THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 46 ENGLISH

Dickson Levy A/L Maria George v Public Prosecutor
Suit Number: Criminal Appeal No. J-05(M)-208-06/2016 

Criminal law – Trafficking in dangerous drugs – Conviction – Death sentence – Appeal

Litigation & court procedure – Judgments – Obligation of judges to give adequate reasons for their decisions – Purpose of giving reasons for judicial decisions – Whether the trial court failed to furnish adequate reasons for his decision in convicting the appellant – Whether such failure had deprived the appellant of a fair trial and had violated section 51(1) of the Courts of Judicature Act 1964

JUDGMENT

Introduction

[1] This appeal concerns the alleged failure of the learned trial Judge to furnish reasons and/or adequate or sufficient reasons for his decision in convicting the appellant for trafficking in dangerous drugs, to wit 14,517 grams of cannabis and in imposing the mandatory death penalty on him under the Dangerous Drugs Act 1952 (“DDA 1952”).

Facts of the Case

[2] Succinctly stated, the facts germane for deciding the present appeal are that on 9 May 2013, acting on information received, ASP Sopri bin Baki (SP4) led his police team to do surveillance at Larkin Bus Station, Johor Bahru.

[3] At about 7.45 p.m, a bus named “Surprise” with registration No. PTW 6966 had entered the said terminal bus. SP4 saw the appellant alighted from the bus. He was holding a black bag.

[4] The appellant then went to the bus’s luggage compartment to retrieve one blue-yellow bag from the said compartment. The appellant then carried both the blue-yellow bag and also the black bag by his hands and walked behind the bus.

[5] SP4 and his team approached the appellant and SP4 introduced himself as a police officer to the appellant. The appellant immediately dropped (“lepaskan”) both the bags and ran away. SP4 then chased after the appellant and he was involved in a scuffle with the SP4 and his team. SP4 managed to arrest the appellant.

[6] SP4 brought the bags to the place where both the bags were dropped by the appellant. SP4 then opened the blue-yellow bag in the presence of the appellant and found eleven (11) packages of cannabis and in the black bag SP4 found four (4) packages of cannabis.

[7] The Chemist confirmed that the net weight of the impugned drugs is 14,517 grams of cannabis.

[8] At the end of the prosecution’s case, the learned trial Judge held that the prosecution had established a prima facie case against the appellant and ordered the appellant to enter his defence.

[9] The nub of the appellant’s defence is that the two bags seized by the police were not his but belonged to another passenger. The appellant asserted that at the material time, a passenger by the name of Abdul Aziz a/l Jamal was arrested. The appellant denied that he ever carried the two bags containing the impugned drugs.

[10] At the end of the case, as we have alluded to earlier, the appellant was convicted and sentenced to a mandatory death penalty.

[11] Aggrieved with the decision, the appellant appealed to this Court. Hence, this appeal before us.

The Appeal

[12] Learned counsel for the appellant launched a root-and-branch attack on the alleged failure of the learned trial Judge to provide grounds for his decision. Learned counsel submitted that the learned trial Judge’s failure or omission to provide grounds for his decision had deprived the appellant of a fair trial and had violated section 51(1) of the Courts of Judicature Act 1964 (“CJA 1964”).

[13] Learned counsel posited that as the appellant was convicted and sentenced to death, he is entitled to know the reasons justifying such decision, especially in regard to the following critical matters-

i. Whether the learned trial Judge considered the submission made by his counsel;

ii. Whether the learned trial Judge reviewed, discussed, analysed, drew his mind to or applied the correct law(s) and took into consideration all relevant case law(s) in coming to his prima facie decision;

iii. Whether the learned trial Judge applied any statutory presumptions in DDA 1952 in coming to his prima facie decision;

iv. Whether the learned trial Judge invoked ‘presumed knowledge’ or direct evidence in coming to this prima facie decision;

v. Whether the learned trial Judge made any affirmative finding of prima facie decision;

vi. Whether the learned trial Judge made any affirmative finding concerning the appellant’s actions/reactions under section 2 or invoked the statutory presumption under section 37(da) of DDA 1952 for the element of trafficking in coming to his prima facie decision;

vii. Whether the learned trial Judge reviewed, discussed, analysed or drew his mind to the demeanour and/or made correct findings on the credibility of witnesses for the prosecution in coming to his prima facie decision; and

viii. Whether the learned trial Judge reviewed, discussed, analysed, drew his mind to or applied the law(s) and took into consideration all relevant case law(s) in coming to his decision at the end of the case;

[14] Learned counsel vehemently argued that due to the absence of reasons given by the learned trial Judge in arriving at his decision, the appellant finds great difficulties in pursuing his appeal and that there is no judicial accountability and responsibility.

