4 Search and seizure

1.0 Introduction
Generally, there are two types of searches namely search on body of person and search in
premise.
Yong Moi Sin v Kerajaan Malaysia

● A search conducted by the police is an important aspect of the investigation process.

A search is important as it will prevent the secretion of vital evidence.
● After the offending article is found, the seizure thereof would be useful as it would
prevent the article from being destroyed.
State of Assam v. Upendra Nath Rajkhown

● The power to search must go hand in hand with the power to investigate.

2.0 Search of body

● Search of person during search of premise

● Search of person in custody for name and address

● Search of person arrested

2.1 Search of person during search of premise (search only)

S 17 of CPC: Whenever a search for anything is or is about to be lawfully made in any place,
all person found therein may be lawfully detained until the search is completed and if the
thing sought is capable of being conceal upon the person, they can be searched in the
presence of a Magistrate or Justice of the Peace or a police officer not below the rank of
Inspector.
S 19(2) of CPC: A woman can only be searched by another woman with strict regard to
decency.

2.2 Search of person in custody for name and address (search only)
S 22 of CPC: Every person lawfully in custody, who by reason of incapacity from
intoxication, illness, mental disorder or infancy is unable to give a reasonable account of
himself, may be searched for the purpose of ascertaining his name and place of abode.
Kamaruddin bin Omar v PP
 ● The court stated the element to be considered in deciding whether or not a person is
intoxicated is whether he was so under the influence of liquor as to impair his
judgment.
● Webster defines “intoxicated” as “under the influence of an intoxicating liquor or
drug”, and “drunk” as “being under the influence of an intoxicant especially alcoholic
liquor so that the use of the faculties is materially impaired”.

2.3 Search of person arrested (search and seizure)

S 20 of CPC: Whenever a person is arrested—
(a) by a police officer under a warrant which does not provide for the taking of bail
or under a warrant which provides for the taking of bail but the person arrested cannot
furnish bail; or
(b) without warrant or by a private person under a warrant and the person
arrested cannot legally be admitted to bail or is unable to furnish bail,
the police officer making the arrest or, when the arrest is made by a private person, the police
officer to whom such private person hands over the person arrested may search such person
and place in safe custody (seizure) all articles other than necessary wearing apparel found
upon him, and any of those articles which there is reason to believe were the instruments or
the fruits or other evidence of the crime may be detained until his discharge or acquittal.
* S 20 of CPC has to be read together with S 413 of CPC which provides that the seizure
or finding by any police officer of property taken under S 20 shall be immediately reported to
a Magistrate. The Magistrate will make necessary order as he thinks fit with respect to the
property.
S 20A of CPC: Procedure on search of person
(1) Any search of a person shall comply with the procedure on body search as
specified in the Fourth Schedule of this Code.
(2) Notwithstanding any written law, the provisions of the Fourth Schedule shall
apply to any search of a person conducted by any officer of any enforcement agency
conferred with the power of arrest or search of a person under any law.
(3) The Minister charged with the responsibility for internal security and public order
may amend the Fourth Schedule by order published in the Gazette.
*4th Schedule is important and must be cited during exam
Para 1 of 4th Schedule: Objective of search
Para 2 of 4th Schedule: Types of body search
(a) Pat down search;
(b) Strip search;
(c) Intimate search; and
(d) Intrusive search.
Para 3 of 4th Schedule: General conduct of officer during search
Para 3(1) of 4th Schedule: The officer shall comply strictly comply with the following
procedure:
(c) the officer conducting the search shall be of the same sex as the person
arrested with strict regard to decency
(e) for strip, intimate and intrusive search, a second officer who is of same sex as
the person arrested shall present during the search
* I only put important one, other read your own
Resistance to the search is an offence
S 186 of Penal Code: Whoever voluntarily obstructs any public servant in the discharge of
his public functions, shall be punished with imprisonment for a term which may extend to
two years or with fine which may extend to ten thousand ringgit or with both.

2.3.1 Pat down search

Para 4 of 4th Schedule: Pat down search
(1) Pat down search is the act of searching the outer clothing of a person arrested
which is to be conducted by quickly running the hands over the outer garments of the
person arrested.
(2) Pat down search may be conducted when there is reasonable suspicion that a
weapon, object, evidence, contraband is being concealed on a person arrested. The
search may be conducted in the following circumstances:
(a) at the time of arrest; or
(b) before the arrested person is put into custody in a lock-up or detention
centre.
Para 5 of 4th Schedule: No authorization from an officer is required to conduct a pat down
search.
Para 6 of 4th Schedule: Procedure on pat down search

