Pendakwa Raya v Mohamad Hafizi Bin Saad (JA-41LB-3-06/2025)

The Public Prosecutor (“the Appellant”) brings this appeal against the whole of the decision of the learned Magistrate who on 25.6.2025 acquitted and discharged the Respondent, Mohd Hafizi bin Saad, without calling upon him to enter his defence, on a charge under section 15(1)(a) of the Dangerous Drugs Act 1952 (“DDA 1952”).

I have considered the Record of Appeal, the Written Submissions of the Appellant dated 13.11.2025, the Written Submissions of the Respondent dated 24.11.2025, the Reply Submissions of the Appellant dated 3.12.2025, the Grounds of Judgment of the learned Magistrate filed on 29.8.2025, the oral submissions of counsel on 18.12.2025 and the authorities cited by both parties. Having done so, and for the reasons that follow, I find that the appeal discloses no ground that warrants appellate intervention. The appeal is accordingly dismissed and the decision of the learned Magistrate is affirmed.

These are the full written grounds in support of the Court’s decision.

The charge against the Respondent, as framed before the learned Magistrate, reads as follows:

“BAHAWA KAMU PADA 09/05/2023, JAM LEBIH KURANG 20 PETANG, BERTEMPAT DI PEJABAT JSJN IPK JOHOR, DI DALAM DAERAH JOHOR BAHRU, DI DALAM NEGERI JOHOR, DIDAPATI KAMU MEMASUKKAN KEPADA DIRI SENDIRI DADAH BERBAHAYA JENIS AMPHETAMINE DAN METHAMPHETAMINE KE DALAM BADAN KAMU SENDIRI OLEH YANG DEMIKIAN KAMU TELAH MELAKUKAN SATU KESALAHAN DI BAWAH SEK 15(1)(a) ADB 1952 DAN KAMU BOLEH DI HUKUM DI BAWAH SEKSYEN YANG SAMA. HUKUMAN SEK 15(1)(a) ADB 1952 DENDA TIDAK MELEBIHI LIMA RIBU RINGGIT (RM5000/-) ATAU PENJARA TIDAK MELEBIHI DUA TAHUN DAN PERINTAH PENGAWASAN TIDAK KURANG 2 TAHUN DAN TIDAK LEBIH 3 TAHUN.” [5] The Respondent, who at all material times was a senior police officer holding the rank of Inspector and serving as an investigating officer in the Narcotics Criminal Investigation Division of the Muar District Police Headquarters (IPD Muar), claimed trial. The offence was alleged to have been committed on 9.5.2023 at approximately 2.20 pm at the premises of the Narcotics Criminal Investigation Department (JSJN) under the Johor Police Contingent Headquarters (IPK Johor) in Johor Bahru. THE FACTS The Prosecution Case [6] The prosecution called five witnesses. SP1 was Sherin Hazlinda binti Semen, a Medical Laboratory Technologist at the Hospital Sultanah Aminah Johor Bahru (“HSAJB”) with thirteen years’ experience. SP2 was ASP Khuzir bin Abdul Majid, the arresting officer. SP3 was Mohd Yusfairuz bin Mohd Pilus, a Science Officer at the Pathology Department. SP4 was Sergeant Muhamad Adib bin Mohd Nor, the escorting officer, and SP5 was ASP Hisam bin Abu, the investigating officer. [7] The prosecution’s case, as summarised from the evidence adduced, was as follows. On 9.5.2023 at approximately 1.50 pm, SP2, accompanied by Sarjan Muhammad Adib bin Mohd Nor (“Sarjan Adib”), Kop Syafiq and LK Rhash, was at the intelligence operations and detention office of JSJN IPK Johor. SP2’s evidence is that he detained a Malay male who had arrived at the said office and identified himself as a senior police officer holding the rank of ASP and serving as ASP Operations JSJN Johor. SP2’s evidence is also that the Respondent was an ASP (actually an Inspector) serving as an investigating officer in the Narcotics Criminal Investigation Division of IPD Muar. SP2’s evidence in chief at the Magistrates’ Court, as recorded in the Notes of Evidence, was as follows: “Pada 9.5 2023, jam lebih kurang 1.50 petang saya bersama Sarjan Adib, Kop Syafiq dan LK Rhash, semasa berada di pejabat riskan operasi JSJN IPK Johor, telah menahan satu lelaki melayu yang hadir di risikan operasi dan tahanan JSJN Johor dan saya telah perkenalkan diri saya sebaga pegawai kanan polis berpangkat ASP, bertugas sebagai ASP Operasi JSJN Johor pada lelaki melayu tersebut. Setelah itu saya meminta butir pengenalan diri lelaki melayu tersebut, lelaki itu berikan butiran dapati beliau bernama Hafizi Bin Saad merupakan seorang pegawai kanan polis berpangkat ASP bertugas sebagai pegawai penyiasat bahagian siasatan jenayah narkotik IPD Muar. Saya telah menerangkan kepada Mohd Hafizi bahawa saya diarahkan oleh pihak atasan untuk mengambil sampel urin beliau dan Mohd Hafizi menggangguk faham ...” [8] SP2 then conducted a preliminary urine screening test (the “saringan awal”) at the said office. SP2 testified that the urine sample obtained filled approximately two-thirds of the bottle, which he estimated to be approximately 30 ml. The test was positive for Methamphetamine. It was only after the urine sample tested positive that SP2 arrested the Respondent. This is confirmed by the police report (Exhibit P9, Report No. Taman Pelangi/005996/23) lodged by SP2. [9] The urine sample was collected in one bottle, which bore the serial number D0104825. SP2 applied seals to the bottle, which according to his written statement, these comprised red, blue and white PDRM stickers and a red wax seal, and the Respondent signed the label affixed to the bottle by SP2. The bottle was marked as Exhibit P5. [10] On 10.5.2023 at approximately 10.30 am, SP1 received from ASP Hisam bin Abu of IPD Johor Bahru Selatan one bottle of urine and one set of forms for the Drug Detection Test in Urine (Borang UPD, Exhibit P1). SP1 confirmed the urine bottle was in the name of Mohamad Hafizi bin Saad (NRIC: 890407-09-5097), with the sample collection date and time recorded as 9.5.2023 at 2.20 pm. SP1 noted the bottle had serial number D0104825 and that upon receipt the bottle contained an estimated 45 ml of urine and the seal was intact. SP1 assigned a laboratory barcode

to the items and handed the sample over to SP3 for analysis. [11] SP3, the Science Officer, conducted an immunoassay screening test, which was positive for Amphetamine Type Stimulant (ATS), and thereafter conducted confirmatory testing on the urine sample (Exhibit P5, Pathology Report No. 10546538). Upon analysis, SP3 found the sample to contain both Amphetamine and Methamphetamine, both of which are dangerous drugs listed under Part III of the First Schedule to the DDA 1952. The pathology report (Exhibit P3) was tendered in evidence during SP3’s testimony. The Defence Case at the Close of the Prosecution Case [12] The Respondent did not adduce any evidence at the close of the prosecution case, having been acquitted without being called to enter his defence. The defence case as articulated in the written submissions of the Respondent before the learned Magistrate was as follows. The defence challenged the prosecution case on three principal grounds: first, that the Respondent was not an “arrested person” within the meaning of section 31A(1A) of the DDA 1952 at the time the urine sample was taken, rendering the evidence unlawfully obtained; second, that the identity of the urine bottle was doubtful owing to material discrepancies in the evidence; and third, that the prosecution witnesses were not credible. The Learned Magistrate’s Key Findings [13] The learned Magistrate delivered her decision