Search on

Premises
Premises
Search

Body
Search

Search
for
person
Search
for
evidence

Searchcanbedividedintotwo,whichis
bodysearchandsearchonpremises.
Searchonpremisescanbesubdividedinto
twowishissearchthepremiseforaperson
(suspect, kidnap person, witness) and
another one is search the premises for
evidence(drugs,weapons)

Entry and search of

Persons on
Premises
Thepowertoenterpremisesandsearchfor
the person sought to be arrested is
providedunderSection16ofCPC.

Section16(1)ofCPC

Where if any person with a warrant of

arrestoranypoliceofficerorpenghuluhas
reasontobelieve that any personsoughtto
be arrested is in a place, then the person
residinginorinchargeofsuchplaceshall,
on demand of such person aforementioned,
allow him free entry to search for the
personsoughtobearrested.

FarahFarhanaHassan

However, if entry is denied, then

reasonableforcemaybeusedtobreakinto
premises to prevent the suspect from
escaping.

Section16(2)ofCPC
If such entry cannot be obtained, then any
innerorouterdoororwindowofanyhouse
orplace,whethersuchhouseor place isthat
ofthe persontobearrested orthatof any
otherperson,maybebrokentoenter,provided
thatsuchpersonhasauthoritytoarrestorthe
offence is one in which a warrant may be
issued.

Section18ofCPC
Empowers any police officer, or other
personauthorisedtomakeanarresttobreak
openanyplaceinordertoliberatehimselfor
anyotherpersonwhohadlawfullyenteredto
makeanarrestbutwasdetained.

On the other hand, if any person is

wrongfully confined, Magistrate may
issueasearchwarrant.

Section58ofCPC
IfanyMagistratehas reasontobelieve that
any personiswrongfullyconfined,hemay
issueasearchwarrantforthesearchofthat
person.Andifsuchpersonisfound,shallbe
immediately brought before a Magistrate
who shall make such order as in the
circumstancesseemsproper.
A search for a person wrongfully
confined (e.g: a kidnap victim) under S.58
requiresasearchwarrant.
A search for a person sought to be
arrested does not require a search warrant

unless the person conducting the search is

privateperson.

Section59(1)ofCPC
Anypersonwhoresidesinorisinchargeof
aplacewhichisclosedandliabletosearch
orinspection,isundera legalobligationto
allowtheofficerorotherpersonexecutingthe
search warrant free ingress into the
premises.

Section59(2)ofCPC
Ifentryisdenied,thewarrantmayproceed
inthemannerprovidedby subsection16(2)
where reasonable force may be used to
breakintopremises.
S.59 concernsentryandsearchofaplace
whichisclosed.
Thisisagreyareaastheissuewhetheritis
a general (catchall) provision which
covers search of persons (sought to be
arrestedORwronglyconfinedORsuspects
foundinthepremises)andthingsonthe
premises, or it only concerns search for
thingsonthepremises.

FarahFarhanaHassan

Search of Premises
with a Search
Warrant
a) When search warrant may be
issued?
A court may issue search warrant under
circumstancesstatedinSection54(1)read
togetherwithSection116.
Generally,underSection54,thecourtmay
issue a search warrant for the following
purposes;
a) Productionofadocumentorthing
b) Search of a house for evidence of
offence
c) Search of person wrongfully
confined/

Section54(1)

Search warrant for the production of a

documentorthingmaybeissuedbyacourtin
thefollowingcircumstances;
a) When the court believes that the
summons under Section 51 or
requisition under Section 52(1)
wouldfailed.
b) Whenthepropertyordocumentis
notknowntothecourt,tobeinthe
possessionofanyparticularperson.
c) Whenthepurposesofanyinquiry,
trial or other proceeding will be
betterservedbyageneralsearchor
inspection.

Section54(2)

Thissectiondoesnotpermitanycourtother
thanHighCourttograntasearchwarrantto
search for postal article, telegram or other
document in the custody of the postal or
telegraphicauthorities.