2.3.2 Strip search

Para 7 of 4th Schedule: Strip Search
(1) A strip search means a search involving the removal of some part of outer
clothings or removal of all the person arrested's clothing and during the search, the
person arrested may be allowed to remain partly clothed by allowing him to dress his
upper body before removing items of clothing from his lower body.
(2) Strip search may only be conducted in the following circumstances:
(a) an arrest has been made; and
(b) when there is reasonable suspicion that the person is concealing an object,
evidence, contraband or weapon on him.
 (3) Strip search may be conducted before a person arrested is detained in a lock-
up or a detention centre or may also be conducted whenever he re-enters the lock-up
or a detention centre where there is a reasonable suspicion that the person is
concealing an object, evidence, contraband or weapon on him.
Para 8 of 4th Schedule: Authorization to conduct strip search
(1) A strip search can only be conducted with the prior approval of a police
officer not below the rank of Inspector or in the case of any other enforcement
agency, by an officer whose rank or authority is equivalent to the rank or authority of
Inspector.
(2) The approval under subparagraph (1), if given orally shall be reduced in writing
by the officer conducting a search, in the case of a police officer, into the station
diary and in the case of any other enforcement agency, such approval shall be
recorded in a proper book of record.
Pendakwa Raya v Victor John

● Strip search had been conducted on the accused by a Detective Sergeant. The
Sergeant had ordered the accused to remove his trousers to expose the drug exhibits
that were strapped to his legs.
● The court held that the search was illegal since the Sergeant did not obtain the prior
approval of Police Inspector before he conducted the strip search.
● However, despite the search is illegal, as long as the evidence obtained is relevant to
the case, it is admissible irrespective whether it was illegally or unlawfully obtained.
Para 9 of 4th Schedule: Procedure on strip search
(n) a list of all things seized in the course of the search shall be prepared by the officer
conducting the search and signed by the person arrested and he shall be given a copy
thereof. (search list is required)
Para 3(1) of 4th Schedule: The officer shall comply strictly comply with the following
procedure:
(c) the officer conducting the search shall be of the same sex as the person arrested
with strict regard to decency
(e) for strip, intimate and intrusive search, a second officer who is of same sex as the
person arrested shall present during the search

2.3.3 Intimate Search

Para 10 of 4th Schedule: Intimate Search
(1) An intimate search means a search which consists of the physical examination of
a person arrested's body orifices other than the mouth, nose and ears.
(2) The intimate search may only be conducted in the following circumstances:
(a) an arrest has been made; and
 (b) the officer has a reasonable suspicion, whether or not the pat down search
or strip search is conducted, that the person arrested is concealing a weapon,
object, evidence or contraband in his body orifices.
Para 11 of 4th Schedule: An intimate search can only be conducted with the prior
approval of a police officer not below the rank of Assistant Superintendent of Police or
in the case of any other enforcement agency, by the officer whose rank or authority is
equivalent to the rank of Assistant Superintendent of Police.
Para 12 of 4th Schedule: Procedure on intimate search
(e) the procedure on strip search as specified under subparagraphs 9(a), (b), (c), (d),
(e), (f), (j), (k), (l), (m) and (n) shall apply for the purpose of intimate search.
*** Take note
(n) a list of all things seized in the course of the search shall be prepared by the officer
conducting the search and signed by the person arrested and he shall be given a copy
thereof. (search list is required)
Owens v Chief Constable of Merseyside Police

● The court held that before an intimate search can be conducted, the individual must be
arrested, prior authorization from a senior officer has to be obtained, and the
authorising officer must reasonably believe that the individual had concealed drugs
and such drugs cannot be found without an intimate search.

2.3.4 Intrusive Search

Para 13 of 4th Schedule: Intrusive Search
(1) An intrusive search means a search involving the examination of a person
arrested to determine the existence of any object, evidence, weapon or contraband
inside the body or body orifices of the person and includes the removal of such
object, evidence, weapon or contraband. (1st limb)
(2) The intrusive search shall only be conducted by a Government Medical Officer
or a Medical Officer, or by any hospital assistant or a registered nurse acting under
the Government Medical Officer or a Medical Officer's direction. (2nd limb)
Para 14 of 4th Schedule: Authorization to conduct intrusive search
(1) An intrusive search can only be conducted with the prior approval of an
Officer in charge of the Police District or in the case of any other enforcement
agency, by the officer whose authority is equivalent to the authority of an Officer in
charge of the Police District.
(2) The approval under subparagraph (1) shall be recorded in the station diary and
in the case of other enforcement agencies, such approval shall be recorded in a proper
book of record.
(3) A Government Medical Officer or a Medical Officer after being served with a
copy of the request for an intrusive search containing particulars of the approval of
 the officer under subsection (1) shall, as soon as possible, conduct the intrusive
search or direct any hospital assistant or a registered nurse to conduct the search.
Para 15 of 4th Schedule: Procedure on intrusive search
(a) the person arrested may be taken to the nearest hospital as soon as practicable
for the search to be conducted accompanied by an officer;
(b) the accompanying officer, who is of the same sex as the person arrested, shall
witness the search and shall take into custody of any weapon, object, evidence or
contraband recovered pursuant to the search;
(c) a list of all things seized in the course of the search shall be prepared by the officer
conducting the search and signed by the person arrested and he shall be given a copy
thereof. (search list is required)

