A magistrate cannot transfer a drug trafficking case to the High Court before receiving a chemist’s report that confirms the identity and weight of the seized drugs, the Court of Appeal has ruled - but SHOULD it not be that the Prosecution Cannot Charge before receiving a chemist’s report that confirms the identity and weight of the seized drugs?
What is happening to OUR Malaysian COURTS - how could such an 'ERROR' be made.... is not the Chemistry REPORT a crucial evidence must have before CHARGING anyone?
In a Criminal Trial - the MOST IMPORTANT question is WHEN can the prosecution CHARGE a person for a Criminal Offence in Court? The legal principle is that a person can be charged ONLY after investigation has been COMPLETED and more importantly when Prosecution has needed evidence, and is confident that they can prove a PRIMA FACIE case against the accussed person.
The principle is that a person should not be charged in Court until the investigation into the case against him has been completed and there is prima facie evidence to prosecute him of the charge. In other words, a person should not be put in peril of a criminal trial unless the prosecution is able to prove the case against him. To do otherwise is an injustice. - Harun J in PP vs Tan Kim San [1980] 1 LNS 66, [1980] CLJU 66; [1980] 1 LNS 66; [1980] 2 MLJ 98; [1980] 1 MLRH 450
The
legal principle as to when one should be CHARGED, Arrested and released
on Police Bail - The Case of PP v Tan Kim San, judgement of late
Supreme Court Judge Harun Mahmud Hashim
For DRUG offences, what is MOST crucial is the Identity of the said Dangerous Drugs, and the QUANTITY of the drugs - and this is based on the Chemistry Report. So, until the Chemistry Report is OUT, no one should be charged for any DRUG offence. The REPORT is very important, as it will determine whether a person can be charged for any DRUG offence, and the QUANTITY is most important in deciding whether the person is CHARGED for just DRUG Possession, or DRUG Trafficking that carries the Death Penalty.
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IN the recent media report, it is ACKNOWLEDGED that the Prosecution has yet to get this most crucial CHEMISTRY REPORT - and here we have the Court of Appeal deciding whether the Magistrate Court can delay transferring the case to the High Court because the Chemistry Report is not yet READY?? This is absurd.
WHY? Because this admission that this most important Chemistry Report that is the much needed evidence to determine the IDENTITY and the QUANTITY of the said drugs is NOT OUT yet - THUS, the CHARGING of the accused in the Magistrate Court is WRONG, worse, the accussed has been Charged for DRUG Trafficking - without the prosecution even having the needed Chemistry Report, that is fundamental for any DRUG Charges...
The moment, the Prosecution admitted that the Chemistry Report was not yet ready, the COURTS should have held that the Charging of the Accussed was WRONG - and ruled that the accused should be DISCHARGED - noting that when sufficient evidence(including the Chemistry Report, etc) is available, then the Prosecution can always CHARGE again...THIS WILL BE JUST.
COURT of Appeal ERRED when it merely looked at the question as to whether the TRANSFER to the High Court can be delayed until the Chemistry Report is available.... In short, the Court ACKNOWLEDGES that the accused was charged before the Chemistry Report was obtained - is the COURT of Appeal now saying that ACCUSED PERSONS can be charged in COURT even when the Prosecution does not have REQUIRED EVIDENCE to be able to prove a PRIMA FACIE case???
We go back to the MORE FUNDAMENTAL question of WHEN can the prosecution charge anyone for a CRIME - is it based on mere suspicion/belief that someone has committed a crime, or can it be done ONLY after the Prosecution has REAL EVIDENCE, and verily believe that prosecution has sufficient evidence needed to convince the COURT a prima facie case of GUILT...
The principle is that a person should not be charged in Court until the investigation into the case against him has been completed and there is prima facie evidence to prosecute him of the charge. In other words, a person should not be put in peril of a criminal trial unless the prosecution is able to prove the case against him. To do otherwise is an injustice. - Harun J in PP vs Tan Kim San [1980] 1 LNS 66, [1980] CLJU 66; [1980] 1 LNS 66; [1980] 2 MLJ 98; [1980] 1 MLRH 450
In a DRUG case, the most crucial evidence would be the Chemistry Department Report confirming the identity of the DRUG, and also the QUANTITY. This is IMPORTANT to determine whether a person ought to be charged for any DRUG offence > if the identity of the drug is some other than what is prescribed in law as a DANGEROUS DRUG, then he/she will not even be charged for any DRUG offence.