Prosecution who relied on Sec 413 did not

applytothesituationinthiscaseasSec413
only applies when there is property seized
underSec20orwhichwassuspectedtohave
been stolen or found under suspicious
circumstances.

Section54(3)

Asearchwarrantisordinarilydirectedtothe
chiefpoliceofficerofthestateandtosome
other officers designated by name but any
policeofficermayexecutesuchwarrant.

Section54(4)

Thecourtissuingthewarrantmaydirectany
personorpersonstoexecutethewarrantother
thanpoliceofficer.
In such case, any person or persons may
executethewarrant.
Itispertinenttonotethatasummonsto
produce documentsorotherthingsunder
Section 51, must be invoked first before
applying for a search warrant under
Section54(1)(a).

NIndraPNallathambyvPP[2010]1
CLJ521,HC
It is an application by the applicant for a
revision of a search warrant issued by the
PetalingJayaMagistratesCourtwasmade.
HighCourt:
In reading both Sec 51 and Sec 54 of CPC
together,Sec51oftheCPCmustbeapplied
firstbeforeresortingtotheuseofSec54.
Thelawenvisagesthatevenbeforethepolice
can be granted a search warrant to conduct
anysearchinanyprivatepremises,firstofall,
the police officer making a police
investigation must apply to the court for a
summons,orissueanordertoanypersonto
produceanypropertyordocument.
FarahFarhanaHassan

Amagistratemayissuethesearchwarrant
to search for evidence of the offence as
well.
Section56alsomustbereadtogetherwith
Section116.

Section56

ThissectionpermitsMagistratetoissuesearch
warranttoobtainevidenceofoffence.
The Magistrate can only issue the search
warrant upon information and inquiry and
hasreasontobelieveevidenceoftheoffence
canbefoundinthatplace.
Thewarrantwillauthorisethepersondirected
toenterandsearchforincriminatingevidence
and to bring anything found before the
Magistrate, to be dealt with in accordance
withthelaw.

ChongChiengJenvMohdIrwanHafiz
binMdRadzi[2009]8MLJ364
Facts:
The 1st Respondent had obtained 2 search
warrantstosearchtheofficepremisesandthe
residential home of the applicant for all
computers and laptops belonging to the
applicant.
Thewarrantapplicationwasmadebythe1st
Respondent on the ground that there is an

allegationthattheapplicanthadestablisheda
seditiousarticleinhisblog.
Theapplicantsoughttosetasidethe2search
warrantsonthegroundthattheywereissued
contrarytoSec56.

seditious.Thus,thesearchwarrantswereset
aside.
Itwasobviousthatthemerebeliefcouldnot
constitute information nor reason to
believeunderSec56.

On the facts, the police report from the

complainant and that the alleged seditious
article were not exhibited with the warrant
application. The 2st Respondent also claim
thathereceivedinstructionsfromtheAttorney
Generalsofficetoseizethelaptops,butthere
wasnosuchentryofthesaidinstructioninthe
investigationdiary.

RhodzariahBujangJCHeld:
An inquiry is not mandatory as the
requirementforinquiryisonly ifhethinks
necessary.
The requirement for information and
reasontobelieveismandatorybecausethe
executionofthewarrantwilldefinitelyresult
intheinvasionoftheprivacyandproperty
of the owner of the premises so named
(Article13(1)ofFC)andmayevenresultin
theconfiscationofhisproperty.
WhatconstitutesReasontoBelieve

AhmadBinIshakvPP[1974]1LNS2,
HC

Arulnandom J: Reason to believe is to

lookintothecircumstancesofthecasetosee
iftheyaresuchthatanyreasonablemancould
seesufficientcausetobelieve.

Section 116 must be read together with

Section54andSection56.
Section 116 (1)(3) Search without
warrant
Section116(4)Searchwithwarrant.
Therefore, Section 116 applied to both
searchwithandwithoutwarrant.

Section116
(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 authorised to investigate and there is
reason to believe that the person to
whom

summons

or

order

under

section 51 has been or might be issued

RhodzariahBujangJCHeld:(Cont)
Since alleged article was not exhibited, the
Magistrate granting the search warrant went
merelybasedonthebeliefthatthearticlewas

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

FarahFarhanaHassan

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.

