THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 109 ENGLISH

Tan Ming Beng v Public Prosecutor
Suit Number: Criminal Appeal No. N-05(M)-23-01/2017 

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

Criminal law – Criminal procedure – Whether the previous panel of the Court of Appeal erred in law and in fact when they allowed the prosecutor’s appeal – Whether the previous panel of the Court of Appeal failed to furnish reasons for its decision/ grounds of judgment when they ordered the appellant to enter his defence before the High Court – Whether the previous panel of the Court of Appeal and the High Court erred in law and in fact when either of them failed to exercise proper evaluation of the evidence

JUDGMENT

[1] This is the appellant’s appeal in respect of his convictions and sentences upon the following charges:

First Charge:

"Bahawa kamu pada 30 Julai 2012, jam lebih kurang 2.45 pagi, di KM 260 (U) Lebuh Raya Utara Selatan di dalam daerah Seremban, di dalam Negeri Sembilan, telah mengedar dadah berbahaya iaitu 1705.6 gram 3.4 Methylenediox methamphetamine (MDMA), oleh yang demikian kamu telah melakukan kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya, 1952 dan boleh dihukum di bawah s.39B(2) Akta yang sama.”

Second Charge:

"Bahawa kamu pada 30 Julai 2012 jam lebih kurang 2.45 pagi, di KM 260 (U) Lebuh Raya Utara Selatan di dalam daerah Seremban, di dalam Negeri Sembilan, telah mengedar dadah berbahaya iaitu 2.38 gram Methamphetamine oleh yang demikian kamu telah melakukan kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah s.12(3) Akta yang sama.”

[2] The appellant was sentenced to suffer the death penalty in respect of the first charge and was jailed for 18 months in regard to the second charge, to run with effect from the date of his arrest.

[3] We found no merit in his appeals and consequently dismissed the same upon the grounds enumerated below.

The Case For The Prosecution

[4] On 30.7.2012, SP-7 (Sjn. Zambri bin Aziz) was on duty patrolling and doing enforcement work along the Seremban-Ayer Keroh PLUS Highway, towards the north. L/Kpl. Khairol was driving the police vehicle.

[5] A Toyota Wish motorcar bearing the registration number WPU 3138 caught his attention as the motorcar was driven in a zig-zag manner, at a speed of 90 to 100 km per hour.

[6] SP-7 attempted to halt the motorcar by activating the siren and switching on the beacon lights of his patrol car and giving verbal orders by a loud hailer. Instead, the said motorcar continued speeding.

[7] SP-7 and L/Kpl. Khairol gave chase and contacted Bilik Gerakan Traffic Bukit Aman, informing them of the situation, and sought aid from nearby patrol units.

[8] Responding to the situation, a Unit 5 Seremban MPV comprising of SP-9 (L/Kpl Hasmizi) and PC Mahindra proceeded to hold a road block at KM 260 (north) as part of the measures to halt the said motorcar.

[9] When the said Toyota Wish arrived at the road block at about 2.45 a.m. the motorcar attempted to drive through the emergency lane. However the said lane was blocked by a stationary vehicle.

[10] SP-8 (Kpl. Zulkifly b. Mohd Zin) and PC Mahindra gave a warning to the driver of the Toyota Wish to stop, get out of the motorcar and surrender to the police. However, the orders were ignored and the motorcar almost hit PC Mahindra.

[11] In an attempt to stop the said motorcar, PW-8 and PC Mahindra fired several gun shots, hitting the front left and right tyres of the motorcar. At about the same time, SP-7 and L/Kpl. Khairol arrived at the scene and stopped behind the Toyota Wish. Both alighted from their vehicle.

[12] The driver of the Toyota Wish motorcar attempted to flee upon opening the motorcar door but was apprehended by L/Kpl. Khairol and subsequently handcuffed. The said driver was the appellant. He suffered minor injuries on his knee and chin when he scuffled to avoid arrest.

[13] SP-7 did a body search on the appellant but found nothing incriminating upon him.

[14] SP-7 thereafter searched the said motorcar and found:

(i) 1 (one) red coloured plastic bag at the passenger foot rest at the back of the driver’s seat containing 2 boxes carrying the ‘Nation Wide Express’ brand name sealed with adhesive tapes. SP-7 opened the two boxes in the presence of the appellant, SP-8, L/Kpl. Khairul and PC Mahindra. In the first box (marked ‘A’) were 9 transparent plastic packets (marked A1 to A9) containing pills suspected to be dangerous drugs. In the second box (marked ‘B’) were 21 transparent plastic packets (marked ‘B1’ to ‘B21’) containing similar pills suspected to be dangerous drugs.

(ii) 1 (one) brown coloured sling bag carrying the ‘Arrow’ brand name at the front passenger seat, containing 1 box with a black and yellow lettering ‘Jobon Smoking Sets’ printed on it. Inside the said box were 3 small transparent plastic sachets (marked ‘C1, C2, C3’) containing crystalline power and lumps believed to be dangerous drugs. The sling bag also contained a digital weighing machine and 2 handsets.

