AHWAZ BIN ABDUL RANI v Pendakwa Raya (BA-41S(A)-3-06/2024)

This is an appeal by the accused against the Magistrate's decision. For this appeal, references to both parties are the same as initially referred to in the trial before the Magistrate.

The accused was charged under section 15(1)(a) of the Dangerous Drugs Act 1952 (DDA), and the charge states as follows: 12/02/2025 09:54:12 Kand. 29 “Bahawa kamu pada 21.6.2019 jam lebih kurang 7.20 malam, di Pejabat Bahagian Siasatan Jenayah Narkotik IPD Ampang Jaya, di dalam Daerah Hulu Langat, di dalam Negeri Selangor Darul Ehsan, didapati telah memasukkan dadah berbahaya ke dalam tubuh badan sendiri iaitu “Methamphetamine” dan dengan itu kamu telah melakukan suatu kesalahan di bawah Seksyen 15(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 15(1) Akta yang sama.”

At the close of the defence's case, the learned Magistrate decided to convict the accused and sentenced him to a fine of RM5,000 and eight months' imprisonment in default, as well as a further order of two years of supervision under section 38B of the DDA.

Dissatisfied with the learned Magistrate's decision, the accused appealed to the High Court against the conviction and sentence.

Having heard both counsels and read the written submissions filed therein, this Court found no justification to interfere with the Magistrate's decision. Thus, on 16.1.2025, this Court, delivered its broad judgment and pursuant to section 316 of the Criminal Procedure Code, the Court dismissed the accused's appeal and affirmed the Magistrate's decision on the conviction and sentence.

Dissatisfied with the Court's decision, the accused appealed to the Court of Appeal through a notice of appeal dated 23.1.2025. Hence, the Court now states the full reasons for the decision below.

In her judgment, the Magistrate states the narratives of the case in detail. For this appeal, this Court will highlight the pertinent facts of the case related to the appeal.

Before the Magistrate, the prosecution called five prosecution witnesses as follows - PW1 Koperal Mohd Kamal bin Hassan Jurufoto PW2 Ins Muhd Izuan bin Razali Pengadu/Pegawai pemungut PW3 Ins Mohd Khairie Ridhwan bin Azmi Pegawai penyiasat PW4 Koperal Abdul Razak bin Jassah Pegawai pengiring PW5 Siti Fatimah bt Ngadi Pegawai sains (kimia hayat)

On 21.6.2019 at around 5.15 pm, PW2 led a raiding team of nine members to carry out "Ops Bersepadu" to search and arrest anyone involved in drug-related activity at the flat area of Taman Saga Ampang Selangor.

Acting on information of drug activity at unit no 1-33A, Rumah Pangsa Saga, Jalan Saga 30, 68000 Ampang Selangor (referred to as "the unit"), PW2 and his team searched the unit. While PW's team was conducting the search, the accused arrived at the unit, and PW2 arrested the accused and four other individuals.

PW2 arrested the accused and brought him to Bahagian Siasatan Jenayah Narkotik IPD Ampang Jaya for a urine screening test.

The accused chose a bottle with the serial number 0320557. PW2 instructed PW4 to escort the accused to the men's washroom.

Witnessed by the accused, PW2 dipped six test strips into the bottle containing the accused's urine. PW2 found that the test strips turned positive for Methamphetamine, and PW2 told the accused of the result, and the accused understood it. Later, PW2 instructed the accused to close the bottle with the cap.

In the presence of the accused, PW2 accordingly sealed the bottle with a blue PDRM tape and a red wax with seal 338 PDRM. PW4 has written the accused's details on the bottle, and the accused has put his signature on the bottle. PW2 then lodged a police report, and the accused was handed over to the Investigating officer (PW3).

PW3 sent the accused's urine specimen to the Jabatan Kimia. Puan Siti Fatimah Binti Ngadi (a science officer)(PW5) confirmed the urine contained Methamphetamine, as reflected in her report marked as exhibit P9.

