Pendakwa Raya v Mohd Faizol Bin Mat Azmin (TA-41LB(A)-1-04/2025)

This is an appeal by the Public Prosecutor against the decision of the learned Magistrate at the Besut Magistrates’ Court dated 26 March 2025. The learned Magistrate had found that the prosecution failed to establish a prima facie case against the Respondent at the close of the prosecution’s case and consequently acquitted and discharged the Respondent without calling for his defence. The Respondent was originally charged under Section 30(3) of the Poisons Act 1952 (Act 366), punishable under Section 30(5) of the same Act.

The Respondent, Mohd Faizol bin Mat Azmin, was charged with an offence which occurred on 12 April 2021 at approximately 1:00 pm at an un-numbered PPRT house at Jalan Padang Luas, Kg Padang Tapong, Jertih, within the district of Besut, Terengganu. The original charge stated that the Respondent had in his possession 0.14 grammes of poison of the type Flualprazolam, a substance structurally derived from 1,4-Benzodiazepine and scheduled under the First and Third Schedules (Psychotropic Substances) of the Poisons Act 1952.

The Respondent claimed trial. During the proceedings, after five prosecution witnesses had testified, the prosecution applied to amend the charge on 7 May 2024. The amendment changed the word “milikan” (possession) to “kawalan” (control). The learned Magistrate allowed the amendment, and the trial continued on the basis of the amended charge (P20). The Respondent claimed trial to the amended charge.

The prosecution called a total of seven witnesses: SP1 (the custodian of exhibits), SP2 (the delivery and receiving officer), SP3 (the raiding officer), SP4 (a public witness and accomplice), SP5 (the chemist), SP6 (another raiding officer), and SP7 (the investigating officer). The prosecution also tendered numerous exhibits including the chemist’s report (P9), the raid report (P10), the search list (P11), and the chain of custody forms (P12).

At the close of the prosecution’s case, before the learned Magistrate delivered her decision, the prosecution sought a second amendment to the charge. The second proposed amendment sought to revert the word “kawalan” (control) back to “milikan” (possession) as in the original charge (ID24). The defence objected on the ground of prejudice. The learned Magistrate rejected the second amendment application.

Thereafter, on 26 March 2025, the learned Magistrate delivered her decision. She found that the prosecution had failed to prove a prima facie case against the Respondent and ordered that the Respondent be acquitted and discharged without being called to enter his defence. The prosecution, being dissatisfied, filed the present appeal.

The prosecution filed a Petition of Appeal raising seven grounds. In essence, the prosecution argued that the learned Magistrate had erred in law and fact by:

finding that the prosecution failed to prove a prima facie case when all the elements under Section 30(3) of the Poisons Act 1952 had been proved;

(ii) failing to consider the existence of the element of possession by the Respondent;

(iii) failing to consider the evidence of SP3, SP6, and SP7 regarding the discovery of the seized item;

(iv) finding that there were contradictions in the prosecution witnesses’ evidence concerning possession of the seized item;

finding that there was a contradiction between the charge and the evidence of SP5 (the chemist);

(vi) finding that the prosecution was not permitted to tender the second amended charge (ID24) before judgment; and

(vii) failing to conduct a maximum evaluation of the entire prosecution evidence.

The Respondent filed written submissions and also filed written submissions in reply, arguing that the learned Magistrate’s decision was correct and that the appeal should be dismissed.

After carefully considering the appeal record, the written submissions of both parties, and the grounds of judgment of the learned Magistrate, the following issues arise for this court’s determination:

Whether the learned Magistrate erred in finding that the prosecution had failed to prove a prima facie case against the Respondent, particularly regarding the element of “possession” or “control” of the psychotropic substance.

Whether the learned Magistrate erred in her evaluation of the conflicting evidence of the prosecution witnesses concerning the location where the drug was found.

Whether the learned Magistrate erred in rejecting the prosecution’s application for a second amendment of the charge (ID24).

