IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. P-05-110-2011
Aidilfitri Bin Idrus
[In the matter of High Court Of Malaya, in Pulau Pinang, Malaysia Criminal Trial No. 45-83-2008]
Public Prosecutor And
Aidilfitri Bin Idrus
MOHAMED APANDI ALI, JCA LINTON ALBERT, JCA TENGKU MAIMUN TUAN MAT, JCA
GROUNDS OF JUDGMENT
The appellant was charged with trafficking in 18,889 grammes of cannabis under section 39B(1)(a) of the Dangerous Drugs Act, 1952 (the Act). He was convicted and sentenced to death under section 39B(2). He appealed against both conviction and sentence.
The factual matrix of the case are as follows : –
In March 2008, Lance Corporal Jeganathan a/l Govindan (SP4) and Detective Corporal Govindasamy a/l Raju (SP9) were tasked to act as agent provocateurs in relation to a planned police operation against a drug trafficking syndicate in Penang. Their superior officers were Superintendent Bathumalai a/l Suppiah (SP11) stationed in Penang who received information from an informer, that a malay, by the name of Fitri was looking for a buyer of cannabis and Deputy Superintendent of Police Hong Ek Yeen (SP10) stationed at Bukit Aman, Kuala Lumpur who designated SP4 and SP9 as agent provocateurs and gave SP4 a sim card for handphone number 014-3307561 and this was conveyed by SP10 to SP11 when he informed the latter on 13.03.2008 that SP4 and SP9 were ready to go to Penang the next day. SP11 then contacted the informer to
inform Fitri to get in touch with SP4 as the buyer at 014-3307561. While SP4 and SP9 were in Penang on 13.03.2008 SP4 received a phone call from Fitri through handphone number 016-4683656. The three of them then met at Tesco and finalised the negotiations for the drug transaction. The amount of cannabis Fitri was to supply was 20 kilos at a price of RM2,200.00 per kilo. The operation was aborted because Fitri could not supply the cannabis on that day, but Fitri told SP4 that he would inform him when he had the supply of the cannabis. Between 24.04.2008 and 28.04.2008 SP4 received several telephone calls from Fitri, telling him that he had the supply of cannabis and asking SP4 when he would be going to Penang to collect it. On 29.04.2008, SP4 also received a similar call from Fitri. On that day preparations were made with SP10 for SP4 and SP9 to go to Penang on the next day and SP10 supplied SP9 with RM44,000.00 representing the purchase price for the 20 kilos of cannabis.
Assistant Superintendant of Police, Balasubramaniam a/l Rajao (SP6) was tasked to form a raiding party to assist SP4 and SP9. SP4 then telephoned Fitri that he would be in Penang the following day, 30.04.2008. SP11 was also informed by SP4. On 30.04.2008, SP4 told Fitri that he and SP9 would arrive in Penang at 2.00 pm. At 7.00 am that morning SP6 and
his raiding party left Kuala Lumpur for Penang in two cars. At 12.50 pm, when SP4 received a telephone call from Fitri, he told Fitri that he would be arriving in Penang in an hour’s time. Fitri told SP4 to meet him at Tesco. SP11 was informed and he directed SP4 and SP9 to go to Tesco and informed the raiding party where SP4 would be meeting Fitri. At 12.55 pm, SP4 and SP9 went to Tesco and waited for Fitri to call at the restaurant there. At 1.10 pm, SP6 told SP4 that the members of the raiding party were stationed outside Tesco. At 2.15 pm, Fitri called SP4 and told him that he was already outside the Tesco building, inside a black car bearing registration number PGX 527, behind a white 1-ton lorry and asked SP4 to go there. SP4 then went there while SP9 told SP6 about the information given by Fitri.
