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[2018] MYCA 20 ENGLISH

Public Prosecutor v Abu Zar Bin Ahmad
Suit Number: Criminal Appeal No. B-05(LB)-403-11/2016 

Criminal law – Trafficking in dangerous drugs – No prima facie case proved – Acquittal – Appeal by prosecution

Criminal law - Whether the failure of the prosecution to call certain witnesses created a gap in their case – Whether there was a break in the chain of evidence which affected the identity of the drugs

JUDGMENT

[1] The respondent was charged for the following:

"Bahawa kamu, pada 26 Oktober 2013, jam lebih kurang 4.30 pagi, di rumah No. A19-C, Blok A, Jalan Hilir 3, Taman Angsana Hilir, Ampang, dalam Daerah Hulu Langat, dalam Negeri Selangor Darul Ehsan, telah mengedar dadah berbahaya iaitu Cannabis seberat 654.6 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”.

[2] At the end of prosecution case, the trial judge found there was no prima facie case proved against the respondent. Hence, he was acquitted and discharged from the charge as above.

[3] Dissatisfied, the prosecution filed the present appeal. At the conclusion of arguments, we dismissed the appeal and affirmed the decision by the trial judge. We now give our reasons.

THE PROSECUTION CASE

[4] The pertinent facts adduced on behalf of the prosecution reveal that on 26 October 2013 at around 4.30 am, Mohd Isa bin Hassan (SP10) was patrolling with his team for ‘Operasi Tapis’ at the address specified in the charge. They arrested the respondent with one Zulkamal Azman bin Nawawi (SP4) near Block A of the condominium. Bodily search revealed no contrabands on both of them. However, SP10 found a bunch of keys and an access card (P24) from the respondent. SP10 used P24 and brought the respondent and SP4 to unit No. A19/C, at level 19 of the condominium. He then unlocked the padlock of the grill door by using one of the key seized from respondent. At the living room of the house, there was a table on which a paper bag bearing Timberland brand was found. SP10 checked the said paper bag, witnessed by both respondent and SP4. Two compressed slabs [P7 (b) and (c)] of dried leaves suspected to be cannabis were found inside the paper bag. SP10 also had checked another ‘Camel’ brand bag which had 23 grams of cannabis placed inside a transparent plastic bag and a Persatuan Bulan Sabit Merah Malaysia (PBSM) book registered on SP4’s name.

[5] As a result of further examination of the entire house, SP10 had arrested the respondent’s fiance, Ummikalsom Binti Nordin (SP8) and another room’s tenant, Amir bin Haji Ali (SP2). Exhibits were duly marked by SP10. All four who were arrested together with the exhibits were brought to IPD Ampang Jaya. A police report (P28) was lodged in relation to this case by SP10. Drug exhibits and the suspects were handed over to the Investigating officer, ASP Mohamad Rashidi bin Mat Din, (SP11). As a part of investigation, SP11 had sent the drug exhibits to the Chemistry Department. The chemist, Norhaya binti Jaafar (SP1) who had analysed the dried leaves confirmed them to be Cannabis weighing 654.6 grams. Cannabis is listed under first schedule of Dangerous Drugs Act 1952 (the Act).

FINDINGS OF TRIAL JUDGE

[6] Learned trial judge found the prosecution had proven that the substances seized from the respondent’s house were Cannabis. It was held that the drugs produced in Court were the same drugs seized by SP10 at the scene of crime, there was no break in the chain of the movements, custody and handling of the said drugs.

[7] However, it was decided that the prosecution had failed to prove the respondent had custody and control over the said drugs and thus he cannot be said to have been in possession of the same. The learned trial judge referred to Chan Pean Leon v Public Prosecutor [1956] 22 MLJ 237 and concluded that it is a duty placed upon prosecution to prove by direct evidence or by inference that only respondent, in exclusion of all other persons, had the access to the premises from which the drugs were found. In this case, facts adduced by the prosecution show that apart from the respondent himself, the said premises was accessible by SP2, SP6, SP7 and SP8. On the day of incident, SP4 was also present there and they had two other guests, namely Pearl Hakim and Mohsen. Drugs were also found inside SP4’s bag and this had resulted him being charged at Ampang Magistrates Court for an offence of possession of illicit drugs.

