Pendakwa Raya v HAMKAR BIN PATERI @ SUUD (BA-41H(A)-1-05/2023)

This is an appeal against the Magistrate's decision. For the purpose of this appeal, references to both parties are the same as initially referred to in the trial before the Magistrate.

The accused was charged under section 15(1)(a) of the Dangerous Drugs Act 1952 (DDA), and the charge states as follows: “Bahawa kamu pada pada 14.8.2019 jam lebih kurang 11.45 pagi bertempat di Pejabat Bahagian Siasatan Jenayah Narkotik IPD Gombak dalam daerah Gombak dalam Negeri Selangor didapati memberikan kepada diri kamu sendiri dadah berbahaya iaitu jenis Methamphetamine dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 15(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum bawah seksyen dan Akta yang sama. Hukuman: Jika sabit kesalahan boleh dihukum denda sebanyak tidak lebih RM 5000 atau penjara tidak lebih dua tahun atau kedua-duanya sekali.

At the close of the defence's case, the learned Magistrate decided to convict the accused and sentenced him to a fine of RM4000 and 3 six months' jail in default, as well as a further order of two years of supervision.

Both parties were not satisfied with the learned Magistrate's decision and filed the following appeals: a. The accused filed an appeal against the conviction and sentence. b. The prosecution, on the other hand, filed a cross-appeal against the sentence.

Having heard both counsels and read the written submissions filed by the parties, the Court decided to dismiss the appeal and the cross-appeal.

The Court affirmed the Magistret's decision on the conviction and sentence for the reasons set out below.

The prosecution called four witnesses as follows: a. PW1 –Siti Fatimah Binti Ngadi (Pegawai Sains Kimia Hayat). b. PW2 – S/Ins Mohd Ismail Bin Alang Mat (Pegawai Pengiring/police escort). c. PW3 – Insp Mohd Syazwan Bin Marzuki (Pegawai Penyiasat/Investigation officer). 4 d. PW4 – Insp Mohd Soffi bin Mislin (Pengadu/complainant).

The accused is a member of the Royal Malaysian Police (PDRM). According to a police report, on 14.8.2019 at around 10.50 am, the complainant (PW4) headed a task force called Ops Blue Devil with PW2 and other team members. PW4 arrested the accused on suspicion of the accused administering on himself the drug Methamphetamine, which is a dangerous drug prescribed in Part 3 of the First Schedule of the DDA.

PW3 (the police escort) brought the accused to the Pejabat Narkotik IPD Gombak for a urine test. The accused picked one of the five sealed aluminium packets containing a bottle for the urine test.

The accused chose a bottle marked as P7 with the serial number SN: 0175920. PW4 then tore open the packet in front of the accused and gave it to the accused. PW4 had written down the accused's name on P7, and the accused was given a form, "Borang Akuan Pemberi Air Kencing" to acknowledge receipt of the bottle, and the accused had signed the form.

After that, PW4 instructed PW2 to bring the accused to the men's washroom at the Pejabat Narkotik IPD Gombak for the accused to urinate into P7. PW2 witnessed the accused urinating into P7. Thereafter, PW2 instructed the accused to close P7, bring P7, and place it on a table.

PW4 dipped five test strips into the bottle containing the Respondent's urine. PW4 found that the test strips turned positive for Methamphetamine.

PW4 informed the accused of the result, and the accused understood it. PW4 instructed the accused to close the bottle with the cap.

In the presence of the accused, PW4 accordingly sealed the bottle with a blue PDRM tape and a red wax with seal 853. PW4 has written the accused's details on the bottle, and the accused has put his signature on the bottle. PW4 then lodged a police report, and the accused was handed over to the Investigating officer (PW3).

PW3 sent the accused's urine specimen to the Jabatan Patologi Hospital Kuala Lumpur. Puan Siti Fatimah Binti Ngadi (a science officer) confirmed the urine contained Methamphetamine, as reflected in her report marked as P1.

Upon maximum evaluation of the prosecution witnesses and the document exhibited in the trial, the Magistrate decided that the prosecution had successfully established a prima facie case against the accused.

