





Arrest

•

An arrest is the deprivation of a person6s liberty by lawfulauthority to compel that person6s appearance to answer acriminal charge or to comply with a ;udgement of a court.

• (nder ection 15(1) of the Criminal Procedure Code CPC1an arrest may be made in the following manner2 #a1 by actually touching the body of the person to be

arrested< orb1 by actually con ning the body of the person to be

arrested< orc1 where there is submission to custody by word or action.



• An arrest may be made with or without warrant ofarrest depending on whether the o*ence committedis sei3able or non#sei3able.

•

A warrant of arrest is an order issued by a magistrate.!t is ordinarily directed to a police o+cer directingsuch o+cer to arrest the person.

• A police o+cer who e=ecutes a warrant must bringalong the original sealed warrant notify the person tobe arrested the substance of the warrant and ifre:uired show the person the warrant or a copy.

• >owever where the issuing magistrate by anindorsement on the warrant authori3ed the policeo+cer to release on bail the person arrested suchperson if he or she accepts the bail will appear incourt on the date speci ed in the bailment.

A

))9"

T



• (nder Criminal Procedure Code there are

ve categories of persons who may arrestwithout a warrant2

&. Any police o+cer s.$/1$. Any penghulu s.$/1/. Any private person s.$810. A magistrate s./% s./&14. A ;ustice of peace s./%1



• A police o+cer or penghulu may arrest without warrant aperson in any of the circumstances listed in ection 23

• ".$/ does not limit the power of the police o+cer or

penghulu to arrest without warrant under any otherwritten law.• ?enerally a police o+cer or a penghulu may arrest

without warrant only in sei3able cases such o+cer or penghulu may arrest without a warrant a person whocommits a non#sei3able o*ence in the presence of the

o+cer or penghulu and when re:uested to give his or hername and address either2• refuses• gives name and address reasonably believed to be false• gives an address not within Malaysia



• (nder ection 27 any private person may arrest aperson who commits a non#bailable and sei3able o*enceor who has been proclaimed under s.00 as absconding orhiding to avoid a warrant of arrest from being e=ecuted.

• ection 30 empowers a magistrate or a @ustice of thePeace to arrest or authori3es the arrest of a person whohas committed an o*ence in his or her presence.

• ection 31 further empowers a magistrate but not

@ustice of the Peace1 to arrest or authori3es the arrest ofhis or her presence a person for whose arrest he iscompetent to issue a warrant.

• An arrest to be lawful must comply with there:uirements and be ;usti ed by the circumstances setout in Criminal Procedure Code.



• !ssueWhether the arrest of Ali and Abu by the policeo cers is lawful?

Ali and Abu are both fresh graduates without any criminalrecords. ,ne day they were surrounded by police o+cers andhad been caught by the police o+cers in#charge and was notbeen inform what are the grounds of arrest.>owever when arrested a person has a fundamental rightunder the 7ederal Constitution to be informed as soon aspossible in ordinary language of the grounds of his arrestunless that can be inferred from the surrounding circumstancesor if he makes it impossible for the person making the arrest toinform him. Thus a person arrested is entitled to ask thereasons for his arrest as well as to which police station he isbeing taken to. The police must bring a person arrestedimmediately to the nearest police station and nowhere else.



-ut any person who has been accused or connected with or suspected ofcommitting an o*ence may be arrested by police. here a sei3able o*encee.g. murder robbery or theft is suspected to have been committed a policeo+cer may arrest the o*ender with or without warrant or order from thePublic Prosecutor in the course of investigation.

Moreover a police o+cer or penghulu may arrest without warrant aperson in any of the circumstances listed in "ection $/. "ection $/ does notlimit the power of the police o+cer or penghulu to arrest without warraunder any other written law. ?enerally a police o+cer may arrest a personwithout warrant in sei3able cases.

Therefore the arrest of Ali and Abu by police o+cers is lawful.



