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[2018] MYCA 70 ENGLISH

Mohamad Shukri Bin Ibrahim v Public Prosecutor
Suit Number: Criminal Appeal No. P-05(M)-256-06/2016 

Criminal law – Trafficking in dangerous drugs – Conviction – Mandatory death penalty – Appeal

Criminal law – Whether the trial court erred in law and/or in fact in not invoking the presumption of adverse inference under section 114 (g) of the Evidence Act 1950 on the failure of the prosecution to call a witness – Whether the trial court erred in law and/or in fact when it failed to consider that the word “buah” was used and not the word “ganja” by the appellant – Whether appellate intervention warranted

JUDGMENT

Introduction

[1] This appeal emanates from the decision of the High Court at Penang, convicting the appellant for an offence of trafficking in dangerous drugs under section 39B(1)(a) of the Dangerous Drugs Act, 1952 (“DDA 1952”) and sentencing him to the mandatory death penalty.

[2] After reviewing the facts of the case and examining of the applicable laws, we dismissed the appeal and affirmed the decision of the learned trial Judge. We now provide the detailed reasons for our decision.

The Charge

[3] The amended charge preferred against the appellant reads as follows-

“Bahawa kamu pada 13/3/2014 jam lebih kurang 7.00 petang, bertempat di Lorong Kecil bersebelahan Masjid Cherok Tok Kun, Jalan Kilang Ubi, 14000 Bukit Mertajam, dalam Daerah Seberang Perai Tengah dalam Negeri Pulau Pinang, telah mengedar dadah berbahaya iaitu ‘Cannabis’ seberat 18,809 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama.”.

The Fact of the Case

[4] The facts giving rise to this appeal may be shortly stated as follows-

Version of prosecution

4.1 Acting on information received on 12.1.2014, D/Corporal Mohd Dahalan Bin Yunus (SP4), who was attached to the Secretariat Nuclear JSJN Bukit Aman, together with the team from the said Secretariat proceeded to Kulim, Kedah to meet and discuss with an informer relating to drug related activities.

4.2 SP4 testified that the informer had revealed to him information regarding trafficking of dangerous drugs by a male Malay who was nicknamed “Jatt”. Handphone number (012-4213562) of “Jatt” was provided to SP4 by the informer. The informer also told SP4 that a friend of his by the name of “Budin” was the one who introduced him to “Jatt”.

4.3 On the same day, i.e. 12.1.2014, at about 3.30 pm, SP4 contacted “Jatt” and introduced himself as “Pak Ndak” and informed that he would like to meet up with him. “Jatt” knew the purpose of SP4’s call because he already been informed by “Budin”.

4.4 On 12.1.2014, SP4 went to Jalan Kilang Ubi, Kampung Cherok Tok Kun to meet with “Jatt”. At the meeting, SP4 requested to buy 10 to 20 slabs “ketul” of cannabis/ “ganja” at a price of RM2,100.00 for each slab. “Jatt” told SP4 to contact him 2 to 3 days beforehand to place an order for the supply and requested that the present meeting place would also be the place for the transaction.

4.5 On 19.2.2014, at around 1.30 pm, SP4 met with the informer with the intention of meeting again with “Jatt” to discuss about the supply to be made. The informer revealed that “Jatt” was waiting for SP4’s arrival and that he was ready to supply the drugs.

4.6 On 19.2.2014, at around 3.30 pm, “Jatt” contacted SP4. At about 4.30 pm, SP4 contacted “Jatt” and “Jatt” went to meet SP4 using a Honda EX-5 motorcycle bearing registration No. PEB 8597 to finalise SP4’s request for the supply of cannabis/ ganja weighing 20 kg at RM2,100.00 a kilo. The informer was present with SP4 at this meeting.

4.7 An operation briefing was held. The head of operation was ASP Abdul Razak bin Md. Zain, from IPPK Kedah (SP6). SP6 instructed SP5 to be the “money man”. It was agreed that the signal to the team to move in was to be SP4 removing his “kopiah”.

4.8 After the briefing, the police party involved were requested to meet again at the RNR Butterworth-Kulim Eexpressway Lunas Kulim, at 3.00 pm. At 3.30 pm, SP4 and members of police party involved arrived at the RNR Lunas Kulim. SP6 handed over the “flash roll money” to SP5 totalling RM40,000.00 and also handed him keys to a black lorry bearing registration No. KAL 8959 which was to be used to drive to the area where the operation was to take place.

