Power to arrest for the purposes of investigation

The issue is whether there is a law that allows the arrest of someone for the
purposes of investigation.

1. There are two types of arrest which are known as an arrest with warrant and an
arrest without warrant. An arrest without warrant is also known as a “seizable
offence”.

2. Section 23 (1) (a) of the CPC provides as follows: -

“Any police officer or penghulu may without an order 3. (1) from a

Magistrate and without a warrant arrest—

(a) any person who has been concerned in any offence committed
anywhere in Malaysia which is a seizable offence under any law in force
in that part of Malaysia in which it was committed or against whom a
reasonable complaint has been made or credible information has been
received or a reasonable suspicion exists of his having been so concerned.”

3. Section 49 of Malaysia Anti-Corruption Commission Act 2009 (“MACC”) provides

as follows: -

“ (1) Every offence under this Act shall be a seizable offence for the
purposes of the Criminal Procedure Code.”

4. Section 7 (b) of MACC provides as follows: -

“The officers of the Commission shall have the following functions:

b) to detect and investigate—

(i) any suspected offence under this Act; (ii) any suspected attempt to commit
any offence under this Act; and (iii) any suspected conspiracy to commit any
offence under this Act;”

5. Section 29 of MACC provides as follows: -

“(3) Where an officer of the Commission has reason to suspect the

commission of an offence under this Act following a report made under
subsection (1) or information otherwise received by him, he shall cause an
investigation to be carried out and for such purpose may exercise all the
powers of investigation provided for under this Act and the Criminal
Procedure Code.”

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6. In the case of SHAABAN & ORS v CHONG FOOK KAM & ANOR [1969] 2 MLJ
219, the Privy Council held as follows: -

“The law on arrest is contained in the Constitution and the Criminal

Procedure Code. For the purposes of this case it is enough to say that
under section 23(i)(a) of the Code the police were empowered to arrest
the plaintiffs if a reasonable suspicion existed of their having been
concerned in an offence of reckless and dangerous driving causing
death. In any case of wrongful arrest it is important to identify at the outset the
precise time of arrest, not only for the purpose of article 5 clause (3) of the
Constitution, which provides that an arrested person shall be informed
as soon as may be thereafter of the grounds of his arrest, but also
because it is the time when the existence of a reasonable suspicion
must be proved.”

7. Section 49 of Malaysia Anti-Corruption Commission Act 2009 (“MACC”) provides

as follows: -

“(2) Every person arrested under subsection (1) may be released from
custody— (a) on his depositing such reasonable sum of money as an officer
of the Commission may require; (b) on his executing a bond, with or without
sureties, as an officer of the Commission may require; or (c) on his
depositing such reasonable sum of money as an officer of the Commission
may require and his executing a bond, with or without sureties, as an officer of
the Commission may require.

(3) Any person who has been released from custody under subsection (2)
may be arrested without warrant by any officer of the Commission— (a) if
such officer has reasonable grounds for believing that any condition on or
subject to which such person was released or otherwise admitted to bail has
been or is likely to be broken; or (b) on being notified in writing by the surety
of such person that such person is likely to break any condition on or subject
to which such person was released and that surety wishes to be relieved of
his obligation as surety.

(4) Any person arrested under subsection (3) and is not released shall,
without unreasonable delay, and in any case within twenty-four hours
(excluding the time of any necessary journey) be produced before a
Magistrate’s Court and if it appears to the Court that any condition on or
subject to which such person was released or otherwise admitted to bail has
been or is likely to be broken, the Court may— (a) remand such person in
custody; or Malaysian Anti-Corruption Commission 61 (b) admit such person
to bail on the same conditions or on such other conditions as it thinks fit.”

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8. Section 28 of the Criminal Procedure Code (“CPC”) which deals with the arrest of
a person, states that “No Police officer shall detain in custody a person arrested
without a warrant for a longer period than under all circumstances of the case is
reasonable. The section goes on to state as follows: -

8.1. Such period shall not in the absence or after the expiry of a special
order of a Magistrate under section 117, exceed 24 hours, exclusive of
the time necessary for the journey from the place of arrest to the
Magistrates Court.

9. In the case of DASTHIGEER B MOHAMED ISMAIL v KERAJAAN MALAYSIA

& ANOR [1999] MLJU 121, the High Court held as follows: -

“It follows that a remand order cannot be based solely on that a serious crime has
been committed and the [person] brought before the Magistrate seems to be a
suspicious person, but must be based on some degree of confidence that he is
the wrongdoer, that his remand is necessary to complete investigations and
which cannot be achieved if he is released on bail. The onus is however, upon
the prosecution to advance the grounds.”

10. Rights under Federal Constitution

10.1. According to Article 5(3) of Federal Constitution, as soon as someone

is arrested, they must be notified of the grounds of the arrest.

10.2. Article 5(4) of the Federal Constitution, a person that is arrested must
be presented to a Magistrates Court without any unreasonable delay
within 24 hours excluding the travel time.

11. In conclusion, CPC and MACC have vested powers to the police and/or MACC
officers to conduct arrests for the purpose of investigation. However, there must
be a check and balance to these powers as the Court shall exercise their
discretion based on the enacted laws and principle laid out in cases to safeguard
the liberty of the person arrested as provided in the Federal Constitution.