KOTA KINABALU: A 34 years old local Dusun man escaped life imprisonment after the Sessions Court acquitted and discharged him of drugs possession.

Sessions Court Judge Ainul Shahrin Mohamad made the decision on Elton George Junior Gaban after finding that the prosecution had failed to prove a prima facie case against him under section 39A(2) of the Dangerous Drugs Act 1952.

"During the prosecution case, the defence had challenged that the accused was not wearing the blue jacket, P2. When such challenge is raised, the prosecution although has the power to call witnesses, there was no corroboration of the testimony of PW2 (the police raiding officer) that the accused was in fact wearing the jacket," said Judge Ainul.

Counsel Mohd Azhier Farhan bin Arisin earlier on in his submission for the defence argued that the prosecution offered no response to rebut or disprove the defence's version of the blue jacket.

"The prosecution sole reliance on PW2 cannot be taken as irrefutable evidence to show the accused worn the blue jacket. Challenge was made and PW2's evidence is thus refutable." 

Counsel Azhier further contended that "There were no other witnesses were called to corroborate the evidence of PW2 (the raiding officer) despite the fact that the raiding party was joined by six other police officers. Failure to call those witnesses shall be considered as material failure and entitled this court to invoke adverse inference under section 114(g) of the Evidence Act 1950 against the prosecution. The prosecution left with no tangible evidence to associate the blue jacket -- where the drugs were found inside -- with the accused."

"If the Prosecution cannot lead clear evidence that the accused was wearing the blue jacket, how else can the custody and control of the proscribed drugs be associated with the accused?" asked Azhier.

Elton was previously charged under section 6 of the Dangerous Drugs Act 1952 and punishable under section 39A(2) of the same act for possessing 63.40 gram of cannabis. The punishment for the offence carries a maximum penalty of life imprisonment and not less than ten strokes of whipping.

During the trial, the Court heard that there were two different sets of evidence adduced by the prosecution as to the weight of the drugs. The defence argued the gross weight of the drugs recorded by the Raiding Officer and Investigating Officer was 63.40 gram, whilst the evidence by the chemist revealed the gross weight of the drugs was 62.32 gram. Azhier argued the discrepancy would mean by the time the drugs reached at the hands of the chemist, the weight had decreased by 1.17 gram.

"No explanation was offered by the Prosecution as to the substantial difference in the gross weight of the drugs. In fact, the gross weight of the drugs stated in the charge sheet runs contrary to the evidence by PW4 which stated the gross weight of the drugs is 62.32 gram."

"The Defence submits the unexplained discrepancy in the drugs’ weight goes to the identity of the seized drugs. With the discrepancy left unexplained, this created a reasonable doubt as to the identity of the drug exhibit." Azhier told the court.

Earlier on, the prosecution in their last attempt to quash the doubt, offered to tender an amended charge to reflect the actual weight. However, it was objected by the Defence on ground that the defence should be given the full benefits of doubt as to the late submission of the amended charge which was done after the prosecution had close its case.

Ruling on that issue, Judge Ainul made the finding that "the court was under the impression that the weight of the drug was purposely left as gross weight at 63.40 gram. The defence must be given the fill disclosure of the charge preferred against the accused for the defence to prepare a complete defence. On reading the submission by the prosecution, this court found that there was an amended charge but the same was not tendered to the court." 

"Based on the testimonies of the prosecution witnesses, exhibits, submissions by both parties, the above reasons and the entire case, this court finds that the prosecution had failed to prove a prima facie case against the accused. The accused is hereby acquitted and discharged without calling the defence." Judge Ainul Shahrin ruled.

Elton was represented by Counsel Mohd Azhier Farhan bin Arisin and Lindsay Michael, whilst Deputy Public Prosecutor Hafizah Abdullah appeared for the prosecution.