ARREST, CUSTODY AND

SEARCH
LT COL JAMAL RODZI BIN DAHARI
DEPARTMENT OF STRATEGIC STUDIES
NATIONAL DEFENCE UNIVERSITY OF MALAYSIA

INTRODUCTION
S 93(1) AFA 72-A person subject to service law may be arrested under the
following circumstances:
(1) if he is found committing an offence against any provision of the Armed Forces
Act 1972; or

(2) if he is alleged to have committed any such offence; or

(3) if he is reasonably suspected of having committed any such offence.
It is to be noted that arrest is given a wider meaning under the Act. Arrest in
military law includes
open arrest and arrest by the civil power.

MILITARY OFFENCES

SERVICE OFFENCES
(s.38 s.88)
38.
39.
40.

41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.

Offences in Respect of Military Service

Aiding the enemy.
Misconduct by commanders when in
action.
Misconduct by other persons in
operations against the enemy.
Communication with the enemy.
Offences against morale.
Becoming prisoner of war through
disobedience or willful neglect; and
failure to rejoin forces.
Offences by or in relation to sentries, etc.
Offences relating to supplies.
Looting.
Mutiny and Insubordination
Mutiny.
Failure to suppress mutiny.
Insubordinate behaviour.
Disobedience to superior officer.
Disobedience to standing orders.
Obstruction of provost officers.
Obstruction of police officer arresting a
member of the Armed Forces.

Avoidance of or Failure to Perform Military Duties

54.
Desertion.
55.
Absence without leave.
56.
Assisting and concealing desertion and
absence without leave.
57.
FaJse statements in respect of leave.
58
Faillure to attend parades or to
perform duties.
59.
Malingering.
60.
drunkenness.
Offences Relating to Property
61.
Offences in relation to public and
service proper
62.
Offences in relation to property of
members of the armed forces.
63.
Miscellaneous offences relating to
property.
Offences Relating to, and by, Persons in Custody
64.
Irregular arrest and confinement.
65.
Permitting escape, and unlawful release
of prisoners
67.
Resistance to arrest.
68.
Escape from lawful custody

SERVICE OFFENCES
(s.38 s.88)
68.
69.
70.
71.
72.
73.
74.
75.
76.

Navigation and Flying Offences

Loss or hazarding of ships or aircraft.
Dangerous flying, etc.
Low flying.
Annoyance by flying.
Inaccurate certification.
Prize offences by commanding officers.
Other prize offences.
Offences Relating to Service Tribunals
Offences in relation to courts-martial.
False evidence.

77.
78.
79.
80.
81.
82.
83.
84.
85.
86.

87.
88.

Miscellaneous Offences
Falsifying service documents.
False accusations, etc.
Unauthorized disclosure of information.
Attempting to commit suicide.
Ill-treatment of officers or serviceman of
inferior rank.
Unlawful detention of pay.
Disgraceful conduct.
Improper carriage of goods.
Scandalous conduct of officers.
Attempts to commit offences against this
Act.
Conduct to the prejudice of service
discipline.
Civil offences.

s.88(2) In this Act the expression "civil offence" means any act or omission punishable by the law of the Federation' or
which, if committed in the Federation, would be punishable by that law; and in this Act the expression "the corresponding
civil offence" means the civil offence the commission of which constitutes an offence against this section.

ARREST, CUSTODY AND

SEARCH
LT COL JAMAL RODZI BIN DAHARI
DEPARTMENT OF STRATEGIC STUDIES
NATIONAL DEFENCE UNIVERSITY OF MALAYSIA

When Does an Arrest Take Place?

An arrest takes place:

(1) when an arresting officer states in terms he is arresting an

individual concerned.
Example; a policeman shouting at a snatch thief who was trying to run
away; This is the police, stop! You are under arrest';

(2) when he uses force to restrain an individual concerned, for

example a policeman handcuffing a person;
(3) when by words or conduct he makes it clear that he will, if
necessary, use force to prevent the individual from going
where he may want to go, for example by saying 'the police
do not allow you to leave' or 'we want to take you to the
police station.
(4) Arrest does not occur where he stops an individual to make
enquiries.
(ref: Criminal Procedure Code (Act 593) s 15)

Procedure on Arrest
A person who makes an arrest shall:

(1)
inform the arrested person whether he is under close or
open arrest;
(2)
inform the arrested person of the reason for which he is
under arrest;
(3)
immediately deliver the arrested person to a place of
custody; and
(4)
deliver to the person into whose custody the arrested
person is committed at the time of arrest or within 24 hours
thereafter a copy of a charge report provided that if no such
charge report is produced, the person into whose custody the
arrested person is committed will report the circumstances to
the commanding officer (CO)who will, if continued arrest does
not appear to be justified, order the release of the arrested
person without prejudice to his re-arrest.

