Chapter 3 - Entry, Search & Seizure

Question 1

ENTRY, SEARCH & SEIZURE

Overview

Answer 1

1) Search of a body of persons
2) Search for person in premises
3) Search of a place or premises with warrant
4) Search of a place or premises without warrant
5) Issue on search
6) Seizure

Question 2

SEARCH OF A BODY OF PERSONS

Overview

Answer 2

1) When
2) Procedures
3) Meaning & scope of intrusive body search
4) Non-compliance with procedures

Question 3

SEARCH OF A BODY OF PERSONS

When

Answer 3

1) During raid:
- S.17
2) On arrested person in custody:
- S.20
3) On intoxicated, ill or mentally-sick:
- S.22

Question 4

SEARCH OF A BODY OF PERSONS

Procedures

Answer 4

1) General procedures:
- S.20A
2) On woman:
- S.19(2)
3) Power to seize offensive woman:
- S.21
4) Intrusive search:
- Para 13, 14 & 15 4th Schedule.

Question 5

SEARCH OF A BODY OF PERSONS

Scope & meaning of intrusive body search

CA, 2017

Answer 5

Mostafa Ebrahim & Rasoul Ahmadi v PP:

Facts:

• the capsules were recovered in the presence of the sentries but in the absence of a qualified medical officer.
• It was alleged that an intrusive search was done without consent.
• Therefore, it was argued that the seizure of the capsules were done illegally, the relevant provisions of the CPC had not been complied with, rendering the evidence given by the sentries to be inadmissible and the evidence not receivable.

Held:

• intrusive search not only involved the act of examination to determine the existence of any object, evidence, weapon or contraband, but also includes the removal of such object, evidence, weapon or contraband.
• the word “removal”
  strongly indicates an affirmative or positive action either by means of
  medical appliances or by means of forceful work by somebody upon the accused.
• OTF, the evidence of the sentries showed that all the capsules were excreted through the bowel movement
  of the appellants without intrusive body search.
• Normal bowel movement does not fall within the meaning of intrusive search

Question 6

SEARCH OF A BODY OF PERSONS

Non-compliance with procedures

HC, 2016

Answer 6

PP v Victor John:

• court is not concerned about the legality or illegality of the strip search conducted on the accused.
• court is only concerned about the relevancy of the evidence of the drugs exhibits obtained by the witness PW3 and not in the manner the witness obtained possession of them;
• i.e. as long as the evidence obtained is relevant to the case, it is admissible irrespective whether it was illegally or unlawfully obtained, regardless of whether procedure is complied with or not.

Question 7

SEARCH FOR PERSON IN PREMISES

Overview

Answer 7

1) When

2) Meaning of “wrongfully confined”

Question 8

SEARCH FOR PERSON IN PREMISES

When

Answer 8

1) To arrest a suspect:
- S.16
2) For wrongfully-confined person:
- S.58

Question 9

SEARCH FOR PERSON IN PREMISES

Meaning of wrongfully-confined

Answer 9

S.340 PC:

“restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits”.

Question 10

SEARCH OF A PLACE OR PREMISES WITH WARRANT

Overview

Answer 10

1) When search warrant may be issued

2) Forms of search warrant

Question 11

WHEN SEARCH WARRANT MAY BE ISSUED

Overview

Answer 11

1) General
2) Failure to deliver documents under S.51 - S.54
3) Upon application by person - S.54
4) For search of any fruits of a crime or instrument - S.56

Question 12

WHEN SEARCH WARRANT MAY BE ISSUED

General

Answer 12

1) The law:

S.54

2) Scope:
- search warrant may be issued in suo moto or upon application.

Question 13

WHEN SEARCH WARRANT MAY BE ISSUED

Failure to deliver documents under S.51

Answer 13

The law:

• S.54(1)(a)

Question 14

WHEN SEARCH WARRANT MAY BE ISSUED

Upon application by person

Answer 14

1) The law:
- S.54
2) Application - Re Kai Wai Video (Ipoh) Sdn Bhd:

Purpose of issuance:

1) SPECIAL DIRECTIONS:

• Special directions of the statutes authorising search warrants must be strictly observed.
• The information & warrant should follow closely the wording of the statutory provision.

2) INFORMATION UPON OATH:
- The applicant should place before a Magistrate an information upon oath rather than a purely formal document in technical language.
3) EX PARTE & DISCRETION:

• Application is made ex parte.
  The decision whether or not to issue a warrant is a matter for the Magistrate’s discretion.

