This document discusses the legal rights of arrested persons in Malaysia, including the right to legal representation and habeas corpus. Some key points: (1) Section 28A of the Criminal Procedure Code provides rights for arrested persons such as informing them of the grounds for arrest and allowing communication with a lawyer. (2) Habeas corpus applications can challenge unlawful detentions and procedural improprieties in arrests and detentions. Courts have enforced compliance with mandatory legal requirements. (3) The right to legal representation begins from the time of arrest, but may be reasonably restricted to facilitate police investigations. Overall the document analyzes various cases related to habeas corpus and legal rights after arrest.

1. Legal representation
Art 5(3) limb 2

2. Section 28A of CPC provides: -
 (1) A person arrested without a warrant, shall be
informed as soon as may be of the grounds of his
arrest by the police officer making the arrest.
 (2) A police officer shall, before commencing any
form of questioning or recording of any statement
from the person arrested, inform the person that he
may –
 (a) communicate or attempt to communicate, with a
relative or friend to inform of his whereabouts; and
 (b) communicate or attempt to communicate and
consult with a legal practitioner of his choice.

3.  (3) Where the person arrested wishes to
communicate or attempt to communicate with
the persons referred to in paragraphs 2(a) and
(b), the police officer shall, as soon as may be,
allow the arrested person to do so.
 (4) Where the person arrested has requested for a
legal practitioner to be consulted the police
officer shall allow a reasonable time
 (a) for the legal practitioner to be present to meet
the person arrested at his place of detention; and
 (b) for the consultation to take place.

4.  (5) The consultation under subsection (4) shall be
within the sight of a police officer and in
circumstances, in so far as practicable, where
their communication will not be over heard.
 (6) The police officer shall defer any questioning
or recording of any statement from the person
arrested for a reasonable time until the
communication or attempted communication
under paragraph 2(b) of the consultation under
paragraph (4) has been made;
 (7) The police officer shall provide reasonable
facilities for the communication and consultation
under this section and all such facilities provided
shall be free of charge.

5.  (8) The requirements under subsections (2),
(3), (4), (5), (6) and (7) shall not apply where
the police officer reasonably believes that the
right are likely to result in an accomplice
absconding, evidence being lost, witness
intimidated or safety of other person
compromised.
 (9) Subsection (8) shall only apply upon
authorization by a police officer not below
the rank of Deputy Superintendent of Police.

6.  This was an application filed for a writ of habeas
corpus to set at liberty the applicant who was
detained under s. 4(1) of the Emergency (Public Order
and Prevention of Crime) Ordinance 1969 (EO 1969).
 On 26 March under s. 3(1) of the EO 1969 and was
detained by the police for sixty days.
 Thereafter, the Minister directed the applicant to be
detained for a period of two years.
 The applicant thus made representation to the
Advisory Board ('AB').
 The applicant's claimed that the allegations against
him were imprecise and vague and that the Minister
had considered erroneous facts and argued that the
AB had not apply audi alterum partum rule on him.

7.  the Minister had considered the reports and
documents on the applicant and was satisfied
that the applicant was the leader of Gang 21
and whose detention was necessary for the
suppression of violence or crimes involving
violence.

8.  The applicant had access to counsel whilst he
was under police detention and had the services
of the counsel for the length and duration of the
hearing before the AB. Further, the denial of
counsel, if even made out, could not be a ground
for the grant of the writ of habeas corpus. The
alleged breach of the second limb of art. 5(3) was
not established.
 The presence of police officers at meetings
between the applicant and counsel had not
violated the rights of the applicant because it is
sanctioned by law (s. 4 of the EO 1969, security
detention).
 Application dismissed.

9.  Ramli bin Salleh [1973] 1 MLJ 54 Syed Agil
Barakbah J.:
 (1) The right of counsel begins right from the day
of his arrest even though police investigation has
not yet been completed.
 (2) The right should be subject to certain
legitimate restrictions which necessarily arise in
the course of police investigation, the main
object being to ensure a proper and speedy trial
in the Court of law.
 (3) Such restrictions may relate to time and
convenience of both the police and the person
seeking the interview and should not be subject
to any abuse by either party.

