Public Prosecutor v Mohamad Zuhaili Bin Zainal (JB-42H-6-06/2020)

These are 3 appeals before this Court of which 2 are filed by the accused person (in appeals no. JB-42H-5-05/2020 as well as no. JB-42H-6-06/2020) against conviction and sentence and one was filed by the Public Prosecutor (in appeal no. JB-42H-5-05/2020) against the inadequacy of sentence. To avoid any confusion, I shall use the designation as they were in the Court below.

Both appeals are directed against the decision of the Learned Sessions Court Judge who gave the decision in Segamat whereby the Learned Sessions Court Judge convicted the accused person on a Charge of self-administration of dangerous drugs, to wit, amphetamine and methamphetamine and he thereby committed an offence under section 15(1)(a) Dangerous Drugs Act 1952 which is punishable under section 39C of the same Act. The Accused person was sentenced to an imprisonment term of 6 years and 1 stroke of the rattan.

The Accused was charged at the instance of the Public Prosecutor and the Charge reads as follows: That you, on 17 March 2018, at about 0355 hours, at the Segamat Police Headquarters Narcotics Investigation Department, in the District of Segamat, in the State of Johore, had self-administered dangerous drugs to wit, Amphetamine and Methamphetamine into your own body and you have committed an offence under section 15(1)(a) Dangerous Drugs Act 1952 which is punishable under section 39C (1) of the same Act.

The Accused pleaded not guilty and after 8 prosecution witnesses were called, the Learned Sessions Court Judge ruled that the September 14, 2021 3 prosecution succeeded in proving a prima facie case against the accused and ordered him to enter his defence. After the Sessions Court explained the 3 options to the Accused, the Accused chose to give evidence on oath and he also called his wife as a witness in support of his case.

After a full trial, the Learned Sessions Court Judge found that the Defence failed to raise any reasonable doubt and the Accused was found guilty and was convicted under section 15(1)(a) Dangerous Drugs Act 1952 which is punishable under section 39C (1) of the same Act and was sentenced to an imprisonment term of 6 years (with effect from the day of conviction which is 27 February 2020) and 1 stroke of the rattan.

PW2 arrested the Accused on 17 March 2018 at about 3.30 am while on beat duty. At the time the Accused was riding a Honda Wave motorcycle with the registration number NBV 2692. PW2 became suspicious after he observed at the unsteady manner with which the Accused was riding the motorcycle.

After the arrest, the Accused was taken to the Segamat Police Headquarters Narcotics Investigation Department on the suspicion that he took illegal drugs. At the Segamat Police Headquarters Narcotics Investigation Department, PW4 handled the Accused and he explained to PW4 the procedures of taking urine samples after which he began the sample taking. The Accused was asked to choose 2 bottles among the few which were all still wrapped in plastic packet at the bottle storage area. September 14, 2021 4

The Accused then gave his urine samples in 2 bottles and they were labelled SN1666166 and SN166168 respectively. The bottle labelled SN1666166 was tested with a strip test that was supplied by the Royal Malaysian Police Force and the sample was found to be positive with the presence of Methamphetamine. The bottle labelled SN166168 was not tested at all. Both bottles were labelled with details of the case number and some personal information of the Accused and the Accused signed on the labels that were pasted on these 2 bottles.

Both bottles were then sealed properly by PW4 and handed over to PW6 who kept both bottles in a refrigerator until they were handed over to PW3 who sent them to the Pathology Department of the Sultanah Aminah Hospital, Johor Bahru. PW3 handed the bottles to PW7 at the Pathology Department, Sultanah Aminah Hospital, Johor Bahru. The 2 samples were later handed to PW8 who is a gazetted Science Officer, conducted some tests. They are the Immunoassay Test and Gas Chromatography–Mass Spectrometry test which is also known as GCMS Test.

PW8 found that in both samples, there were the presence of 2 dangerous drugs namely Amphetamine and Methamphetamine. PW8 prepared a Chemist Report for the results of the testing and both drugs are listed in the Part III of the 1st Schedule, Dangerous Drugs Act 1952.

PW6 gave evidence that there were 2 previous convictions of the Accused for offences under section 15(1)(a) Dangerous Drugs Act 1952 which was received from PW1 on 23 July 2018. PW1 is the September 14, 2021 5 Deputy Registrar of the Subordinates Court who tendered the Court records in respect of previous convictions.

The Learned Sessions Court Judge after making a maximum evaluation, found that the prosecution has made out a prima facie case and ordered the accused to enter his defence.

In his defence, the Accused called 2 witnesses who were himself and his wife.

The Accused gave evidence on oath as DW1. His evidence was that on 17 March 2018 at 3.30 am he was with his wife (DW2) and they were riding a motorcycle and they stopped at Jalan Genuang, Segamat, and Johore.

Suddenly they were approached by 3 police officers on motorcycles. The police officers made a search on the person of DW1 but found nothing incriminating on his person. He was then taken to the Police Station for a urine test. His wife (DW2) took back the motorcycle back.

At the police station, he was given 2 bottles to collect samples. Of the 2 bottles, one had no cap. The 2 bottles according to DW1 were already open when the bottles were handed over to him. After the samples were collected he was asked to sign on a document but he does not know what is the document all about.

DW1 said that he was not explained of the procedures for the sample taking and he merely listened and followed any directive given to him. There was only one police escort and another one September 14, 2021 6 sat nearby but he was certain that they were neither not Inspector Raimi bin Romaino (PW4) nor Corporal Hafizi bin Mohd Zain (PW5).

After the taking of the samples, he was taken to a lockup until he was released later that day at 4 pm. He never met Sergeant Fatra Haffiz bin Amiruddin (PW6) until he was charged in court. Before his release, at 10 am that morning he was taken to see Inspector Ana Fendi to sign a document which he was uncertain as to it nature and content.

The evidence of his wife Nurul Farhana binti Abdul Ghani (DW2) was that at 3.30 am when she was riding pillion with DW1 they were stopped by the police after which DW1 was taken to the police station and she took the motorcycle home. She is not in the know of what happened to DW1 at the police station and she stood as a surety / bailor the next day at 4 pm and she picked him up at the police station.

The Learned Sessions Court Judge found that the Defence failed to raise any reasonable doubt and convicted the Accused Person on the Charge proffered against him. THE ISSUES IN THIS APPEAL i. Whether the failure of the Learned Sessions Court Judge in stating in her judgment the finding of a Prima Facie case against the Accused is fatal to the convictions. September 14, 2021 7 ii. Whether the Learned Sessions Court Judge failed to consider the Defence’s case when making a finding of a case beyond all reasonable doubt. iii. Whether the Learned Sessions Court Judge failed to evaluate prosecution evidence in making a prima facie case. iv. Whether section 39C Dangerous Drugs Act 1952 is applicable v. Whether the sentence meted by the Learned Sessions Court Judge was proper in law. I shall deal with the issues accordingly. i. Whether the failure of the Learned Sessions Court Judge in stating in her judgment the finding of a Prima Facie case against the Accused is fatal to the convictions. ii. Whether the Learned Sessions Court Judge failed to consider the Defence’s case when making a finding of a case beyond all reasonable doubt. iii. Whether the Learned Sessions Court Judge failed to evaluate prosecution evidence in making a prima facie case.

These 3 issues shall be dealt with together.

The first complaint that the Learned Counsel for the Accused Person made against the judgment of the Sessions Court was that there was no finding of a prima facie case against the Accused Person.

