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MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 56 ENGLISH

Alexis Zogbelemou v Public Prosecutor
Suit Number: Criminal Appeal No. B-05(M)-42-01/2016  

JUDGMENT

Introduction

[1] The appellant, a Guinea national, was charged for trafficking in dangerous drugs, to wit 824.1 grams of methamphetamine, an offence punishable under section 39B(2) of the Dangerous Drugs Act 1952 (“DDA 1952”) in the High Court of Shah Alam, Selangor.

[2] At the end of the prosecution’s case, the learned trial Judge held that the prosecution had failed to establish a prima facie case against the appellant. The appellant was therefore acquitted and discharged without his defence being called.

[3] Disenchanted with the decision, the Public Prosecutor (“PP”) had filed an appeal to the Court of Appeal and the Court ordered the defence of the appellant to be called on the original charge. The High Court, upon hearing the appellant’s evidence convicted and sentenced the appellant to the mandatory death penalty.

[4] Dissatisfied with the decision of the High Court, the appellant approached this Court for reversal of the impugned decision. Hence, this appeal before us.

[5] We heard the appeal on 19.5.2017 and at the conclusion of oral submissions of the parties, we announced our conclusion which was that the appellant’s appeal would be dismissed and the decision of the High Court would be affirmed.

[6] We now give the detailed reasons for our decision.

The Charge

[7] The charge preferred against the appellant read as follows-

“That you, from the 20th February 2012 to 1st March 2012 in between at about 4.00 am to 12.30 pm, at the Ward 6C, Room 28, Level 6, Serdang Hospital, Jalan Puchong, in the District of Kajang, in the State of Selangor Darul Ehsan, did traffic in dangerous drug, to wit 824.1 grams of methamphetamine and that you have thereby committed an offence under section 39(B)(1)(a) of the dangerous Drugs Act 1952 and punishable under section 39B(2) of the same.”.

The Prosecution’s Case

[8] On 28.2.1012 at 8.50 pm., the appellant was stopped at the Kuala Lumpur International Airport (KLIA) by Mohd Sufian bin Zakaria (SP6) and Azhar bin Ishak and brought to the Passenger Examination Unit 1 (CPPI) Office located at KLIA for further examination.

[9] The appellant was told that his body needs to be scanned. After scanning, it was found that there were foreign objects in his stomach. The appellant was then handed over to Zaini bin Taib, the Investigating Officer (SP10), together with the items seized from the baggage.

[10] SP10 took the appellant to Serdang Hospital where he was warded.

[11] During the period he was warded, at various times, from 29.2.2012 to 1.3.2012, the appellant had excreted 75 capsules containing substances believed to be illicit drugs. The capsules were seized and marked by SP7, SP8 and SP9 and handed over to the Investigating Officer.

[12] The 75 capsules were sent to the Chemistry Department and the chemist, Suhara bin Ismail (SP2), confirmed that the substance contained in the capsules was methamphetamine weighing 824.1 grams.

[13] The investigation revealed that the appellant had embarked on his journey by using Kenyan Airways, travelling from Yaounde to Nairobi. Using the same airways, he then travelled from Nairobi to Bangkok. From Bangkok to Kuala Lumpur, the appellant travelled on Thai Airways. The appellant had also booked his accommodation at My Hotel.

[14] As we have alluded to earlier, at the end of the prosecution’s case, the appellant was acquitted and discharged without his defence being called.

[15] The PP appealed to the Court of Appeal. Upon hearing the appeal, the Court had unanimously allowed the appeal and directed the High Court to call upon the defence of the appellant for the same charge.

The Defence’s Case

[16] The appellant elected to give evidence under oath and he is the sole witness giving evidence for the defence.

[17] The learned trial Judge summarised the defence as follows (See pages 12-13 AR Jilid I):-

“5. The gist of the defence of the accused was that he was duped by a person named David to swallow the capsules as a method to keep the capsules containing medicine to remain clean. The incentive of bringing the capsules was a promise from David and also monetary advance for him to travel first to Malaysia and then to Japan to advance his career in football. It was the evidence of the accused he played amateur football in his home country Cameroon and he aspired to be a professional footballer in Japan. He was also convinced to take up the offer of David by a friend of his by the name of Uthman who had already started playing in Japan. In trusting the words of Uthman the accused had no reason to be suspicious of David’s motive.

6. In short what the accused wanted to convey to the Court that he had no knowledge that the capsules found in his abdomen contained illicit drugs. In other words he was an innocent carrier of the drugs or in the common term a drug mule.”.

[18] The learned trial Judge found that the appellant had failed to raise a reasonable doubt in the prosecution’s case and consequently found the appellant guilty of the charge and convicted and sentenced him to death.

The Appeal

[19] Learned counsel for the appellant assailed the impugned decision on two grounds-

(a) The procedure of intrusive search in the Fourth Schedule of the Criminal Procedure Court (“CPC”) was not adhered to by the officers; and

(b) The identities of the exhibits are doubtful.

[20] We will address the grounds advanced by learned counsel for the appellant in turn.

Discussion and Decision

[21] Learned counsel for the appellant submitted that the intrusive search did not comply with statutory requirement as stipulated under the CPC.

[22] The evidence on record revealed that no medical officer or hospital assistant conducted the intrusive search of the appellant. Paragraph 13(2) of the Fourth Schedule of the CPC states as follows:-

“The intrusive search shall only be conducted by a Government Medical Officer or a Medical Officer, or by any hospital assistant or a registered nurse acting under the Government Medical Officer or a Medical Officer’s discretion.”.

[23] Learned counsel further submitted that during cross examination of SP7, SP8 and SP9, the witnesses confirmed that they and their team were the only people present in the ward with the appellant and nobody else was present during the retrieving of the exhibits. SP10 also said that he was not at all the time present in the ward but had gone in to check on the team on duty and said only custom officers were present in the ward at all times. SP5, Dr. Khang Nan Chuan, also stated in evidence that there was no specific doctor or medical staff dedicated to the appellant when he was warded in the hospital.

[24] Additionally, it was contended by learned counsel that SP7, SP8 and SP9 stated under cross examination that there were no letter of consent or approval prior to conducting the intrusive search. Learned counsel posited that although paragraph 14 of the Fourth Schedule does not state that there needs a letter but there must be an approval by the Office in Charge of the Police District or an officer with similar ranking in the Customs Department.

[25] Paragraph 14 of the Fourth Schedule is in the following terms:-

“14. Authorization to conduct intrusive search

(1) An intrusive search shall not be conducted, without the prior approval of an Officer in charge of the Police District or in the case of any other enforcement agency, by the office whose authority is equivalent of an Officer in charge of the Police District.

(2) The approval under subparagraph (1) shall be recorded in the station diary and in the case of other enforcement agencies, such approval shall be recorded in a proper book of record.

(3) A government Medical Officer or a Medical Officer after being served with a copy of the request for an intrusive search containing particulars of the officer under subsection (1) shall, as soon as possible, conduct the intrusive search or direct any hospital assistant or registered nurse to conduct the search.”.

[26] Learned counsel concluded that the non-compliance with these provisions is fatal to the prosecution’s case.

[27] With respect, we are of the view that the submission is misconceived as it is not supported by authority.

[28] This is not a novel point which has not been raised, argued or dealt with before by our courts. The very point was exhaustively dealt by this Court in Emmanuel James Kalu v P.P [2017] 1 LNS 385, and we reproduce the relevant part of the judgment in extenso hereunder:-

“[16] Germane to issues under consideration, the law on search of an arrested person is provided in section 20A of the CPC. Section 20A of the CPC states as follows:

“(1) Any search of a person shall comply with the procedure on body search as specified in the Fourth Schedule of this Code”

The Fourth Schedule of the CPC (the schedule) specifies in detail the manners, the circumstances, and purposes for which the police or any other law enforcement agencies may carry out body search on a person arrested. There are four (4) types of body search listed in the Schedule which are as follows:

“2. There shall be four types of body search-

(a) pat down search;

(b) strip search;

(c) intimate search; and

(d) intrusive search.”

[17] For reasons which we will explain hereafter, it is apposite to state briefly the meaning of each and every type of the aforementioned body search. Strips to essentials:

“(a) Pat Down Search-

“4.(1) Pat down search means the act of searching the outer clothing of a person arrested which is to be conducted by quickly running the hands over the outer garments of the person arrested.

(b) Strip search-

“7.(1) A strip search means a search involving the removal of some part of outer clothings or removal of all the person arrested’s clothing and during the search, the person arrested may be allowed to remain partly clothed by allowing him to dress his upper body before removing items of clothing from his lower body." (Emphasis added)

(c) Intimate search-

“10.(1) An intimate search means a search which consists of the physical examination of a person arrested's body orifices other than the mouth, nose and ears.”

(d) Intrusive search-

“13.(1) An intrusive search means a search involving the examination of a person arrested to determine the existence of any object, evidence, weapon or contraband inside the body or body orifices of the person and includes the removal of such object, evidence, weapon or contraband.

(2) The intrusive search shall only be conducted by a Government Medical Officer, or by any hospital assistant or a registered nurse acting under the Government Medical Officer or a Medical Officer's direction." (Emphasis added)

[18] It is to be noted that paragraph 13 (1) of the Schedule contains the words "means" and "includes" at the same time. This is significant. NS Bindra's Interpretation of Statutes, Tenth Ed, at page 1646 had this to say:

“It is well-known that the legislature uses the word ‘mean’ where it wants to exhaust the significance of the term 'defined' and the word 'include' where it intends that while the term defined should retain its ordinary meaning its scope should be widened by specific enumeration of certain matters which its ordinary meaning may or may not comprise so as to make the definition enumerative but not exhaustive (Province of Bengal v. Hingul Kumari AIR 1946 Cal 217).”

And on the word ‘means’, it says this at page 1674:

“Generally, when definition of a word begins with 'means' it is indicative of the fact that the meaning of the word has been restricted; that is to say, it would not mean anything else but what has been indicated in the definition itself.”

Hence, when the words “means” and “includes” are used together in a legal definition, whatever is to be included forms part of the definition. However, when the first part of the definition uses the expression ‘means’ and the second part uses the expression 'includes', the inclusive part cannot prevent the main provision from having its natural meaning (NS Bindra's Interpretation of Statutes, supra, page 1646). Flowing from these principles, paragraph 13 (1) contains two limbs, that is to say:

(a) the examination of a person arrested to determine the existence of any object, evidence, weapon or contraband inside the body or body orifices of the person (1st limb); and

(b) the removal of such object, evidence, weapon or contraband (2nd limb).

The 1st limb confines the examination of a person arrested to determine the existence of any object, evidence, weapon or contraband (here the capsules containing the drugs) inside the body or body orifice of the person. This is the primary meaning. If not because of the word 'includes' in its definition, the removal of such object (capsules) does not fall within the restrictive meaning of intrusive search. But with the use of the word 'includes' the meaning is now extended to include the 2nd limb. For that part to apply, the act must be an act of removing and no others. This is imperative.

[19] What is then the meaning of 'removal', and its parameters? 'Removal' is not defined anywhere in the CPC. In this regard we agreed in toto with the learned DPP's submission when he submitted as follows:

“15. ‘Removal’ has been defined by The Concise Oxford Dictionary, 11th Edition as "the act taking away from the place or position occupied". While Black's Law Dictionary defines it as "the transfer or moving of a person or thing from one location, position, or residence to another”.

“14. From the definition stated above, the word "removal" strongly indicates the requirement of "positive action". In other words, an effort has to be made in order for it to be considered a ‘removal’.”

[20] In addition, we would further say that the above proposition is justified by the used of the same word in the definition of strip search in paragraph 7 (1) of the Schedule. The word 'removal' therein connotes a positive and affirmative act of taking away or removing of items (clothing and items from clothing). It is to be noted that the definition uses the word 'removal' and not 'recovery'. This is again significant because, as alluded to above, when the same word or expression is used in a statute, there is a presumption that it is used in the same sense throughout unless it is stated otherwise (See: NS Bindra's Interpretation of Statutes, 10th Ed., at page 716-717). To give an illustration, the impugned drug may be recovered in the ordinary way i.e passing in excreta and recovered from the excreted feces, (as the learned DPP called it a passive act of waiting), or the drug may be removed by operation or otherwise in order to take it out of the intestine e.g in a situation of rupture or other forced act (positive act). Looking at it from this perspective, we were of the considered view that removing a contraband (here capsules) as part of an intrusive search does not embrace a situation where the contraband is recovered in an ordinary way i.e by a natural bowel movement without any medical intervention.”.

[29] Since the search in this instant appeal is not an intrusive search, paragraph 13(1) does not apply and therefore, there is no issue of non-compliance of paragraph 13(1).

[30] The only issue remaining for our consideration is whether there is a break in the chain of evidence regarding the exhibits.

[31] Learned counsel submitted that all the witnesses who retrieved the impugned excreted drugs did not explain where they kept the drugs after retrieval before marking them and before handing them to SP10, the investigating officer. Further, no search lists issued. As such, the identity of the exhibits is in question.

[32] We have scrutinized the evidence on record and we were satisfied that the drugs retrieved by excretion from the appellant were properly handled by the relevant witnesses before they were sent to the chemist.

[33] In Gunalan Ramachandran & Ors v Public Prosecutor [2004] 4 CLJ 551, this Court had this to say:-

“What has to be proved is that it is the substance that was recovered that was analysed by the chemist and found to be heroin, cannabis etc, and it is for the trafficking of that same substance that the accused is charged with.

...

The proof of the chain of evidence is only a method of proving that fact. The fact that there is “a gap”, does not necessarily mean that that fact is not proved. It depends on the facts and circumstances of each case. There may be a gap in the chain of evidence. But, if for example, during that “gap” the exhibits are sealed, numbered with identification numbers, there is no evidence of tampering, there is nothing that would give rise to a doubt that that exhibit is the exhibit that was recovered in that case and that was analysed by the chemist, the fact that there is a gap, in the circumstances of the case, may not give rise to any doubt of that fact.”.

[34] It is pertinent to note that the law does not require that each and every officer who had handled the exhibits to be called. In Su Ah Ping v P.P [1980] 1 MLJ 76, Suffian L P said-

“The complaint before us was not that there had been no proof that the exhibits were serviceable, but simply that there was a "break in the chain of evidence", and the prosecution should have called as witnesses all the officers through whose hands the exhibits passed from Inspector Takbir to the armourer and back to the Inspector. We do not think there is merit in this point. The question was whether the exhibits the Inspector produced were the guns and ammunition he found at the scene, and as when he produced them as those very guns and ammunition there was no objection by the defence, it would have been a waste of judicial time to call all the intervening handlers. In our experience much judicial time is spent unnecessarily, notably in subordinate courts, in ensuring no break in the chain of evidence. In our judgment, if the officer who picked up an object at the scene produced it and identified it as that very object, that is enough, and there is no need to call every other officer who handled it.”.

[35] Let us now examine the facts relating to the chain of custody of the impugned drugs. The material evidence on this issue are the evidence of PW7, PW8, PW9 and PW10. PW8 testified that on 28.2.2012, at about 4.00 am, the appellant excreted 17 capsules and PW8 marked them as “A1-A17” respectively. At about 9.00 am on the same day, the appellant excreted 10 capsules and SP8 marked them as “A18-A27” respectively.

[36] On 29.7.2012, at about 4.50 pm, the appellant excreted 13 capsules and PW9 marked them “A28-A40” respectively. At about 7.15 pm, on the same day, the appellant excreted 9 capsules and SP9 marked them as “A41-A49” respectively. At about 8.50 pm on the same day, the appellant excreted 2 capsules and SP9 marked them as “A50-A51” respectively. At about 10.15pm, the appellant excreted 3 capsules and SP7 marked them as “A52-A53” respectively and on 1.3.2012, at about 12.01am, the appellant excreted 2 capsules and SP6 marked them as “A55-A56” respectively.

[37] SP7 testified that on 1.3.2012, at about 1.30 am, the appellant excreted 12 capsules and SP7 marked them as “A57-A68” respectively and at about 3.30 am on the same day, the appellant excreted 5 capsules and SP7 marked them as “A69-A73” respectively.

[38] SP6 further testified that on 13.2.2012, at about 12.30 noon, the appellant excreted 2 capsules and SP9 marked them as “A74-A75" respectively.

[39] All the capsules were handed over to SP10, the Investigating Officer and were sent to the Chemistry Department for analysis.

[40] SP7, SP8, SP9 and SP10 also had positively identified during the trial all the said capsules based on the markings that they made on the capsules.

[41] From these testimonies, the prosecution established that they had the custody of the impugned drugs from the moment they were excreted by the appellant, and up to the time the impugned drugs were sent to the Chemistry Department for analysis. The relevant officers also identified the impugned drugs with certainty where they were presented in Court.

[42] There was no conflicting testimonies or glaring inconsistencies concerning the weight, description, packing and marking of the exhibits. The inconsistencies of the relevant witnesses regarding the handling of the impugned drugs, if any, is only a minor one and is not fatal the prosecution’s case.

[43] To the unprejudiced mind, the testimonies showed without a reasonable doubt that the drugs excreted by the appellant were the same one analyzed by the Chemist and produced in Court. In short, there is no question as to the identities of the impugned drugs.

Conclusion

[44] For the foregoing reasons, we, therefore, has no hesitation in dismissing the appeal and affirming the conviction and the death sentence handed down by the learned trial Judge. Accordingly, we dismissed the appeal.

Dated: 23rd February 2018

sgd.

DATO’ SETIA MOHD ZAWAWI SALLEH
Judge
Court of Appeal
Malaysia

COUNSEL

For the Appellant: Hasnan Hamzah, Tetuan Hasnan Hamzah, No. 29B, Jalan Sarikei, Off Jalan Pahang, 53000 Kuala Lumpur

For the Respondent: Aslinda Ahad, Deputy Public Prosecutor, Appellate and Trial Division, Attorney General’s Chambers, Precinct 4, Persiaran Perdana, 62100 Putrajaya

Legislation referred to:

Criminal Procedure Code, Schedule 4

Dangerous Drugs Act 1952, Section 39B(2)

Judgments referred to:

Emmanuel James Kalu v P.P [2017] 1 LNS 385

Gunalan Ramachandran & Ors v Public Prosecutor [2004] 4 CLJ 551

Su Ah Ping v P.P [1980] 1 MLJ 76

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