The CPC Sections That Actually Govern Your Arrest: s.23, s.28, s.28A, s.117, s.112 and s.387

Most guides to being arrested in Malaysia tell you what to do. This one tells you what the statute says, because the two are not the same thing and the gap between them is where people get hurt.

Here is the gap in one sentence. Section 28A of the Criminal Procedure Code gives you the right to call a lawyer before questioning starts. Section 28A(8) lets a police officer of the rank of Deputy Superintendent or above switch that right off, and in Datuk Hasanah Ab Hamid v MACC, the High Court held that s.28A(8) and (9) do not abolish the right to counsel — they suspend it while the investigation is ongoing.

That is the actual law. Not "you have the right to a lawyer", but "you have the right to a lawyer unless a DSP signs off that you don't, for now."

If you want the practical survival guide — what to say, what to sign, what to do at the counter — read the companion page instead ("You're under arrest." What happens in the next 24 hours, and what you're allowed to do.). This page is the statutory reference. It goes provision by provision through the Criminal Procedure Code (Act 593), for readers who need the actual framework rather than the checklist.

1. s.23 — when police can arrest you without a warrant

Section 23 is the workhorse. It authorises arrest without a warrant across a set of categories, the central one being where a person is concerned in a seizable offence or against whom a reasonable complaint or credible information exists that they are so concerned.

The seizable/non-seizable division is set out in the First Schedule to the CPC. Column-by-column, the Schedule tells you for each offence whether police may arrest without warrant, whether a warrant is needed, and whether the offence is bailable.

This is the single most important table in Malaysian criminal procedure and almost nobody reads it. It is what determines whether the officer standing in front of you can lawfully take you in at all.

We cover the seizable/non-seizable distinction, "reasonable suspicion", citizen's arrest under s.27, and the physical mechanics in detail on a separate page (Three Years. That's The Number That Decides Whether PDRM Can Arrest You Without A Warrant.).

2. s.15 — what an arrest legally is

Section 15 defines the act: the officer must touch or confine the body of the person being arrested unless there is submission to custody by word or action.

Two consequences follow that people miss.

First, "come to the station for questioning" is not an arrest. If you have not been touched, confined, or told you are under arrest, and you have not submitted, the legal position is that you are assisting voluntarily. You may ask whether you are under arrest, and you are entitled to a straight answer.

Second, force must be reasonable and necessary. Section 15 allows the use of all means necessary to effect the arrest where there is forcible resistance or an attempt to evade, but it does not authorise causing death for offences not punishable with death or life imprisonment.

3. s.28 — the 24-hour rule and its exact wording

Section 28 does three things in three subsections:

• s.28(1) — an officer making an arrest without warrant shall, without unnecessary delay and subject to bail provisions, take or send the arrested person before a Magistrate's Court.
• s.28(2) — no officer shall detain a person arrested without warrant longer than is reasonable in all the circumstances.
• s.28(3) — that period shall not, absent a special order of a Magistrate under s.117, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate.

This mirrors Article 5(4) of the Federal Constitution, which requires production before a magistrate within 24 hours.

Note the words "exclusive of the time necessary for the journey". The 24 hours is not a clean clock. Travel time from a remote arrest location to the court does not count against it.

SUHAKAM has recommended that the 24-hour requirement be observed regardless of whether the deadline falls on a Saturday, Sunday or public holiday — its position being that individual liberty should not be sacrificed to administrative convenience. That recommendation exists because in practice, weekends have been treated as a complication.

4. s.28A — the rights provision, and the subsection that undoes it

Section 28A was inserted by the Criminal Procedure Code (Amendment) Act 2006 (Act A1274), in force September 2007. Before it, an arrested person was very often not told the grounds of arrest and not given counsel.

What s.28A(1) to (7) gives you:

What s.28A(8) takes away: an officer not below the rank of Deputy Superintendent (DSP) may authorise non-compliance with s.28A(2) where compliance is likely to result in —

• (a)(i) an accomplice taking steps to avoid apprehension; or
• (a)(ii) the concealment, fabrication or destruction of evidence, or the intimidation of a witness; or
• (b) having regard to the safety of other persons, the questioning is so urgent that it should not be delayed.