After perusing over the Appeal Records, I found that there was a finding of a prima facie case against the Accused which may be September 14, 2021 8 found at page 42 of Appeal Record (Enclosure 7) where the Learned Sessions Court Judge pronounced that she found that the prosecution succeeded in proving a prima facie case against the accused and ordered him to enter his defence. I think the real complaint is that in the learned judgment there was no evaluation of evidence of the prosecution witnesses and hence the question whether the finding of prima facie was properly done.

It must be remembered that the duty of the Trial Court is to decide on the guilt or otherwise of an appellant and the High Court sitting in an appellate jurisdiction should be concern whether the conviction was safe and not whether the Trial Judge was wrong.

This has been said by his Lordship Justice Gopal Sri Ram in MOHD JOHI SAID & ANOR v. PP [2005] 1 CLJ 389, his Lordship guided us on the duty of the appellate court in criminal case in these words, inter alia, Unlike civil appeals, where the appellant carries the burden of showing that the judge at first instance went wrong, in a criminal case the duty of the court is to consider whether the conviction is right. The correct approach is therefore not whether the decision is wrong but whether the conviction is safe.

The issue of whether the conviction is safe is not the issue of judgment, speaking or otherwise but the issue of sufficiency of evidence against an Accused Person.

I am mindful that a High Court in the exercise of its appellate jurisdiction may treat the appeal as rehearing. This was echoed in BALASINGHAM V. PP [1959] 1 MLJ 193 where it was held that September 14, 2021 9 “An appeal is merely a continuation of proceedings by way of rehearing and litigants as well as the Appellate Court are entitled to know the reasons for the finding.”

The House of Lords explained the real duty of the Court in a criminal trial in the case of R V SANG [1980] AC 402, where the House of Lords has this to say, inter alia, “… the fairness of a trial is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted.”

When we talk about the issue of guilt of a person, it boils down to the issue whether the evidence adduced was sufficient under the law to make a finding of guilt.

Having carefully scrutinised the Appeal Record, particularly the judgment of the Learned Sessions Court Judge, I am of the view that the judgment by the Learned Sessions Court Judge was on the sentence and she had overlooked writing one on evidence adduced due to the fact that there were 3 notices of appeal.

I had the same problem once, when I delivered a judgment on conviction but the notice of appeal filed later by the Public Prosecutor was against the sentence. This may be seen in the case of PUBLIC PROSECUTOR v ROSNAN BIN ISMAIL [2020] MLJU 1817, where my secretary uploaded the 1st judgment on conviction which discussed evidence t in response to the appeal by the Public Prosecutor. Later, when I came to realised that the appeal was in respect of sentence only, I wrote a supplementary September 14, 2021 10 one, entirely on sentence as published as PROSECUTOR v ROSNAN BIN ISMAIL [2020] MLJU 1816.

An appellate court is duty-bound to endeavour to make its own findings of fact, based on the evidence on the record. (see HONG YIK PLASTICS (M) SDN BHD v. HO SHEN LEE (M) SDN BHD & ANOR [2020] 4 CLJ 479).

In EX P KHAN (MAHMUD) [1983] QB 790 at pg 794-795, the Lord Chief Justice in the person of Lord Lane had spoken on the entitlement of the Defendant to know the basis of fact upon which the conclusion has been reached by the tribunal as follows: “A party appearing before a tribunal is entitled to know, either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases, it may be perfectly obvious without any express reference to it by the tribunal: in other cases it may not. Secondly, the defendant is entitled to know the basis of fact upon which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not.”

However his Lordship Justice Sharma in MOHAMED MOKHTAR V. PUBLIC PROSECUTOR [1972] 1 MLJ 122 when commenting on the absence of reasons in a judgment had this to say: “It has been said there are no findings of fact and that the learned president has not given his reasons. It is undoubtedly desirable that the learned magistrates and the learned presidents should when writing their grounds of decision give their findings and the reasons for those findings. It has been suggested that it is September 14, 2021 11 mandatory on the part of the learned magistrates and the learned presidents to give such reasons.”

The advantage of a speaking judgment needs no emphasis. The trial court is under a statutory obligation under s. 308 of the Criminal Procedure Code to transmit to the appellate court the grounds of decision which convey a reasoned judgment on the facts and the law, not merely the conclusion arrived at, per his Lordship, Justice Ismail Khan (as he then was) in BALASINGHAM V. PP [1959] 1 LNS 8; [1959] 1 MLJ 193. (see also JAFFAR B. ABU & ANOR V. PP [1933] 2 MLJ 363).

I must also need to refer to the observation of Justice V.K. Rajah in the Singapore Court of Appeal case of THONG AH FATT V. PUBLIC PROSECUTOR [2011] SGCA 65 on the judicial duty to give reasons. It states: “About two centuries ago, Lord Mansfield reportedly gave to a general who had to sit as a judge the following advice: Never give your reasons; for your judgment will probably be right, but your reasons will certainly be wrong: see Lord Campbell, The lives of the Chief Justices of England vol 3 (James Cockroft & Co, 1874) at p 481. Today, such advice even from a jurist as eminent as Lord Mansfield, would be regarded as judicial heresy and inimical to sound judicial practice. Judicial decisions that are bereft of reasoning are, of course, impervious to scrutiny and challenge, effectively making judges unaccountable for their decisions. This is plainly unacceptable in any modern society. We note that historically, as the role of juries in fact-finding declined, it has been acknowledged in all mature common law jurisdictions as an elementary principle of fairness that parties are not only to be given a fair opportunity to be heard, but also apprised of how and why a judge has reached his decision.” September 14, 2021 12

I am fully entitled to examine the evidence myself to ensure that the findings made by the learned Sessions Court Judge was correct as was held by the Federal Court in AHMAD NAJIB BIN ARIS V. PUBLIC PROSECUTOR [2009] 2 CLJ 800; [2009] 2 MLJ 613 which was quoted with approval by the Federal Court in PATHMANABHAN NALLIANNEN V. PUBLIC PROSECUTOR & OTHER APPEALS [2017] 4 CLJ 137. At page 642, this is what the court held: “46... The Court of Appeal has the discretion to re-evaluate the remaining evidence and to scrutinize in totality such other evidence, apart from the confession to determine whether the evidence is sufficient to satisfy all the elements of the charges against the appellant. After all such steps have been taken, the Court of Appeal is obliged to scrutinize whether the evidence is sufficient to affirm the conviction against the appellant. (See PP V. ABDUL RAHMAN AKIF [2007] 4 CLJ 337)...”

It is important to remember that the trial judges has a duty to adhere to this principle on admissibility of evidence in a criminal trial, lest not to be faulted for admitting prejudicial and inadmissible evidence. Inadmissible evidence remains so, albeit no objections taken on it during the trial by the accused or his counsel. (See the case of HAMSA KUNJU V. REGINA [1963] 1 LNS 35; [1963] 29 MLJ 228; STIRLAND V. DIRECTOR OF PUBLIC PROSECUTION [1944] AC 315 at p. 328).

In our instant appeal, it is in evidence that PW2 arrested the Accused on 17 March 2018 at about 3.30 am while on beat duty. At the time, the Accused was riding a Honda Wave motorcycle with the registration number NBV 2692. The Accused was acting in a suspicious manner while riding the motorcycle. It attracted the September 14, 2021 13 attention of PW2 and based on a reasonable suspicion basis, he stopped the Accused and searched his person and decided to take the Accused back to the station for further investigations.

