Home > Case Law Studies, Chain of Custody, Chain of Evidence, Cyber Forensics & Investigations, Electronic Evidence, Expert Evidence, Expert Witness, Intellectual Properties & Copyrights > Possession of Computer Softwares, Breach of Chain of Evidence and Copyright Issues: Public Prosecutor v Sim, Odita, Mohammad Architects Sdn Bhd (Malaysia)

Possession of Computer Softwares, Breach of Chain of Evidence and Copyright Issues: Public Prosecutor v Sim, Odita, Mohammad Architects Sdn Bhd (Malaysia)

[2007] MLJU 0512

Malayan Unreported Judgments
Public Prosecutor v Sim, Odita, Mohammad Architects Sdn Bhd
HIGH COURT (KUCHING)
CRIMINAL APPEAL NO 42-11-2004-11
DECIDED-DATE-1: 18 SEPTEMBER 2007
Haji Hamid Sultan Bin Abu Backer, JC

JUDGMENT

1.    This is my judgment in respect of the prosecution’s appeal against the
learned sessions judge who acquitted and discharged the respondents who
were charged with four charges under section 41(1)(d) of the Copyright
Act 1987 (CA 1987), on the charge inter alia that the respondents had
in their possession infringing copies of computer programs during the
subsistence of copyright, otherwise than for its private and domestic
use.

2.    The 4 charges read as follows:

“Amended PERTUDUHAN PERTAMA

Bahawa kamu pada 11 Mei 1999, kira-kira jam 2.50 petang, di
premis SIM, ODITA, MUHAMMAD ARCHITECTS SDN. BHD., Lot No. 5684,
Section 64, KTLD, Three Hill Parks, Kuching di dalam Daerah
Kuching, di dalam Negeri Sarawak, tatkala hakcipta ujud di dalam
karya sastera, kamu ada memiliki bagi apa-apa kegunaan selain
daripada kegunaan domestic, salinan-salinan karya sastera dalam
bentuk program komputer bertajuk AutoCAD 12 for Dos didalam ‘
Central Processing Unit’ seperti berikut:-

Data in Image

sebagai salinan langgaran, yang mana hakcipta karya tersebut
keempunyaan Autodesk Incorporation, dan dengan itu kamu telah
melakukan kesalahan di bawah Seksyen 41(1)(d) Akta Hakcipta 1987
dan jika disabitkan kesalahan boleh dihukum di bawah Seksyen 41(1)
(i), Akta yang sama. (UNDANG-UNDANG MALAYSIA AKTA NO. 332)

PERTUDUHAN KEDUA

Bahawa kamu pada 11 Mei 1999, kira-kira jam 2.50 petang, di
premis SIM, ODITA, MUHAMMAD ARCHITECTS SDN. BHD., Lot No. 5684,
Section 64, KTLD, Three Hill Park, Kuching, di dalam Daerah
Kuching, di dalam Negeri Sarawak, tatkala hakcipta ujud di dalam
karya sastera, kamu ada memiliki bagi apa-apa kegunaan selain
daripada kegunaan domestic, salinan-salinan karya sastera dalam
bentuk program komputer bertajuk Windows 95 di dalam ‘Central
Processing Unit’ seperti berikut:-

Data in Image

sebagai salinan langgaran, yang mana hakcipta karya tersebut
keempunyaan Microsoft Corporation, dan dengan itu kamu telah
melakukan kesalahan di bawah Seksyen 41(1)(d) Akta Hakcipta 1987
dan jika disabitkan kesalahan boleh dihukum di bawah Seksyen 41(1)
(i), Akta yang sama. (UNDANG-UNDANG MALAYSIA AKTA NO. 332)

