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.” [36] It is useful to examine the architecture of the provision before addressing the competing submissions. Section 31A(1) is concerned with the right of a medical officer to conduct a physical examination of a person. Section 31A(1A) is a supplemental provision operating in a specific situation: where it is not practicable for a medical officer to obtain the urine specimen within a reasonable period, a police officer of at least the rank of Sergeant may step in to require the arrested person to provide that specimen. The two subsections are linked: section 31A(1A) explicitly confers power “for the purposes of an examination under subsection (1)”. Both subsections thus operate upon the same premise, namely, that the person in question has been arrested on a charge of committing an offence against the DDA. As the High Court in PP v Jarizal bin Jasni (supra) (Noorin Badaruddin J) held: “Section 31A of the DDA provides lawfulness of actions taken by officers or listed persons to conduct examination on arrested person. Section 31A(1A) of the DDA specifically gives limited power to the police officer to facilitate a medical examination, ie, to obtain a urine specimen from an arrested person. Arrested person appears to be a pre-condition to sub-ss. 31A(1) and 31A(1A) of the DDA.” [37] The Respondent’s submissions drew attention to the statutory language of section 31A(1A) itself. The words “require an arrested person to provide a specimen of his urine” are unambiguous: it is the arrested person who is required to provide the specimen. The expression “arrested person” precedes the obligation to furnish urine. As the High Court in Hasrulfahmi Samsuddin v PP explained: “Dalam meneliti peruntukan Seksyen 31A(1A) di atas, adalah jelas bahawa pengambilan sampel air kencing bagi maksud pertuduhan dibawah Seksyen 15(1)(a) Akta Dadah Berbahaya 1952 terhadap seseorang yang ditangkap. Daripada susunan ayat dalam peruntukan Seksyen 31A(1A) diatas, adalah menjadi pandangan saya bahawa perkataan ‘arrested person’ mendahului perkataan ‘his urine’ melalui pembacaan ayat tersebut, ianya memberikan suatu indikasi bahawa orang yang ditangkap itu untuk memberikan spesimen air kencingnya. Justeru itu orang yang akan memberikan spesimen air kencingnya mestilah terlebih dahulu ditangkap dan disusuli dengan pemberian spesimen air kencingnya. Sekiranya tidak, saya amat khuatir kebarangkalian dan kemungkinan penyalahgunaan kuasa oleh pihak polis dan pihak penguatkuasaan undang-undang semasa pengambilan sampel air kencing ini mungkin berlaku. Dalam keadaan yang sedemikian, pada masa sebelum memberikan spesimen air kencingnya kepada pihak polis, Perayu mestilah ditangkap terlebih dahulu.” [38] The court in Hasrulfahmi was concerned with a situation where a person who had been brought to a police office in connection with a matter unrelated to drug offences had his urine taken. The court’s reasoning is directly applicable here: the grammatical structure of section 31A(1A) makes it plain that arrest is a precondition and not a consequence of the urine-taking exercise. The Requirement of Arrest for a DDA Offence [39] The next question is whether any arrest suffices for the purposes of section 31A, or whether the arrest must specifically be for an offence under the DDA. This question is central to the present appeal because the Respondent had undeniably been arrested, albeit by the Commercial Crime Investigation Division and for a commercial offence, before his urine was taken. [40] I am satisfied, as was the learned Magistrate, that the arrest must be referable to an offence under the DDA. This is not a matter of inference but of plain statutory language. Section 31A(1) opens with the words: “When any person is arrested on a charge of committing an offence against this Act.” The phrase “against this Act” refers to the DDA. The examination authorised by section 31A(1) is one that may “afford evidence as to the commission of an offence against this Act.” The entire scheme of the provision is directed at the investigation of DDA offences. A person arrested for a commercial crime has not been arrested on a charge of committing an offence against the DDA; he is, for the purposes of section 31A, not within the class of persons upon whom