IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: P-05-62-03/2012
HAMDANI BIN IBRAHIM
IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: P-05-63-03/2012
MOHAMED FAIZAL BIN AHMED …APPELLANT
[In the matter of Criminal Trial No: 45-31-2008 In the High Court of Malaya in Penang]
1. HAMDANI BIN IBRAHIM 2. MOHAMED FAIZAL BIN AHMED
Balia Yusof bin Haji Wahi, JCA Tengku Maimun binti Tuan Mat, JCA Hamid Sultan Bin Abu Backer, JCA
Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of The Court)
GROUNDS OF JUDGMENT
 The appellants’ appeal against conviction and sentence of death for trafficking of drugs came up for hearing on 21-01-2014 and on the same day upon hearing, we dismissed the appeal.
 There are two related appeals heard together.
 One of the main complaints of the appellants is that the informer was not called to give evidence. In the instant case, it is not in dispute that the police were aware of the drug trafficking activities, and also the nature of drugs as well as the price before police team consisting of three agent provocateurs was formed to purchase the drugs. The distinction here is that the police agent provocateur had negotiated the price with the 2nd appellant and subsequently, the 1st appellant was involved in the delivery which led to the arrest of both the appellants. This is not a case where the police did not negotiate with the 2nd appellant at all though they had prior information of the transaction which the appellants complained of.
 The issue relating to whether an informer must be called to give evidence is a question of fact which needs to be considered by the trial judge. The scope to call an informer is much more restricted under the Dangerous Drugs Act 1952 (DDA 1952). This issue has been well documented by authors of book as well as case laws. The judge and learned author Augustine Paul in his 4th edition of the book titled ‘Evidence Practice and Procedure’ at pages 938 and 939 had observed:
“(xiv) Where a witness is statutorily protected.
The presumption cannot be invoked for the purpose of overcoming the statutory protection given to informers by section 40(1) of the Dangerous Drugs Act.
per Mohamed Azmi SCJ in Munusamy v Public Prosecutor  1 MLJ 492, 494 (SC):
“it is now put in argument before us that the learned judge was wrong in law in failing to conclude that the failure to call the informer as a witness would attract the adverse inference against the prosecution under section 114(g) Evidence Act. Obviously the provision of section 114(g) cannot be misused in that fashion for the purpose of overcoming the statutory protection given to informers by section 40(1) Dangerous Drugs Act. Further it must be noted that no application was made during the trial for the exercise of the court’s discretion under section 40(3). Indeed, its provision was not even referred to the court. Be that as it may, for reason already stated we are not pursuaded that the provision relied upon can be applied in this case. Mr. Gurubachan Singh has also referred to us the judgment of Anuar J. in Public Prosecutor v Neoh Seow Aun Perak Criminal Trial No 12 of 1985. There, one of the three grounds for acquittal was that the two informers who had taken very active part in the commission of the offence by the accused, were not called or offered to the defence by the prosecution, and it was successfully argued that they were not in fact informers within the meaning of section 40(1) and as such the adverse inference under section 114(g) applied. The Public Prosecutor’s appeal against acquittal was eventually withdrawn. In our opinion whether a person is an informer or has become an active agent provocateur would depend on the facts of each particular case. In the instant case the protection under section 40(1) clearly applies since the evidence showed that all the informer did was to accompany DPC Lian on the 14th and introduce him to the appellant. Accordingly there is no merit in the argument that the learned judge ought to have invoked the adverse presumption under section 114(g). ”
However, where an informer plays an aggressive role in the criminal transaction, to the extent that he appears almost as an agent provocateur or accomplice, the informer ought to be called as a witness. Failure to call such an informer would raise the presumption.
