Schedule
Schedule e. there was no break in the chain of evidence or custody [40] In the present case, the Court is satisfied that the prosecution has successfully established the above facts based on the evidence: a. The accused personally selected the urine bottle and maintained custody until sample collection b. SP5 escorted the accused to the toilet, where the accused provided the urine sample in the presence of SP5 c. SP5 conducted a preliminary screening test in the presence of the Accused and the THC strip showed positive d. SP5 sealed the bottle with AADK tape, completed the label, and obtained the accused’s signature in the presence of the Accused e. SP5 handed the sealed bottle to SP6, and the chain of custody was properly recorded at Borang Permintaan Ujian Pengesanan dadah Dalam Air Kencing (Exhibit P4) f. SP6 stored the bottle in a locked refrigerator g. SP3 delivered the exhibit to Hospital Bentong, and SP2 (Science Officer) received it in good condition h. SP2 confirmed the urine sample was positive for THC under Part III of the First Schedule. [41] It is also the Court’s finding that the analysis of the Accused’s urine sample pursuant to section 31A of the DDA 1952 reveals the presence of a dangerous drug ie the 11-Nor-Delta-9-Tetrahydrocannabinol-9- Carboxylic Acid which is listed under Part III of the First Schedule of the DDA. [42] Accordingly, pursuant to section 37(k) of the DDA 1952, the Accused is presumed to have administered THC to himself unless the contrary is proven. [43] Consequently, this court finds that the prosecution has successfully proven the first and second element of the charge under section 15(1)(a) of the DDA 1952. Whether there is any break in the chain of evidence [44] The next issue to be determined is whether there was any break in the chain of evidence in respect of the Accused’s urine specimen. [45] The Prosecution must prove that the urine specimen was properly collected, sealed, labelled, stored, transported and analysed, and that it was not tampered with or contaminated at any stage. [46] In the present case, this Court is satisfied that the chain of evidence and the chain of custody were not broken. The Prosecution successfully adduced credible and unchallenged evidence in this regard, as follows: a. Collection and sealing i. The Accused personally selected the urine specimen bottle from five unused bottles provided by SP5. ii. The accused was escorted by SP5 to the toilet and, in the presence of SP5, provided the urine sample into the selected bottle. iii. SP5 sealed the bottle cap with AADK-marked tape, completed the label with the Accused’s particulars and report number, and obtained the Accused’s signature. iv. A red security seal (No. 811) was affixed to the bottle in the Accused’s presence. b. Storage and handover i. SP5 handed over the sealed specimen bottle to SP6 along with the Borang Akuan Serah Menyerah (exhibit P14). ii. SP6 stored the bottle in the urine exhibit refrigerator at IPD Bentong, which was locked and under SP6’s control. iii. On 31 May 2022, SP6 handed the sealed bottle and the relevant forms to SP3 for delivery. c. Delivery to laboratory and analysis i. SP3 delivered the sealed specimen to Hospital Bentong, where it was received by SP2 (Science Officer). ii. The bottle was in good condition, properly sealed and uncontaminated. iii. SP2 confirmed the details on the request form matched the bottle, and the urine volume was sufficient. iv. SP2 analysed the sample and confirmed it contained THC, a drug listed under Part III of the First Schedule of the DDA 1952. [47] Hence, the Court finds that at all material times, the urine specimen in the bottle belonged to the accused. The urine specimen examination fulfilled the requirement of section 31A of the DDA 1952 and remained under proper custody and control. There was no evidence of tampering or contamination. [48] Therefore, it is the Court’s finding that there was no break in the chain of evidence. G. DECISION AT THE END OF THE PROSECUTION’S CASE [49] Upon a maximum evaluation of the evidence, and for the reasons stated above, this Court finds that the Prosecution has successfully established a Prima Facie case against the Accused in respect of the charge, in accordance with section 180(3) of the CPC. Accordingly, the Accused was called upon to enter his defence. [50] After the three alternatives were explained to him, the Accused elected to give sworn testimony. F. DEFENCE’S CASE [51] In the Defence case, the Accused testified on his own behalf and called an expert witness. In essence, the Defence challenged the reliability and admissibility of the drug test results relied upon by the Prosecution. [52] The Accused contended that the Prosecution had failed to conduct a scientifically valid confirmatory test in accordance with the Malaysian Guidelines for Drug Testing. It was asserted that SP2 had relied on