the power to demand a urine specimen can be exercised. This reading is reinforced by the power of arrest conferred by section 31 of the DDA, which permits any police officer to arrest without warrant any person whom he “reasonably believes to have committed or to be committing an offence against” the DDA. Section 31A is the post-arrest investigative provision that follows section 31; both sections speak of offences under the same Act. As the High Court in PP v Jarizal bin Jasni (supra) observed at paragraph 25: “The Court of Appeal in that case reminded that the power of arrest by the police is not prescribed under s. 31A of the DDA but instead under s. 31 of the DDA wherein any police officer or any officer of customs may arrest without a warrant any person whom he reasonably believes to have committed or to be committing an offence against the DDA. To justify reasonable belief that an offence has been committed there ought to have been an information received by the police beforehand as evidence to determine the issue of arrest.” [41] In the present case, the arrest by the Commercial Crime Investigation Division at approximately 3.30 a.m. on 15.10.2021, as documented in Police Report Larkin/9699/21 (Exhibit P13), was made in connection with a commercial offence. That is confirmed by Exhibit P13 itself and, crucially, by the investigating officer SP5 in his re-examination. There is no evidence whatsoever that the Narcotics Division had any information about the Respondent’s drug use, or that any reasonable belief existed on 15.10.2021 that the Respondent had committed any offence under the DDA, prior to the taking of the urine specimen. On that state of the evidence, the commercial arrest cannot constitute a DDA arrest within the meaning of section 31A. The Facts [42] The evidence on the sequence of events is unambiguous and, critically, it emanates from the prosecution’s own witnesses. SP4, in his witness statement (WSSP4), described the procedure he followed on 15.10.2021. He directed SP3 to escort the Respondent to the toilet for the provision of a urine specimen. He conducted the early screening test using six test strips (AMP, METH, THC, MOP, KET, and BENZO). The METH strip returned a positive result approximately 20 seconds after being immersed in the urine. He then completed the documentation, labelled the bottle bearing serial number B078058, obtained the Respondent’s signature on the label and on the UPD-1 form, and sealed the bottle. It was only thereafter that he effected the DDA arrest. His exact words in paragraph 6 of WSSP4 were: “Seterusnya saya tangkap Tertuduh dan beritahu sebab-sebab tangkapan dalam bahasa yang mudah difahami.” The sequence is therefore incontrovertible: urine collection, positive result, documentation, sealing, and then arrest. [43] The testimony of SP5, the investigating officer, is equally dispositive. As recorded at paragraph 32 of the Magistrates’ Court Grounds of Judgment, the following exchange took place during re-examination: “TPR: Seterusnya, Inspektor telah menyatakan tangkapan dibuat selepas ujian urin dijalankan. Boleh Inspektor jelaskan? SP5: OKT pada mulanya ditangkap oleh Bahagian komersial IPD Johor Bahru Selatan dan kemudiannya telah dibawa ke bahagian narkotik untuk diambil ujian urin. Dan selepas ujian urin dijalankan Detektif Sgt Mohd bin Jani telah menangkap suspek di bawah Seksyen 15(1)(a). TPR: Jadi, OKT telah ditangkap semula? Selepas ujian air kencing? SP5: Ya, betul Puan.” [44] This evidence is remarkable in two respects. First, it came from the prosecution’s own investigating officer, not from the defence. Second, the DPP herself, in posing the follow-up question, used the word “semula” (again), implicitly acknowledging that the DDA arrest was a second arrest distinct from the earlier commercial arrest. SP5 confirmed this explicitly. This court accepts SP5’s evidence as an accurate account of what occurred, consistent as it is with the account given in WSSP4. The prosecution cannot resile from evidence that it adduced. The “Constructive Arrest” Argument [45] The Appellant, in its written submissions and reply submissions, sought to circumvent the chronological difficulty by invoking the doctrine of “constructive arrest” or “mode of arrest”. The primary authorities relied upon were PP v