Shaffarill Eizwandie Bin Mohd Aziz (MC-82D-3-03/2024)

The accused, who was a member of the police force stationed at Kuala Sg. Baru police station, was charged in the this Court under the amended charge (PP5) as follows:- “Bahawa kamu pada 22.8.2019 jam lebih kurang 1745 hrs di bahagian siasatan jenayah narkotik ibu pejabat polis IPD Alor Gajah di dalam daerah Alor Gajah di dalam negeri Melaka telah memberikan kepada diri sendiri dadah berbahaya jenis Amphetamine dan Methamphetamine yang disenaraikan di Jadual Pertama Akta Dadah Berbahaya 1952. Oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah seksyen 15(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 15 Akta yang sama dan dibaca bersama seksyen 38B Akta yang sama.”

The accused pleaded not guilty to the said charge and claimed trial. The prosecution has called seven witnesses as follows:- i. PW1: KPL Amrie, the photographer; ii. PW2: SI Yazid, the escort officer; iii. PW3: Pn Shuhada, the pathologist; iv. PW4: En Radzi, the officer who sent the specimen; v. PW5: ASP Huzaimi, the complainant cum arresting officer; vi. PW6: L/KPL Thaqif, the officer of Integrity and Standards Compliance Department at PDRM (JIPS); and vii. PW7: Insp Noorfaizah, the investigating officer. S/N iLkj8QguiUcnjPi0KgQg Prosecution’s case

The brief fact is as follows. On 22.8.2019 at approximately 4.10 pm, during the Ops Tapis / Ops Blue Devil, PW5 with his team, along with one officer from the Integrity and Standards Compliance Department at PDRM (JIPS) had detained a Malay male (the accused) who was a police officer stationed at the Kuala Sg Baru police station at that material time.

PW5 conducted a physical examination on the accused but nothing incriminating was found. PW5 asked the accused to provide a urine sample for undergoing a preliminary screening test. However, the accused stated that he could not give the urine sample as directed by PW5 at the Kuala Sg Baru police station, explaining his inability to urinate.

Subsequently, PW5 and his two raid team members, Kpl Amrie (PW1) and L/KPL Ashraf, brought the accused back to the Narcotics Crime Investigation Department of IPD Alor Gajah, using an office car. Upon arriving at the Narcotics Office of IPD Alor Gajah, the accused had provided his urine sample using a urine bottle with serial number 1071667.

The said bottle containing the accused's urine sample was handled to PW5 who conducted a preliminary screening test. PW5 S/N iLkj8QguiUcnjPi0KgQg conducted a preliminary screening test by dipping the four strips (METH, MOP, AMP and THC) into the accused’s urine sample, as witnessed by PW2 and PW6. The accused's urine sample was tested positive for Methamphetamine.

Later, the accused's urine sample was sent to the Pathology Department of Hospital Kuala Lumpur by PW4, received by PW3, and subsequently analyzed for confirmation. The analysis by PW3 found that the accused's urine sample contained the drugs Amphetamine and Methamphetamine. On 3.9.2019, PW3 issued a Pathology Report with Laboratory No. 9549527 (P11). Analysis and Findings at the end of the Prosecution’s Case Prosecution’s submission

It is incumbent on the prosecution to prove the following elements of the offence charged against the accused, as submitted by the prosecution, that:- i. the urine sample in the bottle with serial number 1071667 belongs to the accused person; ii. the screening test of the accused's urine sample complies with the provisions of section 31A of the Dangerous Drugs Act 1952 ('DDA'); and S/N iLkj8QguiUcnjPi0KgQg iii. that the said Methamphetamine and Amphetamine contained in the accused's urine sample, as analysed by the pathologist, are listed under Parts III and IV of the First Schedule of the DDA. Defence counsel’s submission

The court must always be mindful of its limits of judicial intervention. It was held that in the case of Abuchi Ngwoke v PP [2016] 5 CLJ 1 (CoA), the trial judge had descended into the dispute regarding the knowledge element of the drugs in the 29 capsules swallowed by the accused, who was charged with trafficking in dangerous drugs. The judge was found to have exceeded acceptable limits of judicial intervention in the examination and cross-examination of witnesses of trial.