on 25.6.2025. After applying the test in Balachandran v PP [2005] 1 CLJ 85 and Looi Kow Chai & Anor v PP [2003] 1 CLJ 734, the learned Magistrate found that the prosecution had failed to establish a prima facie case against the Respondent and accordingly acquitted and discharged him. The learned Magistrate’s principal findings were as follows. [14] First, as to the “arrested person” requirement under section 31A of the DDA 1952, the learned Magistrate found, on the basis of SP2’s own evidence and the contents of the police report P9, that the Respondent had not been arrested before the urine sample was taken. The learned Magistrate at paragraph [21] of the grounds of judgment quoted SP2’s evidence and the police report, which stated: “Hasil ujian yang dijalankan mendapati sampel urin yang diberikan Mohd Hafizi positive dadah jenis Methamphetamine. Kemudian saya memberitahu Mohd Hafizi bahawa kandungan ada Methamphetamine ini merupakan satu kesalahan yang boleh diadakwa di bawah Seksyen 15 dan Mohd Hafizi faham. Kemudian, saya menjalankan tangkapan dengan membuat satu laporan polis.” [15] The learned Magistrate found this to be clear evidence that the arrest was effected only after the preliminary screening test returned a positive result, meaning the Respondent was not an “arrested person” at the time the urine sample was required of him. Accordingly, the requirement in section 31A(1A) of the DDA 1952, which governs the power to require an arrested person to provide a urine specimen, had not been complied with. [16] Second, as to the identity of the urine bottle (Exhibit P5), the learned Magistrate identified the following discrepancies in the prosecution evidence: a) conflicting evidence on the volume of urine in the bottle (SP2 estimating approximately 30 ml at collection while the pathology report (Exhibit P3) recorded 40 ml remaining after analysis); b) a discrepancy in SP2’s evidence concerning the PDRM serial number of the seal affixed to the bottle; c) conflicting evidence between SP2 and SP5 as to which of them had affixed the red wax seal, while the physical bottle in court displayed only one such seal; and d) the preliminary screening test conducted by SP2 detected only Methamphetamine, whereas the pathology analysis by SP3 detected both Amphetamine and Methamphetamine, with no explanation offered for this discrepancy. [17] Third, as to the credibility of the prosecution witnesses, the learned Magistrate found material inconsistencies in their testimony. SP2’s name was spelled differently across three documents he had himself prepared: P9 recorded the name as “ASP Khuzir Bin Abdul Majid”, P1 as “ASP Khuzir Bin Abdul Majit”, and P10 as “Khuzir Bin Abd Majit”. The learned Magistrate found it anomalous for an individual to spell his own name inconsistently across official documents, and this raised a question mark over the reliability of the prosecution evidence. Additionally, SP2 and SP4 gave conflicting accounts of their respective positions during the urine screening test. SP2 stated that all three (SP2, SP4 and the Respondent) were facing a chair, while SP4 said that SP2 and SP4 were beside the chair. When SP5 (the investigating officer) was asked about the investigation he conducted regarding their positions, SP5 was unable to provide a satisfactory answer and appeared to avoid answering. THE ISSUES [18] The Appellant’s petition of appeal raises eight grounds, which this Court has regrouped into three principal issues for analytical clarity: a) Issue 1: Whether the learned Magistrate erred in finding that the Respondent was not an “arrested person” within the meaning of section 31A(1A) of the DDA 1952 at the time the urine sample was taken, and in finding a consequential breach of sections 31A(1) and 31A(1A) of the DDA 1952. This encompasses grounds (i), (ii) and (iii) of the petition. b) Issue 2: Whether the learned Magistrate erred in finding doubt as to the identity of the urine bottle, in placing the wrong burden on SP3 to explain the discrepancy between the preliminary screening and the pathology results, and in finding that there may have been interference with the volume or contents of the urine sample. This encompasses grounds (iv),

and (vi) of the petition. c) Issue 3: Whether the learned Magistrate erred in finding the prosecution witnesses to lack credibility, including in treating the discrepancy in SP2’s name across the official documents as a material inconsistency. This encompasses grounds (vii) and

(viii) of the petition. LEGAL ANALYSIS The Appellate Standard [19] The appellate function in this matter is to review, not to retry. An appellate court will not disturb a trial court’s findings of fact unless there are substantial and compelling reasons to do so. In PP v Jarizal Jasni [2023] 8 CLJ 951, the High Court (per Noorin Badaruddin J, as she then was) affirmed at paragraph [42] that “an appellate court should be slow in interfering with the trial court’s findings of fact.” The present appeal is substantially factual. The question this Court must ask is not whether it would have reached the same conclusion, but whether the findings of the learned Magistrate were open to her on the evidence and disclose any reviewable error. [20] The standard at the close of the prosecution case is that in Balachandran v PP (Federal Court), as applied in Looi Kow Chai & Anor v PP (Court of Appeal). The test requires the trial judge to subject the prosecution evidence to maximum evaluation and to ask whether, if the accused were to remain silent upon being called to enter his defence, a conviction could safely be recorded on the totality of the prosecution evidence. If there is any reasonable doubt at this stage, no prima facie case is made out and an acquittal must follow. As stated in Balachandran: “A prima facie case is therefore one that is sufficient for the accused to be called upon to answer. This in turn means that the evidence adduced must be such that it can be overthrown only by evidence in rebuttal... Since the court, in ruling that a prima facie case has been made out, must be satisfied that the evidence adduced can be overthrown only by evidence in rebuttal it follows that if it is not rebutted it must prevail. Thus if the accused elects to remain silent he must be convicted. The test at the close of the case for the prosecution would therefore be: Is the evidence sufficient to convict the accused if he elects to remain silent? If the answer is in the affirmative then a prima facie case has been made out. This must, as of necessity, require a consideration of the existence of any reasonable doubt in the case for the prosecution. If there is any such doubt there can be no prima facie case.” [21] This standard was correctly identified and applied by the learned Magistrate at paragraphs [12]–[16] of her grounds of judgment. Issue 1: The “Arrested Person” Requirement under Section 31A DDA 1952 Grounds (i), (ii) and (iii) of the Petition [22] The Appellant contends that the learned Magistrate erred in finding that the Respondent was not an “arrested person” before his urine sample was taken, and in concluding that section 31A of the DDA 1952 had not been complied with. The Appellant submits that SP2’s act of detaining (“menahan”) the Respondent and explaining to him the purpose of the urine test amounted to a constructive arrest, relying primarily on PP lwn Mohd Safwan Husain [2017] 7 CLJ 685 (Court of Appeal, per Ab Karim Ab Jalil JCA). The Respondent, on the other hand, submits that no arrest, whether actual or constructive, had been effected at the time the urine sample was obtained, and that the evidence of SP2 and the contents of the police report P9 are conclusive to that effect. Section 31A of the DDA 1952, so far as material, provides: “31A. Examination of arrested person by a medical officer. 