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:
(a)...
(b)...
(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 [1955]
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 [1998] 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.
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