Mohd Safwan bin Husain (Court of Appeal) and Ahmad Syahir bin Mohd Fauzi v PP. The argument, as set out in the Appellant’s reply submissions, was that the Respondent’s freedom of movement had been restricted and he had been under the control of the police, such that he was in “mode of arrest” or “constructive arrest” within the meaning of section 31A before the urine specimen was taken. [46] The correct approach to the question of whether an arrest has taken place is not a mechanical application of a dichotomy between “actual arrest” and “constructive arrest”. The Court of Appeal in Mohd Safwan bin Husain (supra) made this clear at paragraph 28: “Setelah meneliti kes-kes di atas, kami bersetuju dengan pandangan bahawa pendekatan-pendekatan tersebut sukar untuk diseragamkan (reconcile) dan agak malang (unfortunate) untuk digunakan seperti mana dikatakan oleh YA Abdul Hamid Mohamad H (ketika itu) dalam PP v Abdul Rahim Kalandari Mustan. Pada kami, dalam semua perundangan yang berkenaan sama ada dalam KPJ atau pun ADB 1952, apa yang perlu ditentukan adalah sama ada telah berlakunya satu tangkapan atau tidak. Kami berpendapat penentuan isu tersebut akan bergantung pada fakta dan keadaan sesuatu kes itu. Inilah prinsip am yang terpancar daripada pertimbangan kes-kes di atas.” [47] The correct question is simply whether, on the facts and circumstances of this particular case, an arrest had occurred before the urine specimen was taken. I shall address that question by reference to the facts of the present case and, where relevant, by distinguishing the decided authorities. [48] I reject the constructive arrest argument. My reasons follow. [49] First, PP v Mohd Safwan bin Husain is distinguishable on its facts and is of no assistance to the Appellant. The facts in that case were materially different. As the Court of Appeal found at paragraph 34 of its judgment, there was clear evidence that the police had acted on prior information relating specifically to the respondent’s suspected drug abuse: “Berlandaskan prinsip am di atas, kami mendapati adanya cukup fakta dan keadaan dalam kes ini yang menunjukkan bahawa pada masa responden diarahkan memberikan spesimen air kencingnya, dia sudah pun ditangkap bagi maksud s 31A(1A) ADB 1952. Harus dicatatkan di sini bahawa s 31A tidak memperuntukkan kuasa menangkap kepada pegawai polis. Kuasa tersebut diberikan dalam s 31 ADB 1952. Seksyen 31 ADB 1952 memberikan kuasa tangkapan jika terdapat kepercayaan yang munasabah bahawa sesuatu kesalahan di bawah ADB 1952 telah dilakukan atau akan dilakukan. Ini mewajarkan pengemukaan maklumat yang diterima (information received) oleh pihak polis sebagai keterangan untuk menentukan isu tangkapan ini (rujuk kes Raissi v Metropolitan Police Commissioner [2009] 3 All ER 14; dan Shaaban & Ors v Chong Fook Kam & Anor). Keterangan SP2, sama ada semasa pemeriksaan utama atau pemeriksaan balas, dengan jelas menunjukkan SP2 dan kumpulannya telah bertindak atas maklumat penyalahgunaan dadah oleh suspek iaitu responden, di tempat dia bekerja iaitu di sebagai pegawai balai di Balai Polis Kuala Perlis. Sebelum pergi ke balai tersebut, SP2 telah terlebih dahulu menghubungi Balai dan memastikan responden bertugas pada hari serbuan.” [50] The Court of Appeal in that case further observed that the police report made by SP2, which formed part of the contemporaneous record, stated explicitly that the police had acted “bertindak atas maklumat” in detaining the suspect who was “disyaki terlibat dalam aktiviti penyalahgunaan dadah”, and that once the suspect was in custody, the urine screening was conducted. The police had thus targeted the respondent specifically because of drug-related information and had effected a DDA arrest before the urine was taken. That finding was corroborated by the documentary record. [51] The High Court in PP v Jarizal bin Jasni examined the Safwan case at length and drew the same distinction. In Jarizal, a police team had conducted a raid at an entertainment centre on 30.11.2019 and required 143 persons, including the respondent, to undergo a preliminary urine test. The High Court held that this was “a random examination conducted by the police during a raid and arrest would only take place if evidence of offence under s. 15(1)(a) of the DDA was obtained. The respondent was