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 his 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 an 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.” [23] It is well established that the phrase “an arrested person” in both subsection (1) and subsection (1A) is a pre-condition to the lawful exercise of those powers. This was the position of the High Court in PP v Jarizal Jasni at paragraph [22]: “Arrested person appears to be a pre-condition to sub-ss. 31A(1) and 31A(1A) of the DDA.” [24] Before turning to the facts, it is necessary to examine the legal principle established in PP lwn Mohd Safwan Husain, which forms the foundation of the Appellant’s argument. The Court of Appeal in that case, through the judgment of Ab Karim Ab Jalil JCA, declined to apply the strict dichotomy of “actual” versus “constructive” arrest, finding the use of such concepts inaccurate and unfortunate in resolving the issue. The Court stated that the determination of whether there has been an arrest, whether for the purpose of section 37A or section 31A of the DDA, depends purely upon the facts and circumstances of each case, and that the word “arrest” carries the same meaning across both provisions. The Court further held that while section 31A does not itself confer a power of arrest, the power of arrest resides in section 31 of the DDA 1952 which allows a police officer to arrest without warrant any person whom he reasonably believes to have committed or to be committing an offence under the Act, and that information received by the police may therefore be placed before the Court as evidence to resolve the question of arrest. These principles are not in dispute in the present appeal. The Respondent does not challenge this fact-sensitive approach to determining an arrest; the dispute is whether, on the facts of the present case, any arrest had in fact occurred before the urine sample was taken. [25] The facts in Mohd Safwan Husain are material to the present inquiry because they explain why the Court of Appeal in that case reached the conclusion that an arrest had taken place. In Safwan, the police had acted on prior intelligence that specifically identified the respondent, a support police officer, as a person suspected of drug abuse at Kuala Perlis Police Station, where he was on duty. Before proceeding to the station, SP2 had telephoned to confirm that the respondent was on duty on the day in question. Upon arrival, SP2 and his team identified themselves, informed the respondent that he was suspected of drug abuse, and escorted him personally to the toilet for the purpose of providing a urine sample. The police report in that case indicated that the police had acted based on information received relating to a police officer involved in drug abuse activity, and the Court of Appeal found that the respondent’s freedom had been curtailed and that he had been compelled to comply with the officers’ demands. In those circumstances, the Court of Appeal held that the respondent in Safwan was, on the particular facts, “sudah pun ditangkap bagi maksud s. 31A(1A) ADB 1952” at the time his urine sample was taken. The decision in Safwan was thus firmly grounded in the specific factual matrix of a targeted, intelligence-driven operation directed at a named individual suspected of an existing offence. [26] The critical factual distinction between Safwan and the present case was correctly identified and applied by the learned Magistrate. The present case bears none of the defining characteristics that led the Court of Appeal in Safwan to find an arrest. SP2’s own evidence at trial and the contents of the contemporaneous police report P9 establish, without ambiguity, that no arrest had been effected before the urine sample was obtained from the Respondent. On 9.5.2023 at approximately 1.50 p.m., SP2, together with Sarjan Adib, Kop Syafiq and LK Rhash, was at the surveillance operations office (“pejabat riskan operasi”) of JSJN IPK Johor. SP2 in his evidence in chief testified that had stopped a Malay male present at the JSJN Johor surveillance operations and detention facility, identified himself as a senior police officer holding the rank of ASP, and thereafter asked the individual for his particulars. SP2 stated that the individual identified himself as the Respondent, Mohd Hafizi Bin Saad, a senior police officer of the rank of ASP serving as an investigating officer in the Narcotics Criminal Investigation Division at IPD Muar. SP2 then informed the Respondent that he had been directed by his superiors to take the Respondent’s urine sample, and the Respondent nodded in understanding. The urine screening test was subsequently conducted, returned a positive result for methamphetamine and only then was the Respondent arrested. SP2’s police report P9 recorded this sequence in the following terms: “HASIL UJIAN SARINGAN AWAL DAPATI PENAMA POSITIF DADAH JENIS METH. SETERUSNYA SAYA BERTINDAK MENANGKAP PENAMA UNTUK TINDAKAN LANJUT.” [27] This contemporaneous official document is decisive. It records, in SP2’s own words, that the arrest of the Respondent followed upon the positive screening result and did not precede it. There is no basis upon which the sequence of events can be read differently. [28] The factual matrix of the present case closely mirrors that in PP v Jarizal Jasni. In Jarizal, the respondent had been directed to provide a urine sample in the course of a police raid. SP2 had testified in cross-examination that arrest would only occur if an offence were detected: “PB: Setuju saya cadangkan pemeriksaan itu bukan tangkapan. Periksa dahulu tangkap kemudian? SP2: Ya, bila ada kesalahan baru kita tangkap” [29] The finding of the Magistrate in Jarizal that no arrest had yet taken place at the time the respondent’s urine sample was collected was further corroborated by SP2’s police report in that case, which stated that the respondent was arrested only after his urine was found to contain drugs, the wording of which is in all material respects identical to that of P9 in the present case. The High Court Court in Jarizal held at paragraphs [27] to [30] that the respondent could not be said to have been constructively arrested merely because he was escorted to the washroom by SP4, since “the facts and circumstances of the case did not reveal that this is a