Chapter 4- Search - Lecture notes 4 PDF

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SEARCH A. Search for persons   Entry and Search for Person on Premises o Sec 16 CPC  May enter and search for person sought to be arrested and may use reasonable force to break in o Sec 18 CPC  Power to break open any place for purposes of liberation o Sec 58 CPC  Magistrate may issue search wa...

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SEARCH A. Search for persons 

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Entry and Search for Person on Premises o Sec 16 CPC  May enter and search for person sought to be arrested and may use reasonable force to break in o Sec 18 CPC  Power to break open any place for purposes of liberation o Sec 58 CPC  Magistrate may issue search warrant for person wrongfully confined o Sec 59 CPC  Search of closed place for persons/things with search warrant Search of Body of Person o Sec 17 CPC  Power to search persons in place searched under warrant o Sec 19(2) CPC  Woman to be searched by woman o Sec 20 CPC (read with Sec 413)  Search of persons arrested o Sec 20A CPC (4th Schedule)  Types and methods of search – (a) pat search o A search tht is based on patting the outer clothing of the person arrested. The authorisation and the procedure of the search are reflected in the following para 4-6 of 4 th Schedule. (b) strip search o Involving the removal of the entire or some part of the arrested person’s clothing. May be done by part for example by allowing him to dress his upper body before removing items of clothing from his lower body. Refer para 7-9 of 4th Schedule (c) intimate search o Consists of the physical examination of the arrested person’s body or orifices other than the mouth, nose and ears. Requires prior approval of a police officer not below the rank of Ast. Superintendent of Police or for other enforcement agency with the equivalent rank. Refer para 10-12 of 4th Schedule (d) intrusive search o Involving the examination to determine the existence of any object, evidence, weapon or contraband inside the

body or body orifices of the person and including the removal of it. Refer para 13-15 of 4th Schedule o Sec 21 CPC  Power to seize offensive weapons  The officer or other person making any arrest may take from the person arrested any offensive weapons found on him and must deliver all such weapons to the court or officer before whom the arrested person is required by law to be produced o Sec 22 CPC  Search of person for name and address

B. Search of Place/Premises 

With search warrant o Sec 54(1) CPC (read together with Sec 116 CPC) – When search warrant may be issued  3 grounds when search warrant may be issued  N Indra P Nallathamby v PP  It is pertinent to note tht a summons to produce document or other things under sec 51 of the CPC must be invoked first before applying for a search warrant under sec 54(1)(a) of the CPC o Sec 56 CPC – Magistrate may issue warrant to search for evidence of offence  Chong Chieng Jen v Mohd Irwan Hafiz bin Md Radzi  The first respondent had obtained two search warrants to search the office premises and the residential home of the applicant for all computers and laptops belonging to the applicant.  The warrant application was made by the first respondent on the ground tht there is an allegation tht the applicant had published seditious article in his blog.  The applicant sought to set aside the two search warrants on the ground tht they were issued contrary to Sec 56.  On the facts, the police report from the complainant and the alleged seditious article were not exhibited with the warrant application.  The first respondent claimed tht he received instructions from the AG office to seize the laptops but there was no such entry of the said instruction in the investigation diary.  Rhodzariah Bujang JC held: The term ‘as he things necessary’ in Sec 56 was used and it is a primary requirement for information to be laid before the magistrate. An inquiry is not mandatory, but if an inquiry is to be done, a magistrate could

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proceed to call for further evidence and summon any witness in deciding whether to issue any warrant. The test for ‘reason to believe’ means ood and cogent reasons which support the belief tht incriminating offence would be found in the premises stated in the warrant. Since the alleged article was not exhibited, the magistrate granting the search warrant were merely based on the belief tht the article was seditious. The search warrants were set aside. o Sec 57 CPC – Form of search warrant  Lam Chiak v PP  The accused was charged under s 3(1) of Copyright (Gramophone Records and Government Broadcasting) Act Cap 188  Warrant was issued on 3/11/1984 but executed on 8/11/1984  Thean J at the Singapore HC held: The requirement of a time period for the warrant to remain in force is merely directory and not mandatory, thus it was not fatal tht no period was specified in the warrant o Sec 60 CPC  Magistrate issuing search warrant may attend at its execution o Sec 61 CPC  Magistrate may direct search in his presence Without search warrant o Sec 62 CPC – Power to search without warrant  Yong Moi Sin v Kerajaan Malaysia & Anor  The police suspected tht a gold locket had been stolen and searched the appellant’s factory without a search warrant.  Held: The search was legal as it was necessary for the police to prevent the vital evidence which was the gold locket from being melted away. Even if the search was illegal, the police can never be construed as criminal trespassers. o Sec 63 CPC  Summary search o Sec 116(4) CPC  Allows police to enter without warrant and use reasonable force to break in (sec 59) o Sec 40 Interpretation Act 1948 o Sec 64 CPC – List of things seized to be made and signed  San Soo Ha v PP  The accused appealed against his conviction and sentence on a charge of housebreaking and theft of property under S 454 PC or alternatively on a charge of dishonestly retaining stolen property under S 411 PC

