Three Years. That's The Number That Decides Whether PDRM Can Arrest You Without A Warrant.

A man in Ipoh spent 106 days locked up on a drug trafficking allegation that rested partly on a police inspector's forged signatures. He sued. In 2023 the High Court in Ipoh awarded him RM240,000 — RM2,000 for each day of unlawful detention, plus RM30,000 in exemplary damages and RM25,000 in costs. The government was held vicariously liable, the judge rejecting the argument that the officer had been on "a frolic of her own".

In Shah Alam, a former police officer who had been detained for 43 days without a valid remand order was awarded RM50,000. In another case, a plaintiff detained after arrest under security legislation won RM300,000 in damages for unlawful detention.

Malaysian courts do put a price on an unlawful arrest. Which makes it worth knowing exactly when an arrest is lawful in the first place — and the answer turns almost entirely on one number.

1. The 3-year rule, and where it actually comes from

Section 2(1) of the CPC defines a seizable offence as one for which a police officer may ordinarily arrest without a warrant according to the third column of the First Schedule. A non-seizable offence is defined as the opposite — one for which an officer may not ordinarily arrest without warrant.

Read the Schedule and the pattern is clear: Penal Code offences punishable with imprisonment of three years and above are marked seizable. Offences punishable with less than three years, or with a fine only, are non-seizable.

Section 417 is the example worth memorising. Cheating under s.417 Penal Code is non-seizable. If a police officer arrests you for it without a warrant, the arrest is illegal.

One warning about non-Penal-Code offences. The last section of the First Schedule deals with "offences against laws other than the Penal Code" and applies the same default — police shall not arrest without warrant where the offence is punishable with imprisonment of less than 3 years. But individual statutes can and do classify their own offences as seizable regardless. If you are dealing with an offence under a specific Act, check that Act, not just the Schedule.

2. s.23 — the arrest-without-warrant power itself

Section 23 lets a police officer arrest without a warrant in a set of listed situations. The central limb covers a person concerned in a seizable offence, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that they are so concerned.

Three different standards sit in that one sentence, and they are not interchangeable:

• reasonable complaint — someone has complained, and the complaint is itself reasonable
• credible information — information from a source with some claim to reliability
• reasonable suspicion — the officer's own suspicion, which must be reasonable

What "reasonable" is doing here is real work. It is an objective standard, not a subjective one. An officer's honest hunch is not enough if no reasonable officer with the same information would have formed that suspicion. This is the ground on which unlawful-arrest claims are usually fought.

3. Other people who can arrest you

Police are not the only ones.

Penghulu — s.23 and s.25. A penghulu may arrest without warrant for a seizable offence, but s.25 requires him to hand the arrested person over to the nearest police station or police officer without unnecessary delay, and that officer then re-arrests.

Private persons — s.27 (citizen's arrest). A private person may arrest, but the conditions are narrow. The offence must be seizable and non-bailable, and it must be committed in their presence — not reported to them, not suspected afterwards. The person arrested must be handed over to a police officer or taken to the nearest police station without unnecessary delay.

The practical warning on citizen's arrest is blunt: get it wrong and you are the one committing an offence. Wrongful restraint (s.339 Penal Code) and wrongful confinement (s.340 Penal Code) are offences, and you can also be sued in tort. If you detain a shoplifter and the offence turns out to be bailable, or you did not actually witness it, you are exposed.

A special case — s.23(3), the "no local address" rule. Where someone commits or is accused of a non-seizable offence in the presence of a police officer or penghulu and, on demand, gives a residence outside Malaysia, they may be arrested despite the offence being non-seizable, and must be taken immediately before a Magistrate or an officer not below Inspector rank to execute a bond.

4. s.15 — the physical mechanics, and "am I under arrest?"

Section 15(1): in making an arrest, the officer shall actually touch or confine the body of the person to be arrested, unless there is a submission to the custody by word or action.

That "unless" is why the question matters. You can be lawfully under arrest without anyone laying a hand on you, if you submit — including by simply going along with it.

So how do you know? Practical indicators: handcuffs are the obvious one. Otherwise, look for whether the officer makes it clear that necessary force will be used to stop you going where you want to go. If a "discussion" at the station has gone on a long time and you cannot tell, the guidance from Malaysian practitioners is to ask two direct questions:

• "Am I under arrest?"
• "Why am I being arrested?"

Ask them plainly and note the answers and the time. The grounds must be given under s.28A(1) — and failure to give them has been held to render an arrest unlawful.

On force. Section 15 permits all means necessary to effect the arrest where there is forcible resistance or an attempt to evade. It does not authorise causing the death of a person not accused of an offence punishable with death or life imprisonment.