(iii) 1 (one) red coloured bag with the printed words ‘SKIN FOOD SINCE 1957’ next to the brown coloured sling bag, containing one Immigration Office passport application form in the appellant’s name; one copy of the appellant’s identity card; one wallet containing the appellant’s identity card; and one passport size photograph of the appellant.

[15] All the items enumerated above were seized by SP-7 and subsequently handed over to the investigating officer of the case, SP-13 (Insp. Sharifah Noorula Ain Bt. Syed Salim), together with the appellant at IPD, Seremban.

[16] The chemist, SP-2 (Dr. Vanitha a/p Kunalan), upon analysis found the substance in 8 plastic packets (marked ‘A1’ to ‘A8’) in the first box to contain 385.7 grams of 3, 4-methylenedioxmethamphetamine (MDMA) and the other plastic packet (marked ‘A9’) to contain 58.7 grams of 3, 4-methylenedioxymethamphetamine (MDMA).

[17] SP-2 also found the substance in 21 plastic packets (marked ‘B1’ to ‘B21’) in the second box to contain 1261.2 grammes of 3, 4-methylenedioxymethamphetamine (MDMA). In addition, SP-2 found the substance in the sachets marked ‘C1’, ‘C2’ and ‘C3’ to be 3.28 grammes of methamphetamine (hereinafter collectively referred to as ‘the said drugs’). She found the said drugs listed in the First Schedule of the Dangerous Drugs Act, 1952 (hereinafter referred to as the ‘DDA’). SP-2’s report is exhibit P14, shown at pp.40, 41 of Jilid 3, Rekod Rayuan (‘RR’).

[18] At the end of the prosecution’s case, the learned trial judge found that despite that the prosecution was able to prove that the appellant had possession of the said drugs which was found in the Toyota Wish motorcar, the discrepancies in the evidence of the raiding officers and chemist as to the identity of the said drugs, had led to doubts as to whether the said drugs that was seized from the appellant in the said motorcar is the same drugs that was sent to the chemist for analysis. Premised upon the said grounds the learned trial judge further found that the prosecution had failed to prove a prima facie case against the appellant on both the charges. Hence, the appellant was acquitted and discharged at the end of the prosecution’s case.

[19] Aggrieved by the said decision, the learned public prosecutor appealed to the Court of Appeal, whereupon their appeal was allowed and the appellant was consequently ordered to enter his defence to answer the two charges levelled against him before the same trial judge.

The Defence Of The Appellant

[20] The appellant gave an unsworn written statement from the dock.

[21] In brevity, the appellant said that on 30.7.2012 at about 1.45 a.m. he had stolen a ‘Toyota Wish’ motorcar bearing the registration number WPU 3138 at Bandar Cheng, Melaka.

[22] He was arrested by the police about an hour later (at about 2.45 a.m) at KM 260 (north), Melaka-Seremban PLUS Highway whilst on his way home in Sendayan, Seremban, driving the said stolen motorcar.

[23] The appellant admitted that before he stole the said motorcar, he had consumed excess beer and was in a drunken stupor and was also suffering from dizziness.

[24] He saw a police road block at KM 260 (north) of the highway. He took flight for fear of being arrested for stealing a motorcar. At that point of time he was unaware that there were drugs at the back of the driver’s seat and at the front passenger seat of the motorcar. He was scared when police opened fire at the motorcar he was driving.

[25] The appellant denied that he had knowledge of the existence of the said drugs in the said motorcar.

[26] The appellant said that after his arrest, his wallet was seized by the police from his pocket. He added that it was not true that his wallet was found in the brown coloured bag.

[27] The appellant also said that before his arrest, he had driven another ‘Toyota Wish’, belonging to one ‘Datok Cina’. That ‘Toyota Wish’ is not the same ‘Toyota Wish’ that he was caught with by the police on the 30.7.2012 where the drugs were found. The ‘Toyota Wish’ he was driving before his arrest was a 2000 cc motorcar whereas the ‘Toyota Wish’ he was caught with on 30.7.2012 had a 1800 cc engine capacity.

[28] The appellant also said that the house in Sendayan was not rented by him but his girlfriend, Fazlira bt Mohd. Fauzi, from May 2012.

[29] The appellant further said that according to the evidence of SP-11 (Mohd. Firdaus bin Abdul Aziz), the rented house in Sendayan bore the address of No. 363, Jalan Nusari Bayu 1/1 whereas SP-13, the investigating officer gave the address as No. 362. Jalan Nusari Bayu 1/2. SP-13 also said that SP-11 confirmed that the appellant had stayed in Sendayan from January 2013.

[30] The appellant contended that this is impossible as he was arrested in July 2012. The appellant averred that SP-11 had lied when he said that he was transacting with the appellant when renting out the house in Sendayan from January until October 2012 when he was already arrested in July 2012.