In the present case, the defence counsel appeared to raise only two issues in his written submission. The manner the defence counsel’s submission was prepared clarified the defence's case. This is unlike Davanam Constructions Sdn Bhd v THP Enstek Development Sdn Bhd (formerly known as TH-NSTC Sdn Bhd) [2024] MLJU 1280 (HC), where the Plaintiff's counsel's lengthy submissions had confused the court. S/N iLkj8QguiUcnjPi0KgQg

This court must praise both the prosecution and defence counsel for presenting their cases in a reasonable and succinct manner. However, the two issues highlighted by the defence counsel in the written submission did not prevent this court from thoroughly undertaking a maximum evaluation of the credibility and reliability of all the evidence adduced to determine whether the elements of the offence have been established (Balachandran v Public Prosecutor [2005] 2 MLJ 301; [2005] 1 CLJ 85 (FC)).

Malaysia is a country embedded in the adversarial system, where opposing parties act as adversaries, each seeking to convince the judge that their version of the facts is the most probable. In this system, the judge serves as an impartial referee, making decision on disputed issues of procedure and evidence while maintaining balance between the contending parties, without participating in their arguments (Hong Yik Plastics (M) Sdn Bhd v Ho Shen Lee (M) Sdn Bhd & Anor [2020] 1 MLJ 743 (CoA)). This impartiality is crucial for preserving the accused's right to a fair trial in our criminal justice system.

Therefore, in this court's view, our adversarial system of administration of justice requires advocates, as officers of the court, to competently present their cases to ensure that the facts and application of the law are accurately determined before the court. This is important to guarantee the accused's right to a fair S/N iLkj8QguiUcnjPi0KgQg trial, including the right to be tried in his presence, the right that all evidence be taken in his presence, the right to cross-examine the prosecution witness, and the right to give their own evidence. The issues raised by the defence counsel during cross-examining, as highlighted to the court in the midst of the trial, should be taken into consideration by this court, even if they are not explicitly mentioned in the written submission.

There are four issues advanced by the defence counsel as follows:- i. discrepancies between the evidences of PW5 and PW6 (during the trial); ii. one urine bottle without the accused being given the choice to select (during the trial); iii. the photograph of the crime scene in Exhibit P2 has been challenged as it is identical to the photograph (ID(D)20) used in another case at the Alor Gajah Magistrates' Court, which is in the case no. MC-82D-1-01/2022, PP v Nor Mohd Riduan Bin Nordin (in the written submission); and iv. shoddy investigation by investigating officer (PW7) (in the written submission). Issue (i): Discrepanices between the evidences of PW5 and PW6

According to PW5, the preliminary screening test on the accused was not conducted at the Kuala Sg Baru Police Station because S/N iLkj8QguiUcnjPi0KgQg the accused stated that he was unable to urinate at that time. Therefore, PW5 decided to bring the accused back to the IPD Alor Gajah for conducting the preliminary screening test.

The defence counsel put the prosecution witnesses that the accused was given a drink during the journey from the Kuala Sg Baru Police Station to the IPD Alor Gajah. The defence counsel suggested that the police vehicle transporting the accused made a stop at a coconut water stall, and the accused was given a drink by one of the raid members.

Further, the defence counsel suggested that the accused was also given a drink at the IPD Alor Gajah through a window near the location where the preliminary screening test was conducted. PW5, who led the raid, stated that the accused was taken to the IPD Alor Gajah in a police vehicle along with PW5, PW1, and another raid member (L/KPL Ashraf). PW5 said that, from the time the accused was arrested at the Kuala Sg Baru Police Station to the Narcotics Office at the IPD Alor Gajah, the accused was with PW5 and under PW5's supervision. PW5 denied that the accused was given any drink during that period.