only suspected to have committed an offence against the DDA after he has given his urine sample and hence the arrest only took place thereafter.” The position in the present case is no different: the Respondent was not the target of any prior drug-related intelligence; he was brought to the Narcotics Division as a result of a commercial arrest, and his urine was screened as a matter of routine following that commercial arrest. [52] Second, Ahmad Syahir bin Mohd Fauzi v PP is similarly distinguishable. The applicant in that case was a serving police officer who had been directed to hand in his warrant card, stand in line with 28 other officers, and provide a urine specimen. The Court of Appeal held at paragraph 25: “Berdasarkan kepada nas undang-undang di atas, pada hemat kami meskipun pemohon di dalam rayuan ini tidak secara fizikal disentuh atau dikurung, namun keterangan yang dizahirkan oleh SP1 di mana pemohon dan 28 anggota polis yang lain telah diarahkan untuk menyerahkan kad kuasa mereka, berbaris, memberikan sampel air kencing dan seterusnya menjalani ujian pengesahan dadah dalam air kencing, jelas menunjukkan bahawa pemohon berada di bawah kawalan dan jagaan SP1 dan setiap arahan yang diberikan oleh SP1 wajib dipatuhi tanpa gagal. Malah pergerakan pemohon juga dikawal selia oleh SP4 di mana SP4 telah mengiringi pemohon ke tandas Aras 1, Balai Polis Jaya Gading bagi tujuan pemberian sampel air kencingnya... Kebebasan pemohon telah disekat dan ini terjumlah kepada suatu tangkapan yang dimaksudkan s. 31A(1) Akta Dadah Berbahaya 1952 tersebut. Sudah terang lagi bersuluh pemohon berada di bawah penahanan secara konstruktif ataupun ‘constructive arrest’ sebelum specimen air kencingnya diambil.” [53] The fact situation in Ahmad Syahir is materially different from the present. In that case, the target of the drug test was a police officer and the test was conducted specifically as part of a drug enforcement exercise directed at the police station’s personnel. There was, inherent in the nature of the exercise, a drug-specific purpose. In the present case, the Respondent is a civilian who came to the Narcotics Division entirely as a consequence of a commercial arrest. There is no evidence that the Narcotics Division received any information regarding drug consumption by the Respondent; the transfer was a routine one that followed the commercial arrest. The Ahmad Syahir decision does not stand for the proposition that any person whose movements are physically restricted is thereby an “arrested person” within section 31A. Whether there has been an arrest for the purposes of section 31A remains a question of fact to be decided according to the circumstances of each case: PP v Mohd Safwan bin Husain (supra), at paragraph 30. [54] Third, the High Court in Hissham bin Ahmad lwn Pendakwa Raya decided 28.1.2025) addressed a situation that is substantially on all fours with the present. In that case, Hissham bin Ahmad, a police corporal, was brought to the Narcotics Division office and subjected to an early urine screening test. The preliminary result was positive for Methamphetamine. The arresting officer, SP1, then effected a formal arrest. The High Court, examining the police report made by SP1 (Exhibit P1), found that it did not record any arrest or detention prior to the urine screening; in contrast to the police report in Safwan, there was no reference to acting on information regarding drug abuse. The court at paragraph 25 held: “Saya berpendapat dalam kes semasa, jelas semasa Tertuduh memberikan sampel urin untuk saringan awal, Tertuduh bukan ‘an arrested person’ bagi maksud peruntukan s. 31A (1A) Akta itu. Tertuduh tidak berada dalam tangkapan konstruktif sebagaimana yang cuba dihujahkan oleh TPR yang terpelajar. Fakta kes Tertuduh berbeza dengan fakta kes Mohd Safwan Husain [supra]. Dalam kes semasa, sebaik saringan awal urin mengesahkan mengandungi dadah Methamphetamine, barulah SP1 melakukan tangkapan bagi maksud s. 15 Kanun Tatacara Jenayah. Saya berpendapat peruntukan s. 31A (1A) Akta itu tidak dipatuhi oleh pendakwaan.” [55] This court is in full agreement with the reasoning in Hissham. The factual pattern in Hissham precisely mirrors that in the present case: the urine screening preceded the arrest; the police did not act on prior drug-related