The Magistrate decided that the prosecution had satisfied all the ingredients of the offence under section 15(1)(a) DDA, namely-

The accused consumed to himself the dangerous drugs as stated in the charge.

(ii) The accused's urine contained traces of drugs prescribed under Part 3 of the First Schedule to the DDA. [17] The Magistrate invoked section 37(k) DDA to presume that if drugs were found in the urine samples of a suspect under Section 31A of DDA, the suspect is deemed to have taken dangerous drugs until it is proven otherwise. The Magistrate further decided that The defence had failed to rebut the presumption. [18] The Magistrate believes that the police had legally carried out the procedure of testing the urine sample of the accused according to section 31A DDA. [19] Based on the maximum evaluation of the prosecution witnesses, the Magistrate concluded that the prosecution succeeded in establishing a prima facie case against the accused. The accused was called to enter his defence. The accused gave evidence under oath from the witness box and was the only witness for the defence. [20] At the end of the defence's case, the Magistrate found that the defence of the accused was a bare denial. In the accused's defence, the accused testified that he used to take the drug Methamphatpahmine for weight loss. The accused also informed the Magistrate that he also used to take Methadone, a medication supplied by his friend, to get rid of his addiction to "cannabis", which he used to take to relieve his work stress. However, the accused failed to provide witnesses to corroborate his narrative. [21] Dissatisfied with the learned Magistrate's decision, the accused filed an appeal. Hence, the appeal before this Court. THE GROUNDS OF APPEAL BY THE ACCUSED [22] In his memorandum of appeal, the accused states nine grounds of appeal. But for the appeal, the learned counsel for the accused focused his appeal on the following main contentions:

According to section 31(1) DDA, there was no valid arrest as PW2 arrested the accused merely on suspicion that the accused was a drug addict. Therefore, taking the accused's urine specimen was illegal as it contravened section 33A(1) of the DDA, and the Magistrate was wrong to invoke the presumption under section 37(k) of the DDA. The counsel heavily relied on the High Court decision in PP v Jarizal bin Jasni [2024] 7 MLJ 193 to support his argument.

