Justice Nurulhuda Noraini Nor held that the prosecution’s decision to prefer the same charge against Cheng Ruey Hoe, 46, on Dec 25 last year, after he was granted a discharge not amounting to an acquittal (DNAA), was bad in law.
“The case is remitted to the sessions court to allow all evidence adduced by prosecution witnesses during the first trial to be assessed, as required under Section 173(c) of the Criminal Procedure Code,” she said in her 22-page judgment allowing Cheng’s motion.
Nurulhuda said it was not the absolute right of the public prosecutor to prefer a fresh charge, and the court could not disregard evidence previously given by prosecution witnesses so as to create the impression that no witnesses had been called.
She said the sessions court would also determine whether the first charge against Cheng was baseless or the prosecution had established a prima facie case.
Cheng was charged with drug possession in 2023 and remained in custody, as the offence under Section 12(2) of the Dangerous Drugs Act, punishable under Section 39A(2) of the same Act, is non-bailable.
He was accused of possessing 521.9g of cocaine at a hotel here on Sept 9, 2023.
A series of adjournments
The sessions court granted Cheng a DNAA after the prosecution was unprepared to proceed with the trial on the dates fixed by the trial judge, from Aug 18 to 22 last year.
Proceedings on the first day were adjourned after the police photographer encountered problems with a compact disc. On the second and third days, the prosecution called the officer who led the raid and the chemist to testify.
On the fourth day, the trial was adjourned after a witness contracted chicken pox, while on the fifth day, the officer who arrested Cheng took the stand and was examined.
The case was then adjourned to Oct 16 and 17, 2025, with the trial judge directing the prosecution to conclude its case.
However, on Oct 16, the court was informed that the deputy public prosecutor (DPP) handling the case was on medical leave.
The court then directed the DPP to file the medical certificate and fixed Dec 23 and 24 for the trial to resume, making clear that no further adjournments would be granted.
On Dec 23, another DPP, appearing on behalf of the conducting officer, informed the court that his colleague was on emergency leave. The court noted then that the medical certificate had yet to be submitted.
At that juncture, the trial judge granted Cheng a DNAA after hearing submissions from both parties.
However, Cheng was charged before another sessions court with the same offence that same day, prompting him to file the motion before the High Court on grounds that the prosecution had abused the court process.
Lawyers Gan Hsien Yang, Raqib Osman, and Anastacia Ezral appeared for Cheng, while deputy public prosecutors Haslina Ismail and Noor Syafina Radzuan represented the prosecution.