/ -hether the police o+cers may arrest

Ali and Abu without informing thegrounds of arrestB !n the moment of panic Ali and Abu at thespur of the moment tried to escape from thereach of the police but failed. >owever whenarrested they were not informed on thegrounds of arrest.



* -• #Article 5(1) of 7ederal Constitution providesthat no person shall be denied of his personalliberty unless the law allows it to be.

• #Article 5(3) of the 7ederal Constitutionstates that where a person is arrested heshall be informed as soon as may be of thegrounds of his arrest and shall be allowed toconsult and defended by a legal practitionerof his choice.



# ection 19(1) of Criminal ProceduCode provides that the personarrested shall not be sub;ected tomore restraint than is necessary to

prevent his escape.



, ection 2 A of Criminal Procedure Codesupplements and ampli es Article 4 /1.

"ec $ A1 &1 A person arrested without a warrantshall be informed as soon as may be of the groundsof his arrest by the police o+cer making thearrest.

$1 A police o+cer shall before commencing anyform of :uestioning or recording of any statementfrom the person arrested inform the person that hemay #

a1 communicate or attempt to communicate with



/1 here the person arrested wishes tocommunicate or attempt to communicate with thepersons referred to in paragraphs $1 a1 and b1 thepolice o+cer shall as soon as may be allow thearrested person to do so.

01 here the person arrested has re:uested for alegal practitioner to be consulted the police o+cershall allow a reasonable time #

a1 for the legal practitioner to be present to meetthe person arrested at his place of detention< and



41 The consultation under subsection 01 shall bewithin the sight of a police o+cer and in circumstances inso far as practicable where their communication will not be

overheard.

1 The police o+cer shall defer any :uestioning orrecording of any statement from the person arrested for a

reasonable time until the communication or attemptedcommunication under paragraph $ b1 or the consultationunder subsection 01 has been made.

81 The police o+cer shall provide reasonable facilitiesfor the communication and consultation under this section



1 The re:uirements under subsections $1 /1 0141 1 and 81 shall not apply where the police o+cer

reasonably believes that #

a1 compliance with any of the re:uirements islikely to result in ## i1 an accomplice of the person arrested takingsteps to avoid apprehension< or ii1 the concealment fabrication or destruction ofevidence or the intimidation of a witness< or b1having regard to the safety of other persons the:uestioning or recording of any statement is so urgentthat it should not be delayed.



E1 "ubsection 1 shall only apply upon authori3ation by a policeo+cer not below the rank of Deputy "uperintendent of Police.

&%1 The police o+cer giving the authori3ation under subsectionE1 shall record the grounds of belief of the police o+cer that the

conditions speci ed under subsection 1 will arise and suchrecord shall be made as soon as practicable.

&&1 The investigating o+cer shall comply with the re:uirementsunder subsections $1 /1 01 41 1 and 81 as soon as possafter the conditions speci ed under subsection 1 haveceased to apply where the person arrested is still under detentionunder this section or under section &&8.



APP /CA4/8Article 5(3) of the 7ederal Constitution states that

where a person is arrested he shall be informed assoon as may be of the grounds of his arrest and shallbe allowed to consult and defended by a legalpractitioner of his choice.

Ali and Abu were not informed what the grounds ofarrest are and caught by the police o+cers.

>ence Ali and Abu need to be informed on thegrounds of arrest.



ection 2 A(1) provides that a person arrestedwithout a warrant shall be informed as soon asmay be of the grounds of his arrest by thepolice o+cer making the arrest

Ali and Abu were not informed by the police o+cermaking the arrest what the grounds of arrest are.

>ence Ali and Abu shall be informed of the groundsof arrest.



The police o+cers may notarrest Ali and Abu without

informing the grounds of arrest .

Conclusion



Search & Seizure- Body Search

Issue: Whether the police officers have the authorityto proceed body search before or after arrest?During the arrest assuming the police performs a

body search on Ali and Abu, is it lawful for police

officers to put their hands on Ali and Abu before orafter the arrest.



