714 Current Law Journal [2023] 2 CLJ

PP v. AHMAD SAIFUL ISLAM MOHAMAD A

COURT OF APPEAL, PUTRAJAYA

KAMALUDIN MD SAID JCA
GUNALAN MUNIANDY JCA
HASHIM HAMZAH JCA
B
[CRIMINAL APPEAL NO: W-09-282-11-2021]
20 JANUARY 2023
[2023] CLJ JT(4)

Abstract – Courts are bound to observe judicial hierarchy for the

C
orderly development of legal rules as well as for the courts and lawyers
to regulate their affairs. The doctrine of stare decisis provides certainty
and uniformity in the law and stabilises the law, hence, is an
indispensable foundation to a decision. The Court of Appeal, as the
highest court to determine appeals in criminal matters emanating from
D
subordinate courts, when faced with two conflicting decisions of the Court
of Appeal, ought to follow the later decision for there to be a finality and
certainty in the law.

CRIMINAL PROCEDURE: Appeal – Appeal against conviction and sentence –

E
Break in chain of evidence – Charge under s. 15 of Dangerous Drugs Act 1952 –
Collection of urine samples – Discrepancy in labelling of bottle containing sample
– Whether affected identity and credibility of sample – Whether conviction safe
JURISDICTION: Court of Appeal – Powers and jurisdiction – Court of Appeal
highest court to determine appeals for criminal matters originating from subordinate F
courts – Application of doctrine of stare decisis – Whether principles governing
Federal Court in Dalip Bhagwan Singh v. PP equally applicable to Court of Appeal
– Whether later decision prevailed over earlier decision – Whether Magistrate correct
in following later decision of Court of Appeal
On 5 January 2019, SP1 and SP2 and a team of police officers conducted a G
raid at an entertainment centre and the individuals detained were made to
undergo a preliminary urine test. The respondent was one amongst them.
The preliminary screening test of the respondent’s urine sample tested
positive for ‘THC’. The respondent was informed of the result of the
preliminary test by SP1 who proceeded to label the bottle and placed his H
signature on the label attached to the bottle and the form. On the same day,
SP1 handed over the exhibits and the form to the investigating officer, SP6
who handed over the said bottle and the form to SP3 for safekeeping. On
7 January 2019, acting on the instruction of SP6, SP3 brought the
respondent’s urine sample together with the form to the Pathology
I
Department, Hospital Kuala Lumpur, for analysis. SP4, having received the
signed and sealed urine sample bottle from SP3, handed the specimen over
to the science officer, SP5, for preliminary screening and confirmation test.
 [2023] 2 CLJ PP v. Ahmad Saiful Islam Mohamad 715

A SP5 found the respondent’s urine sample contained THC. After the test, SP5
kept the urine sample in a locked refrigerator. On 10 January 2019, SP5
conducted a confirmation test using the thin layer chromatography (TLC)
method and found the specimen to contain 11-nor-delta-9tetrahydrocann
abinol-9-carboxylic acid, a dangerous drug listed in the First Schedule to the
B Dangerous Drugs Act 1952 (‘DDA’), the subject matter of the charge against
the respondent under s. 15(1)(a) of the DDA. At the end of the prosecution’s
case, the Magistrate found the prosecution had successfully proven a prima
facie case against the respondent and ordered the respondent to enter his
defence. At the close of the defence case, having found that the respondent
C
had failed to raise a reasonable doubt on the prosecution’s case and that the
prosecution had successfully proven its case against the respondent beyond
reasonable doubt, the respondent was found guilty and convicted of the
charge. The respondent was sentenced to eight months imprisonment from
the date of conviction and further ordered to undergo two years of
supervision. The respondent appealed against his conviction and sentence to
D
the High Court. In allowing the appeal, the High Court Judge (‘HCJ’) set
aside the respondent’s conviction and sentence. Dissatisfied, the prosecution
appealed. During the trial, one of the issues raised before the Magistrate was
whether the failure of the police to collect the respondent’s urine sample in
two bottles was fatal to the prosecution’s case. The Magistrate, who was
E confronted with two conflicting Court of Appeal (‘CA’) decisions on the
same issue, Noor Shariful Rizal Noor Zawawi v. PP and PP v. Rosman Saprey &
Satu Lagi Rayuan, followed Rosman Saprey, the latest decision of the CA,
citing the doctrine of stare decisis. At the High Court, the HCJ was of the
opinion that His Lordship had a choice of which case to follow, regardless
F of which case took precedence, and decided to follow Noor Shariful Rizal
despite it being an earlier decision.
Held (dismissing appeal; affirming decision of High Court)
Per Hashim Hamzah JCA delivering the judgment of the court:

G
(1) The principles in Dalip Bhagwan Singh v. PP on the doctrine of stare
decisis were: (i) a court other than the highest court is obliged generally
to follow the decisions of the courts at a higher or the same level in the
court structure; (ii) the CA is bound by its own decisions except: (a) if
the decision was given per incuriam; (b) when faced with a conflict of past
decisions, it may choose which to follow irrespective of the date; and
H
(c) when the decision is expressly or by necessary implication, overruled
by the Federal Court; (iii) the courts below the CA could not rely on the
per incuriam rule applied by CA for itself, but could choose between the
two conflicting decisions; and (iv) when two decisions of the Federal
Court conflict on a point of law, the later decision prevails over the
I earlier decision. However, for criminal appeals originating from the
subordinate courts, ie, the Magistrate’s or Sessions Courts, ss. 26, 50(1),
(2) and 87(1) of the Courts of Judicature Act 1964 must also be
considered. (paras 36 & 37)
716 Current Law Journal [2023] 2 CLJ