Facts:
In this case, the warrant was issued on
November3,1984butwasexecutedonlyon
November8,1984whichthecourtheldthat
theexecutionofsuchwarrantsomesix/seven
dayslaterwaswithinareasonableperiodof
time.

Section54(3)&(4)

Asearchwarrantshallordinarilybedirected
tothechiefpoliceofficerofthestateortoa
namedpoliceofficer.Nevertheless,thecourt
mayissueasearchwarranttoanamedprivate
person.

Section55

The court may specify in the warrant the

particularplaceorpartthereofandtheperson
executing the warrant shall then search or
inspectonlytheplaceorpartsospecified.

2ndscheduleofCPC

(4) The provisions of this Code as to

search warrants shall, so far as may be,
apply to a search made under this

Form8Warranttosearchafterinformation
ofaparticularoffence.
Form9Warranttosearchsuspectedplaceof
deposit.

section.

b) Form of Search Warrant

Section57

Everysearchwarrantissuedbyacourtshall
beinwritingandsignedandshallbeartheseal
of the court. It shall remain in force for a
reasonablenumberofdaystobespecifiedin
thewarrantanditmaybeexecutedinanypart
ofMalaysia.

LamChiakvPP[1986]1MLJ374

Held:
Where the accused was charged under Sec
3(1) of the Copyright Act, Thean J at
Singapore High Court held that the
requirementofatimeperiodforthewarrantto
remain in force is merely directory and not
mandatory. Thus, it was not fatal that no
periodwasspecifiedinthewarrant.
FarahFarhanaHassan

c) Execution of Search Warrant

Section60

Themagistratewhoissuedthesearchwarrant
mayattendpersonallytoseethatthewarrant
isdulyexecuted.

Section61

AnyMagistrate,competenttoissueasearch
warrant,mayorallydirectasearchtobemade
inhispresenceofanyplace.

Section116

Where a search warrant is issued, an

investigating officer may search or cause
search to be made in any place if he
reasonablybelievesthatthepersontowhoma
summonsororderunderSection51hasbeen
or might be issued will not produce the

document. Such officer shall, if practicable,

conductthesearchhimself.

Section62(1)

PoliceofficernotbelowtherankofInspector
may search the place specified without
warrant for the specific property alleged to
havebeenstolenunder3conditions;
a) Where he receives information of a
specificpropertyallegedtohavebeen
stolen;
b) While he has reasonable cause to
suspect that the stolen property is
concealedorlodgedinanyplace;and
c) Hehasgoodgroundstobelievethatby
reason of delay in obtaining a search
warrant the property is likely to be
removed.

YongMoiSinvKerajaanMalaysia&
Anor[2000]8CLJ651

The police suspected that a gold locket had

been stolen and searched the appellants
factorywithoutasearchwarrantpursuantto
Sec62.
Held:
Thesearchwaslegalasitwasnecessaryfor
thepolicetopreventthevitalevidencewhich
wasthegoldlocketfrombeingmeltedaway.

Search of Premises
without a Search
Warrant
Search of place or premises without
warrantisgovernedunderSec62Sec65,
andSection116.
Section62andSection116Concerned
withSearchonlyandnotseizure
Section63Search&Seizure
Section435Seizure
a) Search without warrant under
Sec 62
FarahFarhanaHassan

AbdulMalikIshakJ:
Evenifthesearchwasillegal,thepolicecan
neverbeconstruedascriminaltrespassers.

Section62(2)

Toinitiateasearchwithoutwarrant,alistof
thepropertyallegedtohavebeenstolenmust
be in writing with a declaration that such
property such property has been stolen and
thattheinformanthasgoodgroundstobelieve
thatthe stolen property is deposited in such
place.

Section62(3)

The owner of such stolen property or his

representative shall also accompany the
officerinsuchsearch.

Section435

Power for any police officer to seize any

property suspected to have been stolen or
found under circumstances which create
suspicionthatanoffencehasbeencommitted.

note or any such machinery, instrument

or material is kept and seize all the
notes,

machinery,

instrument

or

material.