PERTUDUHAN KETIGA

Bahawa kamu pada 11 Mei 1999, kira-kira jam 2.50 petang, di
premis SIM, ODITA, MUHAMMAD ARCHITECTS SDN. BHD., Lot No. 5684,
Section 64, KTLD, Three Hill Park, Kuching, di dalam Daerah
Kuching, di dalam Negeri Sarawak, tatkala hakcipta ujud di dalam
karya sastera, kamu ada memiliki bagi apa-apa kegunaan selain
daripada kegunaan domestic, salinan karya sastera dalam bentuk
program komputer bertajuk Adobe Page Maker 6.0 di dalam ‘Central
Processing Unit’ bernombor Serial P 364750 yang dijumpai di
Tingkat Dua, sebagai salinan langgaran, yang mana hakcipta karya
tersebut keempunyaan Adobe Systems Incorporated, den dengan itu
kamu telah melakukan kesalahan di bawah Seksyen 41(1)(d) Akta
Hakcipta 1987 dan jika disabitkan kesalahan boleh dihukum di
bawah Seksyen 41(1)(i), Akta yang sama. (UNDANG-UNDANG MALAYSIA
AKTA NO. 332)

Amended PERTUDUHAN KEEMPAT

Bahawa kamu pada 11 Mei 1999, kira-kira jam 2.50 petang, di
premis SIM, ODITA, MUHAMMAD ARCHITECTS SDN. BHD., Lot No. 5684,
Section 64, KTLD, Three Hill Park, Kuching, di dalam Daerah
Kuching, di dalam Negeri Sarawak, tatkala hakcipta ujud di dalam
karya sastera, kamu ada memiliki bagi apa-apa kegunaan selain
daripada kegunaan domestic, salinan-salinan karya sastera dalam
bentuk program komputer bertajuk Office 4.3 Professional di dalam
‘Central Processing Unit’ seperti berikut:-

Data in Image

sebagai salinan langgaran, yang mana hakcipta karya tersebut
keempunyaan Microsoft Corporation, dan dengan itu kamu telah
melakukan kesalahan di bawah Seksyen 41(1)(d) Akta Hakcipta 1987
dan jika disabitkan kesalahan boleh dihukum di bawah Seksyen 41(1)
(i), Akta yang sama. (UNDANG-UNDANG MALAYSIA AKTA NO. 332)

1. The above-named Respondent was charged with an offence
specified in the following charges:-

(1) Amended PERTUDUHAN PERTAMA

Bahawa kamu pada 11 Mei 1999, kira-kira jam 2.50 petang, di
premis SIM, ODITA, MUHAMMAD ARCHITECTS SDN. BHD., Lot No. 5684,
sebagai salinan langgaran, yang mana hakcipta karya tersebut
keempunyaan Autodesk Incorporation, dan dengan itu kamu telah
melakukan kesalahan di bawah Seksyen 41(1)(d) Akta Hakcipta 1987
dan jika disabitkan kesalahan boleh dihukum di bawah Seksyen 41(1)
(i), Akta yang sama. (UNDANG-UNDANG MALAYSIA AKTA NO. 332)

(2) PERTUDUHAN KEDUA

Bahawa kamu pada 11 Mei 1999, kira-kira jam 2.50 petang, di
premis SIM, ODITA, MUHAMMAD ARCHITECTS SDN. BHD., Lot No. 5684,
Section 64, KTLD, Three Hill Park, Kuching, di dalam Daerah
Kuching, di dalam Negeri Sarawak, tatkala hakcipta ujud di dalam
karya sastera, kamu ada memiliki bagi apa-apa kegunaan selain
daripada kegunaan domestic, salinan-salinan karya sastera dalam
bentuk program komputer bertajuk Windows 95 di dalam ‘Central
Processing Unit’ seperti berikut:-

Data in Image

sebagai salinan langgaran, yang mana hakcipta karya tersebut
keempunyaan Microsoft Corporation, dan dengan itu kamu telah
melakukan kesalahan di bawah Seksyen 41(1)(d) Akta Hakcipta 1987
dan jika disabitkan kesalahan boleh dihukum di bawah Seksyen 41(1)
(i), Akta yang sama. (UNDANG-UNDANG MALAYSIA AKTA NO. 332)

