Jiva A/L Gopal Krishnan V Pendakwa Raya


Download PDF Here











(Dalam Mahkamah Tinggi di Pulau Pinang Perbicaraan Jenayah No: 45-97-2008)




Jiva a/l Gopal Krishnan Dan


Pendakwa Raya


Koram: Abdul Malik bin Ishak, HMR


Azahar bin Mohamed, HMR Mohd Zawawi bin Salleh, HMR






[1] J iva a/l Gopal Krishnan (‘appellant’) was charged with trafficking in 9129 grammes of cannabis, an offence under section 39B(1)(a) of the Dangerous Drugs Act (‘DDA’) and punishable under section 39B(2) of the same DDA. The offence was said to have been committed on 28.6.2007 at about 3.05 a.m. at Jalan Mengkuang, Butterworth in the district of Seberang Prai Utara in the State of Pulau Pinang.


[2] At the conclusion of the trial, the High Court found him guilty of the offence. He was convicted and sentenced to the mandatory death penalty prescribed by the DDA. He then appealed to this Court against that decision. We dismissed his appeal. We now give our reasons for so deciding.


[3] As can be seen at pages 74-91 of the Appeal Record, the learned Judicial Commissioner (‘JC’) had comprehensively set out in his judgment the facts of the case and the significant evidence which he held made out a prima facie case against the appellant. The essential facts as found by the learned JC are these. On 27.6.2007 at about 10.00 a.m., ASP Rosli bin Ismail (‘PW4’) received information from an informer about a drug trafficking




syndicate. After that at about 2.00 p.m., he held a briefing with a team of police personnel regarding an operation to be carried out pursuant to the information. During the briefing, PW4 assigned the duty as agent provocateur to L/Cpl Abdul Razak bin Long (‘PW6’) and one D/Cpl Mohd Basri bin Mat Nor (‘AP2’). The prosecution’s case relied heavily on the evidence of PW6. After the briefing, PW6 and AP2 proceeded to Seberang Jaya, Penang in a Gen 2 car. Subsequently, PW6 met up with the appellant, the informer and a Malay man at a grilled fish restaurant near the Butterworth-Kulim Expressway. The informer introduced PW6 to the appellant.


[4] As events unfolded, at the grilled fish restaurant, the appellant and PW6, negotiated the amount and the price of the cannabis to be purchased. The appellant agreed to sell 10 kilogrammes of cannabis for RM1550.00. PW6 agreed on the amount and price. After that, the appellant, the informer and the Malay man, who is a friend of the informer left the grilled fish restaurant and before leaving, the appellant asked PW6 and AP2 to wait at the restaurant.


[5] On 28.6.2007 at about 12.40 a.m., the appellant returned to the grilled fish restaurant where PW6 was waiting. The appellant told PW6 that there was a police road block nearby and delivery could not be made at that point of time. Not long after that, the




appellant contacted PW6 and informed him that he was at the Sungai Dua Toll Plaza. PW6 then proceeded towards the Sungai Dua Toll Plaza and arrived there approximately at about 2.00 a.m. At the Toll Plaza, the appellant asked PW6 to follow a Perodua Kancil car to collect the cannabis. The appellant sat in the Perodua Kancil car driven by the Malay man, whom PW6 had met earlier at the grilled fish restaurant. PW6 then took over the driving of the Gen 2 car from AP2 and followed the Perodua Kancil car. At Jalan Mengkuang, PW6 saw the Perodua Kancil car stopped in front of a house. The appellant came out from the Perodua Kancil car and told PW6 to drive forward until a T-junction for delivery of the cannabis. In this regard, the material part of the evidence of PW6 is as follows:


‘Tertuduh turun dari kereta Kancil dan beredar dari kawasan itu. Selepas tertuduh turun dari kereta Kancil dan sebelum dia masuk ke lorong di antara rumah dan tertuduh, tertuduh bagi tahu saya “Uncle, pergi ke depan, jalan ke depan ada simpang tiga, uncle pusing balik barang sudah siap”.


Selepas itu saya nampak sebuah kenderaan pasukan yang dinaiki oleh SP4 menuju ke simpang yang ditunjukkan oleh tertuduh kepada saya dan kereta saya mengikut kereta SP4.