[15] In support of his submission, learned counsel has placed reliance on a string of authorities, inter alia, Thong Ah Fat v P.P [2012] 1 SLR 676; Ruslan Xanqulu Oglu v P.P 2016 1 LNS 132; Johnbosco Chinedu Augustine v P.P [2016] 3 CLJ 732, Dato’ Seri Anwar Ibrahim v P.P [2010] 9 CLJ 625, Rengarajan Thangavelu v P.P [2015] 1 CLJ 993.

[16] Learned counsel emphasized that the failure or omission of the learned trial Judge to provide reasons for his decision had compromised the appellant’s right to a fair trial as enshrined in Article 5 of the Federal Constitution (See Lee Kwan Woh v P.P [2009] 5 CLJ 631).

[17] Learned counsel urged this Court to set aside the conviction and sentence of the High Court and substituted them with an order under section 60(1) of the CJA 1964, i.e the appellant be retried in the High Court before another Judge.

Discussion and Findings

[18] Given that the alleged failure to provide any and/or adequate reasons for decisions of the learned trial Judge is the sole issue advanced by learned counsel for the appellant in this appeal, it may be timely to reflect on the doctrinal considerations and principles in play.

[19] An important explanation of the purposes served by the giving of reasons for judicial decisions was given by Mc Hugh JA (as he then was) in Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR’s decisions -

“The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision. As Lord MacMillan has pointed out, the main object of a reasoned judgment “is not only to do but to seem to do justice: The Writing of judgments (1948) 26 Can Bar Rev at 491. Thus the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability. As Professor Shapiro has recently said (In Defence of Judicial Candor (9187) 100 Harv L Rev 731 at 737):

“... A requirement that judges give reasons for their decisions-grounds of decision that can be debated, attacked, and defended-serves a vital function in constraining the judiciary’s exercise of power.”

Thirdly, under the common law system of adjudication, courts not only resolve disputes-they formulate rules for application in future cases: Taggart “Should Canadian Judges Be Legally Required to Give Reasoned Decisions in Civil Cases (1983) 33 University of Toronto Law Journal 1 at 3-4. Hence the giving of reasons enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.”.

[20] In R v Sheppard, [2002] 1 S.C.R 869, the Supreme Court of Canada summarised the law on the duty of a trial judge to give reasons in the context of appellate intervention in a criminal case as follows-

(a) The delivery of reasoned decisions is inherent in the judge’s role. It is part of his or her accountability for the discharge of the responsibilities of the office. In its most general sense, the obligation to provide reasons for a decision is owed to the public at large.

(b) An accused person should not be left in doubt about why a conviction has been entered. Reasons for judgment may be important to clarify the basis for the conviction but, on the other hand, the basis may be clear from the record. The question is whether, in all the circumstances, the functional need to know has been met.

(c) The lawyers for the parties may require reasons to assist them in considering and advising with respect to a potential appeal. On the other hand, they may know all that is required to be known for that purpose on the basis of the rest of the record.

(d) The statutory right of appeal, being directed to a conviction (or, in the case of the Crown, to a judgment or verdict of acquittal) rather than to the reasons for that result, not every failure or deficiency in the reasons provides a ground of appeal.

(e) Reasons perform an important function in the appellate process. Where the functional needs are not satisfied, the appellate court may conclude that it is a case of unreasonable verdict, an error of law, or a miscarriage of justice within the scope of section 686(1) (a) of the Criminal Code, depending on the circumstances of the case and the nature and importance of the trial decision being rendered.

(f) Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge’s conclusion is apparent from the record, even without being articulated.

(g) Regard will be hard to the time constraints and general press of business in the criminal courts. The trial judge is not held to some abstract standard of perfection. It is neither expected nor required that the trial judge’s reasons provide the equivalent of a jury instruction.

(h) The trial judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial Judge’s decision.

(i) While it is presumed that judges know the law with which they work day in and day out and deal competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court.

(j) Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court’s explanation in its own reasons is sufficient. There is no need in that case for a new trial. Such an error of law at the trial level, if it is so found, would be cured under the s. 686(1) (b)(iii) proviso.

[21] In R (on the Application of Susan Angels Duncan) v The General Teaching Council for England [2010] EWHC 429 (Admin). Mr. Justice Ouseley said at para 6-

“What is required by way of reasons is an outline of the story which has given rise to the complaint, a summary of the basic factual conclusions and a statement of the reasons which have led to committee to reach their conclusion on those basic facts... I add that there are at least two purposes behind the requirement to give reasons which may affect the standard of reasoning required. The first is fairness. The parties should know why they have lost or won. The second is that a deficiency in the conclusions or in the reasoning on the principal issues in controversy may conceal a legal error: material considerations ignores, irrational reasoning or lack of evidence, provided of course that the doubt over the reasoning is genuine and not merely forensic. It is not necessary for every factor to be dealt with explicitly in order for the reasoning to be legally adequate.”.

[22] The following passages in the judgment of Henry L.J in Flannery v Halifax Estate Agencies [2000] 1 All EX 373 are deserving of full reproduction-

“(1) The duty (to give reasons) is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties-especially the losing party-should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know? whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.

(2) The first of these aspects implies that want of reasons may be a good self standing ground of appeal. Where because no reasons are given it is impossible to tell whether the Judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the Court entertains an appeal based on the lack of reasons itself.

(3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter. Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the Judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases.

(4) This is not to suggest that there is one rule for cases concerning the witnesses’ truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same: the judge must explain why he has reached his decision. The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword.”.

[23] Indeed, the words of Arifin Zakaria, CJ Malaya (as he then was) in the case of Dato’ Seri Anwar Ibrahim v P.P (supra) remain apposite and instructive-

“[6] In this connection, we wish to state that grounds or reasons for a judgment are required so that parties, particularly the unsuccessful one, would know why the judge arrived at the decision the way he did. The reason need not be long especially when the outcome is obvious. It can be obvious when facts are not in dispute and the law is well established. In such a case, all that is needed is the conclusion and his reasons in support of the same. This is not to say that in all cases judgments should be brief and concise. Where facts are disputed, the judge has to discuss and analyse them. Where the law is seriously doubtful, he should argue it out before arriving at a decision. More often than not, judgements become long because facts which are sometimes unnecessary are repeated. Laws and authorities which are well established are recited over and over in the same judgment. Statements are often repeated in different ways.

Sometimes, this is intentionally done to stress a point. It only makes the grounds long and unwieldy. Having said that, this is not to discourage judges from writing comprehensive grounds, if they have the ability and time to do so.

[7] …

[8] We agree that as a general rule, it is incumbent upon the court making a decision to provide reasons for its decisions as litigants are entitled to the same. But this ground of judgment, as we said earlier, need not be long, depending much on the subject matter in issue. In some instances, short and concise grounds of judgment will suffice.

“As was observed by the Privy Council in Wendal Swann v Attorney General of the Turks and Caicos Islands (Privy Council Appeal No 43 of 2008 delivered on 21 May 2009): “Any court giving a decision after submission have been made has a clear duty (at least in the absence of the parties expressly or impliedly agreeing or otherwise) to give not only a decision, but also the reasons for that decision. Sometimes very shortly expressed reasons are appropriate, or at least acceptable. In the present case, for instance, provided of course that it represented its reasoning, the Court of Appeal could have complied with its duty by stating that the Chief Justice’s decision was right in the sense that it was the only correct outcome and/or because it was a decision which he was entitled to reach as a matter of discretion, and that his reasoning was unassailable. However, it appears that the court did not go even that far: if that is indeed the case, the Court of Appeal failed to do its duty. This should not happen again.”. (Emphasis added).

[24] Reverting back to the case in hand, it is not correct to say that the learned trial Judge did not give reasons for his decision.

[25] On 14.12.2015, the learned trial Judge held that the prosecution had successfully established a prima facie case and consequently the appellant was called to enter his defence. The learned trial Judge stated at page 186, Appeal Record, Volume 2-

“Setelah meneliti keterangan secara penilaian maksima, Mahkamah ini memutuskan pihak pendakwa telah berjaya membuktikan kes prima facie dan tertuduh dengan ini dipanggil membela diri.”.

[26] Upon hearing the defence, on 30.5.2016, the learned trial Judge held that the appellant had failed to raise a reasonable doubt in the prosecution’s case and consequently proceeded to convict and sentence the appellant to the mandatory death penalty.

[27] The learned trial Judge gave lengthy reasons, in which he analysed the evidence of all the defence witnesses. He found the defence of “denial” interposed by the appellant could not prevail over the positive and clear testimonies of the prosecution witnesses which had established that the appellant was in possession of the impugned drugs.

[28] This is an important aspect of the case and it is appropriate therefore to set out what the learned trial Judge said (see pages 0230-0231, Appeal Record, Volume 2)-

“Tertuduh telah memilih untuk memberi keterangan secara bersumpah dikandang saksi, selain dirinya sendiri sebagai SD1, Tertuduh telah memanggil Insp. Suhaila Taib sebagai saksi kedua, Letchumi a/l Krishnan iaitu ibu saudara Tertuduh sebagai saksi ketiga dan Tilip Kumar iaitu kawan Tertuduh sebagai saksi keempat.

Setelah meneliti keterangan saksi-saksi pembelaan, Mahkamah ini mendapati saksi yang dipanggil iaitu SD2, SD3 & SD4 tidak membantu kes Tertuduh.

Antara isu penting yang ditimbulkan oleh Peguam bela Tertuduh adalah penangkapan seorang lelaki lain yang bernama Abdul Aziz a/l Jamal yang ditangkap ketika turun daripada bas yang dinaiki oleh Tertuduh.

Mahkamah ini mendapati berdasarkan keterangan saksi kes yang melibatkan Abdul Aziz a/l Jamal itu adalah kes lain yang disiasat oleh I.O yang lain dan serbuan dan tangkapan dibuat oleh team yang lain.

Kes ini dan kes tersebut adalah berlainan. Mahkamah ini juga mendapat bahawa keterangan SD3 dan SD4 tidak membantu kes Tertuduh malah mengesahkan dan memperkuatkan kes pendakwaan yang Tertuduh ada menaiki bas terbabit dengan membawa bag eksibit P34. SD3 dan SD4 tidak ada semasa Tertuduh ditangkap dan tidak mengetahui apa yang berlaku di tempat kejadian.

Bersabit keterangan Tertuduh sendiri, Mahkamah ini bersetuju dengan Timbalan Pendakwa Raya bahawa Tertuduh membuat penafian ke atas perkara-perkara material yang ditanya oleh TPR.

Mahkamah ini berpendapat pembelaan Tertuduh adalah berbentuk penafian. Peguam Bela Tertuduh, Encik Mohd. Daud Ismail berhujah tentang kes pendakwaan yang telah tersasar (abandon) apabila teori asal kes bahawa dadah yang dipertikaikan tidak berasal dari Butterworth sebaliknya yang dibuktikan ialah dari Seremban.

Dengan hormatnya Mahkamah ini tidak dapat menerima hujahan ini kerana apa yang wajib dibuktikan ialah Tertuduh telah ditangkap ketika memiliki dan mengawal dadah dan dia ada pengetahuan ke atasnya, bukannya dari mana dadah itu dibawa. Berkaitan dengan ini juga, pengemukaan dan penerimaan masuk tiket bas ekspress juga tidak crucial kepada pembuktian kes ini.

Adalah dapatan Mahkamah ini bahawa Tertuduh telah gagal menimbulkan keraguan ke atas kes pendakwaan. Adalah dapatan Mahkamah ini juga bahawa pihak pendakwaan telah berjaya membuktikan dalam kes ini mens rea possession dan direct trafficking di bawah seksyen 2 Akta Dadah Berbahaya.

Di atas alasan yang diberikan Mahkamah ini mendapati Tertuduh bersalah dan disabitkan di atas pertuduhan dan dijatuhi hukuman seperti yang diperuntukkan oleh undang-undang iaitu gantung di leher sehingga mati.”.

(Emphasis added).

[29] The learned trial Judge made a specific finding that the prosecution had established a case of mens rea possession and direct trafficking under section 2 of DDA 1952.

[30] Undaunted, learned counsel for the appellant forcefully argued that the learned trial Judge failed to provide adequate or sufficient reasons to permit meaningful appellate review by this Court.

[31] Learned counsel posited that it is imperative, especially in cases involving a capital charge, that the trial Judge provides written grounds of judgment necessarily expressing detailed reasons in relation to the findings of fact made and application of the law to such findings of fact both at prima facie stage and also at the final stage of decision.

