DISCUSSION 2 CPC

NORLIANA BINTI AZENAN A146464

1. Aman, a police inspector, has obtained from the Magistrate a search warrant which
was dated 4th July 2016 (Monday) to conduct a search on the premises of Bersih. The
search warrant did not specify the period it was to remain in force. Aman executed the
search warrant on 15h July 2016 (Friday) and seized several jewelries from the
premises. Being aggrieved, Bersih filed a criminal application by way of notice of
motion at the High Court and sought a declaration that Amans execution of the search
warrant was unlawful, and an order that the seized jewelries be returned to Bersih.
Argue for and against Bersih if the application made is justified? You are also required
to raise an argument if the items seized can be tendered as evidence in court if Bersih is
charged for an offence of retaining stolen property under the Penal Code.

Argument against Bersih

Under section 56 of the CPC which is read together with section 116 of the CPC, magistrate
has the power to issue a search warrant to a person to enter and search the place for any such
evidence or thing if 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
necessary for an investigation into any offence) may be found in any place. Anything
searched for and found must be brought before the magistrate issuing the warrant, or some
other magistrate to be dealt in accordance with the law.
As decided in Lam Chiak v PP, the court held that the requirement of a time period for the
warrant to remain in force is merely directory and not mandatory, thus, it was not fatal that no
period was specified in the warrant. However, the period must be reasonable. Therefore, in
the current case, Amans execution is was lawful because the period of ten days after its issue
was undoubtly reasonable, the warrant was therefore in force at the date of the execution.

Argument for Bersih

Section 57 of the CPC provides for the form of a search warrant where every search warrant
issued by a court shall be in writing and signed and shall bear the seal of the court, It shall
remain in force for a reasonable number of days to be specified in the warrant and it may be
executed in any part of the Federation. Therefore, the unspecified period would be prejudicial
to the accused. However, the effect for illegal search or seizure is made clear by the case of
Kuruma v R whereby the Privi Council held that illegally obtained evidence is admissible
provided it is relevant to the matters in issue and is not obtained by unfair means.

2. You are a defence counsel acting for your client Mary in a corporate matter. With
regard to the same matter there is also a police investigation into an offence of criminal
breach of trust. Mary is now called by one ASP Lily for her statement to be recorded.
Mary seeks your advice if she has to abide by ASP Lilys request. How would you advice
Mary?

According to section 111(1) of the CPC, an investigating officer may by order in writing
require the attendance before himself of any person who from the information given or
otherwise appears to be acquaited with the circumstances of the case, and that person shall
attend as so required. 111(2) further provides that if any such person refuses to attend, thhe
investigating officer may report to the magistrate who may then , at his discretion issue a
warrant to secure her attendance.
Therefore, it can be concluded that Mary, if the case was taken by first information report, is
required to give statement to ASP Lily and that she should abide the request. If she refuses, it
is up to the discretion of the magistrate to order her attendance.
Besides that, section 112 of the CPC provided that any investigating officer may examine
orally any person acquaited with the facts and circumstances of the case and shall reduce into
writing any statements made by the person so examined. Such person is bound to answer all
questions asked by officer provided such person may refuse to answer any question which
would have the tendency to expose her to a criminal charge or penalty or forfeiture.
Therefore, although Mary is required to record her statement to ASP Lily, she is not
compelled to asnwer all the question by ASP Lily because although she is bound to answer all
question according to section 112 CPC, she may refuse to answer of it may expose her to
criminal charge or penalty or forfeiture.