The Magistrate decided that the prosecution had satisfied all the ingredients of the offence under section 15(1)(a) DDA, namely-

The accused consumed to himself the dangerous drugs as stated in the charge.

(ii) The accused's urine contained traces of drugs prescribed under Part 3 of the First Schedule to the DDA. [18] Section 37(k) DDA allows the Court to presume that if drugs were found in urine samples of a suspect under Section 31A of DDA, the suspect is deemed to have taken dangerous drugs until it is proven otherwise. The defence has failed to rebut the presumption. [19] The Magistrate believes that the procedure in testing the urine sample of the accused was legally done according to section 31A DDA. [20] The Magistrate concluded that there was no break in the chain of evidence and that the substance analysed by PW1 Puan Siti Fatimah Binti Ngadi, Government Science Officer, was the sample recovered from the accused by PW2. [21] The Magistrate called the accused to enter his defence. The Respondent opted to give sworn evidence—the accused as DW1 and Dr Fauzul Akram Bin Juhari, a Medical Officer in Hospital Selayang, as DW2. [22] At the defence stage, the accused essentially denied the charge on the following grounds: a. The accused was involved in an accident before the event, and the accused needed to consume painkiller pills, which may have affected the positive result of his urine. b. The accused was not given choices of bottles to choose. He was given a bottle that was not wrapped in plastic. c. The accused was given only one bottle. d. The accused could not see whether his name was written on the bottle. e. The accused could not see or inspect the test strips to determine whether they had reached the expiration date or were still usable. [23] On the other hand, the prosecution argued that the accused's argument had no merits. [24] At the end of the defence's case, the Magistrate found that the defence of the accused was a bare denial. a) The accused/DW1, during the Examination in Chief, has named Paracetamol and Tramadol as the type of painkillers that he was using. However, DW2, who is a Medical Officer in Selayang Hospital, has confirmed that those two types of painkillers do not contain Methamphetamine as its ingredient. The accused failed to provide witnesses to corroborate his version of the narrative. b) There was no break in the chain of evidence. The accused's contention was that there was a break in the chain of evidence as the procedure of taking the urine sample failed to comply with section 31A(1) DDA. PW4 did not show how the method of testing the urine sample was carried out, and the accused was only given a bottle and not allowed to choose any of the five packets containing the bottle. The Magistrate found them reliable and truthful witnesses and accepted their evidence. PW2 and PW4 have given corroborated evidence to show that the procedure of taking the urine samples and screening the samples brought to the lab at the earliest time was all in line with the procedures allowed. [24] Being dissatisfied with the Magistrate's decision, both parties appealed to this Court. Hence, the appeals. THE GROUNDS OF APPEAL BY THE PARTIES [25] The accused in the appeal no. BA-41S(A)-7-06/2023 states 24 grounds of appeal. Most of the grounds are repetitive. For completeness, the broad arguments advanced by the accused can be summarised as follows:

Section 31A DDA. There are two aspects of the accused's contentions. First, there was non-compliance with section 31A DDA that the prosecution failed to prove there was a reasonable suspicion that the accused was involved in drug abuse, and PW4 did not arrest the accused before the accused was required to provide his urine sample. Second, the procedure of the urine test was illegal;

(ii) There was a break in the chain of evidence where the process of urine collection was not in compliance with section 31A;

(iii) The presumption under section 37(k) DDA did not apply;