[31] Hence, the appellant stated that SP-11 was not telling the truth when he said that every time he passed by the appellant’s rented house in Sendayan, he saw the ‘Toyota Wish’ from the month of January until October 2012, when the said motorcar had been seized by the police in July 2012.

[32] The appellant also raised the issue of the discrepancies in the identity of the drugs which was seized by the police raiding party and the drugs which was analysed by the chemist.

[33] The appellant called SD-2 (Nor Izuan bin Yusoff), the owner of the house in Sendayan, allegedly rented to the appellant.

[34] SD-2 stated that he did not know the appellant nor have any knowledge of the drugs that the appellant was charged with. He left all matters pertaining to the renting of his house entirely to SP-11 as he was in active service with Tentera Laut Di Raja Malaysia, stationed in Sabah at the material time.

[35] The appellant also took issue with the testimony of SP-11 where he said that he did not rent out the said house in January or February as the renting of the house was done by SD-2 and his role was only to collect the rent, whereas SD-2 said that he did not know who had rented his house as all matters relating to the renting of the said house was done by SP-11.

[36] SD-3 (ASP Juliana binti Kasim) effected the arrest of Fazlira Bt Mohd. Fauzi on 30.7.2012 at around 1.00 p.m. at house No. 362, Jalan Nusari Bayu 1/2, Nusari Bayu 1, Bandar Seri Sendayan, the house rented by the appellant. A straw tube containing syabu was found on her during the arrest. Fazlira binti Mohd. Fauzi was subsequently charged and convicted of a drug related offence. According to SD-3, at the time of her arrest, the appellant was in a police van outside the house.

[37] The learned trial judge took cognisance of the fact that the appellant gave an unsworn statement from the dock, precluding the same from the scrutiny of cross-examination, the standard test to gauge one’s veracity, thereby entitling little weight to be accorded to such statement.

[38] Nevertheless, after having analysed the evidence in its entirety, in conclusion the learned trial judge opined, at p.76, Jilid 1 RR:

"50. I have considered the unsworn statement given by the accused and found them to be a bare denial and assertion. In any event, statements as such, are negligible in weight due to it not tested in cross-examination. As far as the evidence of DW-2 and DW-3 are concerned, their evidence does not make any difference to the case of the prosecution.

51. Therefore after hearing and evaluating the evidence by the accused and his witnesses and submissions by learned counsel and DPP, I found that the accused has failed to cast a reasonable doubt on the case of the prosecution on the 2 charges preferred against him."

[39] The appellant was thereupon found guilty and convicted of both the charges preferred against him. On the first charge the appellant was sentenced to death and on the second charge he was jailed for 18 months to run with effect from the date of his arrest.

The Appeal

[40] The appellant had raised the following grounds of appeal:

(i) The previous panel of the Court of Appeal (in the first appeal by the learned DPP) had erred in law and in fact when they allowed the Public Prosecutor’s appeal and ordered the appellant to enter his defence on account that the filing of the petition of appeal was invalid.

(ii) The previous panel of the Court of Appeal had failed to furnish reasons for its decision/ grounds of judgment when they ordered the appellant to enter his defence before the High Court. This failure had prejudiced and hampered the appellant in the preparation of his defence.

(iii) The previous panel of the Court of Appeal and the High Court erred in law and in fact when either of them had failed to exercise maximum evaluation of the evidence of the following issues, which had they done so, would favour the appellant:

(a) the Toyota Wish motorcar where the appellant was arrested with and in which the drugs were found was stolen by the appellant about 1 hour before his arrest;

(b) the Toyota Wish vehicle in which he was seen driving around town before his arrest was not the same Toyota Wish he was arrested with but another Toyota Wish belonging to one Datok Cina;

(c) the contradictions in the testimonies of SD-3 and SP-13 as to the exact time the appellant was actually removed from Seremban IPD lock-up to be taken to his house at Taman Sri Sendayan; and

(d) the uncertainties surrounding the recovery of the appellant’s purse-whether it was recovered from the brown coloured bag or red coloured bag or was seized from the person of the appellant.

Our Decision

Ground (i)-invalid filing of the petition of appeal in the first appeal before the Court of Appeal

[41] Learned counsel for the appellant contended that the petition of appeal in respect of the first appeal by the public prosecutor before the Court of Appeal was invalid on account that the said petition was wrongly filed with the Court of Appeal Registry instead of High Court Registry at Seremban in violation of s.53(1) of the Courts of Judicature Act, 1964 (‘CJA’). The said s.53(1) provides:

"53 Petition of appeal

(1) Within 10 days after service of the notice referred to in section 52(2) the appellant shall file with the [Registrar of the Court from which the appeal lies] a petition of appeal and five copies thereof addressed to the [Court of Appeal].”

[42] Armed with the aforesaid provision, learned counsel now submitted that the previous panel of the Court of Appeal erred in law and in fact when they considered and allowed the said petition of appeal which was filed not according to law. The decision of the said panel of the Court of Appeal was hence tainted with illegality.