situation where the police had suspected the respondent or any of the 143 individuals at the premise having already consumed drugs.” The High Court held that this was a random examination conducted by the police during a raid and that arrest would only take place if evidence of an offence under section 15(1)(a) of the DDA had been obtained. The respondent in Jarizal was only suspected of having committed an offence against the DDA after he had given his urine sample, and the arrest followed thereafter. The High Court affirmed the acquittal. [30] On the facts of the present case, the evidence of SP2 in examination-in-chief and the contents of P9 tell materially the same story as in Jarizal. In cross-examination, SP2 confirmed the sequence of events without equivocation. The Respondent’s counsel put to SP2 that what in fact occurred was merely that the Respondent had been informed of a directive from his superiors for a urine test to be conducted and that he had cooperated, and SP2 replied: “Betul.” SP2 further confirmed, when referred to P9, that the arrest of the Respondent was made only after the screening test was conducted: “Kalau ikut repot betul la” and “Betul.” This unequivocal concession by the arresting officer is fatal to the Appellant’s argument. The Respondent’s act of nodding in understanding (“mengangguk faham”) when informed that SP2 had been directed by his superiors to take the urine sample does not transform what was in substance a pre-arrest investigative procedure into an arrest. It is trite that mere detention for enquiry, or an instruction to provide a urine sample for investigative purposes, does not constitute an arrest. An arrest occurs only when a police officer states in terms that he is arresting a person, uses force to restrain him, or by words or conduct makes it clear that he will use force to prevent the person from leaving: per Lord Devlin in Shaaban & Ors v Chong Fook Kam & Anor [1969] 1 LNS 170 (Privy Council), adopted in PP v Lim Hock Boon [2009] 3 CLJ 430 (Federal Court, per Nik Hashim FCJ). None of these elements was present on 9.5.2023 before the screening result was obtained. The learned Magistrate was therefore correct to find that the Respondent was not an “arrested person” at the time the urine sample was taken. [31] The Appellant further contends that even if there was a breach of section 31A(1A), the evidence obtained is not thereby rendered inadmissible. For this proposition the Appellant relies on PP lwn Mohd Safwan Husain, in which the Court of Appeal observed at paragraph [36] that section 31A does not contain any provision making evidence obtained in breach of its requirements inadmissible, and that this is in contrast to sections 113 of the Criminal Procedure Code and 37A of the DDA 1952, which expressly render certain evidence inadmissible. The Court in Safwan stated: “Harus juga dicatat lanjut bahawa s. 31A ADB 1952 tidak menyebut di mana-mana bahawa kegagalan untuk mematuhi kehendak di situ boleh membuatkan apa jua bukti yang diperoleh hasil daripada pemeriksaan yang dilakukan akan menjadi tidak boleh diterima sebagai keterangan (inadmissible). Ini berbeza dengan peruntukan s. 113 KPJ atau pun s. 37A ADB 1952 yang memperuntukkan dengan jelas bahawa percakapan tertuduh selepas ditangkap dan tanpa diberikan kata-kata amaran tidak boleh diterima sebagai keterangan (inadmissible).” [32] The Appellant argues on this basis that the common law principles permitting admission of illegally obtained evidence, as articulated in Kuruma v R [1955] AC 197, apply and preserve the admissibility of the urine sample evidence notwithstanding any breach. This submission, however, does not assist the Appellant. As correctly identified by the learned Magistrate, the Court of Appeal in Aizuddin Syah Ahmad v PP [2019] 3 CLJ 318 expressly held that a breach of section 31A(1A) of the DDA 1952 cannot be overcome by the principles set out in Kuruma v R, warranting the exclusion of the urine sample. Furthermore, the learned Magistrate’s decision was not premised solely on the inadmissibility of the urine sample; rather, it was also a holistic evaluation under which the breach of section 31A was one of several factors that, taken together, generated reasonable doubt in the prosecution’s case and precluded reliance on the statutory presumption under section 37(k) of the DDA 1952. [33] More fundamentally, the argument that Kuruma’s case preserves the admissibility of evidence obtained in breach of section 31A was considered and rejected by the Court of Appeal in Aizuddin Syah Ahmad. In that case, the Court of Appeal held that the Federal Constitution is supreme and that common law cases are subject to the Act as well as the Federal Constitution. The Court noted that the Constitution gives protection to the accused pursuant to Articles 5 and 8, which provide that no person shall be deprived of his life or personal liberty save in accordance with law, and that all persons are equal before the law and entitled to equal protection of the law. In terms that directly address the Appellant’s argument in the present case, the Court of Appeal held at paragraph [13]: “When an Act sets out a particular procedure, that procedure must be meticulously followed and common law cases cannot override the provision of the Act as well as the supremacy of the Constitution.” [34] The Court further held at paragraph [15] that: “a) In the instant case, it is not in dispute that there was a breach of s. 31A(1A) of DDA 1952. The said breach cannot be overcome by the principles set out in the common law case of R v. Karuma as well as R v. Sang. b) A provision of criminal statute must be strictly followed failure will amount to breach of rule of law. c) This is a fit and proper case for the urine sample to be excluded and/ or expunged from the evidence. By doing so, there will not be any incriminating evidence sufficient to convict the accused.” [35] This reasoning fortifies the approach of the learned Magistrate, who was right to regard the breach of section 31A as a matter of constitutional significance and not merely a technicl irregularity capable of being cured by the common law admission principles. [36] The Appellant relies on the principle of stare decisis as articulated in PP v Ahmad Saiful Islam Mohamad [2023] 2 CLJ 714 (Court of Appeal) and submits that the learned Magistrate was bound by the decision in Safwan as a decision of the Court of Appeal, and was not at liberty to depart from it. The Court of Appeal in Ahmad Saiful Islam stated the applicable principles at paragraph, including that courts below the Court of Appeal could not rely on the per incuriam rule applied by the Court of Appeal for itself but could choose between two conflicting decisions. However, while PP lwn Mohd Safwan Husain is a decision of the Court of Appeal, PP v Jarizal Jasni is a decision of the High Court. Therefore, the Magistrate was not choosing between two conflicting Court of Appeal decisions, but rather distinguishing Safwan based on the facts. On the present facts, Jarizal is the manifestly more