(iv) Selayang Police report 028015/19 was marked as IDD11, not marked as D11. [40] In the cross-appeal no. BA-41(S)(A)-7-06/2023, the prosecution states four grounds of appeal, and the main ground of appeal is that the sentence was manifestly inadequate. THE LAW RELATING TO APPEALS [26] The Court is mindful of the duty of this Court regarding criminal appeals. The Federal Court in Herchun Singh v. Public Prosecutor [1969] 2 MLJ 209 where Ong Hock Thye C.J decided: "An appellate court should be slow in disturbing such finding of fact arrived at by the judge, who had the advantage of seeing and hearing the witness, unless there are substantial and compelling reasons for disagreeing with the finding." [27] The same principle has been enunciated in LCY v. TWY [2019) 7 CLJ 158, where YAA Tengku Maimun Tuan Mat HMR (now Chief Judge) said as follows: "[26] The principle of law on appellate intervention is settled. In Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453, the Federal Court reiterated the principle as follows at p.476: [60] It is now established that the principle on which an appellate court interferes with findings of fact by the trial court is "the plainly wrong test" principle; see the Federal Court in Gan Yook Chin & Anor (P) v. Lee Ing Chin @ Lee Teck Seng & Anor [2004] 4 CLJ 309; [2005] 1 MLJ 1 (at p. 10) per Steve Shim CJ SS. More recently, this principle of appellate intervention was affirmed by the Federal Court in UEM Group Berhad v. Genisys lntergrated Engineers Pte Ltd [2010] 9 CLJ 785 where it was held at p. 800: It is well settled law that an appellate court will not generally speaking intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of the evidence (See Chew Yee Wah & Anor v. Choo Ah Pat [1978]1 LNS 32; Watt v. Thomas [1947] AC 484; and Chin v. Lee Ing Chin & Ors [2004] 4 CLJ 309." [28] Whilst the principles of law on sentencing are clear as decided in Pendakwa Raya v. Prabu A/L Veeramuthu and Others [2010] 8 CLJ 257; [2010] 1 LNS 695, Hasan Lah COAJ (as he then was) delivering the judgment of the Court of Appeal said: "[11] In an appeal against sentence an appellate court would not disturb the sentence imposed unless the trial court had erred in applying the correct principles of sentencing or had embarked on some unauthorised or extraneous exercise of discretion (see Ganesan a/l Nachiappan & Ors v. Public 8 [2024] CLJU 1690 Legal Network Series Prosecutor [2000] 3 CLJ 302; Public Prosecutor v. Loo Choon Fatt [1976] 1 LNS 102; [1976] 2 MLJ 256; Bhandulananda Jayatilake v. Public Prosecutor [1981] 1 LNS 139; [1982] 1 MLJ 83 and Yit Kean Hong v. PP [2005] 4 CLJ 592.] [29] The principles of law on sentencing are also settled, as can be seen in Pendakwa Raya v. Ramakrishnan Subramaniam & Ors [2012] 9 CLJ 443, Azahar Mohamed CJA (as he then was) delivering the judgment of the Court of Appeal said: “Mengikut prinsip penghukuman yang sedia ada, setiap orang yang bersalah akan menerima hukuman yang setimpal dengan bentuk kesalahan yang dilakukan. Mahkamah hendaklah menjatuhkan hukuman menurut undang-undang untuk menentukan supaya hukuman yang dikenakan terhadap pesalah itu adil, bersesuaian dan setimpal dengan apa-apa kesalahan yang dilakukannya itu. Adalah juga menjadi prinsip undang undang yang mantap bahawa Mahkamah yang mendengar rayuan tidak seharusnya campur tangan dengan hukuman yang dikenakan oleh hakim perbicaraan dan selalunya tidak akan menukar hukuman melainkan ianya berpuas hati bahawa hukuman yang dijatuhkan oleh hakim berkenaan itu ternyata amat tidak memadai atau mencukupi atau keterlaluan atau tidak sah atau pun tidak merupakan hukuman yang wajar memandangkan semua fakta yang didedahkan, atau bahawa Mahkamah tersebut jelas tersalah didalam memakai prinsip yang betul dalam penilaian hukuman.” [30] The landmark decisions in Bhandulananda Jayatilake v. PP [1981] 1 LNS 139 and Dato' Seri Anwar Ibrahim v. PP [2002] 3 CLJ 457 which have been followed by the Courts time and again, for instance, the Court of Appeal in PP v. Ling Leh Hoe [2015] 4 CLJ 869 reiterated the same principle and held: "[14] The appellate Court can and will interfere in the sentence imposed by the lower Court if it is satisfied that any of the following four grounds are made out: (a) The sentencing judge had made a wrong decision as to the proper factual basis for the sentence; (b) There had been an error on the part of the trial judge mis appreciating the material facts placed before him;