4) ACTION AGAINST APPLICANT:

• No action will lie against an applicant for warrant who acts bona fide without malice.
• He is said to act bona fide when he has fully & fairly stated his grounds for applying.

5) EXECUTION OF WARRANT:
- Warrant must be executed by any person to whom it is directed & officer executing must keep the warrant with him at all times.

Format of warrant:

• Format: Schedule 2, Form 8.
• To whom - S.54(3): CPO of State & other officers.
• To whom - S.54(4):
  Any person or persons not being the police officer.
• Who is authorised to conduct the search - proviso to S.54(1):
  “The person to whom that warrant is directed”.

Question 15

WHEN SEARCH WARRANT MAY BE ISSUED

For search of any fruits of a crime

Answer 15

1) The law:
- S.56
2) Exercise of power - Ting Tiong Choon v PP:

• A magistrate must exercise due care & diligence in dealing with an application of this nature;
• The impact of the execution of warrant under this provision is so great that it may result in invasion of one’s privacy & rights to property.

3) Inquiry, whether mandatory - Ting Tiong Choon v PP:
- Where a search warrant has been issued without making a proper inquiry, the search warrant may be liable to be set aside on revision.
4) Format:
- Schedule 2, Form 9.

Question 16

FORMS OF SEARCH WARRANT

Overview

Answer 16

1) May be restricted
2) Signed & dated
3) Validity of warrant

Question 17

FORMS OF SEARCH WARRANT

May be restricted

Answer 17

S.55 - may be restricted:

• Search may be restricted to a particular place or part.

Question 18

FORMS OF SEARCH WARRANT

Signed & dated

Answer 18

1) The law:
- S.57, i.e. warrant shall be in writing & signed.
2) whether sign can be delegated - PP v Then Mee Kom:

• The Magistrate has to sign the warrant himself;
• This judicial function of Magistrate CANNOT be delegated.

3) Effect of omission of date - PP v Then Mee Kom:

• Omission to date the warrant of arrest is a serious defect which renders it invalid & cannot be acted upon.
• See: PP v Bird Dominic Jude - defect in warrant is cured when the accused is subsequently be brought to court.

Question 19

FORMS OF SEARCH WARRANT

Validity of warrant

Answer 19

1) The law - S.57(2):
- “reasonable number of days”
2) What amounts to reasonable number of days - Lam Chiak v PP

• The period specify in the warrant in which it is to remain in force must be reasonable.
• As to what number of days is considered reasonable, it depends on the circumstances such as:
• Area to be conducted;
  Articles or goods to be searched;
  *The offence alleged to be committed.

3) Failure to specify period - Lam Chiak v PP:
- Failure to specify period is not fatal to the continuation in force of the warrant after its use.

Question 20

SEARCH OF A PLACE OR PREMISES WITHOUT WARRANT

Overview

Answer 20

1) Search for stolen property upon information - S.62
2) Search for counterfeit coins - S.62A & S.62B
3) Summary search for stolen property - S.63
4) Search for evidence necessary for investigation - S.116
5) Search for evidence for investigation of a security offence or organised crime - S.116A-C

Question 21

SEARCH OF A PLACE OR PREMISES WITHOUT WARRANT

Search for stolen property upon information

Answer 21

1) The law:
- S.62
2) Requirements & scope:

• Information must be given to the police officer not below the rank of Inspector.
• Information leads to reasonable grounds for suspecting that:
• Stolen property is lodged or concealed in any place; and
• The delay in obtaining a search warrant could lead to the evidence being destroyed.
• Search is conducted by the police officer whom was given with the information (i.e. must not below the rank of Inspector).
• Must be accompanied by the person whom property was stolen or his representative.

3) Effect of non-compliance - Yong Moi Sin v Kerajaan Malaysia:

• The police entry & the search had not strictly complied with the provisions of S.62(2) and (3).
• CA set aside HC’s decision & remitted the case to SC for assessment of damages.

Question 22

SEARCH OF A PLACE OR PREMISES WITHOUT WARRANT

Search for counterfeit coins

Answer 22

1) The law:
- S.62A & 62B
2) Scope - Dato’ Sreesanthan a/l Elliathamby v PP:
- Peruntukan-peruntukan di bawah s. 62, 62A, 62B, 63 dan 116A KTJ membenarkan pengeledahan dan penyitaan dilakukan dengan tanpa waran.

