Liability under Tort: Negligence for item lost within the custody of the police
Any item found to be used in the commission of an offence is required to be in the safe custody of the police for investigation and subsequent prosecution. The existence of the duty of care is statutorily provided for in sub-s 413(5) of the Criminal Procedure Code as follows:
413 Procedure by police on seizure of property
(1) The seizure or finding by any police officer of property taken under section 20 or alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence shall be immediately reported to a Magistrate, who shall make such order as he thinks fit respecting the delivery of the property to the person entitled to the possession of it, or, if that person cannot be ascertained, respecting the custody and production of the property.
(2) If the person so entitled is known the Magistrate may order the property to be delivered to him on such conditions, if any, as the Magistrate thinks fit, and shall in that case cause a notice to be served on that person informing him of the terms of the order and requiring him to take delivery of the property within such period from the date of the service of the notice (not being less than forty-eight hours) as the Magistrate may in the notice prescribe.
(3) If that person is unknown the Magistrate may direct that the property be detained in police custody, and the Chief Police Officer shall, in that case, issue a public notification specifying the articles of which the property consists and requiring any person who has any claim to it to appear before him and establish his claim within six months from the date of the public notification:
Provided that, where it is shown to the satisfaction of the Magistrate that the property is of no appreciable value, or that its value is so small as, in the opinion of the Magistrate, to render impractical the sale, as hereinafter provided, of the property, or as 204 Laws of Malaysia Laws of Malaysia Act 593 Criminal Procedure Code Criminal Procedure Code 205 to make its detention in police custody unreasonable in view of the expense or inconvenience that would thereby be involved, the Magistrate may order the property to be destroyed or otherwise disposed of, either on the expiration of such period after the publication of notification above referred to as he may determine or immediately as he thinks fit.
(4) Every notification under subsection (3) shall, if the value of the property amounts to fifty ringgit, be published in the Gazette.
(5) Notwithstanding the preceding subsections, where the property is required for the investigation of a case and it is necessary for the property to be detained, the property shall be kept in a safe and proper place by the Officer in charge of a Police District where the offence was committed.
The principal issue to be determined by the Court is not whether a duty of care exists, but whether that duty was breached.
In the High Court at Shah Alam on 11th of January 2021, the case of Inspektor M Yusof bin Jahaya & Ors v Chin Hock Wa @ Chan Hock Wa & Ors  9 MLJ 172, the claimants filed the instant suit where the cause of action was premised on the police’s negligence in handling the claimants’ jewellery, it was decided that a claimant may bring a claim on the following grounds:-
1. Whether negligence was pleaded?
2. Whether negligence was established?
3. Whether the police owed a duty of care to the claimant?
4. Whether there was a breach of the duty of care?
As the defendants had sole and exclusive custody of the plaintiffs’ jewellery, and which were not the exhibits produced in court, it was more probable that not that the defendants had failed to ensure safe custody of the plaintiffs’ property.
If prior to a conclusion of a criminal proceeding claimant made enquiries about the return of an item and was then informed that the item was an exhibit in the prosecution case, the usual response is that it could only be returned when the criminal proceedings have concluded. However, an application can be made by the claimant under s 413 of the CPC.
In deciding an application for the return of property under s 413 of the CPC, the magistrate has to consider the following:
(a) who is entitled to possession of the property at the time when it had been seized by the police; and
(b) where it appears that the police had seized the property from a person who has not been shown to have committed any offence with regards to the property,
then the magistrate may make an order for the car to be returned to the person last in possession. The magistrate should not delve into the issue of title or ownership, which would be determined in the civil court.
Furthermore, s 413 of the CPC is a provision empowering the police to continue detaining a vehicle after the 48th hour if no person has been charged in respect of that vehicle. Although that section does not give any right to any individual including the undisputed owner to move the magistrate to grant him the possession of the said vehicle, request can be made to the police to “set s 413 of the CPC in motion to refer the said vehicle to a magistrate for the necessary to be made.”
Hence, if one is suspected to have stolen or found under suspicious circumstances and, “where goods are seized by the police from a person arrested and such property is reported to the magistrate for an order for delivery of the property to the person whom the magistrate thinks fit to take delivery of the same.”
However, it must be noted that where forfeiture is made under the maxim ‘generalia specialibus non derogant,’ the provisions of the special Act will prevail over the general Act. This was further echoed in the case of Malayan Banking Berhad v Public Prosecutor, where the court held as follows:-
“Section 413 of the Criminal Procedure Code cited by the Applicant which empowers a Magistrate to cause a notice to be served in cases where property seized may have been used in the commission of an offence is a general provision and in accordance with the maxim “generalia specialibus non derogant” cannot override a specific statute or provision, namely, the said Act.”
 Muhammad bin Jaafar lwn Pendakwa Raya  MLJU 605  Inspektor M Yusof bin Jahaya & Ors v Chin Hock Wa @ Chan Hock Wa & Ors  9 MLJ 172  Hong Leong Bank v PP  5 MLJ 450  Manoharan a/l Dorasamy v Ketua Polis Ibu Pejabat Kontinjen Polis Seremban, Negeri Sembilan & Anor  2 MLJ 85  N Indra a/p Nallathamby v Public Prosecutor  1 MLJ 861  NS Bindra’s Interpretation of Statutes 10th Edition on page 650  Malayan Banking Berhad v Public Prosecutor  1 LNS 1844
Authored by Loh Yi Qing
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