Saturday, 18 October 2014

20:43 - No comments

Arrest & Search

Arrest is a legal concept, and whether there is arrest or not it depends on the law based on the statute. So what is an arrest actually? It is a restrain of the body of the person. Restrain persons freedom. This is a common law concept. Arrest is at the beginning of imprisonment. Starts with an arrest.
Arrest:  when one is taken and restrained from his liberty, so when there is a wrongful restrain, it gives rights to a tort.

Where there is a warrant of arrest. We have seen an arrest can be done without a warrant so in this case there is no prior court order. (not pursuant to a court order).

English concept of arrest

  1. Christine & Anor v Leachinsky [1947]
-       Arrest was pointed out here as the first step in a criminal proceeding against a suspected persosn on a charge which was intended to be judicially investigated.
(but not necessary as a first step in criminal proceeding, because it can start via a complain or FIR)

  1. Shaaban v Chong Fook Kam [1969]
-       Issue here is not what arrest is, but what amounts to reasonable suspicion that allows police to make an arrest. (so it will be considered as an obiter)
-       Issue is on Section.23(1)(a) of CPC on reasonable suspicion. See page 3 of the case.
-       An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs when by words or conduct he makes it clear that he will, if necessary use force to prevent the individual from going where he may want to go.
(but this is also not referring directly to our CPC, though he say law on arrest in contained in CPC, but he did not here made any reference to the provision of the CPC instead he offered a meaning of arrest. There is no reference to section.15 of CPC on suspicion of arrest. We can also say this is obiter because the issue here is not what amounts to an arrest but more on reasonable suspicion giving rights to an arrest. But because it came from PC, so this is made reference.)

  1. Jayaraman v PP [1982] 2 MLJ 273
-       This is an appeal of the High Court decision. So look at high court decision first.
-       The judge says arrest is constituted by a physical seizure or touching of the accused person’s body with a view to his detention. And it can also include by mere words without touching. Provided that the person submits to the command. (see page 6 of the case our of 13)
-       Whether or not there is an arrest is a question of fact to be determined by the trial court.
(one set of fact may constitute an arrest, another may not be, so our duty is to determine whether it is constitutes arrest or otherwise.)

  1. Alderson v Booth
-       Referred to what constitutes an arrest. And we can observe that section 15 is not there, court made reference to 113, law before amended.
(if there is an arrest, there must be a caution, if there’s an arrest and no caution, then it is inadmissible. So it was the issue of caution statement. Is the statement made by the accused it admissible but usually not because done after arrest and no caution given by police.) 

When Jayaraman went on Appeal to FC, (page 8 of 11) – issue was there an arrest or not then the court refers to section 15. In  making an arrest should touch or confine the body of the person. Unless there is submission to the custody by word or action. So section 15 is the embodiment of the English law on arrest. But we cannot take that in total and interpret the section using rules of statutory interpretation. It was then also referred to Shaaban seems that he approved and adopted Shaaban (without reference to section 15, plus it is an obiter) but seems to be adopted by court here in Jayaraman appeal. Section 15 is therefore as explained by Shaaban, but can disagree because Lord Devlin did not make reference to Section 15, Sufian should look at section 15 and interpret it within the context of CPC and look at the Indian position because adopted the Indian CPC. (then see further page 9 of the case) To sufian by saying it does not amount to an arrest, but under section 15 does it amount to arrest? Argument because still a question of fact. (may be an arrest under section.15) That is the effect of Shaaban even it is an obiter. Notwithtanding no reference to section 15, in Jayaraman, seems to link the statement of Lord Devlin to Section 15.

Most cases look at arrest that there must be actual arrest. Meaning to say there is a line of cases distinguishing actual arrest an d constructive arrest. If look at CPC nothing about actual or constructive arrest. Then from 1992, saying that constructive or actual arrest is not useful to distinguish and look at Section 15 which is a question of fact. Starting by:-

  1.  PP v Salleh bin Saad [1983] 2 MLJ 164.
-       See page 1 out of 4 (on the day…chemist)
-       So whether there was an arrest or not, the court says (page 3 out of 4) (an objection…admissible)
-       An objection was raised by the defence counsel as regards the admissibility of the Acused’s admissions having regard to the words “after hi arrest” appearing in Setion 37A(1) of the Ordinance. For the ground stated earlier in the notes of proceeding I held that those words men after actual arrest and not constructive arrest. It was therefore unnecessary for P.W.# a senior customs officer to administer the statutory caution as required under the same subsection of the accused.
-       But here he didn’t further elaborate on what is actual and what is constructive arrest.