(d) The sentence was wrong in principle; or The sentence imposed was manifestly excessive or inadequate. (See R v. Ball [1951] 35 Cr App. R 164; Loo Weng Fatt v. Public Prosecutor [2001] 3 SLR 313 at para [65]; Public Prosecutor v. UI [2008] 4 SLR (R) 500). [15] In similar vein, the Court of Criminal Appeal in Dookes v. Director of Public Prosecutions [2010] SCJ 71 said at para 177: ... sentencing is not a science of mathematical application of any set formula. It is a normative science rather than a physical science which takes into account the circumstances of the offender as well as the offence and the impact of the offence on the community. A sentence may look to be lenient because it is tailored to fit the offender, the offence and the offended but, in our system of justice, the trial court is the only constitutional institution which is empowered and sovereign in determining which sentence to impose on an offender on the facts of the particular case. An appellate court would scarce intervene unless the sentence is wrong in principle or manifestly 10 [2024] CLJU 1690 Legal Network Series harsh and excessive or unduly lenient. However, even if there is nothing wrong with the principle, the sentence may be increased by the appellate Court if it is unduly lenient. The principle of proportionality pervades through the whole system of justice, in procedure, substance and sanctions." [31] Bearing the above principles in mind, the Court now deals with the arguments raised by both parties. THE COURT ANALYSIS

COMPLIANCE OF SECTION 31A OF THE DDA [41] The crux of the issue is on the application of section 31A DDA and the typical issue advanced by the accused: whether there was a reasonable ground that the accused committed an offence. The learned counsel for the accused argued that the learned Magistrate had failed to address his mind on this critical issue, as seen in the Magistrate's judgment. [42] For ease of reference, section 15(1)(a) and section 31A DDA are reproduced as follows: Section 15 "Examination of arrested person by a medical officer

(1) When any person is arrested on a charge of committing an offence against this Act —

which is of such a nature; or

which is alleged to have been committed under such circumstances, as give reasonable grounds for believing that an examination of this person will afford evidence as to the commission of an offence against this Act, it shall be lawful for a medical officer acting at the request of any police officer not below the rank of Sergeant, or any other officer in charge of a police station, or any officer of customs, and for any person acting in aid of a medical officer and under his direction, to make such an examination or examinations of the person arrested as may be reasonably necessary in order to ascertain the facts which may afford such evidence, and to use or cause to be used such force as may be reasonably necessary for that purpose.

