MRRJ NO: P-05-50-02/2015

IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA

(APPELLATE JURISDICTION)
CRIMINAL APPEAL NO: P-05-50-02/2015
BETWEEN
MISS KANJANIDA

...

APPELLANT

...

RESPONDENT

AND
PUBLIC PROSECUTOR

[In the Matter of High Court of Malaya at Pulau Pinang

Criminal Trial No: 45A-35-10/2013 & 45A-36-10/2013
Between
Public Prosecutor
And
Miss Kanjanida
CORAM:
MOHTARUDIN BAKI, JCA
TENGKU MAIMUN TUAN MAT, JCA
ZAKARIA SAM, JCA

MRRJ NO: P-05-50-02/2015

JUDGMENT OF THE COURT

Background Facts
[1]

The appellant was charged at the Penang High Court for 2

counts of trafficking in dangerous drugs, an offence punishable under

section 39B(2) of the Dangerous Drugs Act 1952 (the Act).

[2]

The 1st charge was for trafficking in 134.5 grams of Cocaine

where the offence was said to be committed on 21.11.2011 in room

No. 309, Hotel Mingood, Georgetown, Penang.

[3]

The 2nd charge related to 213.36 grams of Cocaine in 40

capsules which were swallowed by the appellant and discharged at the

Penang Hospital between 21.11.2011 until 22.11.2011.

[4]

We do not propose to set out the facts of the case. Suffice to

state that there was no dispute as to the recovery of the drugs at the
hotel and at the hospital and that the drugs were analysed by the
chemist, Teoh Choon Ping (SP1).

[5]

SP1 confirmed that the drugs recovered from the hotel room

weighed 134.2 grams Cocaine while the drugs in the capsules

swallowed by the appellant were 213.26 grams Cocaine, the subject
matter of the 1st and 2nd charges respectively.

[6]

At the end of the prosecution case, the learned trial judge found

that the appellant had knowledge of the drugs. His Lordship invoked
section 2 of the Act to find that the element of trafficking was proven.
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Having found that a prima facie case was made out by the prosecution,
the learned trial judge called upon the appellant to enter her defence.
The Defence
[7]

In gist, the appellant who hails from Bangkok, Thailand stated on

oath that she was forced by her boyfriend to go to Sao Paolo, Brazil. In
Brazil, the appellant stayed at Hotel Intakula for 10 days. After 2 weeks
in Brazil, the appellant said that a black man and a Thai woman came
to see her and that the man had forced the appellant to swallow the
drugs. According to the appellant, they had threatened to kill the
appellants child in Bangkok if she refused to swallow the drugs.

[8]

The learned trial judge rejected the defence on the ground that

there was no real, imminent, persistent and extreme danger to the child
as contended by the appellant. The appellant was thus convicted and
sentenced to death.

[9]

Aggrieved, the appellant appealed to this Court.

The Appeal
[10] Before us, the grounds of appeal canvassed by learned counsel
concerned the chemist reports (exhibits P29-36).

[11] Firstly, learned counsel contended that the learned trial judge
erred in admitting the chemist reports as the reports were inadmissible
for the reason that the prosecution had failed to adhere to section

MRRJ NO: P-05-50-02/2015

399(1) of the Criminal Procedure Code (CPC) in respect of service of

the reports on the appellant.

[12] Secondly, learned counsel contended that the learned trial judge
erred in his finding that the substance analysed by the chemist was
Cocaine as listed in the First Schedule to the Act when there was no
such direct evidence by the chemist.
Our Findings
[13] The requirement for service of the chemist reports on the
appellant is provided under section 399 CPC which reads:
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 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;
(b) by 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) ...

MRRJ NO: P-05-50-02/2015

(c)

chemists in the employment of any Government in Malaysia or

of the Government of Singapore;.

[14] Authorities are abundant on the application of section 399(1) of

the CPC. Among them are Ooi Lean Chai v PP [1991] 2 MLJ 552 and
Muhammad Hassan v PP [1998] 2 MLJ 273. In Ooi Lean Chai (supra),
the Supreme Court stated at pg 554:
We agreed that s 399(i) of the CPC was not merely a procedural provision
but it contained, inter alia, rules of admissibility of chemists report which
dispensed with the need to call the government chemist as maker of the
document as a witness. ...

In our view it is settled law that the proviso to s 399(i) of the CPC is a
condition precedent and if not complied with, the chemists report cannot be
admitted in evidence without calling the government chemist to produce it..

[15] From the above authorities, the following principles can be

distilled:
(i)

the chemist may not be called as a witness but his report

may be tendered as evidence;

(ii)

where the chemist is not called, the prosecution must serve

on the accused a copy of the chemist report not less than
ten clear days before the commencement of the trial;

(iii)

service of the chemist report on the accused ten clear days

before the commencement of the trial is a condition
precedent for its admissibility. Non-compliance with the
requirement for service is not curable and will render the
chemist report inadmissible;
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MRRJ NO: P-05-50-02/2015

(iv)

where the chemist report had been served on the accused

ten clear days before the commencement of the trial, the
prosecution may decline to tender the chemist report and
the prosecution is not precluded from calling the chemist to
give evidence instead;

(v)

where the chemist report was not served on the accused

ten clear days before the commencement of the trial but the
chemist was called to give evidence, the oral evidence of
the chemist is the substantive evidence while the report is
corroborative evidence.

[16] In the instant appeal, it was not disputed that the chemist reports
were not served on the appellant ten clear days before the
commencement of the trial as required under section 399(1) of the
CPC. However, the chemist was called and he gave oral evidence as
SP1. Based on the principles set out above, we were of the view that
the failure to comply with section 399(1) as regards service of the
reports was a non-issue.

[17] SP1 gave substantive evidence in court. In his oral testimony he

stated that he analysed the substances handed over to him by the
investigating officer, Inspector Jaswit Kaur a/p Ranjit Singh (SP13).
SP1 made reference to his reports, exhibits P29-P36 which were
tendered to show his analysis of the substances. From the oral
evidence of SP1 which was corroborated by his reports in exhibits P29P36, it was established that the substances which SP1 analysed were
Cocaine.

MRRJ NO: P-05-50-02/2015

[18] It was the contention of learned counsel that in his oral evidence,
SP1 did not state that the substances which he analysed were Cocaine
as listed under the First Schedule of the Act.

[19] We accepted that nothing was mentioned by SP1 in his oral

evidence regarding Cocaine as listed in the First Schedule of the Act.
Nevertheless it was our view that the omission was not fatal given that
in his reports, SP1 had specifically stated that Cocaine disenaraikan
dalam Jadual Pertama Akta Dadah Berbahaya 1952..

[20] We harboured no doubt that the subject matter of the charges

against the appellant had been proved. And we found that the
conviction of the appellant was safe. We therefore unanimously
dismissed the appeal and we affirmed the conviction and sentence
imposed by the High Court.
Date: 24th November 2015
Signed
(TENGKU MAIMUN BINTI TUAN MAT)
Judge
Court of Appeal
Counsel/Solicitors:
For the Appellant:
Kitson Foong
Messrs. Kit & Associates.

MRRJ NO: P-05-50-02/2015

For the Respondent:

Tetralina binti Ahmed Fauzi
Timbalan Pendakwa Raya
Jabatan Peguam Negara.