868 Malayan Law Journal [2011] 7 MLJ as ‘E26’. With regard to the accused’s and Roslan’s blood samples, this is what he had said: ‘Saya camkan satu tiub yang saya tandakan sebagai ‘E24’ yang mengandungi darah specimen saspek/OKT Muhammad Rasid. Saya camkan satu tiub darah saspek bernama Roslan. Tiub itu saya tanda sebagai ‘E25’. Saya cam.’ (Emphasis added.) [31] As such, under the circumstances, in all probabilities and without any reasonable doubt, Roslan did get his blood specimen at the Selayang Hospital and the fact that SP14 ‘tidak ingat’ does not mean that she did not take the blood specimen from Roslan. There was no outright negation from SP14 on that fact. On the contrary, there were other evidence to show that Roslan’s blood was taken for DNA analysis and was indeed analysed by SP8. Those evidence had been spelt out as above by me. As such, the test tube marked as ‘E25’ must have been the specimen of Roslan. It was sealed with the seal of Hospital Selayang by the said hospital and marked as ‘E25’ by SP19 before it was handed over by him to the chemistry department where SP8 had proceeded to analyse its content for DNA profiling. So, to my mind, from the evidence above, there is truth in the assertion by the investigating officer (‘SP17’) that Roslan was sent to hospital for the purpose of getting his blood specimen for DNA profiling and that indeed such blood specimen was taken from him by the said hospital. It was then duly marked as ‘E25’ and sent to the chemistry department by SP19 on the instruction of SP17 and was analysed for profiling and matching by SP8. In the light of the said evidence, it would be too illogical and far-fetched not to so conclude. I had no doubt about Roslan’s blood specimen as contained in the test tube marked as ‘E25’. The SP18 said in his evidence that besides sending the accused to the Selayang Hospital as instructed by SP17, the investigating officer, he also sent other suspects and he did not mention any names of those suspects. But what is equally clear too, from his evidence has been that he never said that he did not bring Roslan to the Selayang Hospital. It must also be noted that when SP19 Sarjan Mustapha Amran testified to the fact that he had marked the tube containing Roslan’s blood specimen, he was never challenged on that fact by learned counsel that it was indeed Roslan’s blood specimen. The law on the effect of failure to cross-examine or challenge as asserted fact by a witness that is deemed material is clear and needed no elaborate amplification. Suffice for me to cite the locus classicus on this important part of legal litigation. And the case that would come to mind, quite immediately, must be AEG Carapiet v AY Derderian AIR 1961 Cal 359, where the speech by Justice Mukerji J could only be described as nothing less than illuminating, where he had cited the House of Lords decision in Browne v Dunn (1893) 6 R 67. Indeed, Justice Sharma J had referred to this case with approval in the case of Chua Beow Huat v Public Prosecutor [1970] 2 MLJ 29 and learned Justice Tun Zaki had reiterated that principle as recently as in the case of Tan Kim Ho & Anor v Public Prosecutor [2009] 3 MLJ 151. A B C D E F G H I