Section62A

(2) Anything seized under the provisions

(1) Any police officer not below the rank

of subsection (1) shall, by order of the

of Inspector, upon being satisfied that

Court before which any person is tried

any person has in his possession any

relating to its possession, or where

counterfeit coin or counterfeit current

there

coin or any die, instrument or material

Magistrate, be forfeited and shall be

for the purpose of counterfeiting any

destroyed or otherwise disposed of in

coin

such manner as the Minister may direct.

or

current

coin,

may

without

warrant and with or without assistance

enter and search any place where any
such coin or any such die, instrument or
material is kept and seize all the coin,
die, instrument or material.
(2) Anything seized under the provisions

is

no

trial,

by

order

of

ForbothSec62AandSec62B,anything
seizedshall,byorderofthecourtbefore
which any person is tried relating to its
possession,orwherethereisnotrial,by
order of the magistrate, be forfeited and
shallbedestroyedorotherwisedisposedof
insuchmannerastheministermaydirect.

of subsection (1) shall, by order of the

Court before which any person is tried
relating to its possession, or where
there is no trial by order of a Magistrate,
be forfeited and shall be destroyed or
otherwise disposed of in such manner
as the Minister may direct.

Section62B
(1) Any police officer not below the rank
of Inspector, upon being satisfied that
any person has in his possession any
forged or counterfeit currency note or
bank note or any machinery, instrument
or material used or intended to be used
for the forging or counterfeiting of any
currency

note

or

bank

note,

may

without warrant and with or without

assistance enter and search any place
where any such currency note or bank

FarahFarhanaHassan

b) Summary Search Power to

search & seize stolen property
under Sec 63

Section63(1)

Any police officer, authorized in writing by

thechiefpoliceofficer,mayenter,searchand
seize any property believed to have been
stolen in the same manner as he would be
authorizedtodoifhehadasearchwarrant.

Section63(2)

Wherethepropertyisseized,thepersonother
thanthepersoninwhoseplaceitwasorthe
person from whom it was taken then such
person unless previously charged with
receiving the same knowing to have been
stolen be summoned before a Magistrate to
accountforhispossessionofsuchproperty.
Insuchevent,theMagistratemaymakesuch
order in respect of the disposal of such
propertyandhemayawardsuchcostsasthe
justiceofthecasemayrequire.

Section63(3)

The Chief Police Officer may give such

authorityinfollowingcases;
a) Wherethesaidplaceisinoccupation
oforusedbyanypersonwhohasbeen
convictedofreceivingstolenproperty
or of harbouring thieves within the
preceding12months;
b) Where any person who has been
convicted of any offence involving
fraudordishonestyandpunishableby
imprisonment is in occupation of the
placebeingsearched.

Section63(4)

There is no necessity for the chief police

officertospecifyanyparticularproperty.

c) List of things seized to be

made and signed Sec 64

Section64

It is mandatory for the search list to be

made for all items seized under this
chapter and signed by the officer or the
personmakingthesearch.
Itisnotrequiredforthepotentialaccused
oranyotherpersoninthepremisetosign
thesearchlist.
Thedistinctionisimportantasthesigning
ofthesearchlistbythepotentialaccused
may have the effect of a confession or
nexustothecrimeoritmayimplicatethe
accusedwiththecrime.

SanSooHavPP[1968]1MLJ34
Facts:
The accused appealed against his conviction
and sentence on a charge of housebreaking
and theft of property under S. 454 of Penal
Code or alternatively on a charge of
dishonestlyretainingstolenpropertyunderS.
411ofPenalCode.
Oneofthegroundofappealwasthatasearch
listasrequiredunderS,64oftheCPCwasnot
prepared by the officer who conducted the
searchandseizedtheproperty.
RajaAzlanShahJ:
The omission or failure to prepare a list of
thingsseizedisnotfataltotheprosecutions
case.
Howeverthecourtwillcarefullyscrutinisethe
evidence of the officers who conducted the
search because such omission or failure to
prepare the list will cast doubt on the bona
fideofthesearch.

