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MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 170 ENGLISH

Liew Kee Sin v Public Prosecutor
Suit Number: Criminal Appeal No. K-05(M)-435-11/2016 

Criminal law – Trafficking in dangerous drugs – Conviction – Death sentence – Appeal – Whether the conviction safe

Criminal law – Whether the appellant had custody and control of the drugs – Whether the appellant had knowledge of the impugned drugs – Whether the presumption of knowledge under section 37(d) of the Dangerous Drugs Act can be invoked

Criminal law – Whether there was an omission of a material fact in the police report of the arresting/ enforcement officer – Whether the failure of the prosecution witness to state in his police report that the trolley bag which carried the impugned drugs was unlocked with combination numbers by the appellant should be held against the prosecution – Whether the appellant’s narration about a third-party owner of the impugned drugs a fabrication – Whether the hand phone which carried incriminating photographs belonged to the appellant

JUDGMENT

The Charge

[1] The appellant in this appeal was charged in and convicted by the High Court in Alor Setar of an offence under s. 39B(1)(a) of the Dangerous Drugs Act 1952 [“DDA”] and sentenced to the mandatory sentence of death by hanging under s. 39B(2) of the DDA. The charge against him, in Bahasa Malaysia reads as follows:

“Bahawa kamu pada 20 Ogos 2013, lebih kurang jam 10.30 pagi di Terminal Bas Ekspres Shahab Perdana, Alor Setar, di dalam daerah Kota Setar, dalam Negeri Kedah Darul Aman, telah didapati mengedar dadah berbahaya iaitu Methamphetamine seberat 15062.1 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B(2) Akta yang sama.”

Brief facts of the case

[2] In summary, the prosecution’s case against him and upon which he was ordered to give his defence goes like this. Based on information received by the Royal Malaysian Customs Malaysia [“Customs Department”] on the same day as stated in the charge, Customs Officer Azizan bin Abdullah [PW4] went with four other colleagues of his from the Narcotics Unit to the Shahab Perdana Bus Terminal [“Bus Terminal”] at 10.05 a.m. His other four colleagues were Mohd Anuar, Ravi A/L Thanaveloo, Logalinggam and Chin Chee Weng [PW2]. The first three named were offered to the defence at the close of prosecution’s case. PW2’s role in the operation was merely that of a photographer and therefore the crucial evidence on the discovery of the drugs upon which the prosecution rests on was PW4’s evidence.

Discovery of the drugs

[3] PW4 testified that based on information received, he went to platform number 7 of the Bus Terminal [“the platform”] at about 10.05 a.m. with Chin Chee Weng and Mohd Anuar whilst Ravi and Logalinggam waited outside the platform. After about 15 minutes he saw the suspect, later identified as the appellant pulling a black trolley bag. He gave a signal to his team and together they approached and apprehended the appellant after introducing himself. The appellant, he said was shocked. Upon his request, the appellant opened the trolley bag which was locked with combination numbers. Inside it were 2 black canvas bags and when these canvas bags were taken out, he saw compressed packets wrapped with light brown tapes inside the trolley bag. The appellant and the trolley bag with its content were then brought to the Customs Department’s Narcotic Office in Alor Setar. An examination of the trolley bag at the office revealed 20 of such compressed packets as described earlier. Photographs of the black trolley bag, the canvas bags and the compressed packets taken by PW2 appear at page 271 of the Appeal Record Volume 3. PW4 did an initial test by making a small nick to one of the packets and found its content to be methamphetamine. The gross weight of the 20 packets after weighing by PW4 was 20.497 kg. PW4 also lodged a police report on the arrest and discovery of the drugs on the same day.

[4] Subsequently, at about 3.00 p.m. PW4 handed over the appellant and the said exhibits which also included 3 hand phones seized from the appellant as well as articles of clothing found in the trolley bag [as shown in the photograph at the bottom page of 271 mentioned earlier] to the Investigating Officer of the case, Customs Officer P. Jayadevan Naidu A/L Ponnusamy [PW8]. The material part of PW8’s evidence was his sending of the 20 compressed packets to the chemist for analysis which was done on 22/08/2013 at 3.00 p.m. and he received them back on 21/11/2013 at about 12:00 noon. Prior to that the said packets were kept in a safe [“peti kebal”] at the Narcotic Office, just like all the other exhibits and that was also where the packets after analysis were kept. The chemist, Faesmaziana binti Napiah [PW3] confirmed receiving the 20 compressed packets and in her report [ExP33] stated that after analysis the same contained 15062.1 grams of Methamphetamine [ExP33]. We have only made a cursory mention of the chemist evidence as aforesaid given that the issues raised before us were not with respect to her evidence, and neither the weight nor the type of drugs but on the legal requirements to prove trafficking, i.e. that of possession and knowledge. As for the three Samsung hand phones, PW8 had sent the same to Mohd Zamri bin Hanan Basri [PW5] of the Customs Department’s Forensic Unit for analysis. According to this witness he was only able to retrieve the data in a process called acquisition from only one of the hand phones i.e. ExP63, but not the other two [ExP64 and ExP65]. The data was then analysed by his colleague, Almizan bin Yahya [PW6] who transferred the information he retrieved into a compact disc [ExP71] and who prepared a report [ExP70]. The image which was retrieved from the said hand phone was compiled in a folder and tendered in court as ExP74 [at pages 334­-337 of Appeal Record volume 3]. It is pertinent to note that one of the images retrieved from ExP63 is that of the 20 compressed packets, the other two of the appellant with a woman and the last, that of another man.

