The prosecution’s case, Prima facie case, Analysis, Judgment

 The prosecution’s case, Prima facie case, Analysis, Judgment

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DALAM MAHKAMAH RAYUAN MALAYSIA

(BIDANG KUASA RAYUAN)

RAYUAN JENAYAH NO: W-05-298-2010

ANTARA

SATHIAMOORTY A/L RAMAKARESHINA ---- PERAYU

DAN

PENDAKWA RAYA ---- RESPONDEN

(Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur

Perbicaraan Jenayah No: 45-51-2009)

ANTARA

PENDAKWA RAYA

DAN

SATHIAMOORTY A/L RAMAKARESHINA

CORAM:

(1) ABDUL MALIK BIN ISHAK, JCA

(2) CLEMENT ALLAN SKINNER, JCA

(3) LINTON ALBERT, JCA

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ABDUL MALIK BIN ISHAK, JCA

DELIVERING THE JUDGMENT OF THE COURT

Introduction

[1] The appellant was convicted and sentenced to death by the

Kuala Lumpur High Court for trafficking in dangerous drugs, to wit, 29,298

grammes of cannabis, an offence under section 39B(1)(a) of the

Dangerous Drugs Act 1952 (“DDA”) and punishable under section 39B(2)

of the DDA. In its original text, the charge reads as follows:

“Bahawa kamu pada 13 Mei 2009 jam lebih kurang 5.40 petang di

kawasan Stesyen Minyak Mobil Sri Rampai, Taman Sri Rampai, di

dalam daerah Sentul, di dalam Wilayah Persekutuan, Kuala Lumpur,

telah mengedar dadah berbahaya iaitu 29,298 gram cannabis, oleh

yang demikian kamu telah melakukan suatu kesalahan di bawah

seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di

bawah seksyen 39B(2) Akta yang sama.”

The brief facts of the prosecution’s case

[2] Acting on information received, on 13.5.2009 at about 2.30 p.m.,

Inspector Muhammad Ikhbal bin Mohd Isa (SP9) led a team of police

officers and took up positions at the R & R stop in Ulu Bernam and waited

for the arrival of the target motorcar which was a Ford Telstar bearing

registration number BEA 1968. At about 5.00 p.m., the target motorcar

passed the rest stop without stopping.

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[3] SP9, who was in a motorcar driven by Sergeant Halim, together

with lance corporal Khairul Anwar, tailed the target motorcar. SP9 was in

the first team and he sat in the front passenger seat and his view was

unobstructed. The other members of the police officers were divided into

three teams and they too were directed by SP9 to tail the target motorcar in

their respective motorcars as well and they complied.

[4] SP9 and his team tailed the target motorcar from R & R stop in

Ulu Bernam until Toll Plaza Jalan Duta and thereafter through the DUKE

highway and then to Wangsa Maju and eventually stopped at a Mobil petrol

kiosk in Sri Rampai. SP9 testified that he never lost sight of the target

motorcar from the time he followed it until the target motorcar stopped at

the Mobil petrol kiosk at Sri Rampai. SP9 also confirmed that there was no

other occupants in the target motorcar other than the driver – subsequently

identified as the appellant.

[5] SP9 saw the appellant parked the target motorcar at the parking

bay meant for tankers. SP9 also saw the appellant alight from the target

motorcar and walk towards the convenience store. SP9 continued to

observe the appellant and SP9 saw the appellant approach two male

Malays – subsequently identified as Mohd Habil bin Mohd Ali Nupiah (SP6)

and Mohd Helmi bin Ismail (SP11), and greet them. According to SP11, the

appellant met SP6 for about one (1) to two (2) seconds. SP6 was seen

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holding onto something believed to be the keys to the target motorcar. Both

SP6 and SP11 were seen walking to the target motorcar.

[6] SP9 instructed his police officers to arrest SP6, who was about to

open the driver’s side of the door of the target motorcar and SP11, who

was near the front passenger door of the target motorcar. At about the

same time, Ku Mohamad Azhar bin Ku Saat (SP7) was arrested outside

the convenience store while the appellant was arrested inside a ladies’

toilet. During the arrest of the appellant, a scuffle ensued.

[7] SP9 testified that he could smell the scent of ganja suspected to

emanate from the target motorcar and he decided to examine the target

motorcar at the Wangsa Maju police station because a crowd had gathered

at the scene and the weather was turning bad.

[8] All the arrestees and the target motorcar – identified as the Ford

Telstar bearing registration number BEA 1968, were brought to the

Wangsa Maju police station. At the said police station, SP9 did a thorough

inspection of Ford Telstar motorcar and upon removing the rear seats, SP9

noticed a metal plate covering a compartment. When the metal plate was

removed, SP9 found that there were six (6) compressed blocks suspected

to be cannabis.

[9] SP9 then proceeded to examine the boot of the Ford Telstar

motorcar. When the carpet was pushed to one side, SP9 noticed a metal

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plate soldered to the space meant for the spare tyre. Upon further

examination, SP9 found another metal plate which was screwed tightly.

And when the metal plate was removed, SP9 found that there were twentyeight

(28) compressed blocks suspected to be cannabis.

[10] Altogether, SP9 recovered thirty-four (34) compressed blocks

suspected to be cannabis.

[11] In due course, all these thirty-four (34) compressed blocks were

sent to the government chemist by the name of Madam Maimonah binti

Sulaiman (SP5) and she confirmed that they were cannabis weighing

29,298 grammes. The chemist report of SP5 was also tendered and

marked as exhibit “P12”.