(3) PERTUDUHAN KETIGA

Bahawa kamu pada 11 Mei 1999, kira-kira jam 2.50 petang, di
premis SIM, ODITA, MUHAMMAD ARCHITECTS SDN. BHD., Lot No. 5684,
Section 64, KTLD, Three Hill Park, Kuching, di dalam Daerah
Kuching, di dalam Negeri Sarawak, tatkala hakcipta ujud di dalam
karya sastera, kamu ada memiliki bagi apa-apa kegunaan selain
daripada kegunaan domestic, salinan karya sastera dalam bentuk
program komputer bertajuk Adobe Page Maker 6.0 di dalam ‘Central
Processing Unit’ bernombor Serial P 364750 yang dijumpai di
Tingkat Dua, sebagai salinan langgaran, yang mana hakcipta karya
tersebut keempunyaan Adobe Systems Incorporated, den dengan itu
kamu telah melakukan kesalahan di bawah Seksyen 41(1)(d) Akta
Hakcipta 1987 dan jika disabitkan kesalahan boleh dihukum di
bawah Seksyen 41(1)(i), Akta yang sama. (UNDANG-UNDANG MALAYSIA
AKTA NO. 332)

(4) Amended PERTUDUHAN KEEMPAT

Bahawa kamu pada 11 Mei 1999, kira-kira jam 2.50 petang, di
premis SIM, ODITA, MUHAMMAD ARCHITECTS SDN. BHD., Lot No. 5684,
Section 64, KTLD, Three Hill Park, Kuching, di dalam Daerah
Kuching, di dalam Negeri Sarawak, tatkala hakcipta ujud di dalam
karya sastera, kamu ada memiliki bagi apa-apa kegunaan selain
daripada kegunaan domestic, salinan-salinan karya sastera dalam
bentuk program komputer bertajuk Office 4.3 Professional di dalam
‘Central Processing Unit’ seperti berikut:-

Data in Image

sebagai salinan langgaran, yang mana hakcipta karya tersebut
keempunyaan Microsoft Corporation, dan dengan itu kamu telah
melakukan kesalahan di bawah Seksyen 41(1)(d) Akta Hakcipta 1987
dan jika disabitkan kesalahan boleh dihukum di bawah Seksyen 41(1)
(i), Akta yang sama. (UNDANG-UNDANG MALAYSIA AKTA NO. 332)”

Petition of appeal

3.    The appellant’s petition of appeal inter alia states that the learned
sessions judge had erred in law and in fact. The grounds for the same
are that:

(i)   there was a break in the chain of evidence;

(ii)  the learned sessions judge misdirected herself in finding that
there was a likelihood of the seized computers being tampered
with thereby causing the break in the chain of evidence.

(iii)  in holding the view that the prosecution has not established
prima facie evidence in respect of the first charge.

(iv)  in her consideration that the first charge is defective without
giving proper significance and that the accused was neither
prejudiced nor mislead.

(v)   in her finding when she said “in conclusion, let me say that but
for that there is doubt whether there might be tampering of the
serial number of the program found in the seized computer while
they were in the custody of PW1 before he transfer, I would have
otherwise found that the defence has not successfully waged their
defence under Section 41 (4) of the Act on the balance of
probability required of them, and that I would have concluded
that the prosecution has proved its case beyond reasonable doubt.
Since I do entertain that the doubt that the chain of handling
the seized computers might have been broken, it is my finding
that the prosecution has not established the case beyond
reasonable doubt and I order that the accused be discharged and
acquitted”.

Brief facts

4.    Evidence was before the Court that subsequent to a written complaint
dated 11-05-1999 received by the Ministry of Domestic Trade and
Consumers Affairs, Simpang Tiga, Kuching Branch from Messrs Raja,
Darryl & Loh, Advocates acting for and on behalf of Business
Software Alliance (BSA), Adobe Systems, Inc. (“Adobe”), Autodesk Inc. (“
Autodesk”), Corel Corporation (“Corel”) and Microsoft Corporation (“
Microsoft”), a warrant of search was obtained from the Court and
consequently a raid was conducted at the business address of the
respondent on the same day. During the raid 17 units of computers were
seized and brought back to the office of Ministry of Domestic Trade and
Consumers Affairs, Simpang Tiga, Kuching Branch. The units of seized
computers were kept at the office of Ministry of Domestic Trade and
Consumers Affairs, Simpang Tiga, Kuching Branch until the day of the
trial. Out of the 17 computers which were seized, only 15 units of
computers were related to the charges against the respondent.
Prosecution called 14 witnesses. Defence called 4 witnesses comprising
the directors, associate directors and architect of the respondent
company and the chief executive officer of Sarawak Software to testify
on behalf of them. In respect of the first ingredient, the defence
through the testimony of DW1 and DW2 adduced evidence that the business
premises which was raided by the officers of Ministry of Domestic Trade
and Consumers Affairs, Simpang Tiga, Kuching Branch on 11-05-1999 was
occupied by other companies namely Austral Avenue Sdn Bhd, Liberty
Computers Services Ltd and Liberty Shine Sdn Bhd.