Question 23

SEARCH OF A PLACE OR PREMISES WITHOUT WARRANT

Summary search for stolen property

Answer 23

1) The law:
- S.63
2) Scope:

S.63 allows CPO to authorise any police officer to:

• Enter the place;
• Conduct a search;
• Seize, any property “suspected” of being stolen

Question 24

SEARCH OF A PLACE OR PREMISES WITHOUT WARRANT

Search for evidence necessary for investigation

Answer 24

1) The law:
- S.116
2) Scope:

• Allows police officer making investigation (i.e. investigating officer) to search for any thing or document which is necessary for the conduct of an investigation.
• All provisions relating to search warrants shall be applicable.

3) Application & failure to comply - Mohammad Shafiq Dollah v Sarjan Mejar Abdul Manaf Jusoh & Ors (HC, 2013):

• S.116 is only applicable to investigation officer, not arresting officer;
• Therefore, the search conducted by the first defendant is illegal.
• OTF, Court awarded RM60,000 to Plaintiff for the illegal search conducted by the Defendant.

Question 25

SEARCH OF A PLACE OR PREMISES WITHOUT WARRANT

Search for evidence for investigation of a security offence or organised crime

Answer 25

1) The law:
- S.116A - C
2) Scope:
- Powers to search and seize any evidence which is used in the commission of a security offences or organised crimes.
3) Application - Dato’ Steesanthan Eliathamby v PP:
- “Peruntukan-peruntukan di bawah s. 62, 62A, 62B, 63 dan 116A KTJ membenarkan pengeledahan dan penyitaan dilakukan dengan tanpa waran.”

Question 26

ISSUES ON SEARCH

Overview

Answer 26

1) Search list - general
2) Search list - dangerous drugs
3) Presence of occupants
4) Absence of prosecution after conducting search by warrant
5) Failure to comply & effect of illegal search

Question 27

ISSUES ON SEARCH

Search list - general

Answer 27

1) The law:
- S.64
2) Applicability - PP v Lim Mung Shaing:

• Only applicable for search under Chapter VI (S.54 - 57) & (S.62-63).
• S.64 & 65 do not apply to search list made in consequence of a raid (i.e. S.16 search, joint customs & police raid for drugs);

3) Effect of non-compliance - San Soo Ha v PP:

• S.64 must be strictly complied and followed.
• However, conviction or acquittal does not depend on whether a particular legal procedure has been complied with.
• Even if the evidence is obtained irregularly, there is nothing in the law which makes such evidence inadmissible (i.e. illegally obtained evidence is admissible).

Question 28

ISSUES ON SEARCH

Search list - dangerous drugs

Answer 28

1) The law:
- S.27 DDA
2) Whether mandatory - PP v Chin Hock Aun:

• Provisions of S.64 & 65 were inapplicable for search of dangerous drugs.
• S.27 DDA also does not require search list to be produced.
• Therefore, it is held that anti-narcotics officers searching a premise are not obliged to prepare a search list in respect of drugs seized.

3) Whether signing amounts to confession:

Amounts to confession - PP v Chew Yoo Choi:

• Search list which the accused signed for the heroin found was tantamount to confession.

Does not amount to confession - Wong Kim Leng v PP:

• The signing of the search list does not amount to confession.
• What the accused did was to acknowledge that he had received a search list & nothing more, akin to accused acknowledging the receipt of chemist report.

Recent position - does not amount to confession - Suhidar v PP (CA, 2019):

• there is no law at all stating that an inference of guilt may be drawn from the signature of the appellant on the search list.
  3) Failure to produce search list during trial:

Alcontara Ambross Anthony v PP:

• When there is a conflict on material evidence, a search list ought to be tendered in evidence or its non-production should be accounted for.
• Failure to produce or account for its non-production will result in S.114(g) being invoked against the prosecution.

4) Recent case & application - Shamsuddin Sohan v PP (CA):

• The failure to follow a particular legal procedure did not necessarily affect the integrity of the prosecution’s case.
• There was no dispute as to where the drug was found and no suggestion of any possibility of fabrication or misconduct of the witnesses for the prosecution.
• Therefore, failure to produce search list at trial is not fatal because it had totally no nexus with the identity of the drug in the package which fell from the jacket of which there was no controversy.

