Information of Offences

A police report sets into motion the process of criminal justice.

- It may be lodged by an aggrieved party, any witness or any person who has
information concerning the offence.
- Every person aware of the commission of an offence or of the intention of any other
person to commit it has a legal obligation to give information to the police.
- Sec. 13 lists down the offences which imposes such legal obligation upon every
person.
- Where the offence is not listed under Sec. 13, there only exists a moral
obligation to give information.
- The person who made the report or has information of the offence
cannot then be said to be under a legal obligation to give information
under Sec. 13.
- However, Sec. 112 may override Sec. 13 in that it allows the police to
compel a person acquainted with the circumstances of the case to
provide information, despite the offence not being listed under Sec. 13.
First Information Report (FIR) (Sec. 107):
PP v Mohamad Musa Amarullah: The FIR is the first information received of the commission
of an offence.
- It is in the nature of a complaint or accusation or at least information of a crime.
- All that is required is for there to be clear, definite information about the commission
of a cognizable offence to set the investigation machinery in motion.

- The FIR must be lodged before the investigation has commenced.

- Tan Cheng Kooi v PP: It should be recorded at the first earliest opportunity (what is
reasonable in the circumstances of the case) and not include anything more than the
first information and nothing gathered in the course of police investigation.
- A delay in lodging the report at the first reasonable opportunity must then be
explained.
- A report made at the early stages of the arrest, lessens the likelihood of
fabrication where the memory of the complainant is still fresh, and offers the
accused a chance to compare with what the complainant is testifying in court.

- The object of the FIR is to commence investigations.

- PP v Foong Chee Cheong: However important of a document the FIR is, it can never
be treated as a piece of substantive evidence and the fact that no FIR was made is
not itself a ground for throwing out a case.
- In this case, the FIR was made orally. The inspector thought that if any time
was wasted in reducing the report into writing, reading it back to the informant
and getting his signature, the accused might disappear before any steps could
be taken to apprehend him. As investigations had already commenced before
 such report was reduced into writing, it became inadmissible in evidence as
an FIR.
- Generally, the absence of an FIR casts a cloud of suspicion and tends to
weaken the prosecution’s case. But the receipt and recording of an
information report is not a condition precedent to the setting in motion of a
criminal investigation (Emperor v Khwaja Nazir Ahmad)

- The evidentiary value of an FIR is only to contradict the testimony of a witness under
Sec. 145 of the Evidence Act or to corroborate his testimony under Sec. 157, and it is
not substantive evidence of its contents.

- Lee Ah Seng v PP: However, omissions in the FIR will deprive the prosecution of the
most valuable corroboration and thereby make a story suspicious.
- When the FIR contains an omission as to an important fact relied upon by the
prosecution, in the absence of any other evidence, the court may refuse to
consider the evidence of the complainant on that fact because of such
omission.
- Nevertheless, an omission in a report hurriedly lodged under the press of
events should not have the same significance as one in a report lodged after
cool calculation (under calmer circumstances).
Non-tendering of the FIR:
- Tan Cheng Kooi v PP: Where the case against the accused depended entirely on the
evidence of the complainant, the failure to produce the FIR would deprive the
accused of an opportunity to cross-examine his accuser, which would raise the
presumption under Sec. 114(g) of the Evidence Act that tendering the report would
be unfavourable to the prosecution’s case.
- In this case, the first information was received orally, and no written report
was made subsequently for production at the trial. Where all the evidence
against the accused persons came entirely from the complainant, the non-
tendering of the FIR caused the court to draw an adverse presumption against
the prosecution’s case.

- Balachandran v PP: Where the evidence of a single witness who has made an FIR is
vague, it would be most desirable to tender the FIR in evidence in order to enhance
his credibility. Where it is not tendered, the evidence of the witness stands to be
rejected because it may not pass the test of credibility and reliability on its own. It is
only to that extent can it be said that the failure to produce the FIR is fatal.

