Abdul Hamid Omar Acting LP:

[1] This was an appeal by the Public Prosecutor against the decision of the learned Judge in the High Court at Alor Setar on 1 October 1986 where the respondent was acquitted and discharged without his defence being called. The respondent was tried for trafficking in 128.80 grammes of heroin (the drug) on 25 October 1983, in contravention of s 39B(1) (a) of the Dangerous Drugs Act No 30/52 (Laws of Malaysia Act 234) and punishable under s 39B(2) of the same Act.

[2] In the course of the trial the Investigating Officer testified that he received the drug together with other exhibits and personally sent them to the government chemist on 28 October 1983 and 4 April 1984 under seal. He received them back from the Chemistry Department together with two chemist reports (produced and marked as Exhibits P25 and P26) on 14 February 1984 and 7 May 1984. These reports were served on the respondent on 24 May 1984 pursuant to s 399 of the Criminal Procedure Code by one Detective Police Constable 56729 Yunan. The respondent acknowledged receipt by endorsing on the reverse of P25 and P26. For some reason DPC Yunan was not called by the prosecution to testify nor was he offered to the defence at the close of the prosecution case. Nevertheless there was evidence to show that the respondent endorsed on the reverse of both P25 and P26 to acknowledge receipt.

[3] At that point when the prosecution closed its case the learned Judge drew the learned Deputy Public Prosecutor's attention to the fact that DPC Yunan had not given evidence whereupon the Deputy Public Prosecutor applied for leave under s 425 of the Criminal Procedure Code for the Court to summon DPC Yunan. The defence Counsel as a matter of course objected to the application. After hearing arguments the learned Judge upheld the defence objection, refused the application and acquitted and discharged the accused without calling for the defence. Hence the appeal.

[4] For reasons that we shall state shortly the appeal was allowed and the order of acquittal and discharge set aside and the case was ordered to be remitted back for the Court to invoke s 425 of the Criminal Procedure Code. We indicated that we would at a later date give reasons for our decision. We do now.

[5] When the learned Deputy Public Prosecutor asked the Court to invoke s 425 of the Criminal Procedure Code, he did concede that the omission to call the constable was an oversight on the part of the prosecution, but regardless he argued that it was a matter for the Court to exercise its discretion to call any person to be examined if it was essential to the just decision of a case.

[6] The crucial question before us therefore was whether the learned Judge acted rightly when he declined to exercise his powers. Although he rightly held that the power under s 425 of the Criminal Procedure Code is discretionary, he however failed to exercise the discretion judicially. He formed the view and we quote:

Having regard to all the circumstances, including my view on the effect of our system of trial being adversarial, I did not think I should exercise my discretion by invoking s 425 of the Criminal Procedure Code, I therefore declined to exercise it.

[7] The learned Judge observed that the oversight on the part of the prosecution to call DPC Yunan had resulted in the prosecution's failure to prove the case. And he decided that he ought not to exercise his discretion under s 425 Criminal Procedure Code in particular in view of what was said by Viscount Sankey, LC in Maxwell v. The Director of Public Prosecution [1935] AC 309 as follows:

It must be remembered that the whole policy of English Criminal Law has been to see that as against the prisoner every rule in his favour is observed and that no rule is broken so as to prejudice the chance of the jury trying the true issue. The sanction for the observance of the rules of evidence in criminal cases is that, if they are broken in any case, the conviction may be