Wednesday, 6 November 2013
The Absence of Expert Witness in Court and Omission of Section 399 of CPC Admissibility of Report produced by the Expert Chemist
SHAMSUL KAMAR KARIA @ HALIM v. PP
COURT OF APPEAL CASE – Year 2013
This is an appeal from the appellant, Shamsul Kamar bin Karia @ Halim who had been convicted for the charge of trafficking in 4,424.0 grammes of cannabis before the Alor Setar High Court, an offence in contravention of section 39B(1)(a) of the Dangerous Drugs Act 1952 ("DDA"), and then sentenced to the mandatory death penalty.
During the hearing of the appeal, the issue which had been highlighted by the Court is that:-
“Whether the prosecution had adduced credible and reliable evidence proving that the plant materials found in a plastic bag ("exhibit P16"), which was in the possession of the appellant at the material time, were 'cannabis' within the meaning of section 2 of the DDA.”
Pertaining to the issue of expert evidence, the court held that in any drug trafficking case, the evidence of the chemist as an expert witness must be satisfactorily and adequately adduced to prove that the impugned drug is a "dangerous drug" as defined in the DDA. It is apparent that the principal reason for sending to the chemist the drug exhibit for chemical examination and analysis is primarily to determine the identity and the weight of the drug in question, which are basic and necessary ingredients of the offence.
In the ordinary way, the chemist is called as a witness by the prosecution at the trial to prove by the chemist's oral testimony that the subject-matter of the charge is a "dangerous drug" as defined in the DDA, in which case the oral evidence of the chemist constitutes the best evidence.
Nonetheless, this process had been omitted in the previous court as the chemist who had conducted the chemical examination and analysis on the drugs exhibits had passed away before the commencement of the trial. The report entitled "LAPORAN DI BAWAH SEKSYEN 399 KANUN TATACARA JENAYAH", which was also marked as exhibit P11, was tendered by the prosecution at the trial of the appellant for the purpose of proving that the chemist had examined and analyzed the suspected plant materials recovered and found them to be cannabis under section 2 of the DDA.
Now, it is material for us to look at section 399 of CPC. This provision provides that:-
"399. (1) Any document purporting to be a report under the hand of any of the persons mentioned in subsection (2) upon any person, matter or thing examined or analyzed by him...may be given in evidence in any inquiry, trial or other proceeding under this Code unless that person.....shall be required to attend as a witness-
(a) by the Court; or
(b) the accused, in which case the accused shall give notice to the Public Prosecutor not less than three clear days before the commencement of the trial:
Provided always that in any case in which the Public Prosecutor intends to give in evidence any such report he shall deliver a copy of it to the accused not less than ten clear days before the commencement of the trial.
(2) The following are persons to whom the provisions of this section apply:
(c) chemists in the employment of any Government in Malaysia or of the Government of Singapore;
(3) The persons referred to in subsection (2)....are by this Code bound to state the truth in
In the present case, the chemist had passed away and as such the appellant could not give any notice under section 399(1)(b) of the CPC to require the attendance of the chemist as a witness at the trial.
Nonetheless, as an evidentiary provision and as an important hearsay exception, according to section 399(1) of the CPC, a copy of exhibit P11, must be served on the appellant not less than 10 clear days before the commencement of the trial before it could be ruled as admissible and accepted as conclusive evidence for the prosecution to prove that the drugs exhibits were cannabis within the meaning of section 2 of the DDA. The proviso to section 399(1) of the CPC is a condition precedent and, if not complied with, exhibit P11 cannot be admitted and it therefore follows that if exhibit P11 was wrongly admitted in evidence. [Bear in mind that such wrongful admission was an illegality which could not be cured under section 422 of the CPC]
In the present case, as fairly admitted by the learned DPP, the condition precedent had not been complied with in the present case. That being the case, exhibit P11 was wrongly admitted by the learned JC in contravention of section 399(1) of the CPC and the report in such circumstances was inadmissible despite its admission, even with consent or by waiver of the appellant.
The learned DPP had then submitted that by virtue of the provisions of section 32(1)(i) and (j) of the Evidence Act, exhibit P11 could be admitted as substantive evidence to prove that the drugs exhibits were cannabis within the meaning of section 2 of the DDA at the trial of the appellant. The relevant parts of section 32(1) reads:-
"Statements, written or verbal, of relevant facts made by a person who is dead.....are themselves relevant facts in the following cases:
(i) when the statement was made in the course of, or for the purposes of, an investigation or inquiry into an offence under or by virtue of any written law; and
(j) where the statement was made by a public officer in the discharge of his duties."
Nonetheless, the court had rejected this argument and the reason provided is that section 3 of the CPC lays down the general rule that all offences under the Penal Code and offences in statutes other than the Penal Code shall be tried according to the provisions of the CPC.
It is important to note that Chapter XX1X of the CPC consisting sections 395 - 402A contain special provisions relating to evidence, designed to further the ends of justice and to ensure that an accused person gets a fair trial. In that, section 399 is one of the special and exclusive provisions in the CPC governing the admissibility of reports as evidence of certain persons. On the other hand, section 32 of the Evidence Act is a general provision which deals with statements of persons who cannot be called as witnesses, on the ground that: (a) they are dead; (b) they cannot be found; (c) they have become incapable of giving evidence; (d) their attendance cannot be procured without an amount of delay or expense which under the circumstances of the case, appears to the court unreasonable.
It is well-settled that where a special provision is made in a special statute, that special provision excludes the operation of a general provision in the general law-generalibus specima derogant . As decided in the case of Koh Hor Khoon v. R  1 LNS 44, it is a general rule of evidence that the Evidence Act cannot override specific provisions of other statutes.
Hence, the court had decided that the admissibility of the chemist report (exhibit P11) must be governed by section 399(1) of the CPC, not according to section 32 of the Evidence Act. Accordingly, the court held that with the exclusion of exhibit P11, there was no sufficient evidence to justify the conviction of the appellant on the charge. The appellant was acquitted.
To conclude, any report produced by the expert may be tendered as evidence in court under section 399 of CPC. As decided in the case of Muhammed Hassan v PP  2 CLJ 170, the object of dispensing with the calling of the categorized persons as witnesses was probably to avoid the expenses, delay or inconvenience which would be caused if they were to testify in court in person. But even then, such persons would have to be called as witnesses if required by court or if needed, upon due notification, by the accused.
Despite the attendance of the expert witness to give oral evidence in court, section 399(1) of CPC makes it mandatory for the report to be served on the accused not less than 10 clear days before the commencement of the trial before it could be ruled as admissible and accepted as conclusive evidence for the prosecution.
In the present case, there are two factors which lead to the acquittal of the appellant:
· -The failure of the chemical expert to attend in court to prove that the subject-matter of the charge is a "dangerous drug" as defined in the DDA; and
· -The failure to serve the report to the appellant as required.
The first factor is an unavoidable incident as the chemist had passed away . Bear in mind that it is not mandatory for the expert witness to attend to court to give oral evidence on the report, though it may constitute the best evidence. The key factor in this case is still the omission of PP to serve such report within 10 days before the commencement of the trial. It is not merely procedural in nature, but deals with the admissibility of the report which its failure is not curable.