per Hamid Sultan JC (as he then was) in Public Prosecutor v Chung Tsun Tin & Ors  1 MLJ 559 (HC) at para :
“From the line of questioning by the defence counsel, it is observed that they are suggesting that the informer is either an agent provocateur or an accomplice. It is a settled law that an informer will enjoy the privilege of being protected under s 40(1) of the DDA. However, an agent provocateur or an accomplice does not have such
protection. The dividing line between an informer and an agent provocateur is the degree of that person’s participation in the sale of the drugs. If an informer plays a role more aggressively in the dealing of the sale of the drugs then he would loose that protection. Thus, the non-calling of this witness (informer) to give evidence may cause the court to invoke s 114(g) of the Evidence Act 1950 (see Lee Lee Chong v Public Prosecutor  4 MLJ 697, Pendakwa Raya lwn Mohd Isha bin Alias dan satu lagi  3 MLJ 305. PP v Mansor b Mohd Rashid & Anor  3 MLJ 560, Namasiyam & Ors v Public Prosecutor  2 MLJ 336, Ti Chuee Hiang v Public Prosecutor  2 MLJ 433. Munusamy v Public Prosecutor  1 MLJ 492). It is therefore important to consider whether from the circumstances of the evidence adduced by the prosecution, the informer had crossed this thin line. This is a question of fact to be considered by the trial judge. ”
 The appellants’ reliance of the Court of Appeal case of Mohd Za’ba Abdul Talib & Anor v PP  4 CLJ 1081 does not fit into the facts of this case. It is trite that whether a person is an informer or has become an active agent provocateur would depend on the facts of each case.
 In the instant case, there was no evidence to show that the informer was present to negotiate the drugs with the police more so with the police agent provocateur. Similar issues were dealt with by His Lordship Azahar bin Mohamed JCA in the case of Ambiya binti Mohamad & Ors. v PP [W-05-96-04/2012], where His Lordship made the following observation:
“The DDA does not define the terms informer or agent provocateur. In common manner of speaking, an informer is a person who gives information about a crime which has happened or is happening or is going to happen; who are the persons involved and how they operate and the modus of criminal activities, etc. An informer is not a person who deals with the criminals and negotiates in a case of trafficking the terms of the sale of drugs until delivery. If the 3rd party is an informer, he is a ‘protected species’ under section 40 of
the DDA and need not be called unless the trial court deems fit to do so. The law relating to ‘informers’ had been dealt with by Hamid Sultan bin Abu Backer, JCA in the Court of Appeal decision of Roy Sabara & Anor v PP  AMEJ 0131.”
 The appellants were charged as follows:
“Bahawa kamu bersama-sama pada 30hb Julai 2007, jam lebih kurang 9.30 malam, di luar hadapan Bangunan Bank Bumiputra Commerce, Jalan Perusahaan, Perai, Di Dalam Daerah Seberang Perai Tengah, Di Dalam Negeri Pulau Pinang, dengan niat bersama memperedarkan dadah berbahaya sejumlah berat 25,769 grams Cannabis dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B (1) (a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B (2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan.”
 The petition of appeal of the 1st appellant can be summarized as
1. The learned Judge erred in law and fact by failing to take into account the doubt as to the identity of the drugs where there were unexplained differences in the gross weight.
2. The learned Judge erred in law and fact by failing to decide that the informer acted as an agent provocateur and failure to call the informer raises the adverse inference under section 114(g) of the Evidence Act 1950.
3. The learned Judge erred in law and fact by accepting Inadmissible evidence causing prejudice to the Appellant.
4. The learned Judge erred in law and fact by deciding that there was no defence and the defence had failed to raise reasonable doubt.
5. The learned Judge erred in law and fact by making a finding not supported by evidence.
6. The learned Judge erred in law and fact by failing to give due consideration to the defence.
7. The learned Judge erred in law and fact by failing to make inference favorable to the Appellants.
8. The learned Judge erred in law and fact by failing to consider exhibit D104 (the caution statement of the 1st Appellant) in arriving at a decision.
9. The learned Judge erred in law and fact by failing to consider that there was no evidence to show that the 1st Appellant was the one who negotiated with the agent provocateur.
10. The learned Judge erred in law and fact by failing to consider the fact that the keys to vehicle WHS 7478 allegedly driven by the 1st Appellant was never discovered or seized or traced.
11. The learned Judge erred in law and fact by failing to consider that the prosecution had failed to call or offer the owner of vehicle WHS 7478 during the trial.