(2) The CA has the jurisdiction to hear and determine any appeal against A
any decision made by the High Court in the exercise of its original
jurisdiction or its appellate or revisionary jurisdiction in any criminal
matters decided by the subordinate courts. On the other hand, the
Federal Court has no jurisdiction to determine any appeals originating
from any criminal matters decided by the subordinate courts. For B
criminal matters decided by the subordinate courts, the CA is the highest
court to determine any appeals arising thereof. In terms of judicial
hierarchy, the principles governing the Federal Court in Dalip Bhagwan
Singh are equally applicable to the CA in such instances. Hence, in this
appeal, when two decisions of the CA conflicted on a point of law, the C
later decision prevailed over the earlier decision. (paras 40-43)
(3) The Magistrate was correct in following the decision in Rosman Saprey,
having been bound by the decision and there was no reason for this court
to depart from Rosman Saprey. Therefore, the failure of the police to
collect the respondent’s urine sample in two bottles was not fatal to the D
prosecution’s case. (paras 47, 48 & 50)
(4) There was a major discrepancy in the labelling of the urine sample
bottle. The label on the bottle stated that the sample was taken on
5 January 2018, which was not the actual date when the raid was
conducted and the urine sample was taken. There should have been E
some effort on the part of SP1, having admitted to the discrepancy, to
amend, correct or revise it before sending it for analysis, but there was
none. In the absence of any DNA evidence, the prosecution must ensure
that there was no mistake in the labelling of the bottle which would
otherwise affect the identity and credibility of the respondent’s urine F
sample. There was also no clear evidence adduced by the prosecution
to address the issue on the possibility of the urine sample being
contaminated during the screening test conducted by the police.
Consequently, the respondent’s conviction by the Magistrate was
unsafe. The court thus affirmed the decision of the High Court in G
discharging and acquitting the respondent of the charge against him.
(paras 53-56 & 58)
Case(s) referred to:
Arulpragasan Sandaraju v. PP [1996] 4 CLJ 597 FC (refd)
Dalip Bhagwan Singh v. PP [1997] 4 CLJ 645 FC (foll) H
Dato’ Tan Heng Chew v. Tan Kim Hor & Another Appeal [2006] 1 CLJ 577 FC (refd)
Kerajaan Malaysia & Ors v. Tay Chai Huat [2012] 3 CLJ 577 FC (refd)
Majlis Angkatan Tentera Malaysia v. Mohd Nurul Ami Mohd Basri [2019] 2 CLJ
772 CA (refd)
Noor Shariful Rizal Noor Zawawi v. PP [2017] 4 CLJ 434 CA (refd)
PP lwn. Rosman Saprey & Satu Lagi Rayuan [2019] 4 CLJ 767 CA (foll) I
PP v. Samsul Arifin Bakar [2020] 7 CLJ 503 CA (refd)
Tenaga Nasional Bhd v. Chew Thai Kay & Anor [2022] 2 CLJ 333 FC (refd)
 [2023] 2 CLJ PP v. Ahmad Saiful Islam Mohamad 717

A Legislation referred to:

Courts of Judicature Act 1964, ss. 26, 50(1), (2), 87(1)
Criminal Procedure Code, ss. 173(f), 180
Dangerous Drugs Act 1952, s. 15(1)(a)
Drug Dependants (Treatment and Rehabilitation) Act 1983, s. 2

B For the appellant - Magaiar Karasi Krishnan & Khairul Aisamuddin Abdul Rahman;
Polis Diraja Malaysia
For the respondent - Nicholas Kow Eng Chuan, Emile Ezra Md Hussain, Nasar Khan
Md Hussain, Nasar Khan Mirbas Khan & Muaz Zafar; M/s Mazwan Dee Nasar
& Shima

C [Editor’s note: For the High Court judgment, please see Ahmad Saiful Islam Mohamad
v. PP [2021] 1 LNS 1987 (affirmed).]

Reported by S Barathi
JUDGMENT
D Hashim Hamzah JCA:
Introduction
[1] The respondent in the present case was charged under s. 15(1)(a) of the
Dangerous Drugs Act 1952 (Revised 1980) [Act 234] at the Magistrate’s
E Court Kuala Lumpur. The charge against the respondent reads:
Bahawa kamu pada 05/01/2019 jam lebih kurang 2.05 pagi bertempat di
tandas W Club Enterprise Sdn Bhd W Hotel, Tingkat 12, No. 121 Jalan
Ampang, di dalam Daerah Dang Wangi, Wilayah Persekutuan Kuala
Lumpur, sebagai orang yang tidak diberi kuasa di bawah undang-undang,
didapati kamu memberikan kepada diri sendiri 11-nor-delta-9tetrah
F
ydrocannabinol-9-carboxylic acid ke dalam badan kamu sendiri. Oleh yang
demikian itu kamu telah melakukan kesalahan di bawah sek: 15(1)(a) Akta
Dadah Berbahaya (“ADB”) yang boleh dihukum di bawah seksyen dan
Akta yang sama.
[2] Upon conviction, the respondent shall be liable to a fine not exceeding
G RM5,000 or to imprisonment for a term not exceeding two years.
Immediately after having undergone the punishment imposed upon him in
respect thereof, he shall undergo supervision by an officer as defined under
s. 2 of the Drug Dependants (Treatment and Rehabilitation) Act 1983
(Act 283) for a period of not less than two and not more than three years,
H as may be determined by the court.
[3] The respondent pleaded not guilty to the charge.
The Prosecution’s Case
[4] During the prosecution’s case, six witnesses were called to give
I evidence. The evidence adduced by the prosecution can be summarised as
follows.
718 Current Law Journal [2023] 2 CLJ