Thin-Layer Chromatography (“TLC”), which, according to the Defence, is not an internationally accepted confirmatory test under the SAMHSA and AU/NZ Guidelines. [53] The Defence further highlighted that Exhibit P5 did not state the prescribed cut-off value of 15 ng/mL and submitted that, as a result, the test results were inconclusive and could not reliably establish drug consumption. [54] Through cross-examination and Defence evidence, it was also alleged that SP2 had failed to conduct two preliminary tests to negate contamination as required, and that such failure could potentially lead to a false-positive result. [55] The defence relied on the testimony of SP3 to assert that Exhibit P8 was not stored at the required maximum temperature during transportation. Additionally, reference was made to the testimony of SP6 that no records were kept in respect of the custody of Exhibit P8. [56] In summary, the Defence contended that the handling, storage and analytical procedures adopted by the Prosecution’s witnesses did not comply with national and international guidelines, thereby giving rise to risks of contamination, compromised sample integrity and unreliable test results. [57] The Defence invited this Court to consider the alleged breaches of the guidelines, including the absence of a stated cut-off value, improper storage of samples prior to testing, and the failure to conduct a pH test to determine the suitability of the samples for analysis. G. DUTY OF THE COURT AT THE CONCLUSION OF THE TRIAL [58] The statutory duty of the Court at the conclusion of the Defence’s case is provided under section 182A of the CPC which states: (1) At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt. (2) If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find the accused guilty and he may be convicted on it. (3) If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall record an order of acquittal [59] This Court also finds guidance in the Federal Court decision of Md Zainudin bin Raujan v. Public Prosecutor [2013] 3 MLJ 773, where it was held: [59] At the conclusion of the trial, s. 182A of the Criminal Procedure Code imposes a duty on the trial court to consider all the evidence adduced before it and to decide whether the prosecution has proved its case beyond reasonable doubt. The defence of the accused must be considered in the totality of the evidence adduced by the prosecution, as well as in the light of the well established principles enunciated in Mat v. PP [1963] CLJU 82; [1963] 1 LNS 82; [1963] 1 MLJ 263 with regard to the approach to be taken in evaluating the evidence of the defence. [60] In Mat v. Public Prosecutor [1963] 29 MLJ 263 where it was held by Suffian J (as he then was) explained the duty of the Court in the following: The position may be conveniently stated as follows: (a) If you are satisfied beyond reasonable doubt as to the accused's guilt ........ Convict. (b) If you accept or believe the accused's explanation.. Acquit. (c) If you do not accept or believe the accused's explanation.. Do not convict but consider the next steps below. (d) If you do not accept or believe the accused's explanation and that explanation does not raise in your mind a reasonable doubt as to his guilt........ Convict (e) If you do not accept or believe the accused's explanation but nevertheless it raises in your mind a reasonable doubt as to his guilt.. Acquit [61] Therefore, based on the above authorities, it is the duty of this Court to evaluate the entirety of the evidence at the close of the trial. Even where the Court does not accept or believe the Defence’s version, the law requires that a conviction must not be entered unless the Court is satisfied that the explanation offered does not raise any reasonable doubt. If a reasonable doubt arises, even from an explanation that the Court finds unconvincing or difficult to accept, the accused is nevertheless entitled in law to an acquittal. [Emphasis added] H. FINDINGS OF THE DEFENCE CASE Whether Pekeliling Ketua Pengarah Kesihatan Malaysia Bil. Tahun 2021: Garis Panduan Bagi Ujian Pengesanan Penyalahgunaan Dadah dalam Air Kencing Versi 2.0 has legal effect in the present case [62] The Defence contends that the Prosecution failed to provide a scientifically valid confirmatory test as required under the Malaysian Guidelines for Drug Testing. [63] It is further the Defence’s submission that SP2 relied on a Thin-Layer Chromatography (“TLC”) test, which is not an internationally accepted confirmatory test under the Substance Abuse and Mental Health Services Administration Guidelines (SAMHSA) and the Australia/New Zealand Standard. [64] Additionally, the Defence submits that Exhibit P5 does not state the required cut-off value of 15 ng/mL, thereby rendering the test result inconclusive and inadmissible as evidence of drug consumption. The Defence further contends that the failure to conduct