Basic about an arrest by Police

Basically, Article 5(1) of the Federal Constitution states that no person is to be deprived of his personal liberty save in accordance with law. Meanwhile, in Halsbury's Law defined arrest consists in the seizure or touching of a person's body with a view to his restraint. In the case Alderson v Booth 1969 the court held that words however amount to arrest it, 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. (problem always arise when the arrest is without warrant).

Who can arrest? Person who may effect an arrest are police officer, penghulu (village leader), private person and magistrate or Justice of the Peace. Section 23 of the Criminal Procedure Code allows a police to arrest without warrant. An arrest maybe made in relation to any seizable offence committed anywhere in Malaysia. What is seizable offence? S. 2 (1) CPC defined it as an offence and a "seizable case" which police may ordinarily arrest without a warrant according to the third collum of the first schedule. Whether there is or not a First Information Report is beside the point as the first information report is not a condition precedent to the setting in motion of a criminal investigation. This holds true for police officers as far as policing and enforcement in general is concerned, and the police knowing of a design to commit any seizable offence may arrest without orders from a Magistrate and without a warrant the person so designing if it appears to such officer that the commission of the offence cannot otherwise be prevented.

Moreover, arrest and investigation are not the same, though they are interrelated. Police investigation normally commences when the police have information whether receive through their own wits or intelligence (credible information) or reasonable suspicion. Investigation is also prompted if there is a First Information Report (reasonable complaint) made to them. In non-seizable cases, s 108 of the CPC clearly stipulates that an order to investigate from the Public Prosecutor is first needed to enable the police to exercise their special powers in relation to police investigations such as recording statements from witnesses under s 112 of the CPC. In seizable cases, ss 109 and 110 of the CPC state that the Police whose rank is at least a sergeant are not required to obtain an order to investigate from the Public Prosecutor and may exercise their special powers relating to police investigations. However, the police must forthwith report those cases to the Public Prosecutor unless the offence is of the type the Public Prosecutor has directed need not be reported to him.

A police officer whose rank is not less than a sergeant or the Officer in Charge of the Police Station may proceed with the investigation but if they deputed the task to a lower ranking subordinate police officer, such subordinate officer shall withhold from resorting to the special powers of investigation provided under ss 111 (summoning witnesses), 112 (interviewing witnesses), 116 (search of premises) and 117 (further detention of suspect). These are pro-active powers the Police have to ensure they can get hold of the evidence.

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Basic about motive in s.8 Evidence Act 1950.

Motive is a psychological fact which can be proved by the conduct of the accused. Motive is that which induces a person to do a particular act. Motive and intention are different. A person's intention is his decision to do or not to do a particular act, but his motive is the reason for forming that decision. For example, when a poor woman with a child steals a loaf of bread, her intention is to steal but her motive may be to feed her child. It is not always possible to discover motive behind an act but this does not man that motive was absent. Evidence of motive is relevant and material in criminal cases. But, if there is a direct evidence and and clear proof that the accused has committed the crime, the question of motive becomes irrelevant to sustain the conviction. In Nath Singh v R, the court held that the evidence to show alleged motive for a crime is admissible even though such evidence suggest the commision of another crime by the accused. In this case the accused was tried for the murder of Karnail Singh. Evidence was led to show that Karnail Singh was extorting money from the accused on the grounds that he knew the accused had killed one Bhan Singh. This fact was admitted to show motive for this murder. Meanwhile, in Lim Kong v PP the court held that the evidence showed that the accused was being pressed to find money to satisfy his debts is relevant as tending to show a possible motive . Furthermore, the evidence of financial instability supported equally the case for the defenmce as evidence of motive for prosecution.

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DUTY AND LIABILITY OF THE DIRECTOR BEFORE AND AFTER AMENDMENDT OF MALAYSIAN COMPANY ACT 1965: PART 2.

Amendment also generates the new Section 132 (1E) of Company Act 1965 also clarifying the position of the nominee director. Section 132(1E) provides that :-
‘A director, who was appointed by virtue of his position as an employee of a company, or who was appointed by or as a representative of a shareholder, employer or debenture holder, shall act in the best interest of the company and in the event of any conflict between his duty to act in the best interest of the company and his duty to his nominator, he shall not subordinate his duty to act in the best interest of the company to his duty to his nominator’
Besides that, the amendment also existed the Section 132 (2) of the Company Act 1965 which provides the prohibition against improper use of company’s property, position, corporate opportunity or competing with the company. The new section 132 (2) provides that:

‘A director or officer of a company shall not, without the consent or ratification of a general meeting-
(a) use the property of the company;
(b) use any information acquired by virtue of his position as a director or officer of the company;
(c) use his position as such director or officer;
(d) use any opportunity of the company which he became aware of, in the performance of his functions as the director or officer of the company; or
(e) engage in business which is in competition with the company to gain directly or indirectly, a benefit for himself or any other person, or cause detriment to the company.

So, from this new section we can see that this new provision amounts to a restatement of the common law conflict of interest situation. It assists directors in appreciating situations of conflict which may cause them to act in breach of their duty to the company.
Last but not least, the new section of 132C of the Company Act 1965 provides the Approval of company required for disposal by directors of company’s undertaking or property. Before the amendment, the old section provides :-
‘notwithstanding anything in a company’s memorandum or articles, the directors shall not carry into effect any proposal or execute any transaction for-
(a) the acquisition of an undertaking or property of a substantial value; or
(b) the disposal of a substantial portion of the company’s undertaking or property
which would materially and adversely affect the performance or financial position of the company, unless the proposal or transaction has been approved by the company in general meeting’. As we can see, the old S132C permitted ‘adverse’ transaction as long as the transaction has been approved by the company in a general meeting. The new section 132C(1) has removed the requirement that the transaction must adversely affect the performance or financial position of the company. Section 132C (1A) of the Company Act 1965 provides that :
‘For the purpose of subsection (1), in the case of a company where all or any of its shares are listed for quotation on the official list of the Stock Exchange as defined in the Securities Industry Act 1983, the term ‘substantial value or substantial portion’ shall mean the same value prescribed by the provision in the listing requirements of the Exchange-
(a) which relates to acquisition or disposals by a company or its subsidiaries to which such provisions applies; and
(b) which would require the approval of shareholders at a general meeting in accordance with the provisions of such listing requirements.

In conclusion, from my view the amendment of the Company Act 1965 in 2007 has incorporated especially for director duties as seen in section 132 and the amendment also laid down the function and powers of the board of directors further give the big effects for a good corporate governance in Malaysia.

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