Q: Critically analyse the Privy Council’s decision in Shaaban and the Federal Court’s decision in Jayaraman vis-à-vis Section 15 of the CPC.
In your view, do you think that the decision in the two cases can be reconciled with the provision in CPC.
Arrest is one of initial steps involved in the criminal process leading to the possible prosecution of an individual. According to Lord Simonds in Christie v Leachinsky, arrest is the beginning of imprisonment. There are many aspects such as how an arrest may be lawfully affected, in what circumstances the arrest may be constituted and the rights attach to it. Procedure of Arrest need to be carefully observed as it involved fundamental rights of the personal liberty of a person as expressly stated in Article 5 of the Federal Constitution, of which there can be no deprivation save in accordance with the law.
Generally, definition of arrest according to Halsbury’s Law of England is that arrest consists in the seizure or touching of a person’s body with a view to his restraint and words may amount to an arrest if in the circumstances of the case they are calculated to bring and do bring to a person’s notice that he is under compulsion and he thereafter submits to the compulsion. In Ratanlal, it was stated that when used in the legal sense in the procedure connected with criminal offences, an arrest consists of taking into custody of another person under authority empowered by law for the purpose of holding or detaining him to answer a criminal charge and preventing the commission of a criminal offence.
Malaysia has its own provision and law regarding an arrest and how should it be made as stated in Section 15 Criminal Procedure Code. Section 15(1) of the Criminal Procedure Code sets out three statutory modes by which an arrest may be affected by a police officer or other person, namely, firstly, by actually touching the body of the person to be arrested, secondly, by actually confining the body of the person to be arrested or thirdly, where there is a submission to the custody, by word or action on the part of the person to be arrested.
As far as we are concerned, based on the provision of Section 15(1) it would means that when a person is arrested he shall actually be touched or his body confined by the arrestor unless in which he submits to the custody whether by word or conduct. Hence, mere words by the arrestor are insufficient unless accompanied by submission on the part of the suspect itself. Issue will definitely arose whether there is submission and this question of fact may be evidenced and proved by words or conduct in each particular case.
As far as the matter having been codified as stated above, one would have thought that the courts should confine its examination and mode of arrested to the wording of Section 15(1) of the Criminal Procedure Code in order to determine whether there has been an arrest or not in a given case. However, based on the analysis our courts seemed to also apply the various propositions laid down by the Lord Devlin in the Privy Council case of Shaaban & Anor v Chong Fook Kam & Anor.
The Privy Council in the Malaysian appeal case of Shaaban & Anor v Chong Fook Kam & Anor had the occasion to consider what elements constitute a valid arrest. Facts of this case were that a piece of wood fell from a timber lorry hitting a car and killing one of the two men in it. The lorry did not stop. The two respondents were arrested at 7.00 am on 11 July 1965 and detained on suspicion that one of them had driven the lorry in a rash and negligent manner resulting in a piece of wood falling and killing one of the men in the car. Later in the day, their explanations of alibi were found to be false and they were further detained. In the Shaaban’s case, Lord Devlin delivering the judgment of the Privy Council held, inter alia, that an arrest could occurs in three manner in which firstly, when a Police Officer states in terms he is arresting, secondly, when he uses force to restrain an individual concerned or thirdly, 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. It does not occur where he stops an individual to make enquiries.
As what we can see is that Lord Devlin’s definition is wider in scope than what expressly stated in Section 15(1) of the Criminal Procedure Code. Lord Devlin’s propositions cover situations where actual touching or confinement may not take place. In this kind of situations, words or actions to the effect that force will be used on the suspect to prevent him from escaping would suffice.
After analyzing the statutory modes as provided in Section 15(1) of the Criminal Procedure Code with the case law propositions propounded by Lord Devlin will show that there exist material differences which may give rise to different conclusions. In order to illustrate this kind of differences, it is vital important to consider a hypothetical situation in a given situations.