Emmanuel James Kalu v PP

● The court held that where the contraband is recovered in an ordinary way i.e., by a
natural bowel movement without any medical intervention, it does not fall within the
meaning of intrusive search.
● The court also held that since the appellant was not brought to the hospital the
purpose of determining the existence of any object, evidence, or contraband inside his
body or body orifices, the search is not considered as intrusive search.
Mostafa Lesanibaroogh Ebrahim & Anor v PP

● The court held that intrusive search not only involved the act of examination but also
included the removal of such object, evidence, weapon or contraband.
● The word “removal” in Para 13(1) of the 4th Schedule strongly indicated an
affirmative or positive action either by means of medical appliances or by means of
forceful work by somebody upon the appellants.
● Normal bowel movement did not fall within the meaning of intrusive search.

PP v Bayati Heider

● The court held that the intrusive search is illegal. The reason is because despite the
first limb of Para 13(1) of the 4th Schedule was satisfied when the search was
conducted by Medical Officers, it is nevertheless that the second limb was not
satisfied as the search was conducted by police officer instead of a Medical Officer.
Also, the recover of exhibit was also not done in an ordinary way but by way of
natural bowel movement.
3.0 Search of premise
● Search for person in premise

● Search for documents, property or evidence in premise

3.1 Search for person in premise (search only)

3.1.1 Person to be arrested
S 16 of CPC: Search of place entered by person sought to be arrested
(1) If any person under a warrant of arrest or any police officer or penghulu having
authority to arrest has reason to believe that any person to be arrested has entered
into or is within any place the person residing in or in charge of the place shall, on
demand of the person so acting or the police officer or penghulu, allow him free
ingress to the place and afford all reasonable facilities for a search in it.
(2) If ingress to that place cannot be obtained under subsection (1) it shall be lawful
in any case for a person acting under a warrant and in any case in which a warrant
may issue but cannot be obtained without affording the person to be arrested an
opportunity to escape for a police officer or penghulu to enter the place and search in
it, and in order to effect an entrance into the place to break open any outer or inner
door or window of any place whether that of the person to be arrested or of any
other person if, after notification of his authority and purpose and demand of
admittance duly made, he cannot otherwise obtain admittance.

Pagla Baba v State

● It was held that in the case where the premises have a few entrances, the arresting
officers must go to the main entrance and demand entry.

3.1.2 Person wrongfully confine (search only)

S 58 of CPC: Search for persons wrongfully confined
(1) If any Magistrate has reason to believe that any person is confined under such
circumstances that the confinement amounts to an offence he may issue a search
warrant.
(2) The person to whom the warrant is directed may search for the person confined.
(3) The search shall be made in accordance with the warrant and the person, if found,
shall be immediately taken before a Magistrate who shall make such order as in the
circumstances of the case seems proper.
PP v Mohd Zhafri bin Abu Baker

● The victim had been abducted, be taken into a house and be raped. Since the
prosecution had succeed in proving the abduction, the search in the house in order to
search for the victim is therefore valid.
3.2 Search in premise with warrant
3.2.1 Search of documents (search only)
Apply a warrant from court
S 54 of CPC: When search warrant may be issued
(1) Where-
(a) any Court has reason to believe that a person to whom a summons
under section 51 or a requisition under subsection 52(1) has been or might
have been addressed will not or would not produce the property or
document as required by the requisition;
S 51: to produce document or other things
S 52(1): to produce postal article, telegram or other documents
(b) that property or document is not known to the Court to be in the
possession of any person; or
(c) the Court considers that the purposes of justice or of any inquiry, trial or
other proceeding under this Code will be served by a general search or
inspection,
the Court may issue a search warrant and the person to whom that warrant is
directed may search and inspect in accordance with the warrant and the provisions
herein contained.
(2) Nothing herein contained shall authorize any Court other than the High Court to
grant a warrant to search for a postal article, telegram or other document in the
custody of the postal or telegraph authorities.
*Read together with S 116 of CPC.
N Indra a/p P Nallathamby v Public Prosecutor

● A search warrant had been granted to the police officer with the condition that the
search and seizure must be conducted within 3 days, and after the search, the police
must produce all articles seized before the magistrate's court. However, the police had
failed to do so.
● As such, the court held that the police had acted in contravention to the search warrant
and all seized item pursuant to the search warrant must be produced before the
Magistrate to determine whether the seized item are to be returned forthwith to the
owner or to allow the police to have continued safe custody.