After some confusion, SP4 eventually saw Fitri alone inside the car sitting at the driver’s seat. Fitri indicated to SP4 to come inside the car and as soon as SP4 was inside, SP4 commented on the strong smell. Fitri then showed SP4 the cannabis inside a green “Quicksilver” brand bag. SP4 then called SP9 to bring the RM44,000.00 in Tamil. SP9 called SP6 to proceed with the raid. SP6 apprehended Fitri and handcuffed him. SP6 conducted a body search but found nothing incriminating except two nokia
handphones and Fitri’s Identity Card. Fitri appeared to be anxious and scared. SP6 recovered 20 slabs of compressed leaves, suspected to be cannabis from the green “Quicksilver” brand bag. There were other personal items recovered from the car. Fitri who was identified as the appellant was taken to the police station together with all the items recovered from the car. SP6 then marked all the items seized. At 5.30 pm SP6 handed over the appellant and all the exhibits to Inspector Faizal bin Abd Kadir (SP7) the Investigation Officer.
The 20 slabs of compressed leaves were sent for analysis and received by the chemist Mahayani binti Md Saad (SP5). The result of the analysis confirmed that the 20 slabs of compressed leaves constituted 18,889 grammes of cannabis.
Based on the foregoing facts established by the prosecution, the learned judicial commissioner ruled that the prosecution had made out a prime facie case premised on the finding that there was actual mens rea possession of the drugs and applying the presumption of trafficking under section 37(da) of the Act.
In his defence the appellant gave evidence on oath and called two other witnesses to testify on his behalf.
The appellant testified that his cousin Azahar came to his house at 1.30 pm on 30.04.2008 bringing with him a bag containing something inside and asked the appellant to hand over the bag to Siva, the appellant’s friend at Tesco. The appellant’s mother and younger brother who was also at home heard the conversation between the two. Azahar then told the appellant that Azahar would call Siva to tell Siva the appellant’s car number and where Siva could find him. The appellant then went to Tesco and called Azahar to ask him where he was and Azahar asked the appellant to wait while Azahar would call Siva to tell Siva where the applellant was. While waiting, the appellant was arrested. He denied knowledge of the contents of the bag which had a zip. He also said that Azahar had used his name to register with Digi because Azahar’s name had been blacklisted. Abu Bakar bin Idrus (SD2) testified that he was in the house on 30.04.2008 when Azahar came with the sling bag and confirmed he heard Azahar asking the appellant to give the bag to Siva. Husmadi bin Shaikh Ali (SD3) said that the appellant worked at EON as a salesman since 2006 until his arrest on 30.04.2008.
The learned judicial commissioner held that for the defence to succeed it had to rebut the presumption of trafficking on a balance of probabilities and cast a reasonable doubt on the prosecution’s case and ruled that the defence had failed to do so because the defence of the appellant was illogical and unreasonable and a mere afterthought. The learned judicial commissioner concluded that the prosecution had established its case beyond reasonable doubt and accordingly found the appellant guilty, convicted him on the charge and passed the death sentence.
Learned counsel for the appellant submitted that there were four issue which were favourable to the appeal. The first issue was the failure of the learned judicial commissioner to consider the fact that Azahar was not a fictitious character and his existence was not disputed. Common sense dictates that the mere proof by an accused person of the existence of the person blamed by the accused for the offence the accused is charged with does not by or of itself cast a reasonable doubt on the guilt of the accused. If that is the law then convictions would indeed be rare. Here, the learned judicial commissioner had carefully considered the appellant’s version which revolved around Azahar’s connection to the drugs
and the role of the appellant as an innocent carrier of the drug, was totally rejected by the learned judicial commissioner. There was no misdirection or misapplication of the established facts by the learned judicial commissioner. The existence of Azahar was of no assistance to the defence case. There was no reason whatsoever to disturb the finding of the learned judicial commissioner on this aspect of the appeal. (See Teng Howe Seng v PP  5 CLJ 186)
The other aspect of the appeal was the contention that the learned judicial commissioner fell into error when she failed to specify the provisions of the law relied on in admitting the evidence of the chemist, SP5 who analysed and confirmed the 20 slab of compressed leaves to be 18,889 grammes of cannabis after having rejected the argument of the appellant that section 37(j) of the Act applied to the testimony of SP5. It was patently clear that section 37(j) of the Act had no application in this appeal because the subsection only applied to cases where the proscribed drugs were contained in a number or receptacles. In the present appeal the 20 slabs of compressed leaves were found in one bag. Hence the question of analysing samples in 10% of the receptacles did not arise. The statement of the law as set out in the judgment of Nik Hashim, FCJ in Chu
Tak Chai v PP  4 CLJ 931 at pages 949-950 clearly demolished the appellant’s argument on this aspect of the appeal :
“ In any event it is our view that the ten per centum stipulated in s. 37(j) refers to the number of receptacles and not the total weight of the drug found or the total amount or weight of the samples taken for analysis. section 37(j) only requires the taking of samples from ten per centum of the total number of the receptacles and not the drug. It is for the chemist to determine the sufficiency of the weight of the drug required for the analysis. This has ben lucidly explained in Gunalan a/l Ramachandran & Ors. v. PP  4 CLJ 551 CA with which we agree.