4.9 At about 5 pm, SP4 and SP5 arrived at the area where the operation was to take place, i.e., Taman Pongsun, Simpang Ampat nearby to Cherok Tok Kun.

4.10 At 5.30 pm, “Jatt” arrived at the area on his motorcycle no. PEB 8597 and SP5 showed him the “flash roll money”. After that, “Jatt” requested SP4 and SP5 to follow him in the direction of his kampung in order to collect the cannabis. However, SP5 refused citing the reason that they may be waylaid by robbers and anything untoward might happen. “Jatt” reacted angrily to this. SP4 and SP5 then left Simpang Ampat.

4.11 At 6.40 pm, “Jatt” contacted SP4 requesting him to come to the area of Masjid Cherok Tok Kun. SP4 agreed and arrived at 6.45pm where the “flash roll money” was shown again.

4.12 At around 7.10pm, “Jatt” called out to SP4 from the direction of the back door of the mosque and asked him to come and said “mai sini tengok buah”. SP4 said that “Jatt” understood what was meant by “buah”. SP4 proceeded towards “Jatt” and on arrival at the back door of the mosque, SP4 saw “Jatt” standing at the back of a black Proton Iswara No. KBC 6334.

4.13 At that time, “Jatt” was holding the key to the Proton car in his right hand. SP4 proceeded in the direction of “Jatt”. The booth of the car was open. No one else was there at that time. “Jatt” was holding the open booth while facing the drug exhibit.

4.14 SP4 counted the slabs of the cannabis, which were arranged in blue and white checkered plastic bag. Having ensured that the supply of the drugs were according to what as agreed, SP4 gave a signal by lifting his “kopiah” for the police party to move in.

4.15 The police raid was carried out and “Jatt” attempted to flee but was duly apprehended. Keys to the car were recovered from the right hand of “Jatt”.

Findings at the close of the prosecution’s case

[5] At the end of the prosecution’s case, upon a maximum evaluation of the evidence adduced before the Court, the learned trial Judge held that the prosecution had established a prima facie case against the appellant.

[6] His Lordship held at page 30 of AR, Jilid 1-

"[55] The evidence from SP4 clearly showed that the negotiation and the transaction between the accused and himself was for the supply of cannabis. The quantity and the amount was also clearly stated in evidence. The testimony of SP4 was supported and corroborated (although not required by law or as a matter of prudence) by SP5 and the other members of the raiding team. The acts of the accused here therefore clearly amounted to acts of selling and supplying within the very wide definition of section 2 DDA. The prosecution’s case was not based on custody or control (thereby invoking the presumption of possession), or on possession of cannabis (thereby attracting the presumption of trafficking) under s.37(d) or (da)(vi) of the DDA. See the case of PP v. Mansor Md Rashid & Anor [1997] 1 CLJ 233. In any event, knowledge and possession could be clearly inferred from the circumstances.”.

[7] Accordingly, the appellant was called upon to enter his defence.

Version of the Defence

[8] The appellant gave evidence on oath. The appellant’s version can be summarised as follows-

8.1 The appellant testified that he was asked by one “Budin” to send the Proton car-KBC 6334 to SP4 (Pak Ndak). The said “Budin” told him that Pak Ndak wanted to buy the car. Pak Ndak’s lorry had apparently broken down at Bukit Merah and it would take some time to be repaired and hence, he needed to buy the car. The appellant said that he was promised a sum of RM500.00 to do this.

8.2 The appellant stated that he did not know what was in the car and in the booth of the car. It was Pak Ndak who asked him to open the booth. “Budin” was a friend who introduced Pak Ndak to him. He denied having sight of the “flash roll money” at Simpang Ampat and went there to cancel the transaction for the sale of the “buah” or “fruits”.

8.3 The appellant said that Pak Ndak had asked him to supply the “buah”. He testified that the “buah” was actually a choice quality herbs for medicinal purposes. He needed “Budin”’s assistance for this as he was not the supplier of the “buah”.

8.4 The appellant admitted that Pak Ndak had asked him for 20 kilograms of the “buah”. He denied “buah” meant “cannabis” or “ganja”. He admitted that Pak Ndak would buy the “buah” and he would make a profit of RM5,000.

8.5 The appellant admitted meeting Pak Ndak beside the mosque at Cherok Tok Kun. He admitted going to the mosque at Cherok Tok Kun driving a Proton Iswara No. KBC 6334. He denied inviting SP4 to the back of the car to view the “buah”. He denied that the “buah” referred to and used for medication was an invention. He also denied that his version that he was paid RM500.00 to send the car was a mere invention. He also said that at the time he was arrested, there were others arrested.