12. The learned Judge erred in law and fact by failing to consider the evidence of the 1st Appellant during the defence stage and documents adduced by the 1st Appellant in its defence.
The 1st Appellant filed two petitions of appeal, dated 13.5.2013 and then 8.11.2013. Both petitions are essentially the same.
 The petition of appeal of the 2nd appellant can be summarized as follows:
1. The learned Judge erred in law and fact by deciding that there was no doubt to the identity of the exhibit where the gross weight increased from 26,767 grams to 25,769 [sic] after being analyzed by the Chemist Department. (amended as below)
2. The learned Judge erred in law and fact by failing to take into account the seized drug was ganja which is not listed under the Act and there is no evidence that ganja and cannabis are the same, as defined by the prosecution.
3. The learned Judge erred in law and fact failed to take into account the test to prove prima facie involves maximum evaluation of the evidence by the prosecution.
4. The learned Judge erred in law and fact by failing to take the inference favorable to the Appellant.
5. The learned Judge erred in law and fact by deciding that the defence had failed to raise reasonable doubt without taking into consideration that the defence was based on the facts laid out by the prosecution itself.
6. The learned Judge erred in law and fact by failing to apply Radhi’s direction in evaluating the defence.
7. The learned Judge erred in law and fact by failing to consider that the presumptions under section 37(d) and 37(da) are a separate exercise.
8. The learned Judge erred in law and fact by failing to take into account that mere demeanor is not the touchstone of truth.
9. The learned Judge erred in law and fact by placing too high evidential burden on the Appellant.
10. The learned Judge did not give any reason as to why evidence supporting conviction was taken into account and the evidence supporting the defence was dismissed.
11. The Judgment is not a reasoned judgment.
12. The learned Judge erred in law and fact by deciding that section 34 common intention was applicable in this case.
13. Mere presence could not constitute common intention.
14. The learned Judge erred in law and fact by failing to consider that the 2nd Appellant was with the 1st Appellant when the drugs were shown to the agent provocateurs.
15. The learned Judge erred in law and fact by failing to consider that the 2nd Appellant’s role was merely to meet the 1st Appellant at the Autocity KFC.
16. The learned Judge erred in law and fact as there was no meeting of the minds, an element under common intention.
17. The learned Judge erred in law and fact by deciding trafficking by selling, as defined under section 2 of the Act.
18. The learned Judge erred in law and fact by deciding that there was an act of sale and purchase in this case.
19. The learned Judge erred in law and fact by failing to decide that the section 2 is a definition section, with no criminal liability attached to it.
20. The learned Judge erred in law and fact by making a finding that AP1 and AP2 were agent provocateurs based on circumstantial evidence.
21. The learned Judge erred in law and fact by applying section 40A(1) and (2) of the Act where their evidence needs no corroboration.
22. The learned Judge erred in law and fact by failing to decide that the informer played an active role.
23. The learned Judge erred in law and fact by deciding that the 2nd Appellant was in possession of the seized drugs.
24. The learned Judge erred in law and fact by making a finding of fact that the 2nd Appellant walked with AP1 to the parking lot in front of Bumiputra Commerce Bank.
25. The learned Judge erred in law and fact by failing to appreciate that the 2nd Appellant was never in possession of the seized drugs.
26. The learned Judge erred in law and fact by deciding that the defence was a concoction and an afterthought after making a finding that the defence in general was consistent with the facts of the case.
27. The learned Judge should have decided that there were many coincidences strengthening the truth of the defence case.
28. The learned Judge erred in law and fact by making a finding that the evidence of the 1st and 2nd Appellants were bare denial.
29. The learned Judge erred in law and fact by deciding that the defence had failed to raise any reasonable doubt in the prosecution case.
30. The learned Judge had applied the wrong principles in evaluating the defence.
31. The learned Judge erred in law and fact by failing to take into consideration that there was no cross-examination on the material details on the defence case at the defence stage.