[5] On 5 January 2019, at around 12.30am, ASP Hisam bin Abu (“SP1”), A
Insp Mohd Haszaruddin bin Kamaruzzaman (“SP2”) and a team of police
officers from the Criminal Investigation Anti-Narcotics Division, Dang
Wangi Police Headquarters, conducted a raid at an entertainment centre
known as Pusat Hiburan W Club Enterprise Sdn Bhd, 12th Floor, W Hotel,
Jalan Ampang, Kuala Lumpur. B

[6] A total of 101 individuals were detained and searched, but nothing
incriminating was found. Each of them was made to undergo a preliminary
urine test. The respondent was amongst them.
[7] Before the urine samples were collected, SP1 gave a briefing
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concerning the process of taking urine samples. SP1 instructed all the
detainees to give urine samples of not less than 30ml. The respondent was
allowed to choose his urine sample bottle. Each bottle was wrapped in a
plastic wrapper with five test strips.
[8] The respondent was accompanied to the toilet in the said premise, D
where he gave his urine sample. After completing the process, the respondent
brought the urine sample bottle and placed it on a table. Then, he opened
the bottle cover. SP1 then conducted a preliminary screening test by dipping
the five test strips into the respondent’s urine sample. The respondent’s urine
sample tested positive for “THC”. SP1 informed the result of the preliminary
E
test to the respondent and closed the bottle lid in front of him. SP1 then
proceeded to label the bottle.
[9] SP1 placed his signature on the label attached to the bottle and the
form (“exh. P3”). SP1 then placed a label on the bottle with a blue-coloured
seal with serial no: 0325083, which was placed around the bottle. SP1 lodged F
a police report regarding the raid (“exh. P1”).
[10] On the same day, at 7am, SP1 handed over the exhibits and the form
to the investigating officer, SM Jamil bin Awang (“SP6”). At around
8.15am, SP6 handed over the said bottle and the form to L/Kpl Mohd
Faiszul bin Mohd Faudzi (“SP3”) for safekeeping. SP3 kept the bottle in a G
refrigerator in his office before sending them to the Pathology Department,
Hospital Kuala Lumpur (“HKL”), for analysis.
[11] On 7 January 2019, acting on the instruction of SP6, SP3 brought the
respondent’s urine sample together with the form to HKL. SP3 handed the
form and the urine sample bottle to Nazri bin Joikul (“SP4”). SP4 received H
the signed and sealed urine sample bottle from SP3 on the same day at around
9.28am. At around 9.40am, SP4 handed the specimen over to the science
officer, Suriati binti Adenan (“SP5”), for preliminary screening and
confirmation test.
I
 [2023] 2 CLJ PP v. Ahmad Saiful Islam Mohamad 719

A [12] SP5 conducted the preliminary screening test on the same day. The
test was for “THC”, as per the request in the form. The test was conducted
using the immunoassay method. SP5 found that the respondent’s urine
sample contained “THC”. After the test, SP5 kept the urine sample in a
locked refrigerator.
B
[13] On 10 January 2019, SP5 conducted a confirmation test using the Thin
Layer Chromatography (TLC) method and found the specimen to contain
“11-nor-delta-9tetrahydrocannabinol-9-carboxylic acid”, a dangerous drug
listed in the First Schedule to Act 234.

C
[14] On 13 January 2019, SP5 issued a confirmation drug report on drugs
in Urine Laboratory No: 9501090 (“exh. P7”) and handed the same to the
police on 16 January 2019. The respondent’s urine sample bottle has been
disposed of.
Finding Of The Magistrate’s Court At The End Of Prosecution’s Case
D [15] At the end of the prosecution’s case, the learned Magistrate found that
the prosecution had successfully proven a prima facie case against the
respondent. Hence, the respondent was ordered to enter his defence.
The Defence’s Case
E [16] The respondent chose to give sworn evidence and called another
person as a witness. The gist of the defence’s case is as follows.
[17] The respondent gave evidence that he shared a cigarette with a friend
named ‘Zul Afiq’ when both of them were in a car heading towards W Hotel
on the day of the incident.
F
[18] The respondent testified that Zul Afiq was also charged under
s. 15(1)(a) of Act 234 and had pleaded guilty to the charge. The respondent
said that the police had raided the premises and subjected everyone detained
to a urine test. He said that a police officer instructed him to take a
transparent empty unlabelled container and proceed into the bathroom to
G
urinate inside the bottle. After he urinated inside the bottle, he gave the bottle
to a police officer outside the bathroom. He never witnessed any testing done
on the sample. After a while, he was only informed of the outcome of the
urine test and was instructed to write his particulars on the label attached to
the bottle.
H
[19] Mohd Irwan bin Osman (“SD2”) was the floor captain at the club and
was on duty the night of the incident. SD2 said that he witnessed the police
conducting urine tests that night on customers in the club. SD2 said that the
bottles of urine samples were unmarked. He claimed to have never heard the
respondent’s name being called up to give his urine sample and that he did
I
not witness any urine tests conducted on the respondent.
720 Current Law Journal [2023] 2 CLJ