8.6 The appellant said that “Budin” and Pak Ndak were out to entrap him by whatever means possible. He said that when the transaction failed, he was entrapped by the transaction for the sale of the car.

8.7 SD2, the wife of the appellant, testified that the appellant and “Budin” knew each other very well. She said the appellant was not involved in the sale of drugs but only in the sale of fruits (“buah”) at his shop.

Findings at the end of the defence’s case

[9] Upon evaluating all the evidence before the Court, the learned trial Judge held that the defence put forth by the appellant had failed to raise any reasonable doubt in the prosecution’s case.

[10] The learned trial Judge found the appellant guilty of the charge preferred against him and sentenced the appellant to suffer the death penalty as provided under section 39B(2) of the DDA 1952.

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

The Appeal

[12] Before us, learned counsel for the appellant assailed the decision on the following grounds-

(a) That the learned trial Judge erred in law and/or in fact in not invoking section 114(g) of the Evidence Act 1950 on the failure of the prosecution to call the owner of the car bearing registration No. KBC 6334; and

(b) That the learned trial Judge erred in law and/or in fact when His Lordship failed to consider that at all time, the word “buah” was used and nowhere was the word “ganja” used by the appellant.

[13] We will consider the grounds put forth by the appellant in that order.

Ground (a)

[14] With respect, we have some difficulties in comprehending the submission put forth by learned counsel for the appellant that the failure on the part of the prosecution to call the owner of the car No. KBC 6334 to testify would warrant the learned trial Judge to invoke the presumption of adverse inference under section 114 (g) of the Evidence Act 1950.

[15] The prosecution’s case against the appellant in this instant appeal hinges upon the alleged sale of cannabis which was negotiated between the appellant and SP4. Pursuant to that negotiation, the impugned drugs was delivered for sale to SP4 at the scene. It is clear, therefore, the appellant had committed an offence of drug trafficking as defined in section 2 of the DDA 1952.

[16] The evidence on record clearly shows that the key to the Proton Iswara car bearing registration No. KBC 6334 was seized from the appellant’s right hand during the raid by SP6. There was also no one else present at the material time.

[17] The act of the appellant in showing exhibits P20-P39 (compressed dried plant material suspected to be cannabis wrapped with transparent plastic found in the boot of the car) to SP4 entitled the learned trial Judge to infer that the appellant had knowledge of the impugned drugs. Such an inference can also be supported by the following evidence-the appellant attempted to flee upon hearing SP6 introduced himself as a policeman and the ensuing struggle between the appellant and SP6 and Corporal Salleh before the appellant was apprehended.

[18] In the circumstances of the case, in our view, the owner of the Proton Iswara car bearing registration No. KBC 6334 was not a material witness to unfold the prosecution’s case. In Raghubir Singh v State of U.P. Air 1971 SC 2156, the Indian Supreme Court had this to say-

“Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses. The appellant's Counsel has not shown how the prosecution story is rendered less trustworthy as a result of the non-production of the witnesses mentioned by him. No material and important witness was deliberately kept back by the prosecution. Incidentally we may point out that the accused too have not considered it proper to produce those persons as witnesses for controverting the prosecution version.”.

[19] It is trite law that where the prosecution’s evidence is overwhelming, the mere fact that the prosecution had failed to produce certain witness is insufficient to invoke the presumption of adverse inference under section 114(g) of the Evidence Act 1950 against the prosecution.

[20] It should be borne in mind that provided there is no oblique motive, the prosecution has a discretion whether or not to call a particular witness and also has a discretion specifically not to call a witness in whom it does not believe to be a witness of truth. That discretion, however, must be guided by the prosecution’s duty to discharge its burden of proof. As was stated by Salleh Abas LP in Abdullah Zawawi v P.P [1985] 2 MLJ 16-

“Although the prosecution has the right not to call every witness from whom a police statement has been taken, the question is how far does that right extend. The practice of making available a witness or witnesses from whom statements have been taken is to prevent the defence from commenting upon the honesty of the prosecution and thus invoking the often-quoted presumption of adverse inference under section 114 (g) of the Evidence Act 1950. But where the prosecution evidence falls short of proving a prima facie case at the end of its case, the right not to call such witness/ witnesses and to make him/them available to the defence will be of no avail.

the prosecution’s right not to call a witness from whom statements have been taken must always be guided by its duty to discharge the onus of proof.”.

[21] The first ground of appeal, must, therefore, fail.