- Abdul Razak Johari v PP: Where the accused was charged with possession of drugs,
and the prosecution’s case relied on the evidence of the arresting officer, who was the
sole witness to the offence, the non-tendering of the FIR was found to be fatal.
- So fundamental and important was the evidence of the arresting officer that
the prosecution should have tendered the FIR purported to have been made
 by him. As the arresting officer was the only person at the scene of the crime,
virtually the whole case depended on what he said happened on that
particular day.
- Failure to produce the FIR was a very serious omission and was fatal to the
prosecution’s case. The court therefore drew an adverse presumption against
the prosecution’s case under Sec. 114(g).
Non-First Information Reports:
- Any report made after the commencement of investigations or at the end of police
investigations or after an arrest has been made is not an FIR.

- PP v Ismail Atan: Statements made and recorded after investigation be it in the form
of police report or otherwise is not an FIR but more of an investigation statement.
Anything can be filled up by the writer to fit the circumstances of the case as it had
developed. Thus, admission of such report cannot be allowed.

- However, in PP v Mohd Bandar Shah: There is no universal application that a police

report is not admissible because it is not an FIR so long as it is relevant to show
consistency or rebut or show inconsistencies with the evidence of a prosecution
witness. The mere fact that the police report is not an FIR does not necessarily render
it inadmissible if it is found to be relevant to determine an issue before the court.
- The prosecution cannot plead ignorance of the contents of a police report and
attempt to withhold it on the ground that it is not an FIR. If a police report may
be used to show consistencies with the evidence of a witness in court and may
afford some ground of believing the witness then there is no reason why it
cannot be used.

- Nevertheless, the non-production of police reports which are not FIRs attract no
adverse inference under Sec. 114(g).
Police Investigation and Powers
The conduct of an investigation, or otherwise, depends on whether the nature of the offence
is non-seizable or seizable:
- Sec. 108: Non-seizable offences
- Where a report lodged concerns a non-seizable offence, the complainant will
be referred to a magistrate, upon which he may choose to initiate civil
proceedings or pursue a criminal prosecution against the offender.
- The police are not precluded from investigating non-seizable offences where
the matter is of public interest.
- In order to exercise such discretion, an application must be made for
an order to investigate (OTI) from the Public Prosecutor to enable the
police to exercise their special powers in conducting the investigation.
- Where a statement is recorded before an OTI is obtained, the
suspect/accused would not have to answer in truth all questions put to
him under Sec. 112 as the special police powers to conduct
investigations had not arisen.

- Sec. 109: Seizable offences

- Where a report lodged concerns a seizable offence, any police officer not
below the rank of Sergeant or any officer in charge of a police station may,
without the order of the Public Prosecutor, conduct an investigation into the
matter through the exercise of all or any of the special powers.
Conduct of police investigations:
- Upon information received under Sec. 107, or through their own knowledge or
credible information, the police may proceed to investigate into the matter under
Sec. 110 (seizable offences).
- A police investigation commences when the suspicion of a police officer has been
aroused to such an extent as to cause him to proceed to action.
Powers of investigation:
Attendance of witnesses (Sec. 111): The police is empowered to require the attendance of
material witnesses at the police station for questioning.
- Uthayakumar v PP: The requirements in the provision must be complied with
otherwise any subsequent detention made will be rendered illegal.
- ‘Police officer’ in the provision refers to the investigating officer himself
(Inspector) and no other person is allowed to make an order in writing
requiring the witness’ attendance.
- In this case, an order in writing made by a Constable was not valid.

- The witness must be a person acquainted with the circumstances of the case.
 - Where a witness refuses to attend, he can then be compelled to attend through a
warrant issued by a magistrate under Sec. 111(2), but only if the requirements in
Sec. 111(1) had been complied with.
Examination of witnesses (Sec. 112): The police may examine any person (even though he
may thereafter be the accused) acquainted with the facts and circumstances of the case.
- A statement recorded from a person examined is intended to assist the police in their
investigations. The examination provides an opportunity for the police to gather
information alleged in the FIR to determine whether or not there is sufficient
evidence to prosecute the accused.

- Sec. 112(1): A person examined must be one who is acquainted with the facts and
circumstances of the case.
- Sandra Margaret Birch v PP: Where the owner of the house that rented a room
to the accused was not examined, and no statement was recorded from him,
the court found that the police officer’s act in not doing so was justified.
- Despite living in the same house as the accused, the owner admitted
that sometimes he would be away from his house, thus causing him to
not fall within the ambit of persons “acquainted with the facts and
circumstances of the case”.
- Merely associating a person with the accused is not sufficient to say
that such a person was acquainted with the facts and circumstances of
the case.

