Nedzmar Bin Palaudin v Public Prosecutor

Appellant(s): Nedzmar Bin Palaudin

Respondent(s):

• Pendakwa Raya
• [Pendakwa Raya]

• YA Dato' Azizul Azmi Bin Adnan
• YA Datuk Ismail Bin Brahim
• YA Dato' Ahmad Fairuz bin Zainol Abidin

• The appellant was convicted in the High Court at Tawau under section 39B(1)(a) of the Dangerous Drugs Act 1952 for trafficking 128.86 grams of methamphetamine found concealed in his underwear during a police raid, and was sentenced to life imprisonment and 12 strokes of whipping.
• The appellant's defence at trial was that he had been framed by the investigating officer, who allegedly instructed him to place the drugs in his underwear for photography purposes, a claim purportedly witnessed by a fellow detainee who was never called to testify.
• A court-ordered clothes-fitting exercise, requested by the appellant to demonstrate the exhibits could not have fitted in his clothing, instead showed the drugs fitted comfortably in his underwear and that a disputed t-shirt did in fact fit him.

• Whether the absence of photographs taken at the scene of arrest, coupled with the alleged frame-up defence, gave rise to a break in the chain of custody of the drug exhibits sufficient to raise reasonable doubt.
• Whether the prosecution's failure to tender documentary proof of compliance with section 28A of the Criminal Procedure Code (informing an arrested person of his rights) was fatal to the conviction.
• Whether the absence of forensic evidence such as DNA or fingerprint analysis undermined the prosecution's proof of possession.

• The Court held there is no rule of law requiring photographs to be taken at the point of arrest or seizure, and that direct eyewitness testimony of the arresting officer, accepted by the trial court, together with proven unbroken custodial handling of the exhibits, sufficed to establish the chain of custody.
• The Court held that failure to produce a signed section 28A form was not fatal where the statutory caution had in fact been verbally administered and no prejudice arose, as the appellant made no self-incriminating statement and remained silent throughout.
• The Court affirmed that forensic evidence such as DNA or fingerprints is merely corroborative and unnecessary where there is direct evidence of physical possession, and dismissed the appeal against both conviction and sentence, affirming the life sentence (equivalent to 30 years under section 3 of the Criminal Justice Act 1953) and the minimum 12 strokes of whipping.