MOHD AMIRUL AMRIE BIN MOHD ZIMI

AA-41LB(A)-7-09/2023 Kand. 22 14/01/2025 14:42:32 5 IN THE HIGH COURT IN MALAYA AT IPOH PERAK DARUL RIDZUAN CRIMINAL APPEAL CASE NO.: AA-41LB(A)-7-09/2023 TELUK INTAN MAGISTRATE’S COURT 10 CASE NO.: AC-82D-7-12/2021 BETWEEN PUBLIC PROSECUTOR …APPELLANT AND 15 MOHD AMIRUL AMRIE BIN MOHD ZIMI …RESPONDENT [NRIC NO.: 890429-08-6327] GROUNDS OF JUDGMENT Introduction 20 [1]. This is the prosecution's appeal against the acquittal of the respondent, Mohd Amirul Amrie, who was charged under Section 15(1)(a) of the Dangerous Drugs Act 1952. The acquittal was primarily due to the prosecution’s critical failure to produce the urine sample bottle in Court and a deliberate decision not to retrieve it 25 from storage. Instead of retrieving the urine sample bottle, the prosecution sought to rely on photographs of the bottle, which 1 S/N Xeh54WgDTUWc5xlSrqJBTw **Note : Serial number will be used to verify the originality of this document via eFILING portal lacked clear and visible serial numbers. The question before this court is whether the Magistrate rightly concluded that the chain of custody and the integrity of the evidence were compromised, 30 thereby justifying the respondent's acquittal. Background facts [2]. The background facts as narrated by the prosecution in their submission is that, on 29th September 2021, at about 12:20 am, at the Bahagian Siasatan Jenayah Narkotik Daerah (BSJND), IPD Hilir 35 Perak office, SP3 conducted an initial urine screening test on the respondent after cautioning of the standard operating procedure (SOP), which the respondent acknowledged understanding. The respondent was then directed to select a sealed plastic package from a box containing similar packages. This package contained a 40 urine collection bottle, a label, and a security seal, all with matching serial numbers. The respondent selected the package with serial number B027527, opened it as instructed, and proceeded to provide a urine sample into the collection bottle under the supervision of SP4, who accompanied him to the restroom. Upon returning, the 45 respondent handed the sealed bottle containing the urine sample to SP3. Subsequently, SP3 conducted drug tests using six test strips, which indicated positive results for methamphetamine and THC. The respondent was informed of these results, and SP3 securely sealed the bottle with a matching serial number label and a PDRM 50 security seal (553). Following this, SP3 filed a police report and arrested the respondent under Section 15(1)(a) of the Dangerous Drugs Act 1952 for suspected drug use. 2 S/N Xeh54WgDTUWc5xlSrqJBTw **Note : Serial number will be used to verify the originality of this document via eFILING portal [3]. SP3 then handed over the sealed urine sample, along with the relevant police report and documentation, to SP5, who 55 photographed the evidence and stored it in a designated refrigerator at the narcotics office. This fridge was maintained at the recommended temperature, with access restricted to SP5 to ensure the sample's integrity. On the morning of 30th September 2021, SP5 delivered the sealed urine sample and accompanying documents to 60 the pathology lab at Hospital Teluk Intan. SP1, a medical lab technologist, verified the sample's details, including the respondent's name, identification number, and the bottle's serial number, ensuring the sample was intact and properly sealed. SP1 then handed over the specimen to SP2, (chemist) for further 65 analysis. SP2 confirmed the details of the sample and conducted a thorough examination, which revealed the presence of "11 nor-delta 9 tetrahydrocannabinol 9 carboxylic acid," a metabolite of THC. A pathology report was prepared based on this analysis, confirming the respondent's use of the drug 70 The element of the offence [4]. The elements of the offence under Section 15(1)(a) of the Dangerous Drugs Act 1952, the prosecution must prove the following to establish a prima facie case: a) It must prove that the urine sample in the bottle was indeed 75 collected from the accused. This requires the chain of custody to be clearly established and verified from the point of collection to analysis by a chemist. 3 S/N Xeh54WgDTUWc5xlSrqJBTw **Note : Serial number will be used to verify the originality of this document via eFILING portal b) The procedure for collecting and handling the urine specimen must adhere to the statutory requirements laid out in Section 31A 80 of the Dangerous Drugs Act 1952 to ensure the reliability and integrity of the evidence. c) The analysis of the urine specimen must confirm the presence of a drug listed under Part III of the First Schedule of the Dangerous Drugs Act 1952, to prove the accused's consumption of a 85 prohibited substance. Each of these elements must be demonstrated through credible evidence, including proper documentation, adherence to standard procedures, and testimony from relevant witnesses involved in the 90 process. Prosecution contention [5]. The prosecution contends that the learned Magistrate erred by focusing on the absence of the urine sample bottle and photographs, which allegedly did not have visible serial numbers, as 95 being fatal to the case. This judgment examines whether the prosecution successfully established the chain of custody and the integrity of evidence to prove the respondent’s guilt. [6]. The necessity of presenting the physical urine sample bottle as evidence was highlighted by the prosecution's own witnesses, SP3, 100 SP4, and SP5, who agreed that its production in court was essential to verify their testimonies. They acknowledged that the bottle and its seals and packaging were critical for confirming the identity of the urine sample as belonging to the respondent. This physical 4 S/N Xeh54WgDTUWc5xlSrqJBTw **Note : Serial number will be used to verify the originality of this document via eFILING portal evidence would allow the court to resolve issues regarding the 105 sample’s volume, the details on its labels, and the integrity of the chain of custody. The Magistrate, in accepting these testimonies, noted that the absence of the bottle hindered the Court’s ability to assess the reliability of the evidence definitively. The necessity of producing primary evidence, such as the bottle, is supported by the 110 principles in PP v Azahari Abdul Wahab [2009] 10 CLJ 464; [2009] 1 MLRH 245; [2009] MLJU 898; [2009] AMEJ 0118, where the court emphasised the potential fatality of failing to produce key exhibits. Without the physical bottle, critical questions about the evidence’s integrity and connection to the respondent remain 115 unanswered, casting significant doubt on the prosecution’s case. His Lordship Justice Zamani Rahim, in PP v. Azahari Abdul Wahab (supra), stated this: “[23] I would venture to say that failure to produce the said specimen bottle after the accused's urine had been tested 120 and analysed by the IMR, may or may not be fatal to the prosecution's case depend on the facts and circumstances of each individual case. The prosecution should not adopt an attitude that Gunalan Ramachandran & Ors, supra may provide an antidote to cure all cases of missing or non- 125 production of exhibits after they have been examined or analysed by the expert. [24] In this case, the accused's urine sample after analysis is not expected to be preserved but its bottle is. The bottle was said to carry a label with the accused's particulars thereon. It 130 was not produced. Was it lost or destroyed by the IMR officer?. There was no explanation forthcoming from the prosecution. It may be distinguished with the exhibits in Gunalan Ramachandran & Ors, supra. There, the missing 5 S/N Xeh54WgDTUWc5xlSrqJBTw **Note : Serial number will be used to verify the originality of this document via eFILING portal exhibits were empty plastic packets and a weighing machine. 135 They were not the subject matter of the charge. Their existence could be seen from the photographs. In this case, the urine in the said bottle which contained Amphetamine was the subject matter of the charge. No photograph was produced showing the said bottle with the accused's 140 particulars on it. The prosecution was taken to task by the learned counsel regarding the non-production of the said bottle…... …….. [27] On the facts and circumstances of this case, the failure 145 to produce the said bottle is fatal to the prosecution case. On this ground too, the accused was rightly acquitted and discharged by the learned magistrate at the close of the prosecution case. The prosecution appeal is hereby dismissed” 150 (underline emphasised) [7]. The case of PP v. Azahari Abdul Wahab (supra) is directly applicable to the present case, where the High Court, in dismissing the appeal, highlighted that the failure to produce the urine sample 155 bottle, which contained the accused's identifying particulars, was fatal to the prosecution's case. The court held that the bottle constituted the subject-matter of the charge, and its non-production left the chain of custody incomplete, creating serious doubts about the integrity and identity of the evidence. The prosecution’s inability 160 to explain the bottle’s absence or to provide a clear link between the sample analysed and the accused further weakened the case, justifying the accused's acquittal. 6 S/N Xeh54WgDTUWc5xlSrqJBTw **Note : Serial number will be used to verify the originality of this document via eFILING portal [8]. Similarly, in this present case, the prosecution failed to produce the urine sample bottle in court, relying instead on unclear and 165 inconsistent photographs that lacked visible serial numbers to definitively identify the sample as belonging to the respondent. This omission undermined the prosecution’s ability to establish an unbroken chain of custody and raised significant questions about the handling of the evidence. Testimonies from the prosecution's 170 own witnesses corroborated the defence's concerns regarding the mishandling of critical evidence. SP5, the investigating officer, admitted under cross-examination that no efforts were made to retrieve the bottle from storage within the permissible time frame, despite acknowledging the availability of proper facilities to store it. 175 SP5’s justification for not retrieving the bottle, citing storage difficulties and potential odour contradicted his admission that a dedicated storage facility was available at the narcotics department. [9]. Furthermore, the failure to adhere to standard procedures was evident in SP5’s testimony that the bottle was ultimately destroyed, 180 depriving the court of critical evidence. This omission violated procedural norms and prevented the defence from independently verifying the evidence. [10]. The photographs tendered by the prosecution as evidence were inconsistent and unclear and raised significant doubts about their 185 authenticity. The officer, SP3, who allegedly collected the urine sample, also admitted that the serial numbers on the photographs were not clearly visible and that the bottle itself was necessary for proper verification. SP5, the investigating officer, admitted under oath that the device used to capture the photographs was not the 7 S/N Xeh54WgDTUWc5xlSrqJBTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 190 Huawei P30 Pro phone, certified under Section 90A of the Evidence Act 1950 but a digital Olympus camera. This discrepancy was attributed to a clerical error during re-examination. However, the prosecution failed to address or resolve this inconsistency adequately, nor did they call an expert to verify the photographs’ 195 authenticity. The learned Magistrate correctly observed that this was not a minor clerical mistake or a simple "typo" but a substantive error that created reasonable doubt about the photographs' validity. The Magistrate concluded that these discrepancies undermined the credibility of the photographs as substitutes for the missing urine 200 sample bottle. The failure to authenticate the photographs and the absence of corrective measures compounded the reasonable doubt surrounding their integrity, further weakening the prosecution’s case and justifying the decision to acquit the respondent. [11]. As in the case of PP v. Azahari Abdul Wahab (supra), the handling 205 of evidence in the present case was marked by critical gaps, including a failure to produce primary evidence and inconsistencies in secondary evidence. These lapses disrupted the chain of custody and undermined the integrity of the prosecution's case. Following the principles established in PP v. Azahari Abdul Wahab (supra), 210 the non-production of the urine sample bottle and the mishandling of evidence create serious doubt about the identity and reliability of the evidence. This justifies the Magistrate’s decision to acquit and discharge the respondent. The learned Magistrate correctly addressed this issue in her grounds for judgment as follows: 215 “c) SP3, SP4, dan SP5 dalam keterangan juga mengakui kepentingan untuk botol spesimen, paket plastik dan pembungkus ditunjukkan kepada mereka dan Mahkamah untuk 8 S/N Xeh54WgDTUWc5xlSrqJBTw **Note : Serial number will be used to verify the originality of this document via eFILING portal mengesahkan keterangan mereka di Mahkamah berhubung dengan identiti spesimen urin yang dikatakan milik Tertuduh. 220 …… e) Ketiga-tiga SP3, SP4, dan SP5 bersetuju dengan cadangan peguam bahawa keterangan mengenai botol spesimen air kencing mereka hanya dapat disahkan sekiranya botol spesimen tersebut dikemukakan secara fizikal. Mahkamah 225 turut berpendapat perkara mengenai isi padu spesimen, butir- butir yang diisi ini hanya dapat diputuskan sekiranya botol dikemukakan secara fizikal.” [12]. This court holds that the Magistrate did not err in making a finding 230 that the non-production of the urine sample bottle and the mishandling of evidence create serious doubt about the identity and reliability of the evidence to implicate the respondent to the offence. [13]. Also, Magistrate did not err in making a similar finding about the photograph evidence of the urine sample bottle, which lacked clear 235 and visible serial numbers and the device used to capture the photographs differed from the one certified under Section 90A of the Evidence Act 1950, thus creating doubt in the evidence. The Magistrate states as follows in her ground of judgment: “5.11…..Walaupun pihak Pendakwaan ada kemukakan 240 gambar sepertimana di P2(A-D) dan gambar tersebut telah disaksikan oleh SP1 hingga SP5 namun begitu, gambar tersebut tidak jelas dan Nombor Repot, Nombor Kad Pengenalan OKT adalah tidak jelas juga. SP1 dan SP2 hanya mengecam botol spesimen melalui gambar 245 berdasarkan nama Tertuduh sahaja dan tiada rujukan yang dibuat kepada Nombor Repot mahupun nombor siri botol spesimen. SP5 juga mengakui sewaktu pemeriksaan Balas 9 S/N Xeh54WgDTUWc5xlSrqJBTw **Note : Serial number will be used to verify the originality of this document via eFILING portal beliau telah ubah suai gambar tersebut walaupun dalam Perakuan Seksyen 90A KTJ beliau menyatakan tidak 250 mengubahsuai gamabr-gambar P2(A-D) tersebut. Selain itu, Pembelaan juga telah menimbulkan isu peralatan yang digunakan untuk mengambil gambar-gambar tersebut sama adalah melalui telefon pintar Huawei Pro atau kamera digital OLYMPUS?” 255 The Bottle Was Intentionally Not Brought to Court [14]. The deliberate failure to retrieve and present the urine sample bottle in court weakened the prosecution’s case. SP5, the Investigating Officer, admitted that he had the opportunity to request the bottle 260 from the hospital within the permissible two-month period but this was not done. This was confirmed by SP5 during cross- examination: “Q: Dan satu-satunya sebab mengapa pembungkus dan test strip tidak dapat dikemukakan ke mahkamah pada hari 265 ini adalah kerana Inspektor Tie telah buang kedua-dua barang kes tersebut, setuju? A: Setuju. Q: Bagaimana pula dengan botol air kencing dalam kes ini. Dimana botol air kencing? 270 A: Botol air kencing saya tidak ambil. Q: Boleh nyatakan pada mahkamah kenapa Inspektor tak ambil? A: Kerana tiada tempat untuk menyimpan botol air kencing yang telah digunakan. 275 Q: Tiada peti ais selamat dekat narkotik? A: Nanti dia akan bau hancing terlalu bau kuat. 10 S/N Xeh54WgDTUWc5xlSrqJBTw **Note : Serial number will be used to verify the originality of this document via eFILING portal Q: Ada tak peti ais di narkotik? A: Peti ais narkotik khas untuk botol urin… Q: Jap kita ulang balik. Ada tak peti ais di jabatan narkotik? 280 A: Ada. Q: Jadi tempat simpan botol air kencing ada lah? A: Tempat simpan botol air kencing baru ada. Q: Jadi keputusan untuk tidak mengambil balik botol air kencing untuk dikemukakan ke mahkamah kamu 285 buat kerana kamu takut bau hancing dalam pejabat, setuju? A: Tidak setuju.” [15]. SP5 acknowledged that no request was made to retrieve the bottle, 290 even though it was common practice to do so in similar cases, particularly those involving public servants. Moreover, SP5's justification for not retrieving the bottle, that it could not be stored properly or would cause an unpleasant smell was contradicted by his admission that a designated storage facility for such items was 295 available at the narcotics department. [16]. The testimony further revealed inconsistencies and a lack of credible reasoning for the failure to retrieve the bottle, as noted in the cross-examination of SP5, where he allowed the bottle to be destroyed, depriving the court and witnesses of the opportunity to 300 verify the subject matter of the case. This intentional omission prevented key evidence from being examined, compromising the chain of custody and raising doubts about the integrity of the prosecution’s case. 11 S/N Xeh54WgDTUWc5xlSrqJBTw **Note : Serial number will be used to verify the originality of this document via eFILING portal [17]. By deliberately allowing the destruction of the bottle, which formed 305 the central piece of evidence, the prosecution effectively deprived the court of a chance to verify its existence and identity. After making a conscious decision to withhold such a crucial exhibit, the question arises whether the prosecution can rely on secondary evidence like photographs to substantiate its claims. This failure to present the 310 primary evidence critically impacts the credibility of the case and justifies the Magistrate’s finding of reasonable doubt in favour of the respondent. Invoking adverse inference for failing to call Lance Corporal Aliman as a witness 315 [18]. The learned Magistrate rightly invoked Section 114(g) of the Evidence Act 1950 to draw an adverse inference against the prosecution for failing to call or offer Lance Corporal Aliman as a witness despite the prosecution witnesses claimed that Lance Corporal Aliman was not involved in handling the urine sample. 320 Nevertheless, the inconsistencies in the testimonies of SP3 and SP5 raised doubts about Lance Corporal Aliman’s potential involvement. This uncertainty made Aliman’s testimony critical, as his account could have clarified whether the chain of custody was maintained according to standard procedures. His absence left the 325 court without crucial clarification on this matter. [19]. Prosecution witnesses, particularly SP5, failed to provide a satisfactory explanation for not summoning Aliman despite concerns raised by the defence. SP3 asserted that he handled the urine specimen and directly passed it to SP5, yet the defence raised 12 S/N Xeh54WgDTUWc5xlSrqJBTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 330 questions about Aliman's potential role in handling the evidence. The prosecution’s failure to clarify this ambiguity or call Aliman as a witness resulted in reasonable doubt about the integrity of the chain of custody. Consequently, the Magistrate invoked Section 114(g), presuming that Aliman’s testimony, if presented, would have been 335 unfavourable to the prosecution, leaving a significant evidentiary gap and undermining the reliability of the prosecution’s case. [20]. In addition to the above, the Magistrate found SP5 to be not a credible witness due to inconsistencies and irregularities in his testimony regarding the handling of the urine sample and related 340 evidence. Specifically, SP5 admitted to altering the photographs presented as evidence, which contradicted his certification under Section 90A of the Evidence Act 1950 that no alterations had been made. Furthermore, he failed to provide a satisfactory explanation for not retrieving the urine sample bottle despite 345 acknowledging the availability of proper storage facilities and procedures. This lack of adherence to standard practices and his inconsistent statements about the device used to capture the photographs significantly undermined his credibility as a witness. The Magistrate noted that these issues raised substantial doubts 350 about the reliability of the evidence presented by the prosecution, further supporting the decision to invoke adverse inferences under Section 114(g) of the Evidence Act. [21]. In determining this appeal, I am mindful of my duty as a judge hearing the appeal from the Magistrate’s Court. I can only interfere 355 with the trial judge's finding of fact if I am convinced that the finding is wrong. While an appellate hearing allows for a re-examination of 13 S/N Xeh54WgDTUWc5xlSrqJBTw **Note : Serial number will be used to verify the originality of this document via eFILING portal the case, it is not a retrial. Although this court has the power to substitute its own view of the facts, deference must be given to the trial judge’s findings, particularly those based on witness credibility. 360 If the findings are reasonably supported by evidence, as they are here, mere disagreement does not warrant reversal. This principle has long been established, as affirmed by the Federal Court in Samar Binte Mansor v Mustafa Kamarul Ariffin [1974] 2 MLJ 71; [1974] 1 MLRA 114; [1974] CLJU 147, where Raja Azlan Shah FJ 365 stated: “It is axiomatic that a finding of negligence though involving matters of inference, is properly regarded as a finding of fact. For an appellant to succeed in an appeal against a finding of fact made by a single judge, he must convince the appellate 370 court that the learned judge was wrong in his conclusion. That the appeal may be by way of re-hearing does not alter the situation. A hearing is not, however, a retrial of the issues. The question is not whether an appellate court can substitute its view of the facts which of course it is empowered to do so, 375 but whether it should do so. However much an appellate court may be in an equal position with the trial judge as to the drawing of inferences, it ought not to reverse the finding of fact unless it is convinced that it is wrong. It is not whether the inferences are right but whether an appellate court is 380 convinced that they are wrong. If that finding is a view reasonably open on the evidence, it is not enough to warrant its reversal just because an appellate court would have come to a different view. Merely differing views do not establish that either view is wrong, but in balancing these two views an 385 appellate court should give due weight to the nature of the fact as found by the trial judge. Thus Benmax v Austin Motor 14 S/N Xeh54WgDTUWc5xlSrqJBTw **Note : Serial number will be used to verify the originality of this document via eFILING portal Co Ltd [1955] AC 370 376 is authority for the proposition that an appellate court is not bound by inferences of fact drawn by the trial judge which did not turn on the credibility of 390 witnesses, seen and heard by him, that it may not examine the matter afresh. In Mersey Docks and Harbour Board v Procter [1923] AC 253 258–259 Vicount Cave L.C. said: “The duty of a court hearing an appeal from the 395 decision of a judge without a jury was clearly defined by Sir Nathaniel Lindley M.R. in Coghlan v Cumberland [1898] 1 Ch 704 and by Lord Halsbury in Montgomerie & Co v Wallace-James [1904] AC 73 and is no longer in doubt. The procedure on an 400 appeal from a judge sitting without a jury is not governed by the rules applicable to a motion for a new trial after a verdict of a jury. In such a case it is the duty of the Court of Appeal to make up its own mind, not disregarding the judgment appealed from 405 and giving special weight to that judgment in cases where the credibility of witnesses comes into question, but with full liberty to draw its own inference from the facts proved or admitted, and to decide accordingly. In the present case there is no question 410 of the credibility of witnesses. The material facts, so far asy they are known, are undisputed; and the Court of Appeal was at liberty, and indeed was bound, to draw its own inference from them.” (underline emphasised) 415 15 S/N Xeh54WgDTUWc5xlSrqJBTw **Note : Serial number will be used to verify the originality of this document via eFILING portal Conclusion [22]. The appeal is dismissed, and the Magistrate's decision to acquit the respondent is upheld. The prosecution's failure to produce the urine sample bottle and reliance on inconsistent photographic evidence 420 and procedural lapses undermined the integrity of the chain of custody. Additionally, SP5's lack of credibility and the absence of critical witnesses like Lance Corporal Aliman created reasonable doubt. The Magistrate rightly determined that the prosecution failed to establish a prima facie case under Section 15(1)(a) of the 425 Dangerous Drugs Act 1952. Dated: 14 January 2025 Moses Susayan 430 MOSES SUSAYAN Judicial Commissioner High Court of Ipoh (Court 3) Counsel: 435 For the Appellant: Geetha Jora Singh Deputy Public Prosecutor [Prosecution Unit 440 Perak Legal Advisor Officer] Ipoh, Perak 16 S/N Xeh54WgDTUWc5xlSrqJBTw **Note : Serial number will be used to verify the originality of this document via eFILING portal For the Respondent: Ahmad Shamil Azad bin Abdul Hamid 445 Advocates and Solicitor [Messrs Akram Hizri Azad & Azmir] Ipoh, Perak Negeri Perak 450 (Notice: This Grounds of Decision is subject to official editorial revision) HEADNOTES 455 CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 15(1)(a) - Offense of consuming dangerous drugs - Accused acquitted due to prosecution’s failure to produce urine sample bottle - Reliance on photographs lacking clear serial numbers - Whether chain of custody and evidence integrity compromised 460 EVIDENCE: - Urine sample bottle not produced - Subject matter of the charge - SP5 admitted bottle destroyed without sufficient justification - Whether non-production fatal to prosecution’s case EVIDENCE: Witnesses - Failure to call material witness - Critical to chain of custody - Adverse inference under Evidence Act 1950, s. 114(g) - 465 Whether absence of witness created reasonable doubt EVIDENCE: Photographic evidence - Photographs of urine sample bottle tendered - SP5 admitted photographs altered and device used differed 17 S/N Xeh54WgDTUWc5xlSrqJBTw **Note : Serial number will be used to verify the originality of this document via eFILING portal from certification under s. 90A - Whether photographs reliable and valid substitutes for physical evidence 18 S/N Xeh54WgDTUWc5xlSrqJBTw **Note : Serial number will be used to verify the originality of this document via eFILING portal