- Sec. 112(2) & (3): The provision imposes upon a person a legal obligation to answer
truthfully all the questions posed by the police officer.
- Not doing so amounts to an offence under the Penal Code:
- Sec. 176: Omission to give information by a person legally bound
- Sec. 177: Furnishing false information
- A person can only refuse to answer if he has invoked his right of refusal
pertaining to questions the answers to which have a tendency of exposing him
to a criminal charge, penalty or forfeiture.

- Sec. 112(4): However, before a police officer can pose questions, such person must be
informed of his legal obligation under the provision.

- Yusof Omar v PP: Where the provision already imposes a legal obligation upon the
person examined to answer all questions truthfully, it is not necessary for the
prosecution to prove voluntariness before the statement can be admitted as
evidence. Thus, the element of voluntariness becomes irrelevant.

- Sec. 112(5): The statement that has been reduced into writing and read back to the
person examined must be signed or thumb-printed by such person.
 - Abdul Ghani Jusoh v PP: Importance of signature or affixing thumb print:
- Against the maker: To show that the statement was made voluntarily
- Against the police officer who examined the maker: To act as a safeguard
against any allegation that the recording officer has built up the statement.

- Failure to obtain the maker’s signature or thumb print must be supported with
reasons in order for the statement to be admissible.

- In this case, where no adequate reason and no reason whatsoever was given
for the failure to obtain the signature (or thumb print) of the accused persons
on their statements, both were inadmissible.
- The absence of signature or thumb print on the statements as recorded
by the police officers does not support the prosecution’s contention
that the appellants made them or that they voluntarily made them.
Search of premises (Sec. 116): A police officer conducting an investigation may search for any
property or documents related to the offence that is the subject of his investigation.
- A search under this provision may be conducted without a search warrant.
- However, Secs. 64 and 65, which requires the production of a search list and for the
occupant to be present during the search, must be complied with during the conduct
of the search.
Detention for investigations (Sec. 117): A magistrate may detain a person where
investigations cannot be completed within 24 hours.
- The provision is a machinery to help complete investigations.
The application for a remand under the provision involves three procedural elements:
- Production of the arrested person before a magistrate (Sec. 117(1))
- To enable the magistrate to decide whether or not a remand is necessary and
for an arrested person to make any representation he may wish in the matter.

- Furnishing grounds for detention (Sec. 117(1))

- What the magistrate has to decide at this stage is whether there are grounds
for believing that the accusation or information is well-founded.
- Chong Fook Kam v Shaaban: The law does not empower the police to arrest
and detain potential witnesses.
- PP v Audrey Keong Mei Cheng: It is an abuse of the law to compel witnesses
or potential witnesses to come forward to assist in police investigations.

- Dasthigeer Mohamed v Kerajaan Malaysia: A remand order cannot be based

solely on the fact that a serious crime has been committed and that the
person arrested is a suspicious person. It must be based on some degree of
confidence that he is the wrongdoer and that the remand is necessary to
complete investigations, which cannot be achieved if he is released on bail.
 - Re Detention of S. Sivarasa & Ors: A magistrate ought not to give a remand
order without satisfying himself as to its necessity and that the period of
remand should be restricted to the necessities of the case.

- The investigation must have commenced and produced grounds to believe

that the complaint or information is well-founded as to necessitate the
detention of the suspect.
- Thus, stating in the application that the detention itself is to complete
investigations would be insufficient.
- Re Syed Mohammad: The provision does not allow the detention of a
person in order to, at leisure, conduct further investigations or look into
that person’s involvement in other offences.

- Production of Investigation Diary (ID) (Sec. 117(1))

- The production of an ID is mandatory in making an application for a remand,
failure of which empowers a magistrate to not entertain the application.

- Dasthigeer Mohamed: The purpose of the ID is to help show:

- How the first 24 hours had been utilised
- Why and for how long the arrested person should continue to be held
in custody and not released on bail
- Why the arrested person should be held in police custody

- Re Syed Mohammad: The copy of entries in the ID is the only source upon
which the magistrate may gauge the need for remand.
- PP v Ayar: Where there was a failure to transmit the ID, the magistrate was
right in refusing the application for remand.

