Name: Minnie Chew Mee Ru

No Matric: A167571
Firm: YY & Co (Firm 2)
Case: Mohamad Eliyas bin Suib v Public Prosecutor [2021] MLJU 1323
Court: High Court, Alor Setar

Facts:
This is an appeal from the sessions court. The accused was charged under section 12(2) and
section 15(1)(a) Dangerous Drugs Act. In the sessions court, it was held that the accused failed
to case any reasonable doubt to the truth of the prosecution case. The sentence for both charges
is 36 months imprisonment, four strokes and 12 months imprisonment, and two years of police
supervision. Thus, the accused appealed against the decision of the sessions court.

Issue:
Whether the prosecution had proved a prima facie case against the accused for an offence under
section 12(2) and section 15(1)(a) Dangerous Drugs Act.

Contention of the applicant:

The applicant otherwise known as the accused submits that the prosecution’s witness, the
chemist cannot confirm in his testimony that the digital scale and the computer used to weigh
the drugs were in good condition. The prosecution did not tender the certificate under section
90A thus presumption under section 90A(4) cannot be invoked in this case. Also, the person
who is responsible for the management of the operation of the digital scale and the computer
was not called to testify. In drugs cases, the accuracy of the weight of drugs is utmost important
because it will determine the sentence of the accused. The defence counsel challenged the
accuracy of the weight of drugs when weighed using the digital scale and computer on the basis
that the digital scale was not calibrated after being used many times by nine different chemists.

In the case of Public Prosecutor v Chew Yoo Chai (1989) 3 MLRH 213, the accused was
discharged and acquitted as there was no evidence that the gas chromatography instrument was
in good condition when it was used. The judgement of the case is states that in accordance with
regulation 27(1) Weights and Measures Act 1972 ‘it shall be the duty of the head of the
department to arrange for all weights, measures and instruments for weighing or measuring
used by his department to be examined by the Inspector once in every year.
Section 90A of the Evidence Act provides for the admissibility of documents produced by
computers. Provided in section 90A(2), it may be proved that a document was produced by a
computer in the course of its ordinary use by tendering to the court a certificate signed by a
person who either before or after the production of the document by the computer is responsible
for the management of the operation of that computer, or for the conduct of the activities for
which that computer was used. Furthermore, section 90A(4) provides that where a certificate
is given under 90A(2), the presumption is that the computer referred to in the certificate was in
good working order and the computer was operating properly in all respects throughout the
material part of the period during which the document was produced.

Contention of the respondent:

During trial in the sessions court, six witnesses were called by the prosecution. Based on the
prosecution, the prosecution submits that a prima facie case had been proven against the
accused. Several cases were referred to the prosecution regarding a prima facie case. The case
of Balachandran v Public Prosecutor (2005) 2 MLJ 301 explained the meaning of a prima
facie case and the application of section 180 of the Criminal Procedure Code. ‘A prima facie
case is one that is sufficient for the accused to be called upon to answer.’ The test at the end of
the prosecution case is a prima facie case based on a maximum evaluation of evidence. This is
as such stated in the case of Magendran Mohan v Public Prosecutor (2011) 1 CLJ 805.
Referring to a federal court case, Abdullah Atan v Public Prosecutor (2022) MLJU 1244, a
prima facie case is a case sufficient for an answer. Credible evidence is evidence which has
gone through the process of evaluation.

Decision of the court:

On the first issue, the court answered the issue in negative. Thus, the prosecution did not prove
a prima facie case against the accused for an offence under section 12(2) of the Dangerous
Drugs Act. It was not safe to convict the accused as the weight of the drugs could not be
determined accurately. The appeal was allowed on the first issue. In general, in most drugs
cases, the weight of the drugs is very vital. The prosecution must tender the certificate as such
provided under section 90A of the Evidence Act if there is an absence of any oral evidence in
relation to the good condition of the digital scale and computer used by the chemist. Only the,
section 90A(4) can be invoked and applied. In this case, there is no certificate tendered by the
prosecution under section 90A thus, the high court held that the prosecution failed to prove a
prima facie case. The decision of the sessions court was overruled.