Finding Of The Learned Magistrate At The End Of Defence’s Case A

[20] At the close of the defence’s case, the learned Magistrate found that
the respondent had failed to raise a reasonable doubt to the prosecution’s case
and that the prosecution had successfully proven its case against the
respondent beyond reasonable doubt.
B
[21] As a result, the respondent was found guilty and convicted of the
charge. He was sentenced to eight months imprisonment from the date of
conviction (24 June 2020) and further ordered to undergo two years of
supervision.
The Respondent’s Appeal To The High Court C

[22] The respondent appealed to the High Court against his conviction and
sentence. After hearing both parties to the appeal, the learned High Court
Judge (“HCJ”) allowed the respondent’s appeal and set aside his conviction
and sentence.
D
[23] Dissatisfied with the decision of the learned HCJ, the prosecution filed
this appeal.
Our Analysis And Findings
[24] During the trial, one of the issues raised before the learned Magistrate
E
was whether the failure of the police to collect the respondent’s urine sample
in two bottles was fatal to the prosecution’s case.
[25] The argument in support of the requirement to collect the urine sample
in two bottles was based on the Inspector General’s Standing Order F103
(“IGSO F103”) and the “Garis Panduan Bagi Ujian Pengesanan F
Penyalahgunaan Dadah Dalam Air Kencing Bil. 6/2002” by the Ministry of
Health (“KKM Guidelines”).
[26] The answer to the above issue depends on whether the IGSO F103 and
the KKM Guidelines have any force of law. Currently, two conflicting Court
of Appeal decisions have discussed this issue extensively. G

[27] In Noor Shariful Rizal Noor Zawawi v. PP [2017] 4 CLJ 434 (which was
decided on 22 February 2017), the Court of Appeal decided that the IGSO
F103 and the KKM Guidelines have the force of law. Consequently, the
failure of the police to collect the accused’s urine sample in two bottles was
fatal to the prosecution’s case. H

[28] In PP lwn. Rosman Saprey & Satu Lagi Rayuan [2019] 4 CLJ 767 (which
was decided on 23 April 2018), the Court of Appeal departed from its earlier
decision in Noor Shariful Rizal. In this case, it was decided that the IGSO
F103 and the KKM Guidelines are mere administrative guidelines and have
I
no force of law. As a result, it was held that the failure of the police to collect
the accused’s urine sample in two bottles was not fatal to the prosecution’s
case.
 [2023] 2 CLJ PP v. Ahmad Saiful Islam Mohamad 721

A [29] When confronted with the two Court of Appeal’s decisions above, the
learned Magistrate followed Rosman Saprey, the latest decision of the Court
of Appeal, citing the doctrine of stare decisis as his reason for doing so. To
be exact, the learned Magistrate cited the following passage in Dalip Bhagwan
Singh v. PP [1997] 4 CLJ 645; [1998] 1 MLJ 1 where the Federal Court held:
B If the House of Lords, and by analogy, the Federal Court, departs from
its previous decision when it is right to do so in the circumstances set out
above, then also by necessary implication, its decision represents the
present state of the law. When two decisions of the Federal Court
conflict, on a point of law, the later decision therefore, for the same
reasons, prevails over the earlier decision.
C
[30] When the matter came up on appeal before the High Court, the learned
HCJ was of the opinion that he had a choice of which case to follow
regardless of which case took precedence in time. The learned HCJ decided
to follow Noor Shariful Rizal, despite it being an earlier decision on the same
D issue. He also cited Dalip Bhagwan Singh and referred to the following
passage:
In this connection, it is interesting to refer to Cassell & Co v. Broome [1972]
AC 1027, 1054. It was held that courts in the lower tiers below the Court
of Appeal could not rely on the per incuriam rule applied by Court of
Appeal for itself, but could choose between two conflicting decisions. We
E
may add that they may so choose, whatever the dates of the conflicting
decisions, as such dates do not matter to the Court of Appeal itself.
[31] Before us, the learned Deputy Public Prosecutor (“DPP”) for the
appellant submitted that the learned HCJ had erred in doing so. We agree
F
with the learned DPP for the following reasons.
[32] In Dalip Bhagwan Singh, the applicant (accused) was initially charged
in the Sessions Court, Kuala Lumpur and was acquitted and discharged on
31 January 1985 at the close of the prosecution case without his defence
being called. The Public Prosecutor then appealed against the order of
G acquittal to the High Court. The High Court then set aside the order of
acquittal and ordered a retrial before a different Sessions Court Judge. The
retrial took place. At the close of the case for the prosecution, the applicant
was again acquitted and discharged for the second time without his defence
being called. The Public Prosecutor appealed to the High Court, and again
H
the appeal was allowed. The order of acquittal was again set aside. The
applicant was ordered to enter his defence.
[33] Only this time, the applicant applied for leave to refer certain
questions of law to the then Supreme Court. Three of the questions were
allowed, all of which relate to the issue of the correct burden of proof at the
I end of the prosecution’s case, whether proof beyond reasonable doubt or
proof of prima facie case. This was due to the conflicting Federal Court and
722 Current Law Journal [2023] 2 CLJ

