1. A.PR0CESS TO COMPEL THE PRODUCTION OF OTHER
MOVABLE PROPERTY & THE DISCOVERY OF PERSONS
WRONGFULLY CONFINED
• There are 2 ways to obtain something in the pre-trial
process:
1. Search
2. Summons: a diplomatic way of obtaining something.
• S.51 CPC: if the court / police officer feels that certain
movable property / document are necessary /
desirable for trial, investigation / proceedings, the
court can issue order to the person in possession of
the property to produce such property / document.

2. • S.51(2) CPC: if a person is compelled to
produce a certain document / property which
is regarded as necessary / desirable for the
trial, investigations / proceedings, such
person need not come personally to produce
such property / document, it is sufficient for
him to send it.
* If that person fails to comply with the
summons / order, the court will proceed with
search.

3. • S.51A CPC: delivery of certain documents
before trial: [no time limit]
- FIR if any
- any document which would be tendered as
evidence for the PP
- written statement of facts favourable to the
defence of the accused subject to Public Interest

4. PP v Mohd Fazil bin Awaludin
[2009] 7 MLJ 741
- Whether the Prosecution could tender documents
not delivered to accused before trial
- :would trial rendered a nullity.
Held: not a nullity because s51A CPC provide for the
conduct of the trial and not the manner of trial.
- Will be a nullity unless the court is satisfied that
the accused has been prejudiced.

5. B. TYPES OF SEARCH
B.1 Search with warrant
• S.54(1) CPC: 3 situations when search can be
done:
a. when that person who has been issued with
summons / order under S.51 CPC is not
complying / will not comply with such
summons / order
b. When the property is nowhere to be found
c. When the court feels that for general purposes,
search is to be done.

6. • S.56 CPC: if a Magistrate has reason to believe
that an offence has been committed, then
search can be done.
• S.57 CPC: every search warrant shall be in
writing, signed & shall bear the seal of the
court
• S.58(1) & (2) CPC: if any Magistrate believes
that any person has been confined
somewhere, the Magistrate may issue a search
warrant directed to the person so confined.

7. B.2. Search without warrant
• S.20 CPC: if a person is arrested, after being
arrested, the police may conduct search on
his body & the police may remove any article
from his body except for the necessary body
apparel.
• S.20(a) CPC: if a person is arrested without a
warrant, the police officer may search the
arrestee without warrant.

8. Procedure on search of a person
• Statutory provision: s.20A CPC
• Regulating procedure on body search : 4th
Schedule CPC
- Procedures prescribed under 4th
schedule shall
prevail over any other written law on body
search.

9. • 4 types of body search
i. Pat down search
ii.Strip search
iii.Intimate search
iv.Intrusive search
- Each type has its own
procedures/requirement

10. • S.62 CPC: requirements for search without
warrant:
a) There must be an information to the police
b) Information is given to the police not below
the rank of Inspector
c) There must be reasonable cause for
suspecting as such
d) There must be good grounds in believing that
if the police postpone the search to go &
obtain a warrant properly, that when they
come back, the property will not be there
anymore.

11. • S.62A(1) CPC: if the police is satisfied
that someone has in his possession any
material / instrument to produce
counterfeit coins, then a search can be
conducted.
• S.62B(1) CPC: if the police is satisfied
that someone has in his possession any
instrument / material to produce
counterfeit currency paper money, then
a search can be conducted.

12. • S.63(3) CPC: the search is based upon
these situations:
a. When a person has been brought &
convicted by the court for harbouring
thieves / receiving stolen property,
afterwards the police can conduct a
search at his premise in case there are
stolen property concealed / lodged at the
place
b. b. When a person has been convicted
for fraud / dishonesty.

13. C. PURPOSES TO CONDUCT SEARCH
C.1. Searching for object
• At a premise / place
• At body of persons
C.2. Searching for persons at a premise / place
• Criminal
• Victim

14. C.1 SEARCHING FOR OBJECT
a) At a premise / place
b) On body of person
__________________________________________
a) At a premise/place[ read with s116 CPC] with warrant
• S.54(1) CPC: 3 situations when search can be done:
i. when that person who has been issued with
summons / order under S.51 CPC is not complying /
will not comply with such summons / order
ii. When the property is nowhere to be found
iii. When the court feels that for general purposes, search
is to be done.