[8] In addition, SP6 had testified that the living room of the house is accessible from the balcony of condominium as their neighbour had once entered their house through the balcony to take his pet. Police did not investigate this issue and the prosecution did not call the respondent’s neighbour to disproof this version. The presence of two other people, Pearl hakim and Mohsen was also not investigated by the police although this fact was well within their knowledge when SP4 gave his cautioned statement. The learned trial judge did not accept the prosecution argument that they had proved the house was accessible only by the respondent in exclusion of all other persons and held that their failure to call these two individuals was fatal to their case.

[9] Pearl Hakim and Mohsen, if had been called to give evidence would have shed some light about the drugs found in “Timberland” bag as SP4’s evidence cannot be relied on totally. SP11 testified that he was unable to investigate about Pearl Hakim and Mohsen due to lack of information. The learned trial judge opined that SP11, as an investigating officer ought to have taken initiative to exhaust all his sources, either the respondent himself or any other government agencies to locate these two individuals who are vital for the prosecution’s case. The impugned drugs found inside the bags placed on the dining table of the house. They were not hidden and accessible by all other occupants of the house. Thus, there are more than one inferences can be drawn, such as they were kept there either by the respondent or SP4 or SP2 or SP6 or SP7 or SP8 or Mohsen or Pearl Hakim. These doubts, according to the learned trial judge, remain unclear. Had SP11 conducted an investigation on the CCTV (closed-circuit television) fixed at the lobby of the condominium, could have been helpful in revealing who had indeed brought the Timberland bag to the respondent’s unit. Based on the foregoing, the learned trial judge decided that the prosecution had failed to establish a prima facie case against the respondent. Thus, he was acquitted and discharged from charge proscribed against him.

THE APPEAL

[10] Before us, the prosecution had canvassed 2 pertinent grounds as below:-

(i) SP11’s failure to investigate about Pearl Hakim and Mohsen was not fatal to the prosecution case; and

(ii) “Timberland” bag belonged to the respondent.

OUR FINDINGS

[11] The prosecution argued the failure to call Pearl Hakim and Mohsen had not affected the strength of their case taking into account the fact that remain undisputed i.e. “Timberland” bag was belonged to the respondent. SP11 had explained that his hands were tied due to insufficient information given by the respondent and SP4 in relation to these two individuals. We had perused the notes of evidence and we referred to the decision of the Federal Court in Alcontara Ambross Anthony v Public Prosecutor [1996] 1 CLJ 705 at p.709 where it was held:-

“...the onus was on the prosecution to check whether the appellant’s version of the facts, as they appeared in his cautioned statement and to which we have referred, was true or false. In other words, the onus was upon the prosecution to disprove this important part of the appellant’s version of the facts”

[12] A similar sentiment was expressed by the Federal Court through James Foong FCJ in Aedy Osman v Public Prosecutor [2011] 1 CLJ 273 at p. 283 as below:-

“...it is incumbent upon the prosecution to call evidence to rebut any claim which is relevant and material by the defence in the course of cross examination of the prosecution witnesses than risking dismissal of its case for want of proof”.

[13] We found based purely on the evidence that Pearl Hakim and Mohsen were not fictitious characters as their presence in that condominium unit on the day of arrest was confirmed by both SP4 and SP8. SP4, in his examination in chief at p. 38 of Appeal Record 2A and at p.105-106 of Appeal Record 2B had this to say:-

SP4 (examination in chief)

J: Selesai makan, kami balik ke condo, masa itu lebih kurang jam 10.00 malam. Kami bertiga saja yang balik ke condo. Lepas naik ke atas, ada 2 orang kawan Abu datang, nama Mohsen dan Pearl. Saya tak tahu bagaimana mereka naik ke atas, saya tak tahu samada mereka ada access card atau tidak, tak pasti.