  1. PP v Rosyatimah [1989] 1 MLJ 360
-       In this court, made reference to Jayaraman, and Shaaban.
-       The court here seems to suggest there can be a constructive arrest. So this is the case that adopts the constructive arrest. (WHERE IS THE CONSTRUCTIVE CONCEPT APPEARING IN THIS JUDGEMENT HERE)
-       Makes the situation more blur because saying arrest can also arise from constructive arrest.

  1. It was then in the case of [1992] 1 MLJ 360 PP v Kang Ho Soh
-       Putting forward what is an arrest is a question of fact looking at Section 15. Need to look at the law first when there is a statute on it before going onto another source. So here he says whether constructive or actual arrest still not useful. Need to see what Section 15 says. 
-       Approved by another line of cases in the High Court.

  1. PP v Shee Chin Wah [1998] 5 MLJ 429
-       Agreed with case of Kang Ho Soh.
-       Here police receive information and waiting at Ayer Keroh tol, when car came in to the tol, police directed car to go to the side and stop, then ask driver to open the bonnet and saw the packets.  
-       Ask for last chance. So statement made voluntarily and defence will say it is statement made without caution after arrest, so need to determine whether admissible. (the only snag…transaction uttered conseutively)
-       Here he is trying to explain what is section 15. Different approach. Jayaraman refer to Section 15 and straight go to the position of Shaaban. Even so in this case, made reference to Shaaban. Then he further referred to case of Rosyatimah.
-       Suggest there can be arrest on implication looking at circumstances. This suggest constructive arrest.
-       At least Salleh bin Saad made it clear must be actual arrest. But Rosyatimah suggest there can be constructive arrest and then because decided this case after Kah Hoh Soh, then could refer to that case and support it. The thing to do is look at Section 15 and the facts before you whether can fit in Section 15.
-       But based on this facts, police are ready ,and here in trial person admitted person was under arrest. There was confinement of the persons body and therefore the statement made was after an arrest with no caution.




THEN 10 YEARS LATER, SHEE CHIN WAH BECOMES THE NEW SCHOOL OF LAW ADOPTED BY JUDGES AFTER SALLEH BIN SAAD. (distinguish the actual and constructive arrest not adopted)

  1. Lim Hock Boon v PP [2007] 1 MLJ 46
-       Police were ready to ambush because took place in petrol station.
-       The statement was offered to the police due to panic. This is the statement that is always objected to whether admissible or not.
-       Here agrees with Kang Ho Soh, whether there is arrest depends on the facts. Depends on Section 15.
-       In this case here Gopal Sri Ram of the opinion facts where the police take the key and shut the engine, therefore there was an arrest based on the circumstances. Just lik Shee Chin Wah, police can, and took care of the scenario. That circumstances to the court there was an arrest. Here police stop and off the engine, cannot go anywhere so Gopal Sri Ram say there was an arrest on the facts especially this was an ambush the police was ready and had prior information.
-       Here in FC judgment, seems to be agreeable by approach adopted by Salleh Bin Saad. Agreeable to say that there must be actual arrest, when the police took key and turn off engine was not arrest, it was constructive arrest. So he brought back the distinction between the actual and constructive arrest.  

  1. Lee Cher Joo v Mohd Sharif Bin Othman [2009] 9 MLJ 352
-       Here again referred to Kang Ho Soh and because there was Lim Hock Boon at COA, then look at the section first then see how to explain the law and look for section in pari materia, the India Act, this is different from what is seen in Jayaraman.

The power to arrest and law of arrest is governed by written law unlike in UK it is common law. Whether in CPC or other specific statutes. But we don’t find definition of arrest in other statute, so make reference to Section 15 on how arrest is made.

