GOH MING HAN v PUBLIC PROSECUTOR [2015] MLJU 40

Court of Appeal (Putrajaya)

Maximum Evaluation Test

1.     The Appellant, Goh Ming Han was charged, tried, convicted and sentenced pursuant to Section 12(2) of the Dangerous Drugs Act 1952 (“Act 234”) for having in his possession, custody or control any dangerous drugs (“Offence”).

2.     The alleged commission of crime took place on 26 January 2012 in Kesidang Apartment, Tengkera, Melaka (“Apartment”). The Appellant was raided by the police teams where an ice cream container filled with foreign substances were found in the Apartment.

3.     According to the experts, the foreign substances were confirmed to contain 105.60 grams of methamphetamine.

4.     The High Court found the Appellant guilty of the Offence.

1.     During the trial in the High Court, SP2 testified that the ice cream container was recovered as a result of a police search meanwhile SP8 testified that the ice cream container was handed over to him by the Appellant himself.

2.     The learned Judicial Commissioner found both of the witnesses’ statements to be truthful despite glaring contradictions.

3.     The Court of Appeal took different standing as the learned Judicial Commissioner and held as follows:

“With due respect, the learned Judicial Commissioner was not at liberty to accept both versions to be credible when the two versions were irreconcilable and in total conflict with one another”.

“The contradiction is serious and cuts deep into the prosecution case as it involves the crucial question of whether the drugs were in the Appellant’s custody or control at the time of the raid”.

4.     This Court further held as follows:

“the prosecution’s case must be subjected to a maximum evaluation at the close of its case in which it requires the trial court to directs its mind properly and adequately to every material aspect of the evidence both for and against the prosecution in order to determine whether the strict requirement of proof has been met by the prosecution.”

5.     The Court also highlighted that there are material facts and circumstances in which failed to be considered by the learned Judicial Commissioner.  Had he done so, there will be doubt casted on the prosecution’s case.

6.     In view of the unsatisfactory state of the evidence led by the prosecution’s case, the Court held that the conviction was not safe.

The Court of Appeal allowed the appeal against his conviction and sentence under Section 12(2) of Act 234.   

1.     Maximum evaluation test is an assessment of the credibility of the evidence led by the prosecution at a maximum level of evaluation.

2.     According to Losali v PP [2011] 4 MLJ 694, the maximum evaluation test may be conducted as follows:

(a)  Ascertaining any infirmities, gaps or contradictions that are so material as to affect the main ingredients of the offence; and

(b)  Careful assessment of the credibility of the prosecution’s witness and the accuracy of their assertions.