After the arrest, the Accused was taken to the Segamat Police Headquarters Narcotics Investigation Department because of the suspicion that he took illegal drugs.

It is also in evidence that at the Segamat Police Headquarters Narcotics Investigation Department, PW4 handled the Accused and he explained to PW4 the procedures of taking urine samples and began the sample taking. The Accused was asked to take 2 bottles among the few which were all still wrapped in plastic packet at the bottle storage area. The Accused then gave his urine samples in 2 bottles and they were labelled SN1666166 and SN166168 respectively.

The bottle labelled SN1666166 was tested with a strip test that was supplied by the Royal Malaysian Police Force and found to be positive with the presence of Methamphetamine. The bottle labelled SN166168 was not tested at all. Both bottles were labelled with details of the case number and some personal information of the Accused and the Accused signed on the labels that were pasted on these 2 bottles.

Both bottles were then sealed properly by PW4 and handed over to PW6 who kept both bottles in a refrigerator until they were handed over to PW3 who sent them to the Pathology Department of the Sultanah Aminah Hospital, Johor Bahru. September 14, 2021 14

PW3 handed the bottles to PW7 at the Pathology Department, Sultanah Aminah Hospital, Johor Bahru. The 2 samples were later handed to PW8 who is a gazetted Science Officer, and she conducted some tests. They are the Immunoassay Test and Gas chromatography–mass spectrometry test which is also known as GCMS Test. PW8 found that in both samples, there are the presence of 2 dangerous drugs namely Amphetamine and Methamphetamine. PW8 prepared a Chemist Report for the results of the testing and both drugs are listed in the Part 3 of the 1st Schedule, Dangerous Drugs Act 1952.

The key challenge to the evidence of PW4 was that PW4 was said to have given the bottles without any cap on them as well as he did not supervise the Accused depositing the urine samples into the bottles. These were denied and the proof of this was that the Accused signed on the labels. PW3 was asked on the manner he handled the urine samples in the bottles which he explained as per the evidence above.

PW5 was cross-examined on whether the strip used in the strip test for dangerous drugs were expired or otherwise. PW5 answered he does not know.

The main challenge in respect of PW6 was that the taking of samples was not done in accordance to proper procedures of sample taking, to which PW6 denied such allegation.

The allegation that PW4 did not supervise the accused depositing the urine samples into the sample bottles came from the accused September 14, 2021 15 but in the same breath, the accused’s version was that PW4 was not the person in the room.

So the challenge is either PW4 was not in the room and hence did not see the accused depositing his urine sample into the bottles or that PW4 was in the room but did not supervise the accused depositing the urine samples into the bottles. I scrutinised the cross-examination of PW4 which may be found in Enclosure 7 (Appeal Record) at pages 13 until 17 where the crux of the cross-examination are as follows: a. That PW4 chose the 2 sample bottles and open them and gave the uncapped bottle to the accuse which was denied by PW4 who explained that the accused chose the bottles at random from a bottle storage area and these bottles were in plastic wrapper. b. That the bottles were unclean, an allegation which was denied because PW4 saw that they were both clean and fresh ones (unused prior to this incident). c. That PW4 did not personally see the accused depositing the urine samples into the bottles but at that material time, he assigned Corporeal Hafizi (PW5) to supervised the sample giving process and who escorted the accused to the latrine where the sample taking was done. PW4 however was still in the same room and could observe from afar, what the Accused was doing. d. That PW4 did not witness the signing on the documents by the accused but this was denied by PW4 because PW4 was the one who gave and explained the documents and invited September 14, 2021 16 the accused to sign on them and he personally witness the process.

There was no challenge against PW4 that it was someone else and not himself who conducted and / or supervised the whole process of sample taking.

Apart from his own answers to the challenge are logical and reasonable and not inherently incredible, they are supported by documentary evidence as follows: i. P6 which is the Donor of Urine Sample Acknowledgement Form signed by DW1. ii. P8, “the handing over of urine sample” Acknowledgement Receipt and it was signed by PW4 and PW3. iii. P22, the Urine Testing Request Form which was signed by DW1 and PW3. iv. P5 A-F, which are 5 photographs taken of the urine sample bottles where the signature of both the PW4 as well as DW1 were found and could be seen. v. The 2 Urine Sample Bottles which were tendered in Court as P3 and P4

Hence, DW1’s testimony that it was not PW4 and someone else who conducted the sample taking is not only an afterthought but clearly overwhelmed by prosecution evidence in the form of those from PW4 supported by PW3 as well as PW5, apart from the documentary evidence, particularly the photographs P5 A-F. September 14, 2021 17

I find it a little strange asking other witnesses other than the ones involved directly with the sample taking particularly in respect of the procedures. These challenges were not mounted against PW4, Inspector Raimi who conducted the sample taking. Instead it was mounted against PW5 who was an escort and not the police officer conducting the sample taking. PW5 testified that PW4 followed the procedures and it was put to him that the proper procedures in urine sample were not followed.

I have no doubt that PW5 did escort DW1 (the accused) but his main concern was that DW1 do not run away or that DW1 would not pollute the sample with other liquid. While he may observe some of the procedures taken by PW4 but certainly he would not be as concern on the exact procedures to be followed. The man to challenge remains PW4.

In view of my observations above, I found that the Defence did not put the defence version to the relevant prosecution witnesses. This diminished the standing of the Defence. This was the position taken by the Federal Court in DUIS AKIM & ORS v. PP [2013] 9 CLJ 692 where it was held that -

The IP for the second and third appellants was also on the basis of three rounds. According to PW11 on each round PW1 identified the second and third appellants by pointing and touching them. Before the second round the second and third appellants opted to change their positions in the line-up but not their clothes. PW11 also testified that he did not know whether photographs of the appellants were taken before the IP. And he did not know if PW1 was shown the photographs of the appellants before the IP. Again we would say that learned counsel for the appellants did not put such suggestion to PW1 and PW7 when they were in the witness box. September 14, 2021 18 Such failure in our view had made such allegation an afterthought on the part of the defence e. (See: HAMIDON MAT YATIM V. PP [1995] 3 CLJ 724).

After the IP, a report was prepared by PW11 that was admitted as an exhibit without objection by learned counsel for the second and third appellants.

From the evidence adduced on the conduct of the IP as summarised above, we find that there was therefore no basis and indeed, with respect, was factually and evidentially an error for the learned trial judge at the end of the whole case to come thus to his finding: The prosecution’s case was a mere concoction built on doubts and conjectures. It started with the testimony of PW1 who claimed that he saw the faces of the three appellants for 5 long minutes at the cash register. Yet, he was the same person who could not recognise the three appellants during the Identification Parade. It is in evidence that he went round them more than thrice and yet he could not identify them. PW1 could only identify them upon being allegedly shown photographs of the three appellants when he went back from the first few rounds of Identification Parade into a room at the Police station.

In fact, on closer perusal of the evidence of PW7 (‘Corporal Petros @ Alam bin Runsab’) there was no reference of photographs of the appellants taken by him for ‘remembrance’. Indeed he was not even cross-examined on the issue. PW7 only photographed the appellants upon their arrest and that was a procedural requirement. Thus there is also no basis for the learned trial judge to thus remark in his judgment: There was suggestion by the defence that identification could only be made when PW1 was shown photographs of the three accused. Testimonies were made in Court by the September 14, 2021 19 three appellants that photographs were taken of them were taken twice. One was an official photograph following proper procedure with the registration number while on another occasion it was taken for “remembrance” said by Cpl Petrus @ Alam bin Runsab (PW7). The said PW7 has not denied having done so. PW7 could not be expected to deny a matter that he was never confronted in the first place when he was in the witness box.

