Selepas saya membuka bungkusan tersebut dengan pisau, saya dapati ada aluminium foil di dalamnya. Selepas pemeriksaan rapi, saya dapati ada dua bungkusan aluminium foil. Selepas itu, saya mengunakan pisau 11 memotong plastik di bahagian hadapan bungkusan 1 iaitu C- 2-1-1 dengan pisau. (See: Record of Appeal Vol 2; page 79) [22] It is observed that at this stage of examination in chief of PW5 the DPP did not refer the witness to any of the exhibits which were marked as ID16-ID119. The learned DPP conducting the trial had then asked the court for a short adjournment for the purposes of identification of exhibits. However, he did not inform the court that the exhibits to be identified were ID16- ID119: TPR: Kamu boleh cam ke semua eksibit yang telah kamu bongkar? SP 5: Boleh TPR: Saya pohon kes ini ditangguhkan sebentar untuk tujuan pengecaman. Mahkamah: Tangguh sebentar @ 3.45petang (See: Record of Appeal Vol 2; page 85) (Emphasis added) [23] At 4.10 pm according to the transcribed notes of evidence, the Court resumed and it was only at this stage that the learned DPP referred PW 5 to exhibits ID16- ID119: TPR: Dengan izin Yang Arif untuk teruskan pemeriksaan ini. Sewaktu penangguhan awak dirujuk dengan kesemua eksibit yang kamu bongkarkan. Boleh kamu sahkan dan camkan? 12 SP5: Ya. Saya dapat camkan kesemua barang yang ditandakan saperti di dalam borang bongkar TPR: Eksibit-eksihibit yang dimaksudkan ialah ID16 - ID119 dan P128A hingga D. Saya pohon agar excibit-excibit (sic) ID 16- ID119 di tanda semula sebagai P. Mahkamah: P16-P119 (See: Record of Appeal Vol 2; page 86) (Emphasis added) [24] As pointed out by learned counsel for the appellant the identification of the exhibits was done when the court adjourned at the request of the DPP. The notes of evidence did not record what had actually transpired during the break purportedly for the identification of exhibits. One can only assume or make conjecture that during the break PW5 identified the exhibits. References were made to exhibit P130 when the DPP was examining PW5 but the witness was not referred to exhibits ID16- ID119. Why wasn’t the identification of the exhibits done during the hearing in the presence of the judge? This was not explained by the learned JC in his grounds of judgment nor the learned DPP in her written submission. Identification of exhibits were done in open court during the examination-in-chief of Sahirman Mohd, Penolong Pengarah Kastam (PW7): TPR: Dengan izin. Untuk menjimatkan masa saya pohon untuk SP7 mengecam secara kolektif excibit (sic) P16 sehingga P119, excibit (sic) P128 A hingga B. Pohon kebenaran untuk saksi mendekati barang kes. (SP7 mendekati barang kes untuk membuat pengecaman) 13 TPR: Encik Sahirman,kamu telah melihat kesemua barang kes sebentar tadi adakah kamu camkan kesemua barang kes? (SP7 telah menyemak dan membuat pengecaman barang kes) (see: Record of Appeal, Vol 2; page 118) [25] Abdul Hamid CJ (later LP) in the Supreme Court case of Teoh Hoe Chye v. Public Prosecutor [1987] 1 MLJ 220, observed: Insofar as the trial Court is concerned, its duty is essentially to decide whether on the evidence before it the prosecution has proved its case, and if there are unsatisfactory features in the prosecution case to determine whether, in the light of such features, the prosecution case fell short of proof beyond reasonable doubt (Abdullah Zawawi’s case, supra). We would observe at this point that the law is clear in that “it is unnecessary to call evidence to ensure there is no break in the chain of evidence.” (Su Ah Ping v Public Prosecutor [1980] 1 MLJ 75. But where a doubt as to the identity of an exhibit arises, a failure to adduce evidence to provide the necessary link in the chain of evidence would be fatal to the prosecution case. In the instant case there was such a failure. [26] We had considered the evidence and the criminal procedure on this aspect of the defence case very carefully. In our view, in the circumstances of the case the failure to identify the exhibits before the learned JC had caused a serious break in the chain of evidence. In Gunalan Ramachandran & Ors v. Public Prosecutor [2004] 4 CLJ 551, the Court of Appeal held at pages 568 – 569: First, by way of a general observation, I am of the view that, in a drug trafficking case what is important is that it must be proved that it is the substance that was recovered that was sent to the chemist for analysis and it is that same substance that is found to be heroin or cannabis etc. 14 and it is in respect of that substance that an accused is charged with trafficking. So, the chain of evidence is more important for the period from the time of recovery until the completion of the analysis by the chemist. Even then it does not necessarily mean that if the exhibit is passed from one person to another, every one of them must be called to give evidence of the handing over from one person to another and if there is a break, even for one day, the case falls. There should be no confusion between what has to be proved and the method of proving it. What has to be proved is that it is the substance that was recovered that was analysed by the chemist and found to be heroin, cannabis etc., and it is for the trafficking of that same substance that the accused is charged with. The proof of the chain of evidence is only a method of proving that fact. The fact that there is "a gap", does not necessarily mean that that fact is not proved. It depends on the facts and circumstances of each case. There may be a gap in the chain of evidence. But, if for example, during that "gap" the exhibits are sealed, numbered with identification numbers, there is no evidence of tampering, there is nothing that would give rise to a doubt that that