  1. Saul Hamid v Inspector Abdul Fatah [1999] 6 MLJ 800

Recap, concept of arrest. If not in CPC, refer to English law. As a simple introduction to arrest ook at Alderson & Christie cases, section 15(1) CPC. Shaaban did not refer to Section 15. Ven though this case was approved by Jayaraman, need to be critical here that Shaaban is obiter on Section 15 of arrest. Issue is on reasonable suspicion.

We have looked at development of law since then and look at the legal and constructive arrest.  Lee Cher Joo which referred to the COA but at that point of time, Lim Hock Boon has not gone to FC. Issue in this cases raised was whether to look at arrest as actual or constructive arrest and is that in consonant as CPC, because we say the law is contained in CPC. So at least Rosyatimah is out totally because it suggest constructive arrest. But if we look at section 15 closely, the second part of Section 15 may argue as referring to constructive arrest regarding one submitting to an action under English law is constructive arrest. So notwithstanding of Lim Boon Hock, still not helpful to distinguish. So better to look at Section 15.

Arrest is still a question of fact regardless of where it falls, mentioned in the case of Lim Hock Boon to support to statement otherwise Jayaraman case in FC. Need to look at circumstances of case. So no use cites case law but did not look at the facts of the case.  Look at facts and decide and submit on the fact whether there was arrest or otherwise.

1.         Yong Moi Sin v Kerajaan Malaysia [2000] 1 MLJ 35 (to read)
  • Civil matter whether arrest was lawful or not, the claim was against government and arresting officer.
  • This case is useful when discuss reasonable suspicion. The frst issue whether there was an arrest and whether the arrest was lawful which will depend whether there was arrest in the first place.
  • Although here saying common law didn’t define, but there are number of cases judge gave definition of what arrest is. After he made this reference, he referred to Section 15 and explained section 15 and then he went on to look at Shaaban and said something about it.
  • “shaaban case list down the following propositions, at most shaaban propose the law on arrest. The judge did not criticize it but says Shaaban list down the following propositions. Here comes in useful if want to rely on some element of common law in the matter of arrest.  Then he discuss the 2 school of thoughts there but again it comes to the common grounds that both school agree to whereby arrest is in question of fact.
  • So read this to see how judge lay down the law on arrest.

So this week lecture move on to look at:-
 Who May Arrest.
1.                                    Police officer – section 2 Police Act (defines who is a police officer), Section 23(1), 24(1) & (3), 32 CPC
2.                          Pengulu – May arrest a a penghulu and not as a lay person. Section 23(1), 24(1) & (3), 25, 32 CPC
  1. Magistrate- Section 30, 31, 32 CPC
  2. Justice of peace- Section 30, 32
  3. Private person- Section 27(1) & (5) CPC (if do not fall in any of the above)

Types of Arrest
Without warrant – Seizable offence, Section 23(1) (a), 27 CPC, Section 27(1)(b)-(k) CPC, Non seizable offence Section 24(1) & (3) CPC
·             Police officer, Penghulu, Private person, Magistrate, JP
With warrant –        non seizeable offence.
·           Police Officer, Non police officer (situations such as example Lahad Datu, if within family dispute, so give family member to affect the arrest with the warrant given but this is not common).

*can refuse to follow police to police station but cannot refuse to give details.

M- Any offence (Section 30)
PG- seizable Section 23(1)(a) and non Section 24(1) &(3)
PO- seizable Setion 23(1)(a) and non (section 24(1) & (3)
PP- non-bailable Section 27(1) & seizable , offence on property (section 27(5)
JP – Any offence Section 30
Arrest by Po and PG
  • When to arrest is another legal question.
Safeguards, Section 23(1) (a) in respect of seizable offence there must be a reasonable complaint or a credible information or reasonable suspicion. So power to arrest is not for fun. Arrest must be in accordance with the law, it means how the arrest is to be affected, who and where. Because how it is to be affected is in Section 15, by whom are all the section above and when? This is the part of this discussion.  (seizable offence)
  • Non seizable offence – may not arrest without warrant & may arrest without warrant (Section 24).
*if any of these are absent, arrest becomes illegal.