PW7 and PW1 were also not cross-examined by learned counsel for the appellants on their allegation that PW7 had told PW1 ‘jangan takut, pegang saja dialah tu’ (Do not be afraid, just touch that's him) or words to that effect. Again we would say that such failure would strongly indicate that such allegation was just an afterthought.

There are a few legal principles that were enunciated in DUIS AKIM (supra), among others : i. The Defence must put its case to the prosecution witness to test their credibility of not only the prosecution witnesses so tested but the strength and weight that may later be given to the prosecution’s case. ii. The cross examination must not just be put to any prosecution witness but rather to the relevant prosecution witness. It makes no sense to ask a police photographer of the accuracy of the chemist testing when he has not part to play in the testing. It would be commonsensical to put across such version to the relevant chemist (or others in the same nature of evidence). September 14, 2021 20 iii. Failure to do no.(ii) would still invite acceptance of the prosecution’s case subject to whether the evidence adduced were of the “inherently incredible nature” or “of a romancing character of evidence” or “embellishments which glorify beyond its actual stature of the evidence”. iv. It can also further invite the comments from the adversary that the Defence version is an afterthought and has little if any, weight at all.

As such, I take that the evidence of PW4 stands as no challenge was mounted as in WONG SWEE CHIN v. PROSECUTOR [1981] 1 MLJ 212, where the Federal Court (through the learned judgment of his Lordship the Chief Justice (Malaya) Raja Azlan Shah (as His Majesty then was)) ruled, On this point we need only say there is a general rule that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness's testimony.

No challenge in respect of the motive(s) the police would have in concocting evidence or tampering with the urine samples in bottles labelled SN1666166 and SN166168 respectively, and as such I invoke the presumption under section 114 (g) Evidence Act 1950 which reads as follows, 114 Court may presume existence of certain fact The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume:- September 14, 2021 21 ...

that judicial and official acts have been regularly performed; [59] The Federal Court in MD ZAINUDIN RAUJAN v. PP [2013] 4 CLJ 21, the facts were that before their Lordships of the Apex Court, the appellant contended that he was assaulted by the police after his arrest, that he did not inform PW5 that he kept the drugs at the orchard behind his father's house, that he did not point to the various spots where the drugs were concealed and that the police had recovered the drugs by themselves and not through information supplied by him, that he only signed P17 after the recovery of the drugs with the result that the trial judge had misdirected himself in law when admitting exhibit. P17, that the trial judge was in serious error in ruling that PW5 was a credible witness as there were inconsistencies in the evidence of PW5, and finally, that the non-calling of Chief Inspector Ramesh and Sergeant Major Ahmad Rosli as witnesses was fatal to the prosecution's case. It was not quite in dispute that PW5 was the only single witness upon whom the entire prosecution's case was based, and in the event, a question inter alia arose as to whether the decisions of the courts below, on the facts and the circumstances, ought to be sustained or disturbed by the Federal Court. PW5 was a police witness. The learned trial judge found him to be a credible witness. It is true that the prosecution’s case rested solely on the evidence on PW5. However, under the law there is no requirement for his evidence to be corroborated. The learned trial judge believed PW5 and as such his evidence was sufficient to establish the case for the prosecution. Any requirement for PW5's evidence to be corroborated will conflict with s. 134 of the Evidence Act 1950 which provides that no particular number of September 14, 2021 22 witnesses shall in any case be required for proof of any fact (see BALACHANDRAN V. PP [2005] 1 CLJ 85). [60] The evidence of the prosecution witnesses may be found in Enclosure 7, and I have scrutinised them and I make the following findings: i. The urine samples in bottles labelled SN1666166 and SN166168 respectively were indeed taken from the Accused himself ii. The taking of the samples in bottles labelled SN1666166 and SN166168 respectively, were explained to the Accused of both, in the procedure as well as the nature of the samples taken and for what purpose the urine samples were taken and this was done by PW4. No challenge was mounted against the evidence of PW4 and no improper motives imputed. iii. The samples were properly keep (not only in safe keeping from human intervention but also from conditions that may result in deterioration) and no tampering or improper delivery happened along the way until it reached PW8, the Science Officer. iv. The findings of PW8 was that the 2 samples contained Amphetamine and Methamphetamine as per the Charge proffered. The only challenge was that of the samples were not kept in refrigerator, to which PW8 explained that the samples would have bacteria cultured in them but PW8 said that this would not change anything in respect of the drugs content in the urine (if any). September 14, 2021 23 [61] I have also noted the evidence of PW1 who is the Deputy Registrar of the Subordinate Courts, Segamat who adduced court records of previous convictions. This is relevant under section 14 and 15 Evidence Act 1950 and the Supreme Court in WONG YEW MING V. PP [1990] 1 CLJ Rep 321; [1990] 2 CLJ 946; [1991] 1 MLJ 31. A question of law of public interest was referred to the Supreme Court as follows: “whether in a trial in which the accused is charged for trafficking in respect of a particular quantity of dangerous drugs, to wit, heroin, at a particular place and time, evidence may be admitted that on previous occasions he had sold dangerous drugs, although such evidence is prejudicial to the accused.” [62] The answer to the question posed was in the affirmative. [63] Having perused over the Appeal Records and the documents and making a maximum evaluation of the evidence adduced by the prosecution, the challenges mounted by the Defence, I am satisfied that a prima facie case was made out by the prosecution against the Accused and the Learned Sessions Court Judge was right in ordering the Accused Person to enter his defence and no miscarriage of justice that would invite judicial interference, has been occasioned. [64] I have also taken the full liberty of evaluating the Defence evidence which are as follows: [65] DW1 said that he was not explained of the procedures for the sample taking and he merely listened and followed any directive given to him. There was only one police escort and another one September 14, 2021 24 sat nearby but he was certain they were not Inspector Raimi bin Romaino (PW4) and Corporal Hafizi bin Mohd Zain (PW5). [66] After the taking of the samples, he was taken to a lockup until he was released later that day at 4 pm. He never met Sergeant Fatra Haffiz bin Amiruddin (PW6) until he was charged in court. Before his release, at 10 am that morning he was taken to see Inspector Ana Fendi to sign a document which he was uncertain as to it nature and content. [67] The evidence of his wife Nurul Farhana binti Abdul Ghani (DW2) was that at 3.30 am when she was riding pillion with DW1 and they were stopped by the police on motorcycles. After which DW1 was taken to the police station and she took the motorcycle home. She is not in the know of what happened to DW1 at the police station and she stood as a surety / bailor the next day at 4 pm and she picked him up at the police station. [68] I have scrutinised the Defence evidence and the Accused Person’s challenges centred on the following: i. PW4 was not the one processing him and the procedure during the sample taking was conducted by someone other than PW4. ii. He was not explained of the procedures of the taking of urine samples. iii. The bottles were without caps and the bottles are not fresh new bottles. iv. He did sign on some documents and he did so because he was directed by the police. September 14, 2021 25 v. He does not know what the documents that he signed on were all about, either of their nature or their contents. [69] I also take note of the following : a. The Accused admitted giving the urine samples. b. The Accused admitted signing the documents although he didn’t know what they were. c. The Accused did not suggest any possible motive on why the police would frame him up or the other witnesses too. No suggestion of any axe to grind. d. The Accused challenged the procedures adopted by the police on the other witnesses but not on PW4 who is the key person in the collection of the urine samples. e. DW2 is of not much assistance as she was not at the police station when the samples were taken. f. DW1 worked as a technician and he is not an illiterate person. His profession would entail enquiring on documents or procedures but apparently his knowledge and skills were not deployed in this case. g. There is no suggestion of any threats or impediments if the Accused Person wanted to ask or enquire on the procedures or purpose of the urine sample taking. h. It is common knowledge in Malaysia about offences in respect of self-administration of drugs or urine sample taking. The prudent man on the street would know of these matters and it certainly not rocket science. Maybe the workings of chemical testing is not available to the public at large but that is distinct from the offences of self-administration of drugs or urine sample taking by the police. September 14, 2021 26 [70] In my view, it is not that he was impeded from asking or knowing the procedures or he could not know but rather that the truth was that the procedures were indeed explained to DW1 by the police and the correct procedures were followed. [71] After making a maximum evaluation, I found that the prosecution succeeded in proving a case beyond all reasonable doubt and the conviction against the Accused as found by the Learned Sessions Court Judge is safe. iv. Whether section 39C Dangerous Drugs Act 1952 is applicable. [72] It is in evidence that PW1 came to Court as Assistant Registrar of the Subordinates Court in Segamat and he tendered Court records of the previous convictions of the Appellant which were all in Segamat Court Archives. [73] The challenge against this was that non-compliance with section 400 Criminal Procedure Code where it has been argued by the Learned Defence Counsel that only the Registrar of Criminal Records in Malaysia and Singapore could tender the records of previous convictions. I noted that the basis of this challenge was the case of MUHAMAD YUZIE YUSOH lwn. PP [2017] 1 LNS 2267 his Lordship Justice Hassan Abdul Ghani is of the view as follows, [37] Walaupun Perayu telah mengakui dia mempunyai kesalahan lampau, Mahkamah berpendapat adalah menjadi tugas dan tanggungjawab pihak pendakwa untuk mengemukakan rekod itu dengan baik dan sempurna untuk memuaskan hati mahkamah. Mahkamah ini berpendapat P5 tidak mencukupi untuk membuktikan September 14, 2021 27 tanpa was-was yang munasabah Perayu mempunyai rekod jenayah lampau/sabitan terdahulu. (English translation : although the accused admitted to his previous convictions, this Court is of the view that is the duty of the prosecution to tender the records properly and correctly to satisfy the Court. This Court is of the view that P5 is insufficient to prove beyond any reasonable doubt that the Appellant has previous criminal records / convictions) [74] It was argued by the Learned Defence Counsel that the learned judgment of his Lordship Justice Hassan Abdul Ghani was upheld by the Court of Appeal. [75] I have tried to research on the case in the Court of Appeal and the ratio decidendi of the case. Unfortunately I am unable to find the grounds of their Lordships, the Learned Justices of the Court of Appeal and hence I am unable to ascertain the reasoning behind the decision. [76] Nonetheless even in the absence of a written judgment of the Court of Appeal, this argument is not without force because Act No. 7 which is the REGISTRATION OF CRIMINALS AND UNDESIRABLE PERSONS ACT is the statute that entrenches the supervisory provision pertaining to proper registration of criminals wherein the preamble which reads as follows “An Act to consolidate and amend the laws providing for the registration of certain criminals, banishees, expellees, deportees and restrictees and for other purposes connected with it”. September 14, 2021 28 [77] Section 10 of the said Act spells out the requirements for the admissibility of evidence of matters prescribed therein which states: 10 Proof of finger impressions and previous convictions