- Audrey Keong Mei Cheng: In this case, the respondent’s husband was charged for CBT.
In making an application for remand, there was a failure to produce the ID to the
magistrate. Further, there was a failure to show that the respondent committed or
was involved in any offence to justify her further detention in order to complete
investigations. On the contrary, the information showed that she would, in all
probability, only be a potential witness against her husband. The Court of Appeal
found that since the provisions of Sec. 117 had not been remotely complied with, the
registrar was right not to order further detention of the respondent.
Duration of remand:
- Once an application has been made, the magistrate must then decide whether or not
to grant the remand order and the period for which the order should be granted.
- Re Syed Mohammad: The provision provides the magistrate with the
discretion to grant reasonable periods of remand from time to time within
the limits set. However, such discretion must be exercised cautiously.
 - Sec. 117(2): There are two distinct periods for remand which may be granted:
- (a) Where punishment with imprisonment for the offence is less than 14 years,
the detention shall not be more than 4 days on the first application, and not
more than 3 days on the second application
- (b) Where punishment with imprisonment for the offence is 14 years or more,
the detention shall not be more than 7 days on the first application, and more
than 7 days on the second application.

- Ramli Salleh v Inspector Yahya Hashim: In determining the period, the magistrate
should weigh the seriousness of the offence and determine whether a shorter period
would be sufficient to enable the police to complete investigations.
- PP v Ayar: Where the investigating officer made a second application to detain
the accused, his failure to state what he had been doing in the investigation
during the three days of remand that had been granted earlier caused the
magistrate to refuse to remand the accused any further.

- Sec. 117(5): In deciding the period for detention, the accused shall be given the right
to make representations through himself or a counsel of his choice.
- If the magistrate refuses to grant the detention or to further extend the detention,
the police has no choice but to release the accused.
Sec. 117(7): Upon granting an order for remand of the person arrested, the magistrate must
record his reasons for doing so.
- Suhaimi Yusof v PP: Where the magistrate merely granted the remand without any
reason to support his order, in giving no reason, he was found to have failed in
exercising his judicial mind, thus causing the order to be set aside.
- Sundar Singh v Emperor: Failure to do so may be treated as a mere irregularity
if there truly existed grounds for believing that the person arrested was
involved in a serious conspiracy and further information has since been
obtained during the course of investigations.
- PP v Ayar: It is also desirable for reasons to be given for rejecting an application for
remand to allow the High Court, upon revision, to determine whether it was correctly
made.
Successive applications for detention (Sec. 117(4)):
- A magistrate must consider any detention made of the person arrested prior to the
application for remand.
- However, the provision does not expressly disallow successive applications for
detention to investigate unrelated reports of offences.
- Dasthigeer Mohamed: The provision operates only in relation to any single report, any
single investigation, and any single arrest, and thus, an application for remand is only
in respect of a single report.
- To restrict the interpretation of the provision would be to ignore the fact that
offences may be committed in different police districts.
Arrest
- ‘Arrest’: To deprive a person of his liberty by lawful authority
- It is an interference with a person’s fundamental right of personal liberty
(Art. 5(1), Federal Constitution), thus police officers have no right to detain
somebody for the purpose of getting them to help in their enquiries.
Sec. 15: Arrest is made through the touching or confining the body of the person, unless there
is a submission to the custody by words or action.
- What constitutes an arrest must have reference to the factual situation from which
the dispute arose.
- Shaaban v Chong Fook Kam: Arrest occurs when a police officer states in terms that
he is arresting or when he uses force to restrain the individual. It occurs also when,
by words or conduct, he makes it clear that he will, if necessary, use force to prevent
the individual from going where he may want to go.

Non-arrest:
- Shaaban v Chong Fook Kam: An arrest does not occur when a police officer stops an
individual to make enquiries.
- Jayaraman v PP: Where the corporal merely told the applicants to wait and not leave
the temple, he had merely stopped them to make enquiries into the attack on the
temple. Thus, it could not be said that the act of them waiting constitutes submission
to custody and that the applicants had been arrested at the material time.