Apabila sampai di simpang tiga semasa saya nak buat pusingan balik dan saya nampak L/Kpl 121702 Roslan bin Mansor turun dari kereta yang dipandu oleh saya. L/Kpl 121702 duduk di bahagian penumpang belakang bertujuan membantu AP untuk menjalankan tangkapan.


Saya meminta L/Kpl berbaring di atas bangku kereta di belakang kerana kawasan di jalan tersebut cerah, lagipun sunyi takut pasukan bantuan datang lambat.


Semasa saya membuat pusingan kereta, SP4 juga membuat pusingan di simpang itu.


Saya menghala balik ke tempat di Jalan Mengkuang yang tertuduh cakap kepada saya.


Saya bergerak dan menuju ke tempat yang dijanjikan oleh tertuduh iaitu tempat di mana tertuduh turun.


Selepas itu, saya nampak tertuduh berada di tepi jalan di lorong di mana dia masuk dan memegang sebuah beg di tangan kanan. ’


[6] Continuing with his evidence, PW6 said that he saw the appellant standing beside the road at the entrance of the lane where he had earlier walked into it holding a bag in his right hand. PW6 then told AP2 that when he stopped the car in front of the appellant, it was the duty of AP2 to pull the appellant towards their




car. As planned, when PW6 made a stop, AP2 came out from the car and left the front passenger door opened. PW6 saw the appellant walked towards the car still holding the bag, while AP2 walked towards him. When AP2 and the appellant were near the Gen 2 car, AP2 shouted, “Kami Polis!” and the bag that the appellant was holding dropped to the side of the road. At this point in time, L/Kpl Roslan bin Mansor got out from the Gen 2 car to assist AP2 to arrest the appellant. Soon after the appellant was arrested, PW4 and the rest of his raiding team arrived at the scene. The bag that the appellant was carrying fell to the road beside the front passenger side of the Gen 2 car. After the arrest, the bag was still at the original place where it dropped from the hand of the appellant. PW4 then opened the bag and found inside it two packages, each containing 5 compressed slabs of plant material suspected to be cannabis. Altogether there were 10 slabs.


[7] The 10 slabs were later sent to the Chemistry Department for chemical examination and analysis. The chemist had found that the 10 compressed slabs of plant material were cannabis as defined in section 2 of the DDA weighing in total 9129 grammes.




[8] When this appeal came up before us, learned counsel for the appellant had raised five principal grounds in support of the appellant’s appeal. We shall deal with each of them in turn.


[9] The first relates to the non-compliance of the provisions of section 178(1) of the Criminal Procedure Code (‘CPC’) which provides that when the Court is ready to commence the trial, the accused shall appear and be brought before it and the charge shall be read and explained to him and he shall be asked whether he is guilty of the offence charged or claims to be tried. Learned counsel brought our attention to page 7 of the Appeal Record. He then argued that before the commencement of the trial, the charge was not read and explained to the appellant. Hence, learned counsel argued that the trial against the appellant was conducted in contravention of the provisions of section 178 of the CPC, which has resulted in a miscarriage of justice. This appeal, he argued, should be allowed on this ground alone.


[10] We do not agree. The appellant was represented by a lawyer. He was given every opportunity to cross examine the prosecution witnesses and to present his case. From the notes of proceedings as contained in the Appeal Record, even though it seems that the charge was not read and explained to him, it is patently clear that




the appellant understood the nature of the case against him. That being the case, in our judgment, the omission to read and explain the charge to the appellant did not cause any miscarriage of justice nor cause confusion; it is a mere irregularity and therefore curable under section 422 of the CPC. The appellant had not been prejudiced by the said omission to justify interference by this court.


[11] We turn next to the second ground raised by learned counsel for the appellant. It was argued that as an agent provocateur, PW6 was not a credible and reliable witness. Learned counsel argued that PW6 did not make any record of his dealing with the appellant and therefore it was unsafe to rely on his uncorroborated evidence.


