Hj. Abdul Hamid Bin Hj. Omar LP:

I have had the advantage of reading the judgment of the Court issued by my learned brother, Edgar Joseph Jr., who in that judgment clearly sets out the brief facts of the case relevant for the purpose of this appeal. I am entirely in agreement with the views expressed by him on the question of what constitutes a prima facie case. There is, however, one other question of law raised by Encik Karpal Singh, Counsel for the appellant, namely, that of expert evidence of the chemist.

It is argued by Encik Karpal Singh that -

(a) the chemist's evidence should not be accepted on its face value; and (b) the evidence on the expertise of the chemist should come first, meaning that there should be evidence before the Court to show the chemist's competency to give evidence as expert.

It is appropriate at the outset to determine whether the evidence of a chemist on the identity of a drug constitutes evidence of fact or opinion and to consider the attendant issue governing the admissibility of such evidence. If the chemist's evidence is factual, then it follows that he is competent to give evidence like any other witness and by the same token the law on the admissibility of such evidence would apply. If the chemist's evidence constitutes an opinion, then his evidence would come under the category of expertise evidence. In that case the question of his competency to give expert evidence arises. The law seems clear that opinion of experts are under certain conditions admissible in evidence. Our law of expert evidence is to be found in s. 45 of the Evidence Act which explains who experts are. (see also ss. 46 to 51). In this regard it is pertinent to cite what Hobhouse J. said on expert evidence in The Torenia 2 Lloyd's Rep. 210 at p. 233 as follows:

The question therefore becomes a question whether or not the evidence which it is sought to adduce is to be categorized as expert evidence. In a case of this kind one can analyse the matter in this way: First, evidence is adduced which can be described as direct factual evidence, which bears directly on the facts of the case. Second, there is opinion evidence which is given with regard to those facts as they have been proved, and then, thirdly, there is evidence which might be described as factual, which is used to support or contradict the opinion evidence. This is evidence which is commonly given by experts, because in giving their expert evidence they rely upon their expertise and their experience, and they do refer to that experience in their evidence. So an expert may say what he has observed in other cases and what they have taught him for the evaluation of' the facts of the particular case. So also experts giving evidence about experiments which they have carried out in the past or which they have carried out for the purpose of their evidence in the particular case in question.

As can be seen the delineation between the categories of evidence, namely, that of fact and opinion, is a fine one. Phipson has described it as follows:

There is an important if elusive distinction to be made in the categorisation of expert evidence. It is generally accepted that there is a difference between evidence of fact and evidence of opinion notwithstanding that it may be difficult to identify the line which divides the two. It is also well understood that in practice a witness of fact may not be able entirely to disentangle his perceptions from the inferences he has drawn from them. Although the Courts often talk of 'expert evidence' as if it were a single category, representing in every case an exception to the rule against the reception of opinion evidence, it is suggested that a similar distinction exists in the evidence of experts, and it is one which has considerable relevance both to the procedural aspects and to the assessment of the weight of expert evidence. Expert witnesses have the advantage of a particular skill or training. This not only enables them