SECURITY LAW RESEARCH ON SEARCH
SEARCH
The power of search goes hand in hand
with police investigation because there will be no proper investigation without
power to do search.
1. Frisking - search of body of person
2. Entry of premises and search for
someone – search for person in
premises
3. Entry of premise and search for
document or property –search of place
or premises
Frisking
involves touching
·
Search of
a premise, can be done with and without warrant.
·
With
warrant à when, form and execution?
·
Without
warrantà Section 62 CPC, summary search
Section 63 CPC, Section 116 CPC, seizure of things and common law.
·
Effect
of illegal search or seizure
·
In
Malaysia it is found under CPC. Common law under cases.
Objective of search
·
Necessary in relation to
evidence
·
It discovers evidence
·
You preserve the evidence
·
You prevent disposal of
evidence
·
Obtain incriminating
evidence
·
Leads to a seizure
·
Leads to preservation of
evidence
1st type of search
By who? à Magistrate/JP
è Inspector and above
è Below rank of inspector in presence of
Magistrates/Justice of Peace /Inspector
Types & methods à Setion 20A (a new section)
è Fourth Schedule CPC, objective, general conduct, (on how to do a
search), took provision from Australia and it identifies the 4 types of body
search below.
è 4 types: pat down (example in airport), strip, intimate, intrusive
(done by medical doctor)
A. Pat down search
What? When? à Patting the outer clothing of a
person – para 4(1) & 4(2) 4th schedule
è No authorization required – para 5 4th schedule
è Procedure 6 4th schedule
è Person below rank of I can do if in presence of Inspector.
è Immigration officer power is given by specific law which will override
CPC.
B. Strip search
What? When? à Removal of entire or some part
of a person’s clothing – Para 7(2) 4th schedule
è Authorization, prior approval (written) or reduced to writing of
Inspector & above or equivalent required – Para 8(1) & (2) 4th Schedule
è Para 9 4th Schedule
C. Intimate search
What? When? à Physical examination of body or
orifices other than mouth, nose & ears Para 10 4th Schedule
è Authorization, prior approval (written or reduced to writing) of ASP
& Above or equivalent required – Para 1 4th Schedule
è Para 12 4th Schedule
D.
Intrusive search
What/ When à examination to determine
existence of aany object etc inside the body & removal of it – Para 13(1) 4th Schedule
è Need prior approval of OCPD or equivalent required – Para 14(1) 4th Schedule
è Procedure in Para 15 4th Schedule
Search of body of person
1. Power to seize
offensive weapon:-
§ Section 21 CPC
§ Police officer
§ Other person
2. To ascertain name & address,
to find identity of the person.
§
Section 22 CPC
Search of premises
with warrant
When? à Section 54(1)
CPC (read together with Section 116 CPC) provides for 3 circumstances.
§ When the person who has been issued with summons
(section 51 CPC) or requisition order (Section 52(1) CPC) is not complying/
will not be complying with such summons/order;
§ When property/document is not known by the court to
be in possession of any person
§ When the court considers that the purpose of
justice will be served by a general search
Secti Section 51 CPC is
very important à order to produce
document, if your refuse to comply, police can come with warrant.
§ When? à Section 56
read together with Section 116 allow a magistrate to issue the search warrant
to search for evidence of the offence as well.
Case Laws
1. Chong Chieng Jen [2009] 8 MLJ 364
What is laid before the Magistrate
must be of a credible information and not just any information. Here believed
to be seditious materials in the 2 places named in the warrant
Court explained scope of section 56
which requires information and reason to believe. Court says this 2 are
mandatory there must be information for existence of evidence in that premise
and there must be reason to believe existence of evidence in the premises named
in the warrant.
Court also held the mere believe of
the complainer (the police) who goes to the Magistrate could not constitute the
information not reason to believe under Section 56 of CPC.
Search warrant important because it
involves invasion of privacy and property where the law protects therefore have
conduct on body search. This is to be respectful to the person. More often
because search lead to seizure so the law must accord some protection to owner
of premise. That’s why search warrant required.
Form of search, Section 57 of CPC. It
must be in writing and signed and shall bear the seal of court and in force for
a reasonable number of days specified in the warrant and can be executed in any
part of Malaysia.
2.
Lam Chiak [1986] 1 MLJ 374
In respect of validity of search
warrant.
In paper may have expired but police
still conducted the search.
Court here says; it does not state
what is the reasonable number of days to be in forced however it must be
subject to one limitation, it must be reasonable. What is reasonable? Depend on
facts of case. Number not specified under Section 57(2).
It is directory and not mandatory to
have the number of days in the warrant
So far not contested
Who can execute search warrant?
Section 60 CPC – allows Magistrate
who issued the search warrant to attend personally to see that the warrant is
duly executed
Section 61 allows any Magistrate
competent to issue a search warrant to orally direct a search to be made in his
presence of any place
Section 116- allows the investigating officer to conduct
the search himself
Section 59 - read with section 16(2)
empowers the officer to break open any other or inner door of any place.
Search of premises without warrant
Section 62 – only search without
seizing anything, if you need to do seizure, it is governed under Section 435
CPC.
Sectoin 62-65 and 116 make provision
for search of premises without warrant.
Section 63 is summary search it
involves the governing of search as well as seizure.
Section 62 and 116 are concerned with
search and not with seizure
Important Aspects to Ponder
1. Police conduct a body search without arrest if you are found during a
police raid and believed to be hiding something like drugs
- What to do:
• Do not allow the Police Officer to put his hands into your clothes or pockets.
• If you are asked to take out your belongings one by one, each time, say "purse", "keys", "ID card" etc.
• When your pockets/bags are empty, turn them inside out - If you are at a place (example:
disco/karaoke/entertainment outlet) where the Police are conducting a raid
to look for something there (example: drugs), the Police may detain and
search you if they think you have or are hiding the thing being searched
for.
This may only be done in the presence of a Police Officer ranked Inspector and above.
2. A female can only be searched by a female police officer.
·
Protest and lodge a police report if you are forced to strip
naked or threatened with a strip search.
·
All body searches must be
carried out in a professional manner and with decency.
·
A female can only be body
searched by a female Police Officer.
·
• If you are forced to
strip naked or threatened with a strip search:
1. Protest;
2. Remember the Police Officer's name; and
3. Lodge a police report after the incident.
1. Protest;
2. Remember the Police Officer's name; and
3. Lodge a police report after the incident.
3. If police conduct a body search
after arresting you, it must be done in a professional manner and in private.
You may request to be accompanied by your lawyer.
·
All body searches must be
carried out in a professional manner and with decency. The body search must be
conducted in a confined place.
·
It is your right to be
bodily searched in private. It is advisable to request that you be accompanied
by your lawyer for the search.
·
The law allows the Police
to conduct 4 types of body search:- pat down search, strip search, intimate
search, and intrusive search. A female can only be body searched by a female
Police Officer.
References
http://quills4thewritingheartcpc.blogspot.my/2014/10/arrest.html
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