[43] Having perused the relevant laws, we were with the learned Deputy Public Prosecutor’s (‘DPP’) submission that the relevant law in respect of the filing of the petition of appeal is r.65 of the Rules of the Court of Appeal 1994 (P.U. (A) 524/94) (‘RCA’) read together with r.61 and 63 of the same Rule. For purposes of clarity, herein below we reproduced the relevant rules in extenso:

"Notice to be forwarded to the Registrar

60. On receipt of a Notice of Appeal the Registrar of the High Court shall forthwith make a note of the particulars of the same in a register to be kept by him and shall forthwith send such Notice and three copies thereof to the Registrar of the Court at Kuala Lumpur and shall send one copy thereof to the respondent.

Papers

61. (1) As soon as practicable after the filing of a Notice of Appeal in his Registry, the Registrar of the High Court shall forward to the Registrar of the Court at Kuala Lumpur particulars of the proceedings in the High Court in Form 7 in the First Schedule together with seven copies of the following papers:

(a) the High Court Judge’s Notes of Proceedings;

(b) the Notes of Proceedings in the subordinate court, where applicable;

(c) all documentary exhibits produced at the proceedings of the High Court and the subordinate court, where applicable, except such as are of so voluminous a nature that the copying thereof in the opinion of the Registrar of the High Court will cause undue delay;

(d) where the trial has been with the aid of a jury or assessors a note (verbatim if available) of the charge or summing-up to the jury or assessors;

(e) where the trial or appeal has been by a Judge alone a written judgment delivered by the trial Judge or where no such written judgment had been delivered a statement in writing by the trial Judge of the grounds of his decision; and

(f) a list of the exhibits at the proceedings in the High Court and in the subordinate court, where applicable.

(2) The Registrar of the High Court shall deal with the exhibits as directed by the Registrar of the Court.

Service of papers

63. As soon as may be practicable the Registrar of the High Court shall cause copies of all the papers mentioned in rule 61 to be served on both parties to the appeal.

Petition of Appeal

65. (1) Within a period of ten days after service upon him of the papers mentioned in rule 63 or within such extended period as the Court may allow the appellant shall file with the Registrar a Petition of Appeal and eight copies thereof.

(2) A Petition of Appeal shall be substantially in Form 8 in the First Schedule.

(3) On receipt of a Petition of Appeal the Registrar shall send a copy thereof to the Registrar of the High Court and shall send a copy of the same to the respondent.”

[44] The wording employed in the Rules are plain and unambiguous. It is clear from r.65(1) that the appellant shall file, in the prescribed form, a petition of appeal and 8 copies of the same thereof with the Registrar of the Court of Appeal. The “Court” referred to in s.65(1) refers to the Court of Appeal and the ‘Registrar' appearing therein equally refers to the Registrar of the Court of Appeal pursuant to the respective meanings assigned thereto in r.2 of the RCA.

[45] Hence, the appellant then i.e the Public Prosecutor, was correct when they filed their respective petition of appeal with the Registrar of the Court of Appeal. They have not committed any error of law amounting to an illegality in doing so. Verily, there is absolutely no merit in this ground of appeal.

[46] In any event, we were of the view that the proper forum where this issue ought to have been raised at the earliest possible instant must be before the previous panel of the Court of Appeal. They were properly seized with the jurisdiction to sort out the issue as the appeal and every other matters incidental thereto were before them to be adjudicated. In fact this issue should be raised as a preliminary issue by the appellant, being the respondent then, for prior resolution before the engagement of the main issues in the appeal. This, though, was not done.

[47] Hence, this issue is a non-starter altogether.

Ground (ii)-the failure by the previous panel of the Court of Appeal to furnish the reasons for its decision or grounds of judgment in calling the appellant to enter his defence

[48] Learned counsel submitted that the failure by the previous panel of the Court of Appeal (the previous panel) to furnish the reasons for its decision/ grounds of judgment, had indeed prejudiced the appellant, his counsel and also the High Court judge, in the performance of their duties and obligations. It was contended that it is the imperative of the previous panel to provide the reasons for its decision/ grounds of judgment and the failure to do so would amount to a dereliction of duty obligated upon them.

[49] It was further submitted that since no reasons for its decision/ grounds of judgment was made available to the appellant by the previous panel, the appellant was placed in the most disadvantageous position in the preparation of his defence as he was not made known the basis upon which the decision was made and/or the factors or grounds or reasons that were taken into account and considered by the Court of Appeal in coming to its decision to order the appellant to enter his defence.

[50] It was the further complaint of the appellant that the previous panel did not make any finding on whether the appellant was in actual possession (mens rea possession) of the said drugs or presumed possession of the same under s.37(d) of the DDA. Neither was there any finding whether it was presumed trafficking under s.37(da) of the DDA or direct trafficking as defined under s.2 of the same. This had caused much confusion upon the appellant and his counsel, and had seriously prejudiced the appellant in the preparation of his defence. The appellant contended that he was forced to enter his defence without knowing the reasons or grounds why he was ordered to enter his defence.

