Judge Collin Lawrence Sequerah, in allowing Saiful’s appeal, said police collected only one sample of his urine for analysis.
“The appellant has been deprived of two samples of urine and this strict procedural guideline must be complied with,” he said.
Saiful was accused of using THC-type drugs at a hotel here at 2.05am on Jan 5, 2019.
On June 24 last year, magistrate Mohamad Aizat Abdul Rahim sentenced him to eight months’ jail after finding that the defence had failed to raise reasonable doubt in the prosecution’s case.
The court also ordered him to serve his jail term from June 24 last year and to undergo two years’ surveillance under the National Anti-Drug Agency after completing the sentence.
Saiful was freed on bail of RM9,000 pending the outcome of his appeal.
Sequerah said police must follow the Inspector-General of Police’s Standing Orders and the health ministry’s guidelines on urine collection as both carry the force of law.
He said Saiful had been denied a fair trial as the strict procedural compliance under Articles 5 and 8 of the Federal Constitution had not been followed.
“The appellant did not get what procedural law prescribes. He lost the chance open to him,” he said.
Sequerah said there were good and compelling reasons why two samples must be taken, as the first test by police was only presumptive while the analysis by the chemistry department was a confirmation test.
“The provision of only one bottle (sample) leaves room for possible contamination of the sample which may impact upon the confirmation test,” he said.
He said the law must be strictly construed as Saiful’s charge and its consequences were penal in nature.
Sequerah said provisions in the Dangerous Drugs Act state that a person is presumed to have consumed or administered dangerous drugs until proven otherwise.
“The presumption is only activated after the outcome of the second test on the sample,” he said, adding that the test must be conducted so that the integrity of the sample is not compromised.
He said Saiful was placed on a higher standard – on the balance of probabilities – to rebut the presumption.
“I find the failure of the police to follow the guidelines, where two bottles of urine samples must be collected, rendered the conviction flawed,” he said.
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