Pendakwa Raya v on Semiconductor Malaysia Sdn. Bhd. (NA-42ES-4-07/2025)

The offence was alleged to have been committed on 15.03.2021 at approximately 12.15noon, at Lot 122, Senawang Industrial Estate, Seremban, Negeri Sembilan.

The offence is punishable under Regulation 32 of the 2009 Regulations which provides for a fine not exceeding 3 one hundred thousand ringgit or imprisonment not exceeding five years or both.

Having perused the record of appeal and given careful consideration to the submissions of both the learned DPP and the learned counsel, this Court found no appealable error in the findings made by the Sessions Court. The appeal was accordingly dismissed. The reasons are set out below. Brief background facts [6] The respondent is a company incorporated in Malaysia carrying on the business of semiconductor manufacturing at Senawang Industrial Estate, Seremban, Negeri Sembilan. On 15.03.2021 at approximately 10.30am, an enforcement investigation was conducted at the respondent’s premises. It was carried out by SP1 and Nor‘Izzah binti Sutires. Both of them were officers of the Department of Environment (“DOE”) Negeri Sembilan.

During the course of the investigation, effluent was observed discharging from the final discharge point of the respondent’s industrial effluent treatment plant. SP1 directed Nor‘Izzah to collect effluent samples from that discharge point.

The collection was witnessed by a factory representative, SD2. Four official effluent samples were collected and marked (A), (B), (C) and (D), with each assigned the reference number MAZ/15032/OS. All four samples were subsequently delivered to the Chemistry Department on the same day at 2:37pm for analysis.

Subsequently, the Chemistry Department issued the laboratory chemical analysis report. The report recorded that the effluent sample contained Cadmium at a concentration of 1.04 mg/L, exceeding the Standard B permissible limit of 0.02 mg/L as set out under the Fifth Schedule of the 2009 Regulations.

At the close of the prosecution’s case, the Sessions Court found that the prosecution had made out a prima facie case against the respondent on all three ingredients of the charge and called upon the respondent to enter its defence.

The respondent elected to give evidence on oath from the witness stand and called eight defence witnesses. The defence case centred upon the following:

that the respondent did not use cadmium in its manufacturing processes;

that the chemical analysis results from two independent private laboratories, which separately analysed samples of effluent collected from the same discharge point on the same occasion, produced results materially inconsistent with those of the