NEXT, the QUANTITY is crucial - weight determines whether one is charged for merely DRUG POSSESSION, or the more serious crime of DRUG TRAFFICKING.
Now, the above comments are based on Media Reports - I have not had the opportunity of perusing the Judgment, and MEDIA can sometimes get in WRONG.
SPEEDY TRIAL is crucial to ensure JUSTICE.
Whenever, Prosecution charges anyone in Court, is means that Prosecution is READY immediately or within a WEEK to start the TRIAL and proceed at least they have managed to convince the COURT that a PRIMA FACIE case has been established.
In Malaysia, PROSECUTION still do not produce FULL DISCLOSURE of the evidence it has and will produce in Court during the TRIAL > hence, the ACCUSED does know what evidence is going to be tendered, what Witness will be called and what evidence will be tendered by the witness..
ONLY after ACCUSED knows of this evidence and witnesses - can the accused and/or lawyer go and find evidence that can rebut the evidence that came out. What can this evidence be - maybe Human Witnesses(problem is human memory is diminished with time - hence speed is essential, so these human witnesses still remembers 'material evidence' that may lead to acquittal even). 2nd, there could be some CCTV evidence proving innocence, maybe from some residential or commercial CTTV which the police overlooked - PROBLEM again, is that many establishment/persons may ERASE CCTV evidence after some time > HENCE, again why a SPEEDY Trial is very important to ensure JUSTICE be done, including getting CCTV evidence b4 they are erased)
If the COURTS approve Prosecution Charging People In Court without even satisfying the REQUIREMENT that you can only charge a person if and when you have already sufficient evidence and are ready to prove one is Guilty Beyond Reasonable Doubt, or at the very least a PRIMA FACIE case - it OPENS the door WIDE to the ABUSE of Prosecution Powers to simply charge people whenever they want > and for many, it may lead to 'Prolonged Detention' because they cannot afford BAIL, or they have been charged with an offence where BAIL is denied in law like SOSMA listed offences, Drug Trafficking, MURDER... NOTE now, in Malaysian detention facilities, there are 174,356 were remand prisoners, of which 132,000 Malaysians,
"As for 2025, 174,356 were remand prisoners and 103,916 were convicted inmates. "Among the remand group, 132,030 were Malaysians and 42,326 were non-citizens, while for convicted inmates, 67,433 were Malaysians and 36,483 were non-citizens." - NST, 18/11/2025
Zahid Hamidi, whose trial had past the PRIMA FACIE stage, managed to GET DISCHARGED simply because Prosecution needed more time to complete their investigation(a DELAY in proceeding with an ongoing trial by Prosecution) ... LOGICALLY, and REASONABLY everyone in REMAND DETENTION and are out on BAIL, where the starting of their TRIAL had been delayed, or their speedy commencement of their trial had been 'DELAYED' deserve to be DISCHARGED just like Zahid Hamidi was - if not, is it not DOUBLE STANDARDS...
Remember, it is us, Malaysians that decide how LAW and the administration of criminal law, is exercised in Malaysia - SO SPEAK UP.
What is the position of the Political Parties (PAS,DAP, PH, BN, BERSAMA, MUDA, PSM) - do you take the position that NOBODY should be CHARGED until Prosecution has completed its investigation, and VERILY believe that prosecution has required evidence to be able to prove to Court a PRIMA FACIE Case at least, ...at best confident that it can prove GUILT beyond reasonable doubt....IF NOT, do not CHARGE yet..