PPvChinHockAun[1989]1MLJ509
Theaccusedwaschargedfordrugtrafficking.
Thepolicediscoveredapacketofdangerous
drug when they conducted a search but no
searchlistwasprepared.Theaccusedargued
thatfailuretopreparethesearchlistwasfatal
totheprosecutionscase.
FarahFarhanaHassan

KCVohrahJ:
RejectedtheargumentonthegroundthatS.
64 did not apply in this case. Since the
accused was charged under DDA. The
provisiongoverningsearchisgivenunderS
27ofDDAandthereisnorequirementfora
searchlisttobeprepared.

GooiLooSengvPP[1993]2MLJ137

Theaccusedwaschargedfordrugtrafficking.
Asearchlistwaspreparedandsignedbyan
inspector who conducted the raid. The
inspectorgaveevidencethatthepackagedof
dangerous drugs were recovered from a
cupboardbytheaccusedhimself.
However, the list showed that the packages
wererecoveredbytheInspector.
Held:
This contradiction was fatal to the
prosecutions case and the accused was
acquitted.

Alcontaraa/lAmbrossAnthonyvPP
[1996]1CLJ705

The court held that where there is an acute

conflict between the evidence of the
prosecution witness and the evidence of the
defence in respect where the exhibits are
found, the prosecution must tender a search
list.
Failure to do so would attract an adverse
inference against the prosecution under
S.114(g)ofEA.

PPvChungWanLi[2006]2MLJ170

Thecourtsarenowapplyingtheprinciplesof
San Soo Ha and Chin Hoc Aun in which
failuretoproduceasearchlistmerelycastsa
doubt on the bona fide of the parties
conductingthesearch.
Under S.64, the list of the things that is
being seized during the search or the
places in which they are found shall not
FarahFarhanaHassan

only be prepared by the officer or other

person that conducted the search, but it
mustalsobesignedbyhimandnoother
person.
ContradictoryViews
astowhethertheaccusedsacknowledgment
of the search list prepared amounts to a
confessionornot.
Itwasheldinthepositiveinbothcasebelow;

PPvLimMunShaing[1989]2CLJ475

Theaccusedwaschargedwiththeoffenceof
traffickingheroin.Thedrugwasfoundbythe
customofficersinthehallofahouse.Atthe
materialtime,2vehicleswerealsorecovered.
Thecourtheldthatthesearchlistbecamea
written statement, and amounted to a
confessiononcetheaccusedputhissignature
onit.
Inthiscase,thesearchlistwaspreparedby
theofficersomehoursaftertheaccusedput
downhissignatureontheoriginalsearchlist.
The signature of the officer, who conducted
thesearch,alsoappearedinthesaidlist.
Ifitwasmeanttobethereceiptofthesearch
list,itcouldbeacknowledgedbysomeother
clear means, surely not by putting the
accuseds name and signature on the search
listitself.
Accordingly,asnocautionwasadministered
bytheofficertotheaccusedbeforehesigned
thesearchlist,thedocumentisinadmissiblein
evidence.

PPvChewYewChoi[1990]2MLJ444

The accused was charged with having

trafficked in heroin which was found in a
housewheretheaccusedhadbeenarrested.
Theheroinseizedwasplacedinthecustodyof
thepoliceofficerwhowastheleaderofthe
raidingpartybeforetheirproductionincourt.
Thisseniorpoliceofficerwasnevercalledto
giveevidence.

Thecourtheld,acquittingtheaccused,thatthe
search listwhich the accusedsignedfor the
heroinfoundwastantamounttoaconfession.
Asnocautionadministeredtotheaccused,the
heroin set out in the search list become
inadmissible.
Negative:Notamounttoconfession

PPvAhmadbinLateh&Anor[1991]1
CLJ71

Itwasheldthatthesignaturestothesearchlist
couldnotbeconstruedtobeaconfession.
Furthermore, the search list tendered as an
exhibitwasnottoproveanythingbuttoward
off any allegation in connection with any
valuable items seized and there is no legal
obligationtoprepareasearchlist.