15. • Sect. 55 CPC: the Court may specify
in the warrant the particular place or
part thereof and the person
executing the warrant shall then
search or inspect ONLY the place or
part thereof

16. Magistrate may issue search warrant to
search for evidence of offence
–S.56 CPC: acting upon information, and if a
Magistrate has reason to believe that an
offence has been committed, then search can
be done.
[ read with s116 CPC: search by police officer]
- The IO may search or cause search to be made in any
place due to failure to comply order under s.51

17. Search of premises without
warrant
• is governed under sects. 62, 63 and 116 of the
CPC.
• Sects 62 and 116 are concerned with search
and not seizure.
• Seizure is governed by s.435 CPC
• S.63 governs search and seizure

18. • Search without warrant
- S.62 CPC: if an information has been given to
the police informing the police that some
stolen property are being concealed / lodged
in a place, then the police officer not below an
Inspector who has reasonable cause to
suspect and has grounds to believe that delay
in obtaining search warrant would cause the
property be removed may conduct a search.
- List must be prepares
- Read with s.435 CPC

19. S.62A CPC: if the police is satisfied that someone has in his
possession any material / instrument to produce
counterfeit coins, then a search can be conducted.
S.63B CPC: if the police is satisfied that someone has in his
possession any instrument . Material to produce counterfeit
currency paper money, then a search can be conducted.
S.116 CPC: as long as the police officer making
investigation believes that some document is necessary for
investigation, but the person in possession of such
document is not going to produce it, then search can be
conducted.

20. • Summary search
- S.63 CPC: when a police officer suspects
some stolen property are being
concealed / lodged in a place, then the
police may conduct a search and seize

21. C.1.b) On body of persons
• S.17CPC provides that:
a. Where a search is lawfully conducted, all person
found therein may be lawfully detained until
search is completed; and
b. If the thing sought is capable of being concealed
upon the person, the person may be searched.

22. Mode of searching women
• S.19(2) : a woman can only be searched by another
woman with strict regard to decency.
• S.20 CPC: if a person is arrested & after being
arrested, the police may conduct search on his body
& the police may remove any article from his body
except for the necessary body apparel.
• Such article must then be placed in a safe custody &
if its believed that the article is an instrument
(weapons, etc.) of a crime / if it’s the fruit of a crime
(money, etc.) / if its evidence of a crime, such articles
will be detained until he is acquitted.

23. • S.20 CPC is related to s.413CPC[seizure
and finding by police of property must be
reported to a Magistrate who shall make
order as he thinks fit with respect to the
delivery of such property]

24. Procedure on search of a person
• Sect. 20A CPC: 4th
Schedule
• The provisions shall be adhered
notwithstanding any written law

25. Power to seize offensive weapons
• S.21 CPC: the police officer may seize any offensive
weapons which the arrestee has on his person.
• S.22 CPC: if a person is arrested but due to mental
incapacity, intoxication, illness / infancy he is unable
to tell his name / place of residence, the arresting officer
can search his body of person.

26. C.2. SEARCHING FOR PERSONS
a) Criminal
• S.16(1) CPC: if a person is supposed to be arrested
has entered into a particular place, the police may
enter into such place to arrest such person.
• S.16(2) CPC: If entry is denied, the police may use
reasonable force.

27. b) Other individuals than the criminal.
• S.58(1) & (2) CPC: if any Magistrate believes
that any person has been wrongfully
confined somewhere, the Magistrate may issue
a search warrant directed to the person so
confined.

28. D. FORMS OF SEARCH WARRANT
• S.57(1) CPC: every search warrant shall be in writing,
signed & shall bear the seal of the court.
• S.57(2) CPC: the search warrant shall remain in force
for a reasonable number of days specified in the warrant,
except if the warrant has been used.
• S.16(1) CPC: if a person is supposed to be arrested has
entered into a particular place, the police may enter into
such place to arrest such person.
• S.16(2) CPC: If ingress to such premise cant be made /
is not allowed, the police may use force.

29. • Issue: what if the warrant does not specify
the number of days for the warrant to be in
force?
- Its up to the discretion of the court how many
days amount to a reasonable number of days.
• Lam Chiak v PP: the reasonable number of
days is 5 days.
• S.57(3) CPC: the effect of such warrant is that
the warrant may be executed in any part of
Malaysia.

