CRIMINAL PROCEDURE II

VIVA PRESENTATION
Group: T1 G5
Members:
1. RUSSELL GERAMONG ANAK WILSON NYABONG …Judge
2. OON SHI TERN …Lead Prosecution
3. CHOK WEN YEW JONATHAN …Co Prosecution
4. LIM CHZE FOONG ...Lead Defence
5. LIM CHEE CHIEN …Co Defence
 Current case

At an earlier trial in the High Court, Ecstasy was convicted of trafficking in heroin and
monoacetymorphine. The chemist report duly served on Ecstasy had incorrectly stated
that the monoacetymorphine was a dangerous drug when in fact it was not so listed at
the material time. On appeal, the Court of Appeal set aside the conviction and ordered a
retrial.
At the retrial, Ecstasy was charged with trafficking heroin only, and the prosecution relied
on the same chemist report although it has not been re-served on Ecstasy. The chemist
was not called to give evidence at the retrial. The High Court Judge held that the chemist
need not be called and admitted the chemist report at the retrial, whereupon Ecstasy was
convicted after the close of the defense case and sentenced to death.
Ecstasy has now appealed against the conviction and sentence.You are now acting for
Ecstasy in the appeal against his conviction. What will be your submission to maintain the
conviction and sentence? As a defense counsel, what will be your submission in reply?
What would be the decision of the Court of Appeal?
DEFENCE’S SUBMISSION
 Opening statement

My Lord, the case today we have is the charge of drug trafficking

under s.39B of Dangerous Drug Act 1952 and we as defence counsel
would like to apply to contend the charge on behalf of the accused.
 First submission
• Issue: The issue is whether the chemist report must be re-served?

• Contention: The chemist report must be re-served.

• At the retrial, the prosecution relied on the same chemist report and this
report was not re-served on the accused.

• Section 399(1) of the Criminal Procedure Code:

Where the PP intends to tender the report of an expert as evidence, a copy of
such a report shall be delivered to the accused not less than ten clear days
before the commencement of the trial.
• This rule extends to where there is a retrial. Must be re-served.

• Supreme Court case of Ooi Lean Chai v PP:

1. Mandatory and precondition
2. Not merely procedural but effects admissibility of evidence
3. Failure to observe leads to inadmissibility of report

• Federal court case of Muhammed bin Hassan v PP:

Report need not be relied upon where the maker of the report is called.

• However, the maker of the chemist report was also not called as a witness.
Thus, failure to re-serve the chemist report on the accused is non-compliance
of procedure given in Section 399(1) and is fatal.
 Second submission
• Issue: Whether the witness chemist must be called by prosecution and made available to the defence
counsel at the retrial.

• Contention: Witness chemist must be called by prosecution and made available to the defence counsel
at the retrial

• Teh Lee Tong v PP:

Prosecution witness that not called must be brought to the attention of the court and made available to
the defence counsel.

• Abdullah Zawawi bin Omar v Public Prosecutor:

1. Prosecution rights not to call a witness must always be guided by its duty to discharge the onus of
proof.
2. Failure to call a witness would give rise to a serious gap in prosecution case.
3. May fall under adverse inference under S114(g) Evidence Act.
• Section 173(j)(iii) of the Criminal Procedure Code:
When accused is called upon to enter on his defence, he may produce his
evidence and shall be allowed to recall, and cross examine any witness present
in the Court or its precincts.

• Section 162 of the Criminal Procedure Code:

Accused shall be allowed to recall or resummons and examine, with reference to
the alteration or addition any witness who may have been examined and may
also call any further evidence which may be material.

• PP v Chok Mong Hoo:

1. Charged was amended and under S162.
2. Trial judge allowed the accused to recall any witnesses who have been
examined and call further material evidence
• Supreme Court case of Teoh Hoe Chye v PP:
1. Considered whether the non-calling of one witness was fatal to the prosecution’s
case. Whether there was a break in the chain of evidence relating to the exhibits.
2. The decision whether to call a witness or not to call a witness including a witness
from whom a statement has been taken is always the right of the prosecution.
3. The law is clear that it is unnecessary to call evidence to ensure that there is no
break in the chain of evidence
4. HOWEVER, where a doubt as to the identity of an exhibit arises, a failure to
adduce evidence to provide the necessary link in the chain of evidence would be
fatal to the prosecution’s case.

• Ti Chuee Hiang v PP:

Although the prosecution has the discretion to call any witness, it has the duty to call
the material witness to establish its case beyond reasonable doubt otherwise the
accused MUST BE ACQUITTED.
• The chemist witness must be called by prosecution where there is doubt and serious gap in
the prosecution’s case.

• If not, adverse inference under Section 114(g) EA can be made.

• There is such a doubt and serious gap.

1. There has been a change in the charge with the removal monoacetymorphine.
2. The chemist report duly served on Ecstasy was also erroneous as it had incorrectly stated
that the monoacetymorphine was a dangerous drug when in fact it was not so listed at the
material time.

• Clearly there is some confusion and errors in both the charge and chemist report, the absent
of chemist as witness was failure to comply with Section 173(j)(iii) CPC Section and 162 CPC.

• The report was alsp not re-served, there is an even bigger emphasis on the calling of witness
to testify as seen in the above case of Muhammed bin Hassan v PP.
 Closing statement

• Thus, we humbly pray to this honorable court to declare that the

accused is acquitted as the requisite procedure of re-serving the
chemist report and calling the chemist as witness and making the
witness available to the defence counsel, was not observed.
PROSECUTION’S SUBMISSION
 First submission
• Issue: Whether the court can convict the accused based on the same chemist report and whether
failure to call witness give rise to serious gap.