Be clear about what this means. The right to a lawyer in Malaysia is not absolute at the point of arrest. It is a right subject to a police-authorised exception, applied by a police officer, in real time, without a judge.

Grounds of arrest, by contrast, is treated much more strictly. In Polis Diraja Malaysia v Audrey Keong Mei Cheng [1994] 3 CLJ 362, the High Court held that failure to inform a person of the grounds of arrest makes the arrest unlawful. More recently in Ananthagopi Alaguganesan v Menteri Dalam Negeri & Ors [2024] 10 CLJ 539, the court held the right is not merely procedural — failure to inform a detainee of the reason for arrest is unconstitutional and renders the arrest unlawful.

Where the law is genuinely unsettled: how far s.28A(8) can be stretched. The MACC's own published position, citing Datuk Hasanah Ab Hamid, is that the right is suspended rather than removed during investigation. Bar Council and civil-society commentary has argued the threshold is high and that a general assertion of investigative inconvenience should not satisfy it. There is no Federal Court ruling settling exactly what evidence a DSP must have before invoking it, and practitioners disagree. Treat any confident statement in either direction with caution.

5. s.117 — remand, and the numbers that actually apply

If the police cannot finish investigating within the 24 hours under s.28, they must go to a Magistrate under s.117.

Section 117(1) requires the investigating officer to transmit to the Magistrate a copy of the entries in the investigation diary and to produce the accused at the same time.

s.117(2) sets the maximum periods:

s.117(3) requires the Magistrate to record reasons for the remand order. s.117(3) and (4) — the "chain remand" or "chain-smoking remand" provisions — require the investigating officer to state in the diary any period of detention immediately prior to the application, whether or not it relates to the same matter, and require the Magistrate to take that prior detention into account.

That last pair exists because of a specific abuse. The practice was to remand a suspect, release them at the end of the period, re-arrest on a different matter, and start a fresh remand clock — potentially indefinitely. The amendments were meant to stop it by forcing disclosure and judicial consideration of what came before.

On the diary requirement. Section 119 requires every police officer making an investigation to enter proceedings day by day in a diary. In Re The Detention of Leonard Teoh Hooi Leong, failure to produce the investigation diary was treated as capable of rendering a remand order unlawful; the same case is authority for the length of remand being a matter for the Magistrate's discretion. In Re The Detention of S. Sivarasa & Ors [1996] 3 MLJ 611 / [1997] 1 CLJ 471, the High Court addressed the mandatory duty to give reasons for a remand order and the requirement to consider the diary — a case arising from mass arrests in Kuala Lumpur.

Practical point for anyone attending a remand: remand proceedings should be in open court, and the Magistrate should record reasons. If neither happens, that is a ground for revision under s.323 CPC.

6. s.112 — statements, and the right to stay silent that people don't know they have

Section 112 empowers an investigating officer to examine any person acquainted with the circumstances of a case and to reduce their oral statement to writing.

The structure that matters:

• s.112(2) — the person is bound to state the truth, but may refuse to answer any question the answer to which would have a tendency to expose them to a criminal charge, penalty or forfeiture.
• s.112(3) — the officer must first inform the person of the provisions of subsection (2).
• The statement must be taken down in writing, read back in the language it was made, and the person given the opportunity to make corrections before signing.

So the right against self-incrimination in a 112 statement is statutory, express, and the officer is legally required to tell you about it before you start.

The Bar Council's Red Book guidance (Polis dan Hak-hak Asas Anda, first published 2006 by a group of lawyers to explain rights to the public) makes a further practical point worth reproducing: if you are merely a potential witness rather than a suspect, you generally cannot be arrested for the purpose of taking a 112 statement. Refusing to comply with a written order under s.111 is an offence and a Magistrate may issue a warrant to compel attendance — but disobedience alone does not create an arrest power.