Whether the learned Magistrate erred in her finding regarding the discrepancy between the charge and the chemist’s evidence on the weight of the poison. COUNSELS’ CONTENTIONS Prosecution’s Submissions

The prosecution argued that the learned Magistrate failed to apply the correct test for a prima facie case as set out in Looi Kow Chai & Anor v PP [2003] 1 CLJ 734 (CA) and PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457 (FC). It was submitted that the prosecution had proved all the elements of the offence under Section 30(3) of the Poisons Act 1952. On the issue of possession, the prosecution relied on PP v Puvaneswaran Kaniapan [2003] 4 CLJ 609 (HC) and PP v Panizan Sunan Achyari [2010] 1 CLJU 311 (HC), contending that the Respondent had custody and control of the waist pouch (P4) which contained his identity card and the foil containing the pill. The prosecution also submitted that the Respondent’s proximity to the item and the fact that the waist pouch was within his reach established his knowledge and control.

On the issue of the second amendment, the prosecution relied on Section 158 of the Criminal Procedure Code and the case of Yong Kar Mun v PP [2012] 6 MLJ 209 (CA), submitting that the court has the power to amend a charge at any time before judgment is pronounced, and that such amendment would not prejudice the Respondent as the witnesses could be recalled.

On the issue of the weight of the poison, the prosecution argued that the weight is not an essential element of the offence under Section 30(3) of the Poisons Act 1952. The prosecution relied on Munusamy v PP [1987] 1 MLJ 492 (SC), submitting that the chemist’s evidence is only to determine the identity of the substance, not the quantitative analysis.

The Respondent submitted that the learned Magistrate’s decision was correct and ought to be upheld. On the issue of possession, the Respondent argued that the prosecution failed to prove exclusive control. Relying on PP v Hakimi Aiman bin Hussin [2024] MLJU 570 (HC) per Roszianayati Ahmad JC (as Her Ladyship then was), the Respondent submitted that mere proximity and the presence of the Respondent’s identity card in the pouch were insufficient to establish knowledge and control, especially since the house belonged to SP4 (the accomplice), who was a drug addict and had equal access to the pouch. The Respondent also highlighted that no fingerprint analysis was conducted, which would have determined who last handled the foil.

On the issue of the second amendment, the Respondent argued that the proposed amendment at the very end of the prosecution’s case, after written submissions had been filed, would cause grave prejudice to the defence. The Respondent relied on decisions of Wong Chai Sia M in PP v Mohd Jefri bin Ahmad [2024] MLJU (Mag. Ct.) and PP v Mohamad Alif Syazwan bin Roslan [2022] MLJU 2773 (Mag. Ct.), submitting that the defence had prepared its case based on the element of “control”, and changing it to “possession” at the final stage would fundamentally alter the defence strategy.

On the issue of contradictory evidence, the Respondent pointed out that SP3 stated the pill was found inside the wallet (P5), while SP6 and SP7 stated it was found inside the waist pouch (P4). The Respondent argued that these contradictions were material and went to the core of the element of possession, and the learned Magistrate was correct to give the benefit of the doubt to the Respondent.

This court has carefully examined the totality of the evidence adduced by the prosecution at the trial stage. The offence under Section 30(3) of the Poisons Act 1952 requires the prosecution to prove that the accused person had in his "possession" the psychotropic substance. Section 30(4) of the same Act provides that a person found to have custody or control of a psychotropic substance shall be deemed to be in possession and to have known the nature of the substance until the contrary is proved. However, the prosecution must first prove custody or control before the deeming provision can operate.

In this case, the prosecution's case on custody and control rested on the following facts:

the Respondent was seated near a table where a waist pouch (P4) was found; inside the pouch was a wallet (P5) containing the Respondent's identity card; and

inside the same pouch was a foil (P18) containing one orange pill (P19) which was later confirmed to be Flualprazolam. The distance between the Respondent and the pouch was approximately one to two feet.

However, this court finds that there are two critical weaknesses in the prosecution's case on the element of custody and control.

The raid took place at the house of SP4, Nazri bin Sapei. SP4 was an accomplice who was also arrested at the scene. SP4 admitted that he and the Respondent were consuming drugs ("pil kuda") together prior to the raid. SP4 also admitted that he had tested positive for drugs. The waist pouch (P4) was on a table, and both the Respondent and SP4 were seated near the same table. In such circumstances, SP4 had equal access to the pouch.