S ! of "#" illustrates the body search before arrest whenever a search for anything is or is about to be lawfu

made in any place in respect of any offence all persfound therein may be lawfully detained until the searchcompleted, and they may, if the thing sought is in its natucapable of being concealed upon the person, be searchfor it by or in the presence of a $agistrate or %ustice of #eace or a police officer not below the ran& of Inspector.

S'( of "#" deals with body search after arrest whereby a



S ( of # deals with body search after arrest whereby a person arrested:

)under a warrant of arrest which does not provide for thetas&ing of bail, or )under a warrant of arrest which provide for the tas&ing of

bail but the person arrested cannot furnish bail, or )without a warrant of arrest

may be searched and all articles other than necessarywearing apparel found on them will be placed in a safecustody. *owever, any offensive weapon found on the

person upon his or her arrest may be ta&en away.



*ence, with the provisions form Section ! andSection '(, police officers are allowed to proceed

body search on the suspect either before or afterthe arrestment.

! 2 Wh th Ali d Ab h th i ht t



$ 112 -.amination o witness &y PoliceAll statements from anyone who is ac:uainted with the facts ofcircumstances of the case under investigation are made and recorded by a

police o+cer of the rank of sergeant or above. )ecording ,+cerF,)1.

-efore recording a statement• Ganguage used must be understood by the person being :uestioned.• "uch person must be informed that

• >e or she must answer all :uestions concerning the case e=cept any

:uestion the answer to which would have tendency to e=pose him orher to a criminal charge or penalty or forfeiture.• >e or she is legally bound to state the truth.

After recording the content of the recording will be read back to the personbeing :uestioned. "uch recording is sub;ected to correction before he orshe a+=ed his or her signature or thumbnail print.

!ssue 2 Whether Ali and Abu has the right toremain silent?

S.113 Admission of Statements in Evidence



)ight to"ilence( n i t e d

H i n g d o m Malaysia " i n

g a p o

r e

The accused has the right to silence during :uestioning time.>owever Malaysia is moving towards removal of such right and cautionedstatements for several factors as such 2

Cautioned statements delay trials.Admission in the absence of defence council creates a negative image of police."lipshod police investigation

S.113 Admission of Statements in EvidenceAny statement made by an accused person at any time to or in the hearing of anypolice o+cer of or above the rank of inspector is admissible as evidence at theperson6s trial sub;ect to the condition below 2

• "tatement must be made voluntarily without any inducement threat or promise• here the statement is made by an accused person after his or her arrest a

caution such as that speci ed in ".&&/ or words to the same e*ect must havebeen administered to the accused before he or she made the statement or assoon as possible afterward.



All statements made during police investigationis inadmissible e=cept 2

Any statement made by a witness may be usedafter the accused is given a copy of it to impeach

the credit of witness.A statement made by the accused may be admittedin evidence to support his or her defence.

The statement may be used as evidence in the casewhere a person is charged with any o*enceregarding the making or content of any statement.

After the preliminary investigations the investigationpapers are sent to Attorney ?eneral6s Chambers.!f the Deputy Public Prosecutors is satis ed that theevidence is su+cient to prosecute a person a chargewill be drafted to grant authority to prosecute suchperson



!n this case Ali and Abu have theright to remain silent. >owever the

;udge may draw inference fromtheir refusal to answer duringpolice investigation and this failurecan be a part of the evidenceagainst the accused.

Conclusion

!ssue 2 Whether the accused have the right to be informed of



!ssue 2 Whether the accused have the right to be informed ofthe ground of arrest? The charge must be conveyed to the accused with clarity andcertainty.

,*ence

Time Date Place,*ence

Provision of law underwhich the accused is

prosecutedProvision providingthe Punishment

hat6s in achargeB

The general rule is that each charge must disclose only one o*ence and every

charge must be tried separately. >owever the ;oinder of charges and trialsmaybe permitted.

hat if the particulars described still do not give su+cient noticeof the o*ences



:eneral rule 2 each charge must disclose only one o*ence and every charge mustried separately.