[32] In the absence of detailed reasons, it is difficult for the appellant to file his Petition of Appeal detailing particulars of the matter of law and/or fact in regard to which the High Court is alleged to have erred in compliance with the requirement of section 53(2) of the CJA 1964.

[33] Concerning the issue of giving adequate reasons, the Supreme Court of Canada in R v R.E.M, 2008 SCC 51 (Can L II), 2008 SCC 51 (“R.E.M”) and subsequent cases developed a functional context-specific approach to be adequacy of reasons -

“The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. (R.E.M at para 17, emphasis in original).”.

[34] In the most often quoted passage from R.E.M at para 37, Justice Charron wrote for the majority -

“The sufficiency of reasons is judged not only by what the trial judge has stated, but by what the trial judge has stated in the context of the record, the issues and the submissions of counsel at trial. The question is whether, viewing the reasons in their entire context, the foundations for the trial judge’s conclusions-the “why” for the verdict-are discernable. If so, the functions of reasons for judgment are met. The parties know the basis for the decision. The public knows what has been decided and why. And the appellate court can judge whether the trial judge took a wrong turn and erred. The authorities are constant on this point.”.

(Emphasis added).

[35] On the issue as to whether trial judges should have explained their findings of credibility, the Court stated that the only requirement is that judges must show, in the written judgment, that he or she “has seized the substance of the issue”. The Court recognizes that a trial judge may make decisions on credibility based on factors that are inarticulate in writing, and it therefore refrained from insisting that judges address contradictory evidence in the reasons.

[36] In our view, the question as to what are adequate or sufficient reasons does not admit of a simple answer. It is always a matter of degree. Judges, acting reasonably, may have quite different views on this subject.

[37] We venture to say that, a judge, though obliged to give reasons, it is not required to address every submission that was advanced during the course of the hearing. As long as the reasons deal with the principal issue upon which the decision turns, they will pass muster. Plainly, judges are not expected to deal with every consideration that passes through their minds as they proceed to their conclusion. However, any submission that is worthy of serious consideration should, ordinarily, receive same attention in the reasons provided.

[38] It is pertinent to note that an appeal is a continuation of a trial. As learned Justice Abdul Hamid J (as he then was) had said in the case of P.P v Ma’arif [1969] MLJ 65-

“An appeal is merely a continuation of a trial, and throws open all the evidence to re-examination in order to determine whether or not the various findings of the court are correct.”.

[39] Therefore, it is incumbent upon us to revisit the evidence adduced by the prosecution and the appellant to determine the correctness of the learned trial Judge’s decision in making the decision that he did.

[40] To recapitulate, the prosecution’s case is anchored on the evidence of SP4 and SP6. The appellant was seen carrying the two bags till the moment he was arrested. Therefore, he was in physical custody and control of the bags and their content.

[41] When SP4 introduced himself to the appellant as police, the appellant had dropped the two bags on the road. The appellant attempted to flee. A scuffle ensued between the appellant and the police party.

[42] The conduct of the appellant when confronted by the police is relevant and admissible under section 8 of the Evidence Act 1950 to support the inference of knowledge that he knew what he was carrying and/or holding. (See Parlan bin Dadeh v P.P [2009] 1 CLJ 717; Marlan Marpaung v P.P [2013] 1 MLJ 108; Aedy Osman v P.P [2011] 1 CLJ 273; Tay Boon Wee v P.P (Criminal Appeal No: B-05-1-2011); Wong Vui Chin v P.P [2011] 3 CLJ 383; Abdullah Zawawi Yusoff v P.P [1993] 4 CLJ 1).

[43] In our view, on the factual matrix of this instant case, the learned trial Judge was correct in calling the appellant to enter his defence as the appellant was indeed in mens rea possession of the impugned drugs found in the two bags.

[44] In his defence, the appellant claimed that the two bags that were recovered by the police party were not his, but belonged to another passenger.

[45] The appellant testified that at the material time, the police arrested a passenger by the name of Abdul Aziz a/l Jamal. In other words, the appellant was saying that the bags that contained the impugned drugs were not his but belonged to this passenger. He did not at any time carried the two bags and the police had framed him up.

[46] The law on this issue is very clear-mere denial is unable to create a reasonable doubt in the prosecution’s case. In D.A Duncan v PP [1980] 1 LNS 12 it was held that-

“The defence was, in effect, a simple denial of the evidence connecting the appellant with the four boxes. We cannot see any plausible ground for saying that the four boxes were not his. In the circumstances of the prosecution evidence, the High Court came, in our view, to the correct conclusion that this denial did not cast a doubt on the prosecution case against the appellant.”.