10.  Article 5(3) requires that “where a person is
arrested he shall be … allowed to consult and
be defended by a legal practitioner of his
choice”.
 Judicial enforcement of this right has not
always been consistent. In a string of cases
like Ooi Ah Phua (1975) and Hashim Saud
(1977), the courts have held that consultation
with a lawyer in a police lock-up can be
postponed for a reasonable period to
facilitate police investigations

11.  He seeks a writ of habeas corpus on the ground
of non-compliance with r. 3 of the Prevention of
Crime (Procedure) Rules 1972 which provides
that it is the duty of the officer-in-charge, to
inform the detainee of his right to make
representation against the detention order.
 Held - obligation imposed upon the officer-in-
charge of the detention centre to enquire of a
detainee whether he intends engaging an
advocate is mandatory requirements of r. 3(2) the
effect of which is to render the detention
unlawful.

12.  In Parasuraman Velu v Ketua Polis Negara (2006),
habeas corpus was issued because the detainee
was not served with notice of hearing of
representation, not given right of legal
representation and his mother was not allowed to
appear as witness.
 Article 5(3) of the Constitution requires that
"where a person is arrested he shall be informed
as soon as may be of the grounds of his arrest
and shall be allowed to consult and be defended
by a legal practitioner of his choice".
 In many cases, the courts have held that the
requirement to supply grounds is mandatory.

13.  Muhamad Abdullah v PP [1982] 2 MLJ 201
 If an accused person is not represented by
lawyer it does not invalidate the proceeding.
 It does not meant judicial proceeding cannot
be committed.
 The right is limited and can be exercised so
long it is subject to greater right of the
community to have peace and tranquility of
the society.

14.  All arrest must be reported to the judiciary
 Art 5(4), sec 28 & 117 CPC
 Section 117(1)
 Whenever any person is arrested and detained in
custody and it appears that the investigation
cannot be completed within the period of
twenty-four hours fixed by section 28 and there
are grounds for believing that the accusation or
information is well founded the police making
the investigation shall immediately produce the
accused before the Magistrate.

15.  However, in practice the police seems to ignore
this right & follows the ‘Chain smoking order’
where an accused person is arrested in one
district, detained for 14 days on the orders of a
Magistrate, released & re-arrested in another
district & detained for another 14 days on the
orders of another Magistrate.
 The process is repeated as long as the police
deem it necessary.
 A clear violation of the spirit of Art 5(3) but was
given the judicial approval in Dasthigeer
Mohamed Ismail [1999].

16.  This was a second habeas corpus application to the High
Court by the applicant on the whereabouts and safety of
his son ('the arrested person') who was held under
remand.
 The first habeas corpus application had been rejected but
the court had exercised its reversionary powers to shorten
the period of remand of the arrested person from February
18, 1999 to February 15, 1999.
 The second application was based on the fact that the
arrested person was not released on February 15 but
remained under remand at all times.

17.  The onus was on the police to show that the
remand was necessary and this was not satisfied.
 There was failure to submit a copy of the diary of
investigations under s. 119 of the CPC, there was
only a rubber stamp form signed by the
magistrate ordering remand.
 Also no reasons were given as to why the remand
should be continued.
 Thus, the magistrate had no basis upon which to
make any remand order.
 Thus Remand order be set aside.

18.  detainees under restricted residence laws &
aliens are excluded. Non-citizens arrested
under immigration laws, the 24-hour period
is extended to 14 days.
 Amendments: Section 28 (1) & 28 (3) of the
CPC Act 2006 the deletion of the word ‘court’
allows the accused under remand to be
produced before a Magistrate even on
holiday/ a weekend.
 Prior practice, arrested on weekend/public
holidays as the holidays are discounted in
computing the 24 hours.

19.  Amendment Section 117 of the CPC Act 2006
prevents repeated & successive orders of
remand as follows:
 No duration of punishment
 For offences with jail of less than 14 years,
the detention shall be no more than 4 days
on the first application and no more than 3
days on second application (extension of
detention)
 For offences with death or jail of 14 years ,
detention shall be no more than 7 days on
1st application and no more than 7 days on
second application

20.  The writ requires the detaining authority to
bring the person in their custody before the
court together with the grounds or reasons
for his/her detention.
 The detention authority must explain to the
court the grounds or reasons for his/her
detention.
 If the reasons are ‘not in accordance with
law’, the court has the duty to order his/her
release immediately.