(ii) The erroneous reliance on the Privy Council case of Shaaban & Ors v Chong Fook Kam & Anor by the learned Deputy Public Prosecutor for the Respondent on the law of arrest. THE LAW RELATING TO APPEALS [23] According to section 316 of the Criminal Procedure Code, this Court is mindful of its statutory duty and the relevant authorities binding on this Court. [24] In an often quoted authority by the Federal Court in Herchun Singh v. Public Prosecutor [1969] 2 MLJ 209, Ong Hock Thye C.J held: "An appellate court should be slow in disturbing such finding of fact arrived at by the judge, who had the advantage of seeing and hearing the witness, unless there are substantial and compelling reasons for disagreeing with the finding." [25] The same principle has been consistently reiterated in LCY v. TWY [2019) 7 CLJ 158, where YAA Tengku Maimun Tuan Mat HMR (now Chief Judge) said as follows: "[26] The principle of law on appellate intervention is settled. In Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453, the Federal Court reiterated the principle as follows at p.476: [60] It is now established that the principle on which an appellate court interferes with findings of fact by the trial court is "the plainly wrong test" principle; see the Federal Court in Gan Yook Chin & Anor (P) v. Lee Ing Chin @ Lee Teck Seng & Anor [2004] 4 CLJ 309; [2005] 1 MLJ 1 (at p. 10) per Steve Shim CJ SS. More recently, this principle of appellate intervention was affirmed by the Federal Court in UEM Group Berhad v. Genisys lntergrated Engineers Pte Ltd [2010] 9 CLJ 785 where it was held at p. 800: It is well settled law that an appellate court will not generally speaking intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of the evidence (See Chew Yee Wah & Anor v. Choo Ah Pat [1978]1 LNS 32; Watt v. Thomas [1947] AC 484; and Chin v. Lee Ing Chin & Ors [2004] 4 CLJ 309." [26] Whilst the principles of law on sentencing are clear as decided in Pendakwa Raya v. Prabu A/L Veeramuthu and Others [2010] 8 CLJ 257; [2010] 1 LNS 695, Hasan Lah COAJ (as he then was) delivering the judgment of the Court of Appeal said: "[11] In an appeal against sentence an appellate court would not disturb the sentence imposed unless the trial court had erred in applying the correct principles of sentencing or had embarked on some unauthorised or extraneous exercise of discretion (see Ganesan a/l Nachiappan & Ors v. Public 8 [2024] CLJU 1690 Legal Network Series Prosecutor [2000] 3 CLJ 302; Public Prosecutor v. Loo Choon Fatt [1976] 1 LNS 102; [1976] 2 MLJ 256; Bhandulananda Jayatilake v. Public Prosecutor [1981] 1 LNS 139; [1982] 1 MLJ 83 and Yit Kean Hong v. PP [2005] 4 CLJ 592.] [27] It follows that in Pendakwa Raya v. Ramakrishnan Subramaniam & Ors [2012] 9 CLJ 443, Azahar Mohamed CJA (as he then was) delivering the judgment of the Court of Appeal said: “Mengikut prinsip penghukuman yang sedia ada, setiap orang yang bersalah akan menerima hukuman yang setimpal dengan bentuk kesalahan yang dilakukan. Mahkamah hendaklah menjatuhkan hukuman menurut undang-undang untuk menentukan supaya hukuman yang dikenakan terhadap pesalah itu adil, bersesuaian dan setimpal dengan apa-apa kesalahan yang dilakukannya itu. Adalah juga menjadi prinsip undang undang yang mantap bahawa Mahkamah yang mendengar rayuan tidak seharusnya campur tangan dengan hukuman yang dikenakan oleh hakim perbicaraan dan selalunya tidak akan menukar hukuman melainkan ianya berpuas hati bahawa hukuman yang dijatuhkan oleh hakim berkenaan itu ternyata amat tidak memadai atau mencukupi atau keterlaluan atau tidak sah atau pun tidak merupakan hukuman yang wajar memandangkan semua fakta yang didedahkan, atau bahawa Mahkamah tersebut jelas tersalah didalam memakai prinsip yang betul dalam penilaian hukuman.” [28] Again, the Court of Appeal in PP v. Ling Leh Hoe [2015] 4 CLJ 869 restated the same principle and held: "[14] The appellate Court can and will interfere in the sentence imposed by the lower Court if it is satisfied that any of the following four grounds are made out: (a) The sentencing judge had made a wrong decision as to the proper factual basis for the sentence; (b) There had been an error on the part of the trial judge is appreciating the material facts placed before him;