30. E. MISCELLANEOUS PROCEDURE
• S.64 CPC: anything taken during the process of
search must be stated in the list & signed by the
person doing the search. [Search list]
Failure to issued search list:
• Cases:San Soo Ha v PP [1968] 1 MLJ 34.
i. failure or omission to prepare a list of the things
seized is not fatal

31. • ii. However the court will carefully scrutinised
the evidence of the officers who conducted
the search because such failure to prepare will
cast doubt on the bona fide of the search.
• Followed in
1.PP v Chin Hock Aun [1989] MLJ 509
2.Gooi Loo Seng v PP [1993] 2 MLJ 137
3. Alcontra v PP [1996] 1 CLJ 705

32. E.1 Occupant to be present at search
• S.65 CPC: while search is being done at a
premise / place, the person who were
there at the premise has the right to
remain there while the premise is being
searched.

33. E.2 SEIZURE
1. Search done under specific provision (search +
seizure)
• S.54(1) CPC: 3 situations when search can be done but
it does not authorize a further power to seize:
i. when that person who has been issued with
summons / order under S.51 CPC is not complying /
will not comply with such summons / order.
ii, When the property is nowhere to be found.
iii. When the court feels that for general purposes, search
is to be done.
+In these situations, the power to seize may come
under S.435 CPC. [power to seize property suspected
to be stolen]

34.  S.435 CPC (read with s62) any member of
the police may seize any property which
is:
i. Alleged to have been stolen
ii. Suspected to have been stolen
iii. Found under the circumstances which
create suspicion that an offence has been
committed.
Issue: does the police has the power to
seize items which are not authorized to be
seized/ not in the search warrant?
-s.435 is wide (similar to Chic Fashions)

35. • Chic Fashions (West Wales) Ltd v Jones
[1968] 2 QB 299: the police entered the
plaintiff’s premise based on a search warrant
to look for goods suspected to be stolen from
Ian Peters Ltd.
• The police could not find items from Ian
Peters Ltd. but found items which they
suspected to be stolen from other companies,
such as Mornessa, Mansfield & Blanes. So the
police seized those items.
• Subsequently, it was found that they were not
stolen goods.
• Plf sued for damages for tresspass

36. Issue: the lawfulness of the seizure of the goods.
• Lord Denning: “In my opinion, when a
constable enters a house by virtue of a search
warrant for stolen goods, he may seize not only
the goods which he reasonable believes to be
covered by the warrant but also may seize
other goods which he believes on reasonable
grounds to have been stolen & to be material
evidence on a charge of stealing & receiving
against the person in possession of them /
anyone associated with him.

37. Test it this way, supposed the constable does not
find the goods mentioned in the warrant but finds
other goods which he reasonably believes to be
stolen, is he to quit the premises & go back to
the Magistrate & ask for another search warrant
to cover those other goods?
If he went away, I should imagine that in 9 cases
out of 10, by the time he came back with the
warrant, those other goods would have
disappeared. The true owner would not recover
them & the evidence of the crime would have
been lost. That would be to favour thieves & to
discourage honest men.”
It was held that the police has the extended
power to seize other items which are suspected
to be stolen as well.

38. • Ghani & Ors v Jones [1970]1 QB 693: a
Pakistani woman who lived with her mother
in-law, father in-law & sister in-law was killed.
The police went to the house where she lived
to conduct a search & after the search, the
police confiscated the passports belonging to
her mother in-law, father in-law & sister in-
law.
• There was no search warrant obtained for the
search, the police didn’t arrest anyone &
didn’t charge anyone, they only confiscated
the passports.
• The Court of first instant held that the Police
had no right to retain the passports. Appealed

39. • Lord Denning MR laid down 5 limitations:
a) Police must have reasonable grounds to believe that
a serious offence has been committed. So serious
that it is of the 1st
importance that the offenders
should be caught & brought to justice.
b) Police must have reasonable grounds for believing that
the item in question is either:
• The fruit of the crime.
• The instrument by which the crime was committed.
• Material evidence to prove commission of the crime.