- Lee Cher Joo v Mohd Sharif Othman: There is a world of difference between telling a
person to wait and arresting the person. The willingness to wait or agreeing to wait
is not equivalent to being put under arrest.
- The plaintiffs were called for an interview at the police station, but were told
to wait from 6.30pm until 9pm. However, between those hours, there was no
evidence that the plaintiffs were prevented from leaving the police station.
Only at 10pm were the plaintiffs arrested.
Constructive arrest:
- PP v Lim Hock Boon: Constructive arrest is not an actual arrest.
- It occurs where submission by a person to the custody of the police is inferred.

- Emperor v Madar: A person may be watched or have his liberty restricted without an
arrest at all.
- TEST in Sambu v R: What would happen if he tried to escape?
- Constructive arrest is the state of being guarded and watched to prevent
escape.

- PP v Johari Abdul Kadir: Where the accused was escorted from the bus to the
narcotics room, there was only constructive arrest. Actual arrest occurred when, upon
 his arrival at the room, a body search was performed on him and he was ordered to
unlock the bag.

- PP v Tan Chye Joo: Although the leader of the police party had told the accused that
he was not free to go wherever he liked during the search, this did not mean that he
had been arrested. The accused was only placed under arrest after the discovery of
the drugs.
Arrest without a warrant (for seizable offences) by a police officer:
Sec. 23(1)(a): An arrest for a seizable offence may be made by a police officer without a
warrant where:
- A person is concerned in the commission of a seizable offence

- Against whom a reasonable complaint has been made

- Derived from complaints by the victims themselves, or through police reports
received either orally or written
- Chong Fook Kam v Shaaban: A reasonable complaint may be equated with
reasonable or probable cause.
- It is a state of affairs that would lead a man of ordinary care and
prudence to believe or entertain an honest and strong suspicion that
the suspect is guilty of an offence.
- Tan Kay Teck v AG: Where no reasonable complaint was made against the
petitioners, their arrest without warrant was unlawful.

- Credible information has been received

- Information received by the police from reliable informants
- Chong Fook Kam v Shaaban: The basis of the information received must be
some definite fact tending to throw suspicion on the arrested person.
- Hashim Saud v Yahaya Hashim: Credible information against the plaintiff was
established as the source had previously proved to be reliable where it had
supplied information that led to arrests and convictions.

- A reasonable suspicion exists

- What the police thinks or perceives against the person to be arrested
- Shaaban v Chong Fook Kam: It is a state of inference where proof is lacking
- Suspicion should be distinguished from prima facie proof. Prima facie
proof consists of admissible evidence, whereas suspicion can take into
account matters which could not be put in evidence, and matters
which, though admissible, could not form part of a prima facie case.
- Tan Eng Hoe v AG: Where there exists facts which would create a reasonable
suspicion in the mind of a reasonable man upon which the police could act
bona fide without prejudice.
Arrest without a warrant (for seizable and non-bailable offences) by a private person:
Sec. 27: A private person may arrest without warrant any person who commits a non-bailable
and seizable offence in his view. The person arrested shall be handed over without
unnecessary delay to the nearest police officer or police station.
- ‘In his view’:
- Metro (Golden Mile) v Paul Chua: The offence must have been committed in
the sight of the private person and mere opinion is insufficient.

- PP v Sam Hong Choy: The words do not cover arrest on mere suspicion or
opinion, but a situation where, although the private person did not actually
witness the offence being committed, he is certain that the persons running
away or trying to escape were the offenders themselves as he was in such
close proximity to the scene of the crime.
- The whole must be treated as one single transaction and any person
who sees the commission of the offence or finds the offender running
away immediately after the commission, is entitled to arrest him.
- In this case, where the accused was charged for resisting arrest, the
witness was found to be a person lawfully empowered to make an
arrest where, upon hearing someone shouting “tolong, kejar
perompak”, he saw two men running past him, one of whom he later
identified as the accused.