A. Reasonable complaint – Seizable offence
- Section 2(1) CPC – defines complaint
- the power of arrest can be evoked when there is a reasonable complaint.
- allegation made orally or in writing to a  M with a view to his taking action under the CPC that some prson whether known or unknown has committed or is guilty of an offence
- objective test based on
2.       Tan Kay Teck [1957] MLJ 237
  • Singapore case where the court approve the English position, the court has to decide on the evidence so this shows it is an objective test. It approved the case below which is an English Case.
  • “In order to determine the question whether arrest was made upon a reasonable complaint, the court must first ascertain that were the facts known to the officer and then decide whether those facts amounted to a reasonable complaint. If amount to reasonable complaint, the arrest is lawful”
  • That’s why it is question for the court to decide when case comes before a court.
  • Our Malaysian court has also followed this.


3.         Tims v John Lewis [1951] 2 KB 459
  • Make reference to this English case via Section 5 because reasonable complaint not define, there is lacuna there so refer to English law.
  • Judge has to look at the facts, circumstances and evidence
  • In a civil suit it will come before the judge but the arresting officer must apply his mind objectively to the situation.

B. Credible Information
- Any information that is reliable and can be believed.
Information which in the judgment of police officer is credible in the particular case – need not be sworn statement.
  • Example where the police is very well experienced and knows how to roughly rely on certain information.
  • However, A bare assertion will not suffice (mendakwa tanpa fakta lain)

4.         Hashim v Saud v Yayha [1977] 1 MLJ 259
  • See civil cases, because the issue here is always after the arrest person claim whether arrest is lawful or not. To determine the 3 criteria that exist.
  • What was credible about info from police? Because came from an informant. If the information came from this police and the previous cases those information has led to an arrest, so if it comes from him the police is entitled to believe.
  • So look at the facts again.

C. Reasonable Suspicion
- because most of the time it arises from reasonable suspicion, can that give rise to an arrest?
- unlike complaint from  another party to the police, same like credible information, but for this it starts from the police himself, no input from the third party.



5.       Tan Eng How v AG [1933] MLJ 151
- receive info and observe the person and relates to what information they have received. In terms of movements and habits.
- So we have informant à to police à this information does not relate to anybody à based on this set of information à the police has reasonable suspect of A à so police arrested A based on reasonable suspicion.
- Unlike just now complaint to the police thorugh the Magistrate, stating A is here, if this complaint is reasonable police can arrest A. Credible info à gave to the policeà identifies A  à Based on this police can arrest A.
- So A here is identified but here is different, information is given to police but does not identify person here.
- if fit into the information can be arrested but must be based on reasonable suspicion.

6.       Shaaban [1969] 2 MLJ 219
  • Arising from traffic offence based on information iving rise to reasonable suspicion the police arrested A.
  • Of course A saw was unlawfully arrested
  • That’s why Shaaban is more on Section 23 – what amounts to reasonable suspicion and approved by Jayaraman in FC.

7.         Mahmood v Government of Malaysia [1974] 1 MLJ 103
  • In the dark, police heard women scream, so the constable rushed to that direction and saw person running away. So he chase and shouted to them to stop, they did not and continued to run away. He fired a warning shot so when they continue to run away, a second shot was fired and it hit the Plaintiff (in this case).
  • The issue here is whether the arrest was lawful and whether there was reasonable suspicion to effect an arrest by way of gunshot?
  • Look at the facts, Lake Garden à Night
  • Those circumstances, was it reasonable for the police to chase plaintiff? Was it reasonable for police to fire one shot for police to effect arrest? 2 shots? Reasonable
  • But in the case of youngster in Shah alam, police was acquitted because reasonable for police to fire those number of shots.
  • Here in the case, facts shows that police has reasonable suspicion to effect the arrest. By a gunshot.
Arrest y private person
  • Section 27(1) & (5) CPC
  • non bailable & seizable offence
  • in his view – in his sight, must have seen it with his own eyes. (strict application)
  • without unnecessary delay
  • Section 28(1) CPC
  • Brought before Magistrate within 24 hours.
In his view
Strict interpretation – in his sight
8.     Durga Singh [1963] 1 Gr Lj 827
9.     Kartar Singh v State AIR 1956b Punj 122
Liberal Interpretation
10.       Sam Hong Choy COA [1999] 4 MLJ 433
  • Appellant was together with an unidentified man ha robbed PW8 at gun point, W9 a member of the public heard gun fire and shouts and saw two men running past him, one was carrying plastic bag whilst other whom he later identified as the appellant, was armed with a pistol, gave chase, caught wup with the appellant and after a brief struggle appreheneded the appellant. He did not see it but only heard the gun shot, but COA willing to give liberal interpretation. Under this circumstances can arrest? He is not police officer because this can be reasonable suspicion but for privater person need to  be “in his view”. So here court allowed. Liberal interpretation.