For the purpose of preservation of evidence, it shall be lawful for a police officer not below the rank of Sergeant or any officer of customs to require an arrested person to provide a specimen of his urine for the purposes of an examination under subsection (1) if it is not practicable for the medical officer or the person who is acting in aid of or on the direction of a medical officer to obtain the specimen of the urine within a reasonable period." [43] Having perused the Magistrate's decision, this Court found in paragraph 20 of the judgment that the Magistrate had briefly stated that section 31A DDA had been complied with. The Court also noted that based on the record of appeal, the defence counsel in the trial did not raise the issue of whether the accused was arrested before he gave the urine. Hence, this may explain the Magistrate's lack of reasoning on this critical issue, perhaps thinking that it was a non-issue before the Magistrate. [44] Nevertheless, in a case involving a question of fact such as the instant case and there is a lack of finding by the Magistrate appearing in the appeal record, this Court has the duty to review or re-evaluate the evidence adduced before the trial Court as decided by the Federal Court in Ahmad Najib bin Aris v PP [2009] 2 MLJ 613 where Zulkefli FCJ delivering the judgment of the Court held: POWER OF APPELLATE COURT TO REVIEW OR TO RE-EVALUATE ALL AVAILABLE EVIDENCE [20] As regards the first main ground of appeal raised by the appellant, I am of the view that the Court of Appeal has the power to review or to re-evaluate all the evidence available as adduced by the prosecution. The Court of Appeal is in a position to do so in the present case even though the grounds of decision of the trial judge as appearing in the appeal records is found lacking in specific findings and with no reasons for the findings. In a case involving purely a question of fact, the Court of Appeal is free to determine whether or not the various findings of the trial court are correct (see Mohamed Mokhtar v Public Prosecutor [1972] 1 MLJ 122). In the present case even though the Court of Appeal took the view that the High Court judgment was of no assistance, it nevertheless had considered and subjected all the evidence adduced by the prosecution to a critical re-examination. The Court of Appeal had given sound reasons as to why the evidence was admitted and how it had implicated the appellant. There was no miscarriage of justice against the appellant as the Court of Appeal's decision was based on evidence adduced from the witnesses called by the prosecution as appearing in the appeal records. I am therefore of the view that the Court of Appeal did not err on this issue. [45] Further, in Public Prosecutor v Azilah Bin Hadri & Anor [2015] 1 MLJ 617, the Federal Court, in line with Ahmad Najib bin Aris, made the judicial proposition that an appeal is a continuation of the proceeding by way of a rehearing where the Federal Court held: [102] We hold the view that even if the trial judge had failed to mention of any evaluation of common intention in his written grounds of judgment, the Court of Appeal, which in law reheard the case when exercising its appellate function, was empowered and also duty bound to carry out an evaluation exercise to determine whether common intention did exist. Here the Court of Appeal equally failed to do that. An appeal is a continuation of proceedings by way of rehearing and an appeal court may subject the evidence to a critical re-examination (Ahmad Najib bin Aris v Public Prosecutor [2009] 2 MLJ 613; Mohamad bin Deraman v PP [2011] 3 MLJ 289). (emphasis added) [46] The above Federal Court decisions were followed by the Court of Appeal recently in Mohd Sukri Abdul Rasid v Pendakwa Raya [2021] 1 LNS 2499. [47] Now, let us look at the evidence based on the record of appeal that may shed light on when PW4 arrested the accused. The defence counsel cross-examined PW4, and the line of questioning and answers, in particular regarding the arrest, are reflected as follows: Q : Secara spesifiknya pada perenggan 3. Tuan Sofi pada perenggan 3 ini menyatakan bahawa Tuan Sofi bersama dengan sepasukan telah tahan 1 lelaki Melayu iaitu OKT di perkarangan balai polis Gombak. Boleh ceritakan pada Mahkamah bagaimana penahanan ini dibuat? A:Yang Arif, bertindak atas maklumat saya bersama sepasukan anggota telah pergi ke perkarangan balai polis Gombak untuk tahan 1 lelaki Melayu kerana disyaki terlibat dengan penyalahgunaan dadah dan setelah mendapat arahan tersebut, saya bersama pasukan anggota terus bergerak dan tahan suspek di kawasan hadapan balai polis IPD Gombak. (Refer to Record of Appeal 2(a) on page 63) Q: Ada gari OKT? A: Iya. Selepas ditahan dan diperiksa saya arahkan anggota untuk gari OKT untuk dibawa ke pejabat Narkotik IPD Gombak. Q: Gari dekat mana? Dekat kaunter juga? A: Iya. (Refer to the