J: Saya telah dibawa ke bawah oleh Abu untuk mencari kawan. Pada masa Pearl dan Mohsen datang ke rumah itu saya sedang duduk di ruang tamu di atas sofa, saya Nampak mereka masuk tetapi tak ingat samada mereka bawa apa barang atau tidak.

[14] During cross examination at p.111, Appeal Record 2B, SP4 had confirmed that he had told the police about Pearl Hakim and Mohsen. Meanwhile SP8, in his cross examination at p.117 of Appeal Record 2B had said as below:-

SP8 (cross examination)

S: Kamu pernah dengar nama Pearl Hakim dan Mohsen?

J: Pada malam itu, Mohsen saya tak tahu nama, saya kenal dia (Mohsen) melalui OKT, selain itu latar belakang dia saya tak tahu. Begitu juga dengan Pearl Hakim. Kedua-dua mereka kami jumpa masa makan di rumah.

S: Kenapa dia datang ke rumah itu?

J: Tak tahu

S: Ada lihat Pearl Hakim?

J: Tak pasti, yang pasti Mohsen sahaja. Saya masa keluar bilik mandi ada perasaan ada orang di ruang tamu.

[15] In so far as the credibility of SP4, there was no impeachment proceeding carried out against him due to the objection by learned counsel for the respondent. Meanwhile SP8’s evidence, particularly on the information supplied by him about Pearl Hakim and Mohsen remains unchallenged by the prosecution. In his cross examination, SP11 had admitted that SP4 did mention about Pearl Hakim and Mohsen in his cautioned statement. It is incumbent on the prosecution to prove that the respondent had sole custody and control of the impugned drugs to establish the possession of the same. It is trite law that possession, in order to incriminate the accused must have the following characteristics namely (a) the possessor must know the nature of the thing possessed; (b) he must have the power of disposal over it and (c) he must be conscious of his possession of the thing. Based on these premises and having subjected the prosecution's evidence to a maximum evaluation, the learned trial judge had rightly ruled that the prosecution had failed to prove the respondent had exclusive use of the house from which the drugs were found and that only he had the power to deal with the same in the exclusion of all other persons. We referred to the Federal Court decision in Gooi Loo Seng v Public Prosecutor [1993] 3 CLJ 1 where it was held:-

“We need hardly add, that even if the appellant had known of the presence of the heroin in his bedroom, that by itself would not have been sufficient to establish that he was in possession or in control of it given the fact that others too, and certainly his girlfriend Tan Ah Kwai, had access to the bedroom and could have concealed the heroin there. At the end of the day, this was a case of the proverbial cap which might have fitted not just the head of the appellant but that of others as well”.

[16] Applying the principles set out in the aforesaid case to our present facts, we held that although the prosecution had called all other occupants of the house to give evidence, failure to call Pearl Hakim and Mohsen had created a gap in their case and had seriously prejudiced the respondent. The version of the respondent was put to the prosecution witnesses and the cautioned statement of SP4 was consistent with that version. Thus, the onus was on the prosecution to call these two people to disproof the same. To the least, SP11 could have produced the CCTV recording which was in proper working order on the day of incident as it is an independent and a best evidence to prove to whom the “Timberland” bag was actually belonged to.

[17] Moving on to the next issue, it was submitted by the prosecution that the “Timberland” bag was belonged to the respondent based on SP10’s evidence who claimed the bag was shown to him by the respondent himself and the respondent did not deny his ownership over the same. Contrary to this, SP4’s unchallenged evidence was that the police raided the house, found the drugs and showed the same to him and the respondent. It was an uncontroverted evidence that the drugs were found on a table at the living room of the house which was accessible to all other occupants. This, was admitted by SP10 in both his examination in chief and cross examination. In respect of this argument, we found the police had the means of discovering the impugned drugs without any assistance from the respondent which renders any information or gesture by the respondent pointing to the said drugs is inadmissible. The cannabis was found not in a place of concealment at all and could have been found in the normal course of investigation by the police and therefore section 27 of the Evidence Act 1950 is inapplicable. There is no contemporaneous evidence with regards to the respondent’s so-called gesture pointing to the bag which had drugs to SP10, thus accepting this piece of evidence from SP10 at this juncture would be highly prejudicial to the respondent.

[18] Quiet apart from the above, as we observe the arguments by both parties, what was more damaging for the prosecution was the break in the chain of evidence which had affected the main ingredient of the charge, i.e. the identity of the drugs. The chemist, SP1 had testified in court that both envelopes containing drugs were received unsealed. Those exhibits were also used in the trial at the Ampang Magistrates court. SP1’s testimony can be seen at p. 3-6 of Appeal Record 2A as below:-

SP1 (examination in chief)

Mah: Dicamkan.

         Ditandakan ID7 (Sampul A)

         Ditandakan ID8 (Sampul B)

J: Saya tidak tahu siapa yang buka sampul ini, tapi kes ini telah dibicarakan di Mahkamah Majistret.

SP1 (cross examination)

S: Tadi kamu ada beritahu mahkamah bahawa sampul surat ini telahpun dibuka di Mahkamah Majistret, boleh beritahu apa maksud, bagaimana sampul surat ini dibuka di Mahkamah Majistret?

J: Saya telah dipanggil untuk satu perbicaraan bagi kes yang sama di Mahkamah Majistret Ampang, minta maaf saya lupa tarikh perbicaraan tersebut dan ketika perbicaraan, ketika membuat pengecaman, barang kes telah dibuka. Jadi saya tiada dalam pengetahuan saya siapa yang membuka sampul surat tersebut.

[19] There was no explanation given about who had opened the envelopes containing drugs prior to the trial and this had compromised the integrity of the drug exhibits. Looking back at the totality of evidence for the prosecution, we found that it did not disclose or irresistibly points to the guilt of the respondent as per charge. As Spencer Wilkinson J said in Tai Chai Keh v PP [1948] 1 LNS 122 at p. 108, “Where there is more than one inference which can reasonably be drawn from a set of facts in a criminal case, we are of opinion that the inference most favourable to the accused should be adopted”.

CONCLUSION

[20] The trial judge had meticulously gone through and appreciated the evidence before him as it was detailed in his grounds of judgment. We are satisfied that no substantial miscarriage of justice had occurred. There are no appealable errors. In the upshot, we upheld the decision by the High Court to acquit and discharge the respondent from the charge under S. 39B(1)(a) of the Dangerous Drugs Act 1952. The prosecution’s appeal is therefore dismissed.

t.t.

MOHTARUDIN BIN BAKI
Judge,
Court of Appeal Malaysia

Dated: (TBC) January 2018

COUNSEL

For the Appellant: Puan Tengku Intan Suraya Tengku Ismail, Timbalan Pendakwa Raya, Bahagian Perbicaraan dan Rayuan, Jabatan Peguam Negara Malaysia, Putrajaya

For the Respondent: Mr Eric Paulsen and Miss Latheefa Koya, Messrs Daim & Gamany, Unit A-1-1, Block A, 8th Avenue, Jalan Sungai Jernih 8/1, Section 8, 46050 Petaling Jaya, Selangor Darul Ehsan

Legislation referred to:

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

Evidence Act 1950, Section 27

Judgments referred to:

Aedy Osman v Public Prosecutor [2011] 1 CLJ 273 

Alcontara Ambross Anthony v Public Prosecutor [1996] 1 CLJ 705

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

Gooi Loo Seng v Public Prosecutor [1993] 3 CLJ 1

Tai Chai Keh v PP [1948] 1 LNS 122

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