JUNE 2018 1(b)
Siti Huszaini Binti Hajman @ Hamjeman
Putri Nur Izzatul Binti Arpandi
Bryan Francis
Raihanah Hazeerah Binti Roeshidee
Tengku Sharifah Emilia Binti Tengku Othman
Wan Nur Asyiqin Binti Wan Zainal Rashid
SEARCH WITH WARRANT
Section 116 of CPC: empowers police officers conducting an investigation to search for any property or documents related to the offence that is the subject of his investigation
Section 116(3) of CPC: If he is unable to conduct the search in person and
there is no other person competent to make the search present at the time, he
may require any officer subordinate to him to make the search, and he shall ● Ahmad Ishak v PP -The magistrate must look into the
deliver to the subordinate officer an order in writing specifying the document circumstances of the case to see if they are such that any
or other thing for which search is to be made and the place to be searched, reasonable man could see sufficient cause to believe
and the subordinate officer may then search for the thing in that place. ● Chong Chieng Jen v Mohd Irwan Hafiz bin Md Radzi &
Anor [2009] 8 MLJ 364: Where search warrants to search the
premises of the applicant’s legal firm and his residence on
Section 54 of CPC: A warrant can be issued for search where: grounds of suspicion of keeping incriminating material were
● There is reason to believe that a person will not or would not issued, the court, in setting aside the search warrants and
produce the property or document when summoned. ordering the return of items seized, HELD 3 things:
● The property or document is not known to the court to be in the ○ The information that the magistrate acts upon must be
possession of any person. information credible enough to form a basis for
● A general search will serve the purpose of justice or of any believing that materials connected to the offence were
inquiry/trial/proceeding to be found
Section 55 of CPC: The court may it thinks fit specify in the warrant the ○ The application for a search warrant must be
particular place or part thereof to which only the search or inspection shall supported with other information (e.g: police report,
extend, and the person charged with the execution of the warrant shall then relevant entry in the ID)
search or inspect only the place or part so specified ○ The mere belief of a complainant is insufficient to
Section 56 of CPC: A magistrate may issue a warrant if upon information he constitute ‘information’ or ‘reason to believe’,
has reason to believe that an offence has been committed, or any evidence causing the warrants to have been unlawfully issued.
which is necessary for the investigation can be found in any place.
Search without warrant
Section 62 Section 64
● All search of premise need warrant unless it falls under exception to section ● A list of all things seized and of the places in which they were
62 found shall be prepared by the officer conducting the search
● Done on information received by a police officer not below the rank of and signed by him.
Inspector ● Pp v Au See Lian. The search list is to demonstrate the
● In relation to stolen property concealed or lodged in any place and where integrity of police officer in conducting search.
there are good grounds to believe that delay obtaining a warrant of search, ● San Soo Ha v PP, failure to prepare a search list would, at
is likely to lead to removal of the stolen property most, cast doubt upon the bona fide of the party conducting
Section 63 the search and afford a ground for scrutiny by the court.
● Any police officer be authorized in writing by the Chief Police Officer to ● Thavanathan a/l Balasubramaniam v PP, the court stated that
enter, if so authorized, may enter any place in search of stolen property and it is not obligatory to state in the search list how things came
search and seize and secure any property which he believes to have been to be in place in which they were found.
stolen.
Section 65
● The occupant of the place searched or some person on his behalf shall be permitted to attend during search. A copy of the list prepared and signed
under this section shall be delivered to that occupant or person at his request.
● PP v Amirul Lubis, the importance of an accused being present to witness the recovery is that an accused who is not present during the recovery
would be effectively denied the chance to challenge the very evidence upon which his fate hangs and would be seriously handicapped in the
conduct of his defence.
Effect of Illegal Search
● PP v Seridaran, where a search has been carried out contrary to the provisions of the CPC and incriminating items are secured as a result of the
search, the admissibility of these items are not tainted by the illegality of the search.
Section 116A
● Situations when immediate action is required, in which case Section 116A of the Criminal Procedure Code allows the police to enter without a
warrant.
● This is applied mainly for national security concerns (such as SOSMA offences) and organized crime (such as gangsterism, triads, and
mafiatype offences) where a delay may cause the evidence to be moved or destroyed.
● Here, only a PDRM officer ranked an Inspector or above may enter and search the relevant premises for evidence. The officer must have
reasonable grounds to believe that such offences are being committed and that a DELAY CAUSED BY OBTAINING A WARRANT may make
the search for evidence difficult.
APPLICATION
In applying the law to the current question, Constable Alfa headed the search party and immediately went to Anggur's house around 1 pm,
since Inspector Beta was attending to another case.
Firstly, applying the principle of Section 116(3) of CPC to the present case, with regards to whether Constable Alfa being an officer below
the rank of Inspector (as required in Section 62) conducted a search on Anggur’s house, Constable Alfa had a valid authority to make the
search. This is due to the reason that since Inspector Beta was unable to conduct the search in person and there is no other person
competent to make the search other than Constable Alfa. This section allows police officers not below the rank of Inspector, such as
Inspector Beta, to delegate the search to any competent officer subordinate to him, in this case, Constable Beta, as long as he delivered a
written order to the Constable which specified the particulars of the search including the place to be searched by Constable Beta.
Although the search made in the living room of the house did not lead to recovery of anything incriminating or any related evidence with
the fact that Anggur is a notorious ring leader who smuggles raw diamonds and gems from Cambodia, according to Section 116, police
officers conducting an investigation to search for any property or documents related to the offence that is the subject of his investigation
and based on the information received by Constable Alfa, all of the drugs smuggled from Thailand were stored in Anggur's house located at
No. 30, Jalan Mewah, Section 2, Shah Alam. Hence, Constable Alfa still has the right to make a search on the premises.
APPLICATION
In compliance with Section 65, in this case, Concita was present during the search of the premise and the search list has to be presented to
her.
This search by Constable Alfa will not require a search warrant for the drugs found as pursuant to the phrase “reason to believe'' in
Section 116. By virtue of Section 62, a search of the premises can be done without having to have the search warrant. The element of reason
to believe is shifted to the police now. Now, the police must exercise their judicial mind. If police think by not conducting search, then police
lose some documents or property, then 116 would be invoked and applied.
In this case, Anggur had smuggled raw diamonds and gems from Cambodia. Later the proceeds are used to purchase drugs smuggled from
Thailand and these drugs were later sold to local drug traffickers. All of the items including gems, raw diamonds and drugs were believed
to be stored in Anggur’s house located at No. 30, Jalan Mewah, Section 2, Shah Alam. The officer in charge, which is Constable Alfa, had a
strong belief that the delay in obtaining a search warrant will most likely lead to the removal of all of the evidence tendered in court thus
satisfying Sections 62 and 63.
With regards to the axe:
The act of Constable Alfa removing the axe and kept it in his bag despite's Concita's protest which an axe that was used in a
murder case involving an Indonesian woman in a nearby neighbourhood was found in Concita's bag is appropriate as
looking at Sec 435 of CPC as well as in the case of Chic Fashions (West Wales) Ltd v Jones whereby the axe is a piece of
material evidence that will be used against Anggur and his wife, Concita, since the axe was suspected to be the murder
weapon in a murder case in a nearby neighbourhood.