3.2.2 Search for evidence (search and seizure)

S 56 of CPC: If a Magistrate, upon information and after such inquiry as he thinks necessary,
has reason to believe that anything upon, by or in respect of which an offence has been
committed, or any evidence or thing which is necessary to the conduct of an investigation
into any offence, may be found in any place, he may, by warrant, authorize the person to
whom it is directed to enter, with such assistance, as may be required, and search the place
for any such evidence or thing, and, if anything searched for is found, to seize it and bring it
before the Magistrate issuing the warrant, or some other Magistrate, to be dealt with in
accordance with law.
*Read together with S 116 of CPC.

● Here, Magistrate may issue warrant authorizing search for evidence of offence.

● 1st Part: Authorized a person to enter and search the place for evidence.

● 2nd Part: The things being searched for may be seize and brought before the
Magistrate.
Ting Tiong Choon v PP

● The respondent had applied for a search warrant. The Magistrate approved the
application but it was found that the search warrant is not supported by supporting
documents.
● The court held that the Magistrate had committed an error in approving the search
warrant as the Magistrate failed to exercises due care and diligence by asking for
further information or making further inquiry.
Chong Chieng Jen v Mohd Irwan Hafiz bin Md Radzi

● The court held that, pursuant to S 56 of CPC, the requirement for 'information' and
'reason to believe' is mandatory. What must be laid before the learned magistrate must
not be just any information or mere belief but one credible enough to form a basis for
believing that evidence was to be found in the place searched.

3.2.3 Form of search warrant

S 57 of CPC: Form of search warrant
(1) Every search warrant issued by a Court under this Code shall be in writing and
signed as provided by the Courts of Judicature Act 1964, or the Subordinate Courts
Act 1948, and shall bear the seal of the Court.
(2) Every such warrant shall remain in force for a reasonable number of days to
be specified in the warrant.
(3) Search warrants issued under this Code may be executed in any part of Malaysia
Lam Chiak v PP

● In this case, a search warrant is issued without the period being specified. The warrant
was executed 7 days after the issuance. The court held that the requirement of time in
the warrant is merely directory and not mandatory. Therefore, the execution of such
warrant 7 days later was within a reasonable period of time.
3.2.4 Person to execute search warrant
S 54(3) of CPC: A search warrant shall ordinarily be directed to the Chief Police Officer
of the State in which it is issued and to some other officers to be designated by name therein,
and all or any of those police officers may execute the warrant.
S 54(4) of CPC: The Court issuing a search warrant may direct it to any person or persons by
name, not being police officers, and all or any one or more of those persons may execute the
warrant.

3.2.5 Power to restrict search warrant

S 55 of CPC: The Court may if it thinks fit specify in the warrant the particular place or part
of it to which only the search or inspection shall extend, and the person charged with the
execution of the warrant shall then search or inspect only the place or part so specified.

3.2.6 Power of Magistrate

S 60 of CPC: The Magistrate by whom a search warrant is issued may attend personally for
the purpose of seeing that the warrant is duly executed.
S 61 of CPC: Any Magistrate may orally direct a search to be made in his presence of any
place for the search of which he is competent to issue a search warrant.

3.2.7 Can a police search and seized item not in warrant? Ans: Yes
Chic Fashion (West Wales) Ltd v Jones

● When a constable enters a house by virtue of a search warrant for stolen goods, he
may seize not only the goods which he reasonably believes to be covered by the
warrant, but also any other goods which he believes on reasonable grounds to have
been stolen and to be material evidence on a charge of stealing or receiving against
the person in possession of them or anyone associated with him.
Ghani and Others v Jones

● It is the settled law that a police officer is entitled to take any goods which they find in
his possession or in his house which they reasonably believe to be material evidence
in relation to the crime for which he is arrested or for which they enter. If in the
course of their search they come on any other goods which show him to be implicated
in some other crime, they may take them provided that they act reasonably and detain
them no longer than is necessary.
Re Kah Wai Video Ipoh Sdn Bhd

● The court held that the Magistrate which issued a search order had no power and
authority to direct the return of the unscheduled articles seized by the police
authorities to the owners even if the police authorities had second thoughts when
applying for search warrants in the first place.
 ● The police were authorized to seize and remove the unscheduled articles by virtue of
the implied extension of powers under the warrant and/or the extension of their
common law power. (This case is regarding to copyright. So, such power is also
subject to the provision of Copyright Act)

