INTRODUCTION

Search is not defined under the Criminal Procedural Code (herein after referred to as CPC).
Search is generally defined as a process in an investigation that helps to investigate and solve a
case. The search process is provided under the Criminal Procedural Code. There are also other
provisions governing the procedure of search under the specific statute. In such cases, the specific
statute will prevail over the Criminal Procedural Code pursuant to the principle of generalia
specialibus non derogant.
ISSUES
In the scenario given, there are two issues arise which are, firstly, whether the application of search
made by Aman is justified. Secondly, whether the seized jewelries can be tendered as evidence in
Court if Bersih is charged for an offence of retaining stolen property under the Penal Code. To
answer the first issue, there are two questions need to be answered, which are, whether the
Magistrate can issue search warrant, and whether the search warrant is unlawful due to the absence
of period to remain in force.
WHETHER THE APPLICATION OF SEARCH MADE IS JUSTIFIED
Whether the Magistrate can issue search warrant?
In the scenario, the Magistrate has issued a search warrant to Aman to conduct a search on the
premises of Bersih.
Section 54(1) of CPC provides search warrant may be issued when the court reasonably believes
that a person whom a summon under Section 51 of CPC or a requisition under s 52(1) of CPC will
not produce the property or document as required by such requisition; or such property or
document is not known to the court to be possession of any person; or the court considers that the
purposes of justice, or general purposes, search is to be done. A magistrate also may issue the
search warrant to search for evidence of the offence. Section 56 of CPC read with Section 116 of
CPC provides that if a magistrate, upon information and after such inquiry as he thinks necessary,
has reason to believe that an offence has been committed, or any evidence or thing (which is
necessary for an investigation into any offence) may be found in any place, he may issue search
warrant to a person to enter and search for and found must be brought before the Magistrate issuing
the warrant, or some other Magistrate to be dealt with accordance with the law.
In the case of Chong Chieng Jen v Mohd Irwan Hafiz bin Md Radzi (2009) 8 MLJ 364,
Rhodzariah Bujang J stated that the primary requirements to issue search warrant under Section
56 is there must be information laid down to the Magistrate and the inquiry of such information
may be done at the discretion’s court. The court also must have “reason to believe” that the
incriminating evidence of an offence would be found in the premises stated in the warrant. In such
requirement, the court shall look into the circumstances of case. These requirements are mandatory
because without it will be resulting to the invasion of privacy of a person which provided as a basic
human right under Article 13(1) of the Federal Constitution.
In this scenario, referring to Section 54(1) of CPC, the Magistrate may issue a search warrant to
Aman in the situation that Bersih is not complying or will not comply with summon under Section
51 of CPC, or when the propery is nowhere to be found, or the Magistrate feels for general
purposes, search is to be done. Furthermore, Magistrate also has power to issue the search warrant
to search evidence of the offence committed by Bersih if upon information laid down to the
Magistrate, he has a reason to believe that the incriminating evidence of an offence alleged to
Bersih would be found in the premise of Bersih.
Whether the search warrant is unlawful due to absence of period on such warrant to remain
in force?
In the scenario above, Aman has obtained a search warrant from the Magistrate on 1 st June 2015
and the warrant did not specify the period it was to remain in force. He then executed such warrant
only on 12th June 2015, 12 days after the warrant was issued.
Section 57(2) of CPC provides that every search warrant shall remain in force for a reasonable
number of days to be specified in the warrant. In the case of Lam Chiak v PP (1986) 1 MLJ 374,
Thean J at Singapore High Court stated that the requirement of a time period for the warrant to
remain in force is merely directory and in the absence of it, does not fatal the search warrant. In
this case, the accused was charged under section 3(1) of the Copyright (Gramophone Records and
Government Broadcasting) Act. The warrant was issued to the police officer on November 3, 1964
but it was executed only on November 8, 1984 which the court held that the execution of such
warrant some six/seven days later was within a reasonable period of time.
Thus, the search warrant which did not specify the period to remain in force obtained by
Aman is lawful as the requirement of a time period stated in the warrant is not mandatory.
Furthermore, the search warrant will remain in force for a reasonable number of day, and thus, the
act of Aman to execute the search warrant obtained by him 12 days after the warrant is issued, is
lawful if the court thinks that the period of 12 days is reasonable.
WHETHER THE ITEM SEIZED CAN BE TENDERED AS EVIDENCE IN COURT IF
BERSIH IS CHARGED FOR AN OFFENCE OF RETAINING STOLEN PROPERTY
UNDER THE PENAL CODE
The power to seize property suspected to be stolen may come under Section 435 of CPC. This
section provides that any police officer may, with or without a search warrant, seize any property
which is alleged to have been stolen; or found in suspicious circumstances of an offence having
been committed. And such officer, if subordinate to the officer in charge of the nearest police
station, shall immediately report the seizure to the officer. This provision under Section 435 is
wide and empowers any police officer to seized property not mentioned in search warrant. In the
case of Chic Fashions (West Wales) Ltd v Jones [1968] 2 WLR, Lord Denning in his judgment
stated that police were justified in seizing the plaintiff’s goods even though such item were not
specified in the search warrant so long as the police reasonably believed them to be stolen. This
case has been cited with the approval of Malaysian case of Re Kah Wai Video (Ipoh) Sdn Bhd
(1987) 2 MLJ 459.
Since Bersih is alleged for an offence of retaining of the stolen property, Aman who is a
police officer has a power to seize the stolen property pursuant to Section 435 of the CPC. This
provision gives power to Aman who is a police officer to seize the golden jewelries which is
alleged to have been stolen or found suspicious circumstances of an offence having been
committed. Aman also has power to seize the golden jewelries even it is not mentioned in the
search warrant pursuant to the case of Chic Fashion and Re Kah Wai Video (Ipoh) Sdn Bhd. Sect