>owever the ;oinder of charges and trials maybe permitted.

of the o ences.

The prosecution is re:uired to set out the particulars of manner in which the allegedo*ence was committed.

The prosecution is re:uired to set out the particulars of manner in which the allegedo*ence was committed.

".&40

>owever the charge may be amended by the prosecution or the courtanytime before ;udgment.

Art$ 5(3) o ;ederal Constitution



Art$ 5(3) o ;ederal Constitution“Where a person is arrested he shall be informed as soon as may be ofthe grounds of his arrest and shall be allowed to consult and be defendedby a legal practitioner of his choice.

$2 A of Criminal Procedure Code further supplements and ampli es Art.4 /1 of

7ederal Constitution.

" $ A 1 2>owever these re:uirements do not apply where the police



.$ A 1 2>owever these re:uirements do not apply where the policeo+cer reasonably believes that 2

• Compliance with any of these re:uirements is likely to resultin 2

• An accomplice of the person arrested taking steps to avoidarrest

• The concealment or destruction of evidence or theintimidation of witness

• >aving regard to the safety of other persons

Charge must be informed to Ali and Abu on the ground they areaccused of under Art.4 /1 of 7ederal Constitution.9very essential particulars must be stated in the charge interalia o*ence time date and place of the alleged o*enceprovision of law which the accused is prosecuted as well as thepunishment under "ections &4$ and &4/.Ali and Abu can lawfully communicate with their counsel under".$ A /1 of Criminal Procedure Code unless the police o+cerreasonabl believes that such act will lead to an situation as

Conclusion 2



BailSection + ! of "#" provides the bailableoffences while Section + of "#" states

the non)bailable offences.

S387 id th t h th th



S387 provides that when any person other than a personaccused of a non)bailable offence is arrested or detainedwithout warrant by a police officer or appears or is brought

before a "ourt and is prepared at any time while in thecustody of the officer or at any stage of the proceedings

before the "ourt to give bail, that person shall be releasedon bail by any police officer in charge of a police station or

by any police officer not under the ran& of "orporal or bythat "ourt.-he police officer or the "ourt, if he or it thin&s fit, mayinstead of ta&ing bail from that person, discharge him onhis e ecuting a bond without sureties for his appearance ashereinafter provided.



S+ states that when any person accused of any non bailable offence is arrested or detained without warrant by a police officer or appears or is brought before a "ourt, hemay be released on bail by the officer in charge of the#olice District or by that "ourt, but he shall not be releasedif there appears reasonable grounds for believing that hehas been guilty of an offence punishable with death orimprisonment for life.

#rovided that the "ourt may direct that any person underthe age of si teen years or any woman or any sic or infirm

person accused of such offence be released on bail.



*owever, if it appears to such officer or "ourt atstage of the investigation, in/uiry or trial, as the may be, that there are no reasonable ground

believing that the accused has committed a non)baoffence, but there are sufficient grounds forfin/uiry into his guilt, the accused shall, pending in/uiry, be released on bail, or, at the discretion ofofficer or "ourt, on the e ecution by him of a without sureties for his appearance as he

provided.



*ence, the /uestion of bail depends onthe circumstances provided as Section+ ! and Section + of "#" illustratedthe situation of bailable and non)bailable

offences.

C l i



Conclusion

• The arrest of Ali and Abu by police o+cers is lawful• The police o+cers may not arrest Ali and Abu

without informing the grounds of arrest.• Police o+cers are allowed to proceed body search

on the suspect either before or after thearrestment.

• The :uestion of bail depends on the circumstancesprovided as "ection / 8 and "ection / of CPCillustrated the situation of bailable and non#

bailable o*ences

Date post:	05-Jul-2018
Category:	Documents
Upload:	eden-yok
View:	225 times
Download:	0 times

Malaysia Legal System (Criminal Proceeding)

Documents