Prima facie case

[12] After conducting a maximum evaluation of the prosecution’s

case pursuant to section 180 of the Criminal Procedure Code (“CPC”) and

following closely the guidelines set by Balachandran v PP [2005] 1 CLJ

85 and other related authorities, the learned trial Judge held that the

prosecution had succeeded in establishing a prima facie case and his

Lordship then called the defence of the appellant for trafficking in the

dangerous drugs as per the charge.

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The appellant’s defence

[13] In essence, the defence of the appellant was that he had no

knowledge of the drugs in the Ford Telstar motorcar because he was

requested by one Selvam (his friend and employer) to send the said

motorcar to the workshop for repairs. That workshop was located in Sri

Rampai. The appellant was in Brickfields then and he was supposed to

take the said motorcar from the parking area of the Jalan Duta toll. The

appellant agreed and he took a taxi to go to the said parking area.

[14] According to the appellant, Selvam came to the said parking

area a little later in the Ford Telstar motorcar. Selvam was followed by

Morithi a/l Govindasamy (SD2). The appellant then told Selvam that the

appellant did not know where the workshop was located. Selvam then

asked the appellant to drive to the Mobil petrol kiosk in Sri Rampai and

someone would collect the said motorcar from him there. The appellant

was also told not to switch off the engine of the said motorcar because of

the difficulty in igniting the engine of the said motorcar. Selvam then left

with SD2.

[15] While driving the Ford Telstar motorcar to the Mobil petrol kiosk

in Sri Rampai, the appellant lost his way and he telephoned Selvam for

directions. Selvam told the appellant that Selvam’s friend by the name of

Sarani bin Baba (SP8) would call the appellant and render assistance. SP8

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telephoned the appellant and gave directions to the appellant as to the way

to go to the Mobil petrol kiosk in Sri Rampai. When the appellant reached

the said petrol kiosk, he parked the said motorcar and alighted from the

said motorcar and left the engine running. According to appellant, two

Malay gentlemen then approached the appellant and they identified

themselves as friends of SP8. But SP8 had not arrived yet and so the

appellant went to the convenience store to buy cigarettes and water. The

appellant went to the ladies’ toilet located within the convenience store and

there he was arrested.

Analysis

[16] Only two grounds were advanced before us in challenging the

conviction of the appellant for trafficking in the dangerous drugs as per the

charge:

(a) that the learned trial Judge misdirected himself when he failed to

recognise that the evidence of the chemist is clearly deficient;

and

(b) that the learned trial Judge misdirected himself when he failed to

appreciate the defence case.

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The first ground

[17] The government chemist is SP5. Her evidence can be seen at

pages 27 to 39 of the appeal record at Jilid 1. In examination-in-chief, SP5

testified as follows:

“Saya Maimonah bt Sulaiman, Ahli Kimia dalam Perkhidmatan

Kerajaan Malaysia........ .”

[18] In SP5’s chemist report, prepared pursuant to section 399 of the

CPC which was tendered and marked as exhibit “P12” as reflected at

pages 16 to 17 of the appeal record at Jilid 3, she stated as follows:

“Saya MAIMONAH BT SULAIMAN, Ahli Kimia dalam Perkhidmatan

Kerajaan Malaysia........ .”

[19] And, finally, at page 17 of the of the appeal record at Jilid 3, SP5

signed her chemist report in this way:

“ Sgd (Illegible)

MAIMONAH BT SULAIMAN

Ahli Kimia

Jabatan Kimia Malaysia.”

[20] Yet, it was submitted that SP5’s evidence suffered from the

following defects:

(a) she never stated both her qualifications and expertise and there

is no evidence that she is a chemist at the material time;

(b) she never gave any evidence as to the various tests that were

carried out for her to come to the conclusion that the substances

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she analysed were cannabis within the meaning of section 2 of

the DDA; and

(c) there is no evidence by her where she kept the drug exhibits

when she was not analysing them to ensure that they were not

mixed up with other exhibits.

[21] While acknowledging that the experience of SP5 as a

government chemist was not stated by SP5 in her oral testimony as seen at

page 27 of the appeal record at Jilid 1, the learned deputy public

prosecutor argued that SP5’s evidence came within the ambit of section

399 of the CPC. That section states as follows:

“Reports of certain persons

399. (1) Any document purporting to be a report under the hand of

any of the persons mentioned in subsection (2) upon any person,

matter or thing examined or analysed by him or any document

purporting to be a report under the hand of the Registrar of Criminals

upon any matter or thing relating to finger impressions submitted to

him for report may be given in evidence in any inquiry, trial or other

proceeding under this Code unless that person or Registrar shall be

required to attend as a witness –

(a) by the Court; or

(b) by the accused, in which case the accused shall give notice to

the Public Prosecutor not less than three clear days before the

commencement of the trial:

Provided always that in any case in which the Public

Prosecutor intends to give in evidence any such report he

shall deliver a copy of it to the accused not less than ten clear

days before the commencement of the trial.

(2) The following are persons to whom the provisions of this

section apply:

(a) officers of the Institute for Medical Research;

(b) Government Medical Officers;

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(c) chemists in the employment of any Government in Malaysia

or of the Government of Singapore;

(d) any person appointed by the Minister by notification in the

Gazette, to be a Document Examiner;

(e) Inspector of Weights and Measures appointed as such under

any written law relating to weights and measures in force in

Malaysia; and

(f) any person or class of persons to whom the Minister by

notification in the Gazette declares that the provisions of this

section shall apply.

(3) The persons referred to in subsection (2) and the Registrar of

Criminals are by this Code bound to state the truth in reports made

under their hands.”

[22] This section allows a report made by the persons mentioned in

sub-section (2) to be admitted in evidence. The “chemists in the

employment of any Government in Malaysia or of the Government of

Singapore” (see sub-section (2)(c)) are specifically mentioned as, “The

following ...... persons to whom the provisions of this section apply”.