[51] Learned counsel relied on Dato’ Seri Anwar Ibrahim v PP [2010] 9 CLJ 625; Johnbosco Chinedu Augustine v PP [2016] 3 CLJ 732; Daniel Akachukwu Agbanusi v Pendakwa Raya [2017] 2 MLJ 243, to fortify his position.

[52] Whilst it is most desirable for the previous panel to furnish reasons/ grounds of judgment, however brief, when it ordered the appellant to enter his defence before the High Court judge as the appellant, as a litigant, is entitled to the same, there is no legislation to compel the previous panel to furnish such reasons/ grounds of judgment to the litigants therein. It is entirely up to the wisdom and good practise of the Court of Appeal to provide the same, having regard to all the circumstances of the case.

[53] Be that as it may, however, the want of reasons/ grounds of judgment can never be a ground to invalidate such decision of the previous panel. Even the Federal Court in Dato’ Seri Anwar Ibrahim v PP (supra) did not advocate the invalidating of such decision in the absence of reasons/ grounds of judgment. The Federal Court in that case, however, found that the Court of Appeal had properly discharged its duty when the Court of Appeal gave a brief but concise reasons of their decision.

[54] We were neither in position to review the said decision of the previous panel nor were there any justifiable necessity to embark upon such enterprise. Since the previous panel had ordered the appellant (respondent then) to enter his defence, it must be taken that the previous panel must have conducted a maximum evaluation of the evidence available before it to enable them to rule that a prima facie case has been made out against the appellant in respect of the 2 charges levelled against him. It must also be taken that the previous panel had ruled that the prosecution had adduced credible evidence proving each and every ingredient of the offence, which, if unrebutted would warrant a conviction.

[55] This must necessarily include the findings that there are no issues/ doubts relating to the identity of the substance to viz. whether the substance that was seized from the appellant in the Toyota Wish was the same substance that was sent to the chemist for analysis and finally found its way in evidence in court. The learned trial judge, however, found to the contrary at the end of the prosecution’s case, on account of apparent discrepancies in the evidence of the raiding officers and the chemist relating to the identity of the substance as described and weighed by them.

[56] In addition, as the respondent can be convicted on the said prima facie evidence, it must be taken that the previous panel must have ruled that the prima facie evidence ‘must have reached a standard which is capable of supporting a conviction beyond a reasonable doubt’-see Balachandran v PP [2005] 1 CLJ 85.

[57] In such event, the High Court judge upon receipt of the said order of the previous panel of the Court of Appeal must singularly direct his mind on whether the evidence adduced by the appellant in his defence has created a reasonable doubt or where a presumption is invoked, whether it has rebutted the said presumption, to warrant the appellant’s acquittal-see Duis Akim & Ors. v PP [2013] 9 CLJ 692 at p.709. Meanwhile, this Court in Manimaran a/l Amas v Public Prosecutor [2015] 1 MLJ 18 ruled:

“[25] In the instant appeal, since all the appellants were called upon by the Court of Appeal to enter their defence, it must necessarily mean that the Court of Appeal was satisfied that the prosecution had proved all the ingredients of the charge, including the element of common intention, before concluding that a prima facie case has been made out by the prosecution. There was therefore no necessity for us to revisit the issues on whether a prima facie case had been made out. What we need to consider was whether the evidence from the defence had cast a reasonable doubt on the prosecution’s case.”

[58] We have scrutinised the grounds of judgment of the learned trial judge and were satisfied that Her Ladyship’s approach in dealing with the defence of the appellant upon being ordered to do so by the previous panel was consistent with the law and established case authorities, wherein she had apparently placed much reliance upon Manimaran a/l Amas v PP (supra) and Ouseng Sama-ae v PP [2010] 6 CLJ 416, in coming to her decision to viz. whether the defence posited by the appellant has created a reasonable doubt to warrant his acquittal and/or that the defence has rebutted any presumption invoked against him if such presumption was indeed invoked. In the latter case it was ruled that:

"It is elementary that once the Court of Appeal (in the earlier appeal) had overruled the findings and rulings of the trial judge made at the close of the case for the prosecution and had instead made a finding of possession of cannabis, had invoked the presumption of trafficking under s.37(da)(vi) and had ordered the trial judge to call for the defence on the original charge of trafficking, in such a situation, whatever findings and rulings of the trial judge expressed earlier at the close of the prosecution stage, to the extent that they had been expressly or impliedly contradicted or overruled by the Court of Appeal, as a matter of law, are now no longer of any significance when he proceeded to hear the defence, and he must at the continued hearing stage discard those findings and rulings that he had earlier made. He must now have due regard to the findings and rulings of the Court of Appeal as if those findings and rulings of the Court of Appeal had been made by the trial judge himself at the close of the case for the prosecution. It was therefore wrong in law to say that the present grounds of judgment of the judge was in conflict with his earlier grounds of judgment.”