Supreme Court decisions on the above issue at that time, before the 1997 A
amendment to ss. 173(f) and 180 of the Criminal Procedure Code (by way
of the Criminal Procedure Code (Amendment) Act 1997) came into force.
[34] At the time of hearing the applicant’s appeal, the Federal Court
decision in Arulpragasan Sandaraju v. PP [1996] 4 CLJ 597 was the latest
B
decision concerning the above issue. In Arulpragasan, the Federal Court held
that the standard of proof required of the prosecution at the close of its case
is beyond reasonable doubt. The Federal Court in Dalip Bhagwan Singh
decided that since Arulpragasan was the latest Federal Court decision, the
lower courts were bound to follow it for criminal offences before the 1997
amendment. C

[35] The relevant part of the Federal Court’s decision in Dalip Bhagwan
Singh on the doctrine of stare decisis or judicial precedent is reproduced
below:
The doctrine of stare decisis or the rule of judicial precedent dictates that D
a court other than the highest court is obliged generally to follow the decisions of the
courts at a higher or the same level in the court structure subject to certain exceptions
affecting especially the Court of Appeal.
The said exceptions are as decided in Young v. Bristol Aeroplane Co. Ltd [1944]
KB 718. The part of the decision in Young v. Bristol Aeroplane in regard to
E
the said exceptions to the rule of judicial precedent ought to be accepted
by us as part of the common law applicable by virtue of Civil Law Act
1956, vide its s. 3.
To recap, the relevant ratio decidendi in Young v. Bristol Aeroplane’s case is
that there are 3 exceptions to the general rule that the Court of Appeal is bound by
its own decisions or by decision of courts of co-ordinate jurisdiction such as the Court F
of Exchequer Chamber. The three exceptions are first; a decision of Court of Appeal
given per incuriam need not be followed, secondly, when faced with a conflict of past
decisions of Court of Appeal, or a court of co-ordinate jurisdiction, it may choose
which to follow irrespective of whether either of the conflicting decisions is an earlier
case or a later one, thirdly, it ought not to follow its own previous decision when it
is expressly or by necessary implication, overruled by the House of Lords, or it cannot G
stand with a decision of the House of Lords. There are of course further possible
exceptions in addition to the three exceptions in Young v. Bristol Aeroplane
when there may be cases the circumstances of which cry out for such new
exceptions so long as they are not inconsistent with the 3 exceptions in
Young v. Bristol Aeroplane.
H
A few words need be said about a decision of Court of Appeal made
per incuriam as mentioned above. The words “per incuriam” are to be
interpreted narrowly to mean as per Sir Raymond Evershed, MR in Morelle
v. Wakeling [1955] 2 QB 379, 406 as a “decision given in ignorance or
forgetfulness of some inconsistent statutory provision or of some
authority binding in the court concerned so that in such cases, some part I
of the decision or some step in the reasoning on which it is based, is
 [2023] 2 CLJ PP v. Ahmad Saiful Islam Mohamad 723

A found on that account to be demonstrably wrong.” It should be borne in

mind that the year of Morelle’s case is 1955 whereas s. 3 of the Civil Law
Act was enacted in 1956. The ratio in Morelle’s case is also part of the
common law applicable to us.
In our local context, the Federal Court is to be substituted for the House of Lords with
B regard to the matter under discussion.
In this connection, it is interesting to refer to Cassell & Co. v. Broome [1972] AC
1027, 1054. It was held that courts in the lower tiers below the Court of Appeal
could not rely on the per incuriam rule applied by Court of Appeal for itself, but
could choose between two conflicting decisions. We may add that they may so choose,
whatever the dates of the conflicting decisions, as such dates do not matter to the Court
C
of Appeal itself.
The rule of judicial precedent in relation to the House of Lords was stated in
London Tramways v. London County Council [1898] AC 375 that it was bound
by its own previous decision in the interests of finality and certainty of the law, but
a previous decision could be questioned by the House when it conflicted with another
D decision of the House or when it was made per incuriam, and that the correction of
error was normally dependent on the legislative process.
However, In 1966, Lord Gardiner LC made the following statement on
behalf of himself and all the Lords of Appeal in Ordinary commonly
known as the “Practice Statement (Judicial Precedent) 1966” which is set
E out below:
LORD GARDINER LC: Their Lordships regard the use of
precedent as an indispensable foundation upon which to decide
what is the law and its application to individual cases. It provides
at least some degree of certainty upon which individuals can rely
in the conduct of their affairs, as well as a basis for orderly
F
development of legal rules.
Their Lordship nevertheless recognise that too rigid an adherence
to precedent may lead to injustice in a particular case and also
unduly restrict the proper development of the law.