Ref: Lt Kdr v Balakrisnan v Menteri Pertahanan Malaysia & Anor [1994] 2 AMR 1045
(to inform to the accused or the person arrested of the ground arrest)
Armed Forces (Court-Martial) Rules of Procedure 1976 (PU A 163/1976) r 18

The Officer Apprehending the Suspect May Use

Reasonable Force to put the Suspect into Custody if He
Resists(R 17 AF (CM) RP 1976)
the force used does not inflict more harm than it is necessary
for the purpose of making the arrest.
The use of force shall not include the use of fire-arms except
under the following circumstances:
(1)
where the offence is of a very serious nature; and
(2)
the person being arrested is behaving in such a violent
manner that damage to life or limb may result or the
use of firearms is the only possible way of making the
arrest.
(3)Procedure for using fire-arms :
(a) warning
(b) ascertain that the person being arrested
understands the warning and still refuses
to submit to arrest;
(c) fire a shot vertically into the air;
(d) if still resist, may fire at his knees but only so as
to wound him;
(e) no fire-arms shall be used without
superiors permission.

Who may Arrest?

Armed Forces Act 1972 s 93(2)-(7).n

Arrest of officer by
Officer of superior rank
Officer of any rank (Mutiny/Quarrel/Disorder)
MP

Arrest of serviceman by
Officer/WO/NCO of superior rank

Regulating Staff
MP
The power of arrest given to any person by this section may (subject to the provisions of any
regulations made under the Act) be exercised either personally or by ordering into arrest the
person to be arrested or by giving orders for that person's arrest.
In this section the expressions 'officer of the regular forces' and 'warrant officer or non-commissioned officer of the regular forces' include an
officer, warrant officer or non-commissioned officer of any of the volunteer forces when they are subject to service law under this Act and of
any foreign forces duly appointed, seconded or attached to any of the regular forces or when such members of a foreign force are serving
together or acting in combination with any of the regular forces under the provisions of section 17(3) and (4) of the Visiting Forces Act 1960
(Act 432).

Open Arrest and Close Arrest

Open arrest
CO may limit the freedom of movement on an
accused person to a certain place or area within the
precincts of the mess, the camp of his unit or base
area
CO may also limit his social activities or impose
certain conditions such as to be in uniform when
appearing outside the area he is confined to
The accused shall not leave the confined area except
that he is to perform his duty or be assigned other
duties

Close arrest
the accused shall be confined in the guard room or
unit detention room or any other place as
determined by the CO
under the charge of a guard, patrol, sentry or provost
officer

CUSTODY
When Can an Arrested Person Be Placed Under Custody?

R 13 (1)- offence he has committed or is reasonably suspected

of having committed is of a serious nature
R 13 (2) - A person shall be placed under arrest only when
absolutely necessary for example when:
(1) the offence is punishable with death;

(2) he is deliberately trying to undermine discipline by acts of

misconduct;
(3) he is likely to injure himself or others;
(4) he is likely to suborn witnesses;
(5) he has been apprehended (and has not surrendered himself)
as being absent without leave or is habitually absent without leave;
(6) having regard to the nature or prevalence of the offence with
which he is charged or which is under investigation, it is
undesirable in the interests of discipline that he should be at large
or in a position to consort with his comrades; or

(7) it is suspected that he will not attend the investigation of the

case or the trial

CO/Provost to use discretion whether to put into custody or

not

Pusat Tahanan Angkatan Tentera (PTAT)

telah menerima kunjungan daripada Wakil
Suruhanjaya Hak Asasi Manusia (SUHAKAM)

When Can an Arrested Person Be Placed Under Custody?

Subject to rule 13 of the Armed Forces (Court-Martial)
Rules of Procedure 1976, the person responsible (the CO or
the MP officer) must use his discretion to change the form
of arrest, to re-arrest or to release him without prejudice to
re-arrest.

The CO can remand the accused for court-martial in two

circumstances
(a)the charge(s) cannot be dealt with summarily or

(b)the commanding officer decides not to deal summarily

with the charge(s) even though he has the jurisdiction to
deal with it.
During his trial by a court-martial the accused shall be held
under close arrest, except where the convening authority
directs that for the period of any adjournment of the court
he shall be held under open arrest or released from arrest.