For instance, a policeman was shouting at a snatch thief who was trying to run away “This is police, stop! You are under arrest”. In this situation, the snatch thief was some distance away did not submit to the arrest but continued to run away. Definitely, when we applying the test laid down in Section 15(1) of the CPC it is clear that no arrest has taken place as the facts cannot fall under any of the modes set out in Section 15 CPC. However, if one were to apply the test laid down by Lord Devlin, different conclusions is reached as the said situation would come within the propositions number one. Here, it can concluded that the propositions one as laid down by Lord Devlin may have been too widely stated and thus it is not totally reconcilable with the provisions of Section 15(1) of the CPC as far as we can see in the above situation there is clearly no actual touching or confinement or submission to custody by the suspect.
In second situation, for example, Inspector E hears screams for help and witnesses the suspect running off with the handbag. He brandishes his service revolver and points in the direction of suspect and shouts “Stop, or I’ll shoot!” The suspect when noticing the large crowd between him and the said officer and does not think that the said officer would not dare to actually carry out his threat so he continues running to get away. In this situation, applying the test set out under Section 15(1) of the CPC, there is obviously no arrest but if one were to apply Lord Devlin’s propositions then an arrest having taken place as stated under propositions three which stated that an arrest occurs 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. Based on the above situation, it may be said that those propositions appear to have been too widely or loosely stated and seemed to go beyond the contemplation of Section 15(1) of the CPC.
In addition, Lord’s Devlin definition was refereed to and approved by the Federal Court’s case of Jayaraman & Ors v Public Prosecutor. In this case Suffian LP proceeded to apply Lord Devlin’s judgement from Shaaban’s case and apply the said propositions to the facts of the case. In applying those propositions, the Federal Court concluded that there was no arrest and based on the facts of the case it cpuld not be said that the applicants had been arrested by the corporal when he told them to wait and not to leave the temple as he had merely stopped them to make inquiries into the attack on the temple. However, the result could turn the other way round if the court examined Section 15(1) of the CPC carefully. In Jayaraman’s case, there had earlier been a series of attacks on Hindu temples involving the desecration of certain idols. Two Indians came to the Police Station to make a report at 3.05 am at Kerling an reported that five men had attacked the temple and thus there was a fight between them and the temple guards and that the attackers had been surrounded. Corporal Abdul Ghani went to the temple with the Indians and there he saw the eight applicants and the priest of the temple. He told them not to leave the temple. A.S.P Jamaluddin arrived at the temple at 3.35 am and questioned orally the applicant. It was admissibility of their replies that was in issue in this case. The defence had argued that since the suspects had been earlier arrested and there being no caution administered to them before they were questioned, their replies were inadmissible under Section 113 of the CPC. But as far as we are concerned, this requirement need only be fulfilled if there was an arrest in the very first place and that was how the matter of whether there was an arrest comes to be an issue.
In the Jayaraman’s case, the Federal Court took the simplistic approach of posing and applying the three propositions laid down by Lord Devlin rather took into consideration on Section 15(1) f the code. If the court considered Section 15(1) more carefully, it might be concluded that there were in fact an arrest as bearing in mind the background of some four killings and the fact that the eight persons appeared to have submitted to custody by their own conduct of staying at the temple until the arrival of ASP Jamaluddin when they are being told not the leave the temple by Corporal Abdul Ghani.
The development of our case law after Jayaraman’s case shows that some judges tried to distinguish between actual arrest and constructive arrest. In contrast, in PP v Kang Ho Soh, the court did not find the distinction helpful. The issue whether in a particular case a person was under arrest at a given moment of time is a question of fact to be decided according to the circumstances of each case.
In a conclusion, it will be quite differences if Lord Devlin’s proposition is used despite the Section 15(1) of the cpc. As far as we concerned, it is unfortunate that Lord Devlin did not advert nor referred to the provisions of Section 15(1) of the Code when propounding the law of arrest although Shaaban’s case was an appeal from Malaysia. In addition, it can be concluded that the Privy Council in Shaaban’s case had actually applied the English concept as to what constituted a valid arrest when it applying the three situations eventhough it did not refer to our own provision in Section 15(1) of the Code. As we compared these Lord Devlin’s and Section 15(1) of the code it will show that there are some inconsistencies with regard to what constitutes a valid arrest. On the part of Malaysian legislative there have to decide either want to apply widely interpreted scope of arrest as stated by Lord Devlin or tend to follow our Section 15(1). There are certain elements in Lord Devlin’s propositions that can be reconciled into our CPC in order to make the law on arrest become more reliable in terms of its application in each of particular case.