Record of Appeal 2(a) on page 66) [48] The Court of Appeal in PP v Mohd Safwan bin Husain [2017] 5 MLJ 255 had extensively articulated the scope and application of section 31A of the DDA, where the pertinent judicial proposition on the concept of constructive arrest applies to section 31A of the DDA. Other than that, the Court of Appeal also decided that whether there was an arrest would depend on the facts and circumstances of each case. [49] In PP v Mohd Safwan bin Husain (supra), the facts show that the accused was a police officer who was also charged in the magistrate court for the offence of consumption of dangerous drugs (Methamphetamine) under the same section 15(1)(a) of the DDA. The Magistrate acquitted the accused at the end of the prosecution case. The High Court dismissed the prosecution's appeal as the accused was not a "person arrested" within the meaning of Section 31A of the DDA. The High Court also held that the meaning of arrest in Section 31A of the DDA did not include constructive arrest. The Court of Appeal set aside the High Court's decision and reinforced the principle of constructive arrest. [50] However, in this instant case, the evidence is more substantial as the case did not involve a constructive arrest. Instead, the case relates to an actual arrest. The accused was arrested on suspicion of drug abuse. During the cross-examination of PW4 by the defence counsel, PW4 was asked on this point, and the notes of the proceeding show as follows: Q : Boleh terangkan pada mahkamah maklumat ini diperolehi daripada mana? PW4: Semasa penahanan tersebut dibuat PDRM Narkotik khususnya telah menjalankan 1 operasi khas yang disebutkan sebagai OPS Devil khas untuk menahan sesiapa sahaja ataupun anggota yang disyaki terlibat dalam penyalahgunaan dadah ini utk ditahan dan diperiksa dan maklumat penahanan tersebut telah disampaikan oleh Ketua Bahagian Narkotik IPD Gombak untuk menahan dan memeriksa suspek. Q : Dan saya cadangkan nama OKT ada dalam maklumat tersebut? Secara spesifiknya secara tertulis? PW4: Saya yang arif Q : Ini bermaksud ketika penahanan itu dibuat, dah ada pengetahuan bahawa OKT melakukan kesalahan. Macam itu? PW4 : Setuju yang arif [51] In this appeal, the counsel for the accused argued that the prosecution failed to call the Head of the Narcotic Division, IPD Gombak, as the prosecution witness. The counsel argued that the prosecution ought to call the Head of the Narcotic Division to verify the fact that there was a valid suspicion of drug abuse against the accused. The learned counsel urged this Court to follow the decision in Khairuddin bin Abu Hassan v Wan Aedil bin Wan Abdullah & Ors [2022] MLJU 2052. Upon analysing the decision, it appears that the case involves a civil matter and has no application to the facts of the instant case. Hence, the counsel's argument lacks any merit for the Court to consider. [52] Further, the irony of the counsel's argument is that the suspicion of the accused involved in drug abuse turns out to be true. It is evident from the traces of the drug found in the urine test. Thus, the Court cannot see the basis of the counsel's argument for the need to call the Head of Narcotic Division as even without his evidence, the clear evidence of the drugs could implicate the accused with the offence. In other words, the prosecution had satisfied the critical ingredient of the offence. [53] The evidence by PW4 proved an actual arrest in compliance with section 33A(1) DDA. Therefore, the learned counsel's argument on this point is devoid of merit. No break in the chain of evidence [54] PW3 brought the accused to the Pejabat Narkotik IPD Gombak for a urine test. The accused was given the choice of picking up one of the five sealed packets. [55] The accused chose a bottle marked as P7 with the serial number SN: 0175920. PW4 then tore open the plastic packet in front of the accused and gave it to the accused. PW4 had written down the accused's name on P7, and the accused was given a form, "Borang Akuan Pemberi Air Kencing", to acknowledge receipt of the bottle, and the accused had signed the form. [56] After that, PW4 instructed PW2 to bring the accused to the men's washroom in the said office for the accused to urinate in P7. PW2 witnessed the accused urinating in P7. PW2 instructed the accused to close P7, bring P7, and place it on a table. [57] PW4 dipped five test strips into the bottle containing the Respondent's urine. PW4 found that the test strip turned positive for Methamphetamine. [58] PW4 showed the result to the accused, and the accused understood it. PW4 asked the Respondent to close the bottle with the cap. PW3 sent the accused's urine specimen to the Jabatan Patologi Hospital Kuala Lumpur. Puan Siti Fatimah Binti Ngadi (Pegawai Sains Kimia Hayat) confirmed the urine contained Methamphetamine as in her report marked as P1. [59] The above evidence clearly shows