Do you have a friend or family member who has been charged with drug trafficking under Section 39B of the Dangerous Drugs Act 1952?Are you currently waiting for the chemist (Kimia) report to be completed and wondering what happens next?
In any drug case in Malaysia, particularly a drug trafficking charge under Section 39B, the chemist report is one of the most important documents in the entire prosecution. Many lawyers often describe it as the backbone of the case, because it confirms whether the substance seized by the police is actually a dangerous drug and what its exact weight is.In many situations, the chemist report can make or break the prosecution’s case.
Once the chemist report is ready, the case can move forward in several different directions depending on what the report states.
The Chemist Report – The Backbone of a Drug Case
The chemist report is prepared by Jabatan Kimia Malaysia, where government chemists analyse the substance seized by the police during the investigation.
The report confirms:
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Whether the seized substance is actually a dangerous drug
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The type of drug
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The exact weight of the drug
This information is crucial because the type and weight of the drug determine the applicable offence under the Dangerous Drugs Act 1952.
Who Knows About the Chemist Report First?
In most cases, the Investigation Officer (IO) will know that the chemist report is ready before the court is informed.
This is because once the analysis is completed, the chemist sends the report to the Investigation Officer first, and it will be kept in the Investigation Paper (IP).
For example:
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Your previous court mention date was 1 March
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Your next mention date in court is 10 April
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The chemist report is completed on 20 March
On 20 March, the chemist report will already be sent to the Investigation Officer, even though the court will only officially be informed on 10 April, which is the next court mention date.
This means that technically the IO will know the result earlier, although nothing can formally happen in court until the next mention date.
What Happens in Court Once the Chemist Report Is Ready?
On the next court date, the Deputy Public Prosecutor (DPP) will inform the Magistrate that the chemist report has been completed.
The DPP will also inform the court what the chemist report states, particularly regarding the type and weight of the drug.
From here, several possible scenarios may arise.
Possible Scenario 1: The Chemist Report Finds That the Substance Is Not a Drug
In rare cases, the chemist report may state that upon analysis, the seized substance is not a dangerous drug at all.
If this happens, the prosecution will not be able to proceed with the drug trafficking charge.
In such circumstances, the accused person may be acquitted and discharged, and the case effectively comes to an end.
Possible Scenario 2: The Charge Remains Under Section 39B (Drug Trafficking)
In many drug trafficking cases, particularly where large quantities of drugs are seized, the chemist report will confirm that the weight of the drug supports a charge under Section 39B.
This commonly happens in cases involving:
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Kilograms of drugs
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Large trafficking operations
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Significant quantities that trigger statutory presumptions of trafficking
However, even if the chemist report confirms a Section 39B offence, the case will not immediately be transferred to the High Court.
The prosecution must first obtain the consent of the Public Prosecutor, commonly referred to in court as “Izin”.
Consent of the Public Prosecutor (“Izin”)
Under Malaysian law, a prosecution for drug trafficking cannot proceed without the consent of the Public Prosecutor.
This requirement is found in Section 39B(3) of the Dangerous Drugs Act 1952, which provides:
“A prosecution under this section shall not be instituted except by or with the consent of the Public
Prosecutor:Provided that a person may be arrested, or a warrant for his arrest may be issued and executed,and any such person may be remanded in custody notwithstanding that the consent of the PublicProsecutor to the institution of a prosecution for the offence has not been obtained, but the case shall not be further prosecuted until the consent has been obtained.”
Because of this requirement, once the chemist report confirms a Section 39B offence, the DPP will normally ask for another mention date in the Magistrate Court to obtain the consent of the Public Prosecutor.
What Happens on the Next Court Date?
On the next mention date, the written consent of the Public Prosecutor will be produced in court.
This document is usually signed by the Pengarah Pendakwaan Negeri (PPN), who is the head prosecutor of the state.
Once the consent document has been produced and served on the defence lawyer, the Magistrate will normally record that the case is transferred to the High Court.
In court, the Magistrate will typically say:
“Kes dipindah ke Mahkamah Tinggi.”
This means that the drug trafficking case will now proceed in the High Court of the relevant jurisdiction.
Possible Scenario 3: The Charge Is Reduced to a Lesser Offence
In some cases, the chemist report may show that the drug weight is lower than what was initially suspected.
If this happens, the prosecution may decide to amend the charge to a lesser offence, such as:
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Section 39A(2) – possession of drugs above certain weight thresholds
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Section 39A(1) – possession of smaller quantities
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Section 12 – possession of dangerous drugs
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Section 6 – possession of dangerous drugs
The court in which the case proceeds will depend on the section under which the accused is charged.
For example:
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Section 12, Section 6, and Section 39A(1) cases usually remain in the Magistrate Court
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Section 39A(2) cases are typically heard in the Sessions Court
If the charge is amended to Section 39A(2), the DPP will usually apply for the Magistrate Court case to be Discharged Not Amounting to an Acquittal (DNAA).
The accused person will then be recharged in the Sessions Court, where:
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A new charge will be read
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A plea will be recorded
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The case will proceed entirely in the Sessions Court
What Happens After the Case Is Transferred to the High Court?
Once the Magistrate Court records that the case has been transferred to the High Court, the defence lawyer must wait for the first High Court mention date to be fixed.
The court system will then generate an OTP (Order to Produce) which will be sent to the Prisons Department.
The OTP ensures that the accused person will be brought from prison to the High Court on the new mention date.
From the last Magistrate Court date to the first High Court mention, the waiting period is usually around:
2 weeks to 5 weeks, depending on the court schedule.
Conclusion
In a Section 39B drug trafficking case, the chemist report is a crucial turning point in the prosecution.
Once the report is ready, the case may take several possible directions:
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The accused may be acquitted if the substance is not a drug
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The charge may be reduced to a lesser offence
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The charge may remain under Section 39B, after which the prosecution must obtain the consent of the Public Prosecutor before the case is transferred to the High Court
Understanding these stages helps accused persons and their families better understand what to expect in the court process after the chemist report is completed.
About the Author
Sivahnanthan Ragava is a criminal defence lawyer based in Kuala Lumpur who specialises in serious criminal cases, including drug trafficking offences under Section 39B of the Dangerous Drugs Act.He regularly represents accused persons in drug trafficking cases before the High Court in Kuala Lumpur and Selangor.
If you or a family member has been arrested or charged with a drug trafficking offence, it is important to seek legal advice immediately.Sivahnanthan Ragava is available to be contacted at any time, including outside normal office hours. Unlike many law firms that close at 5pm, urgent criminal cases can arise at any time of the day or night.If you require an experienced drug trafficking lawyer or Section 39B lawyer in Kuala Lumpur or Selangor, you may contact Sivahnanthan Ragava directly for legal assistance.