3.2.8 Persons in charge of closed places to allow search

S 59(1) of CPC: Whenever any place liable to search or inspection under this Chapter is
closed any person residing in or being in charge of that place shall on demand of the officer
or other person executing the warrant and on production of the warrant allow him free ingress
to it and afford all reasonable facilities for a search in it.
S 59(2) of CPC: If ingress to such place cannot be so obtained the officer or other person
executing the warrant may proceed in the manner provided by subsection 16(2). (break open)

3.3 Search in premise without warrant

3.3.1 Search of stolen property without warrant (search only)
S 62 of CPC: Search without warrant
(1) If information is given to any police officer, not below the rank of Inspector that
there is reasonable cause for suspecting that any stolen property is concealed or
lodged in any place and he has good grounds for believing that by reason of the
delay in obtaining a search warrant the property is likely to be removed, that officer
by virtue of his office may search in the place specified for specific property alleged
to have been stolen.
(2) A list of the property alleged to have been stolen shall be delivered or taken
down in writing with a declaration stating that such property has been stolen and that
the informant has good grounds for believing that the property is deposited in that
place.
(3) The person from whom the property was stolen or his representative shall
accompany the officer in the search.
* Read together with S 425 of CPC regarding to seizure

Yong Moi Sin v Kerajaan Malaysia

● The police suspect that a gold locket had been stolen and therefore searched the
appellant’s factory without warrant.
● The court held that the search was legal as it was necessary for the police to prevent
vital evidence which was the gold locket from being melt away.
● Abdul Malik Ishak J further held that even if the search was illegal, the police can
never be construed as criminal trespassers.
PP v Foo Kim Lai
 ● A police officer had done a search on a vehicle where upon examination, it was found
that the said vehicle was reported to be stolen. Therefore, the respondent was arrested
for further investigation.

3.1.2 Search for counterfeit coin (search and seizure)

S 62A of CPC: Search and seize for counterfeit coin
S 62B of CPC: Search and seize for counterfeit currency

3.1.3 Summary search on stolen property (search and seizure)

S 63 of CPC: Summary search
(1) Any police officer may under the circumstances mentioned in this section, be
authorized in writing by the Chief Police Officer to enter, and if so authorized, may
enter any place in search of stolen property and search and seize and secure any
property which he believes to have been stolen in the same manner as he would be
authorized to do if he had a search warrant and the property seized, if any,
corresponded to the property described in the search warrant.
(2) In every case in which property is seized in pursuance of this section the person in
whose place it was at the time of seizure or the person from whom it was taken, if
other than the person in whose place it was, shall unless previously charged with
receiving the same knowing it to have been stolen be summoned before a Magistrate
to account for his possession of the property, and the Magistrate shall make such
order respecting the disposal of the property and may award such costs as the justice
of the case may require.
(3) The Chief Police Officer may give such authority as aforesaid in the following
cases or either of them
(a)when the place to be searched is or within the preceding twelve months has
been in the occupation of or used by any person who has been convicted of
receiving stolen property or of harbouring thieves; or
(b)when the place to be searched is in the occupation of or used by any person
who has been convicted of an offence involving fraud or dishonesty and
punishable by imprisonment.
(4) It shall not be necessary for the Chief Police Officer on giving such authority to
specify any particular property but he may give the authority if he has reason to
believe generally that the place is being used for the reception of stolen goods.
* HJH say not important

3.1.4 Search of documents by Investigating Officer (search only)

S 116 of CPC: Search by police officer
(1) Whenever a police officer making a police investigation considers that the
production of any document or other thing is necessary to the conduct of an
 investigation into any offence which he is authorized to investigate and there is
reason to believe that the person to whom a summons or order under section 51
has been or might be issued will not or would not produce the document or other thing
as directed in the summons or order or when the document or other thing is not known
to be in the possession of any person, the officer may search or cause search to be
made for the same in any place.
(2) That officer shall, if practicable, conduct the search in person.
(3) 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 deliver to the subordinate
officer an order in writing specifying the document or other thing for which search is
to be made and the place to be searched, and the subordinate officer may then search
for the thing in that place.
(4) The provisions of this Code as to search warrants shall, so far as may be, apply
to a search made under this section.
* S 59(1), S 59(2), S 16(2), S 17, S 24(1)(b)

4.0 Seizure
4.1 Type of seizure
4.1.1 Seizure during body search
S 20 of CPC: Police may search the arrested person and place in safe custody all articles
other than necessary wearing apparel found upon him, and any of those articles which there is
reason to believe were the instruments or the fruits or other evidence of the crime may be
detained until his discharge or acquittal.
S 413(1) of CPC: The seizure or finding by any police officer of property taken under
section 20 or alleged or suspected to have been stolen or found under circumstances which
create suspicion of the commission of any offence shall be immediately reported to a
Magistrate, who shall make such order as he thinks fit respecting the delivery of the property
to the person entitled to the possession of it, or, if that person cannot be ascertained,
respecting the custody and production of the property.