Duties Imposed on Commanding

Officer/Provost Officer After
Arrest
Allegation duly investigated without delay

Soonest possible institute proceedings against him or he must be duly

released
CO to commence investigation within 48 hours of him becoming aware
of the fact that the accused is under closed or open arrest
No arrest for more than 72 days without being tried
Delay reports Schedule 1

Ref R 16, R 14 (2)

Duties Imposed on Commanding

Officer/Provost Officer After
Arrest
Provided that in the case of a person on active service,
compliance with the putting up of a special report shall be
excused in so far as it is not reasonably practicable, having
regard to the exigency of operation.
The special report must be sent direct to:

(1)

in the case of the first copy, the convening officer;

(2)

in the case of the second copy, the Principal Legal

Officer of the Ministry of Defence;

(3)

in the case of third copy, the Provost Marshal of

the Ministry of Defence; and

(4)

in the case of the fourth copy, it is to be retained

by the unit.

Unnecessary Delay in Carrying

Out the Investigation

Unnecessary Delay in Carrying

Out the Investigation

Summary trial

Captains Mast

Unnecessary Delay in Carrying Out the

Investigation

Arrest of Deserters and Absentees

Without Leave
Arrest of Deserters and Absentees Without Leave

A police officer may arrest any person whom he has reasonable

cause to suspect of being an officer or serviceman of the regular
forces who has deserted or is absent without leave. Where no
police officer is available, any officer or serviceman of the regular
forces, or any other person, may arrest any person whom he has
reasonable cause to suspect as aforesaid.
A magistrate or other person having authority to issue a warrant
for the arrest of a person charged with a crime, if satisfied by
evidence on oath that that person is reasonably suspected of
being, within his jurisdiction, an officer or serviceman of the
regular forces who has deserted or is absent without leave, or is
reasonably suspected of being absent without leave, may issue a
warrant authorising his arrest.
Any person in custody in pursuance of this section shall, as soon
as practicable and in any case within 24 hours (excluding the time
of any necessary journey) be produced before a magistrate.

Search.
When may
search warrant
be issued?

When May a Search Warrant Be

Issued?

Who May Execute a Search

Warrant Issued?
A search warrant may be directed to:

(1)
military policemen in general or to any one member of the
corp of military police;
(2)
any one or more officers or servicemen not being a
member of the corp of military policemen.
When a search warrant is directed to more than one person it may
be executed by all or any one or more of them.

Form and Period of Validity of a Search

Warrant
Every search warrant issued under rule 19 shall be in the form set
out in the Second Schedule of the Armed Forces (Court-Martial)
Rules of Procedure 1976 and signed by the President of the courtmartial or a commanding officer or a provost officer.
Every such warrant will remain in force for a reasonable number of
days to be specified therein

Search Warrant
Form and Period of Validity of a Search
Warrant

Every search warrant issued under rule 19

shall be in the form set out in the Second
Schedule of the Armed Forces (Court-Martial)
Rules of Procedure 1976 and signed by the
President of the court-martial or a
commanding officer or a provost officer.
Every such warrant will remain in force for a
reasonable number of days to be specified
therein

Under What Circumstances Can a Search Warrant

be Executed?
Whenever a place liable to search is closed, any
person residing in or being in charge of such
place shall, on demand of a person executing a
search warrant and on production of the
warrant, allow him free ingress thereto and
afford all reasonable facilities for a search
therein.
If ingress to such place cannot be so obtained,
the person executing a search warrant may
enter such place and search therein, and in
order to effect an entrance into such place may
break open any outer or inner door or window
of the place to be searched if after notification
of his authority and purpose and demand of
admittance duly made he cannot otherwise
obtain admittance.

What is the Procedure of Search of a Place?

Procedure of Seizure on Documents or Materials

Found

reference
Armed Forces Act 1972
Criminal Procedure Code (Act 593)
Armed Forces (Court-Martial) Rules of Procedure 1976
Teo Say Eng and Col Wan Normazlan, Military Legal Proceedings in Malaysia,
(2009) LexisNexis
Baharudin bin Kamsin v Pihak Berkuasa Sidang Panglima Armada Pengkalan
TLDM Lumut [1996] 4 MLJ 184
Khalid bin Yusof v Kepten llyas bin Haji Din Pegawai Memerintah KD Pelanduk
Pengkalan TLDM Lumut (unreported, 9 July 1996; Crim App No 44-10, 44-13 of
1996) [1996] 1 LNS 332.

Lt Kdr v Balakrisnan v Menteri Pertahanan Malaysia & Anor [1994] 2 AMR 1045