Question 29

ISSUES ON SEARCH

Presence of occupants

Answer 29

1) The law:
- S.65
2) Whether presence is mandatory - Sohail Khan v PP (CA, 2018):

• pada waktu serbuan itu terdapat Perayu, SP5 yang sedang tidur di bilik berasingan dan Fahad telah dikumpulkan di ruang tamu semasa pemeriksaan di dalam bilik Perayu dilakukan dan bahawa bilik Perayu yang agak kecil, maka tiga penghuni tersebut tidak dibawa bersama masuk ke dalam bilik tidur Perayu tersebut.
• Pada pandangan kami perkataan ‘shall’ dan ‘be permitted’ tidak menunjukkan sesuatu yang wajib.

Question 30

ISSUES ON SEARCH

Absence of prosecution after conducting search by warrant

Answer 30

Kerajaan Malaysia & Ors v Then See Nyuk (CA, 2018)

• The fact there was eventually no prosecution framed against the respondents or Gen X did not mean that the search warrant was illegal or there was bad faith on the part of the appellants.
• To prosecute or not to prosecute is the prerogative of the Public Prosecutor, based on the availability of evidence pertaining to the offence.

Question 31

ISSUES ON SEARCH

Failure to comply & effect of illegal search

Answer 31

1) Non-compliance with S.62 - Yong Moi Sin v Kerajaan Malaysia:

• The police entry & the search had not strictly complied with the provisions of S.62(2) and (3).
• CA set aside HC’s decision & remitted the case to SC for assessment of damages.

2) Non-compliance with S.116 - Mohammad Shafiq Dollah v Sarjan Mejar Abdul Manaf Jusoh & Ors (HC, 2013):

• S.116 is only applicable to investigation officer, not arresting officer;
• Therefore, the search conducted by the first defendant is illegal.
• OTF, Court awarded RM60,000 to Plaintiff for the illegal search conducted by the Defendant.

Question 32

SEIZURE

Overview

Answer 32

1) Seize offensive weapon - S.20
2) Seize stolen property - S.435
3) Procedures upon seizing - S.413
4) Illegally obtained evidence

Question 33

SEIZURE

Seize offensive weapon & stolen property

Answer 33

1) offensive weapon:
- S.20
2) stolen property:
- S.435

Question 34

SEIZURE

Procedures upon seizing

Answer 34

1) The law:
- S.413
2) Order for return - Manoharan v Ketua Polis IPK Polis Seremban:

• Where the true owner of the property is known, the police must deliver the property to the Magistrate within 24 hours;
• Failure will render the continued detention of the property illegal & unlawful & they may be liable to pay for damages.
• It is only the Magistrate who has the power to order the delivery of the property after holding an inquiry.

3) Considerations by Magistrate - Hong Leong Bank v PP:

Magistrate has to consider:

• ENTITLEMENT:
  who is entitled to the possession of the property at the time it was seized.
• LAST POSSESSION:
  where it appears that police has seized the property from a person who has not been shown to have committed any offence with regards to the property, the Magistrate may order it to be returned to the person last in possession.
• TITLE OR OWNERSHIP:
  The issue of title or ownership is to be determined by the civil court.

Question 35

SEIZURE

Illegally obtained evidence

Answer 35

1) General principle - Saw Kim Hai v Reg:

• When an accused person is brought before a court, the court has a jurisdiction to try him;
• This is notwithstanding the fact that his arrest may have been illegal.
• The fact that evidence has been illegally obtained does NOT affect the question of its admissibility.

2) General principle - Kuruma v Reg:

• It is well-established that even if evidence is illegally obtained, but if relevant, it is admissible.
• The court has the discretion to exclude evidence which may be prejudicial as opposed to one related to technical breach.
• More so, if the prejudicial effect outweighs its probative value;
• Held in the present case: the court has the power to expunge irrelevant evidence at any stage of trial.

3) Exception - Cheng Swee Tiang v PP:
- Although improperly or irregularly obtained evidence does not become inadmissible, the court is clothed with powers to exclude any evidence where the prejudicial effect of the evidence outweighs its probative value.
4) Application - Goi Ching Ang v PP:

• illegally obtained evidence should be excluded if it operates unfairly against the accused;
• court has discretion to exclude evidence that operates unfairly & prejudicial against the accused.
• OTF, since the learned judge had found that the section 27 information was not voluntarily made, it is irrelevant & in the interest of justice and fairness, it ought to have been excluded.

5) Application - Francis Antonysamy v PP:

• court has the discretion to exclude evidence obtained in the irregular circumstances which are extraordinary.
• OTF, FC agree with Goi Ching Ang v. PP that information supplied under s. 27 which has been found to be involuntary may be excluded by the Court in the exercise of its discretion.
• As the exclusion of the evidence is discretionary, the exercise of the discretion depends on the facts of each case.