Public Prosecutor v Muhammad Amirul Tey Bin Abdullah (JB-42S-4-08/2020)

This is an appeal by the Public Prosecutor against the decision of the Learned Sessions Court Judge sitting in Segamat in the State of Johore that was given on 16 July 2020 whereby at the end of the prosecution’s case, the Learned Sessions Court Judge amended the Charge against the Respondent from one under section 15(1)(a) Dangerous Drugs Act 1952 which is punishable under section 39C(1) of the same Act to a Charge which may be punished under section 15(1) of the same Act.

The Respondent / Accused was charged at the instance of the Public Prosecutor and the Charge reads as follows: (English Translation) That you on 22 April 2019 at about 0125 hours at the Narcotics Investigation Division Office at the Segamat District Police Headquarters, in the District of Segamat, in the State of Johore, administered a dangerous drugs to wit “morphine” into your own body. You thereby committed an offence under Section 15(1)(a) Dangerous Drugs Act 1952 which is punishable under section 39C(1) of the same Act”

8 witnesses were called by the prosecution to support its case and they are as follows: PW1 - Tuan Ahmad Shakib bin Ismail (Assistant Registrar Segamat Court). PW2 - Detective Corporal Abdul Rahman bin Ahmad (police personnel who delivered the Urine Samples). PW3 - Inspector Raimi bin Romaino (Complainant). December 6, 2021 3 PW4 - Detective Lance Corporal Abdul Azim bin Abu Bakar (Police Escort Personnel). PW5 - Mr Rayner Gregory (Medical Laboratory Technologist). PW6 - Puan Norazema binti Samsuni (Government Science Officer). PW7 - Sergeant Major Mohd Surani bin Sarbini (Arresting Officer). PW8 - Sergeant Fatra Haffiz bin Aminuddin (Investigating Officer).

At the end of the prosecution’s case, the Learned Sessions Court Judge found that the prosecution succeeded in proving a prima facie case against the Respondent / Accused person under section 15(1)(a) Dangerous Drugs Act 1952 but failed to prove that this case is the 4th offence committed by the accuse person and hence the Learned Sessions Court Judge amended the Charge to one punishable under section 15(1) Dangerous Drugs Act 1952 and not under section 39C(1) of the same Act.

It is in evidence that on 22 April 2019 at about 12.50 am, PW7 with a police team from Buloh Kasap Police Station were conducting a Crime Prevention Patrolling Operation when they came across the Respondent at Jalan Bistari 5/2, Taman Yayasan, Buloh Kasap, Segamat, in the State of Johore.

After the Respondent’s conduct raised their suspicion, PW7 stopped and arrested the Respondent where he was brought to Narcotics Investigation Division Office at the Segamat District Police December 6, 2021 4 Headquarters, in the District of Segamat, in the State of Johore. The Respondent was brought back to the Narcotics Investigation Division Office at the Segamat District Police Headquarters, for the urine test. PW7 also lodged a police report in respect of the arrest.

The Respondent was given a fresh bottle which was still wrapped in plastic wrappings by PW3 and the Respondent chose one with the serial number SN 0439232.

The Respondent was escorted by PW3 and PW4 to the toilet where the Respondent collected his own urine sample and deposited it into the bottle under the keen eyes of PW3. The Respondent then brought back the bottle now filled with his urine sample and placed it on a table at the Narcotics Investigation Division Office at the Segamat District Police Headquarters.

PW3 conducted the preliminary test on the urine samples taken from the Respondent by using a strip paper test and found the Respondent’s urine sample to test positive for “opiate”. PW3 then labelled the bottle now containing the Respondent’s urine sample and sealed it with the Royal Malaysian Police seal.

The Respondent was invited to sign on the Acknowledgement Form (P6) which he did and PW3 made a police report (P7) in respect of this procedure. The Respondent along with the sample of urine were handed over to the Investigating Officer (PW8) and a handing over note (P8) was signed by both PW3 and PW8.

The urine sample was further sent to the Pathology Department, Segamat Hospital on 30 April 2019. Analysis was conducted by December 6, 2021 5 PW6 the Government Science Officer at the Pathology Department, Segamat Hospital where the Respondent’s urine sample was found to contain Morphine, a dangerous drug which is listed under the 3rd Schedule, Dangerous Drugs Act 1952.

There is only one issue since the Learned Sessions Court Judge found that on all the other elements of section 15(1)(a) Dangerous Drugs Act 1952 was proven to reached a prima facie level by the Public Prosecutor.

The issue that remained to be a point of contention is whether the Public Prosecutor succeeded in proving that this is the 4th offence of self-administration of dangerous drugs, making this offence, an offence punishable under section 39C(1) Dangerous Drugs Act 1952.

It is in evidence that PW1 who is the Assistant Registrar of the Sessions Court in Segamat gave evidence that there are previous convictions of the Respondent. His evidence was that he has been working at the Subordinates Court in Segamat for almost 3 years and among his job specifications is that he manages the records for cases at the Court.

On 8 July 2019 he served a copy of the Record for Sentences imposed on the Respondent to the Narcotics Investigation Division Office at the Segamat District Police Headquarters, in the District of Segamat, in the State of Johore. The particulars are as follows: December 6, 2021 6 Name : Muhammad Amirul Tey bin Abdullah NRIC : 710225-01-5913 Case No. : 83D-297-6/15 & 83D-104-3/15 & 83D-232-5/15 Case No. Date of Sentence Sentence passed 83D-297-6/15 10 August 2015 6 years imprisonment from the date of conviction and 2 years of police supervision 83D-104-3/15 10 August 2015 6 years imprisonment from the date of expiry of the sentence 83D-297-6/15 and 2 years of police supervision 83D-232-5/15 18 August 2015 6 years imprisonment from the date of expiry of the sentence 83D-104-3/15 and 2 years of police supervision

The Learned Sessions Court Judge found that this is insufficient to consider the previous convictions of the Respondent and her decision was based on the authority of MUHAMAD YUZIE YUSOH lwn. PP [2017] 1 LNS 2267, and hence the requirements of section 39C(1) Dangerous Drugs Act 1952 has not been fulfilled.

