EMRAN BIN ABD SANI v Pendakwa Raya (WA-42H-14-11/2021)

The need to pen down this judgment has now arisen from an appeal against my decision handed down on the 05th of October 2023 whereby I set aside both the conviction and sentence passed by the Sessions Court on the accused person on 3rd of November 2021 wherein the Sessions Court found the accused person guilty and sentenced him 7 years of imprisonment from the date of arrest and 2 strokes of whipping for an offence under section 39C(1) Dangerous Drugs Act 1952. Due to the appeal lodged to the Court of Appeal against my decision, I hereby provide my ratiocination pertaining to this matter.

The criminal charge proffered against the accused person by the prosecution to which he claimed trial at the first instance before the Sessions Court is as follows in Bahasa Melayu (national language): “Bahawa kamu pada 20/05/2020, jam lebih kurang 6.15 petang bertempat di Pejabat Bahagian Siasatan Jenayah Narkotik Wangsa Maju, Wilayah Persekutuan Kuala Lumpur sebagai orang yang tidak diberikankuasa telah didapati menggunakan dengan cara pemberian kepada diri sendiri ke dalam badan dadah berbahaya ‘morphine’. Oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah seksyen 15(1)(a) Akta Dadah Berbahaya 1952 dan ini adalah kesalahan kali ketiga dan jika disabit kesalahan kamu boleh dihukum di bawah seksyen 39C(1) Akta Dadah Berbahaya 1952”. Hukuman: Penjara selama tempoh tidak kurang daripada 5 tahun tetapi tidak lebih 7 tahun dan hendaklah dikenakan sebat tidak lebih dari 3 sebatan.

Before the Sessions Court, the accused person was unrepresented and claimed trial.

Throughout the course of the trial, 5 prosecution witnesses testified and 11 prosecution exhibits were marked. Eventually, the Sessions Court ruled a prima facie case against the accused person and ordered him to enter defence.

The accused person being the sole defence witness testified under oath and was convicted by the Sessions Court after hearing the defence case. He was sentenced 7 years of imprisonment from the date of arrest and 2 strokes of whipping

Dissatisfied with the sentence ordered by the Sessions Court, he appealed to the High Court bench. Submission of the Parties before the High Court

The Accused: [7] Through his counsel, the accused person submitted the following points as to why his conviction must be set aside and cannot be sustained: • The accused person was not given sufficient time to appoint counsel of his choice during the pandemic Covid-19 situation; and • His defence was not properly considered and appreciated by the trial court in this matter.

Prosecution: [8] Per contra, the prosecution submitted that the Sessions Court being the trial court had given the accused person sufficient time – 9 months to appoint his counsel and all the evidence was duly considered and appreciated by the trial court before convicting him. His defence is said to be a mere bare denial. Deliberation of the Court [9] At the outset, I must state this. As an appellate court hearing appeals from the subordinate courts, my powers are confined with the ambit of section 316 of the Criminal Procedure Code (CPC) wherein I can affirm or alter or reverse any decision made by the subordinate court on error committed both of fact and law that warrants my curial intervention. [10] In this matter, I have read through the records carefully by combing through the evidence adduced at the Sessions Court through a critical judicial lens and heard the arguments of the parties before me. I am of the following pondered view. [11] It is undeniable that the accused person was charged in court during the subsistence of pandemic Covid-19 and he was faced with a charge that mandates imprisonment and whipping. This is no doubt a relatively serious offence under the Dangerous Drugs Act. Despite 9 months period was granted to him to secure a counsel, such 9 months must necessarily be construed in light of the prevailing circumstances at that material time – the subsistence of Covid-19 pandemic which made many things including normal ordinary life activities to be restricted and curtailed to a certain extent. Furthermore, he was in detention at that point in time. I reckon the period of 9 months in light of such situation is quite unreasonable and the accused person should have been granted more time to secure a counsel to represent him. The trial court could have played an active role by directing him to the legal aid for some help. Unfortunately, none of those were done in this matter. It is my view that the deprivation of his rights to a counsel to represented him in a criminal trial cannot be condoned by this court as it concerns his fundamental liberty cemented under Article 5 of the Constitution. That right is indeed sacrosanct. [12] Apart from that, based on my perusal on the records, there are two critical issues that is fatal in this case. It is absolutely perplexing to note that there are no pictures of the place of the alleged incident i.e-lavatory adduced by the prosecution before the trial court. Such photos are extremely germane to support the charge and to establish the very point that the accused person went into that lavatory to provide his urine sample specimen. [13] Another blatant error that I spotted is the discrepancy of the accused person’s signature on the urine specimen bottle and urine sample examination form. Both are fundamentally different and the benefit of doubt must be construed in favour of the accused person. All the above would have been properly argued and tested before the trial court should the accused person had a counsel of his choice to examine the nuances of the prosecution’s case. [14] For the reasons above mentioned, I hereby set aside the conviction and sentence passed by the Sessions Court as it is unsafe and warrants my appellate intervention to restore justice to the accused person. So ordered. Dated : 31st of January 2025 (AZHAR BIN ABDUL HAMID) JUDGE (CRIMINAL DIVISION) HIGH COURT, KUALA LUMPUR Parties Appearing: Prosecution: Syajaratudur binti Abd Rahman Deputy Public Prosecutor Kuala Lumpur Prosecution Office Accused Person: Izleen binti Ismail (YBGK matter)