B-05-134 & 135-05/2013

IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA

(APPELLATE JURISDICTION)
CRIMINAL APPEAL NO: B-05-134-05/2013

BETWEEN

NAVEEN RAJ NAIDU A/L GUNASEGARAN ... APPELLANT

AND

PUBLIC PROSECUTOR ... RESPONDENT

HEARD TOGETHER WITH

CRIMINAL APPEAL NO: B-05-135-05/2013

BETWEEN

MUHAMAD ANUWAR BIN MOHAMAD SALIH ... APPELLANT

AND

PUBLIC PROSECUTOR ... RESPONDENT

(In the Matter of High Court of Malaya at Shah Alam

Criminal Trial No: 45A-66-04/2012

Between

Public Prosecutor

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And

1. Naveen Raj Naidu a/l Gunasegaran

2. Muhamad Anuwar bin Mohamad Salih)

CORAM:

TENGKU MAIMUN BINTI TUAN MAT, JCA

ZAKARIA BIN SAM, JCA
AHMADI BIN HAJI ASNAWI, JCA

JUDGMENT OF THE COURT

[1] Both the appeals were heard together. The appellants were the
first and the second accused respectively in the High Court at Shah
Alam. They were charged for trafficking in dangerous drugs, to wit,
1834 grams of Cannabis, an offence punishable under section 39B(2)
of the Dangerous Drugs Act 1952 (the Act).

The Prosecution’s Case

[2] Inspector Saravanan a/l Diwanantong (SP2) had received

information from one of his registered informers of a person by the
name of Naveen peddling in drugs. The informer had given the details
of the mobile number of Naveen. SP2 sprung into action. He
appointed L/Kpl Kamarudin bin Mohd Latiff (SP1) to be the agent
provocateur. In the presence of SP2, SP1 made a call to the mobile
number and spoke to a person who admitted to be Naveen. A meeting
was agreed to take place on the same day at 8.30pm at a stall near
Crystal Crown Hotel in Port Klang.

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[3] At this meeting attended by SP1 and Naveen (identified as the

first accused/appellant), SP1 expressed his desire to purchase 2
kilograms of Cannabis. After negotiation, the price was fixed at
RM5,000.00 per kilogram. The first appellant was to call SP1 once the
supply of the Cannabis was available.

[4] On 18.1.2012, SP1 received a call from the first appellant. SP1
was informed that supply was available. SP1 and the first appellant
agreed to meet at a place called Restaurant Yunus. SP2 decided to
be an additional agent provocateur by bringing the money. On
reaching the designated place, SP1 went to meet the first appellant in
the restaurant while SP2 remained in the car.

[5] At the restaurant the first appellant intimated to SP1 that the
drugs will arrive shortly. Meanwhile SP1 brought the first appellant to
the car to meet SP2. SP1 introduced SP2 to the first appellant as his
partner. A short while later another person (identified in court as the
second accused/appellant) came to the place where the first appellant
and SP1 were standing, talking to SP2. The first appellant introduced
the second appellant as his friend. The second appellant sat in the car
with SP2 and had asked to see the money. The second appellant had
also asked to count the money. SP2 refused. SP2 asked for the drugs
to be shown first. Thereupon the second appellant asked SP2 to drive
him to the place where he had parked his motorcycle which was at a
short distance away.

[6] On reaching the place where the motorcycle was parked, the
second appellant got down from the car followed by SP2. The second

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appellant took a newspaper package from the motorcycle. At this point

of time, the appellants were apprehended.

[7] The contents of the newspaper package confirmed by the

chemist to be Cannabis, the subject matter of the charge.

[8] The learned trial judge found that both the appellants had acted
in concert in trying to sell Cannabis and that there was direct evidence
of possession and trafficking of the dangerous drugs.