The prosecution did not conduct any fingerprint analysis on the foil or the pouch to exclude the possibility that SP4 or some other person had handled the item. The learned Magistrate, in her grounds of judgment, referred to the decision in PP v Khairuddin bin Ismail [2015] 5 MLJ 229, where it was held that fingerprint evidence may not be material where the accused is caught red-handed. However, the Magistrate correctly distinguished that case on the facts, as the Respondent was not caught red-handed handling the specific pill. The pill was found inside a pouch on a table, and there were two persons present. The absence of fingerprint evidence in such a situation does create a reasonable doubt as to exclusive control.

The Respondent's position as a visitor at SP4's house is significant. The house belonged to SP4. The Respondent was not the owner or tenant. The pouch was not on the Respondent's person; it was on a table. The fact that the Respondent's identity card was found in the wallet inside the pouch does not automatically mean that the Respondent had knowledge of the presence of the pill. As held in PP v Hakimi Aiman bin Hussin (supra), the presence of a personal document in a bag containing drugs does not irresistibly lead to an inference of knowledge, especially when others had access to the bag. The court in that case, quoting Goh Ming Han v PP [2015] 3 CLJ 17 (CA), held that where there are two possible inferences, the inference favourable to the accused must be adopted.

Applying the test in PP v Mohd Radzi Abu Bakar (supra), this court is required to subject the prosecution evidence to maximum evaluation at the close of the prosecution's case and ask: if the accused remains silent, am I prepared to convict on the evidence before me? In this case, the lack of exclusive control, the presence of another person with equal access to the item, and the weak inference of knowledge all lead to the conclusion that it would not be safe to convict the Respondent on the evidence as it stands. The learned Magistrate was therefore correct in finding that a prima facie case had not been made out.

This court finds that the learned Magistrate not only did not err in her evaluation of the conflicting evidence, but she was in fact correct to highlight these contradictions as a key reason why a prima facie case had not been established.

The prosecution called three witnesses who testified on the discovery of the seized item: SP3 (the raiding officer), SP6 (the other raiding officer), and SP7 (the investigating officer). Their evidence on the precise location of the foil containing the Flualprazolam was materially inconsistent.

SP3's evidence was internally inconsistent. During examination-in-chief, SP3 stated that the foil was found inside the waist pouch (P4), replying "Barang kes ini dijumpai dalam beg pinggang Yang Arif" when asked its location. However, he also stated that the wallet (P5) containing the Respondent's identity card was inside the pouch, and the foil was inside the wallet, explaining "1 beg pinggang dalam dia ada dompet dan dalam dompet ada 1 foil berwarna silver, ada dadah." Later, during cross-examination, defence counsel suggested to SP3 that "tidak pada bila-bila masa yang material semasa serbuan, plastik foil perak berada di dalam beg yang dirampas oleh inspektor"; and SP3 answered, "Setuju."

SP6's evidence differed from SP3. SP6 stated unequivocally that the foil containing the pill was found inside the middle pocket of the waist pouch (P4). He made no mention of the foil being inside the wallet (P5). When asked specifically by the prosecution, "Ok rujuk kepada beg pinggang tersebut P4 boleh nyatakan kepada mahkamah barang kes foil tersebut dijumpai di bahagian mana?", SP6 answered, "Di bahagian poket."

SP7's evidence further compounded the confusion. In her original witness statement (PSP7), SP7 stated at paragraph 26.1 that the seized item was found in the wallet of the bag belonging to the accused. However, during her testimony in court, SP7 applied to amend her witness statement to change the word "wallet" to "bag". This amendment was allowed by the learned Magistrate. The fact that the investigating officer herself found it necessary to amend her statement demonstrates the existence of a material inconsistency.

The prosecution argued before this court that these were not contradictions but merely differences in the level of detail. They submitted that SP3 gave a more detailed account (finding the foil inside the wallet which was inside the pouch), while SP6 and SP7 gave a more general account (finding the foil inside the pouch). The prosecution relied on PP v Ho Jin Lock and Another [1999] 3 MLJ 625 (HC) per Jeffrey Tan J (as His Lordship then was) for the proposition that witnesses are not expected to give "replica evidence".