Ingredient of the charges

5.    The ingredients of the charges under section 41(1)(d) which the
prosecution has to establish can be summarised as follows: (i) that the
respondent company had in possession the alleged infringing copies of
computer programs; (ii) that the said infringing copies of computer
programs were not for their private and domestic use; (iii) that
copyright subsisted in the said computer programs in favour of the
owners named in the charges; (iv) that the said computer programs are
infringing copies.

Possession – 1st ingredient

6.    The word “possession” is not defined in the CA 1987 and therefore it is
pertinent to refer to judicial decisions involving criminal charges to
guide us to define the word “possession”. Thus, it was the contention
of the defence that prosecution has to establish physical possession of
the alleged infringing programs by the accused. The prosecution failed
to prove actual physical possession of the alleged infringing copies of
computer programs, as evidence was before the Court that the premises
of the accused was not for the sole usage of the accused company but
also shared among the other companies mentioned above. This by itself,
in my view, is sufficient to sustain the order of acquittal.

Private and domestic – 2nd ingredient

7.    In respect of the 2nd ingredient, it was the contention of the defence
that the prosecution failed to adduce any evidence tending to show that
the alleged infringing copies of the computer programs were used by the
accused for their business purposes. This is another point which goes
in favour of the respondent.

Copyright – 3rd ingredient

8.    In respect of the third ingredient, the defence contended that in
general there are 8 categories of literary works that are eligible for
protection under the CA 1987. However, the defence argued that it is
not clear which of the literary works the prosecution is relying on to
prove subsistence of copyright, as the prosecution merely relied on the
statutory declarations of Jonathan Selvasegaram, purportedly affirmed
on behalf of Microsoft Corporation; Raymond Lee purportedly affirmed on
behalf of Adobe System Incorporation; and Chua Cheng Boon purportedly
affirmed on behalf of Autodesk Incorporated. It was the contention of
the defence that the statutory declarations mentioned above were not
made and/or declared before a person having authority to administer
oath and as such should not be admitted as evidence. In my view strict
compliance of the CA 1987 is a condition precedent to establish
subsistence of copyright.

Infringing copies – 4th ingredient

9.    As to the fourth ingredient, it is the contention of the defence that
the prosecution failed to prove this ingredient due to the fact that
the prosecution failed to tender original copies of the computer
programs, allegedly eligible for copyright protection. Thus, the trial
Court was not in the position to make comparison between the original
copies of the computer programs and the alleged infringed program. In
my view, this is fatal to the prosecution.

Breach in chain of evidence

10.   It was also the contention of the defence case that there is break in
chain of evidence, as during the testimonies of the prosecution and the
defence witnesses, evidence tends to show that there is opportunity for
tampering to exist. If the opportunity of tampering existed, there
would be a break in the chain of evidence, irrespective of whether the
opportunity was taken or not.

11.   I have read the submissions of the appellant and the respondents in
detail. The learned sessions judge had meticulously dealt with all the
facts and evidence and the law in detail. I find no reasons to disturb
the same. Further, the petition of appeal has specifically focused on
the issue of break in chain of evidence. On this issue, I have
specifically requested both the prosecution and the respondent to
submit on the law in respect of break in chain of evidence. The
respondent has submitted on this issue and it was helpful for me to
write this judgment.

