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2021 MarsdenLR 704
HIGH COURT MALAYA ALOR SETAR
MOHAMAD ELIYAS SUIB – Appellant
Versus
PP – Respondent
[Criminal Appeal No: KA-41H-3-01/2020]
Prosecution must prove a prima facie case for drug-related charges, requiring accurate evidence on drug weight and compliance with statutory definitions.
Headnote:(A) Dangerous Drugs Act 1952 – Sections 12(2), 15(1)(a), and 39A(1); Criminal Procedure Code – Section 180 – Appeal against conviction under DDA – Accused acquitted as prosecution failed to prove prima facie case regarding possession and administration of dangerous drugs due to lack of evidence on the accurate weight of methamphetamine and specification of drug – Vitality of proper evidence in drug cases highlighted. (Paras 16, 36, 42)
(B) Evidence Act 1950 – Section 90A – Admissibility of computer-generated documents – Court emphasized necessity of providing certificates for the condition of weighing devices in drug cases. (Paras 28, 44)
Facts of the case: Accused charged for possession and self-administration of drugs; trial court found prima facie case, but the weight of drugs was contested due to equipment reliability concerns.
Findings of Court: Prosecution failed to establish prima facie case for both charges due to lack of evidence on accuracy of drug weight and the specification of the drug in the charge.
Issues: 1) Did prosecution prove prima facie case for possession? 2) Did prosecution prove prima facie case for self-administration?
Ratio Decidendi: Court ruled evidence must be sufficiently reliable to confirm charges; necessary evidence was lacking for accurate drug weight and proper specification in first charge.
Result: Appeals allowed, accused acquitted.
JUDGMENT
Introduction
[1] This is an appeal by the Respondent against the decision of this Court in allowing the Appellant's appeal against both conviction and sentence imposed by the learned Sessions Court Judge of Alor Setar on the Appellant for two Charges under the Dangerous Drugs Act 1952 [Act 234] (" DDA "), that are under s 12(2) of which is punishable under s 39A(1) of the same Act and under s 15(1)(a) of , respectively.
[2] The Respondent is the Public Prosecutor and the Appellant is the Accused in the Court below. In this Judgment, parties will be referred to as they were in the Sessions Court.
[3] For the First Charge, the Accused had been sentenced to 36 months imprisonment from the date of conviction (ie 8 January 2020) and four strokes, and for the Second Charge, 12 months imprisonment from the date of conviction and two years police supervision. Both imprisonment sentences are to run concurrently. Upon the Accused's application, the trial Court had granted stay of execution pending appeal and set bail at RM20,000.00.
Factual Background
[4] The Accused was charged under s 12(2) of DDA which is punishable under s 39A(1) of before the Sessions Court in Alor Setar on 13 August 2018. On 13 November 2018, the prosecution had amended the said Charge (Exhibit A) ("First Charge") and tendered an Additional Charge (Exhibit B) ("Second Charge") under s 15(1)(a) of against the Accused. The Charges read as follows:
Amended Charge
"Bahawa kamu pada 5 OGOS 2018 jam lebih kurang 3.35 PETANG, DI TEPI JALAN DI KAMPUNG KOTA RENTANG, MUKIM TITI GAJAH, ALOR SETAR, di dalam daerah Kota Setar, dalam Negeri Kedah telah didapati dalam MILIKAN kamu dadah berbahaya iaitu "METHAMPHETAMINE" seberat 5.56 gram. Oleh yang demikian kamu telah melakukan suatu kesalahan di bawah s 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah s 39A(1) Akta yang sama.".
Additional Charge "Bahawa kamu pada 5 Ogos 2018 jam lebih kurang 5.59 petang, di Pejabat Bahagian Siasatan Jenayah Narkotik, IPD Kota Setar, di dalam daerah Kota Setar, dalam Negeri Kedah, telah didapati memasukkan dalam diri kamu sendiri dadah berbahaya iaitu "AMP DAN METHAMPHETAMINE". Oleh yang demikian itu kamu telah melakukan suatu kesalahan di bawah s 15(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen yang sama.".
[5] For ease of reference, ss 12(2) and 39A(1) of DDA provide as the followings:
" Section 12 . Restriction on import and export of certain dangerous drugs.
(1) ...
(2) No person shall have in his possession, custody or control any dangerous drug to which this Part applies unless he is authorized to be in possession, custody or control of such drug or is deemed to be so authorized under this Act or the regulations made thereunder.
(3) ...
(4) ...
Section 39A . Increased penalty where the subject matter is the prescribed amount of certain dangerous drugs.
(1) Every person found guilty of an offence against this Act where the subject matter of the offence is:
(a) ...;
...
(za) ...,
shall, instead of being liable to the punishment provided for that offence under the section under which the person has been so found guilty, be punished with imprisonment for a term which shall not be less than two years but shall not exceed five years, and he shall also be punished with whipping of not less than three strokes but not more than nine strokes.".
[6] Whilst s 15(1)(a) of DDA provides as follows:
" Section 15 . Self administration.
(1) Any person who:
(a) consumes, administers to himself or suffers any other person, contrary to s 14 to administer to him any dangerous drug specified in Parts III and IV of the First Schedule; or
(b) ...,
shall be guilty of an offence against this Act and shall be liable on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding two years.".
[7] For the first offence, upon conviction, the Accused is liable to be punished with imprisonment for a term which shall not be less than two years b