4.1.2 Seizure during search on stolen property

S 425 of CPC: Any member of the police force may seize any property which is alleged
or may be suspected to have been stolen, or which is found under circumstances which
create suspicion that an offence has been committed, and such member, if subordinate to the
officer in charge of the nearest police station, shall immediately report the seizure to that
officer.
S 435 of CPC: The police officer who seizes any property which is alleged or suspected to
have been stolen must immediately report the seizure to the officer in charge of the nearest
police station if subordinate to him.
4.1.3 Power to seize offensive weapons
S 21 of CPC: The officer or other person making any arrest under this Code may take
from the person arrested any offensive weapons which he has about his person and shall
deliver all weapons so taken to the Court or officer before which or whom the officer or
person making the arrest is required by law to produce the person arrested.

4.2 Search list

Search list must be prepared
S 64 of CPC: A list of all things seized in the course of a search made under this Chapter
and of the places in which they are respectively found shall be prepared by the officer or
other person making the search and signed by him.
Occupant is allowed to be present during the search and search list must be given
S 65 of CPC: The occupant of the place searched, or some person in his behalf, shall in
every instance be permitted to attend during the search, and a copy of the list prepared
and signed under this section shall be delivered to that occupant or person at his request.

San Soo Ha v PP (failure to prepare search list is not fatal)

● The court stated that failure to comply with the provision relating to search list may
only cast a doubt upon the bona fides of the parties conducting the search and
accordingly afford ground for scrutiny.
● However, if after close scrutiny the Court arrives at the conclusion that the stolen
articles were recovered from the possession of the accused person, it is obviously no
defence to say that the evidence was obtained in an irregular manner.
● It was further held that failure to prepare a search list is not fatal to the prosecution’s
case.
PP v Chin Hock Aun (search list not require in drug cases)

● The accused was charged for drug trafficking and he argued that failure to prepare
search list was fatal to the prosecution’s case.
● The court held that S 64 of CPC cannot be apply to drug cases and the correct
provision to be applied is S 27 of DDA. Under such provision, preparation of search
list is not required.
● The court also affirmed the position in San Soo Ha’s case.

Gooi Loo Seng v PP (evidence given cannot be in contradiction to the search list)

● The accused was charged for drug trafficking and a search list was prepared during
the raid. There was contradiction between the search list and the evidence given by
the prosecution. (In the search list, it stated that the drug was discovered by the
 Inspector but inspector give evidence that the drug was recovered from a cupboard by
the accused himself)
● The court held that such contradiction was fatal to the prosecution’s case and the
accused was acquitted.
Alcontara a/l Ambross Anthony v PP (search list is required when there is
contradiction)

● The court held that search list must be tendered in the event where there is an acute
conflict between the evidence of the prosecution witness and evidence of the defence
in respect of where the exhibits are found.
● Failure to do so would attract an adverse inference against the prosecution under S
114(g) of EA.
PP v Nasaruddin Daud

● Failure to produce a search list merely cast a doubt on the bona fides of the parties
conducting the search.
Basil Azubueze Okafor v PP (no duty to explain meaning and content of search list)

● The accused raised the issue that the search list was defective whereby the police had
omitted to explain the meaning and content of the search list to the accused who did
not understand Bahasa Malaysia.
● The court held that S 64 and S 65 of CPC do not contain any reference to the
obligation to explain the meaning and contents in the search list to the accused. It was
further held that the use of sign language to communicate the contents suffices.

4.2.1 Does a search list amount to confession?

1) Early position- Sign on search list amount to confession
PP v Lim Mung Shaing

● The search list became a written statement which amounted to a confession once the
accused put down his signature on it.
PP v Chew Yew Choi

● The search list with the accused's signature on it is tantamount to a confession by the
accused and could be construed as implicating him in a material particular as it could
be inferred that he was in possession of the offending items in question.

2) New position- Sign on search list does not amount to confession

PP v Ahmad bin Lateh
 ● The fact that the accused signed the search list does not make it a statement or
confession by the accused.
PP v Lee Soon Sian

● The search list cannot be construed to be confession of the accused. The signature of
the accused on the search list would be considered as an acknowledgement just like
the accused acknowledging the receipt of the chemist report.
Wong Kim Leng v PP

● The court held that the signature of the appellant was just an acknowledgement that he
had received a search list and nothing more.