On admissibility: s.113 now generally excludes statements made in the course of a police investigation from being used in evidence, with limited exceptions. Prior to the 2006 amendment the position was different — under PP v Datuk Haji Harun bin Haji Idris [1977] 1 MLJ 15, a s.112 statement by a witness could become admissible against them when they later became an accused. Note that this general exclusion is displaced by specific statutes: s.37A of the Dangerous Drugs Act 1952, for instance, makes certain statements admissible notwithstanding anything to the contrary in any written law.

7. ss.387–394 — bail, in three categories

The general law on bail is at ss.387 to 394. Column 5 of the First Schedule tells you which category an offence falls into.

Two points constantly confused. First, "non-bailable" does not mean bail is unavailable — it means bail is discretionary. Courts have said explicitly that bail should not be refused merely because an offence is labelled non-bailable. Second, s.29 provides that no person arrested by a police officer shall be released except on bond, on bail, or by written order of a Magistrate or an officer not below the rank of Inspector — which is the source of "police bail" pending investigation, distinct from court bail after charge.

The detailed bail mechanics — how amounts are set, bailor liability, eJamin, conditions and revocation — are on a separate page (Standing Bail For Someone Means You Can Lose Every Ringgit. Here's How Bail Actually Works.).

8. Why the compliance question is not academic

The reason to know these provisions is that non-compliance is documented and consequential.

Malaysiakini's reporting has noted there are around 700 lockups in the country, with more than 400 actively in use — a figure SUHAKAM has cited in explaining why comprehensive independent monitoring is not possible. SUHAKAM published a dedicated 2016 thematic study on deaths in police custody and lock-up conditions and has maintained a standing programme on treatment of detainees.

Official and NGO figures diverge sharply, and you should know that when reading any number on this topic. SUHAKAM's definition of a custodial death includes deaths during arrest, in detention, on the way to treatment, and in hospital while still in custody. Narrower official counts produce lower totals. SUARAM has repeatedly called for custodial-death data to be made transparent, pointing to discrepancies between media-reported and official figures. In parliamentary answers reported in 2023, the Immigration Department accounted for the largest share of custodial deaths in 2022 at 150, with police at 11 and the Prisons Department at nine — figures that critics argued undercounted police cases.

More recently, in a statement dated 1 July 2026, SUHAKAM said it was deeply concerned by the disclosure that 465 deaths were recorded in immigration detention depots between 2021 and 2025, as reported by the Ministry of Home Affairs in Parliament, and called for comprehensive reform of detention conditions, healthcare and oversight.

Immigration detention is a separate regime from CPC arrest, and these figures should not be read as police lockup figures. They are included here because they are the most recent official custodial-death disclosure and because they illustrate the same underlying point: the statutory safeguards matter most precisely where oversight is weakest.

What to actually do

If you are the person arrested:

• Ask, in words: "Am I under arrest, and what is the offence?" The grounds must be given under s.28A(1). Note the time and the answer.
• State clearly that you wish to contact a lawyer and a family member under s.28A(2), and that you wish questioning deferred until you have consulted counsel under s.28A(7).
• If access is refused, ask which rank authorised it and on which limb of s.28A(8). It must be a DSP or above. Note the name and time.
• In a 112 statement, remember s.112(2). You must be truthful, but you may decline to answer anything that would expose you to a criminal charge. Say so on the record rather than lying.
• Read the statement before signing. You are entitled to have it read back in the language you gave it and to make corrections.

If you are a family member or lawyer attending:

• At the remand hearing, ask whether the investigation diary under s.119 has been produced. It is required by s.117(1).
• Ask the Magistrate to record reasons under s.117(3).
• Raise any prior detention period — s.117(3) and (4) require it to be stated in the diary and considered.
• Check the applicable maximum. Under 14 years: 4 days then 3. Death or 14 years or more: 7 days then 7.
• If the procedure was defective, revision under s.323 CPC is the route to the High Court.

Free and low-cost help:

• Yayasan Bantuan Guaman Kebangsaan (YBGK) provides legal representation for arrested persons at the police station stage in eligible cases.
• Bar Council Legal Aid Centres are listed by state at malaysianbar.org.my.
• SUHAKAM (suhakam.org.my) accepts complaints of human rights violations including in custody.
• Emergency: 999.