During the trial, the defence counsel cross-examined PW6 concerning the vehicle used by PW5 on the journey from Kuala Sg Baru police station to IPD Alor Gajah. During re-examination, PW6 S/N iLkj8QguiUcnjPi0KgQg also confirmed the following. According to PW6, the accused was in the same car as KPL Amrie and L/KPL Ashraf to IPD Alor Gajah, while PW5 was in the same car with LK Faizudin. PW6 himself and PW2 were in the accused's car, driven by PW2. There were three cars returned to IPD Alor Gajah from the Kuala Sg Baru police station.

PW6, an officer of JIPS stationed at IPD Alor Gajah, explained that he was assigned to monitor the movements of the Narcotics team regarding the arrest of a police personnel for self-administration or consumption a dangerous drug. This Court acknowledges that PW6's role is to strengthen the integrity of police personnel and ensure that members of the police force refrain from engaging in negative activities. PW6's presence is crucial for observing and monitoring operations among police personnel to promote integrity and compliance within the force.

Therefore, after a careful consideration of the evidence presented by PW6, along with PW5, the head of the raiding team, his team members i.e. PW1 and PW2 who had given evidences before this court, it was found that the alleged discrepancies raised at the close of the prosecution case were sufficient to undermine the credibility of PW5. The discrepancies were significant, as pointed out by the integrity officer (PW6), who monitored the process of arresting the accused. S/N iLkj8QguiUcnjPi0KgQg

In this situation, it is the duty of this court to decide which evidence to believe and which to disbelieve based on the credibility of the witnesses. This trial court is aware of the need to discern which parts of a witness's testimony to accept and which to reject (Dato’ Seri Anwar Bin Ibrahim V Public Prosecutor & Another Appeal [2004] 3 MLJ 405 (FC); PP v Ishak bin Ahmad [2013] 7 MLJ 616, HC). This court found that doubt arises from the evidence of PW5 regarding the accused being with him throughout the journey, and would like to evaluate the following evidence collectively to assess and determine the credibility of PW5. Issue (ii): One urine bottle without the accused being given the choice to select

The facts reveal that at the time the accused provided his urine sample while in police custody at IPD Alor Gajah. The evidence of PW5, PW2, and PW6 demonstrated that the accused was under the supervision of PW5 at IPD Alor Gajah for the purpose of preliminary screening test. In this sense, this court accepted that the collection of the accused's urine sample was witnessed by PW2 and PW6 who escort the accused to the men's washroom, who was directed by SP5 who holds the rank of an Inspector, thus complying with the requirement for a police officer not below the rank of Sergeant to require an arrested person to provide a specimen of his urine for S/N iLkj8QguiUcnjPi0KgQg the purposes of an examination. in line with section 31A (1A) of

The defence counsel suggested to PW6 that the accused was given a drink by a police officer named “Sjn Edrin” before providing the urine sample into bottle with serial number 1071667. PW6 denied this, stating that Sjn Edrin was not present during the operation and that he did not see Sjn Edrin at any time at IPD Alor Gajah on the day of the accused's arrest.

To this court, section 31A of DDA is safeguarded as the accused was ordered to provide a urine sample after being arrested by the police at the Kuala Sg Baru police station. Despite his inability to urinate, he was taken to the IPD Alor Gajah and had to comply with the orders given by the officer in charge, PW5. The accused's movement was restricted, and he had to adhere to the orders issued by PW5. In other words, the accused's arrest had already taken place when he was told to provide his urine specimen (Fakhrurrazi bin Ismail v Public Prosecutor [2021] MLJU 1461

At IPD Alor Gajah, according to the police escorts PW2 and PW6, the urine sample from the accused was collected in the men's washroom of IPD Alor Gajah, next to JSJ Narkotik. After providing the urine sample in the provided bottle, the accused was brought S/N iLkj8QguiUcnjPi0KgQg to the examination table, and the accused then placed the bottle containing his urine sample on the table for PW5 to conduct the preliminary screening test.

The result of the test conducted by PW5 on the accused’s specimen turned out positive for Methamphetamine by dipping the 4 test strips (METH, MOP, AMP and THC) into the accused’s urine sample. Subsequently, the bottle containing the accused’s urine sample was sent by PW4 to the Pathology Department for a confirmation test.

In the written submission, the defence counsel clearly stated that they would not contest the validity of the urine sample as long as it contained sufficient content for clinical testing, which it did. This was established in the case of Mohamad Shukor bin Ramli v Public Prosecutor [2024] MLJU 1183 (CoA). In the present case, it is evident the analysis was carried out by PW3, who was able to provide the pathology results. It is noted that, PW3 conducted a confirmation test on the accused's urine sample using an Immunoassay test, followed by Gas Chromatography Mass Spectrometry (GCMS), which detected the presence of specific drugs of Methamphetamine and Amphetamine.

Having perused the evidence before this court, there is no issue with the police collecting the accused's urine sample in a single S/N iLkj8QguiUcnjPi0KgQg bottle. The PTKPN F103 (Perintah Tetap Ketua Polis Negara) / IGSO F103 and the KKM Guidelines are mere administrative guidelines and do not carry the force of law (Public Prosecutor v Ahmad Saiful Islam bin Mohamad [2023] 2 MLJ 950, CoA).

The defence counsel highlighted an issue during the trial, during cross-examination, PW6 testified that the urine bottle brought to Kuala Sg Baru police station was the same bottle used in the narcotics division of IPD Alor Gajah. PW6 also agreed with the defence counsel's suggestion that the accused did not choose the urine bottle but was given one by PW5.

A cross-reference made to the witness statement prepared by PW5 (PSP5) at paragraph 8, corroborated by his team member PW2, that he had presented several sealed plastic urine bottles to the accused and asked him to choose one. At this juncture, it is necessary to consider what the cross-examination of the prosecution witness revealed, as the primary aim was to determine whether the prosecution's case was fabricated or credible based on the evidences given by the police witnesses (PP v Wong Moy [1988] 3 MLJ 280, HC).

Relying on the case of Kesavan Krishnan v PP & satu lagi rayuan [2015] 6 CLJ 163, CoA, no infirmity attaches to the testimony of the police officials merely because they belong to the police force. S/N iLkj8QguiUcnjPi0KgQg This does not mean that the evidence of police witnesses shall be accepted under any circumstances. Hence, the court must rigorously evaluate the credibility of all witnesses, including police officers.

At the risk of repetition, there was discrepancy arises between the evidence of PW6 as an independent monitoring personnel with the evidences given by PW5 and his team. There is conflicting evidence concerning whether the accused was actually given a choice of selecting his own urine bottle.

On the facts of this case, the discrepancies between the evidences of PW5 and PW6 were material as the subject matter of the charge referring to the sample urine taken in the urine bottle. This court referenced a case cited at Public Prosecutor v Muhammad Ridzuan bin Darus [2022] MLJU 3715 (Magistrates' Court), where the accused was given a bottle with no choice of bottles made available to him. The learned magistrate said that the accused was not given the liberty of choosing between bottles, while PW3 in his evidence stated otherwise. The same occurred here. The learned magistrate of Muhammad Ridzuan case (supra) ruled that it is immaterial whether the accused was given one bottle or allowed to choose from many bottles, as long as the bottle was new and unused. S/N iLkj8QguiUcnjPi0KgQg

Pausing here, I must hasten to mention that this court viewed that the choice made available to the accused to choose only one bottle from many new, unused bottles is crucial. Failing to provide this choice can be fatal to the prosecution's case. This is important to ensure that the fair right of the accused to the integrity of the evidence is protected and that the accused is entitled to equal protection before the law.

This court goes back to the tenet of criminal justice where "any exhibit" (any evidence) to be admitted before the trial must be by the consent of the accused and his/her advocate and agreed to before the commencement of the trial (section 172B, CPC; Melinda Stevenson v Public Prosecutor [2020] 5 MLJ 27, CoA). In a criminal trial, the procedure, as provided by the CPC, must be strictly adhered to.

It is further found that, during the collection of the urine sample using a bottle that was not chosen or consented by the accused at that material time, this severed the integrity of evidence collection process. Whether the collection process has been handled honestly and responsibly is in doubt when the accused in this case was not free to choose the bottle for the urine sample collection and was forced to use the same urine bottle brought from Kuala Sg Baru police station to IPD Alor Gajah. S/N iLkj8QguiUcnjPi0KgQg Issue (iii): Photographs of the crime scene in Exhibit P2 and ID(D)20

In the written submission, the defence counsel challenged the photographs of the crime scene in Exhibit P2, claiming it is identical to the photographs used in another case at the Alor Gajah Magistrates' Court, case no. MC-82D-1-01/2022, PP v Nor Mohd Riduan bin Nordin.

According to the photographer (PW1), he stated that on 23.8.2019, at 11am, he, along with PW7, the investigating officer, went to the crime scene, which was the men's washroom of IPD Alor Gajah. PW7 instructed him to take photographs of the men's washroom. During cross-examination, the defence counsel showed the photographs of Nor Mohd Riduan bin Nordin's case (which had been tendered as ID(D)20) to PW1. PW1 answered both sets of photographs were looked quite similar, but he did not know the photographer who took the said ID(D)20, which was LK Nasrul Azhar. Furthermore, ID(D)20 was actually taken earlier on 13.8.2019.

Meanwhile, PW7 corroborated the evidence of PW1, stating that the photographs in P2 of the present case were taken by PW1 in the presence of PW7. However, during cross-examination, when the defenCe counsel questioned PW7 regarding the photographs ID(D)20, PW7 answered that the 2 sets of crime scene photographs S/N iLkj8QguiUcnjPi0KgQg were similar and said she knew about the other case charged in the same court against the accused named Nor Mohd Riduan, where the investigating officer was Insp. Surendran.

The defence counsel submitted that the prosecution failed to call the witnesses, such as either Insp. Surendran or the photographer LK Nasrul Azhar, to testify regarding the similarity of the crime scene photographs in Exhibit P2 and ID(D)20, which constitutes “withholding of evidence” or “suppression of evidence”. This could attract an adverse inference provision under section 114(g) of the Evidence Act 1950. It is essential to appreciate that section 114(g) of the Evidence Act 1950 can only be drawn if there is withholding or suppression of evidence, and not merely on account of failure to obtain evidence (Munusamy v PP [1987] 1 MLJ 492, SC).

Before invoking section 114(g) of Evidence Act 1950, this court must be satisfied that the evidence was in existence and could be produced. The general rule is that no adverse inference can be drawn if there is a failure to obtain evidence (Chin Kek Shen v Public Prosecutor [2013] 5 MLJ 827, CoA). In connection with the similar photographs in two cases without an explanation, this court ruled that the failure of the prosecution to call the material witness such as the photographer or the investigating officer of ID(D)20 to give evidence, justified the invocation of the adverse inference under section 114(g) of the Evidence Act 1950. S/N iLkj8QguiUcnjPi0KgQg

This is because it created a gap in the prosecution's case regarding PW2's claim of taking the accused's urine in the men's washroom next to the narcotics office at IPD Alor Gajah. The chain of evidence was broken when PW2 and PW5 did not portray the integrity of the accused's sample urine collected at the specific crime scene location by failing to clarify where the sample urine was taken.

In respect of this ground, this court must emphasize the importance of crime scene photographs for evidence collection, documenting the scene, and serving as a reference for criminal case investigation and prosecution. In the present case, the court has raised the question of whether the men's restroom at IPD Alor Gajah was photographed from various angles. It was found that crime scene photographs are an integral part of the evidence collection process and serves as significant evidence linking a suspect to the crime or victim. The evidential value of crime scene photographs aligns with Locard's Exchange Principle: "every contact leaves a trace." Hence, the role of the crime scene photographs more than just a piece of corroborative evidence.

This court is of considered view that crime scene photographs in each case should have unique characteristics since the photographs are taken by different photographers who have their S/N iLkj8QguiUcnjPi0KgQg own art of presentation. The court emphasizes the importance of maintaining the integrity of the evidence collection process and ensuring that it has not been tampered with, upholding the cause of justice and the rule of law.

Therefore, this court found merit in the defence's submission that there was a serious break in the chain of the evidence collection process (Abdul Rahman bin Mohd v Public Prosecutor [2021] MLJU 971, CoA). This raised doubts about the chronological documentation of the movement of the accused and created a gap in the chain of evidence, as nothing indicates the urine collection process took place in the specific men's washroom. It also reflects the lackadaisical attitude of the investigating officer in presenting such a piece of evidence before this court.

I find no reason to disagree with the defence counsel. Be that as it may, prosecutorial discretion must be subject to the basic limitation of producing all necessary evidence to prove the case against the accused beyond reasonable doubt (Abdullah Zawawi v Public Prosecutor [1985] 2 MLJ 16 (SC)). After evaluating the evidence adduced by the prosecution in this case, particularly the evidences of PW1 and PW7 that they agreed the photographs P2 were similar to ID(D)20, I am of the considered view that the prosecution has left a material gap regarding the integrity of the evidence collection process in the present case. This justifies the court invoking the S/N iLkj8QguiUcnjPi0KgQg adverse inference under section 114(g) of the Evidence Act 1950 against it. Issue (iv): Shoddy investigation by investigating officer (PW7)

The defence counsel submitted that the investigating officer, PW7, failed to conduct an investigation at the accused's residence to determine if any drugs or any equipment used for self-administration for drug was found. In this context, this court had addresses its mind to section 37(k) of DDA whether any facts to show that the accused had self administered the dangerous drug. Before this court, the defence counsel also suggested to PW7 during cross-examination that in her witness statement (WS(SP7)), paragraph 6, regarding the date when she secured the urine specimen bottle in her office. According to PW7, she stated that on 22.8.2019 at about 9.30pm, she secured the urine specimen bottle in a locked safe (peti besi) in her office, which was not a refrigerator. However, according to the Handover and Acknowledgment Form (“Borang Serah Menyerah”) (P19), PW7 received the urine specimen bottle from PW5 on 23.8.2019.

In addition, PW7 agreed to the defence counsel's suggestion that she did not know the condition of the urine specimen bottle before it was handed over to her. It was also brought to light that PW7 did not investigate the accused's workplace at the Kuala Sg Baru S/N iLkj8QguiUcnjPi0KgQg police station. During re-examination, PW7 explained that she did not conduct any investigation at the Kuala Sg Baru police station because there was no information suggesting the presence of dangerous drug at the Kuala Sg Baru police station, and the same with the accused's residence.

Afterwards during re-examination, PW7 highlighted to this court that the wrong date was particularized when receiving the accused and the urine specimen, as stated in WS(SP7), and the correct date is 23.8.2019, where she wished to amend and was opposed by the defence counsel. This court accepted the objection from the defence after considering PW7 had been given the opportunity to check her witness statement to see if an amendment was required before she signed it, but asked for the amendment after being cross-examined by the defence, who pointed out this material and obvious error to her attention.

To this court, this error is so ridiculous since the P19 could have been of aid to PW7 when refreshing her memory. It must be noted that, PW7 admitted that there was no evidence indicating whether the dangerous drug was physically administered or given by someone else as PW7 explained that she only relied on the positive result of the test strip. In other words, PW7 stated that there was nothing to investigate provided the test strip for Methamphetamine S/N iLkj8QguiUcnjPi0KgQg produced a positive result in the preliminary screening test conducted by PW5.

This court finds merit in this contention, as PW7’s method of investigation was unsatisfactory, which are inferences that may be drawn against the integrity of the evidence collection process, the necessary interviews with the accused's colleagues at his workplace (Kuala Sg Baru police station) to eliminate any uncertainty about whether he was “dianiaya orang lain” (framed by others) as she testified. No evidence was presented to prove this.

It is necessary to state that from the facts and circumstances of this case, it appears to this court that PW7's investigation was somewhat shoddy and incomplete. The personal liberty of the accused is guaranteed by Article 5 of the Federal Constitution can only be deprived in accordance with the law (Public Prosecutor v Yap Chai Yee [2016] 1 MLJ 1, CoA). This underscores the importance of a thorough investigation of a crime.

It is clear to this court that, PW7 failed to investigate and was uncertain about the condition of the urine specimen bottle before it came to her. As an investigating officer, she has a duty to always ensure the proper condition of the urine specimen and to prevent any break in the chain of custody of the specimen. To add salt to the injury of the prosecution's case, the accused’s right to a fair S/N iLkj8QguiUcnjPi0KgQg trial was compromised due to the investigating officer’s failure to investigate the accused’s version of events, such as the claim that an officer gave him a drink at a stop during the journey from the Kuala Sg Baru police station to IPD Alor Gajar, Sjn Edrin's act of giving him drink before the collection of his urine sample, and the location where the urine bottle was secured before being passed to her. During cross-examination, the defence counsel questioned PW6 about Sjn Edrin, and he replied that he knew Sjn Edrin, who is currently still working in the service (bilik gerakan).

Such evidence could have been easily obtained from the police witnesses involved at the scene to carry out a thorough investigation, but she failed to do so. The evidence can be easily forth coming from the police witnesses (Public Prosecutor v Thenegaran a/l Murugan [2013] 3 MLJ 328, CoA). This incomplete investigation has resulted in gaps in the prosecution's case, affecting the presentation of evidence and the ability to confidently persuade the court.

It was notable that, there are material gaps in the prosecution's case regarding the process of taking and collecting the urine sample. It is irresponsible to claim that PW7 did not know whether the accused physically consumed the drug or if someone gave the drug to him until PW7 was aware of the urine specimen that tested positive for Methamphetamine in the preliminary screening done by S/N iLkj8QguiUcnjPi0KgQg PW5. Furthermore, PW7 also asserted that she had no knowledge about the condition and chain of evidence collection process of the urine specimen before it was passed to her.

In this situation, this court found that there was doubts as to the integrity of evidence collection process of the accused’s urine specimen, the subject matter of the charge, for undergoing such a urine test. As a result, the pre-condition of section 31A DDA could not be met in regards to the doubts arises to the urine test of the subject matter of the said charge as above-mentioned, and therefore the presumption under section 37(k) DDA did not apply (Noorismail bin Abu Bakar v PP and another appeal [2021] 7 MLJ

Having considered the evidence in its totality, this court undertook a maximum evaluation of the prosecution's evidence when deciding whether to call on the accused to enter upon his defence (PP v Mohd Radzi Bin Abu Bakar [2006] 1 CLJ 457, FC). Based on the foregoing reasons, it is evident that the prosecution's evidence admits there are more than one inference that arise from the evidence up to that stage, while the court should adopt the one that is most favorable to the accused as a result of the gap created in the prosecution's case. In other words, the prosecution’s case itself S/N iLkj8QguiUcnjPi0KgQg is tainted with doubt, gaps, and inferences favorable to the accused (Public Prosecutor v Hanif Basree Abdul Rahman [2004] 3 CLJ 700 (HC); section 180(4) CPC).

This court, therefore, bears the duty to draw the inference that is favorable to the accused. I carried out a test of prima facie case (Public Prosecutor v Kassim bin Soeb [1974] 1 MLJ 230, ACRJ), which asks if I call upon the accused to make his defence and he elects to remain silent, am I prepared to convict him on the evidence now before me? The answer is "no".

Therefore, this court found that the prosecution has failed to establish a prima facie case against the accused as charged. This court orders that, the accused is hereby acquitted and discharged without calling for his defence. Dated this 15 July 2024 SGD ----------------------------------- (TEOH SHU YEE) MAGISTRATE MAGISTRATES’ COURT AT ALOR GAJAH S/N iLkj8QguiUcnjPi0KgQg PROSECUTION : DPP Puan Sharina Farhana THE ACCUSED : Represented by COUNSEL Mr. Mohd Farid bin Abdul Aziz, Tetuan Ishak Kari Maria & Shah, Taman Melaka Raya. S/N iLkj8QguiUcnjPi0KgQg