The Defence

[9] In their evidence given under oath, the narration of events led by
the prosecution was not denied by the appellants except insofar as
the purpose of the meeting was concerned. It was the defence version
that the purpose of the meeting was for the appellants to get a
temporary job. For the second appellant, he had stated that the drugs
were planted in his motorcycle rack.

[10] The learned trial judge found that the defence was an
afterthought and was nothing more than the appellants’ desperate
attempt to escape the gallows. The appellants were convicted and
sentenced to death, hence the appeal.

The Appeal

[11] We decided the appeal on only one issue submitted by learned

counsel for the first appellant, which submission was adopted by
learned counsel for the second appellant. The issue concerned the

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admissibility of the evidence that the subject matter of the charge was
Cannabis, a dangerous drug.

[12] Relevant to the issue is section 399(1) of the Criminal Procedure

Code (CPC) which provides:

“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 analysed 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) by the accused, in which 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.”. (our emphasis)

[13] In the instant appeal, what transpired was evident from the
following judgment of the learned trial judge (Rekod Rayuan Jld 3: pg
564):

“A final point meriting attention was the contention of the counsel of the 1st
accused that the chemist report in this case should not have been
considered as it had not been served on the accused 10 days before the
trial. The defence counsel forgot that on the day of the case management
before me 1 month before the trial he had not only confirmed he had a
copy of the chemist report but had clearly informed the court that he did not
require the chemist to testify as he was not challenging the report. This
later submission was clearly unethical in the face of his earlier agreement.

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The chemist report was properly tendered during trial through the
investigating officer.”.

[14] Apparent from the above judgment that the chemist was not
called to testify, as during case management, it was agreed between
the prosecution and defence counsel that the presence of the chemist
be dispensed with. And due to the agreement between the parties, the
chemist report was admitted by the trial judge. It was marked as
exhibit P7 during case management (Rekod Rayuan Tambahan 2: pg
5) and tendered during trial through the Investigating Officer, Inspector
Billy Stephen (SP3).

[15] It was the submission of learned counsel for the first appellant
that unless there was evidence that the first appellant agreed to the
dispensation of the chemist, the chemist report remained
inadmissible. Learned counsel relied on sections 172A and172B of the
CPC.

[16] For ease of reference, we set out below the said provisions:

“172A. Pre trial conference

(1) An accused who is charged with an offence and claims to be

tried shall, by an advocate representing him, participate in a pre-trial
conference with the prosecution before the commencement of the case
management.
(2) ...
(3) ....
(4) During the pre-trial conference, an advocate representing an
accused may discuss with the prosecution the following matters relating to
the case:

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(a) identifying the factual and legal issues;

(b) narrowing the issues of contention;
(c) clarifying each party’s position;
(d) ensuring the compliance with section 51A ;
(e) discussing the nature of the case of the prosecution and
defence, including any alibi defence that the accused may
rely on;
(f) discussing any plea bargaining, and reaching any possible
agreement thereto; and
(g) any other matters as may be agreed upon by the advocate
representing the accused and the prosecution that may lead
to the expeditious disposal of the case.
(5) All matters agreed upon in the pre-trial conference by the
advocate and the prosecution shall be reduced into writing and signed by
the accused, the advocate and the prosecution.

172B. Case management

(1) A Magistrate, Sessions Court Judge or Judge of the High

Court, as the case may be, shall commence a case management process
within sixty days from the date of the accused being charged and claims
to be tried.
(2) At the case management, the Magistrate, Sessions Court
Judge or Judge shall –
(i) ...
(ii) ...
(iii) ...
(iv) ...
(v) ...
(vi) subject to the consent of the accused and his advocate, and
the prosecution, admit any exhibits; and
(vii) ...
(3) ...
(4) ...

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(5) ...
(6) Notwithstanding the provisions of the Evidence Act 1950, all
matters that have been reduced into writing and duly signed by the
accused, his advocate and the prosecution under subsection 172A(5)
shall be admissible in evidence at the trial of the accused.”.

