Subsection
(1A) 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. [6] The learned High Court Judge held that section 31A(1A) is “subservient” to the “main provision” of section 31A (1). However, we pause to observe that sections 31A(1) and 31A(1A) are both subsections of section 31A. Section 31A(1) is therefore not a “main provision”. Furthermore, it is not provided that section 31A(1A) is “subject to” section 31A(1). Nonetheless there is a link between the two subsections. The 5 urine sample to be collected under subsection 1A is for the purpose of medical examination referred to in subsection (1). The learned High Court Judge reasoned that a police officer not below the rank of sergeant may require an arrested person to furnish a urine sample only if the medical officer “made a determination” that it is not practicable for him or the person who is assisting him to obtain the said sample within a reasonable period. The learned High Court Judge further opined that the police officer in question must show proof that he had taken steps to request the medical officer to take samples and must show proof that such medical officer had informed him that it is not practicable for him do so. Premised on the argument that in the instant case, the said conditions were not satisfied, the learned High Court Judge upheld the acquittal of the respondent and dismissed the appeal of the Public Prosecutor. [7] Learned counsel for the respondent argued that it is incumbent on the prosecution to prove that it was not “practicable” for a medical officer to collect the urine sample and that such failure is fatal. [8] Our view on section 31A(1) and Section 31A(1A) is as follows. Section 31A(1) was inserted in 1983 via Dangerous Drugs (Amendment) Act 1983 (Act A553) as section 31A. The provision was subsequently amended in 2002 via Act 1167 by the addition of two new subsections of which subsection 1A is one. The original section 31A which is now subsection 31A(1) provides for a medical examination of person who is reasonably suspected of having committed an offence against the Act. We should think that it is not necessarily limited to analysing the urine sample of a suspect. Thus, suspects who had swallowed dangerous drugs to use their body as a container could be medically examined under this section. 6 [9] Section 31A(1A) which was added as a subsection in 2002 appears to target drugs addicts specifically. As pointed out by the learned Deputy Public Prosecutor, the Parliamentary Secretary who tabled the Bill in Parliament said in his speech that the main aim of 31A(1A) provision is to preserve evidence as it may not be practicable for a medical officer to procure a urine sample from an arrested suspect. The aim of 31A(1A) is also stated in the opening words of the provision, i.e. “For the purpose of preservation of evidence…” To our mind, these words are the key to interpreting this provision. Otherwise, the intention of Parliament in enacting the provision to preserve evidence in the face of the exigencies faced by enforcement authorities while carrying out operations against drug addicts would be defeated. [10] The learned High Court Judge opined that several pre-conditions must be satisfied before a urine sample can be taken by a police officer not below the rank of sergeant. His Lordship said that the police must prove in court that it was not practicable for a medical officer to obtain the urine sample from the arrested person. His Lordship also said that the determination whether the procurement of the urine sample by a medical officer is practicable must be made by the medical officer himself. In our view, such a reading of the provision is not warranted by the words of section 31A(1A). If the police are obligated to wait for the determination of the medical officer, precious time would be wasted and it is possible that traces of drugs in the body of a suspect would have disappeared by the time the urine sample is obtained. [11] In respect of the argument that the police have to “prove” that it was not practicable to send the suspect to the hospital for the medical officer 7 to obtain the urine sample, we note that section 31A(1A) does not impose that duty. It is a provision designed to preserve evidence depending on constraints of the situation faced by the enforcement authorities. Therefore, the test result from a urine sample is not rendered inadmissible merely because the police could not prove that sending the suspect to see a medical officer to take a urine sample is not practicable. [12] We find analogical support for this view in the judgment of this court in Pendakwa Raya v Mohd Safwan bin Husain [2017] 5 MLJ 255 which was cited by the learned DPP. In that case which also involved the collection of urine sample under section 31A(1A) of the Dangerous Drugs Act 1952, the respondent was acquitted on the ground that prosecution failed to prove that he was an “arrested person” which appears to be a pre-condition of section 31A(1). The Court of Appeal reversed the decision of the High Court and the Magistrates’ Court and said as follows: 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). Seperti mana yang dinyatakan di atas berkenaan dengan objektif s 31A, seksyen ini memberikan keabsahan undang-undang (lawfulness) ke atas tindakan yang dilakukan oleh pegawai-pegawai atau orang yang disenaraikan dalam mengambil sampel dan membuat pemeriksaan ke atas orang yang ditangkap. Pada pandangan kami itulah dasar utama peruntukan s 31A ini. Pada pengamatan kami lagi, skema peruntukan tersebut jelas membezakan antara pemberian kebenaran vis a vis kesahan dengan kerelevanan sesuatu bahan bukti yang diperoleh daripada tindakan 8 tersebut. Ini dapat dilihat daripada perkataan dan ungkapan yang digunakan dalam s 31A(1A) itu sendiri iaitu ‘For the purpose of preservation of evidence ...’