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T2 - EMMANUEL JAMES KALU V PUBLIC PROSECUTOR (2017) 1 LNS 385 - SHAHMUNI RAVICHANDRAN - A163765

The appellant, an African man, was found to have 60 capsules of methamphetamine in his abdomen after undergoing an x-ray and excreting the capsules over 3 days at the hospital. He was convicted of drug trafficking and sentenced to death. The Court of Appeal held that (1) the excretion of the capsules was not an "intrusive search" under the law as it did not involve removing objects from his body cavity, and (2) as no intrusive search was conducted, the lack of a medical officer present did not violate the law. The court dismissed the appeal and affirmed the conviction and sentence.

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Shahmuni T Ravichandran
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276 views3 pages

T2 - EMMANUEL JAMES KALU V PUBLIC PROSECUTOR (2017) 1 LNS 385 - SHAHMUNI RAVICHANDRAN - A163765

The appellant, an African man, was found to have 60 capsules of methamphetamine in his abdomen after undergoing an x-ray and excreting the capsules over 3 days at the hospital. He was convicted of drug trafficking and sentenced to death. The Court of Appeal held that (1) the excretion of the capsules was not an "intrusive search" under the law as it did not involve removing objects from his body cavity, and (2) as no intrusive search was conducted, the lack of a medical officer present did not violate the law. The court dismissed the appeal and affirmed the conviction and sentence.

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Shahmuni T Ravichandran
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PREPARED BY : SHAHMUNI A/P T.

RAVICHANDRAN ( A163765) – FIRM 8

EMMANUEL JAMES KALU v PUBLIC PROSECUTOR [2017] 1 LNS 385


IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA

1.0 FACTS OF THE CASE


The appellant in this case was an African who was stopped and inspected by the
Inspector at KLIA. Upon the physical examination which revealed nothing incriminating, the
appellant appeared to be nervous. Being suspicious, the Inspector took the appellant to the
hospital where the appellant had undergone an X-Ray. The X-ray showed that there were
foreign objects in the appellant’s abdomen. During the next 3 days the appellant excreted 60
capsules and thereafter it was confirmed that the 60 capsules contained Methamphetamine
when the capsules were sent to the chemistry department. The appellant then was convicted
and sentenced to death by the High Court at Shah Alam for the offence of trafficking in
dangerous drugs. Aggrieved by the conviction and sentence, the appellant appealed to this
Court.
2.0 ISSUES
1) Whether the search conducted is tantamount to an intrusive search as outlined in the
Fourth Schedule of the CPC?
2) Whether the intrusive search on the appellant is not in compliance with para 13(2) of
the Fourth Schedule of CPC as there was an absence of a Medical Officer during the
search conducted?

3.0 APPLICANT’S SUBMISSION

The learned counsel argued that the search conducted on the appellant by way of his excrement
would tantamount to an intrusive search as outlined in the Fourth Schedule of the Criminal
Procedure Code (CPC) and there was no evidence to show compliance with the provision. The
drug capsules were discovered by way of intrusive search. The said non-compliance of
statutory provision has occasioned a failure of justice as a medical officer would have been the
competent person envisaged by the said provision to carry out the intrusive search in a
competent manner.

4.0 RESPONDENT’S SUBMISSION


The DPP submitted that the word ‘removal’ in para 13(1) defined it as an act of taking away
from the place or position occupied. It strongly indicates the requirement of positive action.
Hence, an effort has to be made in order for it to be considered as removal as stated in para
13(1), Fourth Schedule, CPC which has not occurred in the present case.

5.0 JUDGMENT & REASONING (FIRST ISSUE)


The court held that the search conducted on the appellant by way of his excrement does not
constitute an intrusive search which falls within the meaning of definition in paragraph 13(1)
of the Fourth Schedule to the CPC. Pursuant to Section 20A of CPC, search of a person shall
comply with the procedure on body search as specified in the Fourth Schedule of CPC.
According to Paragraph 13(1) of Fourth Schedule, an intrusive search means a search
involving the examination of a person arrested to determine the existence of any object,
evidence, weapon or contraband inside the body or body orifices of the person and includes the
removal of such object, evidence, weapon or contraband. However, in the present case, the
court with the view that the excretion of bodily waste via natural bowel movement was not
amounted to an intrusive search because it did not involve any physical probing of the
accused’s body cavity or pumping or taking the capsules out of the body or body orifice by
way of surgical operation or the like. Moreover, the court held that the word ‘removal’ in the
paragraph 13(1) signified the requirement of an affirmative or positive action, Thus, some
exertion of force or effort is required which is not been established in the present case as the
excretion of the capsules by the appellant was by ordinary way of natural bowel movement and
without any medical intervention.

6.0 JUDGMENT & REASONING (FIRST ISSUE)


Para 13(2) of the Fourth Schedule states that the intrusive search shall only be conducted by a
Government Medical Officer or by any hospital assistant or a registered nurse who is acting
under Government Medical Officer or a Medical Officer’s direction. However, in the present
case, there was no requirement to have a medical doctor present during the excretion of the
capsules by the appellant as the excrement does not amount to an intrusive search. Thus, there
is no breach of paragraph 13(2). The Court also rejected the learned counsel defence who
relied on the case of PP v Bayati Heidar which facts and issues similarly to the present case
since paragraph 13(2) is not applicable to the factual matrix of this case.

7.0 CONCLUSION
The appeal was dismissed and the conviction and sentence of the High Court was
affirmed.

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