that there was no break in the chain of evidence, as argued by the learned counsel for the accused. Identity of the exhibit (urine bottle) by PW4 [60] In her written supplementary submission, the learned counsel argued that PW2 did not identify the urine bottle before the Magistrate. The learned counsel referred to the decision in PP v Cheah Soo Tatt [2018] 5 LNS 264 and stated that it was a decision by the Federal Court. [61] Upon perusal of the counsel's Bundle of Authorities, the so-called quotation of the Federal Court's decision was indeed part of the Magistrate's decision. The learned counsel had blatantly quoted the Magistrate's decision, which was unreasonable. [62] Notwithstanding that, PW4 had identified the exhibit (the urine bottle) in the trial, and his evidence was sufficient and material to the case. Therefore, the Court viewed that the non-identification of the urine bottle by PW2 was not equivalent to a break in the chain of evidence. Urine bottle with sealed no. SN: 0175920 [63] The counsel also argued that there was a doubt regarding the serial number of the urine bottle. PW2 (the escort police officer) gave contradicting evidence to PW4. [64] This Court had sifted the documentary exhibits P5 and P8, and based on the photos marked as P6(a)-(c), the serial number of the bottle was SN0175920, which was consistent with the evidence given by PW4. [65] PW2 was the escort police officer who witnessed the taking of urine by the accused. During the cross-examination by the defence counsel, PW2 quoted the serial number 1975920 as the urine bottle. But the defence counsel did not challenge this. [66] As the material evidence, in this case, shows that the serial no. of the urine bottle was SN0175920, as testified by PW4 and supported by P5, P6(a)-(c) and P8, there is no doubt in the serial number of the accused's urine bottle. The presumption under section 37(k) DDA [67] The Magistrate was correct in invoking the presumption under section 37(k) DDA as stated in paragraph 18 of his judgment where it is stated "18. Section 37(k) DDA 1952 allows the Court to presume that if drugs were found in urine samples of a suspect, under Section 31A of DDA 1952, the suspect is deemed to have taken dangerous drugs to be administered in himself until it is proven otherwise." [68] Clearly, the Magistrate was correct in his judgment that, based on the overwhelming evidence and no evidence adduced by the defence to challenge the prosecution's case, the defence failed to rebut the presumption. Selayang police report 028015/19 marked as IDD 11 [69] Counsel for the accused raised another argument regarding IDD11, the Selayang Police Report no. 028015/19, where the Magistrate failed to consider the police report. In the report, the accused, in his witness statement, stated that he made a police report because he signed the statement admitting that the accused had administered the drug into his body, which he claimed was falsely recorded. Regrading the police report, the notes of proceeding show as follows: PB: Dengan izinnya (Inaudible)Tuan Majistret. Puan DPP tadi ada sentuh mengenai polis report,boleh saya tanya polis report sebagai exhibits rujukan. MAH : (Mengangguk) Ini report (Inaudible)kan? PB : Ya. MAH : Tidak apa,report kepada(Inaudible) IBD 11. Ada soalan lagi? PB : Itu sahaja Tuan. MAH : Ok.Ini sahaja ya untuk saksi. SD 1 pulang ke dalam kandang. En. Hamkar boleh ke belakang.Ok,ada berapa orang lagi saksi Dato? [70] The Court had considered the counsel's argument and found no merit to justify this Court's intervention on this ground. There was no challenge made by the defence counsel to mark the document as D11. The document was marked as IDD11 and carried no weight for the Magistrate to consider. The position was the same as when this Court heard the appeal. [71] Another point raised by the accused was the allegation that there were no traces of the drug found in his urine after another random check was done on the instruction of the Head of the department at his office subsequently. It was of no significance to the case because the accused failed to rebut the clear evidence of the drug found in his urine on the day on which he was implicated per the charge. Cross-appeal by the prosecution on sentencing [72] In summary, having evaluated the considerations above, the Court believes that the sentence of RM4000 and, in default six months in jail and subject to the supervision order for two years rightfully reflects the pertinent sentencing elements. The sentence meted out by the Magistrate was proportionate and fair in light of the facts of the case. CONCLUSION [73] Analysing the evidence in totality, the Magistrate was correct in his decision. Therefore, there is no justification for this Court to intervene. [74] The Court affirmed the Magistrate's decision on the conviction and sentence and dismissed the appeals by both parties.