IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION)
CRIMINAL APPEAL NO: P-05-305-12/2012
KHOR SOON LEE … APPELLANT
PUBLIC PROSECUTOR … RESPONDENT
HEARD TOGETHER WITH CRIMINAL APPEAL NO: P-05-306-12/2012
BETWEEN TAN HUN WAH … APPELLANT
PUBLIC PROSECUTOR … RESPONDENT
HEARD TOGETHER WITH CRIMINAL APPEAL NO: P-05-307-12/2012
TIOW CHIN HEE … APPELLANT
PUBLIC PROSECUTOR … RESPONDENT
(In the Matter of High Court of Malaya at Pulau Pinang Criminal Trial No: 45-2-01/2012
Public Prosecutor And
1. Khor Soon Lee
2. Tan Hun Wah
3. Tiow Chin Hee)
BALIA YUSOF BIN HAJI WAHI, JCA MOHTARUDIN BIN BAKI, JCA TENGKU MAIMUN BINTI TUAN MAT, JCA
JUDGMENT OF THE COURT
 The three (3) appeals were heard together. The appellants in P-05-305-12/2012; P-05-306-12/2012 and P-05-307-12/2012 will be referred to the first appellant, the second appellant and the third appellant respectively. In the High Court they were the first accused, the second accused and the third accused respectively. They were jointly charged under section 39B(1)(a) of the Dangerous Drugs Act 1952, read together with section 34 of the Penal Code for trafficking in dangerous drugs, to wit 4678 grams of Heroin.
 The prosecution’s case is as follows. SP7 and SP11 were two police officers who had acted as agents provocateurs (AP2 and AP1
respectively). API was introduced by an informer to the second appellant. AP1 was introduced as “Sam”, a buyer from Kuala Lumpur. The second appellant introduced himself as “Tan.” On the first meeting between AP1 and the second appellant at Restoran Nasi Kandar Pelita, Auto City, Juru, Bukit Mertajam on 3.10.2010, they had discussed the sale of syabu and had exchanged their handphone numbers.
 Thereafter, several telephone conversations took place between AP1 and the second appellant which resulted in a meeting at Restoran Nasi Kandar Pelita on 21.4.2011. At this meeting, in the presence of AP2 (who was introduced by AP1 to the second appellant as his employee), the purchase of 10 pounds of Heroin at the price of RM8,200.00 per pound was agreed. The delivery was to take place later at Tesco Supermarket, Bukit Mertajam.
 On 27.4.2011, having confirmed the delivery with the second appellant, AP1 and the police team made a move to Tesco Supermarket. At the parking area of the Supermarket, the second appellant was seen in a car bearing registration number CBD 3871 (exhibit P26) where the second appellant was at the front passenger seat. The driver of the car was the first appellant. AP1 then met the second appellant at KFC restaurant in Tesco Supermarket.
 Meanwhile, the first appellant was seen going to another parked car belonging to the third appellant. The first appellant collected a black plastic bag with writings (exhibit P4C) from the third appellant’s car. From the KFC restaurant, AP1 and the second appellant then
went into the first appellant’s car P26. The first appellant was at the driver’s seat. API was at the front passenger seat while the second appellant was seated behind. Upon entering the car, AP1 saw a black plastic bag at the foot rest of the front passenger seat. Inside the black plastic bag was a red plastic bag. Inside the red plastic bag, there were 10 packages containing substances suspected to be Heroin. AP1 then called for the money. The raiding team moved in. The first and the second appellants were arrested at the car. The third appellant was arrested inside the Tesco Supermarket.
 The learned trial judge adverted to the elements of possession and trafficking and found that the prosecution had made out a prima facie case against all the appellants. The relevant part of the grounds of judgment states (pg 55-56: AR1):-
“Mahkamah membuat inferens bahawa P4(C) yang dikeluarkan dari boot kereta Proton Wira di mana tertuduh 3 mempunyai kunci kereta di kawasan meletak kereta Tesco Supermarket di mana tertuduh 2 sedang menguruskan transaksi jual beli dadah dengan AP1 dan tertuduh 1 memandu kereta di mana P4(C) dijumpai hanya menunjukkan ‘common intention’ di bawah seksyen 34 Kanun Keseksaan di antara tertuduh 3 dan tertuduh 1 dan tertuduh 2 bagi melaksanakan kesalahan mengedar dadah.
To sum up, all three accuseds were in joint possession of the black plastic bag containing the heroin drug (See PP v Denish Madhavan  2 CLJ 117 (FC)) and harbouring the common intention to traffic in dangerous drugs.
