Prosecution must prove the identity of drugs in trafficking charges; discrepancies in evidence markings can lead to a failure of the case.

[1] The appellant was charged for trafficking in dangerous drugs to wit 1,839.3g of methamphetamine at Level 3, Main Terminal Building, Kuala Lumpur International Airport on 19 November 2010.

[2] In brief, the prosecution's case is as follows. The respondent was carrying two bags with him when he was detained by SP4. The bags were scanned. Nothing suspicious was discovered from the scanning. The bags were then physically inspected by SP4. In a black Samsonite bag having the name tag of the respondent (exh P19), SP4 found one cylinder (exh P23). From the cylinder, SP4 recovered three transparent packets which contained substances suspected to be drugs.

[3] The packets were seized by SP4. SP4 marked the three packets as G4, G5 and G6. SP4 then handed the packets with other items seized from the respondent to the investigating officer, SP6. The handing over list (exh P7) was signed by both SP4 and SP6. The three transparent plastic packets were listed as item 8(3) of exh P7 with the markings G4, G5 and G6. SP6 confirmed that he had received the items from SP4 as per the markings. SP6 then made his own markings on the three plastic packets as E1, E2 and E3 before sending the exhibits to the chemistry department in a box marked E.

[4] Upon analysis, the chemist ("SP5") confirmed that the substances from E1, E2 and E3 were 602.5g, 601.0g and 635.8g of methamphetamine respectively.

[5] At the end of the prosecution's case, the learned trial judge made the following finding:

As the charge against the accused is possession of dangerous drugs for purpose of trafficking, the vital element of the charge is the dangerous drugs itself. It is incumbent upon the prosecution and in fact it is mandatory upon the prosecution to produce in court the very drugs that were seized from the accused. There cannot be any compromise in the identity of the drugs.

...

In this case SP4 the raiding officer had handed over the all (sic) items seized from the accused to the investigating officer SP6 which included the 3 packets of drugs. In handing over the exhibits it is the norm among the police officers to prepare a handing over list. The purpose of handing over list is to corroborate the oral testimony of the police officers of the handing over and receipt of the seized items. In this case the handing over list was tendered and marked as P6 (sic) and bore the signature of both SP4 and SP6.

It was clear from SP6 (sic) that before preparation of this list the incriminating items ie, the Samsonite bag from which the car cylinder containing the 3 packets of drugs were found had been marked by SP4. The markings on the incriminating items are again a practice to corroborate the oral testimony of the raiding officer that these were the very items he had seized.

It therefore becomes disastrous for the prosecution if the marking and the document instead of corroborating the oral testimony goes against it, as which has happened in this case. It is apparent from P6 (sic) that the 3 transparent packets had been marked G4, G5 and G6. However when the 3 transparent packets were produced in court the marking on them were G2, G3 and G4.

SP4 tried to explain the discrepancies as a typo error on P6 (sic). It is rule of evidence that oral testimony cannot vary the contents of a document. There are 2 provisions of the which illustrates this.

[6] After adverting to the provisions of ss 93 and 94 of the Evidence Act 1950 , the learned trial judge said:

Further I cannot accept the fact that not 1 but 2 police officers overlooked the error if any on P6 (sic) as to the markings. If there was typo error as alleged by SP4 then it should have been corrected then and there as SP4 had chosen to do further down where he had included an item missed out earlier and signed on the addition made on the document.

To compound to the issue of identity of the drugs seized w