MOHD AZHAR BIN LAMSAH v Pendakwa Raya (WA-42S-9-09/2022)

DDA, that methamphetamine was consumed by him, thus contravening the DDA. It shall be noted, that at both instances above, she had decided the drug administered by the accused, was methamphetamine, but yet at the conclusion of trial, she found the accused guilty and convicted him for self-administration of morphine as he stood charged. Hence, where is the consistency in her finding, when she had fallen into an error that the accused had consumed meth when the charge against him was for morphine found in his urine sample. Where is direction of the mind of the SCJ to the defence and explanation by the accused, that he did not consume any drug and there was in fact a mix-up on the urine sample taken which was fortified by the diverse results by SP1 and SP4. For the SCJ to employ the presumption pursuant to section 37 (k) of the Dangerous Drugs Act 1952 (DDA/Act 234), there has to be cogent evidence of the primary facts, before the said presumption was invoked. Cogency of the evidence by the prosecution is negated by the inconsistent testimony of both SP1 and SP4 who were dealing with the same urine sample purportedly taken from the accused, which he had denied vehemently. It was further fortified by the differing signatures of the accused on his police statement and P3 as well as P4, alluded to above. [8] Further on the invocation of the presumption and the appropriate burden of proof applicable, the SCJ had again misdirected herself on the law, when she did not apply the appropriate burden of proof under the law when she had equated the duty of the accused to only raise a reasonable doubt after having invoked the presumption under section 37 (k) DDA, when dealing with the defence by accused. Considering the defence of the accused that he did not consume any drugs before his arrest and the urine sample allegedly taken does not belong to him, she had gone on to decide: OKT gagal menimbulkan keraguan yang munasabah, termasuk gagal untuk mematahkan anggapan statutori dibawah seksyen 37 (k) ADB 1952. It is only apparent, the SCJ had applied two different sets of burden of proof, to wit, the accused failed to raise a reasonable doubt on the case of prosecution and also that he had failed to rebut the statutory presumption found in section 37 (k) DDA. By comparison, the burden of proof to rebut a statutory presumption is much higher to be displaced by the accused than to only to raise a reasonable doubt, a lighter burden. Obviously, this had prejudiced the accused who is undefended. There is nowhere in the record of proceeding showing that the undefended accused was cautiously alerted by the court that the presumption pursuant to section 37 (k) DDA had been invoked against him and the burden of proof that follows on him to rebut the said statutory presumption. The Law and finding by this court [9] As support, the Supreme Court case of Akin Khan bin Abdul Rahman v PP (1987) 2 MLJ 217 is applied, pursuant to which the first limb of the judgment by the SCJ implies the burden upon the accused to raise a reasonable doubt which is a term commonly used to indicate the ordinary burden of proof upon an accused when he cross-examine the prosecution witnesses and defence is called, which is a lesser burden and if applied can hardly be objectionable. However, the next limb that the accused had failed to rebut the statutory presumption under section 37 (k) DDA is a heavier burden under the law, placed on the accused once presumption comes into effect. As postulated in Akin Khan, the issue would not have arisen if the SCJ confined herself to the time-honoured description of the burden of the accused as propounded in in PP v Yuvaraj (1969) 2 MLJ 89, when a statutory presumption is triggered, like in the present case section 37 (k) DDA, it has to be displaced on a balance of probabilities. To reiterate, the SCJ did not heed to the narrative of the prosecution, wherein primary facts on self-administration of drug by the accused remained doubtful, wherein the test strip adopted on the accused by SP1 had shown the urine sample contained meth but SP4, the pathologist confirmed content of the urine sample to be the drug morphine. That again per se fortifies the explanation by accused that the urine sample taken was not his to start with as he did not administer any drug to himself before the purported urine sample was taken from him. [10] Gleaning the record of proceeding, the SCJ had chosen not to believe the accused but had adopted the prosecution’s narrative at all costs, even though it did not pass the beyond reasonable doubt test on the test strip result of the urine sample taken from the accused. Given the circumstance, the SCJ then ought to have considered the defence of the accused categorically and test it against the evidence led by the prosecution to see if it raises a reasonable doubt on the case of the prosecution. If it does, she has no other alternative, but to acquit the accused. There cannot be a hotchpotch where at one end of the stick she had elected to say the accused had failed to raise a reasonable doubt and on the other hand had decided he had failed to rebut the statutory presumption pursuant to section 37 (k) DDA which had been invoked, on a balance of probabilities. In whatever manner, the defence of the accused is viewed, it is so apparent in law that it was not considered at all, as the SCJ had brushed it aside totally by only considering the narrative of the prosecution. She is also not permitted in law to apply the dual burden of proof, one lower and the other higher when considering the defence by accused. Moreover, as alluded to earlier, applicability of the presumption under section 37 (k) DDA is questionable, as there is no tangible evidence proffered by prosecution, if the urine sample taken did in fact belong to the accused and it in fact contain methamphetamine or morphine, juxtaposed with defence of the accused, that he did not consume any drugs before arrest. Therefore, the SCJ had fallen into an error of law, when her finding and conclusion was the following: Setelah mempertimbangkan keterangan Tertuduh yang tidak bersumpah untuk pembelaan, hujahan Timbalan Pendakwa Raya dan Tertuduh Mahkamah ini mendapati bahawa OKT gagal menimbulkan keraguan yang munasabah, termasuk gagal untuk mematahkan anggapan statutory di bawah Seksyen 37 (k) ADB 1852. Mahkamah ini seterusnya memutuskan bahawa pendakwaan telah berjaya membuktikan kesnya melangkaui keraguan yang munasabah. Dengan ini Mahkamah memutuskan bahawa OKT didapati bersalah dan disabitkan dengan kesalahan sepertimana