[12] We found no merit in the argument. It is true that as an agent provocateur, PW6 had played a very active role and participated in the plan in the entrapment process set up by the police leading to the arrest of the appellant and the seizure of the cannabis. In this regard, section 40A(1) of the DDA provides that no agent provocateur shall be presumed to be unworthy of credit by reason only of his having attempted to abet or abetted the commission of an offence if the attempt to abet or abetment was for the sole purpose of securing evidence against such person. It is an established principle of law that an agent provocateur’s evidence




requires no corroboration and that an accused person can be convicted on the uncorroborated evidence of the agent provocateur if the court accepts the truth of the evidence (see: Wan Mohd Azman Hassan v PP [2010] 4 CLJ 529, Wan Yurillhami bin Wan Yaacob & Anor v PP [2010] 1 CLJ 17 and Namasiyiam Doraisamy v PP & other cases [1987] CLJ (Rep) 241). The provisions of section 40A(1) of the DDA provides for the presumption of creditworthiness of PW6. There is therefore no requirement for the evidence of PW6 to be corroborated.


[13] Turning now to the third ground, learned counsel for the appellant argued that the learned JC erred in holding that the Malay man (the informer’s friend who drove the car) was also an informer. Learned counsel argued that this individual had played an active role in this case; the appellant might not have been arrested without his involvement. On the facts and in all the circumstances of this particular case, we found that the Malay man did not play an active role in the operation which led to the arrest of the appellant. There was no evidence that he had done anything apart from being present and drove the Perodua Kancil car. More importantly, he was not involved in the negotiation for the sale of the impugned cannabis. There was also no evidence that he had custody and




control of the incriminating exhibits. It cannot be said therefore that he was a particeps criminis. We found no merit in the arguments of learned counsel under this head of complaint.


[14] Next, it was argued by learned counsel that the learned JC misdirected himself when he failed to appreciate that there was material difference between the police report (‘exhibit P10’) and PW4’s sworn testimony in court. We saw no merit in this argument. It is true that as can be seen at page 153 of the Appeal Record, PW4 in his police report which is exhibit P10 did not mention the meeting at the grilled fish restaurant and at the Sungai Dua Toll Plaza. It is important to bear in mind that PW4 was the leader of the police raiding team. He was not directly involved in the negotiation for buying and selling of the cannabis with the appellant in this case. The negotiation for the buying and selling of the cannabis at the grilled fish restaurant was between PW6 and the appellant. For that reason, PW4 only narrated in the police report his direct involvement that led to the arrest of the appellant and the seizure of the bag containing the offending cannabis. Besides, a police report is not an encyclopedia. It can never be treated as a piece of substantive evidence. It is not the beginning and ending of




every case (see: Herchun Singh & Ors v PP [1969] 1 LNS 52 and Balachandran v PP [2005] 1 AMR 321).


[15] Finally, learned counsel complained that there was a break in the chain of evidence with regards to the movement of the drug exhibits. In this regard, learned counsel in his written submission argued that the chemist report (‘exhibit P17’) did not mention the chemist “telah menerima bungkusan-bungkusan ganja yang dibalut dengan (i) kertas aluminium dan salotape lutsinar (ii) kertas warna putih dan salotape lutsinar sebagaimana yang nyatakan dalam Borang Bongkar Ekshibit P9”. The submission of learned counsel cannot be sustained for the following reasons. PW4 and PW6 identified the exhibits tendered in Court as exhibits recovered at the scene of crime. Both of them identified the exhibits based on their markings. The discrepancy as to the exhibits recovered whether wrapped in aluminium foil or white paper does not arise as PW4 said at page 25 of Appeal Record that “Setiap aluminium foil pada semua bungkusan ini sebenarnya mempunyai dua permukaan. Satu berwarna silver dan satu berwarna putih”. In the chemist report, it is stated that the packages of drugs had 2 layers. On the facts of the present case, there can be no doubt at all that the cannabis tendered in court which form the subject matter of the




charge was the one actually seized from the appellant. Clearly, there was no break in the chain of evidence regarding the exhibits in the present case. In the circumstances, the complaint by learned counsel for the appellant on the manner in which the exhibits were handled was misplaced.


[16] For all these reasons, we found no merits in this appeal. We had therefore, dismissed it. We affirmed the conviction and the sentence of death imposed by the learned JC upon the appellant.


Dated 19th February 2014.






Court of Appeal


For the Appellant : Muhammad Fairuz bin Ahmad Yusof


and Dir Kherwan Kamaruddin Tetuan Fairuz Suzana


For the Respondent : Yusaini Amer bin Abdul Karim


Deputy Public Prosecutor Attorney General’s Chambers



PDF Source: http://www.kehakiman.gov.my