a pH test, as recommended under the Pekeliling Ketua Pengarah Kesihatan Malaysia Bil. 1 Tahun 2021: Garis Panduan Bagi Ujian Pengesanan Penyalahgunaan Dadah dalam Air Kencing Versi 2.0, as well as the SAMHSA Guidelines and the Australia/New Zealand Standard, increases the likelihood that the urine sample may have been degraded or contaminated, thus giving rise to the possibility of false-positive results. [65] Accordingly, the issue for determination by this Court is whether the Pekeliling Ketua Pengarah Kesihatan Malaysia Bil. Tahun 2021, the SAMHSA Guidelines, and the Australia/New Zealand Standard have any legal effect or force of law in the present case. [66] In determining this issue, this Court is guided by the decision of the Court of Appeal in PP v. Rosman Saprey & Anor [2019] 4 CLJ 767, where the Court held, inter alia, that although section 31A of the DDA 1952 permits the taking of urine samples from an arrested person, no rules or regulations have been made by the Minister prescribing the procedure or method for the taking, screening, and analysis of such samples. The Court of Appeal further held that the Inspector-General of Police’s Standing Order F103 and the Ministry of Health Malaysia Guidelines Bil. 6/2002 were introduced to fill this lacuna but were intended solely as internal guidelines for police officers and medical officers respectively, and do not possess the force of law, as they were not made pursuant to statutory authority nor gazetted as required by law. [67] The Court of Appeal further rejected the proposition that such guidelines could be treated as having the force of law or as procedural law, holding that the power to make rules and regulations under the Dangerous Drugs Act 1952 and Act 283 is vested exclusively in the Minister, and there was no evidence of any lawful delegation of such power to the Inspector-General of Police or the Director-General of Health. [68] Applying the principles laid down in PP v. Rosman Saprey & Anor [2019] 4 CLJ 767, this Court finds that only the Minister has the statutory authority to prescribe procedures relating to the method of taking urine samples and the manner in which they are to be handled. It follows that the guidelines issued by the Ministry of Health Malaysia do not have the force of law, nor can they be elevated to the status of procedural or subsidiary legislation. [69] Consequently, this Court finds that the Pekeliling Ketua Pengarah Kesihatan Malaysia Bil. 1 Tahun 2021: Garis Panduan Bagi Ujian Pengesanan Penyalahgunaan Dadah dalam Air Kencing Versi 2.0, the SAMHSA Guidelines, and the Australia/New Zealand Standard are merely advisory in nature and do not have any legal effect or force of law in the present case. Whether there is any break in the chain of evidence [70] The Defence contends that there was a break in the chain of evidence in relation to the collection, handling, transportation, and storage of the urine sample. It is submitted that SP3 admitted there were no proper records of the movement of the sample, and that SP6 failed to document the identity of the officer who collected the urine sample. According to the Defence, these alleged procedural shortcomings cast doubt on whether the urine sample tested was that of the Accused. [71] This Court has carefully considered the Defence’s submissions. For the reasons already explained at paragraphs [44] to [48] of this Grounds of Judgment, this Court finds that there was no break in the chain of evidence in respect of the urine specimen. [72] This Court further finds that the collection, handling, transportation, and testing of the urine sample were carried out in a manner that does not disclose any negligence or material procedural non-compliance so as to affect the integrity of the specimen. [73] Accordingly, this Court finds that the urine specimen contained in the bottle was that of the Accused, that the examination of the Accused’s urine specimen complied with the requirements of section 31A of the DDA Act 1952, and that the drugs detected are substances listed under Part III of the First Schedule to the DDA 1952. [74] In the circumstances, this Court finds that the Defence has failed to raise a reasonable doubt in the Prosecution’s case on the issue of the chain of evidence. I. DECISION AT THE END OF THE TRIAL [75] Having considered all the foregoing reasons, the notes of proceedings, the evidence adduced, all exhibits tendered, and the written submissions filed by both parties, this Court finds that the Defence has failed to raise a reasonable doubt in the Prosecution’s case in respect of the offence under section 15(1)(a) of the DDA 1952. [76] This Court further finds that the Prosecution has proved its case beyond a reasonable doubt. [77] Accordingly, this Court finds the Accused guilty and convicts him of the offence under section 15(1) of the DDA 1952. J. MITIGATION [78] In