This court is not persuaded by the prosecution's argument. The inconsistency here is not merely about the level of detail. It is about a fundamental factual question: was the foil found inside the wallet or inside the pouch? This distinction matters because:

If the foil was found inside the wallet (P5), and the wallet contained the Respondent's identity card, the inference of the Respondent's knowledge and control is stronger.

If the foil was found loose inside the pouch (P4), not inside the wallet, then the connection to the Respondent is weaker, as others (including SP4) could have placed it there without the Respondent's knowledge.

Furthermore, the fact that SP7 sought to amend her witness statement from "wallet" to "bag" indicates that even the prosecution recognized there was a problem with the consistency of the evidence. If the evidence were truly consistent, no amendment would have been necessary.

The learned Magistrate in her grounds of judgment correctly identified this issue. She stated at paragraph 38 of her grounds: "Mahkamah ini telah meneliti keterangan saksi-saksi Pendakwaan dan mendapati keterangan saksi pendakwaan tidak konsisten berhubung dimana sebenarnya penemuan (1) fail mengandungi (1) biji pil/tablet oren mengandungi racun flualprazolam. Adakah ia terletak di dalam beg pinggang berzip (P4) atau di dalam dompet (P5) yang mengandungi kad pengenalan OKT?"

The learned Magistrate then proceeded to analyze the inconsistencies in detail. She found that there were two different versions regarding where the item was found, and that the prosecution witnesses themselves could not state with certainty and confidence the exact location of discovery.

Applying the test in PP v Mohd Radzi Abu Bakar (supra), the learned Magistrate was required to subject the prosecution evidence to maximum evaluation. Part of that evaluation necessarily involves assessing the credibility and consistency of witnesses. When key witnesses give materially inconsistent evidence on a central fact (the location of the drug), it becomes unsafe to conclude that a prima facie case has been made out.

This court finds that the learned Magistrate was correct to treat these contradictions as fatal to the prosecution's case. She was also correct to invoke the principle that where there is doubt, the benefit of the doubt must be given to the accused. As held in Goh Ming Han v PP (supra), where the court is faced with two different inferences, the inference favourable to the accused must be adopted.

Accordingly, this court finds no error in the learned Magistrate's evaluation of the conflicting evidence. On the contrary, her thorough analysis of these contradictions demonstrates a careful and proper judicial approach.

The prosecution submitted that under Section 158 of the Criminal Procedure Code, the court has the power to amend a charge at any time before judgment. That power is undisputed. However, the power to amend is a discretionary power and must be exercised judicially, not arbitrarily. The court must consider whether the proposed amendment would cause prejudice to the accused.

In this case, the first amendment was made on 7 May 2024 after five witnesses had testified. The amendment changed the charge from “possession” to “control”. The trial then proceeded on the basis of that amended charge (P20). The defence conducted cross-examination and prepared its written submissions based on the element of “control”. The prosecution only sought the second amendment (to revert to “possession”) after the defence had filed its written submissions and just before the learned Magistrate was to deliver her decision on whether a prima facie case had been made out.

This court finds that allowing the second amendment at such a late stage would have caused substantial prejudice to the Respondent. As held in PP v Mohd Jefri bin Ahmad (supra), an amendment that changes the direction of the trial and the defence’s strategy is prejudicial. The defence had structured its entire cross-examination and submissions around the element of “control”. To change the charge back to “possession” after the prosecution had closed its case would require the defence to fundamentally alter its approach, and even recalling witnesses may not fully cure the prejudice because the defence had already committed to a particular line of cross-examination.

Moreover, the learned Magistrate correctly observed that the prosecution had multiple opportunities to frame the charge correctly. The original charge used the word “possession”. The prosecution voluntarily amended it to “control”. The prosecution cannot then, after realising that “control” is not the word used in Section 30(3), seek to amend it back at the eleventh hour. As held by Che Mohd Ruzima Ghazali J (as His Lordship then was) in PP v Che Jan Zinon [2016] CLJU 1083 (HC), it is not the duty of the court to amend a charge merely to fit the evidence adduced by the prosecution. The duty to frame the correct charge lies with the prosecution. The learned Magistrate was therefore correct to reject the second amendment.