Subject to subsection (2) every-

finger print form if duly authenticated by the authenticating officer;

certificate, document or extract (whether relating to finger impressions or otherwise) which is-

based on entries extracted from the register; and

(ii) certified by the Registrar to be so extracted; or

Certificate signed by the Registrar that-

the finger impressions of a person have been compared with other finger impressions previously or subsequently taken; and

(ii) the finger impressions which have been compared belong to one and the same person, shall be admissible as evidence in court and be sufficient proof of the matters described therein unless the contrary is proved.

When any certificate referred to in paragraph (1)(c) is admitted in evidence in court, the court or the accused may summon the Registrar as a witness and where the accused does so he shall give notice to the Public Prosecutor not less than ten days before the commencement of the trial. [78] Shorn of the irrelevant parts, it shall read as follows “certificate, document or extract (whether relating to finger impressions or otherwise) which is-(i) based on entries extracted from the register; and(ii) certified by the Registrar to be so extracted; or(c) certificate signed by the Registrar that the finger September 14, 2021 29 impressions which have been compared belong to one and the same person, shall be admissible as evidence in court and be sufficient proof of the matters described therein unless the contrary is proved.” [79] In short, reading section 400, Criminal Procedure Code together with section 10 of the Registrations of Criminals and Undesirable Persons Act, it seems that only the Registrar's Certificate or an extract which is certified by the Registrar, is the prima facie evidence of the registration of certain criminals, banishees, expellees, deportees and restrictees. [80] Section 10 has a presumption that is “shall be admissible as evidence in court and be sufficient proof of the matters described therein unless the contrary is proved.” When there is a presumption in a law, the Court must be cautious in applying it by strictly following to the letter of the law. [81] There are 3 parts here, the first, “shall be admissible as evidence in court” and the second, “be sufficient proof of the matters described therein” and the third, “unless the contrary is proved”. [82] In AWANG AHMAD FAISAL AWANG SOHOR v. PP [2015] 7 CLJ 955, the accused (“the appellant”) was charged under s. 15(1)(a) Dangerous Drugs Act 1952. He was convicted on his own plea of guilty and was then sentenced to six months imprisonment and supervision for three years under s. 38B Dangerous Drugs Act

The sentence took effect from the date of sentencing i.e., 6 March 2015. The crucial part of the complaint was this. The September 14, 2021 30 appellant was never told of the consequence of his guilty plea that in passing sentence in the instant case, the learned Magistrate will take into account his previous convictions in Case No. SRA-83D- 23-1-2015. As appeared in the notes of proceedings, the appellant was only told of the nature and consequences under ss. 15(1) and 38B DDA 1952 but nowhere was he ever been told by the learned Magistrate of the effect of his earlier plea of guilty to Case No. SRA-83D-23-1-2015 (p. 10 of the Appeal Record). Hence the appeal. It was held by the High Court, inter alia, [6] In my opinion, there is nothing wrong for the learned Magistrate to take into consideration the accused's previous convictions before passing the sentence. This has been the practice by the court for the past years until now. It would only be reasonable for the court to consider the accused's past record of previous convictions in order to determine the appropriate sentence to be meted out. The sentence given to the accused with previous record of past convictions would certainly be different from the sentence given to the first offender committing similar offence. .... [7] Notwithstanding that the reference to the record of the accused's previous convictions is permissible before the court passes sentence. In my view proper procedures have to be followed to ensure there is no miscarriage of justice. First, the accused's record of previous convictions must be furnished to court or at least presented orally by the prosecution in the hearing of the accused. ... September 14, 2021 31 [8] Secondly, the accused must be asked whether the lists of previous convictions were admitted to be correct. By confirming that there were previous convictions held against him, the accused must have been aware that those convictions could be used by the court to determine sentence against him. [83] Section 400 Criminal Procedure Code provides for the procedure of previous convictions and is reproduced for ease of reference.

