CPC - Search and Investigation

  • Search can be divided into two main areas:
    • Entry and search of persons in premises.
    • Search which concerns the body of persons.

Entry and Search of Persons in Premises

  • Section 16(1): If a person with a warrant believes the individual they want to arrest is inside a premises, they can demand entry from the person residing or in charge of the place to search for the person sought to be arrested.

  • Section 16(2): If entry is denied, the police can use a reasonable amount of force to break into the premises, mainly to prevent the suspect from escaping.

  • Section 18: Grants the police or any person authorized to make the arrest the power to break open any place to free themselves or anyone who has gone in lawfully to make the arrest but was wrongfully confined.

Search for Persons Wrongfully Confined

  • Section 58: If a magistrate is convinced that someone has been wrongfully confined, they can issue a search warrant. Once the person is found, they must be immediately brought before the magistrate.

  • A search warrant is required under Section 58, whereas searching for a person sought to be arrested generally does not require a warrant unless if it's a private person.

  • Section 59(1): Any person who resides in or is in charge of a closed place is legally obligated to allow the officer or person executing the warrant to freely enter the premises.

  • Section 59(2): If entry is denied, reasonable force can be used to break into the premises.

Power to Search Persons in Place Searched Under Warrant

  • Section 17: Grants the police the power to search persons in a place where they have entered with a search warrant. Individuals found inside can be lawfully detained until the search is complete. If there’s a suspicion of concealed items, a search can be conducted on the person. Generally, the search must be done in the presence of a magistrate, justice of peace, or an inspector.

  • Unlike Section 20A, arrest is not required to search a person under Section 17.

  • Section 19(2): A woman can only be searched by another woman with strict regard to decency.

Body Search

  • Section 20: Deals with body search which stipulates that only if a person is lawfully arrested then his body can be searched.

  • Section 413: Is relevant to Section 20, providing for the seizure of things by a police officer.

  • Whenever a person is arrested under section 20 A or B the police officer making the arrest may search the arrested person for any article except the necessary wearing pairings.

  • Section 21: Grants the police the power to seize offensive weapons from an arrested person, which must then be handed over to the court.

  • Private persons also have the power to conduct a body search, but only to remove offensive weapons.

  • Section 20A: The method of body search is detailed here, dividing it into four different types of search:

    • Pat down search.
    • Strip search.
    • Intimate search.
    • Intrusive search. Intrusive search requires that a medical doctor must be present.

  • Section 22: Deals with search to verify the address of a person.

You must refer to schedule to see the methods of search under section 20A. Each section gives requirements on the different models as to how the search should be done.

  • In recent times there have been questions asking whether the law of search is adequate in Malaysia given that authorities still bring a lot of authorities from English Law, so questions can even be in broad sense to that extent.

Search of Place or Premises

  • Consists of searches with a warrant and without a warrant.
Search with Warrant

  • Section 54: Search warrant will be issued, where the court believes that a person where there is a summons under section 51 or where you have asked him to produce a document or property under 52(1) does not do so may issue a search warrant.

  • The court can issue a search warrant to a named private person under Section 54(4).

  • The court has the power to restrict the search to a particular place.

  • Section 56: Magistrate can issue a warrant to search for evidence if they believe there is hidden evidence.

  • The definition of reasonable belief can be found the case of PP v. Mohammed Irwan Hafiz, it means good cogent reason which supports the belief that the incriminating evidence can be found in that place where they are applying to execute the search warrant.

  • Section 57: Every search warrant issued by the court must be in writing, signed, and must have the seal of the court. It is valid for a reasonable number of days and can be executed anywhere in Malaysia.
    In the case of Lamcha v PP they said it has to be executed within a reasonable amount of time.

  • Section 64: A list of the things seized during the search must be prepared by the officer making the search and signed by the officer.
    *Whether it be that the search is with warrant or without warrant you must still comply with section 64.
    In the case of *Al Kontara, Santuha* have a look at a number of cases to better grasp

  • The case of The notes that if you omit to prepare the lease of things they have ceased, the court said it is okay and not fatal to prosecution's case, but they also went to say court must carefully look at the police officers who have conducted the search because it cast doubt of the bonafide of the police.

  • The case of PP v Chinhok Aum the accused put forward that the failure to prepare the search lease is fatal to prosecution's case, the court actually rejected, the court said the CPC section does not apply because the accused was charged under the Dangerous Drug Act, instead refer to the case of Gui Gui Lu Singh where the inspector inspected the location a drug case and the packages of drugs were recovered by a cupboard recovered from the accused himself the court said that contradiction actually was fatal to the prosecution’s case the accused was acquitted .

  • Acknowledgment to the search lease does not amount to automatically amount to a confession.
    There are case that say yes, it amounts to a confession and some that say no.

  • Section 65: The occupant must be present, the occupant of the place searched or his representative must be permitted to be present at the search, and the lease prepared and signed must be given to that guy who is the occupant of that place at least one copy of it must be given to him.

Search Without Warrant

  • Section 116(4): Allows the usage of Section 59 of the CPC for the purpose of entry. Section 16(2) is also very similar because of police do not have a search warrant they can break open and go into the premises so long as it is is reasonable force.