What is the position of the Political Parties (PAS,DAP, PH, BN, BERSAMA, MUDA, PSM) - do you advocate the RIGHT TO A SPEEDY Trial - once charged, the trial must begin soon, and move speedily (more so for those under REMAND detention) until PRIMA FACIE case is proven...NOW, too many have to wait so long b4 prosecution starts and ends its case - IF prosecution not ready to START and complete fast, then DISCHARGE all accussed persons (can charge later when ready to conduct trial fast). If Zahid Hamidi got a DISCHARGE - it is DOUBLE Standards if the other accussed do not get the same treatment - A DISCHARGE...
VOTE FOR POLITICAL PARTIES THAT HAVE THE RIGHT PRINCIPLE - WHO CARE FOR ALL MALAYSIANS - EVEN THOSE BEING 'RIGHTLY OR WRONGLY' CHARGED FOR CRIMES...
Our OVER-CROWDED prison/detention facilities problem can be solved.
A PRINCIPLED POSITION that is JUST > all presumed innocent until tried and proven guilty in Court.
JUDICIARY - do JUSTICE... do not make JUDGMENTS that invite INJUSTICES - including the ABUSE of power by PROSECUTION by charging people when they have yet the required evidence ... making so many suffer. Prolonged detention whilst waiting for trial to begin may lead to many innocent people pleading GUILTY - WHY? So they serve their sentence, and get out....rather than suffering in indefinite REMAND detention not knowing when their trial will begin and end...and now COURT of Appeal seem to have OKed the Charging of people even when the Prosecution has not completed investigation, and secured sufficient evidence ... that is what it did, in my opinion, when the COURTS did not SAY it was wrong for prosecution to charge someone for DRUG TRAFFICKING without even first getting the Chemistry Report proving the IDENTITY and/or QUANTITY of Drugs...
I HOPE THE COURTS SPEEDILY REVISE ITS DECISION - The main question here is NOT about transfer > BUT the question whether Prosecution can JUSTLY charge someone for DRUG TRAFFICKING without even Chemistry Department Report - what happens if the Report later says that it was NOT even dangerous drugs??? Or not enough to be charged for drug trafficking?
In landmark ruling, court rejects British woman’s bid to fast-track drug trial
The Court of Appeal rules that magistrates must wait for the chemist’s report before transferring drug trafficking cases to the High Court.
The decision was made by Justice Wong Kian Kheong, sitting with Justices Hayatul Akmal Abdul Aziz and Meor Hashimi Abdul Hamid, in dismissing a British woman’s application for leave to appeal against the High Court’s refusal to revise a magistrate’s decision not to transfer her case.
The woman, Deishanei Ciara Hall, is charged with trafficking 19kg of cannabis at KLIA. She argued that the magistrate was required under the Dangerous Drugs Act 1952 to immediately transfer the case to the High Court.
However, Justice Wong, in a 31-page judgment released on Thursday, ruled that the Court of Appeal had no jurisdiction to hear the application as the High Court had merely declined to exercise its revisionary powers, and had not conducted a substantive revision.
In a departure from a ruling in a 2007 drugs case, the court held that a case is only exclusively triable in the High Court once a chemist’s report confirms the drug type and quantity fall under Section 39B of the Dangerous Drugs Act.
Wong said expert evidence is essential in determining jurisdiction and that without a chemist’s report, trial scheduling and court allocation could be affected.
He said the decision in the 2007 case, PP v Marwan Ismail, had failed to consider the statutory and practical role of the chemist’s report. He added that the Court of Appeal was therefore not bound to follow a previous legal principle if the earlier decision was made incorrectly against a statutory provision.
Wong said an accused person may lawfully remain in custody under the Dangerous Drugs Act pending completion of forensic analysis.
Hall was arrested in April 2025, and charged at the Sepang magistrates’ court. Her lawyers’ application to transfer the case to the High Court was rejected by the magistrate. Hall sought but failed to obtain a revision by the High Court, prompting Hall to seek leave to appeal to the Court of Appeal.
Deputy public prosecutor Abdul Malik Ayob, who objected to Hall’s application, argued that the appellate court lacked jurisdiction as the High Court had not exercised its revisionary powers.
Hall was represented by lawyers Michelle Tan, Isaac Hong and Michelle Liu. - FMT, 13/6/2026
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