(d) The sentence was wrong in principle; or The sentence imposed was manifestly excessive or inadequate. (See R v. Ball [1951] 35 Cr App. R 164; Loo Weng Fatt v. Public Prosecutor [2001] 3 SLR 313 at para [65]; Public Prosecutor v. UI [2008] 4 SLR (R) 500). [15] In similar vein, the Court of Criminal Appeal in Dookes v. Director of Public Prosecutions [2010] SCJ 71 said at para 177: ... sentencing is not a science of mathematical application of any set formula. It is a normative science rather than a physical science which takes into account the circumstances of the offender as well as the offence and the impact of the offence on the community. A sentence may look to be lenient because it is tailored to fit the offender, the offence and the offended but, in our system of justice, the trial court is the only constitutional institution which is empowered and sovereign in determining which sentence to impose on an offender on the facts of the particular case. An appellate court would scarce intervene unless the sentence is wrong in principle or manifestly 10 [2024] CLJU 1690 Legal Network Series harsh and excessive or unduly lenient. However, even if there is nothing wrong with the principle, the sentence may be increased by the appellate Court if it is unduly lenient. The principle of proportionality pervades through the whole system of justice, in procedure, substance and sanctions." [29] Bearing the above principles in mind, the Court now deals with the issues raised by the accused. THE COURT ANALYSIS AND FINDINGS NON COMPLIANCE OF SECTIONS 31(1) AND 31A OF THE DDA [30] The preliminary point raised by the learned counsel for the accused was the police's non-compliance with section 31(1) of the DDA. The counsel for the accused argued that the accused was arrested merely on suspicion that he was a drug addict, and this does not meet the requirement of section 31(1) of the DDA as the accused was not the target of the police. Hence, the manner of collecting the accused's urine specimen was illegal as it contradicts section 33A(1) of the DDA. Understandably, the accused relied strongly on the High Court case in PP v Jarizal bin Jasni [2024] 7 MLJ 201 to manoeuvre his argument. [31] To address the issue, this Court must first determine whether there were sufficient facts and evidence before the Magistrate to show that PW2 arrested the accused in compliance with section 31(1) of the DDA. That is, whether PW2 had the "reasonable believes" to arrest the accused within the context of section 31(1) of the DDA. [32] Having perused the record of appeal (Volume 2 on page 17), the notes of the proceeding show that when asked by the DPP during the examination in chief, PW2 testified as follows: Q : Ada terima apa-apa aduan? A: Telah dapat maklumat mengenai aktiviti dadah di rumah beralamat no. 1-33a, rumah pangsa Saga Jalan Saga 30 Taman Saga Ampang Selangor. Di mana ketika pasukan saya jalankan pemeriksaan ke atas rumah ini, okt telah datang ke rumah ini dan saya bersama pasukan serbuan telah tahan okt di hadapan rumah ini. [33] As such, there was beforehand information received by the police about drug abuse activity at the unit, and this formed the basis for the police to raid the place. The accused, who arrived at the unit while the police were raiding the place, was arrested by the police together with other individuals. The police brought the accused to IPD Ampang Jaya for the accused to provide his urine specimen for a urine test, and it turned out that the accused's urine was positive for Methamphetamine. No plausible explanation was provided by the accused on how his urine specimen tested positive for Methamphetamine. Hence, the Court found the defence failed to raise reasonable doubt against the prosecution's case. [34] The Court of Appeal in PP v Mohd Safwan bin Husain [2017] 5 MLJ 255 had extensively articulated the scope and application of sections 31 and 31A of the DDA on the pertinent judicial propositions relating to the application of section 31 of the DDA on arrest and the concept of constructive arrest which apply to section 31A of the DDA. Interestingly, the Court noted that both parties referred to the same authority. Still, the accused reached a relatively different conclusion, though the facts of the instant case are similar to PP v Safwan bin Hussain (supra). [35] In PP v Mohd Safwan bin Husain (supra), the facts show that the accused was a police officer who was also charged in the magistrate court for the offence of consumption of dangerous drugs (Methamphetamine) under the same section 15(1)(a) of the DDA. The Magistrate acquitted the accused at the end of the prosecution case. The High Court dismissed the prosecution's appeal as the accused was not a "person arrested" within the meaning of Section 31A of the DDA. The High Court also held that the meaning of arrest in Section 31A of the DDA did not include constructive arrest. The Court of Appeal set aside the High Court's decision and reinforced the principle of constructive arrest. [36] Further, in that