[17] For the prosecution, learned deputy public prosecutor (DPP)

conceded that there was non-compliance with sections 172A and
172B of the CPC. However, she argued that service of the chemist
report was properly done, on the basis that defence counsel had
taken no objections on the manner the chemist report was served
during case management and had not objected to the non-calling of
the chemist during the trial. Further, learned DPP submitted that the
requirement under section 399(1) of the CPC had been complied with,
since the chemist report was tendered more than 10 days before the
commencement of the trial. It was thus the submission of learned DPP
that the non-compliance had not occasioned a failure of justice and
that the non-compliance could be rectified by section 422 of the CPC.

Our Findings

[18] It was common ground that while a copy of the chemist report,
exhibit P7 was tendered to defence counsel during case
management, service of exhibit P7 was never effected on the accused
persons/appellants. It was also common ground that while defence
counsel agreed with the dispensation of the chemist, the written
consent of the appellants in respect of the dispensation was absent.
The admission of exhibit P7 during case management was similarly
without the written consent of the appellants.

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[19] With the above background, the issue for our determination was
whether, in the absence of the written consent of the appellants as to
the dispensation of the chemist, the appellants were bound by the
agreement between the defence counsel and the prosecution during
case management and whether such an agreement superseded the
express provisions of the law.

[20] Learned DPP contended that since the appellants were

represented by counsel, it was the duty of counsel to object to the
admissibility of the chemist report or to give notice to the prosecution
for the chemist to testify, which counsel had not done either.

[21] It stood to reason that since defence counsel was representing

the appellants, whatever that was agreed to by learned counsel in the
case management must have been upon the instructions or with the
agreement of the appellants. We accepted that as a general scenario.
In the instant appeal however, we are governed by the specific
provisions of sections 172A and 172B of the CPC.

[22] Apart from sections 172A and 172B, we have section 399(1) of
the CPC. It is settled law that the proviso to section 399(1) of the CPC
is a condition precedent and if not complied with, the chemist’s report
cannot be admitted in evidence without calling the government
chemist to produce it (see Ooi Lean Chai v Public Prosecutor [1991] 2
MLJ 552).

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[23] Coming back to sections 172A and 172B, it was our view that the
provisions on the pre-trial conference and case management as
provided under the said sections are provisions that ought to be
strictly followed by the court. Where the language used in a statute is
clear and unambiguous, the meaning must be accepted by the court.
Once the literal meaning has been established, however inconvenient
such meaning may be, it must receive its full effect (see PP v Tan Tatt
Eek & other appeals [2005] 2 MLJ 685).

[24] Subsection (5) of section 172A stipulates that whatever matters

agreed to by the prosecution and the defence must be agreed upon in
writing by the accused. Subsection (2)(vi) of section 172B provides
that the admission of any exhibits is subject to the consent of the
accused and his advocate while subsection (6) states that matters that
have been reduced into writing and signed by the accused, his
advocate and the prosecution under subsection 172A(5) shall be
admissible in evidence at the trial of the accused.

[25] Learned DPP cited the case of Nobies Weah Ezike v PP [2010]
1 CLJ 578 in support of her proposition that the error in the admission
of the chemist report can be regularised under section 422 of the
CPC. In particular, she highlighted the following passage in the
judgment of Court of Appeal:

“[9] We accept that the learned trial judge fell into error when he took
into consideration the guest registration card (ID39), the payment receipt
(ID52), the fax message to Thailand (ID51), the customs declaration
(ID6E), and the UPS pack (ID6A). But we could not allow the appeal
merely on account of the fact that the learned trial judge had taken into
consideration that which he, with respect, should not. For a start, s. 422(c)

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of the Criminal Procedure Code provided that the finding, sentence or order
passed by a court of competent jurisdiction shall not be reversed or altered
on account of the improper admission or rejection of any evidence, “unless
such error, omission, irregularity, want, or improper admission or rejection
of evidence has occasioned a failure of justice”. Then again, s. 167 of the
Evidence Act which provided that “The improper admission or rejection of
evidence shall not be ground of itself for a new trial or reversal of any
decision in any case if it appears to the court before which the objection is
raised that, independently of the evidence objected to and admitted, there
was sufficient evidence to justify the decision or that, if the rejected
evidence had been received, it ought not to have varied the decision”. ...”.