apposite authority. The operational context in Safwan was a targeted, intelligence-based operation directed at a specifically identified and named suspect where the Court found the suspect was already arrested; the present case, like Jarizal, involved the examination of a person in circumstances where SP2’s own report confirms that the arrest followed the positive result. The learned Magistrate’s choice to apply Jarizal, on facts that are materially indistinguishable from that case regarding the timing of the arrest, was not an error of law. It was a proper application of the principle established in Safwan that the question of an arrest is determined by the particular facts and circumstances of each case. [37] For these reasons, Ground (iii), namely that the Respondent was not an “arrested person” within the meaning of section 31A(1A) of the DDA 1952 at the time his urine sample was taken, was correctly decided by the learned Magistrate on the evidence before her. The learned Magistrate committed no reviewable error in finding that the prosecution had failed to comply with the requirements of section 31A of the DDA 1952, and that the statutory presumption under section 37(k) of the DDA 1952 was consequently unavailable to the prosecution. Grounds (i), (ii) and (iii) are accordingly dismissed. Issue 2: Chain of Evidence and Identity of the Urine Bottle; the Drug Discrepancy Grounds (iv), (v) and (vi) of the Petition [38] The Appellant submits that the learned Magistrate erred in finding that the identity of the urine bottle was in doubt. The Appellant contends that all material witnesses, namely SP2, SP3 and SP5, positively identified the physical urine bottle Exhibit P5, and that any discrepancies in the evidence concerning the seal were minor and immaterial. The Appellant places particular reliance upon the testimony of SP3 who, when questioned about the contents of Exhibit P4, stated in examination-in-chief as follows: “Botol urin adalah atas penama Mohd Hafizi 890407-09-5097 tarikh spesimen dipungut 9.5.2023 pada jam 2.20 ptg. Spesimen ini telah diseal dengan sticker putih dan biru secara silang terdpat seal wax warna merah atas bahagian penutup botol.” The Appellant further contends that the Respondent himself had signed the label on the bottle, and that the Respondent did not at any point during trial challenge SP3’s evidence on identification. As regards the discrepancy in drug type, the Appellant submits that the difference between the preliminary screening result, which was positive for Methamphetamine only, and the pathology confirmation result, which was positive for both Amphetamine and Methamphetamine, is not material, and that the learned Magistrate erroneously imposed a burden upon SP3 to explain this difference when no such burden lay upon the prosecution expert. The Appellant accordingly submits that both Issues (iv) and (v) ought to be resolved in favour of the prosecution, and that the chain of custody (Issue (vi)) was at all material times unbroken. [39] This Court’s task on appeal is not to re-weigh the prosecution evidence afresh, but to determine whether the evaluation conducted by the learned Magistrate was one that was reasonably open to her on a maximum assessment of the prosecution case. The authority for this approach is well-established. At the close of the prosecution case, the Court is required to assess whether the evidence adduced, taken at its highest, would warrant a conviction if unrebutted or unexplained. Where the evidence gives rise to two or more inferences, and one of those inferences is consistent with innocence, the Court is obliged to adopt the inference more favourable to the accused. It is within that framework that this Court has examined the findings of the learned Magistrate. In approaching the submissions of both parties, this Court is mindful that the learned Magistrate had the advantage of observing the witnesses firsthand, and that appellate intervention is warranted only where the trial court has fallen into an error of law or has made a finding of fact that is plainly against the weight of the evidence. No such error has been demonstrated here. [40] The learned Magistrate identified four distinct evidentiary difficulties, each bearing upon the integrity of the chain of custody, and considered their cumulative effect. They are as follows: a) SP2 testified that the urine sample collected from the Respondent occupied approximately two-thirds of the bottle, which he estimated at approximately 30 ml. The pathology report (Exhibit P3), however, recorded that the bottle contained 40 ml of urine after analysis. This represents an anomalous increase of 10 ml in a single bottle said to constitute the central physical evidence of drug consumption. No explanation for this discrepancy was elicited from the prosecution witnesses at any point during the trial. b) Both SP2 and SP5 gave evidence suggesting that each of them had individually affixed the red wax seal bearing PDRM No. 642 to the urine bottle. Yet when Exhibit P5 was produced in court, only one red wax seal was visible, as confirmed by the photographs marked Exhibits P8(A)-P8(D). The learned Magistrate was entitled to regard this inconsistency, whereby two witnesses each claimed to have applied the same seal, yet only one seal appeared on the physical exhibit, as a matter that could not be dismissed as mere forgetfulness. No prosecution witness offered any coherent account to resolve this inconsistency. c) SP2’s name was spelled differently across three contemporaneous official documents which SP2 himself acknowledged having prepared. The police report P9 recorded the name as “ASP Khuzir Bin Abdul Majid”; the Borang Permintaan Ujian Pengesahan Dadah Dalam Air Kencing (UPD) P1 recorded it as “ASP Khuzir Bin Abdul Majit”; and the Borang Akuan Serah Terima Barang Kes P10 recorded it as “Khuzir Bin Abd Majit.” These are documents central to the prosecution’s case, prepared on or about the same date. The learned Magistrate regarded it as anomalous that a police officer would render his own name in three different spellings across documents prepared at or around the same time, and drew from this an adverse inference concerning the reliability of the documentation as a whole. d) The preliminary screening test conducted by SP2 on 9.5.2023, using a test strip method, detected only Methamphetamine in the Respondent’s urine. By contrast, the pathology confirmation analysis performed by SP3 (Mohd Yusfairuz bin Mohd Pilus, Pegawai Sains Kimiahayat C48, Jabatan Patologi, Hospital Sultanah Aminah, Johor Bahru) using the Gas Chromatography Mass Spectrometry method detected both Amphetamine and Methamphetamine in the same urine sample, Exhibit P5, bottle serial number SN:D0104825, as reflected in laboratory report no. 10546538 dated 16.5.2023. SP3 was not asked to explain this difference, whether by reference to the different sensitivities of the two methodologies, the chemical relationship between Amphetamine and Methamphetamine, or any other material reason. The learned Magistrate found that this