The learned Magistrate found that there was a discrepancy between the charge (which stated “seberat 0.14 gram racun” –

0.14 gram of poison) and the chemist’s evidence that the 0.14 gram was the weight of the whole tablet, not the pure active ingredient, and that no quantitative analysis had been conducted.

This court agrees with the prosecution that the precise weight of the pure active ingredient is not an essential element of the offence under Section 30(3) of the Poisons Act 1952. What matters is the identity of the substance as a scheduled poison. The case of Munusamy v PP (supra) supports the proposition that the chemist’s role is to identify the substance, not necessarily to provide a quantitative breakdown.

However, the learned Magistrate’s finding on this issue was not the primary basis for her decision to acquit the Respondent. It was an additional factor. While this court may differ on the significance of the weight issue, it does not disturb the main finding that the prosecution failed to prove the element of possession or control. Even if the weight issue is set aside, the fundamental weaknesses in the prosecution’s case on possession remain.

After a careful and thorough review of the appeal record, the learned Magistrate’s grounds of judgment, and the submissions of both parties, this court finds that the learned Magistrate did not err in law or fact in her decision. She conducted a proper maximum evaluation of the prosecution evidence at the close of the prosecution’s case. She correctly identified the contradictions in the prosecution witnesses’ evidence concerning the location where the drug was found. She properly considered the lack of exclusive control over the waist pouch given the presence of SP4, the owner of the house, who had equal access. She also correctly exercised her discretion in rejecting the prosecution’s belated second application to amend the charge, as allowing it would have caused prejudice to the Respondent.

This court is mindful that an appellate court should not disturb a trial court’s findings of fact unless they are plainly wrong or based on a misdirection. In this case, the findings of the learned Magistrate are supported by the evidence and are reasonable. There is no manifest error or misdirection that warrants appellate intervention.

For all the above reasons, the appeal by the prosecution is dismissed. The decision of the learned Magistrate dated 26 March 2025 acquitting and discharging the Respondent without calling for his defence is hereby affirmed. Dated: 24 May 2026 Yusrin Faidz Bin Yusoff Judge High Court of Malaya Kuala Terengganu Counsel for the Appellant: TPR Noradila Binti Ab Latif Timbalan Pendakwaraya Negeri Terengganu, Pejabat Penasihat Undang-Undang Negeri Terengganu, Tingkat 14, Wisma Darul Iman, 20200 Kuala Terengganu, Terengganu Darul Iman. Counsel for the Respondent: Ahmad Lufti Bin Ismail Messrs Ismail Adilah & Associates PT 3073 (3), Jalan Tengku Embong Fatimah 20200 Kuala Terengganu Terengganu Darul Iman

Looi Kow Chai & Anor v PP [2003] 1 CLJ 734 (CA).

PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457 (FC).

PP v Puvaneswaran Kaniapan [2003] 4 CLJ 609 (HC).

PP v Panizan Sunan Achyari [2010] 1 CLJU 311 (HC).

Yong Kar Mun v PP [2012] 6 MLJ 209 (CA).

Munusamy v PP [1987] 1 MLJ 492 (SC).

PP v Hakimi Aiman bin Hussin [2024] MLJU 570 (HC).

PP v Mohd Jefri bin Ahmad [2024] MLJU (Mag. Ct.).

PP v Mohamad Alif Syazwan bin Roslan [2022] MLJU 2773 (Mag. Ct.).

PP v Khairuddin bin Ismail [2015] 5 MLJ 229.

Goh Ming Han v PP [2015] 3 CLJ 17 (CA).

PP v Ho Jin Lock and Another [1999] 3 MLJ 625 (HC).

PP v Che Jan Zinon [2016] CLJU 1083 (HC).

Section 30(3), 30(5), & First and Third Schedules (Psychotropic Substances) of the Poisons Act 1952.

Section 158 of the Criminal Procedure Code.