[26] In Nobies’s case, the trial judge admitted and considered the
exhibits which were not yet properly admitted in evidence. Since it
should not have been considered, the Court of Appeal ruled that the
prosecution’s case had to stand without those exhibits. Considering
the oral testimony of the witnesses and the properly admitted exhibits,
the Court of Appeal found that the prosecution had more than proved
beyond reasonable doubt, the ingredients of the offence of trafficking
in dangerous drugs. In the instant appeal, we were concerned with the
chemist report, without which, there was no evidence on Cannabis,
the dangerous drug, the very subject matter of the charge. That, in our
view, set the instant appeal and Nobies’s case apart.

[27] On the application of section 422, we were of the view that the
section can be invoked in instances where the non-compliance were
in respect of procedural matters whereas in the instant appeal, the
concern was not merely procedural. We found support in the judgment
of the Supreme Court in Ooi Lean Chai, (supra) at pg 553-554:

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“Learned counsel for the appellant referred us to the case of PP v

Lim Chen Len, where Mohamed Azmi J (as he then was) held at pg 42:

In Chong Yik v PP, Storr J held that the proviso to s 399(i) of the
Criminal Procedure Code is a condition precedent and, if not
complied with, the report of the government chemist cannot be
admitted. If it is wrongly admitted in evidence, that wrongful
admission is an illegality which cannot be cured under s 422 of the
Criminal Procedure Code. Similarly, in Wong Kok Keong v R,
Spencer Wilkinson J, in dealing with s. 427(1) of the Straits
Settlement Criminal Procedure Code (Cap 21), which was in pari
materia with s 399(i), held the view that the provisions related to
evidence rather than procedure. ...

With respect, I agree that the provision of s 399(i) of the Criminal

Procedure Code relates to admissibility of evidence and is not
merely procedural.

We agreed that s. 399(i) of the CPC was not merely a procedural provision
but it contained, inter alia, rules of admissibility of chemist’s report which
dispensed with the need to call the government chemist as maker of the
document as witness. ...”.

[28] In the light of all the above, notwithstanding the agreement of or

waiver by defence counsel during case management, we found that
the chemist report, exhibit P7 was wrongly admitted, which wrongful
admission could not be cured under section 422 of the CPC. The
agreement of the prosecution and the defence counsel cannot
derogate from the application of subsection (5) of section 172A and
subsections (2)(vi) and (6) of section 172B of the CPC and, especially
in criminal matters, no default by the defence or waiver or agreement
by the parties can supersede the written law (see Fan Yew Teng v PP

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[1971] 2 MLJ 271, see also Kiew Foo Mui & Ors v PP [1995] 3 MLJ
505).

[29] We therefore allowed the appeals. We set aside the order of

conviction and sentence of the High Court against both the appellants
and we ordered a retrial before another High Court Judge at Shah
Alam.

Dated 23rd March 2015

Signed
(TENGKU MAIMUN BINTI TUAN MAT)
Judge
Court of Appeal

Counsel/Solicitors:

B-05-134-05/2013

For the Appellant:

Hisyam Teh Poh Teik

Messrs. Teh Poh Teik & Co.

For the Respondent:

Samihah binti Rhazali

Timbalan Pendakwa Raya
Jabatan Peguam Negara.

B-05-135-05/2013

For the Appellant:

T. Vijayandran
Messrs. T. Vijay & Co.

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For the Respondent:

Samihah binti Rhazali

Timbalan Pendakwa Raya
Jabatan Peguam Negara.

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