Ground (b)

[22] Learned counsel for the appellant submitted that there is doubt whether the word “buah” meant “ganja”. According to learned counsel, learned D.P.P never put to the appellant in cross­examination that the word “buah” was used in place of “ganja”.

[23] In fact, in cross-examination of the appellant by learned D.P.P at page 156, AR, Volume 2, the appellant categorically stated that his negotiation with SP4 was concerning “buah”-

"TPR: (PUT) Sebenarnya daripada awal sekali, mula-mula awak call Pak Ndak, awak ada discuss pada 12.1.2014, awak ada discuss nak jual buah?

SD1: Ya, saya tak ingat tarikh.

TPR: Awak tetapkan harga buah, awak sendiri cakap jual buah tu pada harga RM2,100.00, satu kilo?

SD1: Ya, benar.”.

[24] With respect, the submission is misconceived and not supported by evidence on record. It is common knowledge that over the years, a wide variety of drug slang has been created and modified, in an effort to obscure sale and trade of illicit drugs from law enforcement officers. (See Drug Slang Code, DEA Intelligence Report, May 2017). We entertained no doubt that in this instant appeal, the expression “buah” was used as a code word for cannabis.

[25] The learned trial Judge rejected the appellant’s submission on this issue. His Lordship’s reasons in rejecting the submission were expressed as follows-

“[91] The defence of the accused was that the fruits or “buah” referred to in his conversations with SP4 were in fact medicinal herbs. However, from the inception of the meetings and the negotiations between SP4 and the accused with regard to the quantity and price of the “buah”, there was no evidence or indication that the “buah” referred to medicinal herbs. From a consideration of all the circumstances the expression “buah” was used as a code word for cannabis. This fact was also testified to by SP4 in evidence.

[92] Further, during the course of the prosecution case, no suggestions were advanced that the expression “buah” referred to expensive traditional medicinal herbs, Alfalfa, and the like. This omission rightly entitles the defence version on this point to be categorised as an afterthought.

[93] If the version of the defence were true, and the sale transaction was for the supply of medicinal herbs, the question then arises as to why such a transaction was shrouded in so much secrecy. If the sale transaction was regarding medicinal herbs, it would have been carried out openly. If the subject matter of the transaction was of a legal nature, it could and would most conveniently have been carried out at the stall where the accused ran his business.

[94] The manner of setting up the final meeting between the accused and SP4 was preceded by meetings and SMS’s between them. Upon a consideration of the mode employed by the accused for SP4 to view the “buah” or cannabis including the request to view the “flash roll money”, it can be inferred that the transaction to be carried out was not for the sale of something as innocuous as herbs.

[95] Several features of the defence version does not stand up to curial scrutiny in this regard. The evidence of the defence was that the transaction for the sale of the medicinal herbs amounted to RM40,000.00 and while some herbal medication may not be altogether cheap, the amount said to be involved here is excessive. Why was there also a need to view the money first before transacting in such an innocuous transaction? Further, if the transaction was about the sale of medicinal herbs which is not an item prohibited by law, why was there a need to say that a particular place was unsafe and to then change venue to the area beside the mosque at Cherok Tok Kun?”.

Conclusion

[26] We do not find any reason to interfere with the decision of the learned trial Judge. The prosecution has proved its case beyond reasonable doubt that the appellant had engaged in trafficking of the impugned drugs as defined under section of 2 of the DDA 1952.

[27] The evidence against the appellant is overwhelming. The case involved the role of agent provocateurs and the eventual sale and purchase of the impugned drugs.

[28] Consequently, we dismissed the appeal and affirmed the decision of the learned trial Judge. So ordered.

Dated: 6th March 2018

sgd.

DATO’ SETIA MOHD ZAWAWI SALLEH
Judge
Court of Appeal
Malaysia

COUNSEL

For the Appellant: Baldev Singh Bhar, Syarikat Baldev Bhar Solicitors, Peguambela dan Peguamcara, No. 3A-02-01, Sri Weld, Pengkalan Weld, 10300 Pulau Pinang

For the Respondent: Mangaiarkarasi a/p Krishnan, Deputy Public Prosecutor, Appellate and Trial Division, Attorney General’s Chambers, No. 45, Persiaran Perdana, Precinct 4, 62100 Putrajaya

Legislation referred to:

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

Evidence Act 1950, Section 114(g)

Judgments referred to:

Abdullah Zawawi v P.P [1985] 2 MLJ 16

Raghubir Singh v State of U.P. AIR [1971] SC 2156

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