12.   The law in respect of break in chain of evidence is not specifically
anchored in the Evidence Act or Criminal Procedure Code. The law has
been developed as a cautionary approach to ensure exhibits are not
tampered with in cases where physical tampering is possible such as in
cases of drug offences and alike. It will not equally apply to cases
where the exhibits cannot be tampered with such as tables, chairs, etc.
Copyright infringement in relation to software as in this case requires
the prosecution to ensure that the exhibits are not easily tampered
with. Any doubt as to the possibility of tampering ought to be made in
favour of the accused, as usually done in drug cases. My reasons are as
follows:

(i)   The law on break in chain of evidence is an area of law which has
a close connection with the law of evidence in particular and
also the general principles of criminal law and procedure, to
meet out substantive justice on the basis of beyond reasonable
doubt.

(ii)  The cardinal principle in a criminal trial is based on the golden
rule that the prosecution must prove its case beyond reasonable
doubt. In the Supreme Court case of Teoh Hoe Chye v Public
Prosecutor and Yeap Teong Tean v Public Prosecutor
[1987] 1
MLJ 220 it was held that “the law is clear that it is unnecessary
to call evidence to ensure that there is no break in the chain of
evidence but where a doubt arises as to the identity of an
exhibit, a failure to adduce evidence to provide the necessary
link in the chain of evidence would be fatal to the prosecution
case.”

(iii)  By applying the principles in the case of Teoh Hoe Chye, (supra)
doubt arises as to whether the seized computers were in the
original state. Testimony of the prosecution witnesses reveal
that the seized computers were kept in his personal room, later
the same witness told the court that the room was shared with
another officer and that room is not a special room to keep
exhibits. Coupled with the fact that the room where the computers
were kept was shared between officers who had an easy access,
doubt arises as to whether the seized computers were exposed to
the danger of being tampered. It is the duty of the prosecution
to explain the gap in the manner the exhibits being handled.
However, the prosecution failed to adduce evidence to explain the
gap. In the premises, the learned sessions court judge had
properly decided that there was break in the chain of evidence
which was fatal to the prosecution’s case.

(iv)  Break in chain of evidence could occur when the prosecution fails
to call material witness to establish their case and or when
exhibits are dealt with in a vague manner. In our present case,
the issue of failure to call material witness does not arise. The
only concern is whether there is break in chain of evidence,
whereby there was doubt as to whether the seized exhibits were
exposed to the danger of being tampered with. The testimony of
the witnesses failed to explain beyond reasonable doubt that
there was no serious break in chain of evidence, particularly the
manner in which the seized exhibits were handled. The learned
sessions court judge ruled that there is break in chain of
evidence and doubt arises as to the manner in which the seized
exhibits were being kept before being produced in court.
Throughout the testimony of the witnesses for the prosecution
there is no single shred of evidence showing that the seized
exhibits were safe from the danger of being tampered with.
Instead, the testimony of the prosecution witnesses tend to
suggests that there is danger of the seized exhibits being
tampered with.

(v)   This doubt alone is sufficient to acquit the accused and not to
disturb the learned sessions court judge’s findings since she had
correctly evaluated the evidence before her.

(vi)  The principles laid down in various cases on point of break in
chain of evidence can be summarised as follows:

(a)   In the case of Pavone v Public Prosecutor (No.2)
[1986] 1 MLJ 423 where it involved drugs it was held that
the exhibits should have been packed and sealed by each of
those who handled the exhibits. The exhibits were handed to
the officer in charge of the station for safekeeping but no
steps were taken to ensure that the exhibits were not
tampered with. No evidence was led as to where the exhibits
were kept until they were handed to the investigating
officer during the afternoon of the next day. No evidence
was led as to what the investigating officer did with the
exhibits before he finally packed and sealed the package.
The Court held:

“In the light of the patent and unexplained
difference in finding of the officer conducting the
field test and that of the Chemist, the cavalier
manner in which the exhibit were handed becomes
significant and in all the circumstances obtaining in
this case amount to missing links in the chain of
evidence”.

(b)   In the case of Sia Soon Suan v Public Prosecutor
[1966] 1 MLJ 116 the court held:

“(2) since the evidence of handing over the grenades
and ammunition to the police depended entirely on the
evidence of PW4 alone and he was contradicted by ASP
Zainal Abidin it can hardly be said that the
prosecution had proved by evidence beyond all
reasonable doubt that the articles allegedly found on
the person of the appellant were handed over to the
police and that these were the very same articles
located in one of the groups;

(3) the requirements of strict proof in a criminal
case cannot be relaxed to bridge any material gap in
the prosecution evidence. Irrespective of whether
this Court is otherwise convinced in its own mind of
guilt or innocence of an accused, its decision must
be based on the evidence adduced and nothing else … .”

