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[2018] MYCA 41 ENGLISH

Chukwudi Okonkwo v Public Prosecutor
Suit Number: Criminal Appeal No. B-05(M)-323-12/2015 

Criminal Law – Trafficking in dangerous drugs - Dangerous Drugs Act 1952 – Mandatory death sentence – Appeal

Criminal Law – Evidence – Whether there were apparent discrepancies in the testimonies of the prosecution witnesses in relation to the description of the form and colour of the impugned drugs – Whether the differential description by the witnesses of the form of the impugned drugs a ground to suggest the presence of a gap in the chain of evidence relating to the identity of the impugned drugs

 JUDGMENT

[1] This is the appellant’s appeal against his conviction and the death sentence meted out against him by the Court below in respect of the following offence:

"Bahawa kamu pada 3 November 2011, jam lebih kurang 8.00 malam di Cawangan Pemeriksaan Penumpang 1 (CPP1), Balai Ketibaan Antarabangsa, Terminal Utama Lapangan Terbang Antarabangsa Kuala Lumpur (KLIA), di dalam Daerah Sepang, dalam Negeri Selangor Darul Ehsan, telah mengedar dadah berbahaya iaitu Methamphetamine seberat 404.5 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952, yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama”.

[2] We heard the appellant’s appeal and dismissed the same upon the grounds enumerated below.

The Case For The Prosecution

[3] The appellant, a Nigerian national who had arrived at Kuala Lumpur International Airport (KLIA) at about 7.00 p.m on 3.11.2011, had his luggage exhibit P8 ( with rollers on it) thoroughly examined by Customs officers led by SP-8 (Pegawai Kastam Tinggi, Raja Mahat bin Raja Ibrahim) when the said luggage upon being scanned, showed suspicious images. The photographs of the said luggage are at pp. 34 to 38 of Jilid 3, Rekod Rayuan (‘RR’).

[4] SP-7 (Pegawai Kastam Muhammad Lukman bin Mahat) was instructed by SP-8 to assist him in the investigation of the said luggage. SP-7 testified, at p.13, Jilid 2, RR:

"Seterusnya Pegawai Kastam Kanan Raja Mahat telah meminta saya membantu beliau untuk membuat pembongkaran bagasi tersebut. Hasil pembongkaran tersebut terdapat bungkusan yang dibalut dengan pita pelekat warna coklat yang disorokkan di bahagian pelapik roda bagasi dan terdapat serbuk kristal warna perang yang dijumpai di batang besi penarik beg tersebut. Yang saya maksudkan adalah di bahagian pelapik roda dan di bahagian sisi bagasi”. (Emphasis ours)

[5] The substance recovered from the bahagian pelapik roda bagasi was marked C4(1) (exhibit P10E), while the substance from the batang besi penarik beg was marked C5(1) (exhibit P10C). SP-8 made the said markings on the exhibits.

[6] The chemist, SP-5 (Puan Suhana binti Ismail) found the substance in the packets marked C4(1) and C5(1) to contain 307.3 and 97.2 grammes of Methamphetamine respectively, a drug listed in the First Schedule of the Dangerous Drugs Act, 1952 (‘the DDA’). The total weight of the said drugs amounted to 404.5 grammes. Her report is exhibit P25, as shown (or stated) at pp. 77 to 79 of Jilid 3, RR.

[7] At the end of the prosecution’s case, the learned trial judge was satisfied that the prosecution had indeed established a prima facie case against the appellant on account that all the ingredients of trafficking in the said drugs had been proven. Hence, the appellant was ordered to enter his defence.

The Defence Of The Appellant

[8] The appellant had testified on oath.

[9] The appellant testified that he is a Nigerian national and was in the business of buying and selling clothes. And, in the course of his vocation, he had travelled overseas regularly to source for quality but cheap materials.

[10] This was his fourth trip to Malaysia to source for quality clothes for resale back in Nigeria. However, on this occasion he was rather busy and had sought the assistance of his friend, one Namdi, to buy him a luggage for the trip which Namdi did.

[11] The appellant confirmed that the luggage exhibit P8 was the luggage that was purchased on his behalf and handed to him by Namdi. Nevertheless, the appellant contended that he had no knowledge that the said luggage contained drugs. He also said that when he received the luggage from Namdi, the luggage appeared normal and there is nothing remarkably suspicious about the luggage. He knew that it is a grave offence to peddle or carry drugs into Malaysia. Finally, he denied that he was a drug trafficker.

[12] At the end of the trial, the learned trial judge found that the defence posited by the appellant to be nothing more than a bare denial and was equally fraught with elements of afterthought. The learned trial judge found that the appellant had failed to rebut the presumption of possession and knowledge of the said drugs that was invoked against him under s.37(d) of the DDA. The appellant was consequently convicted of the charge preferred against him and was accordingly sentenced to suffer the death penalty.

The Appeal

[13] The appellant posited a single ground of appeal, claiming it to be sufficient to warrant the intervention of this court, to wit, the apparent discrepancies in the testimonies of the prosecution witnesses in relation to the description of the form and colour of the said drugs in the packet marked C5(1) from the batang besi penarik beg and in the packet marked C4(1) from pelapik roda bagasi.

[14] Learned counsel submitted that the chemist (SP-5), had stated in her evidence and in her report exhibit P25 that she received 2 packets marked C4(1) and C5(1) and the substance in the packet C5(1) was serbuk warna coklat, whereas SP-7 who recovered the said drugs in the packet C5(1) said it was serbuk kristal warna perang.

[15] Meanwhile, SP-9 (Pegawai Kastam Azhar bin Kasim) who was instructed by SP-8 to prepare the list of the seized exhibits (exhibit P32, at pp. 87, 88, Jilid 3, RR) stated that the packet marked C5(1) contained serbuk kristal disyaki dadah. He did not mention the colour of the serbuk though.

[16] SP-4 (Pegawai Kastam Ahmad Shahremy bin Ahmad Damanhuri) who witnessed the seizure of the said drugs also alluded that turut dijumpai serbuk kristal disyaki dadah di dalam besi penarik bagasi tersebut. This witness too did not describe the colour of the said drugs.

[17] In respect of the drugs recovered from bahagian pelapik roda bagasi marked C4(1), learned counsel also submitted that the witnesses gave various description of the form of the drugs therein. SP-5 described it as bahan kristal jernih; SP-6 said it was serbuk kristal putih; and SP-4 and SP-9 described it as serbuk kristal without mentioning its colour.

[18] Learned counsel submitted that the physical description and the description of the colour of the drug exhibits given by the witnesses from the Customs Department are different from what the chemist has stated in her oral evidence and in her report exhibit P25. It was also submitted that the said discrepancies were never explained. Hence, there were in fact discrepancies in the identity of the said drugs and in the absence of any explanation, is fatal to the prosecution’s case. It thus follows that there are issues as to whether the drugs in two packets are the same drugs that was recovered from the batang besi penarik beg and bahagian pelapik roda bagasi. Finally, it was submitted that in the event, the prosecution has not proved beyond a reasonable doubt that the drug exhibits seized at KLIA are the same exhibits that were sent to SP-5 for analysis and finally produced in evidence in Court.

[19] Learned counsel nevertheless confirmed that SP-8 was the witness who made the markings C4(1) and C5(1) on the two packets as well as affixing his signature and assigning the date thereon. He also acknowledged that the investigating officer of the case, SP-11 (Penolong Pengarah Kastam Mohammad Yusaini bin Mohamad Yusof), had affixed only his signature and the date on the two packets. Learned counsel also had no quarrel that the chemist, SP-5, had confirmed the presence of the said markings made by both SP-8 and SP-11 when she received the same from SP-11.

[20] Learned counsel also took issue with the learned trial judge’s failure to address the issues relating to the aforesaid discrepancies in his grounds of judgment although the same was raised in the appellant’s submission at the close of the prosecution’s case and was indeed acknowledged by the learned trial judge.

[21] We were in agreement with learned counsel that the learned trial judge did not address the issues relating to the said discrepancies although he had acknowledged in his grounds of judgment that the appellant had raised the said issues at the close of the prosecution’s case-see last para. p.11, Jilid 1, RR.

[22] However, we wish to reiterate that an appeal is a continuation of proceedings by way of rehearing and an appeal court may subject the evidence to a critical examination and come to its own findings even though in the grounds of judgment, the trial judge did not make any specific findings on the issues raised before him. In addition, in a case involving purely a question of fact, the Court of Appeal is free to determine whether or not the various findings of the trial court are correct-see Mohamed Mokhtar v PP [1972] 1 MLJ 122.

Our Decision

[23] We were of the considered view that the discrepancies in the description of the colour of the drugs is a matter of one’s perception. SP-5 perceived it as warna coklat whereas SP-7 saw it as warna perang. No one is contradicting each other because it concerned one’s cognitive perception. Hence, it should not be taken as creating a gap, capable of bringing down the entire substratum of the prosecution’s case.

[24] The differential description in the form of the said drugs as described by the witnesses is also no ground to suggest the presence of a gap in the chain of evidence relating to the identity of the said drugs. The witnesses from the Customs Department described the drugs in packet C5(1) as serbuk kristal whereas the chemist, SP-5, described it merely as serbuk. Again, in our view it is a matter of one’s cognitive perception. One would describe the substance as a crystalline powdery substance whereas another would describe the same substance as merely powdery substance. Nevertheless, SP-5 and the witnesses from the Customs Department were on common ground that the substances were in fact in powdery form.

[25] It is our further view that the differential perceptions pertaining to the description of the said drugs on its own, is not enough to create a reasonable doubt upon the prosecution’s case. What is of real substance is whether the drugs seized by SP-8 were the same drugs that were sent to SP-5 for analysis and finally produced in Court as advocated in Gunalan Ramachandran & Ors. v PP [2004] 4 CLJ 551 where it was ruled, inter alia, at pp.568, 569, by Abdul Hamid Mohamad JCA (as his Lordship then was):

"First, by way of a general observation, I am of the view that, in a drug trafficking case what is important is that it must be proved that it is the substance that was recovered that was sent to the chemist for analysis and it is that same substance that is found to be heroin or cannabis etc, and it is in respect of that substance that an accused is charged with trafficking. So, the chain of evidence is more important for the period from the time of recovery until the completion of the analysis by the chemist. Even then it does not necessarily mean that if the exhibit is passed from one person to another, every one of them must be called to give evidence of the handling over from one person to another and if there is a break, even for one day, the case falls. There should be no confusion between what has to be proved and the method of proving it, 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 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 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 the fact.”

[26] It thus calls for a scrutiny of the evidence of whether there is a break in the movement or the handling or the custody of the said drugs which amounted to a break in the chain of evidence-see Lew Wai Loon v PP [2014] 3 CLJ 649.

[27] The evidence showed that SP-8 had effected the seizure of the said drugs from the appellant and had documented the said seizure as stated in exhibit P32 (Senarai Bongkar) at pp.88 to 90 of Jilid 3, RR. SP-8 had also marked the said packets with the markings C4(1) and C5(1) and also affixing his signature and putting the date of the seizure of the drugs on the packets.

[28] Thereafter the two packets containing the said drugs were handed over to the SP-11, the investigation officer, who then affixed his signature and date on the said packets. The handing over of the said drugs and other related exhibits between SP-8 and SP-11 was documented vide exhibit P30 (Borang Penyerahan Barang-Barang Kes) as stated at pp.85, 86, of Jilid 3, RR.

[29] Both SP-8 and SP-11 had identified the markings made by them on the two packets containing the said drug exhibits including the date and the signatures they have affixed on the said packets.

[30] Thereafter, SP-11 delivered the said two packets with the markings to SP-5 for analysis. This handing over was also documented vide resit rasmi exhibit P24 issued by SP-5, as shown (or stated) at p.76 of Jilid 3, RR. SP-5 confirmed the presence of the said markings made by SP-8 and SP-11 on the two packets submitted to her. She then affixed her own laboratory identification number upon the exhibits vide No. Makmal (PJ) FOR 14032/11-0. She too identified the two packets submitted to her and the laboratory identification number she had assigned thereto in Court.

[31] Upon completion of her analysis, SP-5 then handed over the said drug exhibits back to SP-11 which, again was documented vide the chemist report exhibit P25, as shown (or stated) at pp. 77, 78, Jilid 3, RR.

[32] SP-11 proceeded to have the drug exhibits registered and stored in the Stor Barang Kes vide exhibits P5, P6 and P7 (Borang Penyerahan Barang Kes) as shown (or stated) at pp.13 to 16, Jilid 3, RR, for safe keeping pending the disposal of the hearing of the charge against the appellant.

[33] We noticed that each stage of the handing over or delivery of the drug exhibits to the respective witnesses until its production in Court were properly documented. The said documents were also positively identified by the respective witnesses.

[34] There was also no challenge in respect of the movement, handling and custody of the said drugs from the moment of its seizure until its production in evidence in Court.

[35] The description of the said drugs given by SP-5 was also not challenged.

[36] We also have on record the unequivocal admission by learned counsel that SP-8 had marked the two packets containing the said drugs with the markings C4(1) and C5(1) respectively as well as affixing his signature and putting the date of the seizure of the drugs upon the same. We also have the admission of learned counsel that SP-11 had marked the two said packets, by affixing his signature and putting the date of seizure thereon. Learned counsel also agreed that SP-8 and SP-9 had identified the markings they made in Court.

[37] In the final analysis, upon the totality of the evidence enumerated above, we are not in doubt that the drug exhibits that were seized by SP-8 and handed over to investigation officer, SP-11, and then analysed by SP-5 were the same drug exhibits that were produced in evidence before the High Court upon which the appellant was charged. These were the same drug exhibits that was described by SP-5 as warna coklat and described by SP-7 as warna perang and also variously described as either serbuk or serbuk kristal or bahan kristal by the witnesses. We firmly opined that there was no break in the chain of evidence that could have created a reasonable doubt as to the identity of the drug exhibits.

Conclusion

[38] For all the reasons given, we dismissed the appellant’s appeal and affirmed the conviction and sentence handed down upon him by the learned trial judge.

Dated: 8th February 2018

AHMADI HAJI ASNAWI
Judge
Court of Appeal, Malaysia

COUNSEL

For the Appellant: Sreekan Pillai, T/N: Sreekan Pillai, Peguambela & Peguamcara

For the Respondent: Tuan Zhafran Rahim Hamzah, Timbalan Pendakwa Raya, Jabatan Peguam Negara, 62100 Putrajaya

Legislation referred to:

Dangerous Drugs Act 1952, Sections 37(d), 39B(1)(a), 39B(2), First Schedule

Judgments referred to:

Gunalan Ramachandran & Ors. v PP [2004] 4 CLJ 551

Lew Wai Loon v PP [2014] 3 CLJ 649

Mohamed Mokhtar v PP [1972] 1 MLJ 122

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