Ahmad Syafiq Bin Mokhtar (BL-82D-16-10/2019)

The accused, a Sargent from IPD Klang Utara, was charged under S.15 (1) (a) of the Dangerous Drugs Act 1952 (hereinafter will be referred to as the DDA) for administering to himself dangerous drugs, i.e. Methamphetamine as specified in Parts iii and iv of the First Schedule of the said Act. [2] The charge was read to the accused and the accused claimed trial. S/N AAy6gYqCm0qIl7q5SzthQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2

The said charge is as follows: “Bahawa kamu pada 18.09.2019 jam lebih kurang 05.15 petang bertempat di Bahagian Siasatan Jenayah Narkotik, IPD Klang Utara di dalam daerah Klang Utara, di negeri Selangor Darul Ehsan, kamu telah didapati melibatkan diri kamu dengan memasukkan dadah Methamphetamine ke dalam tubuh badan kamu seperti yang dinyatakan di bawah bab iii jadual pertama akta dadah berbahaya 1952. Oleh itu, kamu telah melakukan kesalahan di bawah Seksyen 15(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah akta yang sama. HUKUMAN : Jika sabit kesalahan kamu boleh di denda tidak lebih RM 5,000.00 atau di penjara selama tempoh tidak lebih daripada 2 tahun.” THE PROSECUTION’S CASE [4] Five (5) witnesses were called to give evidence for the prosecution. A total of 13 exhibits were produced to support the prosecution’s case against the accused. [5] SP1 was called to the Narcotics Department on 18th September 2019 by SP3 (the arresting officer). SP1’s duty was to escort and collect the suspect’s (now, the accused) urine sample. [6] According to SP1, the accused was arrested at 5.00 PM in front of the Crime Department IPD Klang Utara which is about 10 meters away from the Narcotics Department of IPD Klang Utara. [7] SP1’s testimony stated that the accused willfully followed him and several other police officers to the Narcotics Department. They walked on foot to the said place. S/N AAy6gYqCm0qIl7q5SzthQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