 On the sufficiency of the evidence of the chemist, we wish to reiterate that the court is 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 the evidence is so inherently incredible that no reasonable person can believe it to be true or the defence calls evidence in rebuttal by another expert (see
Balachandran, supra; Munusamy v. PP  1 CLJ 250;  CLJ (Rep) 221; PP v. Lam San  3 CLJ 2410;  1 CLJ (Rep) 391; Khoo Hi Chiang v. PP  2 CLJ 151).
 With regard to the chemist’s evidence in Leong Bon Huat, Abdul Hamid Mohamad JCA (as he then was) said in Gunalan a/l Ramachandran, supra, at p 578:
With greatest respect, I find that the judgment of the Supreme Court in that case is not an authority for saying that the law requires that 10% of the total weight of the drug must be tested. No reference was also made to Public Prosecutor v. Lam San. With respect, the judgment seems to focus on the interpretation of the words ‘more than 10%’ used by the chemist as if it is a statutory provision or a clause in a contract. The point is, there is no provision whatsoever in the Act which requires at least 10% of the total weight of the substance in question to be taken out for the purpose of analysis.
As seen in Public Prosecutor v. Lam San the 10% is
nothing more that the practice among chemists.
The above view was shared by Abdul Aziz Mohamad JCA (as he then was) in a separate judgment in the same case at p. 592 when he said:
No law or statue has laid down the process which a chemist is bound to use in order to prove the nature of a substance as being or as containing a particular dangerous drug or the weight of the dangerous drug in a bulk of the substance. The process belongs to the realm of science and is devised according to the discipline and principles of science.
It is to be noted that the above observations of the learned judges have since received approval sub silentio from the Federal Court (see Gunalan a/l Ramachandran & Ors. v. PP  1 CLJ 857). With respect, we agree with the views of both the learned judges. It is clear therefore that there is no requirement for the amount or the weight of the samples of the drug to be taken for the
purpose of analysis scientifically. It is also for the chemist to carry the adequacy of samples for the purpose of analysis. If the defence wishes to challenge the sufficiency of the weight of the drug analysed the chemist’s evidence must be challenged and evidence in rebuttal must be led, if necessary. ”
In a nutshell, the Federal Court in Chu Tak Fai overruled the earlier Supreme Court decision in Leong Bon Huat on the interpretation of section 37(j) of the Dangerous Drugs Act 1952.
The third aspect of the appeal revolved around the presumption of trafficking under section 37(da) of the Act which was invoked by the learned judicial commissioner. It was contended for the appellant that the learned judicial had erred when she invoked the presumption of trafficking even though there was direct evidence of actual trafficking which was prejudicial to the appellant. There is no law or principle which precludes a trial judge from invoking the presumption of trafficking under section 37(da) of the Act after having found actual mens rea possession of the drug simply because it would be prejudicial to the accused. In the present appeal the cannabis was many times over the minimum weight of 200 grammes to
trigger the presumption under section 37(da) (vi) of the Act. A similar situation arose in Teng Howe Sing v PP  5 CLJ 186 where KN Segara, JCA delivering the judgment of the Court Of Appeal said at pages 193-194;
“ We are satisfied that the learned trial judge has considered fully all the evidence given on behalf of the defence and having weighed it against the prosecution’s case he has come to the correct conclusion that the accused has not raised any reasonable doubt to show that the accused was not in actual possession of the package at the material time and that he did not know that the package contained drugs. As the weight of the proscribed drugs in the possession of the accused exceeded 200 grammes of cannabis, s. 37(da)(vi) of the Dangerous Drugs Act 1952 triggered the presumption of trafficking in the said drugs against the accused. The learned trial judge has correctly concluded, that on the evidence before him, the accused has failed to rebut the statutory presumption of trafficking. ”
Finally it was contended on behalf of the appellant that the learned judicial commissioner had misdirected herself when she stated at
paragraph  of her written judgment that the burden placed on the defence was to raise a reasonable doubt on the prosecution’s case on a balance of probability. An identical issue was brought up in Abdul Aziz bin Mohamed Shariff v. Public Prosecutor  6 MLJ 759. The Federal Court disposed of the issue at p 769 thus ;
“[.21 The second issue relates to a passage in the grounds of judgment of the High Court after defence was called which says:
Berdasarkan sebab-sebab di atas saya berpendapat pembelaan telah gagal untuk menimbul keraguan yang munasabah di dalam kes pendakwaan di atas imbangan kebarangkalian. Daripada keterangan yang ada saya berpendapat pihak pendakwaan telah berjaya membuktikan kesnya di tahap melampaui keraguan yang munasabah.
Translated into English :
Based on the reasons aforesaid, I am of the opinion that the defence has failed to raise a reasonable doubt in the prosecution case on the balance of probability. From the evidence adduced I am of the view that the prosecution has proved its case against the accused beyond reasonable doubt.
 Against this, the appellant argued that trial judge has misdirected himself on the standard of proof required of the defence.
 It is trite that all that is necessary is for an accused person in his defence to cast a reasonable doubt in the prosecution’s case to earn an acquittal – see Mohamad Radhi bin Yaakob v Public Prosecutor  3 MLJ 169 at p 171 and K Saravanan a/l S Karuppiah v Public Prosecutor  3 MLJ 465; [ 2002] 4 CLJ 144 at p 153. Though the trial judge had this in his forethought, he added ‘ on the balance of probability’. But as reiterated by the Supreme Court in Mohamad Radhi bin Yaakob v Public Prosecutor  3 MLJ 169: ‘To satisfy this test
it is not so much the words used by the judge, but rather the actual application of the test to the facts of the case that matters’. I am of the view that having read the judgment of the High Court in its entirety, particularly the reasons advanced to support the decision, this error caused by the addition of the phase ‘ on the balance of probability’ is insufficient to affect his finding that the appellant is guilty of the crime as charged. The inclusion of this phrase in my view is a mere verbosity _ see K Saravanan a/l S Karuppiah v Public Prosecutor, Rosli bin Supardi v Public Prosecutor  3 MLJ 256;  3 CLJ 544, which does not affect the conclusion arrived at by the trial judge. ”
Likewise, in the present appeal, the error was not sufficient to affect the integrity of the finding of the learned judicial commissioner that on the entirety of the evidence before her, the appellant was guilty of the offence he was charged with.
In the circumstances, we found the appeal to be devoid of merit. The appeal was dismissed. The conviction and sentence passed by the high court were affirmed.
Court of Appeal Malaysia Putrajaya
Dated : 13th October 2014 COUNSEL
For Appellant : Ahmad Ridzuan Bin Awang
Messrs Salehuddin Saidin & Associates Tingkat 14, Plaza Perangsang Persiaran Perbandaran 40000 Shah Alam Selangor
For Respondent : Tetralina Bt Ahmed Fauzi
Jabatan Peguam Negara Bahagian Perbicaraan Dan Rayuan Aras 5, No. 45, Lot 4G7 Presint 4, Persiaran Perdana 62100 Putrajaya