How previous conviction or acquittal may be proved

In any inquiry, trial or other proceeding under this Code a previous conviction or acquittal or an order directing any person to be under the supervision of the police may be proved in addition to any other mode provided by any law for the time being in force-

by an extract certified under the hand of the officer having the custody of the records of the Court whether of Malaysia or the Republic of Singapore in which that conviction or acquittal was had to be a copy of the sentence or order; or

in case of a conviction either by a certificate signed by the officer in charge of the prison in Malaysia or the Republic of Singapore in which the punishment or any part of it was inflicted, or by production of the warrant of commitment under which the punishment was suffered, together with, in each of those cases, evidence as to the identity of the appellant with the person so convicted or acquitted.

In case the officer in charge of any prison shall state in any certificate signed by him that the finger prints which appear on the certificate are those of the person to whom the certificate relates, that certificate shall be evidence of the fact so stated. September 14, 2021 32

Every Court shall presume to be genuine every document purporting to be a certificate of conviction and purporting to be signed by the officer in charge of any prison in Malaysia or the Republic of Singapore, and shall also presume that the officer by whom the document purports to be signed was when he signed it the officer in charge of the prison mentioned in that document. [84] There are 2 modes specifically provided for by section 400 which are:

by an extract certified under the hand of the officer having the custody of the records of the Court whether of Malaysia or the Republic of Singapore in which that conviction or acquittal was had to be a copy of the sentence or order; or

in case of a conviction either by a certificate signed by the officer in charge of the prison in Malaysia or the Republic of Singapore in which the punishment or any part of it was inflicted, or by production of the warrant of commitment under which the punishment was suffered. [85] However there is a supplementary mode under Section 400 which provides for “in addition to any other mode provided by any law for the time being in force”. [86] “any other mode provided by any law for the time being in force” is very wide and it includes the Evidence Act 1950. The Record of Conviction is not in itself a criminal matter but rather it is a record that concern criminal conduct of the person in question. [87] Under the Evidence Act 1950, there are many modes of proving a matter which are (among others): Section 74 Evidence Act 1950. September 14, 2021 33 The following documents are public documents:

documents forming the acts or records of the acts of-

the sovereign authority;

(ii) official bodies and tribunals; and

(iii) public officers, legislative, judicial and executive, whether Federal or State or of any other part of the Commonwealth or of a foreign country; and

public records kept in Malaysia of private documents. [88] The proving of public documents is quite different from private documents for many reasons and among them is that there is a presumption under section 80 Evidence Act 1950 which reads as follows: 80 Presumption as to documents produced as record of evidence Whenever any document is produced before any court purporting to be a record or memorandum of the evidence or of any part of the evidence given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or appellant, taken in accordance with law and purporting to be signed by any Judge, Sessions Court Judge or Magistrate or by any such officer as aforesaid, the court shall presume that-

