KAMARUL ZAMAN BIN MOHD DAUD PUBLIC PROSECUTOR

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (CRIMINAL DIVISION) IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA CRIMINAL APPEAL NO. WA - 41LB(A) — 3 — 12/2020 PUBLIC PROSECUTOR VS KAMARUL ZAMAN BIN MOHD DAUD JUDGMENT Introduction [1] The respondent was charged under section 15(1)(a) Dangerous Drugs Act 1952. The learned Magistrate had at the end of the prosecution’s case held that the prosecution had failed to prove a prima facie case. The respondent was acquitted and discharged of the two charges. The appellant's appeal is in respect of that decision. [2] The appellant was unable to turn the decision in its favour as its appeal was subsequently dismissed. PP v Kamarul Zaman Bin Mohd Daud Facts The charges [3] The respondent was initially faced with three charges under the DDA 1952. The appellant however withdrew one of. the charges and proceeded with the remaining two charges against the respondent. The two charges read as follows: Amended charge ‘Bahawa kamu pada 26/09/2019 jam lebih kurang 1.10 pagi bertempat di tandas KK Pub, No. 3A, Jalan Seri Utara, melalui Jalan Ipoh dalam daerah Sentul di dalam Wilayah Persekutuan Kuala Lumpur telah didapati memberi kepada diri sendiri dadah berbahaya ke dalam badan kamu sendiri jaitu dadah jenis Ketamin. Oleh itu, kamu telah melakukan satu kesalahan dibawah seksyen 15(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen yang sama. Hukuman: Jika disabitkan dengan kesalahan hendaklah didenda tidak lebih daripada lima ribu ringgit atau dikenakan hukuman penjara selama tempoh tidak lebih daripada dua tahun.’ PP v Kamarul Zaman Bin Mohd Daud Additional charge ‘Bahawa kamu pada 26/09/2019 jam lebih kurang 1.10 pagi bertempat di tandas KK Pub, No. 3A, Jalan Seri Utara, melalui Jalan Ipoh, dalam daerah Sentul di dalam Wilayah Persekutuan Kuala Lumpur telah didapati memberi kepada diri sendiri dadah jenis 3,4-Methylenedioxymethamphetamine (MDMA). Oleh itu, kamu telah melakukan satu kesalahan di bawah seksyen 15(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen yang sama. Hukuman: ‘UJika disabitkan kesalahan hendaklah didenda tidak lebih daripada lima ribu ringgit atau dikenakan hukuman penjara selama tempoh tidak lebih daripada dua tahun.’ Brief facts [4] The respondent was arrested by the police pursuant to an early morning raid at an entertainment centre called ‘KK Pub’ on the 26 September 2019. Those present at the pub, including the respondent, were asked to provide their urine samples, to enable the police to conduct drug tests on the urines. One of the police officer in the raiding team, SP2, with the rank of Inspector, instructed another officer with the rank of Sergeant, to accost the respondent to the toilet for his urine sample to be taken. SP2 then proceeded to conduct the urine test by using test strips for Ketamine, Amphetamine and Benzo. This was done in the respondent's presence. The respondent tested positive for Ketamine, Amphetamine and PP v Kamarul Zaman Bin Mohd Daud [5] Benzo. SP2 then sealed the bottle containing the respondent’s urine sample and filled up the respondent's details on the bottle’s label. The respondent was then brought to the Sentul police station, and handed over to the investigating officer, SP5. The latter kept the respondent's urine sample in a refrigerator. SP5 had on the following day instructed one of his officers, Corporal Shaidatul Azirah bt Muhd Yusof (‘Corporal Shaidatul’) to send the respondent's urine sample to the Pathology Department. It was received by a staff there by the name of Rosalia Huda bt Mohd Isa (‘Rosalia’). These two were not called to testify during the trial. An officer at the Pathology Department, SP4, was assigned to test the respondent's urine sample. SP4 claimed that the bottle was sealed and in good condition. SP4 carried out several tests. The respondent's urine tested positive for Ketamine, 3,4- Methylenedioxymethamphetamine and Aminonimetazepam. SP4 had prepared a pathology report on the tests conducted and the results. This report became a contentious issue during the trial, as the respondent's counsel argued that SP4 was not authorised in law to carry out the test. The learned Magistrate subsequently dismissed the objection and admitted the report as an exhibit. The Magistrate Court’s findings [6] The learned Magistrate came to the conclusion that the prosecution had failed to establish a prima facie based on PP v Kamarul Zaman Bin Mohd Daud [7] several factors. The appellant however had at this appeal - focused on only two of her findings: that there was a break in the chain of evidence, and that the pathology report did not support the charge. The learned Magistrate held that there was a break in the chain of evidence as the appellant had failed to call Corporal Shaidatul and Rosalia to testify and prove that the respondent’s urine sample was handled safely and was not contaminated. As for the pathology report being incomplete, the learned Magistrate held that SP4’s failure to state that Ketamine and 3,4-Methylenedioxymethamphetamine were listed as Part lll in the First Schedule to the DDA 1952 was fatal. Findings [8] [9] | had dismissed the appeal based on the second ground only, namely on SP4’s failure to state that Ketamine and 3,4- Methylenedioxymethamphetamine were listed in Part Ill of the: First Schedule to the DDA 1952. SP4 had merely stated in his report that the drugs were listed in the First Schedule of the DDA 1952. The respondent was charged under section 15(1)(a) DDA 1952. This section specifically requires reference to “Parts III and IV of the First Schedule”. It is as such imperative that SP4 had made reference to Part Ill in his report. It is insufficient for SP4 to merely made a broad reference to the PP v Kamarul Zaman Bin Mohd Daud First Schedule; see Kamarul Farkaruddin Mohamed v PP. .- [2013] 7 CLJ 636 and PP v Wan Muhammad Ashraf B Wan Suhaimi [2019] 1 LNS 500. | [10] SP4 had no doubt in his oral testimony stated that he had - 111] omitted to state the relevant Part in this report, and went on to state the relevant Parts. His oral testimony however could not add credence to the report, as no oral evidence can be admitted to improve the report, where the report is required by - law to be reduced in writing; see section 399 CPC and PP v Poh Ah Kwang [2003] 2 CLJ 722. | had for this reason alone dismissed the appeal and affirm the — Magistrate Courts decision to acquit and discharge the respondent. Dated: 27 December 2021 (Mohamed Zaini Mazlan) Judge High Court of Malaya (Criminal Division) Kuala Lumpur Counsel for the appellant Zaileen Nadia Zubir [Deputy Public Prosecutor] Counsel for the respondent Jaspal Singh Mann & T. Santhakumari [Messrs Mann & Associates]