On the arrest of women. As a matter of practice, searches of a woman are to be conducted by a woman officer with strict regard to decency. Where you have a choice, ask for a female officer and note it if refused.

5. What happens if the arrest was unlawful

Two things, and they are separate.

It does not automatically kill the prosecution. An unlawful arrest is a wrong done to you. It does not, by itself, mean the charge disappears. Malaysian practice does not have a blanket exclusionary rule that throws out everything flowing from a defective arrest. Do not assume otherwise.

But you can sue. The tort is false imprisonment, usually brought against the officer and the government as vicariously liable. Malaysian courts have made real awards:

Note the pattern: in the Ipoh case the judge rejected a claim for RM3 million on the ground the plaintiff should not be unjustly enriched. Courts compensate for loss of liberty. They do not hand out windfalls.

Where to file depends on the amount claimed — Magistrates' and Sessions Courts have monetary limits, and larger claims go to the High Court. Get advice on the right forum before filing.

Aggravated and exemplary damages are available where the conduct was oppressive. In one reported case involving a death in detention following an abused remand warrant, the court awarded aggravated damages expressly to deter what it described as a cultural habit of oppressive treatment of suspects and detainees.

6. The gap between the section they arrest you under and the section you're charged with

This one is not in any statute and it matters.

Commentators have pointed out a structural feature of Malaysian practice: the provision used at the point of arrest often differs from the charge eventually framed. Charging is the prosecutor's discretion, exercised later, on the evidence as it then stands.

During the MCO period this was analysed openly. Breaches of the movement-control regulations themselves were not seizable — the punishment fell below the 3-year line — so on paper police could not arrest without a warrant. But Penal Code offences of similar character (ss.269, 270, 271 — negligent or malignant acts likely to spread infection) are arrestable without warrant, as are obstruction offences under ss.186 and 187. The result was that arrests could proceed under a seizable Penal Code section while the eventual charge might be a non-seizable regulatory one.

Whether that is a loophole or ordinary prosecutorial practice is genuinely disputed. One view is that it lets the seizable/non-seizable safeguard be routed around. The other is that the Penal Code sections carry a higher burden of proof, so switching to the lighter regulatory charge is not sinister. Both arguments are made by Malaysian lawyers. This article does not pick between them, but you should know the phenomenon exists.

7. Being asked to "come to the station" is not an arrest

If you have not been touched, confined, told you are under arrest, or submitted to custody, you are assisting voluntarily.

The Bar Council's guidance notes that if you are merely a potential witness rather than a suspect, you generally cannot be arrested for the purpose of taking a s.112 statement. Police may issue a written order under s.111 requiring attendance; disobeying it is an offence and a Magistrate may issue a warrant to compel you — but disobedience alone does not create a power of arrest.

The practical move: if you can, propose a convenient time and place and go voluntarily with a lawyer. Cooperation and arrest are not the same thing, and you do not improve your position by treating them as if they were.

8. What none of this covers

The seizable/non-seizable framework is the general CPC position. Several statutes displace it entirely with their own arrest and detention powers — notably SOSMA (Security Offences (Special Measures) Act 2012) and offence-specific regimes such as the Dangerous Drugs Act. Where those apply, the timelines, the right to counsel and the remand structure can all be different.

If you are told you are being held under a specific security or drugs statute rather than the plain CPC, that is a materially different situation and you need a lawyer immediately.

What to actually do

If police approach you:

• Ask "Am I under arrest?" and "For what offence?" Note the time and the answer.
• If you are told the offence, you can check whether it is seizable — the threshold is roughly 3 years' imprisonment, and the definitive source is column 3 of the First Schedule to the CPC.
• If it is non-seizable and no warrant is produced, say clearly and calmly that you do not consent to arrest and ask to see the warrant. Do not physically resist. Resisting creates fresh offences; the remedy for an unlawful arrest is in court afterwards.
• Do not sign anything you have not read and had read back to you.

If you are considering a citizen's arrest:

• Only if the offence is seizable AND non-bailable AND committed in your presence.
• Use no more force than necessary.
• Hand the person to police or take them to the nearest station without unnecessary delay.
• If any of those conditions is missing, you are risking wrongful restraint (s.339) or wrongful confinement (s.340) and a civil claim against you.

If you think you were unlawfully arrested:

• Write down everything while it is fresh: times, locations, officer names and numbers, what was said, who witnessed it.
• Get the police report number and copies of any documents you signed.
• Seek medical attention and keep the records if there was any force used.
• Lodge a complaint with SUHAKAM (suhakam.org.my) and consider the Enforcement Agency Integrity Commission (EAIC) where applicable.
• See a lawyer about a false imprisonment claim. Bar Council Legal Aid Centres are listed at malaysianbar.org.my; YBGK covers representation for arrested persons in eligible cases.
• Emergency: 999.