(c)   In the case of Abdul Rashid v PP [1994] 1 SLR 119
the Singapore Court of Criminal Appeal held as follows:

“It is well settled on the authorities that the
prosecution bears the burden of proving beyond
reasonable doubt that the package seized from the
first appellant’s car was the substance eventually
analyzed by Dr Lee and found to contain 76.3g of
diamorphine. The common thread that runs through all
the cases which deal with the chain of possession and
a doubt arises as to the identity of these exhibits
then the prosecution has not discharged the burden”.

(d)   The Singapore Court of Appeal in Satli bin Masot v PP
[1999] 2 SLR 637 held that in cases where a break in the
chain of evidence was alleged, the issue for the court’s
determination was whether, on the evidence adduced before
the court any doubt had been raised on the identity of the
drug exhibits. While the prosecution bore the burden of
proving beyond a reasonable doubt that there were no gaps
in the chain of evidence it did not follow that in order to
establish the identity of the drug exhibits all persons who
had handled the drugs must be called as witnesses. The
Court opined: “The guiding principle was whether a doubt as
to the identity of the exhibits had arisen. Only when such
a doubt had arisen would it be necessary for the
prosecution to call all necessary witnesses so as to
provide the necessary links in the chain of evidence”.

(e)   In the case of Sun Kam Heng v Public Prosecutor
[1992] 2 MLJ 826 it was held that there was no evidence
that the firearm which had been snatched from the appellant’
s hand had been enclosed in a sealed envelope when placed
in the safe, nor was the safe register produced to
demonstrate to the court beyond reasonable doubt what the
safe contained during the three days when the firearm was
kept in the safe; the evidence regarding the movement of
the exhibits to the armourer, the chemist and then back to
the IO did not repair the gap in the prosecution case
regarding the whereabouts of the exhibits during the three
days when the exhibits were allegedly lying in Bahadom’s
safe. Bahadom was never called nor offered by the
prosecution to the defence. There was also no explanation
in the trial and the appellate courts for these glaring
omissions. If there was a break in chain of evidence at any
time before the exhibits were allegedly sent to the
armourer, then the testimony of the armourer and the
chemist report would have to be disregarded as being
irrelevant to the charges. In such circumstances without
the armourer’s testimony and the chemist report, there
would be insufficient evidence that what had been snatched
from the appellant’s hand came within the definitions of ‘
firearm’ and ‘ammunition’ in section 2 of the 1960 Act.

(f)   In the case of Abdullah bin Yaacob v Public Prosecutor
[1991] 2 MLJ 237 where it was stated Su Ah Ping v PP
[1980] 1 MLJ 75 where the Court opined: “that it is not
required for the prosecution to call all the officers or
the persons concerned who had seen or identified an exhibit.
” This is not the real intention of the law. Su Ah Ping
(supra) only decided the general principles. But the facts
of one case differ from those of another and the duty of
the prosecution in each case is to prove the case beyond
any reasonable doubt to the court. The case must be clearly
proved without (reasonable) doubt or question that can be
raised about the exhibits.

(g)   In the case of Mohd Osman bin Pawan v Public
Prosecutor
[1989] 2 MLJ 110 the court opined that:

“… it is pertinent to emphasize again that
investigation officers should not treat the custody
of exhibits lightly so as to leave a gap in the chain
of evidence relating to the exhibits before their
production in court”.

(h)   In the case of Yeong Kia Heng v Public Prosecutor
[1992] 1 MLJ 327 it was held:

“The burden of proof is heavy and the burden of proof
that is borne by the prosecution is also heavy. There
is no burden borne by the accused to prove that he is
not guilty. In a criminal trial the accused is
allowed to take every opportunity to show the defects
in the prosecution case. The defect regarding the
identity of the exhibits is serious”.