that the prosecution’s own sampling and chain of custody procedure was afflicted by multiple departures from the relevant Standard Operating Procedures (“SOP”). [12] SD1 is a technician with the respondent. According to SD1, he collected samples of effluent from the same final discharge point of the respondent’s effluent treatment plant contemporaneously with the DOE’s official sampling. Those samples were subsequently forwarded to two independent private laboratories, namely Nabbir Laboratory (KL) Sdn Bhd (“Nabbir”) and UITM-A&A Laboratory (“A&A”). [13] SD1 acknowledged during cross-examination that he had not performed any preservation of the samples at the point of collection and before their transfer to containers brought by SD4 of Nabbir on 15.03.2021 and to SD6 of A&A who collected the samples on 16.03.2021. [14] SD2 gave evidence that the respondent did not use cadmium in its manufacturing processes. As the Global Facilities Engineer of the respondent, SD2 was personally responsible for supervising daily system monitoring and ensuring compliance with effluent discharge conditions at the respondent’s plant. [15] SD2’s evidence was supported by documentary exhibits including the respondent’s Chemical Register, analysis reports by SGS for 2019 and 2020, chemical analyses of the respondent’s influents and effluents from 2017 to 2021 and studies conducted under the Industrial Effluent Control Scheme (“IECS”) in 2017, 2020 and 2021. [16] The respondent’s compliance with the Restriction of Hazardous Substances (“RoHS”) directives, which restrict the use of Cadmium in electronic manufacturing, was also in evidence. SD2 explained that Cadmium is typically used in printed circuit board or electronic component manufacturing and is not used by semiconductor manufacturers such as the respondent. [17] The results from the two independent private laboratories diverged substantially from those of the Chemistry Department. The analysis by Nabbir detected no Cadmium whatsoever in the samples submitted by the respondent. This was confirmed by SD7 and SD3. [18] The analysis by A&A detected Cadmium in the samples only at a concentration of 0.002 mg/L, a level that did not exceed the prescribed Standard B limit. This was confirmed by SD8 and SD5. The concentration of Cadmium detected by A&A was some five hundred and twenty times lower than the Chemistry Department’s result of 1.04 mg/L. [19] Notably, SD8 who is a chemist with thirty years of experience, gave expert evidence to the effect that heavy metals, including Cadmium, are inherently very stable chemical elements that do not dissipate, vapourise or degrade significantly over time. SD8 testified that heavy metals are stable for up to six months under the APHA analytical method, and that even where preservation is not immediately applied, a Cadmium concentration as high as 1.04 mg/L would remain substantially detectable and could not be reduced to trace levels merely by a delay in preservation of one day. It is important to observe that SD8 specifically said that the deviation in results could not be of such a magnitude even if the sampling procedure had been incorrectly followed. [20] SD5 who is a chemist with seven years of experience from Nabbir Laboratory similarly testified that the degree of deviation between the Chemistry Department’s result and the results of the defence’s laboratories could not be attributable to any non-compliance with the sampling SOP. According to SD5, the deviation would not be that much even if the sampling had been done incorrectly. [21] The learned counsel also raised specific challenges to the prosecution’s own compliance with its sampling SOP. It was in evidence that SP1 failed to record or measure the temperature of the DOE’s official effluent samples in the field or upon delivery to the Chemistry Department, contrary to the requirements of the applicable Effluent SOP. [22] No photographic evidence was adduced to corroborate SP1’s claim that he had used an ice box or purchased ice to maintain the temperature of the samples during transport. SP1 also failed to record or measure the pH of the official samples in the field, and his evidence that he used litmus paper to measure the pH of the sample was unsupported by any documentary or photographic record. [23] SP2, the Government Chemist, claimed that the temperature and pH of the samples were checked at the Chemistry Department and the equipment was in good working order. However, these claims were not supported by any contemporaneous documentation. [24] The prosecution declined to produce the relevant SOP applicable to the DOE and the Chemistry Department’s procedures despite SP1’s acknowledgment that the SOP was very important. There was also a delay in the transfer of the DOE’s official samples to the Chemistry Department which were collected at approximately 10:30am and delivered to the Chemistry Department at 2:37pm. [25] At the conclusion of the defence case, the Sessions Court found that the defence had successfully raised a reasonable doubt in the prosecution’s case by reason of the issue of whether the respondent used Cadmium at all, the results of the heavy metals analysis by A&A Laboratory as confirmed by SD8, and the issues relating to sample temperature, pH, storage conditions and the equipment used by the prosecution’s chemist in conducting the analysis. Accordingly, the Sessions Court acquitted and discharged the respondent. Dissatisfied with that decision, the Public Prosecutor lodged the present appeal. Analysis and Findings Whether the respondent used cadmium in its manufacturing processes [26] The first substantive contention advanced by the learned DPP is that the respondent’s position that it did not use Cadmium in its manufacturing processes is unsubstantiated. The learned DPP submitted, with reference to the Chemistry Department’s analysis and A&A’s confirmation that trace quantities of Cadmium were detected and hence the contention of non-use of Cadmium is therefore contradicted by the evidence of both sides. [27] The learned DPP further submitted that the evidence of SP1 and SD2 to this effect constituted mere personal opinion unsupported by proof. The learned DPP specifically argued that the evidence of SP1, an investigating officer who confirmed under cross-examination that he was aware the respondent did not use Cadmium, and SD2, the respondent’s engineer, should be dismissed as individual opinions not grounded in documentary proof. [28] Respectfully, I am unable to agree. SP1 is the prosecution’s own investigating officer, a person who had access to DOE’s records pertaining to the respondent as part of his investigation. SP1 testified during cross-examination that his knowledge that the respondent did not use Cadmium was derived from his review of the company’s source records held on DOE’s files and from DOE’s Online Environmental Reporting system. [29] SP1 is not merely any member of the public expressing a personal view. He is the DOE’s own officer who reviewed the very records that the DOE maintains on regulated premises. SP1’s concession on this point is not, as the learned DPP contended, a mere personal