One of the ground of appeal: a search list required under S 64 CPC was not prepared by the officer who conducted the search and seized the property  Raja Azlan Shah J held: The omission or failure to prepare a list of the things seized is not fatal to the prosecution’s case. Court will carefully scrutinise the evidence of the officers who conducted the search because such omission or failure to prepare the list will cast doubt on the bona fide of the search  PP v Chin Hock Aun  The accused was charged for drug trafficking under S39B of DDA. Police discovered a packet of dangerous drugs when they conducted a search but no search list was prepared. The accused argued tht failure to prepare the search was fatal to the prosecution’s case.  KC Vohrah J: S 64 did not apply in this case. Generalia specialibus non derogant applicable in this case as DDA overrides CPC.  Gooi Loo Seng v PP  Accused was charged for drug trafficking. A search list was prepared and signed by an inspector who conducted the raid. The inspector gave evidence tht the packages od dangerous drugs were recovered from cupboard by the accused himself.  However, the search list showed tht the packages were recovered by the inspector.  Held: This contradiction was fatal to the prosecution’s case and the accused was acquitted.  Alcontara a/l Ambross Anthony v PP  Held: Where there is an acute conflict between the evidence of the prosecution witness and evidence of the defence in respect of where the exhibits are found, the prosecution must tender a search list. Failure to do would attract an adverse inference against the prosecution under s 114(g) of EA  Followed in Wong Wiew Hock v PP  Courts are applying the principles of San Soo Ha & Chin Hock Aun o Sec 65 CPC – Occupants to be present at search o Sec 435 CPC – Power of police of to seize property suspected of being stolen o 

C. Common Law

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Chic Fashions (West Wales) Ltd v Jones o Police obtained a search warrant to search for stolen goods of a certain description, ‘Ian Peters’. Police did not find such description but seized other goods of different descriptions which they are reasonably suspected to have

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been stolen. Subsequently, it was found tht the seized goods were not stolen goods. The plaintiffs sued the police for damages for trespass. The trial judge gave judgement for the plaintiffs and the defendants appealed. o Lord Denning MR held: The police were justified in seizing and retaining the plaintiffs’ goods even though such items were not specified in the search warrant so long as the police reasonably believed them to be stolen. o The issue was the lawfulness of the seizure of the goods and not the search which was lawful as there was a search warrant. o If it happens in Malaysia?  S 54 is not applicable as the facts of case does not fall under para (a) – (c)  S 56 is not applicable  S 58 is irrelevant  S 62 is not applicable  S 63 is irrelevant  S 116 is inapplicable  S 435 is applicable Ghani & Ors v Jones o A Pakistani woman was missing and the police suspected tht she has been murdered. Without a search warrant or warrant of arrest, police (incl Defendant) entered and searched the woman’s father-in-law’s (1 st Plaintiff) house. They then seized the passports of the first plaintiff, his wife (2nd Plaintiff) and daughter (3rd Plaintiff). The plaintiffs sought for a mandatory order requiring D to return the passports and other things seized. It was held tht D had no right to retain the passports and made a mandatory order for their return. D appealed. o Lord Denning MR held: Upheld the decision and ordered the return of the passports and other documents seized. o If occurs in Malaysia?  S 5 CPC may be invoked Re Kah Wai Video (Ipoh) Sdn Bhd o The police obtained a search warrant to search for infringing copies of films of certain titles specified in the warrant. They seized both the specified and unspecified items. Subsequently, the magistrate held tht the seizure of the unspecified items was unlawful and ordered their return. o On revision by the HC, Edgar Joseph Jr J set aside the magistrate’s order on two grounds in tht by virtue of an implied extension of the search warrant, the police had power to seize those articles; however, at common law following the decision of Chic Fashions and Ghani, police had power to seize unspecified articles. Sec 64 CPC o List of things seized to be made and signed o San Soon Ha

