The provision of section 31A DDA is only a directory not mandatory In Pendakwa Raya Iwn Mohd Safwan bin Husain [2017] 5 MLJ 255 this Honourable Court at paragraph 36 decided: [36] Harus juga dicatat lanjut bahawa s 31A ADB 1952 tidak menyebut di mana-mana bahawa kegagalan untuk mematuhi kehendak di situ boleh membuatkan apa jua bukti yang diperoleh hasil daripada pemeriksaan yang diiakukan akan menjadi tidak boleh diterima sebagai keterangan (inadmissible). Ini berbeza dengan peruntukan s 113 KPJ atau pun s 37A ADB 1952 yang memperuntukkan dengan jelas bahawa percakapan tertuduh selepas ditangkap dan tanpa diberikan kata-kata amaran tidak boleh diterima sebagai keterangan (inadmissible). The prosecution submits - Any breach of the particular provision therein will not affect the admissibility of the sample taken by the police even without direct request from the police officer not below the rank of sergeant made to the appellant, would indicate that this provision is not mandatory but rather it is directory. The prosecution submits - The fact that there was no challenge to any of the prosecution's witness that the urine sample was not his shows that the appellant was not prejudiced at all by the alleged non-compliance. The prosecution submits - The fact that PW8 was with PW3 who was instructed by PW8 himself to escort the appellant to collect his urine sample is sufficient to show that the appellant should have been required by PW8 to give his urine sample for the purpose of the offence under section 15 DDA. 7 The prosecution submits - The purpose of section 31A is to preserve the evidence if the medical officer could not do it in a practicable time. The key word in the section is 'preservation of evidence'. Therefore, in our case, the preservation of the urine sample is intact. On, the evidence also, there was no challenge by the appellant that the urine sample taken was not his sample. In fact, at the defence stage, he had admitted that he had given his urine sample. The prosecution submits - We submit based on the above submission, the correct principle of law is that non-compliance of section 31A(1A) of the DDA will not automatically illegalize the process of taking the sample. The matter that is crucial for this Honourable Court to take into consideration is whether the said urine sample is relevant or not to this case. The answer is in the positive. Since the answer is in the positive, the non-compliance will not affect the admissibility of the urine sample to be tendered during the trial.” Jurisprudence to section 31A(1A), Federal Constitution and case of Kuruma v R [8] It is well established in Malaysia following the common law case of Kuruma v R as well as R v Sang, that even if evidence is illegally obtained but if relevant, it is admissible. The jurisprudence advocated in R v Sang was meticulously followed by our apex courts. In Hanafi bin Mat Hassan [2006] 4 MLJ 134, the Court of Appeal stated that: "The court has no discretion to refuse to admit evidence on the ground that it was illegally obtained if it is relevant. Therefore, the evidence relating to the blood sample taken from the accused was admissible as it was relevant even if it was taken without his consent. [See SM Summit Holdings Ltd & Anor v PP (1997) 3 SLR 922]" 8 [9] It is equally important to note that court has discretion to exclude evidence which may be prejudicial as opposed to one related to technical breach. More so if it's prejudicial effect outweighs its probative value. [See Kuruma v The Queen [1968] 3 WLR 391]. The 'fairness rule' advocated by the Federal Court in Gooi Ching Ang v PP [1999] 1 MLJ 507, gives the court the discretion to exclude prejudicial evidence. The court has also the powers to expunge irrelevant evidence at any stage of the trial. [10] Kuruma’s case can only be relevant if there is no governing statute to say how the evidence must be procured. In Mohd Syedol Ariffin v Yeoh Ooi Gark [1916] 1 MC 165, the court stated that the acceptance of a rule or principle adopted in or derived from English law is not permissible if thereby the true and actual meaning of the statute under construction is varied or denied the effect. [See Ainan v Syed Abu Bakar [1939] MLJ 209]. [11] In Jayasena v R [1970] AC 618, the Privy Council did not follow the common law where it differed from the code. The Privy Council stated that the common law is malleable to an extent that a code is not. In Saminathan & Ors v PP [1955] MLJ 121, Buhagir J observed: "English decisions serve as valuable guides and indeed are binding authorities where the English law has been followed in meaning of particular words are of little or no assistance when those words have been specially defined in the Ordinance". [12] In Malaysia, the Federal Constitution is supreme. Common law cases are subject to the Act as well as the Federal Constitution. The Constitution 9 gives protection to the accused pursuant to article 5 and 8 which reads as follows: “5. (1) No person shall be deprived of his life or personal liberty save in accordance with law.” “8. (1) All persons are equal before the law and entitled to the equal protection of the law.” [13] When an Act sets out a particular procedure, that procedure must be meticulously followed and common law cases cannot override the provision of the Act as well as the supremacy of the Constitution. [14] In the instant case, the Act specifically states how the evidence must be procured. Courts however, on many occasions have thrown out evidence when it was obtained in breach of specific provision of the Act. For example, confessions statement under section 113 of the repealed Criminal Procedure Code. [See Janab’s Key To Criminal Procedure Code, 3rd ed. Pages 431 to 448]. [15] We have read the appeal records and the able submission of the learned counsel for the appellant as well as the learned Deputy Public Prosecutor. After giving much consideration, we took the view that the appeal must be allowed. Our reasons inter alia are as follows: