Introduction

 [1]           If you are ever arrested or detained by the police in Malaysia, you may be asked to provide a urine sample. A positive result can lead to a charge under Section 15(1)(a) of the Dangerous Drugs Act 1952 (“DDA”).

[2]           While this may seem like a routine procedure, it is crucial to understand your rights and the legal steps that must be properly followed before the police can collect your urine sample.

 

Offence under Section 15(1)(a) of the DDA

 

[3]           Section 15(1)(a) of the DDA reads: –

“Any person who consumes, administers to himself or suffers any other person, contrary to section 14 to administer to him any dangerous drug specified in Parts III and IV of the First Schedule, shall be guilty of an offence against this Act and shall be liable on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding two years.”

[4]           In order to prove someone is guilty of an offence under Section 15(1)(a), the prosecution must establish two key elements[1]: –

• the accused administers the drugs to himself; or the accused suffers another person, contrary to Section 14 of the DDA, to administer to him the dangerous drugs, and
• that the urine of the accused is clinically tested and found to contain the drugs.

[5]           Therefore, the prosecution bears the burden of proving the essential elements of the charge, which can be summarised as follows: –

• whether the urine sample belongs to the accused;
• whether dangerous drugs were detected in the urine through testing conducted in accordance with Section 31A of the DDA; and
• whether the drug found in the urine of the accused is classified as dangerous drugs under Parts III and IV of the First Schedule of the DDA.

 

Presumption under Section 37 (k) of the DDA

[6]           Before we delve into the discussion of the procedure on how the urine sample to be obtained, it is crucial to look into the presumption under Section 37 (k) of the DDA which states: –

 

“If a person is charged for an offence of consuming a dangerous drugs or administering a dangerous drugs to himself or suffering any other person to administer a dangerous drug to him, and any dangerous drugs is found in the urine of the person charged as a result of a urine test conducted under Section 31A, the person shall be presumed, until contrary is proved, to have consumed the drug or to have administered the drug to himself or to have suffered any other person to administer the drugs to him in contravention of this Act or its regulations …”

 

[7]           It is clear that if a urine sample taken from a person is found to contain dangerous drugs listed under Parts III and IV of the First Schedule, then under Section 37(k) of the DDA, that person is deemed to have consumed those dangerous drugs in violation of the law. Nevertheless, the manner in which the urine sample is obtained must comply with Section 31A(1A) of the DDA.

 

First Issue – Who Is Allowed to Take Your Urine Sample?

 

The Law

 [8]           Under Section 31A(1A) of the DDA, the law states: –

“For the purpose of preservation of evidence, it shall be lawful for a police officer not below the rank of sergeant or an officer of customs to require an arrested person to provide a specimen of his urine for the purposes of an examination under subsection (1) if it is not practicable for the medical officer or the person who is acting in aid of or on the direction of a medical officer to obtain the specimen of the urine within a reasonable period.”

[9]           This means only a Sergeant or higher-ranking officer can legally request your urine sample. If a Corporal or lower-ranking officer makes the request, it is invalid under the law.

 

Case Study – Urine Sample Was Taken by a Corporal

[10]        In Aizuddin Syah bin Ahmad v Public Prosecutor[2], the accused was charged under Section 15(1)(a) of the DDA for drug consumption. His urine sample tested positive for amphetamine and methamphetamine. However, the sample was taken by a Corporal, not a Sergeant. The Court of Appeal ruled that this was a serious breach of Section 31A(1A). The law must be strictly followed in criminal cases. As a result, the urine sample was excluded from evidence. Without the sample, there was no proof of drug consumption, and the conviction was quashed.

 

Second Issue – Not practicable for Medical Officer to obtain the specimen of the urine within a reasonable period

 

The Law

 [11]        Under Section 31A(1A) of the DDA, the law states: –

 

“For the purpose of preservation of evidence, it shall be lawful for a police officer not below the rank of sergeant or an officer of customs to require an arrested person to provide a specimen of his urine for the purposes of an examination under subsection (1) if it is not practicable for the medical officer or the person who is acting in aid of or on the direction of a medical officer to obtain the specimen of the urine within a reasonable period.”

 

Case Law

[12]        The police officer shall show proof that he had taken necessary steps to request the medical officer to take the urine sample. Not only that. The police officer shall also show proof that the medical officer had informed him that it is not practicable for that medical officer or the person who is acting in his aid or under his direction to obtain the specimen of the urine within a reasonable period[3].

 

Third Issue – You must be under arrest before collection of the urine sample by the police

 

The Law

 [13]        Under Section 31A(1A) of the DDA, the law states: –

 

“For the purpose of preservation of evidence, it shall be lawful for a police officer not below the rank of sergeant or an officer of customs to require an arrested person to provide a specimen of his urine for the purposes of an examination under subsection (1) if it is not practicable for the medical officer or the person who is acting in aid of or on the direction of a medical officer to obtain the specimen of the urine within a reasonable period.”

 

[14]        To determine whether a person has been “arrested” for the purposes of Section 31A of the DDA must be assessed based on the facts and circumstances of each case as a whole[4].

 

“Arrest” under Section 37A of the DDA

In Public Prosecutor v. Lim Hock Boon (2009) 3 CLJ 430, the Federal Court held that “as to when is a person to be regarded as being under arrest for the purpose of Section 37A of the Act is a question of fact to be decided according to the circumstances of each case … An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when by words or conduct he makes it clear that he will if necessary, use force to prevent the individuals from going where he may want to go. It does not occur when he stops an individual to make inquiries …”

 

Case Study – Arrest Takes Place

[15]        In Pendakwa Raya lwn Mohd Safwan bin Husain[5], the accused, a police support officer, was suspected of drug use and approached by a narcotics team led by a Sub-Inspector. The officer informed him of the suspicion and instructed him to provide a urine sample. The accused complied and was escorted to the toilet for sample collection, which later tested positive for methamphetamine. The Court of Appeal held that although the accused appeared cooperative, his liberty was restricted and he was compelled to follow police instructions. The court emphasized that an arrest does not require physical restraint or formal words such as “you are under arrest”; it occurs when a person is placed under compulsion and submits to it. Based on the facts, the accused was effectively under arrest at the time he was instructed to provide the urine sample. The court rejected the distinction between “actual” and “constructive” arrest, stating that the key issue is whether an arrest occurred based on the overall circumstances of the case[6].

 

Case Study – No Arrest Takes Place

[16]        In Hissham bin Ahmad lwn Pendakwa Raya[7], the accused, a police corporal, was charged under Section 15(1)(a) of the DDA for self-administering methamphetamine and amphetamine. The fact revealed that while the accused was on duty at the Narcotics Criminal Investigation Division Office (JSJN) at IPD Seri Alam, he was approached by a JIPS IPK team to undergo a urine screening. However, there is uncertainty as to who actually performed the arrest on the accused before the urine sample to be taken and the screening conducted. The prosecution did not probe further to identify which officer was assigned to carry out the arrest. Therefore, the court grants the benefit of inference in favour of the accused.

[17]        Officers from Bukit Aman went to the accused’s home to bring him to the police headquarters for internal disciplinary inquiry but not for drug-related suspicion. At the office, the accused was instructed to provide a urine sample, which tested positive for dangerous drugs. He was only formally arrested after the urine test result was confirmed[8].

[18]        Another example from the Magistrate Court[9], the accused was initially arrested by the Commercial Crime Division for a separate offence and later brought to the Narcotics Division for urine testing. The urine sample tested positive, and only after this result was he formally arrested under the DDA. The Magistrate Court found that the accused was not legally arrested under the Dangerous Drugs Act at the time his urine sample was taken. The urine sample was taken before any drug-related arrest occurred, violating the requirement under Section 31A(1A), which only allows urine collection from a person already arrested for a drug offence. The Magistrate Court rejected the argument that the accused was under “constructive arrest,” stating that mere escorting to the toilet did not amount to legal arrest under the Act.

 

What You Should Do If Police Ask for Your Urine

[19]        If you are asked to provide a urine sample, follow these key steps to protect your rights and ensure the procedure is carried out lawfully: –

 

• Pay attention to who is making the request and keep detailed records. Note the officer’s name, rank, time, and location of the sample collection.
• Ask to see any written authority or explanation. You have the right to know why the sample is being requested.
• Remain calm and cooperative. Avoid resisting or arguing aggressively. If you believe something is wrong, you can raise the issue later in court through your lawyer.
• Contact your lawyer as soon as possible. If the correct procedure was not followed, your lawyer can challenge the admissibility of the evidence in court.

 

Conclusion

[20]        If the police fail to follow the law when collecting evidence, it can lead to a wrongful conviction being overturned. Knowing your rights and calmly asserting them can make all the difference.

 

Postscript

[21]        It is essential for the defence counsel to examine the documents[10] tendered in court concerning the ranking of the police officer involved in collecting the urine sample from the accused, and to verify that the officer’s rank is listed among those specified in the First Schedule of the Police Act 1967.

[22]        It is crucial for the defence counsel to ensure that the pathology report was handed over to the accused in compliance with the provisions of Section 399 of the Criminal Procedure Code[11].

[23]        Failure to state in the Pathology Report that amphetamine and methamphetamine are dangerous drugs as listed under the Dangerous Drugs Act 1952 is fatal and raises doubt and alternative inferences[12].

[24]        Urine sample taken from a person suspected for an offence under the DDA could be either in a single or two bottles[13]. However, failure to produce the bottles which contained the urine sample is fatal to the prosecution case[14].

[25]        The defence counsel to ensure that gas chromatography instrument is in good working order before the tests and analyses were carried out in accordance with reg 27(1) Weights and Measures Act 1972[15]. The prosecution must prove the exact weight of the methamphetamine because different weights lead to different punishments under the law. The chemist relied on electronic devices i.e. a digital scale and gas chromatography machines to weigh and analyse the drug, and these devices are considered “computers” under the Evidence Act. Because of that, the law requires either (1) a certificate under Section 90A to confirm the devices were working properly, or (2) testimony from the person responsible for maintaining the machines. In this case, the witness could not confirm that the devices were in good working condition, the responsible officer was not called to testify, and no Section 90A certificate was produced. Without any evidence that the machines were functioning properly, the court could not assume their accuracy, meaning the prosecution failed to prove the true weight of the drug which is an essential element of the charge, making the case fatally flawed.

[26]        If the accused is convicted under Section 15 of the DDA, the accused shall be order to undergo supervision under Section 38B(1) of the DDA[16].

 

 

[1] Public Prosecutor v Chan Kam Leong [1989] 1 MLJ 326 at page 327

[2] Aizuddin Syah bin Ahmad v Public Prosecutor [2018] 5 MLJ 220, COA

[3] PP v Samsul Arifin [2019] 12 MLJ 581, HC, see also Aizuddin Syah bin Ahmad v Public Prosecutor [2018] 5 MLJ 220, COA

[4] Pendakwa Raya lwn Mohd Safwan bin Husain [2017] 5 MLJ 255, COA

[5] Pendakwa Raya lwn Mohd Safwan bin Husain [2017] 5 MLJ 255, COA

[6] See also Ahmad Syahir bin Mohd Fauzi lwn Pendakwa Raya [2023] MLJU 2272, COA whereby the Court of Appeal explicitly recognized and applied the concept of constructive arrest.

[7] Hissham bin Ahmad lwn Pendakwa Raya [2025] MLJU 244, HC

[8] Hasrulfahmy bin Samsuddin v Pendakwa Raya [2017] MLJU 86, HC at paragraph 16

[9] Pendakwa Raya lwn Mohd Najib bin Mohamed Sidek dan satu lagi kes [2025] MLJU 2206, Magistrate Court

 

[10] i.e. Laporan Polis, Borang Serah Menyerah, Borang UPD etc.

[11] Lans Koperal/s Mohd Rizal bin Ramli lwn Pendakwa Raya [2023] MLJU 2613, HC which referred to the Supreme Court case of Ooi Lean Chai v. PP [1991] 2 CLJ 1304.

[12] Hasrulfahmy bin Samsuddin v Pendakwa Raya [2017] MLJU 86, HC

[13] Pendakwa Raya lwn Rosman bin Saprey dan satu lagi rayuan [2018] 4 MLJ 139, COA

[14] PP v Azahari bin Abdul Wahab [2009] MLJU 898, HC

[15] Mohamad Eliyas bin Suib v Public Prosecutor [2022] 7 MLJ 335, HC

[16] Section 38B(1) of the DDA reads “Where a person is found guilty of an offence under section 15, he shall, immediately after having undergone the punishment imposed upon him in respect thereof, undergo supervision by an officer as defined under section 2 of the Drug Dependants (Treatment and Rehabilitation) Act 1983 for a period of not less than two and not more than three years as may be determined by the court.”