3) Search list under DDA

S 27 of Dangerous Drug Act 1952 (DDA): Powers of inspection and seizure
(1) Whenever it appears to any Magistrate or Justice of the Peace, upon information
and after such inquiry as he thinks necessary, that there is reasonable cause to
believe that in or on any premises there is concealed or deposited any dangerous
drug, syringe, pipe, lamp, utensil or other article liable to forfeiture under this Act, or
as to which an offence under this Act has been committed, or any book or document
directly or indirectly relating to or connected with any transaction or dealing which
was, or any intended transaction or dealing which would if carried out be, an offence
under this Act, or, in the case of a transaction or dealing carried out or intended to be
carried out in any place outside Malaysia, an offence under the provisions of any
corresponding law in force in that place, such Magistrate or Justice of the Peace
may, by his warrant directed to any police officer not below the rank of Sergeant
or to any officer of customs or to any Drug Enforcement Officer, empower such
officer by day or by night—
(a) to enter such premises and there to search for, and seize and detain, any
such dangerous drug, article, book or document;
(b) where the officer is a police officer or an officer of customs, to arrest any
person or persons being in or on such premises in whose possession any
dangerous drug or article subject to forfeiture under this Act is found, or
whom the officer reasonably believes to have concealed or deposited such
dangerous drug or article; and
(c) to seize and detain any book or document found in or on such premises or
on such person.
(2) Such officer may if it is necessary so to do—
(a) break open any outer or inner door or window of such premises and enter
thereinto;
(b) forcibly enter such premises and every part thereof;
 (c) remove by force any obstruction to such entry, search, seizure and
removal as he is empowered to effect;
(d) detain every person found in or on such premises, until such premises
have been searched.
(3) Any police officer not below the rank of Sub-Inspector or any senior officer of
customs or any Drug Enforcement Officer or any person authorized in that behalf by
any general or special order of the Minister may, for the purposes of this Act, enter
the premises of any person carrying on the business of a producer, manufacturer,
seller or distributor of any dangerous drug and demand the production of, and
inspect, any book or document relating to dealing in any such dangerous drug, and
inspect any stock of such dangerous drug.
(4) Whenever it appears to any police officer not below the rank of Sub-Inspector
or to any senior officer of customs or to any Drug Enforcement Officer that there is
reasonable cause to believe that in or on any premises there is concealed or
deposited, in contravention of this Act, any dangerous drug, syringe, pipe, lamp,
utensil or other article or any such book or document as is described in subsection (1)
and he has good grounds for believing that, by reason of the delay in obtaining a
search warrant, the object of the search is likely to be frustrated, he may exercise
in, upon and in respect of such premises all the powers mentioned in subsection
(1), except, in the case of a Drug Enforcement Officer, the power of arrest, in as full
and ample a manner as if he were empowered to do so by warrant issued under the
said subsection.
S 27(1) of DDA: search and seizure with warrant
S 27(2) of DDA: may use force
S 27(4) of DDA: almost same as S 116A of CPC
Take note:

● DDA have provision on seizure but does not mention about search list.

● Since S 64 of CPC stated it applies to search under Chapter IV of CPC. Hence, it is

not applicable to search under DDA.
● Therefore, search list is not required under DDA.

PP v Chin Hock Aun (search list not require in drug cases)

● The accused was charged for drug trafficking and he argued that failure to prepare
search list was fatal to the prosecution’s case.
● The court held that S 64 of CPC cannot be apply to drug cases and the correct
provision to be applied is S 27 of DDA. Under such provision, preparation of search
list is not required.
5.0 Report to Magistrate
S 413(1) of CPC: The seizure or finding by any police officer of property taken under
section 20 or alleged or suspected to have been stolen or found under circumstances which
create suspicion of the commission of any offence shall be immediately reported to a
Magistrate, who shall make such order as he thinks fit respecting the delivery of the property
to the person entitled to the possession of it, or, if that person cannot be ascertained,
respecting the custody and production of the property.
S 413(5) of CPC: Notwithstanding the preceding subsections, where the property is required
for the investigation of a case and it is necessary for the property to be detained, the property
shall be kept in a safe and proper place by the Officer in charge of a Police District where
the offence was committed.
Chong Chieng Jen v Mohd Irwan Hafiz bin Md Radzi & Anor

● The applicant's laptop was seized under a search warrant and was brought to the
magistrate's court for it to be dealt with in accordance with S 56 of CPC.
● This case shows that the seized properties must be brought before the Magistrate.

N Indra a/p P Nallathamby v Public Prosecutor

● A search warrant had been granted to the police officer with the condition that the
search and seizure must be conducted within 3 days, and after the search, the police
must produce all articles seized before the magistrate's court. However, the police had
failed to do so.
● As such, the court held that the police had acted in contravention to the search warrant
and all seized item pursuant to the search warrant must be produced before the
Magistrate to determine whether the seized item are to be returned forthwith to the
owner or to allow the police to have continued safe custody.