  • Section 62 & 435: Any police officer who must not be below the rank of inspector can search any pace that has been specified for a specific property/ item that have been stolen. Section 435 allows police to seize any property they believe to have been stolen.

  • Summary Search which provides you with the power to search and seize stolen property which can be found under Section 63.
    Sub one says police officer authorize in writing by the chief police officer (CPO) can enter and seize any property suspected to have been stolen. Sub three and four need to also be looked at to get a batter understanding.

  • Section 51A: Is where you have to produce certain documents and all that.

  • Section 51: Governs summons to produce documents and also apply for certain documents, ask for certain information when you are the defence (The Haji Abdul Ghani Bin Isha v PP) is a great case to support this section.

Effect of Illegal Search and Seizure

  • The Saminathan v PP where the judge says that the magistrate who is looking at that needs to only consider, or is only concern with the relevancy of that evidence no matter the maner that the police obtained it.

Police Investigation

  • Information report is important for police to kick start a criminal investigation, the case of Emperor v Khwaja Nazir Ahmad sets the pace in which the process kick starts, FIR is referred to as a complaint given to the police whether it be information on a offence, sometimes it is even known as a police report however it is not a necessity for criminal investigation.

    • Generally, if the complaint is given orally to the officer in charge of the station they must reduce it into writing. Then it should be read over to the guy who is giving that complaint, and it will be entered into a book that is kept by OCS at the police station Section 107 sub section 1-4, it will tell you what is an information report.
      • The FIR needs to be signed. Failure to sign puts you in risk of Section 180 of the penal code (3 months punishments).
        If it is not reduced in writing then you consult the case of PP against, if FIR has to be reduced in writing or there can be adverse inference, Tan Cheng Qui, Balachandran, Abdul Razak Bin Johari.

  • The accused is entitled to receive copy of their information by consulting Section 51A as long as there is no threat to the security of state.

Admissibility of FIR

  • Section 108A which requires that if certified copy by the OCPD then it can be admissible as evidence through the content of the FIR. Consulting the case of Ismail Bin Atan and Kang Ho Soo Case.

  • Whether it is a seizable or nonseizable offence, serious vs nonserious

Seizable Offence

  • (Sec 109) Sergeant above does not wait for the order to investigate from the PP.
    Procedure for this will lie in sec 109-110 as an administrative duty. Under section 110, if a credible offence is suspected on receipt (seizable) straight away investigation is in place from the authorities.

Non-Seizable Offence

  • Consists of a different approach. If the authorities do no want to investigate with the person to the magistrate to take cognizance of the offence with his case (sec 128(1) is referenced here for this situation).

  • On the other hand, (Section 108(3)) sergeant above can achieve order to investigate from public prosector office can kickstart investigation.

    • Note, the amendments to this in 2012.
    • Complainants can file this and seek an update on police progress (107(a) sub rules).
    • If they’re just sleeping on it, they need to provide information.
      From there also, remand orders are a notable aspect (in situations where investigation must be completed beyond 24 hrs.) The human order will follow with (117) says one is arrested must not be kept beyond 24 hrs.

  • (117) works with (119) to get things moving along. 117 shows how the remand is dealt with and how investigations are to be handled for different amounts of time. (119) shows the police entry and what is require. Then you get the order.

    • KPD JOHABARU v MUI DECHOY shows what a clerical error in writing the investigation, as long as bona ride intentions the appeal will be valid.
    • Investigative diary is a must and if missing can create a problem and is a need.
      (118) should have a bond to be present to court if needed. (112) show the examination of witness can fall on (114).
      Witness has a duty answer questions unless it will, in away, incriminate them.

  • The case of NULYANA SULAIMAN, the courts have been trying to state voluntariness is to be stressed.
    (113)(new), cannot use said examination, but does mean other witness can be referred to via testimony. There are still some magic words for certain offences (Kindaapping act 3c, Ddg etc.) in what is required. (112) is related to the procedure in which the examination is to be recorded. Note 112 and 113 are related to the procedure only.
    (399) of the cpc with states has to be given 10 says before what is need the chemist to provide about trial (the report is needed); this is exception to psc rule and should also be noted.
    Trial within a trial is needed and exists to defend the voluntariness of their statements to see if there was coercion.

Public Prosecutor’s Powers

  • The relevant law that covers this are Federal Constitution, CPC and other statutes.
    Article 145(3) gives the AG the power to institute, conduct or discontinue proceedings. (376) states (376(1-4)) shall control and direction under CPC.

    • A solicitor general is also another role, acting as the pp in his place. Leong Cohort is applicable here.
      (50(3) of the cga) appeal sign to show sg authorized by public profecutor.
      May powers are to be performed by him personally and even to this day, cases can be transferred, section 50(3). PP can authorize to police officers amended.
      (377) conduct if prosecution in the court, pp can appointment persons to conduct cases. customs officers the best at this now (prosecuting officers).
      discretion power Johnson tan has had arms. Noted, power to proceed for prosecution.