[23] The learned deputy public prosecutor submitted that SP5 was

called by the prosecution to testify and SP5’s chemist report is admissible

under section 399(1) of the CPC. Indeed SP5’s chemist report was

tendered as exhibit “P12” as corroborative evidence of the oral testimony

of SP5 and SP5’s oral testimony tallied with her chemist report in exhibit

“P12”. The learned deputy public prosecutor further submitted by way of

an analogy that if a chemist report has been served on the defence and no

notice to cross-examine was given to the Public Prosecutor by the

accused, then the chemist report like exhibit “P12” is admissible even

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without the evidence as to the expertise of the government chemist. The

learned deputy public prosecutor then referred to the proviso to section

399(1) of the CPC and submitted that in the event the chemist report is

served to the accused not less than ten (10) clear days before the

commencement of the trial, then the chemist report will be tendered and

marked as an exhibit and the prosecution need not call the government

chemist as there is no necessity to introduce the government chemist’s

qualification and past experience.

[24] The learned deputy public prosecutor further submitted that in a

case where the prosecution relied on the chemist report, there was no

necessity to call the government chemist to testify. Here, SP5 was called to

testify and she testified that she had analysed all the exhibits given to her.

But SP5 did not specify her qualification during her oral testimony as well

as in her chemist report. However, it was emphasised that by virtue of SP5

being a government chemist, by implication she must be qualified in the

field of chemistry. It was submitted that this issue was not considered by

the learned trial Judge because it was not raised before his Lordship and

that his Lordship accepted the evidence of SP5 as a government chemist.

[25] During her examination-in-chief, SP5 did not go into the details

of her analysis but in cross-examination, SP5 testified at page 39 of the

appeal record at Jilid 1 that:

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“Saya jalani 4 ujian. Physical, microscopic, glc, DL. Ujian secara

independent tidak muktamad, kena keempat-empat.”

[26] Under re-examination, SP5 testified as follows (see page 39 of

the appeal record at Jilid 1):

“Ujian tersebut secara tersendiri tidak muktamadkan. Hasil daripada

4 ujian adalah muktamad dan conclusive dan adalah conclusive

mengikut S.2 ADB 1952.

Jumlah sampel pembuktian hanya 1% peratus sahaja tetapi untuk

ujian 3 & 4 adalah hasil daripada keseluruhan sampel sebab untuk

ujian 4 & 2 dan microscopic fizikal. Saya jalankan atas 100% bahan

tumbuhan setelah berpuashati bahan tumbuhan daripada jenis

tumbuhan yang sama baru saya boleh ambil sampel perwakilan

untuk ujian 3 dan 4 sama seperti saya telah analisis 100%.”

[27] At this juncture, it is germane to refer to the decision of Tun Dato

Seri Abdul Hamid bin Omar, the Lord President of the Supreme Court in

the case of Khoo Hi Chiang v. Public Prosecutor And Another Case

[1994] 2 CLJ 151. At pages 152 to 153 of the headnote, his Lordship aptly

laid down the law in this way:

“(2)(a) It is appropriate at the outset to determine whether the

evidence of a chemist on the identity of a drug constitutes

evidence of fact or opinion and to consider the attendant

issue governing the admissibility of such evidence. If the

chemist’s evidence is factual, he is competent to give

evidence like any other witness, and the law on the

admissibility of such evidence would apply. If the chemist’s

evidence constitutes an opinion, then his evidence would

come under the category of expertise evidence. In that case

the question of his competency to give expert evidence

arises.

(b) The evidence of the chemist on the identity and weight of the

drug constitutes evidence of fact and not of opinion.

Therefore, the question of adducing evidence to show the

expertise of the chemist does not arise.

(c) What is really required for the prosecution to show for the

admission of the chemist’s evidence on the identity of the

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drug is merely to adduce evidence as to his qualification in

the field of chemistry and that he is a chemist in the

employment of any Government in the Federation and had

examined or analysed the drugs. His evidence may then be

given orally or to be set out in a report made by him to be

admitted under s. 399 of Criminal Procedure Code.

(d) (i) Unless the evidence is so inherently incredible that no

reasonable person can believe it to be true, it should be

accepted as prima facie evidence.

(ii) So long as the evidence is not inherently incredible or the

defence does not call evidence to show that the chemist’s

findings are not valid scientifically, there is no necessity for

the chemist to show in detail what he did in his laboratory.

(e) In the ultimate analysis it is the Court’s considered judgment

that the need to establish the expertise of the factual witness

does not arise. However, expertise and qualification of an

expert witness must be established where the evidence

consists of not only direct factual observation but of

opinion.”

[28] Augustine Paul J (later FCJ) in Public Prosecutor v Chia

Leong Foo [2000] 6 MLJ 705 echoed the same sentiments when he

applied, inter alia, Khoo Hi Chiang’s case (supra) and held that (see page

706 of the headnote):

“(4) As the evidence of the chemist on the analysis of drugs by him

was not evidence of opinion but evidence of fact, he need not give

particulars of the tests carried out by him in his evidence. It follows

that his report, tendered in evidence under s 399(1) of the Criminal

Procedure Code, also need not contain such particulars. In any

event, the court was entitled to accept the evidence of the chemist

on its face value without the necessity for him to go into details of

what he did in the laboratory step by step unless it is inherently

incredible or the defence calls evidence in rebuttal by another expert.

Thus if the accused was dissatisfied with the conclusion reached by

the chemist, it was for him to summon the chemist as a witness for

that purpose or adduce evidence in rebuttal. This had not been done

by the accused in this case. The chemist report tendered in evidence

in this case was therefore not defective.”

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[29] In our judgment, SP5’s evidence was confined “to the evidence

of fact and not of opinion”. That being the case, SP5’s evidence need

not show her expertise and experience as a government chemist. There

was also no necessity for SP5 to show in detail what she did in her

laboratory.

[30] Since the evidence of SP5 as a government chemist is factual,

she is to be treated like any other witness. The fact that SP5 described

herself as a chemist employed by the Government of Malaysia, it must be

inferred that she is qualified in the field of chemistry and there is no

necessity to adduce evidence as to her qualification in the field of

chemistry. Government chemists working for the Government of Malaysia

are considered as persons to whom section 399(2) of the CPC applies and

by virtue of sub-section (3) to section 399 of the CPC, she is bound to state

the truth in her chemist report marked as exhibit “P12”.

[31] We are completely convinced that even though SP5 did not state

her qualification when she gave her oral evidence, the overwhelming

evidence adduced by the prosecution compelled us to apply the proviso to

section 60 of the Courts of Judicature Act 1964 which states:

“Provided that the Court of Appeal may, notwithstanding that it is of

opinion that the point raised in the appeal might be decided in favour

of the appellant, dismiss the appeal if it considers that no substantial

miscarriage of justice has occurred.”

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[32] This was also the approach adopted by Edgar Joseph Jr SCJ

who wrote a separate judgment in the Khoo Hi Chiang’s case (supra) at

page 174.

[33] In reviewing the evidence adduced by the prosecution,

particularly as to how the drugs were found in the specially constructed

compartments of the Ford Telstar motorcar driven by the appellant, the

prosecution has succeeded in proving possession – the most crucial and

important ingredient in the charge of trafficking. The learned trial Judge

invoked the presumption under section 37(h) of the DDA against the

appellant and that section reads as follows:

“37. In all proceedings under this Act or any regulation made

thereunder–

(h) if any dangerous drug is found concealed in any

compartment, specially constructed for the purpose, on any

vehicle, it shall until the contrary is proved, be deemed to

have been so concealed with the knowledge of the owner of

the vehicle and of the person in charge of the vehicle for the

time being.”

[34] The damning evidence showed that:

(a) the appellant was seen by SP9 driving the Ford Telstar motorcar

from R & R stop in Ulu Bernam until he reached the Mobil petrol

kiosk in Sri Rampai;

(b) the appellant was seen by SP9 driving alone at the material time;

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(c) the drugs were found concealed at the specially constructed

compartments behind the back passenger seat and in the boot

underneath the spare tyre space;

(d) upon opening the door to the Ford Telstar motorcar, PW9 sensed

a strong smell of cannabis inside the said motorcar;

(e) there were altogether thirty-four (34) slabs of cannabis concealed

in the Ford Telstar motorcar; and

(f) the appellant resisted arrest even before the discovery of the

said drugs.

[35] Proof of the specially constructed compartments in the Ford

Telstar motorcar came from the evidence of Tee Kok Lee (SP4), the head

of the Ford service division. SP4 testified that he was with the Ford

company since 1986 and after examining the said motorcar he said that it

had been altered by the addition of two specially constructed

compartments. SP4’s evidence was considered by the learned trial Judge

in his written grounds of judgment at pages 220 to 221 of the appeal record

at Jilid 2:

“Pihak pendakwaan juga telah memanggil Encik Tee Kok Lee, Ketua

Bahagian Service Ford (SP4) untuk memberi keterangan sama ada

tempat dadah jenis ganja tersebut dijumpai telah dibuat khas atau

telah wujud dari asal lagi semasa kenderaan itu dibeli dari

pembuatnya. Beliau telah bertugas dengan syarikat ini sejak tahun

1986 lagi. Menurut SP4, setelah dibuat pemeriksaan beliau dapati

kereta ini telah diubahsuai. Merujuk kepada gambar P6(A), di

belakang kerusi penumpang belakang terdapat sekeping besi yang

menutup dan diikat dengan screw. Besi penutup tersebut telah

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ditanda sebagai ‘X’ oleh SP4 di P6A. Menurut SP4 kereta Ford Telstar

dari jenis yang sama tidak sepatutnya mempunyai besi sebegini. SP4

juga dapati bahagian lubang untuk tayar spare juga telah ditutup

dengan sekeping besi dan dipateri oleh itu lubang untuk meletak

tayar spare tidak boleh dilihat lagi. Seterusnya pemeriksaan di

bahagian bawah kereta di tempat tayar spare terdapat lubang yang

dipotong sepertimana gambar P6(C) dan (D). Semasa pemeriksaan

dibuat oleh SP4 lubang ini tidak bertutup. Menurut SP4 lagi pada

keadaan biasa untuk kereta jenis ini tidak sepatutnya ada penutup

dari boot dan pada tempat tayar spare. Secara mata kasar boleh

diputuskan tiada kereta buatan kilang akan menghasilkan

kekemasan yang begitu kasar terutamanya untuk kereta persendirian

malah jentera berat sekali pun dicat dengan kemas.”

[36] Through the evidence of SP4, knowledge of the concealment of

the drugs in the specially constructed compartments of the Ford Telstar

motorcar shall be deemed against the appellant who was the driver of the

said motorcar at the material time.

[37] It is acknowledged that the appellant was not the registered

owner of the Ford Telstar motorcar and this was also considered by the

learned trial Judge.