pertuduhan. OKT diberikan peluang untuk merayu sebelum dijatuhkan hukuman. [11] The undefended accused’s plea of innocence is fortified by the doubt on the urine sample taken, as to whether the content is meth or morphine. The result of the immediate test by SP1 allegedly shows urine sample of the accused contains meth, but later analysed by SP4, a trained pathologist who had concluded it contains morphine, renders the urine sample taken allegedly from the accused doubtful. Further fortification of the doubt is the confirmation by SP4 in his testimony, that there was no meth present in the urine sample allegedly taken from the accused. Thus, was the sample in fact taken from the accused? [12] When defence was called, the accused had given unsworn statement from the dock, it was not a mere denial but he maintained he did not consume any drugs at point of arrest or before that. He also told the court the urine sample taken was not his, and yet the SCJ did not consider it but stated it to be a mere denial. It cannot be a mere denial, when his unsworn statement supports the doubt in the urine sample taken which had led to conflicting results of the test on the purported urine sample taken from him by SP1 and SP4. Thus, it is only apparent that the urine sample tested may not belong to the accused, concomitant with the defence of the accused. There is also no basis for the SCJ not to consider the explanation and defence raised by the accused, albeit it being given unsworn. It is still a statement which deserves to be given weight by the SCJ, especially so in the light of the conflicting version proffered by the prosecution on the urine sample allegedly taken from the accused. The law is very clear that the court cannot outright reject such evidence. The court must consider it and give it such weight for what it is worth and think fit having regard to the evidence adduced as a whole before the court. See the cases of Public Prosecutor v Sanassi (1970) 2 MLJ 198 and Mohamed Salleh v Public Prosecutor

1 MLJ 104. [13] His defence is also fortified in the case by prosecution against him, when it was proven to court that the signature on his police statement and the urine specimen bottle, P3 was different from P4 which is the UPD Form, used to send the urine sample for testing by SP4. Such inconsistency in the signature, further led the case by prosecution to be marred and riddled with inconsistencies. With that, the case by prosecution is not anchored on proof beyond reasonable doubt. [14] After having introduced evidence in the case of prosecution that SP1 had conducted an early detection of drug on the purported urine sample taken from the accused by using six test strips, where one of the test strip confirms meth as the drug content, it cannot now say that the test conducted by SP1 is not to be considered at all as he was not a medical professional but merely a sample collector who had conducted test via test strips and the testimony with regard to the test conducted by SP4 via report P5, a pathologist would prevail. Such an argument is not only unfounded but inexplicable, as the case of the prosecution itself is then riddled with a doubt, if the urine sample taken from the accused contained meth or morphine, especially so in the light of the defence of the accused, that he did not consume any drug before his urine was taken for testing and that there was a mix up of the urine sample, where one result shows meth and another shows morphine, but pertaining the same urine sample purportedly taken from the accused. It also fortifies his defence further, that the urine sample tested does not belong to him. The prosecution shall not blow hot and cold when showing inconsistent proof in their own case. The testimony of SP1 and SP4 are of equal status pertaining the test conducted on the urine sample purportedly collected from the accused, thus for the SCJ to have regarded only the testimony of SP4 but disregarded SP1’s testimony is an affront to the administration of criminal justice, as both are proffered by the prosecution to prove a case beyond reasonable doubt against the accused who was ultimately charged for an offence which carries an enhanced penalty wherein drug content of morphine is said to be found in his urine sample, when the collection and test conducted on the purported urine sample of the accused is per se dubious. [15] It is rule of law, that when calling upon the accused to enter his defence, the SCJ must keep an open mind as to the accuracy of the evidence led by prosecution until the defence evidence has been tendered. At the close of the case for the defence and submission, the court must review the evidence adduced with regard to all the elements to be proved and then decide whether the prosecution has proved its case against the accused beyond reasonable doubt. (See: Jaafar bin Ali v PP (1998) 3 MLRH 333). The SCJ did not comply with such a progressive step in the case of the accused. [16] Further, in view of the contradicting and conflicting evidence proffered by the prosecution, the SCJ had fallen into an error of law by invoking the presumption under section 37 (k) DDA, as the primary facts adduced by the prosecution does not disclose conclusively on the drug content of the urine sample allegedly taken from the accused. Conclusion [17] In the premise, taking into consideration all the infirmities in the case against the accused, there has been a failure of justice that had occasioned from the mode and manner by which the SCJ had handled the evidence tendered by the prosecution and explanation afforded by the accused. To recapitulate, • At point of testing of the urine sample, it is not proven beyond reasonable doubt, it belongs to him in view of the conflicting tests result; • Finding by the SCJ is also contradictory when she had mixed up her finding in respect of the content of the urine sample, between methamphetamine and morphine, but the charge against the accused is that the urine sample contained morphine. • Misdirection by the SCJ on the burden of proof. [18] In the premise, findings made by the SCJ and her conclusion both at the end of the case of prosecution and defence is plainly wrong, justifying appellate intervention. Thus, the finding of guilty and conviction is set aside and the accused is acquitted and discharged. Accused acquitted and discharged. Dated 18 January 2024 SGD Muniandy Kannyappan Judge, High Court 2 (Criminal) Kuala Lumpur. G Nanda Goban of Messrs. Goban & Company acting on behalf of Yayasan Bantuan Guaman Kebangsaan Malaysia for appellant/accused. DPP Aqilah Ishak for respondent/Public Prosecutor.