unexplained discrepancy, considered alongside the other difficulties, raised a genuine question as to either the integrity of the sample or the accuracy of the results. [41] The Appellant invokes two recent authorities in support of the proposition that a difference between the preliminary screening result and the pathology confirmation result does not constitute a fatal discrepancy where both tests detect drugs within the same family. The first is Muhammad Hazarizi bin Hashim v PP [2025] CLJU 177, decided by the High Court at Muar (Suria Kumar a/l Durairaj Johnson Paul J). The learned Judge stated as follows: “[66] Whereas on the failure by the prosecution to explain the difference in the results of the preliminary test and the final analysis carried out by the chemist (PW5), I find there is no material discrepancy which is fatal to the prosecution’s case because the preliminary test results did show the accused urine to contain Methamphetamine whereas, in Azahari Abdul Wahab’s case (supra), the results of both tests showed two entirely different types of drugs. [67] In conclusion, there is no break in the chain of evidence and there is positive identification of the bottle containing the accused urine sample by PW2.” [42] The second authority invoked is Muhamad Shaharudin bin Shaik Alaudeen lwn Pendakwa Raya [2025] MLJU 2056 (High Court), relied upon for a similar proposition. This Court does not depart from the principles articulated in those cases. However, both authorities are distinguishable on their facts. In Muhammad Hazarizi, the discrepancy concerned the presence of the same substance, Methamphetamine, detected in both tests; the learned Judge expressly confined his finding to cases where no entirely different drug type was involved. In the present case, the preliminary test detected Methamphetamine only, whilst the pathology confirmation detected both Amphetamine and Methamphetamine, an additional substance not found in the preliminary screening. [43] Muhamad Shaharudin is similarly distinguishable, being a case in which both the preliminary test and the pathology analysis detected the exact same type of drug (THC), presenting a factual background materially different from that presented here. More significantly, neither case arose against the cumulative backdrop of the evidentiary difficulties identified by the learned Magistrate in the present matter, namely the volume discrepancy, the seal discrepancy, and the variable spellings of SP2’s name across contemporaneous documents. Those additional difficulties are absent from the decisions relied upon by the Appellant, and their presence in this case is what renders a different conclusion appropriate. Where the evidence is considered in its totality, the learned Magistrate was entitled to treat these cumulative deficiencies as undermining the reliability of the prosecution evidence as a whole. [44] The Appellant further contends that all three witnesses who handled the bottle, namely SP2, SP5 and SP3, positively identified Exhibit P5 as the Respondent’s urine bottle, and that the Respondent did not challenge SP3’s evidence on identification at trial. This Court has considered these points. They are not without force; it is correct that no challenge was mounted to SP3’s identification evidence, and it is correct that each of the handling witnesses was able to identify the physical exhibit in court. However, positive identification of a bottle does not resolve the underlying evidentiary inconsistencies as to what the bottle contained at each material point in the chain, or whether the sealing procedure was conducted correctly. The question before the learned Magistrate was precisely whether the bottle that arrived at court was the same bottle that SP2 had handled, a matter that was, in fact, fiercely disputed by the defence during the cross-examination of the investigating officer (SP5). The question was whether the chain of evidence from collection to analysis possessed the integrity required for a conviction to be safely founded upon the pathology results, in the absence of any defence from the Respondent. The Respondent’s failure to cross-examine SP3 on identification does not discharge the prosecution’s obligation to adduce credible and consistent evidence at each link in the chain. Given the cumulative nature of the discrepancies identified, the learned Magistrate’s conclusion that this obligation had not been met was one that was reasonably available to her on the evidence. [45] The Respondent submits, and this Court accepts, that the discrepancies identified by the learned Magistrate are not mere lapses of memory or trivial inconsistency, but go to the heart of the central physical exhibit in the case. SP5 was questioned during cross-examination about the discrepancy in the evidence concerning the positioning of the parties during the urine screening, and was unable to provide a satisfactory account. When asked whether discrepancies in documentation would cast doubt upon a case, SP5 conceded that they would. SP3 was not asked, at any stage, to explain the difference between the preliminary and confirmatory test results. [46] This Court finds guidance in the decision of the High Court (Kuala Lumpur) in PP v Jarizal Jasni. In that case, which similarly involved a discrepancy between the preliminary screening result and the gas chromatography mass spectrometry analysis, together with questions about the seal on the urine bottle, the Court held at paragraph [41]: “No explanation was proffered by SP3 as to whether amphetamine and MDMA are the same type of drugs as well as to why or what could be the possibility as to the difference in the findings of the type of drugs during the preliminary screening test and the gas chromatography mass spectrometry test. This discrepancy is detrimental when there were allegations put to the prosecution witnesses that the seal that was said to have been put on urine sample bottle in the presence of the respondent with the specific number of the ‘bahagian siasatan jenayah narkotik’ (as per the evidence of SP2 and SP5) was not stated in P6 (borang permintaan ujian saringan/pengesahan dadah dalam air kencing) and the said seal and the specific number cannot be seen from the photograph of the urine sample bottle in P2. No efforts on the part of the prosecution to explain these discrepancies through their witnesses.” [47] The factual parallel with the present case is pronounced: as in Jarizal Jasni, there were here both an unexplained discrepancy between the drug types detected in the respective testing stages and concurrent questions about the seal affixed to the urine bottle, which the prosecution made no effort through its witnesses to address. The principle articulated in that case is equally applicable here. [48] Grounds (iv), (v) and (vi) are accordingly dismissed. The learned Magistrate’s findings on the identity of the urine bottle, the chain of custody, and the discrepancy in the drug results were, in each instance, findings that were reasonably open to her on a maximum evaluation of the