Hashim Yeop A Sani CJ (Malaya)

(delivering the judgment of the court): On 17 September 1986, the appellant was charged in the High Court, Ipoh with trafficking in 128.8g of heroin under s 39B(1)(a) of the Dangerous Drugs Act 1952. On 1 October 1986, the learned trial judge acquitted the appellant without calling for his defence. The learned trial judge had ruled that it would not be proper for him to exercise his discretion under s 425 of the Criminal Procedure Code (FMS Cap 6) ('the Code') to call for the evidence of service of the chemist's reports through a police constable although there was no dispute as to the existence of the chemist's reports.

When the public prosecutor appealed against the acquittal this court ordered that the case be remitted back to the High Court for continued hearing and directed the trial judge to invoke s 425 of the Code and to call DPC Mohd Yunan bin Mohd Ali ('PW10') to testify as to the service of the two chemist's reports ('P25' and 'P26') on the appellant (see PP v Phon Nam [1988] 3 MLJ 415).

When the trial of the case was continued before the same trial judge, he allowed the prosecution to call the said PW10. After completing the evidence of PW10 the prosecution closed its case.

Counsel for the appellant then submitted that the prosecution had not made out a prima facie case, inter alia, on the grounds that the proper service of the relevant chemist's reports, P25 and P26 (in particular the main chemist's report, P25), were not proven. For this contention he relied on the evidence of PW10 itself and what appeared on the two chemist's reports. It can be seen clearly that although the chemist's report P25 is dated 8 February 1985, the endorsement at the back of the report referred to a report dated 14 February 1984 and the said report dated 14 February 1984 was never produced. In his submission before us, counsel for the appellant also added that the signature acknowledging the service was not verified at all.

After hearing the reply by the learned deputy public prosecutor, the learned trial judge allowed the prosecution to recall PW10, purporting to exercise his discretion under s 425 of the Code but adjourned the trial to await the written judgment of this court with regard to the earlier appeal. When the trial resumed on 25 March 1990 the learned deputy public prosecutor (a different one from the earlier officer) submitted that the court should exercise its discretion under s 425 of the Code to enable the prosecution to recall PW10 as well as Insp Mohd Sakri ('PW1') to clarify the dates of the chemist's reports in question. The trial judge allowed the prosecution to recall PW10. However, in his evidence PW10 again repeatedly stated that he could not remember if copies of the chemist's reports, P25 and P26, were served on the appellant.

In his second submission of no case in the continued trial, learned counsel for the appellant emphasized that there was a vital link in the entire prosecution case which was missing and that was that the service of the chemist's reports had not been proved beyond reasonable doubt and referred to Teoh Hoe Chye v PP [1987] 1 MLJ 220. He also submitted that not only was the signature of the appellant not verified but the signature of DPC Mohd Yunan was not found on either endorsement.

However, the trial judge called for the defence and after hearing the defence, convicted the appellant and sentenced him to death.

After hearing submissions in the appeal we allowed the appeal, quashed the conviction and set aside sentence.

In our view, the sole issue here is the exercise of discretion under s 425 of the Code by the learned trial judge in this case. When the discretion under s 425 of the Code should be exercised has been amply explained by this court in the earlier judgment involving the same appellant as also explained in Ramli bin Kechik v PP [1986] 2 MLJ 33. The discretion is to be exercised depending on the facts of each case, the main consideration