Hamidi bin Misdon v Pendakwa Raya

Appellant(s): Hamidi Bin Misdon

Respondent(s):

• Pendakwa Raya
• [Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara]

• YA Dato' Paduka Azman Bin Abdullah
• YA Datuk Hayatul Akmal binti Abdul Aziz
• YA Tuan Muniandy a/l Kannyappan

• The appellant, a police officer, was convicted by the Magistrates' Court under Section 15(1)(a) of the Dangerous Drugs Act 1952 for self-administration of Ketamine, and was fined RM5,000 with a two-year AADK supervisory order.
• The High Court dismissed his appeal and affirmed the conviction and sentence, after which leave to appeal to the Court of Appeal was granted on a single question of law concerning the statutory presumption under Section 37(k) of the DDA 1952.
• The appellant had given evidence under oath and called four supporting witnesses regarding the circumstances of his detention and urine testing, while the officer who physically transported his urine sample to the hospital laboratory was never called to testify.

• Whether the trial Magistrate's failure to expressly determine whether the defence had rebutted the Section 37(k) presumption on a balance of probabilities (as opposed to merely finding no reasonable doubt) amounted to a serious misdirection by way of non-direction.
• Whether the unexplained failure to call the officer who transported the urine sample, combined with deficiencies in the chain-of-custody documentation, warranted an adverse inference under Section 114(g) of the Evidence Act 1950.
• Whether the unresolved discrepancy between the multi-substance field screening result and the single-substance laboratory confirmation undermined the integrity and identity of the sample analysed.

• The Court held that invoking a reasonable doubt standard instead of the balance of probabilities standard mandated by Section 37(k) is not a mere semantic slip and, where a substantive defence narrative is mounted, cannot be cured as an error favouring the accused; this constituted a fatal non-direction, and an appellate court's re-evaluation powers cannot fill such a total judicial vacuum.
• The Court found an unbridged break in the chain of custody given the unexplained absence of the transit officer and deficiencies in the handover documentation, entitling an adverse inference under Section 114(g) of the Evidence Act 1950 against the prosecution.
• Viewing these defects cumulatively with the unresolved screening-versus-confirmatory test discrepancy, the Court held the conviction unsafe, allowed the appeal, set aside the High Court's order, quashed the conviction and sentence, acquitted and discharged the appellant, and ordered refund of the fine paid.