SEARCHES

Yong Moi Sin v Kerajaan Malaysia, the court in the case held that a search is to prevent the
secretion of vital evidence and from being destroyed.

S17 of CPC states that any person found in a search can be lawfully detained until the search has
been completed.

S116A(1)(c) of CPC states that police officer of at least Inspector rank may without search warrant,
search person in a place where he suspects evidence of offences are concealed, reasonably believes
that obtaining the search warrant will cause delay.

S20 states that the police officer should keep the articles found when arresting any person in safe
custody.

S40(2) – under warrant

S22 of CPC states that search can be done on person in custody who cannot account himself due to
intoxication, illness, mental disorder, incapacity or infancy, to ascertain his name and place of abode.

S186 of Penal Code states that resistance is an offence of obstructing public servant in discharging of
his public duty.

S20A(1) of CPC states that search must conducted in compliance with Fourth Schedule of the Code.

S20A(2) of CPC states that provisions in Fourth Schedule applies to any search of a person conducted
by any officer of any enforcement agency.

S19(2) of CPC states that only woman can search a woman and shall be made with strict regard to
decency.

Para 1(2) Fourth Schedule define arrested person

Procedure

S20A – Procedure on a search person

Para 3 Fourth Schedule – General Conduct of officer during Search ( S19 CPC)

TYPES OF BODY SEARCH (PARA 2 FOURTH SCHEDULE)

PAT DOWN SEARCH – outer clothing, quickly running the hands over

S4-reasonable suspicion weapon being concealed, all the time of arrest, before the arrested person
put into custody

S5- authorization not required

S6 how to conduct

STRIP SEARCH - removal some part of clothing/ all clothing, may allow remain part clothing

S7(1-3)- arrest had been made, reasonable suspicion in concealing object

S8- Required authorization, PO not below the rank of Inspector, approval must be reduced in writing

Pendakwa Raya v Victor John – the court not concern about the legality of the search but the
relevancy of the evidence

S9- how to conduct

Para 3(2)(e)- second same sex officer shall present during the search

INTIMATE SEARCH – physical examination, arrested person body opening other than mouth , nose,
ears, (virginal & anal)

S10- arrest had been made, reasonable suspicion evidence is in his body

S11-authorization required – prior approval a PO not below the rank of Assistant Superintendent of
Police (asp)

S12-procedure

INTRUSIVE SEARCH – examination inside the body and removal of such object.

S13-Government Medical Officer, Medical Officer, any hospital assistant/ registered nurse

S14- require authorization, prior approval of a PO not below the rank of an officer in charge of the
Police District (OCPD), approval need record

S15- procedure

Emmanuel James Kalu, the court held contraband recovered in ordinary way by a natural bowel
movement without any medical invention is not an intrusive search.

Followed by Alexis Zogbelemou

Mostafa Lesanibaroogh Ebrahim, the court held that normal bowel movement in a search is not a
intrusive one.

Basil Azubueze Okafor- drugs in the body of accused “naturally “ remove , within meaning of
instructive search.

S21 of CPC states that arresting person may seize offensive weapons from the arrested person and
produced to court or the arrest officer.

Salamat bin Mangon, the court defines offensive weapons as instrument intended for an offence.

Barry Abdoul, the court held that recovery of foreign object in the accused abdomen does not fall
within any of the four types of searches in law. Therefore, even if there is procedure breached, S422
can cure it. In this case, the foreign object was found through physical examination and x-ray was
conducted to ascertain the fact.

SEARCH OF PREMISE FOR PERSON

S16 of CPC (search of place entered by person sought to be arrested) states that any person acting
under warrant of arrest, police officer or penghulu reasonably believe that the target is inside a
place, the person in charge of such place, shall allow him free ingress to the place and afford all
reasonable facilities for a search inside.
S58 of CPC (person wrongfully confined) states that upon application to the magistrate, warrant to
search for the particular person may be granted.