The learned judgment was that non-compliance with section 400 Criminal Procedure Code where only the Registrar of Criminal Records in Malaysia and Singapore could tender the records of previous convictions of an accused person. December 6, 2021 7

The case of MUHAMAD YUZIE YUSOH lwn. PP [2017] 1 LNS 2267 where his Lordship Justice Hassan Abdul Ghani is of the view as follows, 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 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)

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 and hence it binds this Court.

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 judgment of their Lordships, the Learned Justices of the Court of Appeal and hence I am unable to ascertain the reasoning behind the decision.

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 December 6, 2021 8 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”.

Section 10 of the said Act spells out the requirements for the admissibility of evidence of matters prescribed therein which states:

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 December 6, 2021 9

(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. [23] 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 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.” [24] 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. [25] 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 December 6, 2021 10 a presumption in a law, the Court must be cautious in applying it by strictly following to the letter of the law. [26] 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”. [27] 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 1952. The sentence took effect from the date of sentencing i.e., 6 March

The crucial part of the complaint was this. The 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 December 6, 2021 11 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. ... [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. [28] 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-December 6, 2021 12

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.

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. [29] 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 December 6, 2021 13

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. [30] 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”. [31] The phrase “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. [32] Under the Evidence Act 1950, there are many modes of proving a matter which are (among others): Section 74 Evidence Act 1950. 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. December 6, 2021 14 [33] 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:

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;

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. [34] 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 December 6, 2021 15 be made by the person signing it, are true; and such evidence was duly taken”. [35] 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). [36] 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 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.”. [37] Coming back to our instant appeal, the Court Records are public documents within the meaning assigned to it under section 74 Evidence Act 1950. [38] In the absence of the Certificate of Criminal Records by the Registrar of Criminal Records, an extract certified under the hand of December 6, 2021 16 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. [39] 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 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. [40] Another point in section 400 is that “(a) 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”. [41] P1 is a letter from PW1 certifying the criminal history of the Respondent. PW1 keeps the records of the Court. Apart from the fact that the letter P1 is a public document, it falls within the meaning December 6, 2021 17 of “by an extract certified under the hand of the officer having the custody of the records of the Court of Malaysia in which that conviction or acquittal was had to be a copy of the sentence or order; or”. (shorn of the irrelevant parts) [42] It is also my considered view that the officer who has “custody or control of the records of the Court of Malaysia in which that conviction or acquittal was had to be a copy of the sentence or order” is a person who has the authority to keep these records and he comes to court not as an expert within the meaning assigned by section 45 Evidence Act 1950 and hence no specific qualifications or expertise is required of him. Of course being a public servant he must have certain qualification to enter public service but this does not entail the expertise of a specialist in some science or arts or special knowledge of any sort. CONCLUSION [43] For the reasons aforesaid, I found that the error in not admitting P1 and the evidence of PW1 has occasioned a serious miscarriage of justice. [44] As such, I allow this appeal and I set aside the Order of Learned Sessions Court Judge in directing the Respondent to enter his defence on the amended charge under section 15(1)(a) Dangerous Drugs Act 1952 which may be punished under section 15(1) of the same Act and I order that the Respondent is to enter his defence on the original charge which is an offence under Section 15(1)(a) Dangerous Drugs Act 1952 which is punishable under section 39C(1) of the same Act. December 6, 2021 18 [45] The case is remitted back immediately for the continuation of the defence case before the same Sessions Court Judge. [46] In view of the fact that when the Respondent was ordered to enter his defence under section 15(1)(a) Dangerous Drugs Act 1952 which is punishable under section 15(1) of the same Act, the Respondent has pleaded guilty and was convicted and sentenced to a fine. In view of this turn of events, I order that the conviction be set aside and fine refunded, if paid. The Respondent now face the defence case as per the original charge. [47] In view of section 41B Dangerous Drugs Act 1952, any defence order pursuant to section 39C(1) Dangerous Drugs Act 1952 is unbailable and I order that the Respondent be detained pending the hearing of his defence before the Sessions Court. I further order that he be brought before the Sessions Court on 16 December 2021 at 9 am for the mention / case management of the defence case. Dated this day the 6th December 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 December 6, 2021 19 Counsels: For the Appellant : Mustaqim Bin Sukarno, Deputy Public Prosecutor For the Respondent : Visvanathan a/l M. Govindan Nair Solicitors: For the Appellant Timbalan Pendakwa Raya Pejabat Timbalan Pendakwaraya Mezzanine Floor Muar Trade Centre Jalan Petrie 84000 Muar Johor. For the Respondent Messrs Maniam Nair & Co. Advocates & Solicitors No.117, Tingkat 2 Jalan Genuang 85000 Segamat Johor. [Ref. No.: SGT/GSN/CR4133/19/dna] Hearing Date : 1st September 2021, 27th September 2021. Decision Date : 6th December 2021. LEGISLATURE: ➢ section 15(1)(a), 39C(1), 41B, 3rd Schedule, Dangerous Drugs Act 1952 December 6, 2021 20 ➢ Preamble, section 10, REGISTRATION OF CRIMINALS AND UNDESIRABLE PERSONS ACT ➢ section 400, Criminal Procedure Code ➢ Section 45, 74, 80, 103, Evidence Act 1950 LITERATURE: CASES REFERRED TO: ➢ 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