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o Alcontara o Chin Hock Aun o Wong Wiew Hock o Gooi Loo Seng o Chung Wan Li o Nasaruddin Daud Whether acknowledgement of search list amounts to confession? o YES  Lim Mun Shiang  Che Yew Choi o NO  Ahmad bin Lateh  Wong Kim Leng  Lee Soon Sian Sec 65 CPC o Occupant shall be allowed to be present at search & the signed copy if Sec 64 lists shall be delivered to him Sec 116 CPC o Search by police officer Sec 435 CPC o Power of police to seize property not specified in search warrant but suspected of being stolen o Chic Fashion v Jones

D. Effect of Illegal Search 

Common law position o Kuruma v R  The police officers in Kenya who searched and seized the ammunition from the appellant were below the required rank of Asst Inspector.  PC held: Illegally obtained evidence is admissible provided it is relevant to the matters in issue and is not obtained by unfair means.  Followed by King v R o King v R  The warrant issued by a justice of peace in Jamaica authorised the arrest of the person named but not the search of any person.  PC held: The search warrant was defective but the evidence was still admissible provided it is relevant to the matters in issue and is not obtained by unfair means. o R v Sang  HOL held: Relevant evidence is admissible even though the evidence is obtained illegally and by unfair means.

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Position in Malaysia o Saminathan v PP (did not cite Kuruma)  None of the police officers who searched and arrested the accused for a betting offence was a senior officer thus making the search and arrest illegal.  Aitken J opined: A magistrate who is trying the accused is not only concerned with the relevancy of the evidence and not the manner in which the police obtained it. o Saw Kim Hai & Anor v PP  The appellant jointly charged with betting offences, argued tht the police had not strictly proved tht their entry into the premises was legal.  Spencer Wilkinson J held: Cited and followed Kuruma holding tht when an accused is before a court, the court has jurisdiction to try him notwithstanding the fact tht his arrest may have been illegal. o PP v Seridaran  No order to investigate was obtained from the PP to investigate a nonseizable offence as required under S 108 of CPC. Learned magistrate held tht the trial before him was a nullity and ordered an acquittal. PP appealed.  Peh Swee Chin J held: If such illegality obtained evidence is relevant to the matters in issue, it is admissible. o Ramli bin Kechik v PP  The second chemist’s analysis of the substance suspected to be dangerous drugs was held to the admissible after the first chemist’s analysis was insufficient to prove the prosecution’s case.

E. Process to Compel the Production of Documents and other Movable Property   

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Sec 51 CPC o Summons to produce document or other things to any court or police officer Sec 52 CPC o Procedure as to postal articles, etc. PP v Teoh Choon Teck o The accused applied to be supplied with copies of the alleged forged documents. Police refused. Accused applied to magistrate who ordered the accused to be allowed to inspect and make copies of the documents. Police appeal. o Hepworth J held: Refer to S 59 CPC which is similar to S 51 CPC and opined tht the accused should be supplied with the documents to enable him to prepare his defence. Haji Abdul Ghani bin Ishak v PP

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o The accused applied before the trial to be supplied with copies of the documents seized by the Biro Siasatan Negara which refused to comply. o Wan Yahya J held: Refer to S 51 CPC and allowed the appeals. Syed Abu Bakar bin Ahmad v PP o Adopted a strict approach of S 51 CPC o Held: The accused is not entitled to apply to inspect the documents before the trial but may do so during the trial Raymond Chia Kim Chwee & Anor o First applicant (Raymond) made a general application for the production of documents. Second applicant (Zainal bin Haji Ali) made an applicant for copies of specified and unspecified documents. o Hashim Yeop A Sani SCJ held: In matters of application made under S 51 CPC, the court must consider the justice of the case and at what stage of the proceedings, the application is made. Dato’ Tiah Thee Kian v PP o The appellant appealed against the refusal of the Sessions Court to issue a summons under S 51 for inspection of certain documents some of which were not stated in the charge. o HC held: Accused is entitled to documents not specified in the charge as in this case Huzir bin Hasan v Ketua Polis Daerah Johor Bahru o The applicant was arrested and charged with drug trafficking under S39B DDA...