Upon reaching the destination, the accused was informed of the urine test and subsequently agreed to it. [9] The accused was asked to hand over his authority card (“kid kuasa”) and the officers recorded his particulars. He was also given the choice to choose the sample bottle he wished to use to collect his urine. Once he had chosen it (a total of one (1) receptacle only), he was taken to the toilet in the Narcotics Department. [10] The accused himself (as mentioned by the prosecution’s witness) opened the sample bottle’s cap and filled it with his urine for sampling purposes. During the process, SP1, SP3, and other officers stood behind the accused. [11] The accused then brought the sample and placed it on a nearby table. SP3 used 6 test strips which he opened one by one in front of the accused and the test strips were dipped into the urine sample. [12] The test strips then were taken out and laid on the receptacle. SP3 then informs the accused in the presence of SP1 that the accused’s preliminary urine test tested positive for methamphetamine and amphetamine. [13] SP3 then took pictures of the receptacle and the test strips. He also had them sealed and labeled. He lodged the arrest report afterward. [14] The Chemist (SP4) testified that the urine specimen was in good condition upon receiving it and later on analyzed it. SP4 then prepared a report of her analysis as per exhibit P13. S/N AAy6gYqCm0qIl7q5SzthQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 Findings [15] There were a few issues raised by the Defence Counsel. However, the worthy of notice (it is not that the other issues were not deliberated) was of S. 31A (1A) of the DDA – whether a person is arrested before any examination conducted by a police officer. [16] The court is guided by the Court of Appeal’s case, PP lwn Mohd Safwan [2017] 7 CLJ 685 that states, whether a person is arrested or otherwise depends on the facts and circumstances of each case. In PP lwn Mohd Safwan (supra) evidence was adduced showing that the police in that case had acted on the information received as to the respondent’s involvement in drug abuse at the Police Station where he was attached. The findings in that case were corroborated by the police report which had disclosed that the police were acting based on the information received relating to police personnel involved in drug abuse activity. [17] I also referred to another case in determining the issue on hand. In PP v Jarizal Jasni [2023] 8 CLJ, the Honorable High Court Judge also referred to the said Court of Appeal’s case. The said court also agrees that the discretion to admit illegally obtained evidence cannot be exercised as the evidence procured was in breach of a specific provision that is of S. 31A & S. 31A (1A) of the DDA. The court believes that such a breach cannot be overcome by the principles set out in R v Kuruma and R v Sang as the court is guided by the decision in the case of Aizuddin Syah Ahmad v PP [2019] 3 CLJ where the Court of Appeal states that, inter alia, a provision of criminal statute must be strictly followed, failure will amount to breach of the rule of law. [18] I am also guided by the grounds of judgment in another High Court case. In the case of PP v L/KPL Mohd Rizal bin Ramly (2023), the S/N AAy6gYqCm0qIl7q5SzthQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 honorable High Court Judge in para [22] to [24] of his grounds, discussed the said issue. The honorable judge also refers to the Court of Appeal’s case of Mohd Safwan Husain (supra). Para [23] and part of para [24] of his grounds are as follows: “[23] Sebaliknya SP1 dalam laporan polisnya [P4] menyatakan: “Setelah perkenalkan diri sebagai pegawai kanan polis…Seterusnya saya beri kebebasan kepada subjek untuk memilih sendiri botol urin yang saya sediakan dalam kotak yang disediakan…hasil dari saringan tersebut saya dapati contoh air kencing subjek positif meth/methamphetamine. Kemudian saya terangkan kesalahan yang dilakukan oleh subjek dalam Bahasa Malaysia yang mudah difahami dan buat tangkapan serta terangkan hak-haknya…” [24] Saya berpendapat dalam kes semasa, jelas semasa tertuduh memberikan sampel urin untuk saringan awal, Tertuduh bukan “arrested person” bagi maksud peruntukkan S.31A (1A) Akta itu. Tertuduh tidak berada dalam tangkapan konstruktif sebagaimana yang cuba dihujahkan oleh TPR yang terpelajar…” [19] The honorable Judge in Mohd Rizal (supra) concluded that the respondent was not an arrested person nor was he under constructive arrest during the sampling. [20] Upon close perusal of our exhibit P9 and P10 of SP3, this P10 (the police report) is almost similar to para [23] of the above-mentioned case. P10 states that the accused (then suspect) was arrested and explained his rights and the reason for the arrest after the preliminary urine test tested positive for methamphetamine and amphetamine although P9 states that SP3 had “stopped” the accused and conducted a body search on the accused before examining the accused’s urine. S/N AAy6gYqCm0qIl7q5SzthQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6

Furthermore, the testimony of the prosecution’s witness during cross-examination also agrees that the accused was only arrested after the urine test was done and this was not explained further during re-examination. This clearly shows that the urine sample was illegally obtained evidence and because of such a breach of the rule of law, the evidence has to be disregarded. [23] Sec 173 of the Criminal Procedure Code in its fundamental form stated: “(f) (i) When the case for the prosecution is concluded the Court shall consider whether the prosecution has made out a prima facie case against the accused.