exhibit is the exhibit that was recovered in that case and that was analysed by the chemist, the fact that there is a gap, in the circumstances of the case, may not give rise to any doubt of that fact. (emphasis added). [27] In Su Ah Ping v PP [1980] 1 MLJ 75, the appellant had been convicted of possession of four pistols and 175 rounds of ammunition and sentenced to death. In the course of his interrogation by the police, the appellant had led the police to the place where he hid the pistols and ammunition and the exhibits were found. The exhibits were handed over by Inspector Takbir to another police officer. At the trial, Inspector Takbir produced the exhibits and identified them. No other police officers who had handled the exhibits were called to testify. No objection was raised by the defence. At the appeal it was argued that there was a break in the 15 chain of evidence. It was held by the Supreme Court that it is unnecessary to call evidence to ensure that there is no break in the chain of evidence. If the officer who picked up the object at the scene produced it and identified it as that very object that is enough and there is no need to call every other officer who handled it, unless there is doubt as to the identity. [28] On the issue of proof of exhibits and the necessity of calling the witnesses, Tun Suffian LP said: The complaint before us was not that there had been no proof that the exhibits were serviceable, but simply that there was a "break in the chain of evidence", and the prosecution should have called as witnesses all the officers through whose hands the exhibits passed from Inspector Takbir to the armourer and back to the Inspector. We do not think there is merit in this point. The question was whether the exhibits the Inspector produced were the guns and ammunition he found at the scene, and as when he produced them as those very guns and ammunition there was no objection by the defence, it would have been a waste of judicial time to call all the intervening handlers. In our experience much judicial time is spent unnecessarily, notably in subordinate courts, in ensuring no break in the chain of evidence. In our judgment, if the officer who picked up an object at the scene produced it and identified it as that very object, that is enough, and there is no need to call every other officer who handled it. [29] Hashim Yeop A Sani CJ (Malaya) delivering the judgment of the Supreme Court in Abdullah Bin Yaacob v PP [1991]1 LNS 68 emphasised: It is certainly true that, as was said in Su Ah Ping v PP [1980] 1 MLJ 75, the Federal Court had held there that it is not required of the prosecution to call all the officers or the persons concerned who had 16 seen or identified an exhibit. This is not the real intention of the law. Su Ah Ping [1980] 1 MLJ 75 only decided the general principles. But the facts of one case differ from those of another and the duty of the prosecution in each case is to prove the case beyond any reasonable doubt to the court. The case must be clearly proved without [reasonable] doubt or question that can be raised about the exhibits. See also Teo Hoe Chye v PP [1987] 1 MLJ 220 at p 229. There should be no break in the chain of evidence giving rise to doubt relating to the exhibits. (emphasis added) [30] In the instant appeal, PW 5, the officer who had conducted the ‘proses pembongkaran’, did not identify the objects in open court but only did so during the short break. When the court resumed the exhibits were again collectively identified by PW5. The DPP did not explain to the court what had actually transpired during the break which he had requested for purposes of identification of the exhibits, that is, the exhibits that were identified during the break; whether the appellant’s defence counsel at that time was present during the identification of the exhibits; whether there was any objection made by the assigned defence counsel. [31] The Federal Court in Lew Wai Loon v PP [2014] 2 CLJ 649 held: [26] In other words, an exhibit, in a criminal or a civil trial, is physical or documentary evidence brought before the court. Its admission and reliance upon as a piece of evidence requires factual analysis of the facts and/or events that are relevant not only for its admission as a piece of evidence but that such facts and/or events may also be relied upon to test its reliability and trustworthiness as a piece of evidence. In short it is a fact sensitive exercise. (emphasis added) 17 [32] The identification of the exhibits by PW5 is critical to the prosecution's case. Even though PW5 was asked again in open court to identify the exhibits it does not validate what had transpired when the case was adjourned and the process of identification as requested by learned DPP, was conducted in the absence of the learned JC. Furthermore, we have scrutinised the transcribed notes of evidence and we noted that throughout the examination-in-chief of PW 5 exhibits ID16 - ID119 which eventually were marked as P16- P119 were never referred to him. [33] In Ogbodo Sunday Tochukwau v. PP & Other Appeals [2016] 9 CLJ 686, this Court held: The dispensation of justice involved both procedural and substantive law. Justice cannot be dispense when its procedures are ignored. The Criminal Procedure Code (CPC) prescribed procedures in criminal proceedings. Section 264 of the CPC provides that all evidence shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his advocate: Except as otherwise expressly provided all evidence taken under Chapters XIX and XX shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his advocate. [34] Section 172A CPC sets out the matters an advocate representing an accused may discuss with the prosecution during the pre-trial conference: