PP

[2021] MLRHU 1392 v. Mohamad Zuhaili Zainal pg 1

PP
v.
MOHAMAD ZUHAILI ZAINAL

High Court Malaya, Muar

Awg Armadajaya Awg Mahmud JC
[Criminal Appeal No: JB-42H-5-05-2020]
14 September 2021

Case(s) referred to:

Ahmad Najib Aris v. PP [2009] 1 MLRA 58; [2009] 2 MLJ 613; [2009] 2 CLJ 800
(refd)
Awang Ahmad Faisal Awang Sohor v. PP [2015] 5 MLRH 599; [2015] 7 CLJ 955
(refd)
Balachandran v. PP [2004] 2 MLRA 547; [2005] 2 MLJ 301; [2005] 1 CLJ 85;
[2005] 1 AMR 321 (refd)
Balasingham v. PP [1959] 1 MLRH 585; [1959] 1 MLJ 193 (refd)
Bhandulananda Jayatilake v. PP [1981] 1 MLRA 304; [1982] 1 MLJ 83 (refd)
Dato' Seri Anwar Ibrahim v. PP [2002] 1 MLRA 266; [2002] 3 MLJ 193; [2002] 3
CLJ 457 (refd)
Duis Akim & ORS v. PP [2014] 1 MLRA 92; [2014] 1 MLJ 49; [2013] 9 CLJ 692;
[2013] 6 AMR 421 (refd)
EX P Khan (Mahmud) [1983] QB 790 (refd)
Hamidon Mat Yatim v. PP [1995] 2 MLRH 495; [1995] 3 CLJ 724 (refd)
Hamsa Kunju v. Regina [1963] 1 MLRH 294; [1963] 1 MLJ 228 (refd)
Hong Yik Plastics (M) Sdn Bhd v. Ho Shen Lee (M) Sdn Bhd & Anor [2019]
MLRAU 375; [2020] 1 MLJ 743; [2020] 4 CLJ 479 (refd)
Husdi v. PP [1980] 1 MLRA 423; [1980] 2 MLJ 80 (refd)
Jaffar B Abu & Anor v. PP [1933] 2 MLJ 363 (refd)
Md Zainudin Raujan v. PP [2013] 3 MLRA 351; [2013] 3 MLJ 773; [2013] 4 CLJ
21; [2013] 3 AMR 480 (refd)
Mohamed Mokhtar v. PP [1971] 1 MLRH 502; [1972] 1 MLJ 122 (refd)
Mohd Abdullah Ang Swee Kang v. PP [1987] 1 MLRA 43; [1988] 1 MLJ 167;
[1987] CLJ (Rep) 209 (refd)
Mohd Johi Said & Anor v. PP [2004] 2 MLRA 425; [2005] 1 CLJ 389; [2004] 6
AMR 825 (refd)
Muhamad Yuzie Yusoh lwn. PP [2017] MLRHU 1737 (refd)
Pathmanabhan Nalliannen v. PP & Other Appeals [2017] 3 MLRA 247; [2017] 3
MLJ 141; [2017] 4 CLJ 137; [2017] 3 AMR 105 (refd)
PP v. Abdul Rahman Akif [2007] 1 MLRA 568; [2007] 5 MLJ 1; [2007] 4 CLJ 337
(refd)
PP v. Muhammad Fiqry Jafri & Anor [2021] 3 MLRH 703; [2021] 4 CLJ 552
(refd)
PP v. Ahmad Khairul Fa'ais Mat Dahlan & Ors [2006] 2 MLRH 610; [2006] 5
MLJ 190; [2006] 6 CLJ 555; [2006] 4 AMR 557 (refd)
PP v. Lee Lam (F) [1952] 1 MLRH 289; [1952] 1 MLJ 86 (refd)
 PP
pg 2 v. Mohamad Zuhaili Zainal [2021] MLRHU 1392

PP v. Loo Choon Fatt [1976] 1 MLRH 23; [1976] 2 MLJ 256 (refd)
PP v. Rosnan Bin Ismail [2020] MLRHU 1337 (refd)
PP v. Rosnan Bin Ismail [2020] MLJU 1816 (refd)
PP v. Teh Ah Cheng [1976] 1 MLRH 76; [1976] 2 MLJ 186 (refd)
PP v. Yuvaraj [1968] 1 MLRA 606; [1969] 2 MLJ 89 (refd)
R v. Ball (Kenneth John) [1951] 35 Cr App R 164 (refd)
R v. Sang [1980] AC 402 (refd)
Reg v. Sargeant [1975] 60 Cr App R 74, 77, 78 (refd)
Rex v. Grondkowski [1946] 1 All ER 560 561 (refd)
Stirland v. Director Of Public Prosecution [1944] AC 315 (refd)
Thong Ah Fatt v. PP [2011] SGCA 65 (refd)
Wong Swee Chin v. PP [1980] 1 MLRA 125; [1981] 1 MLJ 212 (refd)
Wong Yew Ming v. PP [1990] 1 MLRA 315; [1991] 1 MLJ 31; [1990] 1 CLJ
(Rep) 321 (refd)

Legislation referred to:

Criminal Procedure Code, ss 308, 316, 400
Dangerous Drugs Act 1952, ss 15(1)(a), 38, 38B, 39C, Part III of the 1st
Schedule
Drug Dependants (Treatment and Rehabilitation) Act 1983, s 2
Evidence Act 1950, ss 14, 15, 74, 80, 103, 114(g)
Registration of Criminals and Undesirable Persons Act 1969, s 10

Counsel:
For the appellant: Muhammad Azfar Mahmod; DPP
For the respondent: Mohd Radzi Yatiman; Azlina Ruslan & Co

[Dismissed the appeal against conviction and allowed the appeal by the Public
Prosecutor.]

JUDGMENT

Awg Armadajaya Awg Mahmud JC:

Introduction

[1] 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.

[2] 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 s 15(1)(a) Dangerous Drugs Act 1952
which is punishable under s 39C of the same Act. The Accused person was
sentenced to an imprisonment term of 6 years and 1 stroke of the rattan.
 PP
[2021] MLRHU 1392 v. Mohamad Zuhaili Zainal pg 3

[3] 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 s 15(1)(a)
Dangerous Drugs Act 1952 which is punishable under s 39C (1) of the
same Act.

[4] The Accused pleaded not guilty and after 8 prosecution witnesses were
called, the Learned Sessions Court Judge ruled that the 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.

[5] 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 s 15(1)(a) Dangerous Drugs Act 1952 which is punishable
under s 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.

The Background Facts

[6] 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.

[7] 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.

[8] 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.
 PP
pg 4 v. Mohamad Zuhaili Zainal [2021] MLRHU 1392

[9] 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.

[10] 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.

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

[12] 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.

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

[14] 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.

[15] 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.

[16] 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.

[17] 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 sat nearby but he was certain that
they were neither not Inspector Raimi bin Romaino (PW4) nor Corporal
Hafizi bin Mohd Zain (PW5).

[18] 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
 PP
[2021] MLRHU 1392 v. Mohamad Zuhaili Zainal pg 5

that morning he was taken to see Inspector Ana Fendi to sign a document
which he was uncertain as to it nature and content.

[19] 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.

[20] 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.

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 s 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.

[21] These 3 issues shall be dealt with together.

[22] 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.
 PP
pg 6 v. Mohamad Zuhaili Zainal [2021] MLRHU 1392

[23] After perusing over the Appeal Records, I found that there was a finding
of a prima facie case against the Accused which may be found at p 42 of
Appeal Record (encl 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.

[24] 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.

[25] This has been said by his Lordship Justice Gopal Sri Ram in Mohd Johi
Said & Anor v. PP [2004] 2 MLRA 425; [2005] 1 CLJ 389; [2004] 6 AMR 825,
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.

[26] 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.

[27] 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 MLRH 585; [1959] 1 MLJ 193 where it was held that "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."

[28] 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."

[29] 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.

[30] Having carefully scrutinised the Appeal Record, particularly the judgment
of the Learned Sessions Court Judge, I am of the view that the judgment by
 PP
[2021] MLRHU 1392 v. Mohamad Zuhaili Zainal pg 7

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.

[31] 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 PP v. Rosnan Bin Ismail [2020]
MLRHU 1337, where my secretary uploaded the 1st judgment on conviction
which discussed evidence t in response to the appeal by the PP. Later, when I
came to realised that the appeal was in respect of sentence only, I wrote a
supplementary one, entirely on sentence as published as PP v. Rosnan Bin
Ismail [2020] MLJU 1816.

[32] 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 [2019] MLRAU 375; [2020] 1 MLJ
743; [2020] 4 CLJ 479).

[33] In EX P Khan (Mahmud) [1983] QB 790 at p 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."

[34] However his Lordship Justice Sharma in Mohamed Mokhtar v. PP [1971]

1 MLRH 502; [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 mandatory on the part of the
learned magistrates and the learned presidents to give such reasons."

[35] 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 MLRH 585; [1959] 1 MLJ 193. (see also Jaffar B. Abu & Anor v. PP
[1933] 2 MLJ 363).
 PP
pg 8 v. Mohamad Zuhaili Zainal [2021] MLRHU 1392

[36] 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. PP [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."

[37] 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 Aris v. PP [2009] 1 MLRA 58; [2009] 2
MLJ 613; [2009] 2 CLJ 800 which was quoted with approval by the Federal
Court in Pathmanabhan Nalliannen v. PP & Other Appeals [2017] 3 MLRA 247;
[2017] 3 MLJ 141; [2017] 4 CLJ 137; [2017] 3 AMR 105. At p 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]
1 MLRA 568; [2007] 5 MLJ 1; [2007] 4 CLJ 337)..."

[38] 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
MLRH 294; [1963] 1 MLJ 228; Stirland v. Director Of Public Prosecution
[1944] AC 315 at p 328).

[39] 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
 PP
[2021] MLRHU 1392 v. Mohamad Zuhaili Zainal pg 9

attracted the 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.

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

[41] 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.

[42] 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.

[43] 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.

[44] 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.

[45] 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.

[46] 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.

[47] 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.
 PP
pg 10 v. Mohamad Zuhaili Zainal [2021] MLRHU 1392

[48] The allegation that PW4 did not supervise the accused depositing the
urine samples into the sample bottles came from the accused but in the same
breath, the accused's version was that PW4 was not the person in the room.

[49] 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
encl 7 (Appeal Record) at pp 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 the accused to sign on
them and he personally witness the process.

[50] 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.

[51] 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.
 PP
[2021] MLRHU 1392 v. Mohamad Zuhaili Zainal pg 11

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

[52] 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.

[53] 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.

[54] 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.

[55] 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 [2014] 1 MLRA 92; [2014] 1 MLJ 49; [2013] 9 CLJ
692; [2013] 6 AMR 421 where it was held that-

[74] 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. 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] 2 MLRH 495; [1995] 3 CLJ
724).
 PP
pg 12 v. Mohamad Zuhaili Zainal [2021] MLRHU 1392

[75] 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.

[76] 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.

[77] 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 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.

[78] 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.
 PP
[2021] MLRHU 1392 v. Mohamad Zuhaili Zainal pg 13

[56] 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).

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.

[57] As such, I take that the evidence of PW4 stands as no challenge was
mounted as in Wong Swee Chin v. PP [1980] 1 MLRA 125; [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.

[58] 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 s 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.
 PP
pg 14 v. Mohamad Zuhaili Zainal [2021] MLRHU 1392

ILLUSTRATIONS

The court may presume:

...

(e) that judicial and official acts have been regularly performed;

[59] The Federal Court in Md Zainudin Raujan v. PP [2013] 3 MLRA 351;

[2013] 3 MLJ 773; [2013] 4 CLJ 21; [2013] 3 AMR 480, 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 witnesses shall in any case be
required for proof of any fact (see Balachandran v. PP [2004] 2 MLRA
547; [2005] 2 MLJ 301; [2005] 1 CLJ 85; [2005] 1 AMR 321).

[60] The evidence of the prosecution witnesses may be found in encl 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.
 PP
[2021] MLRHU 1392 v. Mohamad Zuhaili Zainal pg 15

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).

[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 s 14 and 15 Evidence Act 1950 and the
Supreme Court in Wong Yew Ming v. PP [1990] 1 MLRA 315; [1991] 1 MLJ
31; [1990] 1 CLJ (Rep) 321. 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 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.
 PP
pg 16 v. Mohamad Zuhaili Zainal [2021] MLRHU 1392

[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.

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.
 PP
[2021] MLRHU 1392 v. Mohamad Zuhaili Zainal pg 17

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.

[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 s 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 s 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] MLRHU
1737 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
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)
 PP
pg 18 v. Mohamad Zuhaili Zainal [2021] MLRHU 1392

[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".

[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

(1) Subject to subsection (2) every-

(a) finger print form if duly authenticated by the

authenticating officer;

(b) 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-

(i) 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.

(2) 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
 PP
[2021] MLRHU 1392 v. Mohamad Zuhaili Zainal pg 19

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
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 s 400, Criminal Procedure Code together with s 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] 5 MLRH 599; [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 ie, 6 March 2015. 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 38 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.
 PP
pg 20 v. Mohamad Zuhaili Zainal [2021] MLRHU 1392

....

[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.

[83] Section 400 Criminal Procedure Code provides for the procedure of
previous convictions and is reproduced for ease of reference.

400. How previous conviction or acquittal may be proved

(1) 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-

(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

(b) 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.

(2) 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.

(3) 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
 PP
[2021] MLRHU 1392 v. Mohamad Zuhaili Zainal pg 21

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 s 400 which are:

(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

(b) 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 s 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.

The following documents are public documents:

(a) documents forming the acts or records of the acts of-

(i) 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

(b) 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 s 80 Evidence Act 1950 which reads as follows:
 PP
pg 22 v. Mohamad Zuhaili Zainal [2021] MLRHU 1392

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-

(a) the document is genuine;

(b) any statements as to the circumstances under which it was

taken, purporting to be made by the person signing it, are true;
and

(c) 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 PP v. Yuvaraj [1968] 1 MLRA
606; [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.".

[92] Coming back to our instant appeal, the Court Records are public
documents within the meaning assigned to it under s 74 Evidence Act 1950.
 PP
[2021] MLRHU 1392 v. Mohamad Zuhaili Zainal pg 23

[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] 1 MLRA 423; [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.

[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 s 15(1)(a) Dangerous
Drugs Act 1952 and that the Appellant may be punished under s 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
 PP
pg 24 v. Mohamad Zuhaili Zainal [2021] MLRHU 1392

offer easy money on the supposition, that if 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. PP
[1987] 1 MLRA 43; [1988] 1 MLJ 167; [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 PP v. Loo Choon Fatt [1976] 1 MLRH 23; [1976] 2 MLJ 256 the Court
discussed the issues which are as follows:

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."
 PP
[2021] MLRHU 1392 v. Mohamad Zuhaili Zainal pg 25

[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.

[102] His Lordship Justice Eusoffe Abdoolcader in PP v. Teh Ah Cheng [1976]

1 MLRH 76; [1976] 2 MLJ 186 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 PP
v. Teh Ah Cheng [1976] 1 MLRH 76; [1976] 2 MLJ 186).

[104] I must say this that in s 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] 3 MLRH 703;
[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
 PP
pg 26 v. Mohamad Zuhaili Zainal [2021] MLRHU 1392

abide by the same but only if the court decides to pass a jail sentence in the
first place."

[106] In PP v. Lee Lam (F) [1952] 1 MLRH 289; [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."

[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.

[111] Coming back to the penalty clause of s 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
 PP
[2021] MLRHU 1392 v. Mohamad Zuhaili Zainal pg 27

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.

[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-

(a) 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;

(b) in an appeal from a conviction or in an appeal as to

sentence-

(i) 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;

(c) 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,..".
 PP
pg 28 v. Mohamad Zuhaili Zainal [2021] MLRHU 1392

[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.

[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 MLRA 304; [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 Ibrahim v. Public Prosecutor [2002] 1 MLRA 266;
[2002] 3 MLJ 193; [2002] 3 CLJ 457, 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 PP v. Loo Choon Fatt
[1976] 1 MLRH 23; [1976] 2 MLJ 256."

[120] Similarly, in PP v. Ahmad Khairul Fa'ais Mat Dahlan & Ors [2006] 2
MLRH 610; [2006] 5 MLJ 190; [2006] 6 CLJ 555; [2006] 4 AMR 557, 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
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 s
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.