11.       Walters v WH Smith [1947] 1 KB 595



12.       John Lewis v Tims [1952] 1 All ER
  • Made arrest and question as if he is a police, but he is not.
  • Then only after finishing everything, called police
  • Can amount for unlawful confinement
  • So between the time before handing to police can amount to wrongful confinement.

AMENDMENT OF CPC IN 2007 – RIGHTS OF ARRESTED PERSON
  • He might be arrested because of reasonable complaint, or credible information or reasonable suspicion on the part of the police, but that does not mean that the person is guilty. So he must be accorded the rights which are given by the law. It used to be that lawyers refer to Article 5 FC which safeguards but before 2007, there were no statute provision so relying only on Article 5(3) on FC on rights of arrested person.
  • This right can be categorized as right to be informed Article 5(3) FC.
Right to
He governing laws
Case law
Be informed
§ An arrested person has the right to be informed as soon as may be as the ground of his arrest by his arresting officer.


§ Article 5(3) of FC
§ Section 28A (1) of CPC (inserted after amendment, makes provision for first time on right to be informed)

§ Christie & Anor
5 position where the PO must inform arrested person on grounds of arrest
§ Abdul Rahman v Tan Jo Koh
Adopted position of Christie the English law into Malaysia.
Legal consultation/counsel
§ An arrested person has the right to consult and be defended by a lawyer of his or her choice
§ The consultation shall take place in the following manner:

(1) Shall be conducted at the place where he or she is detained

(2) shall be within sight of a PO but private enough so that the conversation will not be overheard by the Police

(3) the police shall provide facilities for the above communication and it shall be provided free of charge. (to relative or friend)
§ Article 5(3) of the FC
§ Lock up Rules 1953

§ After 28A, the right to communicate becomes the second right. Before, 1 is informed second is consultation.
§ But after amendment, second replaced with communicate.
Section 28A(4)(a) of CPC

Section 28A(5) of the CPC





Section 28A(7) of CPC

§ Ooi Ah Phua v OCCI Kedah/Perlis
§ Saul Hamid v PP
§ Lee Mau Seng v Minister for Home Affairs, Singapore.
Communication
§ An arrested person has the right to communicate with two persons
§ (1) relative/friend
§ (2) lawyer of her choice which does not mean right of legal counsel. 




Section 28A(2)(a) of CPC
Section 28A(2)(b) of CPC

Defer any questioning or recording any statement from the arrested person until the above communication takes place. The police shall defer recording any statement for a reasonable period until the arrested person consults a lawyer
Section 28A(6) of CPC

Be brought before a Magistrate within 24 Hours. AN arrested person has to be brought before the Magistrate within 24 hours upon arrest.
 Article 5(4)of FC
Section 28(3) of CPC

In accordance with the rights of the arrested person, the following must be observed:-
(1) Immediately upon arrest, the police must inform the arrested person the reasons for the arrest. The arrested person must also be informed of the right to be represented by a lawyer.
(2) Once the arrested person reaches the police station, or soon thereafter this person must be allowed to call his or her relatives and lawyer
(3) The lawyer must be allowed access to the client at the lock-up
(4) When consultation takes place between the lawyer and the client, although it must be within sight of the police, there should be enough privacy so that the conversation will not be overheard. Therefore the consultation cannot take place at crowded places like a canteen or in a detectives room surrounded by detectives and
(5) The police are to defer recording the statement of the arrested person until the above consultation takes place.