G They propose, therefore, to modify their present practice and, while

treating former decisions of this House as normally binding, to
depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing
retrospectively the basis on which contracts, settlements of
property and fiscal arrangements have been entered into and also
H
the need especially for certainty as to the criminal law.
This announcement is not intended to affect the use of precedent
elsewhere than in this House.
Experience in the United Kingdom has shown that the power “to depart
I from a previous decision when it appears right to do so” has been used
very sparingly.
724 Current Law Journal [2023] 2 CLJ

In Malaysia, the Federal Court and its forerunner ie, Supreme Court, after A
all appeals to the Privy Council were abolished, has never refused to
depart from its own decision when it appeared right to do so, see the
above-mentioned Federal Court’s cases on the question of burden of
proof at the close of prosecution case.
Though the Practice Statement (Judicial Precedent) 1966, of the House B
of Lords is not binding at all on us, it has indeed and in practice been
followed, though such power to depart from its own previous decision has
been exercised sparingly also. It is right that we in the Federal Court,
should have this power to do so but it is suggested that it should be used
very sparingly on the important reason of the consequences of such
overruling involved for it cannot be lost on the mind of anybody that a C
lot of people have regulated their affairs in reliance on a ratio decidendi
before it is overruled. In certain circumstances, it would be far more
prudent to call for legislative intervention. On the other hand, the power
to do so depart is indicated (subject to a concurrent consideration of the
question of the consequences), when a former decision which is sought
to be overruled is wrong, uncertain, unjust or outmoded or obsolete in D
the modern conditions.
In this connection, the question of a “full court” or a panel of Federal
Court comprising more than 3 members as compared with the ordinarily
constituted quorum of 3 members of the same court, arises for
consideration. In view of the reasons about departing from its previous E
decisions advanced above, the effect or weight of a decision of a “full
court” and that of an ordinary quorum is the same by necessary
implication. A full court or a panel larger than the ordinary quorum is
usually indicated such as when an unusually difficult or controversial
question of law is involved, or a question arises as to whether a previous
decision of the Federal Court ought to be overruled. F

If the House of Lords, and by analogy, the Federal Court, departs from its previous
decision when it is right to do so in the circumstances set out above, then also by
necessary implication, its decision represents the present state of the law. When two
decisions of the Federal Court conflict, on a point of law, the later decision therefore,
for the same reasons, prevails over the earlier decision. G
We are now in a position to deal with “Question 1” posed to us and as
set out above and our answer is in the negative. (emphasis added)
[36] We believe that the principles that can be gleaned from the passage
above can be summarised as follows:
H
(i) a court other than the highest court is obliged generally to follow the
decisions of the courts at a higher or the same level in the court
structure;
(ii) the Court of Appeal is bound by its own decisions except:
I
(a) if the decision was given per incuriam;
 [2023] 2 CLJ PP v. Ahmad Saiful Islam Mohamad 725

A (b) when faced with a conflict of past decisions, it may choose which
to follow irrespective of the date; and
(c) when the decision is expressly or by necessary implication,
overruled by the Federal Court;
B (iii) the courts below the Court of Appeal could not rely on the per incuriam
rule applied by Court of Appeal for itself, but could choose between the
two conflicting decisions; and
(iv) when two decisions of the Federal Court conflict, on a point of law, the
later decision prevails over the earlier decision.
C
[37] However, for criminal appeals originating from the subordinate
courts, ie, the Magistrate’s Court or the Sessions Court, we are of the view
that ss. 26, 50(1), 50(2), and 87(1) of the Courts of Judicature Act 1964
(Revised 1972) [Act 91] must also be considered.

D [38] Section 26 of Act 91 states that:

The appellate criminal jurisdiction of the High Court shall consist of the
hearing of appeals from subordinate courts according to any law for the
time being in force within the territorial jurisdiction of the High Court.
(emphasis added)
E [39] Section 50(1) and (2) of Act 91 reads:
(1) Subject to any rules regulating the proceedings of the Court of Appeal
in respect of criminal appeals, the Court of Appeal shall have jurisdiction
to hear and determine any appeal against any decision made by the High
Court:
F (a) in the exercise of its original jurisdiction; and
(b) in the exercise of its appellate or revisionary jurisdiction in respect
of any criminal matter decided by the Sessions Court.
(2) An appeal shall lie to the Court of Appeal, with the leave of the Court
of Appeal, against any decision of the High Court in the exercise of its
G
appellate or revisionary jurisdiction in respect of any criminal matter
decided by a Magistrates’ Court but such appeal shall be confined to only
questions of law which have arisen in the course of the appeal or revision
and the determination of which by the High Court has affected the event
of the appeal or revision.
H (emphasis added)
[40] In short, the Court of Appeal has the jurisdiction to hear and
determine any appeal against any decision made by the High Court in the
exercise of its original jurisdiction or its appellate or revisionary jurisdiction
in any criminal matters decided by the subordinate courts.
I
[41] On the other hand, it can be seen that the Federal Court has no
jurisdiction to determine any appeals originating from any criminal matters
decided by the subordinate courts. Section 87(1) of Act 91 reads:
726 Current Law Journal [2023] 2 CLJ