the document is genuine; September 14, 2021 34

any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true; and

such evidence, statement or confession was duly taken. [89] Shorn of the irrelevant parts, it shall read as follows, “Whenever any document is produced before any court purporting to be a record or memorandum of the evidence before any officer authorized by law to take such evidence, taken in accordance with law by any such officer as aforesaid, the court shall presume that the document is genuine and any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true; and such evidence was duly taken”. [90] This is, of course, a rebuttable presumption but the burden to rebut the presumption lies on the party that seeks to rebut it (section 103, Evidence Act 1950). [91] Presumption under the law is generally rebuttable on the Balance of Probabilities as decided by the Privy Council in PUBLIC PROSECUTOR v. YUVARAJ [1969] 2 MLJ 89 where the Law Lords had this to say – “In the result upon the true construction of the Evidence Ordinance and the Prevention of Corruption Act 1961, there is, in their Lordships’ view, no relevant difference between the two descriptions of the burden of rebutting the presumption of corruption which are contained in the question reserved for the consideration of the Federal Court, if the expression in the first part of the question: “the burden of rebutting this presumption September 14, 2021 35 can be said to be discharged by a defence as being reasonable and probable” is understood as meaning “the burden of rebutting such presumption is discharged if the Court considers that on the balance of probabilities the gratification was not paid or given and received corruptly as an inducement or reward as mentioned in s. 3 or 4 of the Prevention of Corruption Act, 1961.”. [92] Coming back to our instant appeal, the Court Records are public documents within the meaning assigned to it under section 74 Evidence Act 1950. [93] In the absence of the Certificate of Criminal Records by the Registrar of Criminal Records, an extract certified under the hand of the officer having the custody of the records of the Court whether of Malaysia or the Republic of Singapore is equally good in law. PW1 being the Deputy Registrar of the Subordinates Court in Segamat fit in the description quite neatly and hence the evidence of PW1 is not only admissible but carries the full weight of law unless rebutted. [94] In HUSDI v. PP [1980] 2 MLJ 80, his Lordship Justice Syed Othman (speaking for High Court and whose judgment was upheld by the Federal Court) has this to say, inter alia, On the face of it, a police statement falls under s. 74 of the Evidence Act, as it is a document forming the act of a public officer. Simply because a document is the act of a public officer does not give a person, interested or otherwise, a right to inspect. Section 76 of the Evidence Act merely relates to the manner of certification. It is not an enactment which confers any right. It presupposes the existence of the right to inspect. The opening part of the section reads “Every public officer having the custody September 14, 2021 36 of a public document which any person has a right to inspect...” The right to inspect a police statement, which is a statutory, not common law, creature, would depend on the construction of the relevant provisions, particularly those under the Criminal Procedure Code. [95] As such, I find no fault with the Learned Sessions Court Judge in accepting the Court Records as a basis for finding that there are previous convictions against the Accused for an offence under section 15(1)(a) Dangerous Drugs Act 1952 and that the Appellant may be punished under section 39C of the same Act. v. Whether the sentence meted by the Learned Sessions Court Judge was proper in law. SENTENCING PRINCIPLES [96] There are many different purposes of sentencing. There is the deterrent factor, the rehabilitative factor, the punitive factor and the restorative factor. These are by no means exhaustive but the most common considerations. [97] In R v. BALL (KENNETH JOHN) [1951] 35 Cr App R 164, Justice Hilbery stated: “In deciding the appropriate sentence a court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if September 14, 2021 37 the offender is caught and brought to justice, the punishment will be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fix the sentence for a particular crime, but fixes a maximum sentence and leaves it to the court to decide what is, within the maximum, the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the court has the right and the duty to decide whether to be lenient or severe. ’ [98] Once convicted, a trial court must start with the maximum sentence allowed by law. It must then consider the facts and circumstances of the case, giving “discounts” for less than the most serious manner of commission. The word “discount” is found in the case of MOHD ABDULLAH ANG SWEE KANG v. PUBLIC PROSECUTOR [1987] CLJ Rep 209 where it was held that “A sentencer must give sufficient discount for all extenuating circumstances pertaining to the degree of culpability or criminality involved, which must necessarily vary from case to case apart from other mitigating factors. Unless there is a proper reason for withholding such credits, failure to do so may result in the sentencer not exercising his or her discretion judicially in assessing the level of custodial sentence.” [99] In PUBLIC PROSECUTOR V. LOO CHOON FATT [1976] 2 MLJ 256 the Court discussed the issues which are as follows: September 14, 2021 38 The principles to be applied in imposing sentence however are the same in every case. The High Court sitting in exercise of its revisionary powers will not normally alter the sentence unless it is satisfied that the sentence of the lower court is either manifestly inadequate or grossly excessive or illegal or otherwise not a proper sentence having regard to all the facts disclosed on the record or to all the facts which the court ought to take judicial notice of, that is to say, that the lower court clearly has erred in applying the correct principles in the assessment of the sentence. It is a firmly established practice that the court will not alter a sentence merely because it might have passed a different sentence. [100] Lord Chief Justice Goddard in REX v. GRONDKOWSKI [1946] 1 All ER 560 561 offered some good advice when his Lordship said: - “The judge must consider the interests of justice as well as the interest of the prisoners. It is too often nowadays thought, or seems to be thought, that the interests of justice means only the interest of prisoners.” [101] Hence among the factors to be taken into account are (but not limited to) i. The seriousness of the offence. ii. The protection of public interest. iii. When there is no justification for the criminal act perpetuated by the appellant. iv. Any previous conviction. v. Any plea of guilt. September 14, 2021 39 [102] His Lordship Justice Eusoffe Abdoolcader in PROSECUTOR v. TEH AH CHENG [1976] 1 LNS 116 has this to say, The respondent also puts forward in his plea in mitigation the fact that he is employed and supports an aged mother and step-brothers. He should of course have thought of this before committing the offences and not after; he is in fact pleading hardship arising from the consequences of his own acts and I would reiterate what I had occasion previously to observe in another case that an offender should not expect to excite or harness any sympathy on an ipse dixit by taking the stance of the impetuous youth who killed his parents with an axe and then pleaded in mitigation that he was an orphan. In any event from the probation report it would appear that his family is certainly not without other means of support. The respondent further undertakes to turn over a new leaf, as he puts it. That is as it should be and he should certainly do so but only after the proper and necessary correction has been administered to him in accordance with established principles of law for the offences under consideration in this matter. [103] As Lord Justice Lawton put it in REG. v. SARGEANT [1975] 60 Cr. App. R. 74, 77, 78 (at p. 78) or, perhaps more appropriately transmuted in a local context, the creaking of the prison doors closing shut behind him will afford the respondent ample opportunity to ponder on his folly in the company he keeps, and give to others of his ilk and equally gullible, cause to reflect on the desirability of the company they should or rather should not keep, for, as the ancient adage goes, he who sups with the devil must use a long spoon. (see PUBLIC PROSECUTOR v. TEH AH CHENG [1976] 2 MLJ 186). September 14, 2021 40 [104] I must say this that in section 39C Dangerous Drugs Act 1952, the penalty that follows a conviction would entail “be punished with imprisonment for a term which shall not be less than five years but shall not exceed seven years, and he shall also be punished with whipping of not more than three strokes.” [105] Hence in PP v. MUHAMMAD FIQRY JAFRI & ANOR [2021] 4 CLJ 552 the High Court was of the view “And that if a minimum sentence of imprisonment is featured in the provision, the court is obliged to abide by the same but only if the court decides to pass a jail sentence in the first place.” [106] In PUBLIC PROSECUTOR v LEE LAM (F) [1952] 1 MLJ 86, his Lordship Justice Wilson had the occasion to comment on provision that provides for a minimum sentence as follows: “So far as this case is concerned the Legislative authority has laid it down that an accused person charged with an offence such as that alleged in the first charge shall be sent to prison for a period of not less than one year. If the Legislative authority had wished to say that such a person should not be sent to prison for this minimum period if he or she had no previous conviction, the Legislative authority would have so stated. Whilst I have every sympathy with the domestic circumstances of the accused person, I find it impossible to allow myself to be influenced by them. During the period of this Emergency the Executive and the Legislature alone can be fully aware of the reasons which make extraordinary legislation necessary. Judges and Magistrates are not in a position and are not entitled to query such legislation unless it can be found to be ultra vires.” September 14, 2021 41 [107] In our instant case, the prosecution had to call 8 witnesses to supports its case and the defence called 2 witnesses. I am noted that the Accused is married with a child who was at the time of conviction, was aged 1 year 3 months. He was then 33 years old, and was then staying with and supporting an aged mother. He worked as a technician at MyEg Services with a salary of RM1,100-00. He supports his wife, child and mother. In the previous convictions, he paid the fines. His last conviction was in 2018. [108] I have perused over the Appeal Records (Enclosure 6, 7, 8 and 9) and I regret to say that I found no remorse in him. [109] He should have thought of what is to happen to his family if he continuously take drugs. The 2 previous convictions had not taken him out of his habit of self-administration of dangerous drugs. There is also an appeal by the Public Prosecutor. I also noted that the Accused challenged the case until the end. [110] While I accept that it is his right to do so but once the Court finds there is a conviction and for the purpose of sentencing, this may not be viewed favourably for him because for a person to be remorseful about the offence, it must be shown by his conduct and not mere words alone as the saying goes, “even parrots can talk”. He denied everything until the end when the Learned Sessions Court Judge found him guilty and he has at that time found himself in a bind, weaved by his own deceit and entangled evidence as well as his own adamant conduct throughout the trial. September 14, 2021 42 [111] Coming back to the penalty clause of section 39C, it is clear that there is a minimum of 5 years and a maximum of 7 years. Keeping in mind that this is the 3rd offence committed of the same genus and species, the Learned Sessions Court Judge had no choice but to start with the minimum sentence imposed by law and look at other factors. The fact that the accused challenged the prosecution right to the end, may very well draw a different treatment had it been a Plea of Guilty case. Such a case would have certainly saved time and resources for the Court and well as the prosecution. [112] Keeping in mind the principle that “If the Legislative authority had wished to say that such a person should not be sent to prison for this minimum period if he or she had no previous conviction, the Legislative authority would have so stated”, the Learned Sessions Court had no alternative but to start with 5 years and 1 strokes and the sentence meted out was 6 years and 1 strokes, I found that the Defence failed to show where did the Learned Sessions Court Judge has gone wrong. [113] Having considered all these matters, in the sum total, I found no error in the conviction and sentence meted by the Learned Sessions Court Judge. CONCLUSION [114] Having heard all parties and having scrutinised the evidence with a fine comb, I found no error in the decision of the Learned Sessions Court Judge. I found the finding of conviction safe and the sentence adequate. September 14, 2021 43 [115] Section 316 Criminal Procedure Code reads as follows: 316 Decision on appeal At the hearing of the appeal the Judge may, if he considers there is no sufficient ground for interfering, dismiss the appeal, or may-

in an appeal from an order of acquittal, reverse the order, and direct that further inquiry be made, or that the accused be re-tried, as the case may be, or find him guilty and pass sentence on him according to law;

in an appeal from a conviction or in an appeal as to sentence-

reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried; or

(ii) alter the finding, maintaining the sentence, or with or without altering the finding reduce or enhance the sentence or alter the nature of the sentence;

