Federal Court

Offering Witness by The Prosecuter.


Facts of the case


1.     Approximately at 10:20 pm of December 6, 2014, at Hentian Juru Selatan, Seberang Perai Tengah, Pulau Pinang, the Appellant was apprehended by the police while being inside a Toyota Avanza (‘the Car’), which was locked from the inside with the engine still running.


2.     Upon inspecting the car trunk, the police discovered five white gunny sacks containing 25 packed of cannabis and one additional gunny sack with 19 packed cannabis. The seized drugs were confiscated and handed over to the investigating officer.


3.     The investigating officer forwarded the seized items to the Chemistry Department for analysis, and the chemist confirmed that the confiscated items were cannabis weighing 112,892 grams.


4.     The Appeallant was later charged under 39(B)(1)(a) of the Dangerous Drug Act 1952 (“DDA”)


5.     In the course of the trial, the investigating officer confirmed that there were four individuals whom the police arrested and investigated after the arrest of the Appellant. The names of the four arrestees are –

(a)   Sahrolnizam bin Mat Yusof;

(b)   Muhamad Kamarul Hisham bin Mohd Jilani;

(c)   Mohd Fitri bin Andullah; and

(d)   a Thai national by the name of Yap Tab San


6.     Notably, following the conclusion of its case, the prosecution did not present these arrestees/witnesses to the defence. Moreover, the police failed to provide their statements to the defence in accordance with Section 51A of the Criminal Procedure Code. The names of these witnesses are conspicuously absent from the prosecution’s list of witnesses.





Whether the fact that the prosecution did not make the witnesses available to the defence, had denied Appellant’s rights to fair trial and deprived them the opportunity to present his case in the best manner possible?




Whether the fact that the prosecution did not make the witnesses available to the defence, had denied Appellant’s rights to fair trial and deprived them the opportunity to present his case in the best manner possible?


(a)          The prosecutor plays a distinct and unique role in a criminal trial, differing from the counsel for a party in a civil trial or the counsel for the accused. In contrast to other clients with a vested interest in securing a conviction at any expense, prosecutors are commonly referred to as the ‘ministers of justice.’

(b)          Their primary responsibility is not merely to advocate for the interests of one party but to present the entire case to the court, aiding the court in uncovering the truth. Owing to their special position in criminal trials, prosecutors are bound by various well-defined duties, which include duties of disclosure, duty to call all credible and relevant witnesses and duty to conduct case fairly.

(c)         At all times, prosecutors are expected to present their case fairly, impartially and professionally and assist the court in arriving at the truth by producing all the relevant facts to the court as ‘Officer of the Court’ (see R v Guerin (1931) 23 Cr App Rep 39).

(d)         In Dato’ Seri Anwar bin Ibrahim v Public Prosecutor [2010] 2 MLJ 312; [2010] 4 AMR 292 (FC), The court observed at (p 331 (MLJ); p 310 (AMR)):


“The right to a fair trial is of course a universal principle. It is inviolable”.


(e)             The same case quoted with approval a passage from the judgment of Mohd Zawawi Salleh JC (now FCJ) in Public Prosecutor v Mohd Fazil bin Awaludin [2009] 7 MLJ 741, which reads-

“The principle of a fair trial is sacrosanct in all civilized legal jurisdictions.  It is a principle of universal application. In Malaysia, the principle of fair trial and fairness have been long established and recognized in several decisions”.

(f)            The right to a fair trial is implied in Article 5(1) of the Federal Constitution. In Lee Kwan Woh v Public Prosecutor, the court stated –

“Article 5(1) of our Constitution does imply in favour of an accused person the right to a fair hearing within reasonable time by an impartial Court established by law …”.

(g)  The importance of these witnesses to the defence is clearly demonstrated from the evidence of the Appellant, who averred that the said Kamarul Hisham was the actual person who has full control of the car in which the impugned drugs were found. The Appellant testified that it was Kamarul Hisham who was then engaged in a discussion with the Thai national, Yeap Tak San. The investigating officer herself confirmed that the drugs originated from Thailand as can be seen from the rice gunny sacks in which the impugned drugs were found.

(h)    In the Court view, the objective of a fair trial requires the prosecutor to call the arrestees or at the very least Kamarul Hisham and the Thai national as witnesses unless there is some good reason not to do so. The prosecution did not proffer any explanation for the non-calling of these witnesses. These witnesses are persons who had been arrested contemporaneous or in proximity to the arrest of the Appellant and pursuant to the same investigation.




The Court reduced the charge against the Appellant from Section 39B(1)(a) of the DDA to one of possession under Section 6 and punishable under Section 39A (2) of the DDA 1952.




Key Take Away


1.     The failure of the prosecution to make crucial witnesses available to the defense constitutes a violation of the Appellant’s right to a fair trial and deprives them of presenting their case effectively. In criminal trials, prosecutors are entrusted with the duty of ensuring fairness and impartiality, acting as ‘ministers of justice’ rather than advocates solely for conviction.

2.     The principle of a fair trial, enshrined in Article 5(1) of the Federal Constitution, underscores the importance of presenting all relevant evidence, including witness testimony, to enable the court to arrive at the truth.

3.     The failure to call these witnesses, especially those directly connected to the circumstances of the case, without a valid explanation from the prosecution, resulted in the reduction of the charge against the Appellant. This case highlights the critical role of prosecutors in upholding the principles of fairness and justice in criminal proceedings.


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