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