prosecution evidence. Considered individually, some of the evidentiary difficulties might have been capable of explanation. Considered cumulatively, however, and bearing in mind that the prosecution bore the burden of adducing credible evidence at every stage, the learned Magistrate was entitled to conclude that the standard required for a prima facie finding had not been satisfied. No error of law or fact has been demonstrated that would warrant the intervention of this Court, and the decision of the learned Magistrate to acquit and discharge the Respondent without calling him to enter his defence is affirmed on these grounds. Issue 3: Credibility of Prosecution Witnesses Grounds (vii) and (viii) of the Petition [49] The Appellant submits that the learned Magistrate erred in finding the prosecution witnesses to be not credible, and in treating the differences in the spelling of SP2’s name as a material inconsistency. The Appellant’s case on this issue rests on three specific contentions. First, the differences in spelling were never raised by the defence during the trial and SP2 was never cross-examined on the matter; accordingly, it was not open to the learned Magistrate to rely on that discrepancy when no opportunity for explanation had been afforded to SP2 at the time. Second, SP2 was in any event identifiable at all material times by his body number, which was consistently recorded on the relevant documents. Third, the differences in spelling were no more than immaterial typing errors which ought not to have been used as a measure of SP2’s credibility and reliability as a witness. [50] The Appellant invokes Kumaran a/l Sappani v Pendakwa Raya [2010] 2 MLJ 771 (Court of Appeal) and Amri Ibrahim & Anor v PP [2017] 1 CLJ 617 (Federal Court) for the general proposition that discrepancies and inconsistencies in the evidence of prosecution witnesses do not necessarily destroy their credibility, and that a court is fully competent to accept one part of a witness’s testimony while rejecting another. The Federal Court in Amri Ibrahim stated at paragraph [62]: “It is important to note that every witness does not remember the same thing and he does not remember accurately every single thing that happened. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reason, to accept one part of the testimony of a witness and to reject the other...” [51] These are settled principles, and the learned Magistrate was not unaware of them. The governing test is that stated by the Court of Appeal in Kumaran: “Percanggahan-percanggahan sering terdapat dalam setiap kes. Di dalam menimbangkan percanggahan-percanggahan tersebut mahkamah hendaklah menentukan sama ada percanggahan-percanggahan tersebut mempunyai ciri yang meranapkan keterangan yang berkenaan lantas menjadikannya tidak bernilai serta tidak boleh dipercayai (lihat De Silva v Public Prosecutor [1964] MLJ 81).” [52] The question, as Kumaran directs, is whether the discrepancies in question are of a character that destroys the reliability and credibility of the evidence in question. It was not the learned Magistrate’s approach to treat every inconsistency as fatal. Her approach was to assess the identified inconsistencies cumulatively and to determine whether, taken together, they were of that destructive character. The learned Magistrate found that they were. The question before this Court is whether that finding was open to her on the evidence. [53] Credibility is quintessentially a matter for the trial judge, who has the advantage of observing the witnesses in the witness box. An appellate court will not interfere with a trial court’s credibility findings in the absence of substantial and compelling reasons to do so. In this case, the learned Magistrate’s findings on credibility were not arbitrary or unsupported. They were grounded in two categories of inconsistency that were identified with particularity: first, the different spellings of SP2’s own name across the three foundational prosecution documents, P9, P1 and P10, all of which SP2 testified under examination-in-chief that he had personally prepared; and second, the directly conflicting oral testimonies of SP2 and SP4 concerning their respective positions during the urine screening procedure. These matters were not treated in isolation. They were assessed together, alongside SP5’s conduct when cross-examined on the discrepancy between the accounts of SP2 and SP4, and it was the cumulative weight of all of this that led the learned Magistrate to her conclusions on credibility. [54] As to the discrepancy in SP2’s name, the specific variations across the three documents merit careful attention. In the police report (P9, bearing the report number Taman Pelangi/005996/23), SP2’s name appears as “ASP Khuzir Bin Abdul Majid”. In the Borang Permintaan Ujian Pengesahan Dadah Dalam Air Kencing (Borang UPD) (P1), his name appears as “ASP Khuzir Bin Abdul Majit”. In the Borang Akuan Serah Terima Barang Kes (P10), his name appears as “Khuzir Bin Abd Majit”. These are the documents by which SP2 identified himself as the officer who conducted the preliminary urine screening test on the Respondent on 9.5.2023. SP2’s position at trial was that he personally prepared all three. The Respondent submitted before the learned Magistrate that the different spellings of a person’s own name across documents he himself prepared was not consistent with the documents having been prepared by that person at all, and that the more probable inference was that the documents had in fact been prepared by someone else who was not present at the material time. It was not logical, the Respondent submitted, for a person to mis-spell his own name in this manner repeatedly and inconsistently. [55] The Appellant characterises these variations as trivial clerical errors and adds, as noted, that the matter was never put to SP2 in cross-examination. This Court is not persuaded. While the specific spelling variations might not have been explicitly verbalised, the record shows that the defence did squarely put to SP2 during cross-examination that he did not personally prepare the documents and that there were material discrepancies in them. The observation that the defence did not cross-examine SP2 on the exact spelling discrepancy does not prevent the Court from acting on what is apparent on the face of the documents themselves. “Ianya adalah amat janggal untuk seseorang individu menulis nama sendiri dengan ejaan berbeza-beza. Maka, perkara ini sememangnya menimbulkan keraguan ataupun tanda tanya...” [56] That observation was within the competence of the learned Magistrate to make. The learned Magistrate was not required to accept the Appellant’s characterisation of the matter as a minor administrative error. She was entitled to treat the spelling variations, in the context of the other inconsistencies, as a factor bearing on the overall reliability of SP2’s evidence. This Court finds no substantial and compelling reason to disturb that assessment. [57] As to the conflicting testimony of SP2 and SP4 on their positions during the urine