The Federal Court shall have jurisdiction to hear and determine any appeal from A
any decision of the Court of Appeal in its appellate jurisdiction in respect of any
criminal matter decided by the High Court in its original jurisdiction subject to any
rules regulating the proceedings of the Federal Court in respect of appeals
from the Court of Appeal.
(emphasis added)
B
[42] In short, for criminal matters decided by the subordinate courts, the
Court of Appeal is the highest court to determine any appeals arising thereof.
In terms of judicial hierarchy, we hold that the principles governing the
Federal Court in Dalip Bhagwan Singh are equally applicable to the Court of
Appeal in such instances.
C
[43] For this appeal, when two decisions of the Court of Appeal conflict
on a point of law, the later decision prevails over the earlier decision. If the
subordinate courts can choose either decision of the Court of Appeal, there
will be no finality to the issue and no certainty in the law. This would defeat
the purpose of judicial precedent and stare decisis. D
[44] Judicial hierarchy must be observed for the orderly development of
legal rules and for the courts and lawyers to regulate their affairs, and to
avoid chaos and misapprehensions in the judicial system.
[45] In the words of Steve Shim CJ (Sabah & Sarawak) in the Federal Court
E
case of Dato’ Tan Heng Chew v. Tan Kim Hor & Another Appeal [2006] 1 CLJ
577:
[2] ... It is axiomatic to state that the doctrine of stare decisis has become
the cornerstone of the common law system practised in this country. It
is fundamental to its existence and to the rule of law. It has attained the
status of immutability. In Public Prosecutor v. Datuk Tan Cheng Swee & Anor F
[1980] 1 LNS 58; [1980] 2 MLJ 217, Mr Justice Chang Min Tat had
occasion to restate the doctrine in words which are poignantly clear when
he said:
It is ... necessary to reaffirm the doctrine of stare decisis which the
Federal Court accepts unreservedly and which it expects the High G
Court and other inferior courts in a common law system such as
ours to follow similarly.
[3] Judicial hierarchy must be observed in the interests of finality and certainty in
the law and for orderly development of legal rules as well as for the courts and
lawyers to regulate their affairs. Failure to observe judicial precedents would create H
chaos and misapprehensions in the judicial system. This fact was certainly borne
in mind by the Court of Appeal in Periasamy s/o Sinnapan & Anor v. Public
Prosecutor [1996] 3 CLJ 187; [1996] 2 MLJ 557 wherein Gopal Sri Ram JCA
said:
We may add that it does not augur well for judicial discipline when
I
a High Court judge treats the decision of the Supreme Court with
little or no respect in disobedience to the well-entrenched doctrine
 [2023] 2 CLJ PP v. Ahmad Saiful Islam Mohamad 727

A of stare decisis. We trust that the occasion will never arise again
when we have to remind High Court judges that they are bound
by all judgments of this Court and of the Federal Court and they
must, despite any misgivings a judge may entertain as to the
correctness of a particular judgment of either court, apply the law
as stated therein.
B (emphasis added)
[46] In the Federal Court case of Kerajaan Malaysia & Ors v. Tay Chai Huat
[2012] 3 CLJ 577, Mohd Ghazali Yusoff FCJ (as he then was) held:
[53] The common law tradition is built on the doctrine of stare decisis which directs
C a court to look to past decisions for guidance on how to decide a case before it. This
means that the legal rules applied to a prior case with facts similar to those
of the case now before a court should be applied to resolve the legal
dispute. The use of precedent has been justified as providing predictability, stability,
fairness and efficiency in the law. Reliance upon precedent contributes
predictability to the law because it provides notice of what a person’s rights and
D obligations are in particular circumstances. It also means that lawyers can give
legal advice to clients based on settled rules of law. There is certainty in
the law. There is also uniformity in the law. Similar cases will be treated
in the same way. The use of precedent also stabilises the law.
[54] This court create precedents. The use of precedent is an indispensable
foundation on which to decide what is the law and how it should be
E
applied in individual cases ... .
(emphasis added)
[47] Based on the reasons above, we agree with the learned DPP that the
learned Magistrate was correct when he followed the decision in Rosman
F
Saprey as he was bound by it.
[48] On our part, we see no reason to depart from Rosman Saprey. We are
guided by the Federal Court case of Tenaga Nasional Bhd v. Chew Thai Kay
& Anor [2022] 2 CLJ 333 in which His Lordship Azahar Mohamed CJ
(Malaya) in delivering the judgment of the court held as follows:
G [29] As can be seen, our discussion thus far is sufficient to dispose of
questions 1 and 2. Nonetheless, as an alternative argument, learned
counsel for TNB made a bold submission. He cited the case of Merck
Sharp & Dohme Group & Anor v. Hovid Bhd [2019] 9 CLJ 1; [2019] 12 MLJ
66, FC where it was observed that the Federal Court may depart from its
previous ruling when the previous decision is “wrong, uncertain, unjust,
H
outmoded or obsolete”. It was much pressed in argument by learned
counsel that we should revisit our decision in Mayaria FC (supra) implying
that our judgment in Mayaria FC (supra) was wrong. There is much that
is unacceptable in his arguments.
[30] We will say at once that overturning our own precedent is a serious matter. This
I court must always respect its own precedents. The rule of legal precedence must be
followed in the interest of certainty. Great sanctity must be attached to the finality
of our judgment. This is not to say that this court should never depart from an earlier
728 Current Law Journal [2023] 2 CLJ

