The issue is whether the action of Inspector Alpha taking the four men to the police

station constitutes an arrest.

According to the First Schedule of the Criminal Procedure Code, armed robbery is a

seizable offence under section 397 of the Penal Code and in the First Schedule,

particularly column three for section 397, it states that in armed robbery cases, the

police may ordinarily arrest without warrant.

Arrest without warrant by the police is governed by section 23(1) of the Criminal

Procedure Code. The provision laid down several occasions in which the police or the

penghulu may arrest without warrant. One of those is when any person has commit a

seizable offence where a reasonable complaint has been made against that person,

credible information has been received regarding the person, or reasonable suspicion

exists against the person (section 23(1)(a)). In addition, section 23(1)(d) provides that

the police may arrest a person without warrant if that person is found to be with

anything stolen or reasonably suspected to be stolen.

The police act also provides the provision for the police to stop and search any car

without warrant. According to section 24(1)(b) of the Police Act, any police officer

may stop and search any vehicle without warrant if the police officer who stop the car

has reasonable suspicious to suspect that the vehicle is being used in committing any

offence against the law.

As for the definition of arrest, the Criminal Procedure Code does not specifically

define the meaning of arrest. Section 15 of the Code merely tells on the procedure of

an arrest. In other word, the provision only tells on how an arrest can be made.

According to Section 15(1) of the Criminal Procedure Code, an arrest is made when

the police officer or other person touch or confine the body of the person to be

arrested. Besides that, arrest has also been made when there is a submission to the

custody by word or by action. In addition, the Halsbury’s Law of England states that

arrest by words is effective when the words are calculated to bring notice that the

person is under compulsion.

In the case of Shaaban & Ors v Chang Fook Kam & Anor, the Privy Council reiterate

on how an arrest is made and thus make it effective. According to the Privy Council,

an arrest occurs in three ways. Firstly, there is an arrest when the police officer state

in terms that he is arresting. Secondly, an arrest occurs when the police use force to

restrain the person whom he is going to arrest. Lastly, an arrest is also effective when

the police’s words or conduct indicates that he is going to use force if necessary to

stop the person whom he is arresting from going away.

The court in Jayaraman v Public Prosecutor, by applying the principle in Shaaban

also held that there was no arrest when the corporal told the people in the temple not

to leave the place. This is due to the fact that the act of the corporal was merely to

stop them from going away as the police wanted to make further inquiries into the

incident.

In the latest case of Yong Moi Sin v Kerajaan Malaysia & Anor, the court had

distinguished between custody and arrest. The court ruled that a person who is in

police custody is not under an arrest and the two can never be equated. The judge in

Yong Moi Sin had also referred to the case of Harbansingh Sardar Lanasingh v

Madar and decided that it is not an arrest when a person is being drive away in his car

accompanied by several officers of the law. In addition, the court had also interpreted

the word custody to include certain circumstances where one of those circumstances

is when police officers accompany a person to the police station. That amounts to a

submission to custody.

To apply the above principles of the law, it is submitted that there may not be an

effective arrest when Inspector Alpha brought the four men to the police station for

further investigation.

Firstly, by applying the principle under the First Schedule of the Criminal Procedure

Code read together with section 397 of the Penal Code, armed robbery is a seizable

offence. So, in accordance with section 23(1)(a) of the Code, as the police had

received information which tells the description of the car, the police can arrest them

without warrant. Furthermore, as the police had also found stolen items in the car, by

virtue of section 23(1)(d) of the Code, they may arrest all the men without warrant.

Nevertheless, there may not be an arrest when the police brought all the four men to

the police station because the act of the police did not fall within any of the scope

given under section 15(1) of the Criminal Procedure Code. Besides that, there is

nothing to indicate that the police have state in terms that he is arresting, neither the

police use force to restraint the four men nor that the police’s words or conduct

indicates that he is going to use force if necessary to stop the four men from going

away. Thus, by applying the principles in Shaaban, no arrest has occurred.

In addition, by applying the principle in Jayaraman, as the police brought them to the

police station, it may not amount to an arrest as what the police do by bringing them

to the station was merely to make further inquiries into the alleged offence.

Aside from all the above, what the police did may amount to custody as oppose to an

arrest. This is due to the fact that by applying the principles in Yong Moi Sin and

Harbansingh Sardar Lanasingh, as the police accompanied all the four men to the

station, that may indicates a submission to a police custody and custody is not to be

equated with an arrest.

In conclusion, the act by Inspector Alpha in bringing all the four men to the police

station for further investigation may not amount to an arrest and may not be an

effective arrest. Instead, it may amount to a custody based on the reasons

abovementioned.