Summary of rights now

Law not is of better position after insertion of Section 28A however unfortunately, legislation gave something but takes something back and that is to be found in sub-section 8.

All those rights we have discussed can be denied by the Police under Section 28A(8) if police reasonably believes the compliance and accordance of the right would result in the accomplish person is informed or the police believe it will result in concealment, fabrication and destruction of evidence and intimidation of potential witness or involves the safety of other persons. Therefore the interrogation must start quickly. We have mentioned cannot question before lawyer. However the one outside is still free so whereby the Police can conduct interrogation immediately because of the other person who is free outside, so polie cannot delay interrogation. Section 28A(8) allows this.

We may say this can be fair because the criminal law and process must be between rights of A and right of state to maintain public order but the balance is delicate balance. Because at the end of the day there can be a denial of the arrested person notwithstanding law amended. And hence abuse may arise due to Section 28A(8).Even though we say 28A(8) should apply to police officer below the rank of DS. This is the person who can deny the rights, need his consent. Some safeguards is there so that the sergeant don’t abuse the position. To some, this is a clear infringement that it is against the constitutional rights.

To detain person more than 24 hours need to get remand order from Magistrate. There have been amendment to Section 28. Requirement to be brought to a Magistrate was already there but the importance of the amendment, it removed the word court. Due to the 24 hours time period. Next see section 117 of CPC  which is part of the process of police investigation. This is the amendment the number of days the arrested person can be further remanded.  Normally magistrate will not give maximum days.
Steps for the lawyer to follow during remand hearing
1.   The IO will hand over the investigation diary to the Magistrate.
2.   The IO will state the reasons for applying for the remand
3.   The lawyer representing the arrested person must ensure that all the reasons given by the IO are recorded. If the IO speaks too fast or too softly, then the lawyer must address this issue by raising it with the Magistrate.
4.   Once the lawyer has recorded all the reason given by the IO, the lawyer should take the opportunity to ask the Magistrate questions about the investigation diary.
5.   Once the lawyer has obtained the necessary information, then the lawyer may begin arguing against each of the reasons advanced by the IO.
CHAPTER 4 – SEARCH
The power of search goes hand in hand with police investigation because there will be no proper investigation without power to do search.
Types of search
  1. Frisking  - search of body of person
  2. Entry of premises and search for someone – search for person in premises
  3. Entry of premise and search for document or property – search of place or premises

Frisking involves touching,
Search of a premise, can be done with and without warrant.
With warrant à when, form and execution?
Without warrant? à Section 62 CPC, summary search ection 63 CPC, Section 116 CPC, seizure of things and common law.
Effect of illegal search or seizure
In Malaysia, it is found under CPC. Common law under cases.

Objective of search
1.   Necessary in relation to evidence
2.   It discovers evidence
3.   You preserve the evidence
4.   You prevent disposal of evidence
5.   Obtain incriminating evidence
6.   Leads to a seizure
7.   Leads to preservation of evidence
Example Banting Murder case; that would not be possible if police have not done the search.

1st type of search
By who? à Magistrate/JP
è  Inspector and above
è  Below rank of inspector in presence of M/JP/I
Types & methods à Setion 20A (a new section)
è Fourth Schedule CPC, objective, general conduct, (on how to do a search), took provision from Australia and it identifies the 4 types of body search below.
è 4 types: pat down (example in airport), strip, intimate, intrusive  (done by medical doctor)
A.  Pat down search
What? When? à Patting the outer clothing of a person – para 4(1) & 4(2) 4th schedule
è No authorization required – para 5 4th schedule
è Procedure 6 4th schedule
è Person below rank of I can do if in presence of Inspector.
è Immigration officer power is given by specific law which will override CPC.