[47] Also, there was no rhyme nor reason for the police officers in this case to frame up the appellant with the impugned drugs, as they were just performing their duty. (See the cases of Mohd Ali Jaafar v PP [1998] 4 CLJ Supp 208 and Goh Han Heng v PP [2003] SGHC 226 [2003] 4 SLR 374).

[48] In Goh Han Heng v Public Prosecutor (supra), Yong Pung How CJ (Singapore) had this to say -

“I disagreed with counsel. All that the passage means is that where the accused can show that the complainant has a motive to falsely implicate him, then the burden must fall on the prosecution to disprove that motive. This does not mean that the accused merely needs to allege that the complainant has a motive to falsely implicate him. Instead, the accused must adduce sufficient evidence of this motive so as to raise a reasonable doubt in the prosecution’s case. Only then would the burden of proof shift to the prosecution to prove that there was no such motive. To hold otherwise would mean that the prosecution would have the burden of proving a lack of motive to falsely implicate the accused in literally every case, thereby practically instilling a lack of such a motive as a constituent element of every offence.”.

[49] The appellant failed to demonstrate to us any evidence to show that the police had harboured a motive to falsely implicate the appellant.

[50] Concerning the element of trafficking, we agreed with the findings of the learned trial Judge that the appellant had failed to raise a reasonable doubt in the prosecution’s case. Judging from the manner in which the impugned drugs were carried, i.e in two bags and taking into account the total amount of drugs involved (14,517 grams of cannabis), the reasonable inference that may be drawn is that the appellant was in fact carrying it for the purpose of trafficking. It cannot be seriously contended that the drugs was for his own consumption and, in any event, the appellant never suggested in his defence that it was so.

Conclusion

[51] For the foregoing reasons, we are of the firm view that the conviction of the appellant is safe. Consequently, the appeal is dismissed and the conviction and sentence passed by the learned trial Judge is affirmed. So ordered.

Dated: 13th February 2018

sgd.

DATO’ SETIA MOHD ZAWAWI SALLEH
Judge
Court of Appeal
Malaysia

COUNSEL

For the Appellant: Kitson Foong, Messrs. Kit & Associates, Suite 195-1, Sri Wangsaria, Jalan Ara, Bangsar Baru, 59100 Kuala Lumpur, Wilayah Persekutuan

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

Legislation referred to:

Courts of Judicature Act 1964, Sections 51(1), 53(2), 60(1)

Criminal Code (Canada), Sections 686(1)(a), 686(1)(b)(iii)

Dangerous Drugs Act 1952, Sections 2, 37(da)

Evidence Act 1950, Section 8

Federal Constitution, Article 5

Judgments referred to:

Abdullah Zawawi Yusoff v PP [1993] 4 CLJ 1

Aedy Osman v PP [2011] 1 CLJ 273

D.A Duncan v PP [1980] 1 LNS 12

Dato’ Seri Anwar Ibrahim v PP [2010] 9 CLJ 625

Flannery v Halifax Estate Agencies [2000] 1 All EX 373

Goh Han Heng v PP [2003] SGHC 226 [2003] 4 SLR 374

Johnbosco Chinedu Augustine v PP [2016] 3 CLJ 732

Lee Kwan Woh v PP [2009] 5 CLJ 631

Marlan Marpaung v PP [2013] 1 MLJ 108

Mohd Ali Jaafar v PP [1998] 4 CLJ Supp 208

PP v Ma’arif [1969] MLJ 65

Parlan bin Dadeh v PP [2009] 1 CLJ 717

R (on the Application of Susan Angels Duncan) v The General Teaching Council for England [2010] EWHC 429 (Admin)

R v R.E.M, 2008 SCC 51 (Can L II), 2008 SCC 51

R v Sheppard, [2002] 1 S.C.R 869

Rengarajan Thangavelu v P.P [2015] 1 CLJ 993

Ruslan Xanqulu Oglu v P.P 2016 1 LNS 132

Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR

Tay Boon Wee v PP [Criminal Appeal No: B-05-1-2011]

Thong Ah Fat v PP [2012] 1 SLR 676

Wong Vui Chin v PP [2011] 3 CLJ 383

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