(i)   In the case of Lee Chee Meng v Public Prosecutor
[1992] 1 MLJ 322 it was held:

“(1) The totality of the evidence in this case did
not support the conclusion of the learned trial judge
that the appellant had exclusive use of the room. The
burden on the appellant in this respect was merely to
cast a reasonable doubt. … The doubt as to exclusive
use of the room by the appellant alone could be
sufficient ground to allow the appeal.

(2) There was a serious flaw in the prosecution case
in the evidence relating to the exhibits. Firstly, no
evidence was given as to the weight of the ten
packets of drugs found in the second accused’s vanity
case. Since the total weight of the drugs in the
charge was 23.71g, that is, only 8.71g above the
statutory limit of s 37(da)(iiia) of the Act, the
weight of the ten packets of drugs in the vanity case
was crucial to sustain the charge against the
appellant. Secondly, there were discrepancies in the
witnesses’ evidence as to the number of packets of
drugs involved.

(3) There was a serious doubt as to the identity of
the exhibits in this case and therefore it could not
be said that the prosecution had established a prima
facie case under the charge”.

(j)   In the case of PP v Sivakumar Ammasi [2003] 6 CLJ
152 the Court stated that:

“There is now clearly a doubt as to whether the
exhibits actually sent to the chemist were the same
exhibits that were said to have been safely secreted
in the cloistered chambers of SP6 ’s cabinet. In this
respect it is appropriate to refer to Teoh Hoe Chye
v PP; Yeap Teong Team
[1987] 1 CLJ 471; [1987]
CLJ 386 (Rep) where the then Supreme Court also made
a similar critical comment as to the absence of
explanations as to what happened to the exhibits
between the time they were handed to the
investigating officer and to the time they were
examined by the chemist. … On this ground that there
is a doubt as to the exhibits seized and considering
the break in the chain of evidence, this court has to
acquit the accused.”

(k)   In the case of PP v Mansor MD Rashid & Ors
[1993] 4 CLJ 266 the accused were acquitted and
discharged due to break in chain of evidence. The Court
held:

“Firstly, the evidence adduced by the Government
Chemist (PW1), was far from satisfactory. In point of
fact, her testimony shows not only the cavalier
manner in which the incriminating exhibits which
forms the material particulars of the charge, were
handled but also the easy manner by which she deposed
to the way the incriminating exhibits were examined
and analysed which leaves in my mind the patent
weakness in the prosecution’s case. … At first blush
what the Government chemist did was perfectly in
order. But a close scrutiny would indicate a patent
break in the chain of evidence pertaining to the
compressed plant material. There was not a shred of
evidence adduced by the prosecution as to how the
Government Chemist handled the compressed plant
material in her office. The prosecution failed
miserably to show positively the appropriate steps
taken by the Government chemist to ensure the safe
custody of the compressed plant materials”.

13.   The issue of break in chain of evidence is normally considered by the
Court before coming to a conclusion whether the prosecution has proved
its case against the accused beyond reasonable doubt. The accused is
eligible to an acquittal, if there is break in chain of evidence and or
gap occurs in prosecution’s case. Thus, it is important for the
prosecution to ensure that there is no break in the chain of evidence
adduced before the Court. When chain of evidence is broken and
subsequently due to the break doubt arises on prosecution’s case, it is
the duty of the prosecution to remedy the break and or to fill in the
gap. Failure of the prosecution to remedy or to fill the gap will
absolutely create doubt in the mind of the Court. Once doubt is
created, prosecution’s case fails and this would benefit the accused,
and accordingly the accused shall be eligible to an acquittal and
discharge. In the case of Mohd Osman bin Pawan [1989] 2 MLJ 110
it was held “in a serious case such as trafficking in drugs it is
pertinent to emphasize again that investigating officers should not
treat the custody of exhibits lightly so as to leave a gap in the chain
of evidence relating to the exhibits before their production to Court”.

14.   For reasons stated above, I take the view that the decision of the
learned sessions judge ought not to be disturbed. In consequence, the
appeal is dismissed. I hereby order so.

Fazillah Begum bt Adbul Ghani (Jabatan Peguam Negeri, Sarawak) for the appellant
Ratanah Devi (Idris & Co) for the respondent

LOAD-DATE: 01/06/2008

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