WITH WARRANT (any court may issue a warrant, not necessarily police, search only)

S54(1) of CPC (document) states that the court may issue search warrant to direct someone search
and inspect.

S56 of CPC (evidence of offence) states that magistrate upon information and inquiry, may by
warrant authorize a person to search for evidence in the place and bring it before the magistrate.

S51(1) of CPC states that the court may by summons or written order, cause the person possessing it
to attend and produce any property or document desirable for investigation or trial.

S51(2) of CPC states that

S51(3) of CPC states that

S52 of CPC states that POSTAL ARTICLES

Chong Chieng Jen v Mohd Irwan Hafiz bin Md Radzi, the court held that inquiry is not mandatory
under S56 but only if the magistrate thinks it necessary, which is within his discretion. Credible
information is not needed as well as long as the magistrate has reason to believe. Somehow,
information and reason to believe are mandatory as invasion of privacy and property will be
resulted in together with confiscation of the property. Reason to believe is a question of fact in
which any reasonable man could see sufficient cause to believe. In this case, search warrant was
granted in a belief that the applicant had posted seditious articles on blogs, but such articles were
not exhibited in application. The court held that it was merely based on the belief hence set aside
the warrant.

Ahmad bin Ishak, the court held that the only way to determine reason to believe is looking into
circumstance of the case and a reasonable man test.

N Indra P Nallatamby v PP, the court held that S51 must be applied before reading S54 of CPC.
Therefore, police officer must apply to court to issue summons or order to produce property or
document. The court further held that S413 does not apply but only when there is stolen property
seized.

S57(1) of CPC states that search warrant shall be in writing bearing court seal.

S57(2) of CPC states that such warrant remains in force for reasonable number of days specified in
warrant.

Lam Chiak, the court held that period of time is not mandatory to be stated and 6 to 7 days to
execute a warrant is within a reasonable period of time.

S54(3)( who can execute) of CPC states that search warrant should be directed to CPO of the state of
issuance of the warrant, named officers or any police officers.

S54(4) of CPC states that court can issue the warrant to persons by name other than police.

S55- power to restrict search warrant

S60- power of magistrate

S61- power of magistrate

Chic Fashion (West Wales) Ltd v Jones, the police with search warrant seized something other than
as described in the warrant as stolen ones. The court held that it is allowed provided that the police
believed them to be stolen goods.

Ghani and Others v. Jones, the police in searching for a missing Pakistani woman, seized the
passports of the plaintiff together with those of his wife and daughter. The court held that the
police had no right to retain and order the return. The court further laid down that to make a
search when none has been charged or arrested, the police must reasonably believe that serious
offence has been committed, that articles in question are related to crime, that person possessing
them are related and that the conduct of the police must be lawful at that time.

In Re Kah Wai Video Ipoh Sdn Bhd, when police were searching for copies of films, they seized both
list and unlisted items. The court held that the police is entitled to do so.

S59(1) of CPC states that place liable to search

S59(2) of CPC states that such place cannot be so obtained may proceed in manner S16

S16(2) of CPC states that shall be lawful to break

S17 of CPC states that search person in place search under warrant

SEARCH WITHOUT WARRANT [STOLEN PROPERTY]

S62(1) – inspector above, place specified, reasonable caused suspecting

S62(2) of CPC states that list of the stolen property must be prepared.

S62(3) of CPC states that the owner must be present.

S435 of CPC states that police may seize allegedly or suspected to be stolen property.

S62A of CPC states that COUNTERFEIT CURRENT COIN

S62B of CPC states that FORGED COUNTERFEIT CURRENT COIN

Yong Moi Sin v Kerajaan Malaysia, the court held that the police are allowed to searched appellant’s
factory for stolen gold locket without warrant to prevent the vital evidence to be melted away.

S63(1) of CPC states that CPO’s authorization in writing is necessary

S63(3) of CPC states that CPO may authorise in 3 conditions.