[38] According to Saw Phoi Liang (SP10), the head of the individual

registration and record units of the Road Transport Department, the Ford

Telstar motorcar was owned by Zaiful Anuar bin Syed Omar (SP3). SP3

testified that he used the said motorcar for about a week after he had

purchased it and he discovered that the said motorcar had engine trouble

and so he decided to sell the said motorcar. For this purpose, SP3 handed

the said motorcar to his cousin by the name of Syed Khairi Din bin Syed

Abdullah (SP13). And SP13 testified that he sold the said motorcar to a

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male Indian whose name he did not know and that he used to meet the

male Indian before. It seemed that when SP13 was giving his evidence, the

learned deputy public prosecutor having conduct of the prosecution

commented that SP13’s oral evidence contradicted SP13’s statement that

was recorded by the investigating officer of the case by the name of

Inspector Prakphat a/l Tim (SP15). SP13 denied that he had told SP15 that

the male Indian who had bought the said motorcar was Sathiamoorty. Be

that as it may, it transpired that SP13 had lodged a police report vide Alor

Setar report number 23217/09 marked as exhibit “P59” and in that police

report, SP13 stated that he received a telephone call from a male Indian

who threatened him not to be a witness in this case. That police report

marked as exhibit “P59” can be seen at page 41 of the appeal record at

Jilid 3 and it was worded as follows:

“Pada sebulan lepas semasa saya sedang berada di rumah alamat

976 Lorong Syarif Jln Langgar, 05200 Alor Setar, Kedah telah terima

panggilan telefon dari 1 lelaki India yang tidak dikenali menggunakan

‘private number’ mengugut saya jika saya mahu selamat jangan jadi

saksi dan jangan terima surat biru dari pihak polis. Pada 24/11/2009

saya telah terima satu surat minta saya hadir bicara di Mahkamah

Tinggi Bahagian Jenayah Kuala Lumpur. Tujuan buat report kerana

takut jadi apa-apa dan bimbang akan keselamatan saya. Datang Balai

buat report. Sekian laporan saya.”

[39] However, both SP3 and SP13 admitted that when the Ford

Telstar motorcar was in their possession, no alterations were made to the

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said motorcar like what it is now done by incorporating specially

constructed compartments in the said motorcar.

[40] It is ideal, at this juncture, to examine three authorities on section

37(h) of the DDA. For starters, reference is made to the case of Khoo Hi

Chiang (supra) where the trial Judge viewed the motorcar BAP 1330

(“motorcar”) which the appellant Khoo was driving on the date and at the

time and place specified in the charge and in which the appellant Lee, the

registered owner of the motorcar, was travelling as the sole passenger until

he disembarked at the Butterworth railway station. It was from the petrol

tank of this motorcar that the police recovered the opium. The trial Judge

inspected the petrol tank from the boot of the motorcar as well as from the

inside of the said motorcar. The trial Judge noted, after inspection, welding

marks on both sides of the petrol tank as well as a partition in the petrol

tank. The trial Judge put his hand in the petrol tank and touched the

partition which divided the petrol tank into two compartments. The trial

Judge found that the position of the partition corresponded with the position

of the welding marks. The trial Judge also saw a hole in the petrol tank

which was covered by the screwed flap and that there was a board in the

boot to cover the petrol tank. After the inspection, the trial Judge had no

difficulty in concluding that the petrol tank had been modified so as to

create a special compartment for the purpose of concealing the opium. The

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prosecution also called a motor technician who was familiar with Toyota

motorcars and he testified that the petrol tank had been modified to such

an extent that the capacity of the petrol tank to carry petrol had been

reduced to one-fifth. The trial Judge invoked section 37(h) of the DDA and

convicted and sentenced both the appellants to death. The Supreme Court

confirmed the decision of the trial Judge.

[41] The second authority would be that of PP v. Saare Hama &

Anor [2001] 4 CLJ 475, a decision of the late Vincent Ng J (later JCA). In

that case, the blue Honda Accord motorcar bearing a Thai registration

number plate was examined in the parking lot of the toll plaza in the

presence of both the accused, but nothing incriminating was found. With

the aid of a T-shaped screw-driver, DSP Yusuh bin Mat Taib (PW4) took

out two screws behind the passenger seat which separated a partition and

found hidden between the back seat and the audio set, some compressed

blocks of plant material suspected to be cannabis. PW4 then brought both

the accused and the blue Honda Accord motorcar to the Jitra police station

and in their presence, PW4 conducted a thorough examination of the said

motorcar. PW4 found and recovered forty-eight (48) compressed blocks of

cannabis hidden behind the passenger seat. The prosecution called Chiew

Kiah Han (PW7), the technical assistant of the Penang Kah Motor Co Sdn

Bhd. PW7 testified that the compartment was not normally found in a new

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or original Honda Accord of similar model sold in West Malaysia. Under

cross-examination, PW7 conceded that he had no knowledge or

experience in respect of the back configuration of motorcars of similar

models to the blue Honda Accord motorcar that were assembled or sold in

Thailand. PW7 agreed in cross-examination that the rear compartment in

the blue Honda Accord motorcar may not be a specially constructed

compartment as it may be found in such motorcars sold in Thailand. The

prosecution sought to invoke section 37(h) of the DDA. The defence

argued that the cannabis were found concealed but not in “any

compartment specially constructed”. The late Vincent Ng J (later JCA)

held that the presumption under section 37(h) of the DDA was inapplicable

because of the evidence of PW7.

[42] The third authority would be the case of Public Prosecutor v

Nordin Awang [2001] 1 AMR 855. In that case the dangerous drugs were

found underneath the floor of the van. The Court conducted a physical

inspection of the van and found that the floor of the said van was fully

carpeted and that the drugs were not visible to the naked eye. The

prosecution relied on section 37(h) of the DDA. Alauddin bin Mohd Sherif J

(later the President of the Court of Appeal) held that section 37(h) of the

DDA merely presumed the element of knowledge and his Lordship

22

acquitted and discharged the accused on the ground that the prosecution

failed to prove exclusive custody and control over the dangerous drugs.