- ‘Without unnecessary delay’:

- John Lewis v Tims: A person who, in exercise of his common law right, arrests
a person without a warrant should take the arrested person to the police, not
necessarily immediately, but as soon as may be reasonably possible.
- In this case, where an act of shoplifting took place, taking the
respondent to the appellant’s office to obtain authority from the
managing director before handing her over to the police was not an
unreasonable delay.
Effect of an unlawful arrest:
- Saw Kim Hai v PP: It is settled law that when an accused person is before a court the
court has jurisdiction to try him despite the fact that his arrest may have been illegal.
- Thus, an illegal arrest would not be fatal to the prosecution’s case.
Rights of an arrested person:
- Sec. 28A(1): A person arrested without a warrant shall be informed as soon as may
be of the grounds of his arrest by the police officer making the arrest.
- Christie v Leachinsky: Upon his arrest, a person has the right to know on what
charge of or on suspicion of what crime he is arrested. Even where
circumstances which excuses such condition exists, the police still have a duty
 to provide such information at the first reasonable opportunity after the
arrest.
- PP v Mah Chuen Lim: ‘As soon as may be’ means that it should be done with
such convenient speed depending on the circumstances of the case.

- Ramli Salleh v Inspector Yahya Hashim: A person’s right to counsel begins from the
moment of his arrest, subject to certain limitations under Sec. 28A.
- Sec. 28A(2): Any form of questioning or recording of any statement can only
commence once he has been informed of such right.
- Sec. 28A(4): Where a person chooses to exercise such right, the police must
give reasonable time for the counsel to be present.
Search
- A search may only be conducted in accordance with the circumstances provided by
law and with the purpose of obtaining incriminating evidence.
Search of Persons
Search of persons may be conducted without a warrant where it is a search:
- Of persons arrested for the instruments, fruits or evidence of the crime (Sec. 20)
- Of persons who are unable to give a reasonable account of themselves (Sec. 22)
- In any place for a thing capable of being concealed upon the person (Sec. 17)
Procedure on search of persons:
- Sec. 20A: A search must comply with the procedure specified in the Fourth Schedule.
- A body search may be conducted on a person arrested only if it complies with the
objectives listed in para 1(1), Fourth Schedule.
- Para 1(2), Fourth Schedule: A ‘person arrested’ means a person who is arrested or is
in lawful custody after his arrest.
Types of body search (para 2, Fourth Schedule):
- Pat down search (para 4 – 6)
- It may be conducted at the time of arrest, or before the arrested person is put
into custody.
- No authorisation is required for an officer to conduct a pat down search.

- Strip search (para 7 – 9)

- It may be conducted when an arrest has been made, and when there is
reasonable suspicion of concealment of an item by the person arrested.
- It shall not be conducted without the prior approval of an Inspector (or above)
- If the approval is given orally, it must be reduced into writing.
- A second officer of the same sex of the person arrested must be present.
Sec. 20A read with the Fourth Schedule: A list of all things seized during the body search must
be prepared by the officer conducting the search and signed by the person arrested.
Search of Premises
Search of premises without a warrant:
Sec. 62: On information received by a police officer not below the rank of Inspector in
relation to stolen property concealed or lodged in any place and where there is good grounds
to believe that delay in obtaining a warrant of search is likely to lead to removal of the stolen
property.
- SM Summit Holdings Ltd v PP: In considering whether there is ‘reason to believe’ or
‘reason to suspect’, the magistrate is entitled to take into consideration matters which
would not otherwise be admissible at trial.

- Ghani & Ors v Jones: However, the common law does not provide a statutory right
which would authorise the police to retain property belonging to persons not shown
to be concerned in the suspected crime and where there are no reasonable grounds
of belief that the property will be useful evidentially in some crime.

- Yong Moi Sin v Kerajaan Malaysia & Anor: The ingredients of Sec. 62 are:
- An Inspector (or above) must be in receipt of the information
- The information gives rise to a reasonable cause for suspecting that any stolen
property is concealed or lodged in any place
- The police officer has grounds for believing that delay in obtaining a search
warrant would cause the property likely to be removed.
- A list of the property alleged to have been stolen shall be delivered or taken
down in writing with a declaration stating that such property has been stolen
and the informant has good grounds for believing that the property is
deposited in such place.
- The person from whom the property was stolen or his representative shall
accompany the officer in such search for the purpose of identification of the
property.

