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Advanced Criminal Procedure I - Assignment I

Advanced Criminal Procedure I - Assignment I

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Published by Khairul Idzwan
Our firm [group] assignment tackling various issues of criminal procedure. Facts included.
Our firm [group] assignment tackling various issues of criminal procedure. Facts included.

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Published by: Khairul Idzwan on Aug 07, 2010
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06/14/2015

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Venus, the managing director of Petpot Construction Sdn Bhd at Taman Kasihku, ShahAlam, made a police report at Shah Alam police station that her office was robbed by a group of armed men with samurai swords at about 10 am on 13 December 2008. A number of items werestolen which included then sets of mobile phone, five luxury watches, five laptops, a substantialamount of cash and the company’s Mercedes. The employees were also locked in the office after the robbers seized the keys to the office. Part of the incident was caught on close circuittelevision (CCTV) installed by Kaseh Sdn. Bhd, a company which occupied the ground floor of the same building. Karim, the manager, refused to have anything to do with the policeinvestigations for fear of reprisal from the robbers.Inspector Alpha has been assigned to investigate the case. An initial investigationrevealed that the robbers are habitual criminals who are on the police wanted list. There are threeother companies within the same vicinity which had been robbed by the robbers. Lawak EventSdn Bhd was robbed a week prior to the robbery at Petpot Construction.A roadblock was set up immediately at the junction of a main road leading up of TamanKasihku as well as the exit to the Federal Highway. A Mercedes driven by Beta was stopped andsearched by the Police. Since the car fitted the description in the police report, Inspector Alphaseized it and all the four passengers of the car including Beta, the driver, were taken to the ShahAlam police station for further investigation. At the police station, it was revealed that the other three passengers, namely Galaxy, Chong and Aru were part of a syndicate which sells piratedDVD’s including pornographic materials. Proceeds of the robbery from Petpot construction werediscovered in the boot of the car. When questioned by the police, Aru claimed that he had justarrived in Shah Alam from Penang and had no knowledge that a robbery had been committed byBeta, Chong and Galaxy.The police also raided a house believed to have been occupied by the four suspects prior to the robbery at Petpot Construction although Ali, the landlord, objected to it. The police seizeda car, a substantial amount of cash and pirated DVDs. Ali claimed that the search was unlawful.All four men were subsequently arrested and produced before a Magistrate to obtain a remandorder. A four day remand order was granted by the Magistrate. Upon completion of theinvestigation all four were charged with armed robbery of Petpot Construction.
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a) Explain whether Ali, the landlord, can object to search conducted by the police (10m)
Whether or not Ali can object to the search can be grounded in the lawfulness of the search. Theconcern on lawfulness is twofold; i) the search at initial stage itself and ii) the subsequent actionafterwards which is the seizure of things not concerned with the contemplation of the search.Tackling the first issue of the question is whether the search conducted by the police is unlawful.Generally, search is a power given to the police for the investigation of the criminal offence.There are two types of search under Criminal Procedure Code (CPC) which are search withwarrant and without warrant. It is not stated clearly in the facts whether the search conducted inthe case is with warrant or not. If warrant was available, section 59 of CPC lays down duty on person in charge of place liable for search to allow entry into it. If warrant was issued, Ali mustallow and not object to the search upon demand and production of the warrant.But since the facts of the case did not mention anything about warrant, can Ali object to thesearch if it was without warrant? Search without warrant is governed under section 62 of theCPC. It may be conducted by the police not below the rank of Inspector. There must bereasonable cause to suspect that stolen property is concealed in such place. There must also goodground of believing that delays in obtaining warrant would result to the property being removed.List of the alleged stolen property shall also be delivered or taken down in writing. Owner of stolen property shall also accompany the police in the search.There is conflicting views on the effect of non-compliance with the section. In
Chin Hock Aun v PP (1989) 1 MLJ 509
, it was held that there is no legal obligation to prepare and deliver a searchlist under the term of the section. However, in
Yong Moi Sin v Kerajaan Malaysia & Anor (2000)1 MLJ 35,
the court decided otherwise. The Court of Appeal set aside the High Court’sdecision and remitted the case to the Sessions Court for assessment of damages because thesearch had not strictly complied with section 62(2) and (3) of the CPC.
Yong Moi Sin
seems toweigh more for it being more recent.All the ingredients mentioned in section 62 shall be fulfilled in order to make the search lawful.Applying to the question, the police raided the house believing that the house has been occupied by the suspects prior to the robbery at Petpot Construction. It was revealed that the robbers arehabitual criminals who are on the police wanted list. Being habitual criminals, they are most
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likely to be an expert and experienced thus a strong ground to believe they are meticulous intheir work. The police might be successful in proving the high possibility that they will removethe alleged stolen property if there is delay in searching the house.It is most probable that the facts of the case will help the polices to prove reasonable cause tosuspect and good grounds of believing the delay in obtaining warrant will result to the propertyto be removed. If list are prepared and owner of stolen property accompany the search,complying with section 62, then it will be a lawful search and thus, Ali can’t object to the search.Looking into second ground whether Ali can object to the search, is on the subsequent seizure of other things not being in initial contemplation of the police.This is governed under section 435 of the CPC on seizure of alleged stolen property. It allowsthe police officer to seize stolen property found or when there is suspicion that an offence has been committed. This section seems to include search with or without warrant. In
Chic Fashions(West Wales) Ltd v Jones (1968) 2 WLR 210,
it was decided that it is lawful to seize propertywhich is believed to be a stolen property even though they are not listed in the search warrant.Therefore, in this case, the police have a right to seize any property believed to be stolen or  property found in circumstance where there is suspicion that offence is being committed. Theseizure of a car, a substantial amount of cash and pirated DVDs even if is not in contemplation of the search will not render the seizure unlawful as long as there is suspicion that an offence has been committed, which is obviously so in the current case. Pirated DVDs for example althoughis not contemplated in the course of search in relation of the recent robbery, raise suspicion of anoffence again intellectual property, thus is covered under section 435 of CPC.To conclude, if there is no search list and no accompanying owner of stolen property (besidesreasonable cause to suspect and good reason to believe that delay will cause property to beremoved, which from the facts on the case seems to rest more towards the police), the search will be unlawful. However, if search list is prepared and owner accompanied, it is a lawful search. Insuch case, Ali could not object to the search
ab initio
. The police also have a right to seize any property not contemplated when commission of offence is suspected. So, the subsequent actionwill not render the search unlawful thus Ali also can’t object to the search on ground of seizureof things not contemplated.
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