[43] Here, the learned trial Judge scrutinised the evidence of the

prosecution and invoked section 37(h) of the DDA when his Lordship called

for the defence of the appellant for trafficking in the dangerous drugs as per

the charge. This was what his Lordship said at pages 231 to 232 of the

appeal record at Jilid 2:

“Memandangkan dadah ditemui di dalam kompartmen yang dibina

khas dalam kereta BEA 1968 yang pada ketika itu dipandu oleh

tertuduh seorang diri dari RR Ulu Bernam sehingga ke stesyen Mobil

Taman Sri Rampai oleh itu anggapan pengetahuan di bawah seksyen

37(h) Akta adalah terpakai. Selain dari itu saksi polis yang

menangkap tertuduh iaitu Sjn Zaini (SP14) memberi keterangan

bahawa tertuduh cuba melawan dan terkejut bila diperkenalkan polis

sebelum tangkapan. Walaupun pergelutan dan cubaan melawan itu

tidak dapat berdiri secara tersendiri sebagai bukti pengetahuan

namun ianya dapat menyokong fakta yang tertuduh mengetahui

perbuatan jenayahnya itu dan bila terjumpanya dadah sejurusnya

maka ianya bersesuaian dengan tindak-tanduk penjenayah. Selain

dari itu juga, saksi utama SP9 yang memeriksa dari awal ke atas

kereta tersebut mengesahkan terdapat bauan cannabis yang kuat.

Perlu juga diambil ingatan tuanpunya dadah tidak akan membiarkan

dadah yang begitu banyak dengan nilaian yang tinggi dibawa oleh

seseorang yang tidak bersekongkol dengan pengedaran dadah atau

tidak tahu menahu tentang dadah di dalam kereta tersebut. Dengan

kata lain tertuduh jika benar tidak mengetahui dadah di dalam kereta

tersebut akan dapat perasan kehadiran dadah tersebut atas sebab

baunya. Oleh itu secara keadaan biasapun tanpa anggapan atau

penggunaan anggapan di bawah seksyen 37(h), tertuduh dikatakan

mengetahui kehadiran dadah itu.

Oleh itu dengan kawalan ke atas kereta yang hanya oleh tertuduh

(pemilikan), jumlah dadah yang begitu banyak hampir 30 kilogram

tidak munasabah untuk kegunaan tertuduh sendiri dan di’angkut

atau dibawa’ (transporting, carrying, sending and delivering) dengan

kereta oleh tertuduh. Seksyen 2 Akta mentakrifkan ‘pengedaran’

sebagai;

‘includes the doing of any of the following acts, that is to say,

manufacturing, importing, exporting, keeping, concealing, buying,

23

selling, giving, receiving, storing, administering, transporting,

carrying, sending, delivering, procuring, supplying or distributing

any dangerous drug otherwise than under the authority of this

Act or the regulations made under the Act’;

Fakta ubahsuaian kereta tersebut secara khas (seksyen 37(h) Akta)

dan bau cannabis dan melawan semasa tangkapan adalah unsurunsur

pengetahuan. Dengan itu ianya adalah secara penilaian

maksima memenuhi keperluan di bawah seksyen 180 KAJ untuk

mahkamah ini memutuskan pihak pendakwaan berjaya mewujudkan

suatu kes prima facia dan tertuduh perlu dipanggil membela diri.”

[44] Whether the appellant was in possession of the drugs at the

material time is a question of fact (Pendakwa Raya v Kang Ho Soh [1992]

1 MLJ 360 at page 371). The whole gamut of the facts must be considered

and that would show whether the appellant was in possession of the drugs.

The lynch-pin to the charge of trafficking is possession. It must be recalled

that SP9 and the police party tailed the appellant who drove the Ford

Telstar motorcar without stopping from R & R Ulu Bernam until the Mobil

petrol kiosk in Sri Rampai. The appellant was alone in the said motorcar

and when he was arrested inside the ladies’ toilet at the convenience store,

he resisted arrest even before the discovery of the drugs in the specially

constructed compartments of the said motorcar. Knowledge can be inferred

from the conduct of the appellant in resisting arrest and such conduct is

admissible under section 8 of the Evidence Act 1950. The guilt of the

appellant is reflected by his conduct. Such conduct reflects the state of the

appellant’s mind. It is a strong indicator of the appellant’s knowledge of the

drugs that he was transporting in the Ford Telstar motorcar. In regard to

24

knowledge Gopal Sri Ram JCA (later FCJ) had this to say in Public

Prosecutor v Suzie Adrina bte Ahmad [2006] 5 MLJ 135, 140, CA:

“But knowledge like any other state of mind is a fact that is to be

inferred from proved or admitted circumstances of a particular

case.”

[45] There is a nexus between the conduct of the appellant in

resisting arrest even before the discovery of the drugs in the Ford Telstar

motorcar and the offence of trafficking. It is from this nexus or connection

that knowledge can be inferred (Public Prosecutor v Chia Leong Foo

(supra)). Even an attempted flight entitled the Court to draw an inference of

knowledge like the case of Director of Public Prosecution v Brooks

[1974] 2 All ER 840. There at page 843, the distinguished Lord Diplock

had this to say:

“On the evidence, including his own statement to the police, the 19

sacks of ganja were clearly in the physical custody of the respondent

and under his physical control. The only remaining issue was

whether the inference should be drawn that the respondent knew

that his load consisted of ganja. On all the evidence and in particular

the fact that he and the other occupant of the van attempted to run

away as soon as they saw the uniformed police approaching, the

magistrate was, in their Lordships’ view, fully entitled to draw the

inference that the respondent knew what he was carrying in the van.”