opinion. It is an acknowledgment grounded in official regulatory records and was therefore of significant evidential weight. [30] SD2’s evidence was equally substantiated. She was the Global Facilities Engineer responsible for supervising and monitoring all water-related processes at the respondent’s plant, including ensuring compliance with effluent discharge conditions. SD2 had personal and direct knowledge of the chemical inputs used in the respondent’s manufacturing processes. Her evidence was corroborated by an extensive body of documentary proof, including the respondent’s Chemical Register, the results of periodic chemical analysis of the respondent’s influents and effluents from 2017 to 2021 showing no Cadmium at significant levels, analysis reports from SGS for 2019 and 2020 and IECS studies over multiple years. [31] The respondent’s compliance with RoHS directives further supported this position. The characterisation of this evidence as “personal opinions unsupported by proof” is unsustainable on the record and I am unable to agree with such a posit. [32] In so far as A&A detected Cadmium at a concentration of 0.002 mg/L, the respondent offered an explanation that this minute quantity may have originated from external sources such as piping or surface run-off rather than from the respondent’s manufacturing processes. SD8 and SD2 both gave evidence to this effect, noting that trace quantities of Cadmium can enter effluent streams from various incidental sources. [33] This explanation was not effectively rebutted by the prosecution and is consistent with the overall evidence that the respondent did not use Cadmium as an input material in its processes. On the evidence, it is the finding of this Court that this issue was therefore correctly resolved by the Sessions Court in favour of the respondent. Whether the A&A laboratory results were unreliable by reason of non-compliance with the sampling SOP [34] This was the most extensively argued ground of appeal. The learned DPP contended that the samples collected by SD1 on 15.03.2021 were not immediately preserved in accordance with the applicable SOP and that this failure fatally undermines the reliability of the A&A laboratory results. The learned DPP relied on SD1’s own admission that no preservation was performed at the point of collection, on the SOP’s requirement that preservation be added as soon as samples are collected, and on the evidence of SD5 and SD8 that non-preservation can affect the accuracy of analytical results by causing an adsorption effect and unreliable pH readings. The learned DPP argued that A&A’s results of 0.002 mg/L should therefore be disregarded and submitted that the prosecution has proved its case by the Chemistry Department’s result alone. [35] Respectfully, this Court is unable to accept this argument for several reasons, which are now addressed in turn. [36] First and most fundamentally, the very expert witnesses whose evidence the learned DPP relied upon for the proposition that non-preservation affects analytical reliability themselves provided critical evidence that the degree of difference between the Chemistry Department result and the A&A result could not be explained by any failure to preserve. [37] SD8 gave evidence that heavy metals, including Cadmium, are inherently very stable elements that do not vanish, vapourise or degrade substantially over time. SD8 testified unequivocally that Cadmium at a concentration as high as 1.04 mg/L would remain substantially present in a sample even if that sample were not immediately preserved as heavy metals are classified as stable parameters that can be analysed validly within a window of up to six months under the APHA method. SD8 testified that even if the sampling procedure was incorrectly followed, the deviation in results would not be of the magnitude seen between 1.04 mg/L and 0.002 mg/L, and that it was highly unlikely that a concentration of 1.04 mg/L could be reduced to a minute trace of 0.002 mg/L merely by a single day’s delay in the application of preservatives. [38] SD5 similarly testified that the deviation between the Chemistry Department’s result and the independent results would not be of such magnitude even if the sampling procedure had been done incorrectly. [39] This evidence was of considerable importance. It was not merely the respondent asserting that the A&A results were accurate. It is the respondent’s own expert witnesses providing a principled scientific explanation for why the magnitude of the discrepancy cannot be attributed to any sampling non-compliance. Pertinently, this evidence was not effectively challenged by the prosecution. [40] The learned DPP’s argument in effect asked this Court to selectively accept part of the expert evidence, namely the general principle that preservation is important, while ignoring the direct expert evidence that the scale of the discrepancy between 1.04 mg/L and 0.002 mg/L cannot be explained by any non-compliance with preservation protocols. The Court is unable to agree. [41] Second, as the respondent pointed out, the samples that SD6 collected from SD1 for A&A on 16.03.2021 were placed in containers that had already been preserved by A&A laboratory staff before being brought to the respondent’s premises. This meant that the samples were not unpreserved for an indefinite period. They were placed into pre-preserved containers on the day following collection. [42] Given SD8’s evidence that Cadmium is a very stable element that does not degrade within such a short timeframe, it is highly improbable that the one-day interval between collection and preservation had any material effect on the analytical results. [43] Third, the learned DPP’s argument on sample integrity, if accepted, carries logical implications that extend to the prosecution’s own samples. The learned DPP urged the Court to accept that non-compliance with preservation SOP invalidated the defence’s samples, but it simultaneously asked the Court to treat the prosecution’s samples as reliable without establishing that those samples complied with the applicable SOP. [44] It is pertinent to observe that the prosecution’s SOP compliance in respect of the official samples was itself called into question by the evidence adduced during the defence case. This brings us to the next issue. Whether the prosecution’s own sampling and chain of custody was free from deficiency [45] A separate but related ground raised by the respondent in resisting the appeal concerned the integrity of the prosecution’s own sampling and chain of custody procedure. [46] The learned DPP submitted at trial and on appeal that the official samples collected by the DOE were handled correctly and that SP2’s analysis at the Chemistry department was conducted using a properly calibrated atomic absorption spectrometer (“AAS”) in accordance with recognised analytical methods. However, the defence placed a detailed challenge to the prosecution’s compliance with its own SOP which the prosecution declined to produce at trial. [47] The respondent pointed to the following specific procedural deficiencies in the prosecution’s handling of its official samples:

SP1 failed to record or measure the temperature of the official samples either in the field at the time of collection or upon delivery to the Chemistry Department. This was in breach of the applicable Effluent SOP,

no photographic or documentary evidence was adduced to corroborate SP1’s claim that he used an ice box or purchased ice to maintain the samples at the required temperature during the period between collection at approximately 10:30am and delivery to the Chemistry Department at 2:37pm,

SP1 further failed to record or measure the pH of the official samples in the field. SP1’s evidence that he used litmus paper to check the pH was unsupported by any record or photograph,

SP2’s claims that he checked the temperature and pH of the samples at JKM, that the samples were stored at 4°C ± 2°C at JKM, and that the AAS used was in good working condition were similarly unsupported by any contemporaneous documentation,

most significantly, the prosecution did not produce the SOP governing the DOE’s and the Chemistry Department’s sampling and analytical procedures at trial despite SP1’s own acknowledgment that the SOP was of great importance. [48] This last point is particularly telling. The prosecution chose to challenge the defence’s non-compliance with the private laboratories’ SOP whilst simultaneously chose not to produce the DOE’s and the Chemistry Department’s own SOP to demonstrate its own compliance. It is trite that where a party declines to produce a document that would be material to its case, the court may draw an adverse inference against that party. (See: Munusamy Vengadasalam v. Public Prosecutor [1987] 1 CLJ 250 SC; Md Zainuddin B. Md. Darus & Anor v. Public Prosecutor [1994] 2 CLJ 246). [49] In the case of Arulpragasan Sandaraju v Public Prosecutor [1996] 4 CLJ 597 FC; [1997] 1 MLJ 1; [1996] 1 MLRA 588; [1997] 1 AMR 329, the Federal Court articulated the principle that where the evidence on the essential ingredients of the charge is lacking in credibility or deficient, there can be no sound conviction. Whilst this decision was rendered in the context of the prima facie test, the broader principle of ensuring the credibility and completeness of the prosecution’s evidence applies with equal force at the conclusion of the whole case under section 182A of the CPC. [50] This Court hold the considered view that it is not sufficient for the prosecution to rely on the bare assertions of its witnesses regarding their compliance with procedural requirements when those very assertions are unsupported by documentation and the applicable SOP was not placed before the court. [51] This Court therefore found that the integrity of the prosecution’s official samples and the reliability of the Chemistry Department’s analysis were doubtful. The learned DPP’s submission that the prosecution had proved its case beyond reasonable doubt on the strength of the Chemistry Department’s analysis alone was not maintainable in the face of these unresolved questions. The significance of the discrepancy between the Chemistry Department’s results and the independent laboratory results [52] The learned DPP contended that the divergence between the Chemistry Department’s result of 1.04 mg/L and the A&A result of 0.002 mg/L was explicable by the failure of the defence’s samples to comply with the SOP, and that in any event A&A’s own expert, SD8, confirmed the presence of Cadmium in the effluent samples. I have addressed both points above and find them to be implausible for the reasons already stated. [53] This Court must, however, address the broader significance of the evidentiary conflict before the trial court. The prosecution’s case rested essentially upon a single chemical analysis result from the Chemistry Department. There were no other independent checks or corroborating analyses produced by the prosecution. Arrayed against this single result were two separate independent analyses from Nabbir and A&A, both of which showed Cadmium at concentrations orders of magnitude below the Chemistry Department’s figure. Nabbir found no Cadmium at all and A&A found Cadmium at only 0.002 mg/L. The combined evidence of the defence’s expert witnesses, including SD5 and SD8, provided a scientific explanation for why this degree of discrepancy cannot be attributed to sampling non-compliance. [54] When the trial court is confronted with two irreconcilable bodies of scientific evidence, it must assess the reliability and credibility of each. The trial court is not obliged to accept the prosecution’s evidence simply because it came from a Government Chemist. (See: Teoh Kiang Hong v. Theow Say Kow & other appeals [2025] 2 CLJ 683 FC). In an adversarial criminal trial, the evidence of government analysts is not to be accepted uncritically, and it remains open to the defence to challenge both the integrity of the samples and the reliability of the analytical methods employed. [55] The defence in the present appeal did precisely that, and did so effectively. The learned trial judge as the trier of fact having the audio-visual advantage, was entitled to conclude on all the evidence before her that a reasonable doubt had been raised. (See: PP v. Sanderasegaran Nithenanham [2024] 4 CLJ 823 FC). [56] This Court is satisfied that the evaluation by the learned trial judge of the evidence was neither perverse nor against the weight of the evidence. The finding that a reasonable doubt existed was plainly open to the learned trial judge on the evidence before her, and this Court finds no basis to disturb it. (See: Lim Kheak Teong v. Public Prosecutor [1984] 1 CLJ Rep 207 SC; [1985] 1 MLJ 38; [1984] 1 MLRA 126). Whether the prosecution proved its case beyond reasonable doubt [57] The essential elements of the charge under Regulation 11(1)(b) of the 2009 Regulations are as follows:

first, that the respondent discharged industrial effluent;

second, that the effluent contained Cadmium at a concentration exceeding Standard B; and

third, that the discharge was into inland waters or Malaysian waters. [58] Whilst the first and third elements were adequately established by the prosecution’s evidence, the second and critical element, namely the concentration of Cadmium in the effluent, was in direct and irreconcilable conflict between the prosecution’s evidence and the defence’s evidence. [59] The prosecution’s case on concentration rested on the analysis of the Chemistry Department alone. The defence adduced three bodies of countervailing evidence. Nabbir’s finding of no Cadmium, A&A’s finding of Cadmium at only 0.002 mg/L, and the expert evidence of two qualified chemists from the respective laboratories that the magnitude of the discrepancy could not be attributable to sampling non-compliance. [60] To this was added SP1’s own concession that DOE’s records confirmed the respondent’s non-use of Cadmium, substantiated by extensive documentary exhibits from the respondent showing a consistent historical record of Cadmium-free effluent. [61] Furthermore, the prosecution's own sampling procedure was shown to have departed from the applicable SOP in material respects, and the prosecution did not produce the SOP that would have enabled any objective assessment of the extent of those departures. [62] Taken in the aggregate (see: Md Zainudin Raujan v. PP [2013] 4 CLJ 21 FC), this evidence was plainly capable of raising a reasonable doubt in the mind of the trial court. (See: PP v. Saimin & ORS [1971] 2 MLJ 16). This Court is unable to say that the learned trial judge erred in concluding that the prosecution had failed to discharge its burden of proof beyond reasonable doubt. Conclusion [63] For all the reasons discussed, this Court finds no merit in the appeal. The appeal is accordingly dismissed and the acquittal and discharge of the respondent as found by the learned Sessions Court Judge is hereby affirmed. Dated 11 April 2026. AHMAD SHAHRIR MOHD SALLEH JUDGE HIGH COURT OF MALAYA SEREMBAN. For the appellant: Siti Khairiah binti Abdul Razak Deputy Public Prosecutor State of Negeri Sembilan. For the respondent: Dhinesh Bhaskaran Christal Wong Ai Mei (Messrs Shearn Delamore & Co)