. [13] Similarly, in the instant case, even if there was a failure on the part of the prosecution to prove that it was not practicable to send the respondent to see a medical officer for the purpose of obtaining the urine sample, we shall respectfully follow the principle enunciated in the above-mentioned case and hold that the test result in question is admissible. [14] It is also our view that the determination whether it is practicable to send a suspect to see a medical officer must be made by the police officers on the ground who must have regard to relevant circumstances with the overarching aim of preserving the evidence. We have reviewed two High Court cases that discussed the issue at hand, namely Public Prosecutor v Mohamad Rasid Jusoh [2009] 9 CLJ 557 and Choo Kah Chong v Public Prosecutor [2019] 1 LNS 13. In both cases, it was held that the distance from the hospital and the point of arrest or the police station alone is not the determinative factor in deciding whether it is “practicable” for the suspect to be brought to see a medical officer. In the latter case, the High Court said as follows: Perayu kes semasa, ketika ujian saringan awal hendak dibuat, dia tidak berada di hospital. Dia berada di Balai Polis Sungai Siput Utara. Mahkamah ini bersetuju dengan hujahan TPR, demi mengambil segera sampel air kencing Perayu bagi tujuan dianalisa oleh pegawai sains sebelum kesan dadah hilang daripada air kencing Perayu, adalah tidak praktikal untuk SP2 membawa Perayu ke fasiliti perubatan kerajaan bagi tujuan diambil sampel air kencing. Meskipun jarak perjalanan ke fasiliti perubatan kerajaan itu hanya mengambil masa 10 minit sahaja, faktor lain perlu diambil kira seperti keutamaan mendapat sampel seberapa segera bagi menjaga keutuhan sampel yang diberikan, pengangkutan, eskot, dan 9 aspek keselamatan yang lain. Pada hemat Mahkamah ini, pihak polis sebagai agensi yang melakukan penyiasatan lebih berupayaan (knows best) untuk menentukan sama ada praktikal atau tidak untuk menghantar suspek yang disyaki memasukkan atau menggunakan dadah ke dalam badan ke hospital bagi tujuan pengambilan air kencing. Sementelah pula, pengambilan sampel air kencing tidak memerlukan sebarang kepakaran khusus. Yang penting ialah pelabelan yang sempurna pada botol sampel yang berisi air kencing suspek supaya tidak bertukar dengan sampel air kencing suspek yang lain dan memastikan tiada kacau ganggu ke atas sampel tersebut bermula daripada masa sampel diambil sehingga selesai dianalisa oleh pegawai sains. [15] We are in agreement with the observations of the learned Judicial Commissioner in the above quoted passage. Coming back to the instant case, the only reason that the decision of the Magistrate was affirmed by the High Court was because the police failed to prove that it was not practicable for the respondent to be taken to see a medical officer for the purpose of taking his urine sample. Having regard to our view that such failure is not fatal, the decision of the Magistrate and High Court cannot stand. However, before we conclude this judgment, for sake of completeness we shall address other issues that were raised in the Magistrates’ Court in the instant case. Other issues [16] The learned Magistrate held that it was fatal that only one bottle of urine sample was collected by the police in contravention of the IGSO. By the time the High Court heard the appeal, the decision of this court in Public Prosecutor v Rosman Saprey & satu lagi [2019] 4 CLJ 767 was pronounced. The Court of Appeal panel in the above-mentioned case held that the IGSO that provided that two bottles of urine specimen must be 10 collected has no force of law. It was a departure from the decision of another panel of the Court of Appeal, namely, Noor Shariful Rizal bin Noor Zawawi v Public Prosecutor [2017] 4 CLJ 434. The learned High Court Judge preferred to follow the later decision of Public Prosecutor v Rosman Saprey & satu lagi (supra). We see no reason to disturb his decision on this point as it is based on the principles stated in Dalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1. [17] It was also strenuously argued before the learned Magistrate that the dipping of the test strips for the purpose of preliminary tests into the single bottle of urine could have somehow contaminated the sample to the extent that the integrity of the final test result obtained by the Government Science Officer was open to question. We find that the learned High Court Judge correctly overruled the Magistrate on this point. We note that the Government Science Officer never said that the urine sample was contaminated by the test strips that were dipped into it despite the cross-examination questions put to him on this point. All the questions were purely speculative questions without any foundation. Assuming there was foundation to the said questions, the defence can call their own expert since the Government Science Officer did not assist their case. Therefore, we are in agreement with the learned High Court Judge on this issue. Conclusion [18] As we have reversed the finding of the Magistrates’ Court and the High Court in respect of the issue of non-compliance with section 31A(1) and (1A), it must necessarily follow that the prosecution has established a prima facie case. In the premises, we allow the appeal and set aside the 11 order of the Magistrates’ Court and the High Court and in its place substitute an order that the respondent be called to enter his defence upon the said charge. SGD (RAVINTHRAN PARAMAGURU) Judge Court of Appeal Malaysia Putrajaya Dated: 11 November 2019 Parties Appearing: For The Appellant: Dato’ Nik Suhaimi bin Nik Sulaiman Dato' Umar Saifuddin bin Jaafar Faizah binti Mohd Salleh Deputy Public Prosecutor Attorney General’s Chambers For The Respondent: V. Santhiran Messrs. Charanjit, V. Santhiran And Partners