[59] A central feature in the first charge is the prosecution’s imperatives to:

(i) prove possession of the said drugs which involved the appellant’s custody or control of the impugned drugs and his knowledge of the presence of the said drugs and his intend to control its disposal (see Leow Nghee Lim v Regina [1956] MLJ 28; Chan Pean Leong v Public Prosecutor [1956] 1 MLJ 237; Toh Ah Loh and Mark Thim v Rex [1949] 1 MLJ 54); and

(ii) prove that the appellant was trafficking the impugned drugs.

[60] At the time of the commission of the offence, the findings of the twin ingredients of possession and trafficking of the impugned drugs, being the essence of the charge, may be grounded upon:

(i) mens rea possession and direct trafficking of the impugned drugs under s.2 of the DDA; or

(ii) presumed possession under s.37(d) of the DDA and direct trafficking under s.2 of the DDA; or

(iii) mens rea possession of the impugned drugs and presumed trafficking under s.37(da) of the DDA.

[61] At the end of the prosecution’s case, the learned trial judge found that the appellant had custody and control of the bags containing the impugned drugs found inside the Toyota Wish motorcar. The learned trial judge further found that the conduct of the appellant in trying to flee the scene and appearing nervous and agitated when a body search was done upon his person suggested that he had knowledge of the said drugs found in the car. Hence, it is apparent that the learned trial judge had fasten possession of the said drugs upon the appellant in respect of both the charges without invoking the presumption of possession and knowledge under s.37(d) of the DDA. Simply said, the appellant had mens rea possession of the said drugs. The appellant was acquitted at the end of the prosecution’s case only because of the alleged infirmities of the identity of the said drugs as found by the learned trial judge and not on account of the prosecution’s failure to prove possession and knowledge of the presence of the impugned drugs inside the said motorcar on the part of the appellant.

[62] The earlier panel appeared to have endorsed this findings when the said findings was apparently not disturbed. What was substituted in the appellate intervention was the findings on the identity of the said drugs made by the learned trial judge as this was the main thrust of the public prosecutor’s appeal to the Court of Appeal then.

[63] Now, the crux of the appellant’s defence was grounded upon his total denial or want of knowledge of the said drugs inside the two bags in the Toyota Wish motorcar No. WPU 3138. At the risk of being repetitive, the appellant claimed that he had stolen the said motorcar at Bandar Cheng, Melaka about one hour before his arrest at KM 260 (north) Seremban-Ayer Keroh Highway. He saw a road block at KM 260 of the highway. He took flight for fear of being arrested for stealing a motorcar and not because of being in possession of the said drugs inside the said motorcar. At that point of time he was not aware that there were drugs inside the bag at the back of the driver’s seat and inside another bag at the front passenger seat of the motorcar. He added that he was scared when police opened fire at the motorcar he was driving.

[64] The appellant also stated that before his arrest, he had driven another ‘Toyota Wish’ belonging to Datok Cina. That ‘Toyota Wish’ is not the same ‘Toyota Wish’ that he was caught with by the police on 30.7.2012 where the drugs were found.

[65] The learned trial judge found that the aforesaid defence ventilated by the appellant to be mere afterthought on account that the theft of the said motorcar was never disclosed to SP-7 at the scene of arrest or at any other point of time or thereafter to the investigating officer, SP-13. Equally it was never raised during the cross-examinations of SP-7, SP-8 and SP-13. It was raised for the first time only at the defence stage.

[66] The learned trial judge also found the appellant’s defence that he was using another ‘Toyota Wish’ belonging to Datok Cina before his arrest and not the ‘Toyota Wish’ he was caught with, to be equally an afterthought, also on account that it was raised only at the defence stage. The same was not put to the relevant prosecution witnesses, in particular SP-7, SP-8, SP-11 and SP-13 during the case for the prosecution.

[67] In fortification of her findings, the learned trial judge then alluded to the rulings in Alcontara a/l Ambrose Anthony v Public Prosecutor [1996] 1 MLJ 209; Teng Howe Sing v PP [2009] 3 CLJ 733; and PP v Badrulsham bin Baharom [1988] 2 MLJ 585.

[68] We were entirely with the learned trial judge’s findings upon the core of the appellant’s defence. We were satisfied that the learned trial judge did not err in respect of the evaluation/ assessment of the evidence before her and the findings made thereunder. Being the crux of the defence, one would have expected the appellant to inform SP-7 or SP-13 at the first opportunity that he had just stolen the said motorcar as soon as the drugs were found inside the said motorcar and that the said drugs were not his. However, the evidence showed that the appellant did not ever mention this averment to SP-7 or SP-13 at any point of time.

[69] In regard to the ‘Toyota Wish’ belonging to Datok Cina, the appellant, in his evidence also did not provide further details or particulars of the said Datok Cina. Significantly, this issue of the ‘Toyota Wish’ belonging to Datok Cina was also never raised to SP-11, SP-7 and SP-13. It came out of the blue in the appellant’s evidence in court for the first time.

