[2016] 2 MLJ
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Abuchi Ngwoke v Public Prosecutor
(Kamardin Hashim JCA)
633
agreed with learned counsel’s submission that there was no evidence as to what
was the analysis conducted by SP3 before she came to her conclusion.
[22] In Leong Bon Huat v Public Prosecutor [1993] 3 MLJ 11, on the same
issue regarding infirmities in chemist testimony, Edgar Joseph Jr SCJ decided
that:
It is true that the chemist did say that he had conducted a physical examination of
the whole of the plant material, by which, we suppose, he meant a visual
examination, aided no doubt by microscope. But while the result of such an
examination might well establish, on the balance of probabilities, that the plant
material was cannabis within the meaning of s 2 of the Act it was necessary to take
the matter further and establish beyond any reasonable doubt that was so. This
further step would, of necessity, have involved the carrying out of chemical tests on
adequate quantities of the plant material. What would be adequate quantities for
this purpose would depend on the particular circumstances of each case and we do
not consider that any useful purpose would be served by laying down any
mathematical formula. Suffice it to say, that in the present case, we were not satisfied
that the samples of plant material upon which the chemist had carried out the
chemical tests were adequate, having regard to the total weight of the plant material,
for the reasons stated.
We note that in the Singapore case of Public Prosecutor v Ang Soon Huat [1991] 1
MLJ 1, where one of the contentions advanced by counsel for the accused was
similar to that advanced in the present appeal, and where the contention was
upheld, the court having reminded itself of the criminal standard of proof, had
concluded that where the court was left in doubt as to whether the accused has
committed an offence in a lower or higher degree of seriousness, the court should
make a finding in the lower degree, particularly where a finding in a higher degree
will give rise to a mandatory sentence of death.
The result, therefore, was that so far as the charge of trafficking in cannabis in
contravention of s 39B was concerned, ‘the case against the appellant was not
proved with that certainty which is necessary in order to justify a verdict of guilty.’
(Per Lord Hewart CJ in R v Wallace 23 Cr App Rep 32 applied by Thomson CJ in
Jubri v Public Prosecutor [1962] MLJ 34.)
Accordingly, we have no option but to allow the appeal, to quash the conviction for
trafficking in cannabis, to set aside the sentence, and to substitute in lieu thereof, a
conviction for possession of cannabis in contravention of s 39A of the Act and a
sentence of life imprisonment to take effect from the date of arrest, with the
mandatory ten strokes of the rotan.
[23] In the instant appeal before us, in view of the infirmities in the
testimony of the chemist, we echoed what was said by His Lordship Edgar
Joseph Jr SCJ in the above quoted case that the charge of trafficking was not
proved with that certainty.
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