Name : Siti Zulaikha binti Zulkifli
Matrix Number : A163632
Firm : Firma 1
Topic : Mode of Arrest
Presented By : Irdina Zafirah binti Azahar
Matrix Number : A163997
Case : PP lwn. Mohd Safwan Husain
Citation : [2017] 5 MLJ 255
Court : Mahkamah Rayuan, Putrajaya
Facts of The Case:
Sub-Inspector Shuib (PW2), a Narcotic Sub-Inspector led a team of 6 police officers, acting upon
information in regards with the respondent’s abuse of dangerous drugs went to the Police Station where
the Respondent was on duty. Upon the arrival, he introduced himself and informed that the respondent
was suspected of being involved in drug abuse and wanted to carry out Urine test on him. Upon PW2’s
instruction, the respondent was escorted to the toilet at the station and the urine specimen were taken
for the screening test. The test showed positive result for methamphetamine and subsequently the
analysis by the chemist confirmed that the urine specimen contained the said drug. The respondent was
charged under Section 15(1)(a) of the Dangerous Drug Act 1952 (DDA). The respondent pleaded not
guilty.
At the Magistrate court, it was held that there was no Prima Facie in this case and hence the
case is dismissed. The Deputy Public Prosecutor (DPP) appealed the case before the High Court
against the decision by the Magistrate but it was also dismissed by the learned judge. Now, the
appellant (DPP) appeals the case before the Court of Appeal on the question of law.
ISSUE OF THE CASE:
Whether the meaning of ‘an arrested person’ in Sec. 31A(1A) of the DDA includes the concept of
‘constructive arrest’ or only actual arrest.
APPELLANT’S ARGUMENT
DPP contended that the respondent is an arrested person under sec. 31A(1A) DDA. According to DPP,
“arrested person” under sec 31A(1A) includes constructive arrest. DPP also added that the respondent
was actually arrested constructively when he was instructed to carry out the screening test of his urine
way before he was arrested by the police officers.
Next, the DPP also stated that even if the evidence were obtained illegally or not reasonably,
evidence that was challenge is still relevant to prove charge against the respondent. Hence, the DPP’s
side should have succeed in establishing the prima facie.
RESPONDENT’S ARGUMENT:
The respondent rejects the DPP’s argument by stating that the case has no prima facie. The learned
counsel argued that the term “arrested person” in the provision sec 31A(1A) DDA refers to “actual
arrest” and not “constructive arrest”. Hence, since the appellant failed to arrest the respondent by actual
arrest, the evidence obtained is illegal and cannot be accepted by the court. The decision made by the
Magistrate and the High Court is correct and should be accepted.
JUDGEMENT (AB KARIM AB JALIL JCA):
Allowing the appeal; respondent ordered to be called to enter defence.
According the judge, in this case the determination of the issue is whether there was an arrest or
not. Hence, this case it depends on the facts and circumstances of the case itself. It should be
determined case by case basis. Hence, whether it is constructive or actual arrest is not important. The
issueneed to be determined is whether there was arrest or not.
The power vested in Sec 31A(1A) which allows power to arrest if there was reasonable belief
that an offence under DDA had been committed or will be committed. This justifies the present of
information received by the police as evidence to issue arrest.
Other than that, nothing in the said section mentioned if the police fail to obtain the evidence in
accordance with the requirement in the section, the evidence cannot be used and tendered in the court.
So, the evidence obtained which was the urine specimen was legal and can be accepted by the court.
Therefore, the court decided that the appeal is allowed and the prima facie of the case was
established.