in an appeal from any other order, alter or reverse such order. [116] The provision starts with “At the hearing of the appeal the Judge may, if he considers there is no sufficient ground for interfering, dismiss the appeal,..”. [117] In short, there must be sufficient ground for interfering, before the Court should interfere. I found there isn’t sufficient grounds in view of the overwhelming evidence of the prosecution’s case and the weak defence put up. September 14, 2021 44 [118] It is trite law that an appellate court will be slow to interfere with the sentence of the trial court merely because the appellate court would have imposed a different sentence. In this regard, the case of BHANDULANANDA JAYATILAKE v. PP [1981] 1 LNS 139; [1982] 1 MLJ 83 held: “Therefore sentences do vary in apparently similar circumstances with the habit of mind of the particular judge. It is for that reason also that this court has said it again and again that it will not normally interfere with sentences, and the possibility or even the probability, that another court would have imposed different sentence is not sufficient, per se, to warrant this court's interference.” [119] In DATO' SERI ANWAR BIN IBRAHIM v. PROSECUTOR [2002] 3 MLJ 193, the Federal Court said: “It is of the upmost importance to stress here that the appellate court will not normally alter the sentence unless it is satisfied that the sentence passed by the lower court is manifestly inadequate or excessive or illegal or otherwise not a proper sentence having regard to all the facts disclosed or that the court has clearly erred in applying the facts disclosed or that the court has clearly erred in applying correct principles in the assessment of sentence, see PUBLIC PROSECUTOR V. LOO CHOON FATT [1976] 1 LNS 102; [1976] 2 MLJ 256.” [120] Similarly, in PUBLIC PROSECUTOR v. AHMAD KHAIRUL FA'AIS BIN MAT DAHLAN & ORS [2006] 6 CLJ 555; [2006] 5 MLJ 190, his Lordship Justice VT Singham said: “The court, in sentencing any prisoner, has an obligation to have regard to the public's expectation of what an appropriate punitive September 14, 2021 45 period of imprisonment should be having regard to all the relevant circumstances.” [121] For the reasons aforesaid, I dismissed the appeal against conviction and I allowed the appeal by the Public Prosecutor in part in that I order that the Accused, immediately after having undergone the punishment imposed upon him in respect thereof, to undergo supervision by an officer as defined under section 2 of the Drug Dependants (Treatment and Rehabilitation) Act 1983 for a period of two years. The other orders / sentence meted by the Learned Sessions Court Judge are hereby affirmed. Dated this 14th September 2021 at Muar in the State of Johore. t.t. AWG ARMADAJAYA BIN AWG MAHMUD Judicial Commissioner High Court of Malaya Muar Johor Darul Ta’zim Curia Advisari Vult Counsels: For the Appellant : Muhammad Azfar Bin Mahmod, Deputy Public Prosecutor For the Respondent : Mohd Radzi bin Yatiman September 14, 2021 46 Solicitors: For the Appellant Timbalan Pendakwa Raya Pejabat Timbalan Pendakwaraya Mezzanine Floor Muar Trade Centre Jalan Petrie 84000 Muar Johor. For the Respondent Messrs Azlina Ruslan & Co Advocates & Solicitors No. 62-G, 1st Floor Jalan Genuang 85000 Segamat Johor. [Ref No.: ARC/CRI14/2019] Hearing Date : 11th April 2021, Decision Date : 14th September 2021. LEGISLATURE:  section 15(1)(a), 39C (1) , Dangerous Drugs Act 1952  Part III of the 1st Schedule, Dangerous Drugs Act 1952.  section 14, 15, 74, 80, 114 (g), 134 Evidence Act 1950  Preamble, section 10 Registration of Criminals and Undesirable Persons Act  Section 316, 400 Criminal Procedure Code  s. 3 or 4 of the Prevention of Corruption Act, 1961 LITERATURE:  Lord Campbell, The lives of the Chief Justices of England vol 3 (James Cockroft & Co, 1874) at p 481. CASES REFERRED TO:  MOHD JOHI SAID & ANOR v. PP [2005] 1 CLJ 389,  BALASINGHAM V. PP [1959] 1 MLJ 193 September 14, 2021 47  R V SANG [1980] AC 402  PUBLIC PROSECUTOR v ROSNAN BIN ISMAIL [2020] MLJU 1817,  PUBLIC PROSECUTOR v ROSNAN BIN ISMAIL [2020] MLJU

 HONG YIK PLASTICS (M) SDN BHD v. HO SHEN LEE (M) SDN BHD & ANOR [2020] 4 CLJ 479  EX P KHAN (MAHMUD) [1983] QB 790 at pg 794-795  MOHAMED MOKHTAR V. PUBLIC PROSECUTOR [1972] 1 MLJ 122  JAFFAR B. ABU & ANOR V. PP [1933] 2 MLJ 363  THONG AH FATT V. PUBLIC PROSECUTOR [2011] SGCA 65  AHMAD NAJIB BIN ARIS V. PUBLIC PROSECUTOR [2009] 2 CLJ 800; [2009] 2 MLJ 613  PATHMANABHAN NALLIANNEN V. PUBLIC PROSECUTOR & OTHER APPEALS [2017] 4 CLJ 137  PP V. ABDUL RAHMAN AKIF [2007] 4 CLJ 337  HAMSA KUNJU V. REGINA [1963] 1 LNS 35; [1963] 29 MLJ 228  STIRLAND V. DIRECTOR OF PUBLIC PROSECUTION [1944] AC 315  DUIS AKIM & ORS v. PP [2013] 9 CLJ 692  HAMIDON MAT YATIM V. PP [1995] 3 CLJ 724  WONG SWEE CHIN v. PUBLIC PROSECUTOR [1981] 1 MLJ 212  MD ZAINUDIN RAUJAN v. PP [2013] 4 CLJ 21  BALACHANDRAN V. PP [2005] 1 CLJ 85  WONG YEW MING V. PP [1990] 1 CLJ Rep 321; [1990] 2 CLJ 946; [1991] 1 MLJ 31  MUHAMAD YUZIE YUSOH lwn. PP [2017] 1 LNS 2267  AWANG AHMAD FAISAL AWANG SOHOR v. PP [2015] 7 CLJ 955  PUBLIC PROSECUTOR v. YUVARAJ [1969] 2 MLJ 89  HUSDI v. PP [1980] 2 MLJ 80  R v. BALL (KENNETH JOHN) [1951] 35 Cr App R 164  MOHD ABDULLAH ANG SWEE KANG v. PUBLIC PROSECUTOR [1987] CLJ Rep 209  PUBLIC PROSECUTOR V. LOO CHOON FATT [1976] 2 MLJ 256  REX v. GRONDKOWSKI [1946] 1 All ER 560 561  PUBLIC PROSECUTOR v. TEH AH CHENG [1976] 1 LNS 116  REG. v. SARGEANT [1975] 60 Cr. App. R.  PUBLIC PROSECUTOR v. TEH AH CHENG [1976] 2 MLJ 186  PP v. MUHAMMAD FIQRY JAFRI & ANOR [2021] 4 CLJ 552  PUBLIC PROSECUTOR v LEE LAM (F) [1952] 1 MLJ 86 September 14, 2021 48  BHANDULANANDA JAYATILAKE v. PP [1981] 1 LNS 139; [1982] 1 MLJ 83  DATO' SERI ANWAR BIN IBRAHIM v. PUBLIC PROSECUTOR [2002] 3 MLJ 193  PUBLIC PROSECUTOR v. AHMAD KHAIRUL FA'AIS BIN MAT DAHLAN & ORS [2006] 6 CLJ 555; [2006] 5 MLJ 190