Azaman bin Aziz v Public Prosecutor [2017] 5 MLJ 510

 

AZAMAN BIN AZIZ v PUBLIC PROSECUTOR [2017] 5 MLJ 510

Court of Appeal (Putrajaya)

Submission of no case to answer

Facts

1.     The Appellant was found guilty by the High Court for trafficking 1,793 grams of cannabis and was sentenced to death under Section 39B(2) of the Dangerous Drugs Act 1952 (“Act 234”)/(“DDA”).

2.      At the High Court, the Prosecution had proved its prima facie case by recovering the drugs as ‘2 ketulan mampat’ wrapped in plastic bag in the Appellant’s motorcycle.

3.     The said drugs were recovered in a raid by PW5, a police undercover acting as agent provocateur who negotiated to purchase the drugs from the Appellant.  The police then proceeded to the Appellant’s house and recovered small quantities of drugs.

4.     Based on the Prosecution’s case, the expert witness, a chemist, analysed the packages to be cannabis under the meaning of Section 2 of the DDA.

5.     The defence however did not make any submission of no case to answer at the end of the prosecution’s case.

6.     The Appellant brought the appeal to the Court of Appeal.

7.     At the Court of Appeal, the Appellant raised a few grounds of appeal mainly on the weight of the cannabis.  The defence counsel argued that there was no evidence provided by the Prosecution to prove the weighing machine had been properly calibrated before it was used by the chemist to weigh the said drugs.

8.     The basis of the Appellant’s appeal mainly argued on the accuracy of the weighing machine and the weight of the cannabis.

Issue

1.     Whether the learned trial judge had erred in convicting the Appellant.

2.     Whether the learned trial judge had erred to found the Prosecution had proven the weight of the cannabis.

Ratios 1.     At the end of the Prosecution’s case, the defence did not make any submission of no case to answer.  The Court of Appeal found that as the Prosecution had not make any submission of no case to answer, it implicitly proved that the defence had concluded a prima facie case had been established.

2.     The rationale behind these findings is that when a prima facie case has been established, the weight of the impugned drugs has been taken into consideration.  Thus, the Court found that the weight of the drugs should not be an issue as the prima facie case has been established.

3.     In addition, the Appellant also contended that there are inaccuracy on the weighing machines but it was found by the Court that the defence had failed to challenge such matter at earlier stage.

4.     During the Prosecution’s case, the Appellant did not raise or challenge any issue on the weight of the cannabis during the cross-examination with the expert witness, the chemist.

5.     The Appellant also never adduced new evidence to warrant a re-visit of the prima facie finding on the weight of the cannabis.  Hence, the Court of Appeal found that there is no basis for the Appellant to raised such issue on appeal.

6.     Once a prima facie case has been established, the Court concluded that the issue on weight of the drugs has been settled as the defence did not put on any challenge during the prosecution’s case.

Decision 1.    The appeal was dismissed.  The conviction and sentence by the High Court was affirmed.
Key Take Away 1.      It is essential for the defence to raise any issue at material time when given the opportunity.  In this case, the defence should challenge the issue of weighing machine and accuracy of the weight of the drugs during the cross-examination of the expert witness (the chemist) at the Prosecution’s case.

2.      At the end of the Prosecution case, when there is no submission of case to answer, it is implicitly concluded that the defence had accepted the Prosecution’s case and therefore establishing a prima facie case.

3.      It is also concluded that the defence failed to raise the important issues during trial which then had established a prima facie case.  Hence, there is no basis to argue such issues on appeal stage.

 

 

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