6.0 Search and seizure without warrant (S 116A of CPC)

S 116A of CPC: Search and seizure without warrant
(1) Whenever it appears to any police officer not below the rank of Inspector that
there is reasonable cause to suspect that there is concealed or deposited in any
place any evidence of the commission of a security offence or any offence relating to
an organized crime and such police officer has reasonable grounds for believing
that, by reason of delay in obtaining a search warrant, the object of the search is
likely to be frustrated, he may
(a) enter any premises and there search for, seize and take possession of,
any book, document, record, account or data, or other article;
(b) inspect, make copies of, or take extracts from, any book, document,
record, account or data;
 (c) search any person who is in or on such premises, and for the purpose of
such search detain such person and remove him to such place as may be
necessary to facilitate such search, and seize and detain such article, container
or receptacle;
(d) break open, examine, and search any article, container or receptacle; or
(e) stop, search, and seize any conveyance.
(2) Whenever it is necessary so to do, a police officer conducting a search under
subsection (1) may
(a) break open any outer or inner door or window of any premises and enter
into, or otherwise forcibly enter the premises and every part thereof;
(b) remove by force any obstruction to such entry, search, seizure or
removal; or
(c) detain any person found in or on any premises or in any conveyance
searched under subsection (1) until such premises or conveyance has been
searched.
(3) No person who is detained under paragraph (2)(c) shall be searched except by a
person who is of the same gender as the person to be searched.
(4) For the purpose of this section, "security offence" means a security offence as
specified under the First Schedule to the Security Offences (Special Measures) Act
2012 [Act 747].
S 116B of CPC: Access to computerized data
S 116C of CPC: Interception of communication and admissibility of intercepted
communications

7.0 Effect of illegal search & seizure

7.1 Common Law
Kuruma v The Queen

● The test to be applied in considering whether evidence is admissible is whether it is

relevant to the matters in issue. If it is, it is admissible and the court is not concerned
with how the evidence was obtained.

7.2 Malaysia
Saminathan v PP

● The court held that the Magistrate will not concern with the manner in which the
police obtain the evidence. Instead, the Magistrate will only concern with the
relevancy of evidence.
PP v Dato’ Sri Mohd Najib bin Hj Abd Razak
 ● The court affirmed the case of Kuruma v The Queen whereby it was held that the
court is not concerned with how the evidence was obtained but the relevancy of
evidence.
Dato' Seri Anwar Ibrahim v PP

● The Federal Court held that the admissibility of evidence in Malaysia is not based on
the manner in which such evidence is obtained but its relevancy.
Pendakwa Raya v Victor John

● As long as the evidence obtained is relevant to the case, it is admissible irrespective

whether it was illegally or unlawfully obtained.

8.0 Summons to produce documents

S 51 of CPC: Summons to produce document or other things
(1) Whenever any Court or police officer making a police investigation considers that
the production of any property or document is necessary or desirable for the
purposes of any investigation, inquiry, trial or other proceeding under this Code by
or before that Court or officer, such Court may issue a summons or such officer a
written order to the person in whose possession or power such property or document
is believed to be requiring him to attend and produce it or to produce it at the time and
place stated in the summons or order.
(2) Any person required under this section merely to produce any property or
document shall be deemed to have complied with the requisition if he causes the
property or document to be produced instead of attending personally to produce the
same.
(3) Nothing in this section shall be deemed to affect the provisions of any law relating
to evidence for the time being in force or to apply to any postal article, telegram or
other document in the custody of the postal or telegraph authorities.
S 51A of CPC: Delivery of certain documents by the prosecution to the accused
S 52 of CPC: Procedure as to postal articles

9.0 Custody of seized exhibits

Su Ah Ping v PP

● The court held that it is not necessary to call evidence in order to ensure that there is
no break in the chain of evidence. If the officer who pickup the object at the scene
produced it and identified it as that very object, there is no need to call every officer
who handle it, unless there is a doubt as to its identity.
Zaifull Muhammad v PP
 ● The court held that affirmative evidence is required to dispel any lingering or
remaining reasonable doubt on the identity of the drug. The absence of a reasonable
explanation would give rise to a reasonable doubt on the identity of the drug exhibit
and thus render the accused being acquitted.

10.0 Disposal of seized exhibit

S 413 of CPC: Procedure by police on seizure of property
S 406A of CPC: Court shall consider manner of disposal of exhibits
S 407 of CPC: Order for disposal of property regarding which offence committed
S 407A 0f CPC: Disposal of seized article