40. c) Police must have reasonable grounds to believe that:
• The person in possession of the item has himself
committed the crime.
• Such person is implicated in the crime.
• Such person is an accessory to the crime.
• Such person has unreasonably refused.
d) The police must neither keep the item nor prevent
its removal for any longer than is reasonably
necessary to complete their investigation /
preserve it for evidence.
e) The lawfulness of the police conduct must be
judged t the time & not by what happened
afterwards

41. E.3. RETENTION / DISPOSAL OF THE SEIZED ITEM
• S.56 CPC: this provision authorizes the search
& the seizing of relevant items after search is
done.
• S.62A(2) CPC: anything seized under S.62A(1)
CPC shall be forfeited & destroyed / disposed
of.
• S.62B(2) CPC: anything seized under S.62B(1)
CPC shall be forfeited & destroyed / disposed
of.

42. • S.63(1) CPC: in any case where property is
seized in accordance with S.63 CPC, the
Magistrate shall make order respecting the
disposal of the property.
• S.413 CPC: the seizure / findings by the police
of property taken under S.20 CPC / alleged /
suspected to have been stolen shall be
forthwith reported to a Magistrate, who shall
make order regarding the delivery of the
property / regarding the custody & production
of such property.

43. E.4 ADMISSIBILITY OF ILLEGALLY OBTAINED
EVIDENCE
• Kuruma v Regina [1955] 1 All ER 236: Lord Goddard
said that the test to be applied in considering whether
evidence is admissible when it is illegally procured is to
look at whether such evidence is relevant to the facts
in issue and not obtained by unfair means.
• If it is, then such evidence is admissible as the court is
not concerned as to how the evidence was obtained.
• English cases: if the manner & method of obtaining the
evidence is so oppressive, then the court will be very
careful in admitting the evidence.

44. • Karuma was followed in King v R [1968] 2 All
ER 610
Fact: warrant issued by JP in Jamaica authorized
the arrest of the person named but not the
search of any person.
Privy Council: search warrant was defective but
the evidence was still admissible provided it
was relevant to the matters in issue and not
obtained by ubfair means.

45. • Ghani & Ors v Jones [1970]1 QB 693: Lord
Denning said that should a search be
unlawfully conducted, not only would the
police be guilty of trespass but should they
find something incriminating against the
occupants of the premise, the court would
not allow it to be used in evidence against
him if the conduct of the police was so
oppressive that it would not be right to allow
the Crown to rely upon it.

46. • R v Sang [1979] 3 WLR 263
House of Lords:
“ relevant evidence is admissible even
though the evidence is obtained
illegally [Kuruma & King] and by
unfair means.

47. • R v Khan[1996] 3 All ER 289: Lord
Nolan said that the court could have
regard to the circumstances in which
the evidence was obtained including
whether there was a breach of
relevant law / convention in
determining whether the breach has
an effect on the fairness of the
proceedings

48. • SM Summit Holdings Ltd & Anor v PP
[1997] 3 SLR 922: Yong Pung How CJ said
that the court may refuse to allow
evidence on which the prosecution
proposes to rely to be given if it appears
to the court that having regard to all the
circumstances including the circumstances
in which the evidence was obtained, the
admission of the evidence would have
such an adverse effect on the fairness of
the procedure that the court ought not to
admit it.

49. • Saw Kim Hai & Anor v R [1956] MLJ 21
The appellant jointly charged with
abetting offences, argued that the police
had not strictly proved their entry into
the premises was legal
Approved Kuruma and held that the
court has jurisdiction to try the accused
notwithstanding the fact that his arrest
may have been illegal but the evidence
does not effect the question of
admissibility.

50. • Cheng Swee Jiang v PP [1964] MLJ 291:
Wee Chong Jin CJ said that while the
court is consistently & in no uncertain
language criticize the use of agent
provocateurs whether they be law
enforcement officers / not, the courts
have also consistently admitted evidence
obtained by such persons provided its
admissibility does not operate unfairly
against an accused.

51. • PP v Seridaran [1984] 1 MLJ 141
No order to investigate was obtained
from the PP to investigate a non seizable
offence as required under s.108. the
learned Magistrate held that the trial
was a nullity and ordered an acquittal. PP
appealed.
High Court: Such illegally obtained
evidence is relevant to the matter in
issue thus is admissible

52. • Based on these cases, it shows that if
the way the evidence was procured
was so oppressive / affect the
fairness of the procedure, then the
illegally obtained evidence would
be inadmissible.