screening, the contradiction is direct and incapable of reconciliation by any reasonable construction of the evidence. SP2 testified that he, SP4 and the Respondent were all facing a chair (“menghadap kerusi”) at the time the test was conducted. SP4 testified that he and SP2 were positioned beside the chair (“di sebelah kerusi”), with the Respondent standing in the middle between them. The Appellant submits that the two accounts are not irreconcilable and that the learned Magistrate was in error in treating this as a material discrepancy. This Court does not accept that submission. The contradiction between SP2 and SP4 is not peripheral. It concerns the physical arrangement of the very officers said to have been present during the preliminary urine screening, which is the central act in the prosecution’s case. When SP5, as the investigating officer, was cross-examined on what SP2 and SP4 had told him about their positions during that procedure, SP5 did not provide a satisfactory answer. As recorded in the Notes of Evidence, SP5’s response when pressed on the matter was evasive: “Soalan: Sebab tu saya tanya tuan sebab tuan kata tuan ada rekod percakapan, ada maklum tak ada maklum? Jawapan: Dimaklumkan memang dimaklumkan, kedudukan adalah macam yang saya cakap tadi, OKT beserta pengadu dan anggota escort” [58] Notwithstanding that SP5 acknowledged having been informed of the positions, SP5 declined to state what SP2 and SP4 had respectively told him, despite having recorded their statements. The learned Magistrate at paragraphs [29]–[30] of her grounds of judgment found this to be a material inconsistency, and found that SP5’s evasiveness on the matter was itself unsatisfactory. These are findings of a court that saw and heard the witnesses. They cannot be set aside on appeal without substantial and compelling reason. The Appellant has not demonstrated any such reason. [59] Grounds (vii) and (viii) are dismissed. The learned Magistrate’s credibility findings were open to her on the evidence, were reasoned, and are consistent with a proper appreciation of the limitations of appellate review in relation to the assessment of witnesses. Overall Assessment: Prima Facie Standard Not Met [60] Having found, on each of the three issues, that the learned Magistrate’s findings were open to her and disclose no reviewable error, this Court is satisfied that the prosecution failed to establish a prima facie case against the Respondent. The prosecution’s entire case rested on the urine sample evidence. The standard applicable at the close of the prosecution’s case is that articulated by the Federal Court in Balachandran v PP, which held that a prima facie case is one where “the evidence adduced must be such that it can be overthrown only by evidence in rebuttal” and where, if unrebutted, it would be “sufficient to induce the Court to believe in the existence of the facts stated in the charge.” The evidence in the present case does not meet that threshold. [61] The chain of the urine sample evidence was undermined on three distinct and compounding bases: first, the failure to comply with the “arrested person” precondition in section 31A(1A) of the DDA 1952, which rendered the evidence legally deficient, given that SP2’s own evidence and the police report (Exhibit P9, Report No. Taman Pelangi/005996/23) establish that the Respondent was not arrested until after the urine sample tested positive; second, the multiple discrepancies concerning the physical integrity of the urine bottle (Exhibit P5, serial number D0104825) and the material divergence between the preliminary test conducted by SP2, which recorded a positive result for Methamphetamine only, and the pathological confirmation in the pathology report by SP3 (Exhibit P3, Pathology Report No. 10546538), which identified both Amphetamine and Methamphetamine, with no explanation proffered for the divergence; and third, the credibility difficulties attending SP2, the principal prosecution witness, as identified by the learned Magistrate and upheld by this Court. [62] When the prosecution evidence is subjected to maximum evaluation, as required by Balachandran, the cumulative weight of these three difficulties compels the conclusion that no court could safely convict the Respondent on this evidence in the absence of a defence. The Federal Court’s test in Balachandran is whether, if the accused elects to remain silent, the Court would be prepared to convict him on the totality of the prosecution evidence. On the evidence before the learned Magistrate, that question must be answered in the negative. There is no material evidence that, standing unrebutted, would be sufficient to establish the guilt of the Respondent to the requisite standard. The learned Magistrate was correct to so find. As Hasan Lah FCJ observed in Amri Ibrahim, “an appellate court should be slow in disturbing such finding of fact arrived at by the trial judge,” and this Court, for the reasons set out above, finds no error that warrants appellate intervention. [63] I take note of the submission of the Appellant that the Respondent was a senior police officer of the rank of Inspector, and that the case should be viewed in that context. This submission is not to the point. Article 8(1) of the Federal Constitution provides that “all persons are equal before the law and entitled to the equal protection of the law.” As Hamid Sultan Abu Backer JCA confirmed for the Court of Appeal in Aizuddin Syah Ahmad, the Federal Constitution is supreme and the procedural requirements of a criminal statute must be meticulously followed by the prosecution in respect of every person charged, without distinction as to status or rank. The prosecution bore the same burden of proof and was subject to the same statutory requirements under the DDA 1952 as in any other prosecution under that Act. The failure to satisfy those requirements cannot be excused or mitigated by reference to the rank, occupation, or professional standing of the accused. ORDER [64] For all the reasons set out above, this Court finds that the learned Magistrate committed no error of law or of fact, and that her decision was open to her on the evidence adduced before her. There is no ground that warrants appellate intervention. [65] The appeal is dismissed. The decision of the learned Magistrate dated 25.6.2025 in Case No. JA-82D-19- 05/2023, acquitting and discharging the Respondent, Mohd Hafizi bin Saad, on the charge under section 15(1)(a) of the Dangerous Drugs Act 1952, without calling upon him to enter his defence, is affirmed. 13 March 2026 ATAN MUSTAFFA YUSSOF AHMAD Judge High Court of Malaya Johor Bahru Counsel: For the Appellant: Tuan Iskandar Shah bin Ibrahim, bersamanya Tuan Ismail Hafiz bin Iskandar Shah Iskandar Shah & Co., Suite 11.10, Tingkat 11, Menara TJB, No. 9, Jalan Syed Mohd Mufti, 80000 Johor Bahru. For the Respondent : TPR Tuan Mohamad Adhallan Syafiq bin Azami TPR Puan Nik Noratini binti Nik Azman Pejabat Penasihat Undang-Undang Negeri Johor, Aras 2, Bangunan Dato’ Ja’afar Muhammad, Kota Iskandar, 79100 Nusajaya, Johor.