21.  The detaining authority has the burden of
proving that the detention is in accordance
with law (Re Tan Sri Raja) [1988].
 Producing the order of detention discharges
this burden.
 The onus then shifts to the detainee,
especially if he/she alleges bad faith on the
part of the detaining authority (Karam Singh)
[1969]
 A person release by the court on an
application of habeas corpus can sue the
detaining authority for damages for unlawful
imprisonment.

22.  Legal basis:
 The legal basis for habeas corpus is Article 5
(1) & 5 (2) of FC, or Section 25(2) of Courts of
Judicature Act 1964
 Sections 23, 28, 117 & 365 of the Criminal
Procedure Code (CPC)

23.  Who can apply? The detainee or someone
acting on his/her behalf can make an
application for habeas corpus.

24.  Scope Habeas Corpus can be applied for the
following situations:
 A. to secure the release of any person who is
detained or arrested unlawfully.
 The court has no discretion to refuse habeas
corpus if the detention was unlawful from the
start or has become unlawful because of
subsequent noncompliance with the law
(Andrew v Supt Pudu Prison)[1976]

25.  Habeas Corpus is inapplicable in Andrew s/o
Thamboosamy v. Superintendent of Pudu
Prisons, Kuala Lumpur [1976] 2 MLJ 156
 He had previously renounced his citizenship
and re-entered Malaysia. He was detained
under s. 34(1) of the Immigration Ordinance,
1959 so that arrangements could be made
for his removal.
 The appellant in this case applied for an order
of habeas corpus claiming that his detention
was unlawful.

26.  The Federal Court held: Under the
Immigration Ordinance, only the Executive
has power to release the appellant.
 Whether or not the Executive should do so is
a matter of policy for them.
 The plea of the applicant in this case should
therefore be addressed not to the Court but
to the appropriate authority.

27.  B. Illegality of procedure/ Procedural impropriety
 (a) Mandatory Procedure -The doctrine of
procedural ultra vires requires that power must
be exercised in accordance with mandatory
procedural requirements.
 The following are situations where illegality of
procedure was successfully pleaded:
 a. the time limit of Article 151 was violated (Tan
Boon Liat) [1977].
 b. only one copy of the grounds of detention &
not two as required were supplied.
(Puvaneswaran) [1991].

28.  Tan was detained under a piece of preventive
detention legislation for 2 years. Within the first 2
weeks of his detention, he made a representation
to the Advisory Board for review of his case.
 The Advisory Board took more than 3 months
after his representation to recommend for his
continued detention. (Under the Federal
Constitution, the Advisory Board must submit its
recommendation to the government within 3
months of the detainee's representation.)
 On appeal, the Federal Court held that under the
circumstances, such detention was unlawful.
 Tan is entitled for HB

29.  Yeap Hock Seng v. The Minister for Home
Affairs, [1975] 2 MLJ 279,
 although the courts are precluded from
adjudicating on the sufficiency of the
subjective satisfaction of the Minister they
can examine the grounds disclosed by the
Minister for the detention to see whether they
are appropriate and relevant to the object
which the Ordinance prescribes.

30.  In that case, the detainee was detained under section
4(1) of the EPOPCO Emergency (Public Order and
Prevention of Crime) Ordinance 1969. The Senior
Federal Counsel argued that an application for
habeas corpus at that stage was premature as the
detainee had the right under the EPOPCO to make
representations to the Advisory Board.
 Abdoolcader J disagreed and held as follows:-
 The court must never, in my view, lose sight of the
fact that a detention order made under section 4(1) of
the Ordinance results in the deprivation of freedom
without trial and constitutes a serious transgression
upon the fundamental right of liberty of the person.

31.  The detention must be legally valid, in the
sense that it is pursuant to valid statutory
authority, and to test whether the detention
proceedings are …a mere sham, nothing but
an empty form, the grant of habeas corpus is
as of right and not in the pleasure of the
court. ”

32.  However the Supreme Court in Minister for
Home Affairs, Malaysia v Karpal Singh held
that “…whilst the grounds of detention stated
in the detention order are open to judicial
review if not within the scope of the enabling
legislation, the allegations of fact upon which
the subjective satisfaction of the Minister was
based, are not.”