PPvLeeSoonSian[1993]2CLJ214

Courtheldthattheproductionofthesearch
listshouldbecontinuedasitwouldinvariably
show the integrity of the officer that
conductedthesearchandnomore.
Thesearchlistcannotbeconstruedtobethe
confession of the accused. The signature of
the accused on the search list would not be
akintoanactofacknowledgementjustlike
theaccusedacknowledgingthereceiptofthe
chemistreport.
The production of the search list should be
continued as it would invariably show the
integrity of the officer that conducted the
searchandnomore.
Thejudgedidnotplacetoomuchemphasison
the search list as its reception did not
influenced him in coming to a decision
whether the prosecution had proved its case
beyondreasonabledoubt.

WongKimLengvPP[1997]2MLJ97

The appellant was charged under S. 420 of

Penal Code and S. 474 of Penal Code for
cheating by using a forged credit card to
purchase goods and also for being in
FarahFarhanaHassan

possessionofaforgedcreditcardwithintent
topassitoffasgenuine,respectively.
Thelearnedjudgeadmittedthesearchlist.In
the search list, there was signature
acknowledging the receipt of the list. The
PoliceInspectorevidencewasthatitwasthe
appellantssignature.Counselforthedefence
statedthatitshouldnothavebeenadmittedas
it amounted to a confession for which no
cautionwasadministeredunderS.113ofCPC.
OnAppeal,KCVohrahJ:
wasalsooftheviewthatwhattheappellant
did was to acknowledge that he receives a
searchlistandnothingmore.
Thejudgeagreedwiththeviewsexpressedin
PPvLeeSooSianandPPvAhmadbinLateh
&Anor
=Thesignaturedoesnotamounttoconfession,
itamountedtoacknowledgmentandnothing
more.

 Inaddition,S.116(4)allowstheuseofS.
59forentryofpremise withoutasearch
warrant and to use reasonable force to
break into premises as provided under
S.16(2)ofentryisdenied.

d) Occupant to be present at
Search S.65

Section65

Whenthesearchlistispreparedtheoccupant
orsomepersoninhisbehalfmustbeallowed
to attend and a copy of the search list duly
signedmustbedeliveredtotheoccupantupon
request.

PPvChinHockAun

KCVohrahJ:
Opinedthatduetothedraftingerrorunder
thissectioninSection65oftheCPCshould
readunderS.64oftheCPC

e) Search by Police Officer

S.116
Althoughthereisnosearchwarrant,S.116
providesthataninvestigatingofficermay
searchorcausesearchtobemadeinany
place if he reasonably believes that the
person wo whom a summons or order
under S.51 has been or might be issued,
will not produce the document or thing
sought.
Such officer shall if practicable, conduct
thesearchhimself.
If he is unable to conduct the search in
person, he may order in writing a
subordinate officer to search for the
specifieddocumentorotherthing.
FarahFarhanaHassan

f) Power of police to seize

property suspected of being
stolen

Section435

Thissectiongivespowertopoliceofficer
to seize property, which is suspected to
have been stolen, properties alleged to
havebeenstolen,orpropertyfoundunder
circumstances creating suspicion that an
offencehasbeencommitted.
Anypoliceofficermayseizeanyproperty
notwithstandingthereisnosearchwarrant
provided the property is alleged to be
stolen property or property found under
circumstances creating suspicion that an
offencehasbeencommitted.
Where search is illegal, an action for
trespassmayensue.Thismayonlyarisein
caseswheretherewasnovalidgroundto
seizethepropertyundertheprovisionsof
thecode.

SinnappanvPP[1977]1MLJ170

Ifthesearchandseizureisillegalorunlawful,
the section is not applicable and the police
maybeliableindamages.

Section413

Thissectionrequirestheseizureorfindingby
any police officer of property taken under
S.20(searchofpersonarrested)orallegedor
suspectedtohavebeenstolenorfoundunder
circumstances which create suspicion of the
commissionofanyoffence(sametoS.435)to
bereportedtoaMagistrate,whoshallmake

suchorderashethinksfitwithrespecttothe
deliveryofsuchproperty.