- In this case, although there was no compliance with the last two ingredients,
the court held that it is neither concerned about the illegality of the search,
nor how the evidence was obtained.
- An illegal search can never be construed to be a criminal trespass and
the police would not be guilty of it.
- The court found that what was important was that the search was a
genuine effort aimed at preserving evidence of the crime.
Search of premises with a warrant:
Sec. 56: A magistrate may issue a warrant if upon information he has reason to believe that
an offence has been committed, or any evidence which is necessary for the investigation can
be found in any place.
- The requirements of ‘information’ and ‘reason to believe’ are mandatory where the
issuance of a search warrant would lead to the invasion of the privacy and property of
the occupant’s premises.
- Ahmad Ishak v PP: In determining what constitutes ‘reason to believe’ the magistrate
must look into the circumstances of the case to see if they are such that any
reasonable man could see sufficient cause to believe.

- Chong Chieng Jen v Mohd Irwan Hafiz: Where search warrants to search the premises
of the applicant’s legal firm and his residence on grounds of suspicion of keeping
incriminating material were issued, the court, in setting aside the search warrants and
ordering the return of items seized, held:
- The information that the magistrate acts upon must be information credible
enough to form a basis for believing that materials connected to the offence
were to be found
- The application for a search warrant must be supported with other
information (e.g: police report, relevant entry in the ID)
- The mere belief of a complainant is insufficient to constitute ‘information’ or
‘reason to believe’, causing the warrants to have been unlawfully issued.
Sec. 59(1) & (2) read with Sec. 16(2): If entrance cannot be obtained into a premise, it may
be effected by breaking open any outer or inner door or window of the place to be searched.
- However, force to gain entrance into a premise can only be used where a search
warrant has been issued, and as long as a proper search is being conducted.
Sec. 57(2): Every search warrant will remain in force for a reasonable number of days which
must be specified in the warrant.
- Lam Chak v PP: A period of 5 – 7 days after the date of issue is considered reasonable
and the requirement to specify the number of days is not mandatory, but directory.
Thus, failure to comply would not be fatal to the continuation of the warrant after its
issue.

- N Indra P Nallathamby v PP: Where there are conditions stipulated in the warrant,
despite the number of days specified, the warrant does not expire until the conditions
are complied with.
- In this case, the lifespan of the warrant was only three days. However, where
the police had yet to comply with the remaining conditions in the warrant after
the three days, the warrant was considered to still be valid and alive.
In conducting the search of premises with or without a warrant, there are two formalities
which must be observed:
- Sec. 64: A list of all things seized and of the places in which they were found must be
prepared by the officer conducting the search, signed by him and delivered to the
occupant of the premises.
- Sec. 65: The occupant of the premises is permitted to be present during the search to
witness the recovery of any items found.
Preparation of the search list:
- Sec. 64 imposes an obligation upon the officer conducting the search to prepare the
search list. It is intended to only include exhibits taken into possession by the officer.
- Nevertheless, the conviction or acquittal of the accused depends on the credibility of
witnesses and other forms of evidence, and never on the non-compliance of a legal
procedure.
- San Soo Ha v PP: The failure to prepare a search list would, at most, cast doubt upon
the bona fide of the party conducting the search and afford ground for scrutiny by
the court. However, if after close scrutiny, the court reaches the conclusion that the
stolen articles were recovered from the possession of the accused, contending that
the evidence was recovered in an illegal manner would not amount to a valid defence.
Production of the search list:
- PP v Gurchan Singh: Although it is not a requirement for the prosecution to produce
or tender the search list to the court or to the defence, when there is a conflict of
evidence between what was stated in the list and what items were eventually seized
by the officer, the search list becomes of great importance and should be tendered
to assist the court in determining the credit of the prosecution’s witnesses.
- PP v Lee Chee Meng: Where the investigating officer refers to a search list in the
course of trial but fails to produce it, its non-production would be a serious flaw to
the prosecution’s chain of evidence and would lead to an adverse inference being
drawn by the court under Sec. 114(g) that the production of the list would be
unfavourable to the prosecution.
Effect of an illegal search:
- PP v Seridaran: Where a search has been carried out contrary to the provisions of the
Code and incriminating items are secured as a result of the search, the admissibility
of such items will not be tainted by the illegality of the search.
- Saminathan v PP: The court is only concerned with the relevancy of the documents
and not the manner in which the police obtained possession of them.
- Kuruma v The Queen: The fact that evidence has been illegally obtained does not affect
the question of its admissibility.
- However, the principle should be applied with caution in that judges should
exercise their discretion in disallowing unlawfully obtained evidence if
admitting it would be prejudicial against the accused.