case, the Court of Appeal found that there was evidence adduced showing that the police, in that case, had acted on information received beforehand and concluded that there were "reasonable believes" within the context of section 31(1) of the DDA. [37] The Court of Appeal also decided that, essentially, whether there was an arrest before or after the accused gave his urine specimen to the police would entirely depend on the facts and circumstances of each case. [38] Similarly, in the instance case, based on PW2's testimony, there was a shred of clear evidence that PW2 had acted on the information received before the arrest regarding the drug abuse activity in the unit. PW2 and his team were tasked to search and arrest anyone involved in drug-related activity in the unit. PW2 arrested the accused on suspicion that the accused was a drug addict when he arrived at the unit while PW2 and his team searched the unit. Therefore, this Court views that the prior information received by the police justified the police to arrest the accused, which falls within the scope of section 31(1) DDA. [39] Therefore, this Court cannot subscribe to the appellant counsel's notion that the accused must be a target first before the police could arrest an accused under section 31(1) of the DDA. Following this, the Court also views that the decision in Shaaban & Ors v Chong Fook Kam & Anor [1969] 2 MLJ 219 referred by the learned Deputy Public Prosecutor is distinguishable and has no application to the facts of the instant case. [40] Another typical point raised for cases involving section 15(1)(a) of the DDA was the non-compliance with section 31A(1) of the DDA. The accused argued that the police did not arrest him before he gave his urine specimen to the police. [41] Guided by PP v Safwan Hussain (supra), whether or not the police arrested the accused before he gave his urine specimen would depend on the factual matrix of the case. Now, the Court referred to the police report marked as exhibit "P4" lodged by PW2, stating that PW2 had arrested the accused "tahan saspek" to ask him to provide his urine sample, and the test strip result of his urine specimen turned positive for Methamphetamine. The Court also referred to the notes of proceeding found in the Record of Appeal Vol 2 on page 16, where it states as follows: S : Apa tujuan ke tempat kejadian? J : Untuk jalankan serbuan dan tangkapan kes-kes libatkan aktiviti dan penagihan dadah. S : Apa yang berlaku? J : Ketika jam lebih kurang 5.15 ptg, di hadapan sebuah rumah di rumah pangsa di Taman Saga tersebut, saya telah tahan 1 lelaki Melayu dalam keadaan mencurigakan, dan seterusnya saya telah tahan suspek untuk dibawa ke pejabat bahagian siasatan narkotik ipd Ampang untuk jalankan ujian saringan awal pokus ke atas suspek. [42] Therefore, this Court found this case is straightforward. The police had already arrested the accused before the accused was to give his urine specimen to the police. The Court agrees with the learned Depuy Public Prosecutor's contention that even the accused did not deny the evidence that PW2 arrested the accused at the unit. [43] Thus, it is critical to note that there was indeed a direct arrest, not a constructive one, in which circumstantial evidence would generally be applicable. The Court found that the accused's contention on the non-compliance with section 31A(1A) DDA was misconceived because of the apparent statutory provision and case law authority, which is directly on point as decided in PP v Mohd Safwan bin Husain (supra). [44] Having said that, the Court sees no merit in the learned counsel for the accused's argument, urging this Court to follow suit with the decision in PP v Jarizal bin Jasni (supra). [45] Consequently, this Court finds that the second issue raised by the learned counsel that the prosecution's reliance on the Privy Council decision in Shaaban & Ors v Chong Fook Kam & Anor was erroneous is superfluous as the decision in PP v Mohd Safwan bin Husain (supra) is crystal clear that the power of arrest is prescribed by section 31(1) of the DDA. This Court is also bound to follow the Court of Appeal decision based on the stare decisis doctrine, especially since the facts and the laws are similar to the instant case. The presumption under section 37(k) DDA [46] The Magistrate was correct in invoking the presumption under section 37(k) DDA based on the undisputed evidence that the urine screening process carried out by PW2 and PW4 complied with section 31A of the DDA. [47] Besides, the accused failed to rebut the presumption and most of all, there is no evidence adduced by the accused to rebut the said presumption. See Mohamad Radhi bin Yaakob v PP [1991] 3 MLJ

[48] Accordingly, based on the above reasons and considerations, the Court considers that the sentence of RM5000 fine and, in default, eight months imprisonment and two years supervision rightfully reflects the pertinent sentencing elements. The sentence meted out by the Magistrate was proportionate and fair in light of the facts of the case.