information; the formal DDA arrest was effected only after the positive urine result was obtained. The learned Magistrate in the present case reached the same conclusion, and correctly so. [56] Fourth, the Appellant invoked the principle of stare decisis, relying on PP v Ahmad Saiful Islam Mohamad (supra), to argue that the court below was bound by the Court of Appeal authorities in Mohd Safwan and Ahmad Syahir. This argument, whilst correctly stating the structure of hierarchical precedent, does not assist the Appellant. The principle of stare decisis requires courts to follow decisions of higher courts on the same point of law; it does not require a court to apply the outcome of a higher court decision to facts that are materially distinguishable. As the High Court in PP v Jarizal bin Jasni (supra) recognised at paragraph 23, the Court of Appeal in Mohd Safwan itself confirmed that whether an arrest has occurred depends on “fakta dan keadaan sesuatu kes itu.” The Respondent’s submissions correctly noted that the Appellant’s reliance on Ahmad Syahir and Mohd Safwan was misplaced precisely because the foundational facts that supported the findings of constructive arrest in those cases are absent here. The learned Magistrate was not departing from binding authority; she was correctly applying the fact-sensitive test prescribed by those very authorities to a different set of facts. [57] For all these reasons, I am satisfied that the learned Magistrate correctly held that the Respondent was not an “arrested person” within the meaning of section 31A of the DDA at the time the urine specimen was obtained on 15.10.2021 at approximately 5.45 p.m. This finding is consistent with the evidence of the prosecution’s own witnesses, with the documentary record, and with the binding and persuasive authorities placed before this court. The finding of the learned Magistrate on this issue was not plainly wrong; on the contrary, it was plainly right. The Consequence: Exclusion of Evidence and Failure of Prima Facie Case [58] The consequence of the breach of section 31A(1A) of the DDA is not merely procedural: it is, in the circumstances of this case, fatal to the prosecution’s case. The Appellant sought to argue that even if section 31A had been breached, the urine evidence remained admissible by virtue of the common law discretion to admit illegally obtained evidence if it is relevant. The Court of Appeal in Aizuddin Syah bin Ahmad v PP firmly rejected this approach. Hamid Sultan Abu Backer JCA, delivering the judgment of the court, held at paragraphs 13 and 15: “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. ... (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.” [59] The reason why the common law discretion to admit illegally obtained evidence is inapplicable here is rooted in constitutional principle: the DDA is a statute that prescribes a specific procedure, and that procedure cannot be overridden by judge-made common law rules derived from cases decided in other jurisdictions. Section 31A is not merely a directory provision; it is a substantive provision that conditions the lawfulness of the police officer’s action. As the Respondent’s submissions pointed out by reference to the language of section 37(k) of the DDA, the statutory presumption of self-administration is available only in respect of dangerous drugs found in urine “as a result of a urine test conducted under section 31A.” The nexus to a lawful section 31A procedure is explicit in the text of the presumption itself. [60] The consequence in the present case is straightforward. The urine specimen bottle (Exhibit P2) and the pathology laboratory report (Exhibit P4, Laboratory Report No. 10513651, prepared by SP1 on 21.10.2021, confirming the presence of Amphetamine and Methamphetamine in urine specimen bottle B078058) were obtained and produced as a result of a process that began with an unlawful demand for a urine specimen in breach of section 31A(1A). Following Aizuddin Syah bin Ahmad (supra), those exhibits fell to be excluded. Without Exhibits P2 and P4, there is no evidence before the court that any dangerous drug was found in the Respondent’s urine. The two elements of the offence under section 15(1)(a) of the DDA, namely (i) that the accused administered a dangerous drug to himself and