[5] The Learned Judicial Commissioner found that the appellant had both custody and control of the drugs as he was seen pulling the trolley bag and had opened that combination lock of the trolley bag. His Lordship then invoked the presumption of knowledge under section 37(d) of the DDA and as for the element of trafficking, since he was caught carrying the trolley bag containing the drugs and was about to board a bus heading to Kuala Lumpur, such act, according to His Lordship came within the definition of trafficking under section 2 of the DDA. The appellant was therefore called to enter his defence to the charge.

The defence

[6] The appellant gave sworn evidence and called another witness, Mohd Saffie bin Hashim [DW2], a friend who fetched him from his house in Changlun, Kedah and dropped him to go to the Bus Terminal for his trip to Kuala Lumpur. DW2 testified that the appellant did not have any bag with him that day, in support of the appellant’s own evidence that was so. The appellant said he wanted to meet his wife in Kuala Lumpur to sort out their marital problems as they were getting a divorce. At the Bus Terminal he had arranged to meet his Thai girlfriend’s cousin by the name of Poo Yai whom he had earlier met in Bangkok on 17/08/2013 in order to show him around as the latter was not familiar with Kuala Lumpur. It was Poo Yai, said the appellant who had the trolley bag with him and who left him with it as well as the Samsung hand phone ExP63 and its charger when Poo Yai went to the Bus Terminal’s toilet. This happened just a few minutes before the Customs officers swooped in on him. The appellant said that hand phone actually belonged to his girlfriend but was lent to Poo Yai because Poo Yai‘s hand phone was not working. The appellant also claimed that he told PW4 that the trolley bag did not belong to him and he denied unlocking it with the combination numbers, alleging instead that PW4 did it himself. The appellant of course disclaimed any knowledge of the drugs and he said he had also told PW8 about the trolley bag belonging to Poo Yai but which evidence was denied by PW8 when he gave evidence.

[7] The learned Judge Commissioner in evaluating the defence questioned why the appellant never mentioned Poo Yai by name to PW4 upon his arrest and only referred to a Thai national and why he straight away bought his bus ticket upon reaching the Bus Terminal without waiting for Poo Yai since he claimed they were going to Kuala Lumpur together. His Lordship also questioned why would anyone want to leave his hand phone and charger just to go to the toilet and why were Poo Yai and the appellant’s girlfriend not called to give evidence. All these question marks led the learned Judge Commissioner to find that the defence story was created just to deflect the attention of the court that the trolley bag was recovered from the appellant by PW4. His Lordship concluded that Poo Yai was a fictitious character and there were overwhelming evidence that the trolley bag belonged to the appellant since he was seen by PW4 pulling the trolley bag and had unlocked it using the combination numbers. As for DW2’s evidence, the learned Judge Commissioner found his evidence suspicious for the appellant never informed PW8 about this DW2 and only revealed his existence after 3 years [that is, from the time of discovery and arrest and the latter’s testimony in court].

The appeal

[8] This was centred on the finding of possession and presumption of knowledge as well as the data from the hand phone ExP63, the existence of Poo Yai and the evidence of PW4.

[9] Learned counsel for the appellant sought to disparage the prosecution’s case for a number of reasons, the first of which was PW4’s failure to state in his police report [ExP62] that the trolley bag was unlocked with combination numbers by the appellant. He cited the case of PP v Ng Sing Ting and Anor [2008] 7 CLJ 247 and Kesavan Petchayo v PP [2003] 1 CLJ 84 where an omission of a material fact in a police report of the arresting/ enforcement officer was held against the prosecution. Although no one could argue against the irresistible inference that the trolley bag belonged to the appellant because he had the combination numbers to unlock it, nevertheless to say that PW4’s evidence on this fact ought to be rejected purely on his omission to state so in his police report would be to negate the whole weight of his oral evidence, and that would be totally wrong. His police report was a piece of corroborative evidence and the very important fact which he must state in it was the discovery of the drugs and arrest of the appellant. This he had done. The said omission, in our view does not in any way made his evidence incredulous or incapable of belief. Furthermore, he had given a rational and acceptable explanation in his re-examination that when making police reports he only put in the details such as that of the accused, the date, time and place of the offence and “perihal kes”.