mitigation, learned Defence Counsel submitted that the Accused is 50 years old, suffers from heart disease, and has two dependants. It was further submitted that the Accused has been in remand since his arrest on a separate charge, and this period ought to be taken into consideration. Learned Defence Counsel also submitted that the Accused is a first-time offender and has strong ties to the community. M. AGGRAVATING FACTORS [79] The Prosecution prays for the maximum sentence and having regard to the condition of society today, a deterrent sentence is necessary to serve as a lesson to the public. [80] The Prosecution further prays that the maximum sentence be imposed on the Accused in the interest of the public, and to serve as a deterrent to society so as to prevent the repetition of such offences. [81] This case has been ongoing since 2022 and has incurred costs to the Court and the parties. Accordingly, the Prosecution prays for the maximum sentence. N. SENTENCING i. The Accused is a first-time offender, aged 50, and has two dependants [82] It is trite law that, in sentencing, the Court must give due consideration to whether an accused person is a first-time offender, as this is a factor that often carries significant weight in determining the appropriate sentence. [83] In the present case, learned Defence Counsel informed the Court that the Accused is a first-time offender. During the Prosecution’s submissions on aggravating factors, no criminal record or prior conviction was tendered by the learned Deputy Public Prosecutor. Accordingly, this Court accepts that the Accused has no previous convictions. [84] This Court has also taken into account the Accused’s age, being 50 years old, and his responsibility towards his two dependants. Public Interest [85] In determining the appropriate sentence, the Court must give due consideration to the element of public interest. This principle was succinctly articulated in the High Court case of PP v. Loo Choon Fatt [1976] 2 MLJ 256 which cited the judgment of Hilbery J in Rex v. Kenneth John Ball 35 Cr App R 164 as follows: One of the main considerations in the assessment of sentence is of course the question of public interest. On this point I need only quote the passage from the judgment of Hilbery J in Rex v. Kenneth John Ball 35 CR App R 164 as follows: In deciding the appropriate sentence, a court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment will be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induced him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore fix the sentence for a particular offence but it fixes a maximum sentence and leaves to the court to decide what is, within that maximum the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the court has the right and duty to decide whether to be lenient or severe. [Emphasis added] [86] Based on the authority cited above, the public interest is served when a sentence carries a deterrent effect, whether by deterring others from committing similar offences, discouraging recidivism by the offender, or encouraging rehabilitation and reintegration into society. [87] In the present case, this Court takes note that the Accused remains in remand pending the disposal of a charge under section 39B of the DDA 1952 before the High Court at Temerloh. [88] Having balanced the mitigating factors, the gravity of the offence, and the public interest considerations, this Court sentences the Accused to four (4) months’ imprisonment, to take effect from the date of his arrest for the offence under section 15(1) (a) of the DDA 1952. This Court is satisfied that such a sentence is proportionate and adequately serves the public interest by deterring others, discouraging future offending by the Accused, and promoting accountability, while giving due weight to the Accused’s status as a first-time offender. O. CONCLUSION [89] Having considered all the foregoing reasons, the notes of proceedings, the evidence adduced, all exhibits tendered, and the written submissions filed by both parties, this Court finds that the Defence has failed to raise a reasonable doubt in the Prosecution’s case in respect of the offence under section 15(1)(a) of the DDA 1952. [90] This Court further finds that the Prosecution has proved its case beyond a reasonable doubt. [91] Accordingly, this Court finds the Accused guilty and convicts him of the charge under section 15(1) (a) of the DDA 1952, and sentences him to four (4) months’ imprisonment, to take effect from the date of his arrest. Dated: 27 January 2026 …………………………t.t.….…………………………. (QASIRATUL JANNAH USMANI BINTI OTHMAN) Magistrate Magistrate Court Bentong, Pahang Darul Makmur For the Prosecution-Tuan Muhammad Zamharir Bin Muhammad Zuhid, Deputy Public Prosecutor. For the Accused – Mr. Muhammad Farhan Shafee (Mr. Naresh a/l Mayachandran and Muhammad Aiman Ariz bin Zainal Alam with him) Messrs. Shafee & CO.