32. The conviction is not supported by evidence tendered in court.
2nd Appellant’s amended POA (dated 21.5.2013)
1. The learned Judge erred in law and fact by deciding that there was no doubt as to the identity of the exhibit when the gross weight as weighed by the Chemist was 26,215.15 grams compared to the evidence of the investigation officer, the gross weight as 26,767grams.
2. (other grounds are similar)
 In the instant case, the learned trial judge has written a 47 page judgment setting out the facts, the law and the full grounds to sustain conviction and sentence. We are of the considered view that judicial time should not be spent to regurgitate the facts save the core issues only.
 The police had information of the drug trafficking activities and in consequence they set up a special team consisting of 3 agent provocateurs. The agent provocateurs met the 2nd appellant at an agreed designated place and the sale was negotiated, and also the modus operandi of payment and delivery and the possible place was concluded. Subsequently, the place was changed to KFC. At KFC the
2nd accused was seen sitting with the 1st appellant and the 1st appellant again negotiated the sale and he was the one who suggested how the drugs were to be delivered. As arranged, the drugs were delivered by the 1st appellant and the 2nd appellant was to sit in another car. Once the drugs are delivered, the money was to be paid to the 2nd appellant. Once the 1st appellant showed the drugs taken from the boot of the car he was driving, the police arrested both the 1st appellant who attempted to escape and threw the drugs, and also the 2nd appellant.
 The learned counsel for the 1st appellant inter alia canvassed two issues before us namely: (i) the informer has exceeded his role and has become an active agent provocateur; (ii) discrepancy in the gross weight of the drugs.
 The learned counsel for the 2nd appellant inter alia (i) nonevaluation of role of informer; (ii) non-judicial appreciation of evidence of SP5; (iii) non-evaluation of section 34; (iv) identity of exhibits.
 We have read the petition of appeal, the appeal records and the submissions of learned counsel in detail. After much consideration to the submissions of the learned counsel for the appellant we take the view that the appeals must be dismissed. Our reasons inter alia are as follows:
(a) This is not a case where the informer has participated in the sale in the presence of police officer and the appellants until the delivery of drugs as stated earlier. The ‘informer’ here is
a ‘protected species’ under section 40 of DDA 1952 and to pierce the veil of protection, it needs specific order from the court as stated in the section. [See Roy Sabara & Anor v PP  AMEJ 0131].
(b) The discrepancies in weight have no merits on the facts of this case and more so after the decision of Hasbala Mohd Sarong v. PP  6 MLJ 636 when there is no break in chain to compromise, the credibility of the exhibit tendered. [See Natcha Dabkaew v PP [K-05-177-07-2012]; Zaifull bin Muhammad v. PP & another appeal  2 MLJ 348].
(c) It is difficult to fathom how section 34 will not operate in this case. [See Aung Thun & Anor v PP  1 MLJ 784; Ravindran a/l Ramasamy v PP  4 MLJ 665].
 It is well settled that it is in the hands of triers of facts to assess the quality of evidence and to determine whether the evidence on record justifies a conviction as well as sentence. We have perused the evidence in detail and we are satisfied that there are sufficient material to support the charge and the view taken by the trial court on the relevant issues in our view was a reasonable view of the evidence on record, and the court had followed Radhi’s direction and rightly applied the maximum evaluation and beyond reasonable doubt test. [See PP v. Aszzid Abdullah  1 MLJ 281; Tong Kam Yew & Wang Wee Cheng v. PP 4 MLJ 888; Chin Kek Shen v. PP  MLJU 266].
 We are of the considered view that it is a safe decision and appellate intervention is not warranted and the appeal has no merit. Accordingly we dismiss the appeal.
We hereby order so.
Dated: 16 June 2014
(DATUK DR. HJ. HAMID SULTAN BIN ABU BACKER)
Court of Appeal Malaysia
P-05-62-03/2012 (1st Appellant)
Messrs. Gooi & Azura Cheras
P-05-63-03/2012 (2nd Appellant)
Ranjit Singh Dhillon
Messrs. J.Kaur Ranjit & Associates
Munahyza bt. Mustafa Timbalan Pendakwa Raya Jabatan Peguam Negara Putrajaya.