[46] In our judgment, the learned trial Judge was correct to infer that

the appellant knew of the existence of the drugs in the Ford Telstar

motorcar and his Lordship rightly invoked the presumption under section

37(h) of the DDA against the appellant. In the absence of any reasonable

25

or plausible explanation by the appellant, the facts as narrated earlier were

sufficient for the learned trial Judge to find the appellant to be in possession

of the drugs (Public Prosecutor v Abdul Rahman bin Akif [2007] 5 MLJ

1, FC; Ramis a/l Muniandy v Public Prosecutor [2001] 3 SLR 534, CA;

and Tan Ah Tee & Anor v. Public Prosecutor [1980] 1 MLJ 49, CA,

Singapore).

[47] The learned trial Judge rightly considered that the act of the

appellant in “transporting” the cannabis from one place to another

coupled with the weight of the cannabis which was 29,298 grammes

amounted to trafficking of the said cannabis as defined under section 2 of

the DDA (Ong Ah Chuan v. Public Prosecutor, Koh Chai Cheng v.

Public Prosecutor [1981] 1 MLJ 64, PC). And the quantity of the cannabis

was not likely for the appellant’s own consumption. Rather, it was for the

purpose of trafficking in them.

The second ground

[48] The learned trial Judge narrated the defence in extenso as seen

at pages 235 to 237 of the appeal record at Jilid 2 and rejected the defence

because it failed to rebut the presumption under section 37(h) of the DDA

on the balance of probabilities. His Lordship also analysed the defence as

reflected at pages 237 to 239 of the appeal record at Jilid 2 as follows:

26

“Penelitian semula Mahkamah di akhir kes pembelaan

Saya telah meneliti keseluruhan keterangan kes pendakwaan dan

pembelaan oleh tertuduh serta saksi beliau (SD2) dan saya

mendapati bahawa tertuduh telah gagal untuk membangkitkan apaapa

keraguan yang munasabah terhadap kes pendakwaan dan gagal

mematahkan anggapan undang-undang di bawah seksyen 37(h) di

atas imbangan kemungkinan yang dia mengetahui kereta yang beliau

pandu itu membawa dadah berbahaya dalam bahagian khas yang

diubahsuai.

Saya juga berpuashati tanpa sebarang keraguan yang munasabah

dan tidak dipertikaikan bahawa 29,298 gram cannabis dijumpai

tersorok di dalam kompartmen yang dibina khas di dalam kereta BEA

1968 adalah dalam pemilikan dan pengetahuan tertuduh. Saksi

pendakwaan SP9 dan SP14 pertama kali beliau melihat kereta BEA

1968 di R & R Ulu Bernam dan seterusnya mengekori kenderaan

tersebut sehingga ke stesyen minyak Mobil di Taman Sri Rampai

adalah konsisten bahawa tertuduh sahaja yang mengawalnya.

Keterangan mereka tidak tercabar semasa pemeriksan balas oleh

peguambela tertuduh.

Penafian oleh tertuduh akan ada bau dadah cannabis atas alasan

cermin tingkap tidak ditutup dan tertuduh menghisap rokok juga

adalah gagal menepis anggapan pengetahuan yang dipikulnya di

bawah seksyen 37(h) Akta. Alasan membuka tingkap kerana

menghisap rokok adalah satu alasan yang gagal mematahkan

anggapan pengetahuan oleh sebab saksi pendakwaan dapat

mengesan bau cannabis semasa membuat pemeriksaan di tempat

kejadian. Cannabis sememangnya mengeluarkan bau yang kuat dan

tidak secara imbangan kemungkinan dapat tertuduh menepis

anggapan di bawah seksyen 37(h) Akta. Tambahan pula masakan

tuanpunya dadah tanpa pengetahuan tertuduh membiarkan dadah

yang begitu tinggi nilainya dibawa oleh tertuduh yang dikatakan

tidak tahu menahu dan sudah tentu seseorang yang suci hati tidak

akan berdiam diri apabila menghidu bauan ganja di dalam kereta

tentu akan lapor kepada polis.

Saya memutuskan secara keseluruhannya pihak pendakwaan telah

berjaya membuktikan kes mereka tanpa keraguan yang munasabah

manakala kes pembelaan gagal membangkitkan apa-apa keraguan

terhadap kes pendakwaan dan gagal mematahkan anggapan

pengetahuan bahawa tertuduh mengetahui dadah berada di dalam

tempat yang direka khas.

Dengan itu tertuduh disabitkan dan dijatuhkan hukuman gantung

sampai mati.”

27

[49] We were referred to the decision of this Court in Hairie

Mahthinem v. PP [2011] 8 CLJ 625 where the trial Judge did not consider

the version of the appellant at all and had not analysed or gave reasons as

to why the defence version could not be believed. It was held by this Court

that the failure of the trial Judge to consider the version of the appellant as

against the prosecution’s version constituted a fundamental misdirection

that warranted appellate intervention. This Court then allowed the

appellant’s appeal and his conviction was quashed and the sentence was

set aside. We were told by the learned deputy public prosecutor that the

prosecution has since filed an appeal to the Federal Court against the

decision of this Court in Hairie Mahthinem’s case and the appeal has not

been heard as yet by the Federal Court.

[50] It must be borne in mind that in Hairie Mahthinem’s case, the

prosecution’s version was diametrically different from the defence version

and despite this, the learned trial Judge did not consider whether the

appellant’s version had cast a reasonable doubt on the prosecution’s case.