KetuaPolisIbuPejabatKontigenPolis
SerembanvManoharana/lDoraisamy
[2004]3MLJ565

FCheldthatthissectionrequiresaMagistrate
toascertaintheidentityofapersonentitledto
possessionofthepropertyseizedbythepolice
andtodelivertothatpersonsuchproperty.
AndS.413(2)givespowertotheMagistrateto
stipulateconditionsonsuchdelivery.
g) The common law Position of
Search

ChicFashions(WestWales)LtdvJones
[1968]2WLR201

Police obtained a search warrant for stolen

goods of a certain description Ian Peters.
However,thepolicedidnotfindIanPeters
but seized other goods of different
descriptionswhichtheyreasonablysuspected
to have been stolen. Subsequently, it was
found that the seized goods were not the
stolengoods.ThePlaintiffssuedthepolicefor
damagesfortrespass.
TrialJudge:
GavejudgementforthePlaintiffs.
CoA,LordDenning:
The police were justified in seizing and
retaining the plaintiffs goods even though
such items were not specified in the search
warrant so long as the police reasonably
believedthemtobestolen.

Ghani&OrsvJones[1969]3AllER
1158

A Pakistani woman was missing and the

policesuspectedthatshehadbeenmurdered.
Without a search warrant or a warrant of
arrest, police (including defendant) entered
FarahFarhanaHassan

andsearchedthewomansfatherinlaws(1 st
Plaintiff)house.
They then seized the passports of the 1st
Plaintiff,hiswife(2ndPlaintiff),anddaughter
(3rdPlaintiff).
The Plaintiffs sought for a mandatory order
requiring D to return the passport andother
thingsseized.
TrialJudge:
D had no right to retain the passports and
madeamandatoryorderfortheirreturn.

COA,LordDenning:
Upheldthedecisionandorderedthereturnof
thepassportsandotherdocumentsseized.
His Lordship opined that where a search is
made when no one has been arrested or
charged, the following requisites must be
satisfied;
i.

ii.

iii.

iv.

PO reasonably believe that a serious

offence has been committed so
seriousthatitisoffirstimportancethat
the offender should be caught and
broughttojustice.
POreasonablybelievethatthearticles
in question are either the fruit of the
crimeorareinstrumentsbywhichthe
crime was committed or are material
evidence to prove the commission of
thecrime;
POreasonablybelievesthattheperson
in possession of it has himself
committedthecrimeorisimplicatedin
it,orisaccessorytoitoratanyratehis
refusalmustbequiteunreasonable;
PO must not keep the article nor
preventitsremovalforanylongerthan
necessary to complete their
investigations;

v.

The lawfulness of the conduct of the

policemustbejudgedatthattime,and
notbywhathappensafterwards.

Lord Denning stated that in this case,

conditionii.&iv.hadnotbeensatisfied.Thus,
passportscannotbeseized.

However,S.5ofCPCcanbeinvokedso
that Ghanis case and the principles of
LordDenningcanbeused.

ReKahWaiVideo(Ipoh)SdnBhd
[1987]2MLJ459

Referred to the case Ghanis and Chic

Fashions.
In this case, the police obtained a search
warranttosearchforinfringingcopiesoffilms
orcertaintitlesspecifiedinthewarrant.They
seized both the specified and unspecified
items.
Magistrate:
The seizure of the unspecified titles was
unlawfuladorderedtheirreturn,

MalaysiaPosition
S.435ofCPCcannotbeusedtoseizedthe
passportsasthepassportsarenotproperty
suspected to have been stolen or found
under circumstances which create
suspicion that an offence had been
committed.

FarahFarhanaHassan

HighCourt,EdgarJosephJrJ:
SetasideMagistratesorderon2grounds,in
thatbyvirtueofanimpliedextensionofthe
searchwarrant,thepolicehadpowertoseize
those articles; alternatively, at common law
followingthedecisionsofChicFashionsand
Ghani, the police had power to seize the
unspecifiedarticles.