SEARCH DOCUMENT WITHOUT WARRANT

S116(1) of CPC states that police officer making office investigation, document may search

S116(4) of CPC states that search warrants shall apply under this section

S59(1) of CPC states that any place liable to search is closed, allow him free ingress

S59(2) of CPC states that cannot be so obtained, break in

S16(2) break in

S17- search person under searched place with warrant

S24(1)(b) of the Police Act 1967 states that police may stop and search without warrant any vehicle
or vessel which is reasonably suspected in commission of offence.

EFFECT OF ILLEGAL SEARCH

King v R – search defective but the evidence was still admissible

R v Sang – relevant evidence is admissible even though illegally obtained

Kuruma v R, -illegally obtained evidence is admissible

Saminathan v PP, the court held that a court is only concerned with the relevancy of the evidence
and not the manner of the evidence was obtained by. In this case, no police officers who searched
and arrested the accused was a senior officer.

Wong Liang Ngule, the court also held that the fact that the evidence is unlawfully obtained does not
affect its admissibility.

Saw Kim Hai & Anor v R, the court held that when an accused is before the court, court has
jurisdiction to try him even though his arrest may have been illegal.

Cheng Swee Tiang v PP, the court held that unlawfully obtained evidence is admissible if relevant.
Somehow the court has judicial discretion to disallow if it operates unfairly against the accused.

PP v Seridaran, no order to investigate was obtained from the PP for a non-seizable offence. The
court held that illegally obtained evidence is relevant to the matters in issue, hence admissible.

Ramli bin Kechik v PP, the chemist’s analysis of the substance suspected to be dangerous drugs was
held to be admissible after the first chemist’s analysis was insufficient to prove the prosecution’s
case.

Dato' Seri Anwar Ibrahim, the court held that admissibility of evidence in Malaysia is not based on
the manner in which such evidence is obtained but on its relevancy.

Victor John, the court also held that as long as the evidence obtained is relevant to the case, it is
admissible irrespective whether it was illegally / unlawfully obtained.
SEIZURE
S20- search body must place in safe custody, detain any those articles there is reason to believe
were the instrument of the crime until his discharge

S21- power to seize offensive weapons

S435-m power of police

S65- procedure

S64- prepare a search list

S65-serve to occupant

Permeshwar Singh v State

San Soo Ha v PP, the court held that the failure to produce the search list is not fatal to the
prosecution’s case. The court will carefully scrutinize the items seized from the search.

PP v Chin Hock Aun, DDA, no requirement for a search list

Alcontara Ambroos Anthony v PP, when there is acute conflict between the evidence of the
prosecution witness and of defence regarding the exhibits were found, the prosecution should
produce the search list. Failure to do so will invoke adverse inference against the prosecution’s case.

CONFESSION

PP v Lim Mun Shaing, search list became written statement which amounted to a confession once
accused put down signature

PP v Chew Yew Choi, accused signature= a confession

** Both cases under DDA ， since no caution has been administered by officer before signed, it
inadmissible.

PP v Ahmad bin Lateh – the fact signed a search list does not make it a confession

PP v Lee Soon Sian, the court held that the signature on the list of seized property merely show his
acknowledgement to the list received such as receipt of chemist report.

Wong Kim Leng v PP, the court held that signature on the list of seized property does not amount to
confession and therefore admissible.

Kuruma v R , relevant , it is admissible even illegally obtained

REPORT TO MAGISTRATE

S.413(1) procedure, delivery, custody, investigation, shall keep safe and proper

S20 taken under body search

S435 police officer who seize must immediately report to the seizure if subordinate to him

SEARCH & SEIZURE WITHOUT WARRANT

S116A- PO not below the rank of inspector, reasonable to suspect , any offence relating to an
organized crime
ACCESS TO COMPUTERISED DATA

S116B not below rank of the inspector access, any information obtain under subsection shall be
admissible in evidence

S116C- authorize police officer to intercept, any communication contain any information, oral the
authorisation