[70] In such event, we would fully endorsed the learned trial judge’s findings that the appellant’s failure to provide information of the said motorcar being stolen, that the drugs inside the said motorcar were not his and that prior to his arrest he was driving a ‘Toyota Wish’ belonging to Datok Cina at the earliest opportunity to the police (SP-7, SP-13), would render the said evidence lacking in credibility and equally detracting from the weight to be accorded therein. It is worthy to add the Federal Court’s ruling in Alcontara a/l Ambrose Anthony v PP (supra) of the effect of keeping one’s defence ‘up its sleeve’:

"Speaking generally, in a criminal trial, the whole point and purpose of the defence having to put its case to such of the prosecution witnesses as might be in a position to admit or deny it, is to enable the prosecution to check on whether the accused’s version of the facts is true or false, and thus avoid the adverse comment, that the defence is a recent invention, in other words ‘kept up its sleeve’, as it were and revealed for the first time when the accused makes his defence from the witness box or the dock, thus detracting from the weight to be accorded to the defence.”

[71] In addition, in regard to the brown coloured bag (exhibit P30) containing the drugs found next to his own red coloured bag, both of which were found on the front passenger seat, the learned trial judge found that it would be illogical for the appellant not to notice the brown bag which was right beside his own red bag. We agreed with her observation though. Surely the appellant would have opened the brown bag when he stole the said motorcar. It also makes complete sense to surmise that the appellant must have examined/ inspected the said motorcar after he had stolen it and must have seen the red coloured plastic bag at the footrest at the back of the driver’s seat, also containing drugs. In addition, he had ample time to check the contents of said bags, as he was arrested only about one hour later. The course of event in the narrative of the appellant’s defence goes a long way to show that, verily, the defence was tainted with elements of afterthought.

[72] At the end of the defence’s case, the learned trial judge opined that although the appellant is free to choose how he wish to give his defence, however, his evidence, being an unsworn statement from the dock, suffers from lack of credibility and weight on account that it was not subjected to the acid test of cross-examination. The learned trial judge then alluded to the following ruling in Rewang Tempe v PP [2016] 1 LNS 223:

"[21] Recently this court in the case of Zulkifli Abdullah v PP, Criminal Appeal No: Q-05-102-4/2015 had the occasion to consider the evidential value of the dock statement. It was observed as follows:

"[34] The appellant gave an unsworn statement from the dock. His statement is not subject to cross-examination by the prosecution, nor can he be questioned by the trial judge. Its veracity is not tested. The trial judge is free to give the dock statement such weight as he thinks fit and he can take it into consideration in deciding whether the prosecution had proved its case. In Dato’ Seri Anwar Ibrahim v PP v Another Appeal [2015] 2 CLJ 145, the Federal Court observed at p. 199 as follows:

"In law, a trial judge will not give much weight to what an accused has said in his unsworn statement as he is not subject to cross-examination by the prosecution nor can he be questioned by the trial judge (Lee Boon Gan v Regina [1954] 1 LNS 151; [1954] 1 MLJ 103, Udayar Alogan & Ors v PP [1962] 1 MLJ 39, Mohamed Salleh v PP [1968] 1 LNS 80; [1969] 1 MLJ 104, Juraimi Husin v PP [1998] 2 CLJ 383 [1998] 1 MLJ 537)"."

[73] It is noted that the appellant did not offer any evidence/ defence in relation to the trafficking in the said drugs. He only denied having knowledge of the drugs inside the car. However, based on the huge amount of drugs recovered from the possession of the appellant, it is an irresistible inference that the appellant had possession of the drugs for the purpose of trafficking.

[74] The learned trial judge found the appellant’s statement to be a bare denial and assertion and negligible in weight. In addition, she found the evidence of DW-2 and DW-3 incapable of rebutting the prosecution’s case. Finally the learned trial judge found that the appellant had failed to cast a reasonable doubt upon the prosecution’s case and was found guilty and convicted upon both the charges.

[75] We could find no appealable error in the discourse of the law and facts undertaken by the learned trial judge enumerated above.

Ground (iii)-want of maximum evaluation of the evidence pertaining to (a) the Toyota Wish motorcar where he was arrested with; (b) the other Toyota Wish motorcar belonging to Datok Cina; (c) contradictions in the testimonies of SD-3 and SP-13; and (d) uncertainties surrounding the recovery of the appellant ’s wallet.

Grounds (iii) (a) and (b)-the Toyota Wish motorcars

[76] We have dealt with the above two (2) grounds of appeal at great length at paras. 63 to 71 above. We have no wish to repeat/ duplicate the same currently. Suffice for us to reiterate that the defence anchored upon the above said 2 grounds are mere afterthoughts grounded upon the reasons enumerated therein.

Ground (iii)-(c)-contradictions in the testimonies of SD-3 and SP-13.

[77] Learned counsel submitted that the learned trial judge had failed to consider the evidence of SD-3 (ASP Juliana, the officer who arrested Nur Fazlira) who testified that she had taken the appellant from the Seremban IPD lock-up to his house at Sri Sendayan to arrest Nur Fazlira at about 12.30 p.m. However, the investigating officer (SP-13) testified that the appellant was detained at Seremban IPD lock-up at the material time. Learned counsel submitted that this is a material contradiction that had occasioned a break in the chain of evidence.