(ii) If the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record an order of acquittal”. [24] The fundamentals of Section 173 (f) of the Criminal Procedure Code had rendered this Court obliged to determine the establishment of a prima facie case by the prosecution. This Court had thus inquired into the definition of a prima facie case by indulging into the ratio decidendi and stare decisis of the Superior Courts. [25] This court is also guided by the case of Abdullah bin Atan v Public Prosecutor and another appeal [2020] MLJU 1244 where the Federal Court had reiterated the portrayal of prima facie by stating the following: “[44] As to what constitutes ‘a prima facie’ case, the judgment of Vincent Ng J (as he then was) in PP v Ong Cheng Heong [1998] 4 CLJ 209 is instructive. Although Ong Cheng Heong was decided before S/N AAy6gYqCm0qIl7q5SzthQ the amendment in 2006, we respectfully endorse his Lordship’s views, at pg. 225: “What then constitutes a ‘prima facie case’? ‘Prima facie’ means on the face of it or at first glance. … perhaps the most appropriate definition of ‘a prima facie case’ could be found in the Oxford Companion of Law (p. 987), which has it as: “A case which is sufficient for an answer. While prima facie evidence is evidence which is sufficient to establish a fact in the absence of any evidence to the contrary, but is not conclusive”. (Emphasis added). It would follow that there should be credible evidence on each and every ingredient of the offence”. [26] In acknowledging the principle mentioned in the case of Abdullah bin Atan v Public Prosecutor and another (supra), this Court had to consider the existence of a sufficient case answerable by the accused. In deciding on the existence of a prima facie case this Court was equally obliged to consider the ingredients of the offence required to be proven by the prosecution upon the conclusion of the prosecution’s case. [27] I believe, in this case, the ingredients of the offence that the prosecution had to prove is that the accused had administered to himself any dangerous drugs (in this case Methamphetamine and Amphetamine) in Parts iii and iv of the First Schedule. [28] The Federal Court in the case of Abdullah bin Atan v Public Prosecutor and another appeal (supra) had equally highlighted the obligation of the prosecution to prove each ingredient of the offence by stating: “[43] Section 180(4) of the CPC must be read in light of its context and legislative purpose. By so doing, the phrase “credible evidence S/N AAy6gYqCm0qIl7q5SzthQ proving each ingredient of the offence” in section 180(4) means that the prosecution may prove each ingredient of the offence either:

by adducing credible direct evidence of that ingredient;

(ii) by drawing inferences of fact, i.e. adducing credible circumstantial evidence, from which the ingredient can be inferred; or

(iii) by invoking presumptions of law, i.e. adducing credible evidence of the relevant basic facts, to invoke a statutory presumption that the ingredient exists”. [29] The case of Looi Kow Chai & Anor v Public Prosecutor [2003] 2 MLJ 67 equally provided detailed guidance on crucial considerations upon the conclusion of the prosecution’s case. Justice Gopal Sri Ram in his tenure at the Court of Appeal had stated that: “It is therefore follows that there is only one exercise that a judge sitting alone under Sec 180 of the CPC has to undertake at the close of the prosecution case. He must subject the prosecution evidence to maximum evaluation and ask himself the question: if I decide to call upon the accused to enter his defence and he elects to remain silent, am I prepared to convict him on the totality of the evidence contained in the prosecution case? If the answer is in the negative, then no prima facie case has been made out and the accused would be entitled to an acquittal”. [30] The case of Balachandran v. Public Prosecutor [2005] 2 MLJ 316 summarized the factors to be considered by this Court upon the conclusion of the prosecution’s case as stated: “The test at the close of the case for the prosecution would therefore be: Is the evidence sufficient to convict the accused if he elects to S/N AAy6gYqCm0qIl7q5SzthQ remain silent? If the answer is in the affirmative then a prima facie case has been made out. This must, as of necessity, require a consideration of the existence of any reasonable doubt in the case for the prosecution. If there is any such doubt there can be no prima facie. As the accused can be convicted on the prima facie evidence it must have reached a standard which is capable of supporting a conviction beyond reasonable doubt” [31] Since I have found upon much deliberation that the urine sample should be disregarded as evidence because the procedure while securing it breaches the rule of law, the prosecution, in this case, is left to no other means to prove this case against the accused. The urine sample was an integral part of the prosecution’s case. Without it, other issues raised are pointless to be discussed. [32] Thus, after thorough (maximum) consideration and evaluation of the evidence produced by the prosecution, this court finds that it is not safe to convict the accused. The prosecution has failed to prove a prima facie case against the accused and the accused is acquitted and discharged without having to call for defence. Dated 17th March 2024 Prepared by: t.t ______________________ (NOORJIDAH BINTI MOHD JUSAN) Magistrate (5) of Klang Magistrate’s Court Selangor S/N AAy6gYqCm0qIl7q5SzthQ