decision. We do not blindly honour stare decisis. While it is true that we can overturn A
our own precedent in exceptional cases where it is really necessary, as an apex court,
we need to be cautious about departing from our own earlier decision especially in
a case that concerns the interpretation of a legislative provision, lest we lose the trust
of public by persistent shifts of laws. The law is about stability, predictability and
certainty that allow the public and the business community to plan and organise their
lives based on the previous precedent. A degree of certainty, consistency and B
predictability in the law is one of the foundations upon which our justice system
operates. Therefore, we remind ourselves that it is of utmost importance this court
adheres to its past rulings. In Kerajaan Malaysia & Ors v. Tay Chai Huat [2012]
3 CLJ 577, FC, Arifin Zakaria CJ in delivering the judgment of this court
reminded us at para 35:
C
[35] ... It is of supreme importance that people may know with certainty
what the law is, and this can he attained by a loyal adherence to the doctrine
of stare decisis. Little respect will be paid to our judgments if we
overthrow that one day which we have resolved the day before.
[31] In the later part of his judgment His Lordship added at para. 50: D
[50] ... I would think that this court must follow its own
proclamation of law made earlier on other cases and honour these
rulings. After all, this court is the highest court in the country.
[32] This brings us to the recent decision of this court in Asia Pacific Higher
Learning Sdn Bhd v. Majlis Perubatan Malaysia & Anor [2020] 3 CLJ 153; E
[2020] 2 MLJ; FC where we said at para. 83 (CLJ); para. 17 (MLJ):
[83] Indeed, the doctrine of stare decisis dictates that as a matter of
a general rule of great importance the Federal Court is bound by
its own previous decisions. However, there are exceptional circumstances
that allow them to depart from the earlier decision, but such power must be
F
used sparingly.
[33] In another part of the judgment we further said at para. 79 (CLJ);
para. 13 (MLJ):
[79] ... Any decision of the Federal Court must be treated with
utmost deference. More significantly, in my opinion, it is not a G
good policy for us at the highest court of the land to leave the law
in a state of uncertainty by departing from our recent decisions.
That will put us in a bad light as the Federal Court will then
purports to be in a state of quandary when deciding a case. It is
also a bad policy for us to keep the law in such a state of
uncertainty particularly upon a question of interpretation of a H
statutory provision that comes up regularly for consideration
before the courts.
[34] While still on the subject of the importance of obedience of judicial
precedence, the point is aptly put by Darryl Goon Siew Chye JCA, to
which we respectfully agree, in delivering the latest judgment of the Court I
of Appeal on this subject matter in the case of Kejuruteraan Bintai Kindenko
(supra) as follows at para. 72:
 [2023] 2 CLJ PP v. Ahmad Saiful Islam Mohamad 729

A [72] ... While judges may no doubt sincerely have differences in

views, there is also public interest to consider. It would be a
lamentable state of the law if members of the public, in whatever
sector, are unable to secure legal advice of sufficient certainty in
order to properly conduct or regulate their affairs because of a
confusing melee of conflicting legal decisions by the courts.
B (emphasis added)
[49] In addition, Rosman Saprey has been reaffirmed by Majlis Angkatan
Tentera Malaysia v. Mohd Nurul Ami Mohd Basri [2019] 2 CLJ 772 (CA) and
PP v. Samsul Arifin Bakar [2020] 7 CLJ 503 (CA).
C [50] It is therefore our position that the failure of the police to collect the
respondent’s urine sample in two bottles is not fatal to the prosecution’s case.
On this issue, we disagree with the decision of the learned HCJ.
[51] Even though we disagree with the learned HCJ on the above issue, we
upheld the learned HCJ’s decision in acquitting and discharging the
D respondent based on the factual matrix of this case.
[52] Firstly, as correctly pointed out by learned counsel for the respondent,
there was a major discrepancy in the labelling of the urine sample bottle. The
label on the bottle stated that the sample was taken on 5 January 2018 which
was not the actual date when the raid was conducted and the urine sample
E
was taken, according to the prosecution’s witnesses.
[53] SP1 admitted to the discrepancy in the date on the urine sample bottle
and explained that it was a mere human error. If this was true, there should
have been some effort on the part of SP1 to amend, correct or revise the
F
discrepancy on the urine sample bottle before sending it for analysis, but
there was none in the present case.
[54] To our minds, the prosecution has to ensure that the urine specimen
in the bottle which was sent to SP5 for analysis was actually taken from or
belonged to the respondent. In the absence of any DNA evidence, the
G prosecution must ensure that there is no mistake in the labelling of the bottle
which would otherwise affect the identity and credibility of the respondent’s
urine sample. There must not be any break in the chain of evidence.
Anything short would definitely raise serious doubts as to whether the urine
sample was actually taken on the day in question and whether the urine
sample actually belonged to the respondent.
H
[55] Secondly, learned counsel for the respondent during the trial before
the learned Magistrate raised the issue on the possibility of the urine sample
being contaminated during the screening test conducted by the police. There
was no clear evidence adduced by the prosecution to address this issue. Even
I SP5 in her evidence during cross-examination stated that she was not sure
730 Current Law Journal [2023] 2 CLJ

whether the respondent’s urine sample was contaminated prior to the urine A
specimen being delivered to her for analysis. There was also no clarification
sought by the learned DPP on this issue during re-examination.
[56] Based on the above, we agree with learned counsel for the respondent
that the respondent’s conviction by the learned Magistrate was unsafe.
B
Conclusion
[57] In conclusion, we found merit in the submission by the learned DPP
for the appellant. However, we also found merit in the submission of learned
counsel for the respondent that it was not safe to convict the respondent on
the said charge based on the surrounding facts of this case. C

[58] Therefore, we dismissed the appellant’s appeal and affirmed the

decision of the High Court in discharging and acquitting the respondent of
the said charge against him.