Tuesday, February 28, 2017

SECURITY LAW RESEARCH ON SEARCH

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.

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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