• S. 399 of CPC:
Any expert’s report can be admitted in evidence without calling the maker provided that PP delivered
a copy of report to accused 10 clear days before trial.

• Nevertheless, the maker as witness must be called only if the court requires it or if the accused
requires it and must give notice to PP three clear days before trial.

• Mohamed bin Abdul Rahman v. PP:

1. Accused gave a notice to prosecution for the chemist to appear at the trial.
2. At the trial, the prosecution did not call the chemist as a witness.
3. However, the court admit the chemist report as PP tendered his report as evidence without any
objection from the accused.
• PP v Ooi Lean Chai:
1. No necessity for the prosecution to re-serve the chemist’s report on the accused for retrial.
2. The report was the same report served on the accused years ago before the first trial and the
accused is the same person.
3. There is no alteration to the report of chemist.
4. Thus, the chemist need not be called to testify as the accused has not tendered the 3 days’
notice before trial of this case requiring attendance of chemist.

• Thus, as long as PP had delivered a copy of report 10 clear days before first trial, this falls under
s.399 of CPC.

• By virtue of PP v Ooi Lean Chai, the accused did not give notice to DPP three clear days before
trial. Therefore, prosecution has no duty to call chemist to give evidence at retrial. There is no
necessity of re-service of chemist report.

• Applying Mohamed bin Abdul Rahman v. PP, the chemist report is admissible as accused did not
object to the absence of chemist during defense stage.
• Abdullah Zawawi v PP:
1. Court held that the prosecution has right not to call a witness.
2. However, only if failure to call a particular witness gives rise to a serious gap, the
prosecution must call such witness.

• PP v Abd Latif bin Sakimin & Anor:

Non-production of three witnesses had not caused miscarriage of justice as it had not
created a reasonable doubt that the accused was not in possession of drugs at material
time and place as convicted.

• Applying the above cases, failure to call chemist does not cause serious gap.

• This is because non-production of chemist as witness would not cause miscarriage of

justice and chemist report proves that the substance that accused possessed at the
time of being arrested is heroin.
 Second submission
• Issue: Whether the irregularity of not serving the chemist report will affect the conviction.

• Even if My Lordship is of opinion that Section 399 of the Criminal Procedure Code had not been
adhered to, it can still be cured under Section 422 of the Criminal Procedure Code.

• There shall be no new trial for improper admission or rejection of evidence as provided under
section 167 of the Evidence Act.

• Section 422 of the Criminal Procedure Code:

Any sentence or court findings made by a competent Court with the appropriate jurisdiction shall
not be reversed by the reason that evidence had been improperly admitted or rejected unless such
an omission or irregularity had resulted in a miscarriage of justice.

• Therefore, it is clear that no findings of a court can be reversed in a case of improper admission of
any evidence unless it amounts to a failure of justice.
• Section 167 of the Evidence Act 1950:
If there is an improper admission of an evidence, it shall not be used as a ground for
a retrial or be used to reversed a court finding if the court is of opinion that without
the evidence, the prosecution may still prove their case beyond a reasonable doubt,
and the admission of such evidence did not cause any variation on the decision.

• Under this provision, it is clear that a decision shall not be reversed due to
improper admission or rejection of evidence if the rejected evidence did not vary
the decision of the court.

• Nobies Weah Ezike v PP:

1. Where the accused is charged with drug trafficking, the High Court admitted an
evidence that was not admissible.
2. The accused appealed to the Court of Appeal and the court in delivering their
judgement, recited Section 422 of the CPC and Section 167 of the EA.
• “Procedure” in Oxford’s Dictionary in Law 2003:
Formal route that is taken by legal proceedings and how they are conducted.

• Therefore, logically, “procedural irregularity” could bring about the meaning of

steps that are not common or not regular to be found as a route that will
normally be used in legal proceedings which as a result, may be regarded as a
procedural mistake or error.

• Without a doubt that the prosecution without calling the chemist as a witness
and without re-serving the report to the accused falls within the ambits of
“procedural irregularity”.
• However, Section 422 of the CPC and Section 167 of the EA clearly allows this
situation to be remedied and for Section 399 of the CPC to be continuously
applied given several conditions. Firstly, as the accused clearly owns heroin, by
virtue of Section 422 of the CPC, there is no failure of justice as it is for the
defence to rebut the presumption of trafficking. However, this presumption
had never been rebutted by the defence.

• Secondly and as such, the admission and consideration of this chemist report
will not affect the decision of this court in adherence to Section 167 EA.
Therefore, by applying Nobies’ case, the evidence could be admitted and for
this instance, incompliance of Section 399(1) of the CPC will not render the
prosecution’s case to fail.
 Closing statement

• Based on the above grounds, the Prosecution humbly prays that

the Court will rely on the chemist report and allow the conviction
to stand.
JUDGEMENT
 First limb issue
On the issue of a chemist report that is not re-served during a retrial, I hereby
submit the following:
1. retrial = fresh trial
2. - cannot be treated as q continuation of 1st trial
3. - chemist’s report was not reserved = inadmissable
4. - prosecution erred in law
 Second limb issue
On the issue of the prosecution not calling the maker of the chemist report, I
hereby submit the following:
1. - condition precedent, if not complied cannot be admitted as evidence
2. - raising S.422 CPC is improper
 Conclusion
1. As for reasons previously mentioned on the issue of re-serving the chemist
report, it is clear the prosecution was wrong when they did not re-serve the
chemist report to the accused.
2. On the issue of calling the maker of the chemist report, the prosecution had
erred in law when they failed to follow precedent to call the maker of the
chemist report when they wish to admit it as evidence.
3. Appeal is allowed.