[10] In respect of the existence of Poo Yai, we do agree with learned counsel for the appellant that there was a high probability that he exists, despite the fact that his name was not mentioned by the appellant upon his arrest. This we say because from the call log extracted from ExP63, Poo Yai’s name [but spelt as “Pu Yai”] was stated therein. However, the fact that there was such a person alive does not mean that the charge against the appellant has not been proven beyond a reasonable doubt because if indeed he was present at the scene at that material time and had just gone to the toilet in the same vicinity, we failed to understand why the appellant did not say so and made an attempt, even a feeble one at that, to bring PW4 to the toilet to get him. This failure on his part shows conclusively to our mind that his defence that the trolley bag belonged to Poo Yai and that Poo Yai was with him at the Bus Terminal was a mere fabrication on his part.

[11] On the issue of the incriminating photograph in the hand phone [ExP63], the appellant’s counsel submitted that the said hand phone did not belong to the appellant because PW8 did not investigate who the registered owner of the hand phone was-only that it was registered with a telecommunication company named Happy in Thailand. The message in the hand phone were also written in a foreign language [besides in English] which the appellant said he was not well versed in for he communicated with his Thai girlfriend in Mandarin.

[12] Other than 4 photographs tendered as exhibits, some of the photographs in the hand phone appeared to have been taken as selfies. This proved, submitted learned counsel in his written submission, that the said hand phone was not that of the appellant. Of course the strenuous attempt to disassociate the appellant with that hand phone was simply because of the photograph of the impugned drugs as stated earlier.

[13] We digress now to mention that the compact disk containing the data from ExP63 was played in open court during the hearing of the appeal before us and the appellant’s counsel pointed out to us the photograph of appellant and his girlfriend as well as that of a man and woman who were not identified. It is to be noted that the compact disk was never played in open court before the learned Judicial Commissioner and if indeed there were evidence contained in this compact disk favourable to the defence, the appellant could only blamed himself for not requesting it to be adduced before the learned Judicial Commissioner. It was simply too late in the day to ask us to do so when it is trite law that as an appellate court we should only looked at or review evidence as they were adduced in the court below.

[14] All these contentions however failed to persuade us at all to review the conviction because, firstly, any person having a smart hand phone would know that it is not only the owner of the hand phone who can take a selfie with it. Anyone who had access to such a hand phone can do so. Secondly, the fact that the number was registered in Thailand or that it belonged to someone else equally could not absolve the appellant of the guilt because as the evidence show he was caught alone and red-handed with the trolley bag containing the drugs. More importantly, even without the evidence of the hand phone, the incriminating evidence against him-pulling the trolley bag and unlocking it with combination numbers, were just too damning. Further, his allegation that PW4 opened the trolley bag was simply incredulous given that it was locked with combination numbers. He was definitely in custody and control of the drugs at that material time and was in possession of the same because the aforesaid evidence satisfied the requirement of legal possession as decided in Chan Pean Leon v Public Prosecutor [1956] 22 MLJ 237.

[15] As for knowledge of the drugs we agree with the learned Judicial Commissioner that the defence of the appellant as described above have failed to rebut the presumption of it as raised by the learned Judicial Commissioner. In this regard and at the risk of being repetitive, the most damning conduct of the appellant was knowing the combination numbers for the lock of the trolley bag. The sole and irresistible inference from that conduct would be that he knew what was inside the trolley bag and as shown in the evidence-both PW4’s as well as the photograph marked ExP30 [c], the compressed packets were placed openly in the trolley bag without concealment. On this note, the fact that the two canvas bags were padlocked and no padlock keys were found with the appellant, still does not whittle away the sheer weight of the evidence that he unlocked the trolley bag with the combination numbers. Similarly on this score, the absence of his fingerprints on the said packets as submitted by his counsel was really of no consequence to his guilt.

[16] By way of a conclusion we must state that we have resolved this appeal on the four issues considered above given that they were stated at the outset of the appellant’s counsel’s submission to us at the hearing. Unfortunately for the appellant, as we have indicated at the end of the hearing and despite not agreeing with the learned Judicial Commissioner that Poo Yai was a fictitious character, but on the other three issues resolved in the prosecution’s favour, the appeal was dismissed and His Lordship’s decision to convict and sentence the appellant to death was affirmed.

Dated: 4 May 2018

RHODZARIAH BINTI BUJANG
Judge
Court of Appeal Malaysia
Putrajaya

COUNSEL

For the Appellant: Mr. G. Ravishankar, Messrs. R. Shankar Gandhi & Assoc

For the Respondent: Mrs. Norinna binti Bahadun, Deputy Public Prosecutor

Legislation referred to:

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

Judgments referred to:

Chan Pean Leon v Public Prosecutor [1956] 22 MLJ 237

Kesavan Petchayo v PP [2003] 1 CLJ 84

PP v Ng Sing Ting and Anor [2008] 7 CLJ 247

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