[51] Here, the learned trial Judge after narrating and analysing the

defence case alluded to the prosecution’s case at the last part of his written

grounds of judgment as seen at page 237 of the appeal record at Jilid 2.

After considering both the versions of the prosecution and the defence, the

learned trial Judge considered the prosecution’s case again and held that

28

the defence failed to raise a reasonable doubt in the prosecution’s case

and that the appellant failed to rebut the presumption under section 37(h) of

the DDA.

[52] Every Judge has his own style of writing. Writing skills of Judges

vary from one Judge to another. Stimulating and engaging judgments will

stir the minds of many readers. At the end of the day, the evidence will

have to be examined. And evidence wise, the learned trial Judge has

analysed the defence case in the best way possible. His Lordship

considered the evidence of the defence and rejected it. According to SP9,

he and the police party tailed the appellant from the beginning till the end,

namely, until the Mobil petrol kiosk at Sri Rampai.

[53] The defence was not blaming SP6, SP7, SP8, SP11 and even

SP2. The defence was also not blaming SP3 or SP13 who assisted in

selling the Ford Telstar motorcar. The defence blamed Selvam for the

appellant’s predicament.

[54] The learned trial Judge considered section 37(h) of the DDA to

infer knowledge of the appellant in regard to the specially constructed

compartments in the Ford Telstar motorcar. His Lordship also said that

even without the aid of the presumption in section 37(h) of the DDA, the

strong smell of the scent of the ganja from the said motorcar prompted SP9

to examine the said motorcar at the Wangsa Maju police station and not at

29

the scene of the crime bearing in mind that a crowd had started to gather at

the scene of the crime and the weather was turning bad.

[55] It must be recalled that in his defence, the defence testified that

SP8 telephoned him and gave directions to the Mobil petrol kiosk in Sri

Rampai. But, under cross-examination, SP8 testified that he never met the

appellant before he came to Court and that he never spoke to the appellant

nor knew him. The testimony of SP8 under cross-examination can be seen

at page 66 of the appeal record at Jilid 1:

“S: Setuju awak tidak pernah nampak Sathia sebelum datang ke

Mahkamah?

J: Setuju.

Saya juga tidak pernah bercakap dengan dia dan tidak

berkenalan dengan dia.”

[56] Having invoked the operative presumption that the dangerous

drugs were concealed in the specially constructed compartments with the

knowledge of the appellant who was in charge of the Ford Telstar motorcar

on that fateful day under section 37(h) of the DDA, the learned trial Judge

did not say that the defence had not rebutted the presumption on the

balance of probabilities (“secara imbangan kebarangkalian”) (Public

Prosecutor v. Yuvaraj [1969] 2 MLJ 89, PC). Instead his Lordship used

this terminology, “secara imbangan kemungkinan”. But the evidence

adduced by the prosecution is overwhelming and despite such a

misdirection, we are satisfied that a reasonable tribunal would have

30

convicted the appellant on the available evidence on a proper direction

(Khoo Hi Chiang’s case (supra); and Tunde Apatira & Ors v. PP [2001]

1 CLJ 381, FC) and, consequently, we are constrained to uphold the

conviction and sentence imposed by the learned trial Judge.

[57] In our judgment, the defence had failed to rebut the presumption

under section 37(h) of the DDA on the balance of probabilities. The

evidence adduced point conclusively to the appellant that he was trafficking

in the dangerous drugs as per the charge and the defence too had not

raised a reasonable doubt as to his guilt which the prosecution had

established beyond reasonable doubt. It is safe to convict the appellant.

[58] We unanimously dismissed the appeal of the appellant. We

affirmed the conviction and sentence forthwith.

30.11.2012 Dato’ Abdul Malik bin Ishak

Judge, Court of Appeal,

Malaysia

31

Counsel

(1) For the Appellant/Accused : Mr. Hisyam Teh Poh Teik & Co

Solicitor : Messrs Teh Poh Teik & Co

Advocates & Solicitors

Johor Bahru, Johore

(2) For the Respondent

Public Prosecutor : Madam Shoba Venu Gobal

Deputy Public Prosecutor

Attorney-General’s Chambers

Putrajaya, Malaysia

Cases referred to in this judgment:

(1) Balachandran v PP [2005] 1 CLJ 85.

(2) Khoo Hi Chiang v Public Prosecutor And Another Case [1994] 2

CLJ 151.

(3) Public Prosecutor v Chia Leong Foo [2000] 6 MLJ 705.

(4) PP v. Saare Hama & Anor [2001] 4 CLJ 475.

(5) Public Prosecutor v Nordin Awang [2001] 1 AMR 855.

(6) Pendakwa Raya v Kang Ho Soh [1992] 1 MLJ 360.

(7) Public Prosecutor v Suzie Adrina bte Ahmad [2006] 5 MLJ 135,

140, CA.

(8) Director of Public Prosecution v Brooks [1974] 2 All ER 840, 843,

PC.

(9) Public Prosecutor v Abdul Rahman bin Akif [2007] 5 MLJ 1, FC.

32

(10) Ramis a/l Muniandy v Public Prosecutor [2001] 3 SLR 534, CA.

(11) Tan Ah Tee & Anor v. Public Prosecutor [1980] 1 MLJ 49, CA,

Singapore.

(12) Ong Ah Chuan v. Public Prosecutor, Koh Chai Cheng v. Public

Prosecutor [1981] 1 MLJ 64, PC.

(13) Hairie Mahthinem v. PP [2011] 8 CLJ 625, CA.

(14) Public Prosecutor v. Yuvaraj [1969] 2 MLJ 89, PC.

(15) Tunde Apatira & Ors v. PP [2001] 1 CLJ 381, FC.