[78] In our view this contradiction should not be given exaggerated importance. What SD-3 did was only to bring the appellant from the IPD lock-up and brought him to his house at Sri Sendayan with the permission of SP-13, where she then effected the arrest of Nur Fazlira who happened to be in the house. She also recovered one straw tube containing substance suspected to be drugs from Nur Fazlira’s wallet.

[79] SD-3 did not at any time handle the drug exhibits recovered from the appellant in the ‘Toyota Wish’ motorcar which was at all material times under the safe custody of SP-7 before he handed the same to SP-13 together with the appellant at about 2.45 p.m. on 30.7.2012. And, there is no dispute that DW-3 only recovered one straw tube from Nur Fazlira’s wallet. After effecting the arrest of Nur Fazlira and recovering the said straw tube, she went back to IPD Seremban and handed back the appellant to the IPD lock-up at about 2.00 p.m. Then at about 2.45 p.m., SP-7 handed the appellant together with the drug exhibits recovered from the appellant to SP-13.

[80] There is no evidence that the drug exhibits recovered from the appellant had been tampered with by SD-3’s act of taking the appellant out of the lock-up and taking him to his Sri Sendayan house. Equally there is no evidence that the investigation in respect of the appellant’s involvement in the commission of the crime has been compromised. More importantly, there is no evidence of any break in the chain of evidence emanating from SD-3’s act of taking out the appellant from the IPD lock-up. Finally, SP-13 cannot be discredited merely upon this singular contradiction.

[81] We further opined that it is wrong for learned counsel to submit that the learned trial judge did not consider the aforesaid contradictions in the testimonies of SD-3 and SP-13. On the contrary, the learned trial judge had indeed considered the said contradictions at length as can be seen at pp. 64, 65, paras. 32 to 35, Jilid 1, RR, of her grounds of judgment. She was not on common ground though with the submissions posited by learned counsel.

Ground (iii)-(d)-uncertainties surrounding the recovery of the appellant’s wallet

[82] Learned counsel submitted that SP-13 said that the wallet and the personal items of the appellant were found in the brown bag which contained the impugned drugs whereas SP-7, the arresting officer, said that the wallet and the personal items were found in the red bag belonging to the appellant. Hence, it was submitted that in the light of these 2 versions, both cannot be true.

[83] However, the learned trial judge found that based on the Search List (exhibit P26), the wallet was recorded as ‘rampasan’ in column 3 of the said exhibit under the heading ‘tempat dijumpai’. According to the learned trial judge, in such event, it has created doubts as to where exactly the wallet was seized by SP-7. She further opined that it is highly probable that the wallet was seized from the appellant himself. Be that as it may, the learned trial judge found that it was not fatal to the prosecution’s case.

[84] We were with Her Ladyship. The issue is too minor to have impacted significantly upon the substratum of the prosecution’s case. The evidence stacked against the appellant is overwhelming that the impugned drugs were in his possession and by the huge amount of drugs recovered from his possession, it led to the irresistible inference that the appellant was trafficking in the said drugs.

Conclusion

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

Dated: 2nd April 2018

AHMADI HAJI ASNAWI
Judge
Court of Appeal, Malaysia

COUNSEL

For the Appellant: Satwan Singh a/l Joginder Singh & Kartikayan a/l Supramaniam, Tetuan Morthi, Segaran & Co, Peguambela & Peguamcara

For the Respondent: Dhiya Syazwani Izhan Bt. Mohd Akhir, Timbalan Pendakwa Raya, Jabatan Peguam Negara, 62100 Putrajaya

Legislation referred to:

Courts of Judicature Act 1964, Section 53(1)

Dangerous Drugs Act 1952, First Schedule and Sections 2, 37(d), 37(da)

Rules of the Court of Appeal 1994, (P.U. (A) 524/94), Rules 2, 61, 63, 65, 65(1)

Judgments referred to:

Alcontara a/l Ambrose Anthony v Public Prosecutor [1996] 1 MLJ 209

Balachandran v PP [2005] 1 CLJ 85

Chan Pean Leong v Public Prosecutor [1956] 1 MLJ 237

Daniel Akachukwu Agbanusi v Pendakwa Raya [2017] 2 MLJ 243

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

Duis Akim & Ors. v PP [2013] 9 CLJ 692

Johnbosco Chinedu Augustine v PP [2016] 3 CLJ 732

Leow Nghee Lim v Regina [1956] MLJ 28

Manimaran a/l Amas v Public Prosecutor [2015] 1 MLJ 18

Ouseng Sama-ae v PP [2010] 6 CLJ 416

PP v Badrulsham bin Baharom [1988] 2 MLJ 585

Rewang Tempe v PP [2016] 1 LNS 223

Teng Howe Sing v PP [2009] 3 CLJ 733

Toh Ah Loh and Mark Thim v Rex [1949] 1 MLJ 54

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