B.  Strip search
What? When? à Removal of entire or some part of a person’s clothing – Para 7(2) 4th schedule
è Authorization, prior approval (written) or reduced to writing of Inspector & above or equivalent required – Para 8(1) & (2) 4th Schedule
è Para 9 4th Schedule

C.  Intimate search
What? When? à Physical examination of body or orifices other than mouth, nose & ears  Para 10 4th Schedule
è Authorization, prior approval (written or reduced to writing) of ASP & Above or equivalent required – Para 1 4th Schedule
è   Para 12 4th Schedule
  1. Intrusive search
What? When? à examination to determine existence of aany object etc inside the body & removal of it – Para 13(1) 4th Schedule
è Need prior approval of OCPD or equivalent required – Para 14(1) 4th Schedule
è Procedure in Para 15 4th Schedule
Search of body of person
  1. Power to seize offensive weapon
§  Section 21 CPC
§  Police officer
§  Other person
  1. To ascertain name & address, to find identity of the person.
§  Section 22 CPC

Search of premises with warrant
When? à Section 54(1) CPC (read together with Section 116 CPC) provides for 3 circumstances.
§  When the person who has been issued with summons (section 51 CPC) or requisition order (Section 52(1) CPC) is not complying/ will not be complying with such summons/order;
§  When property/document is ont known by the court to be in possession of any person
§  When the court considers that the purpose of justice will be served by a general search
Section 51 CPC is very important. à order to produce document, if your refuse to comply, police can come with warrant.
§  When? à Section 56 read together with Section 116 allow a magistrate to issue the search warrant to search for evidence of the offence as well.

1.         Chong Chieng Jen [2009] 8 MLJ 364
-  What is laid before the Magistrate must be of a credible information and not just any information. Here believed to be seditious materials in the 2 places named in the warrant
-  Court explained scope of section 56 which requires information and reason to believe. Court says this 2 are mandatory there must be information for existence of evidence in that premise and there must be reason to believe existence of evidence in the premises named in the warrant.
-  Court also held the mere believe of the complainer (the police) who goes to the Magistrate could not constitute the information not reason to believe under Section 56 of CPC.

Search warrant important because it involves invasion of privacy and property where the law protects therefore have conduct on body search. This is to be respectful to the person. More often because search lead to seizure so the law must accord some protection to owner of premise. That’s why search warrant required.

Form of search, Section 57 of CPC. It must be in writing and signed and shall bear the seal of court and in force for a reasonable number of days specified in the warrant and can be executed in any part of Malaysia.

2.   Lam Chiak [1986] 1 MLJ 374
-     In respect of validity of search warrant.
-     In paper may have expired but police still conducted the search.
-     Court here says; it does not state what is the reasonable number of days to be in forced however it must be subject to one limitation, it must be reasonable. What is reasonable? Depend on facts of case. Number not specified under Section 57(2).
-     It is directory and not mandatory to have the number of days in the warrant
-     So far not contested

Who can execute search warrant?
§  Section 60 CPC – allows Magistrate who issued the search warrant to attend personally to see that the warrant is duly executed
§  Section 61 allows any Magistrate competent to issue a search warrant to orally direct a search to be made in his presence of any place
§  Section 116 allows the investigating officer to conduct the search himself
§  Section 59 read with section 16(2) empowers the officer to break open any other or inner door of any place.

Search of premises without warrant
§  Section 62 – only search without seizing anything, if you need to do seizure, it is governed under Section 435 CPC.
§  Sectoin 62-65 and 116 make provision for search of premises without warrant.
§  Section 63 is summary search it involves the governing of search as well as seizure.
§  Section 62 and 116 are concerned with search and not with seizure
§  Identify difference between Section 62 and Section 63 and read

3.   Yong Moi Sin case.

Search of premises without warrant
Section 64 – list of things seized
4.   San Soo Ha v PP [1968] 1 MLJ 34
5.   PP v Chin Hock Aun [1989] 1 MLJ 509
6.   Gooi Loo Seng v PP [1993] 2 MLJ 137
7.   Alcontara v PP [1996] 1 MLJ 209
8.   PP v Chew Yew Choi [1990] 2 MLJ 97
9.   Wong Kim Leng v PP [1997] 2 MLJ 97

We are also interested in the common law position.
  • Section 435 CPC
  • Section 413 CPC
  • Common law position

10. Chic Fashions [1968] 2 QB 299
11. Ghani v Jones [1970] 1 QB 693
12. Re Kah Wai Video Ipoh [1987] 2 MLJ 459







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