The court does not doubt the credibility of the witnesses for the prosecution as there was no evidence adduced that any one of them had an axe to
grind against all the accuseds. Moreover all the police officers involved were from Bukit Aman and not from the local police station.”
 The appellants were thus called upon to enter on their defence. In gist, the defence of the first appellant was that he was merely sending the second appellant to Tesco Supermarket; that the second appellant had brought with him a black plastic bag (exhibit P4(C)); that the second appellant informed him that the black plastic bag contained ‘sarang burung’; that at the car park of Tesco Supermarket, he received a call from the third appellant informing him that the third appellant had bought him a pair of slippers; that he then went over to the third appellant’s car which was also parked at the Tesco Supermarket parking area; that the third appellant took out a black plastic bag which was similar to exhibit P4(C); that the first appellant took the black plastic bag and put it at the back passenger seat of his car. The first appellant thus denied having any knowledge of exhibit P4(C) and the drugs contained therein and denied having taken exhibit P4(C) from the third appellant’s car.
 The second appellant did not deny the transaction that had taken place between him and AP1. He however testified that the transaction was on the instructions of one “Ah Tan”. The second appellant admitted carrying exhibit P4(C). He said that he had brought exhibit P4(C) from his house and as to the contents, his testimony was that he had carried ‘pek hoon (Heroin) palsu’ as per the instruction of Ah Tan.
 The evidence of the third appellant was consistent with that of the first appellant insofar as the slippers were concerned. The third appellant therefore denied carrying, in the boot of his car, the black plastic bag exhibit P4(C) which contained the drugs.
 The learned trial judge found that the defence had failed to raise a reasonable doubt on the prosecution’s case. The three appellants were found guilty and convicted of the charge and sentenced to death.
 Learned counsel for the appellants canvassed only one issue before us. The issue is whether exhibit P4(C) was the same black plastic bag that was taken by the first appellant from the third appellant’s car.
 The bone of contention of learned counsel was that there was another black plastic bag containing slippers in the first appellant’s car i.e. the plastic bag which was carried by the first appellant from the third appellant’s car. The prosecution had failed to produce this plastic bag and although the production of the said plastic bag was requested by the defence, the request was denied by the learned trial judge. It was therefore the submission of learned counsel that the learned trial judge erred in failing to consider the existence of two black plastic bags and that the learned trial judge had seriously misdirected himself in failing to invoke section 114(g) of the Evidence Act 1950.
 Having considered the oral and written submissions of learned counsel and having perused the appeal records, we found that there is no merit in the appeal.
 The issue as regards another black plastic bag which was not produced by the prosecution is related to the issue of the slippers. The issue of the slippers, which was relevant to the defence of both the first and the third appellants, had been considered by the learned trial judge where His Lordship made the following finding (pg 68-69: RR Jld. 1):-
“Tidak begitu munasabah bagi tertuduh 3 membeli sepasang selipar yang baru bagi tertuduh 1, sepupunya, sebab dikatakan selipar tertuduh 1 koyak, tetapi jika tertuduh 3 membeli hadiah bagi tertuduh 1 untuk hari jadinya, alasan ini yang lebih munasabah. Kalau selipar tertuduh 1 sudah koyak, tentulah sebagai manusia yang waras dan munasabah beliau tentulah akan cepat membeli sepasang selipar yang baru untuk menggantikan selipar yang koyak sebab beliau memerlukan selipar untuk dipakai tiap-tiap hari; lagi pun tertuduh 1 sedang menjual ikan bakar di kedai.”
 Further, the learned trial judge said (pg 71: RR Jld. 1):-
“Berdasarkan keterangan SP4 yang memerhatikan tertuduh 1 kembali ke keretanya dari kereta tertuduh 3 dengan menjinjing satu beg plastik hitam dengan perkataan atau tulisan putih di luarnya dan keterangan SP12 bahawa beg plastik hitam yang mengandungi kasut (sic), ciri beg kasut ini amat berbeza daripada P4(C), mahkamah membuat inferens bahawa tertuduh 3 yang sebenarnya memberi P4(C) kepada tertuduh 1.”
 We found no reason to disturb the finding of the learned trial judge on the issue of the slippers and the following finding on the conduct of the first appellant:-
“Keterangan yang diberikan oleh SP4 bahawa tertuduh 1 enggan membuka pintu kereta sebaik sahaja beliau telah pun memperkenalkan diri sebagai pegawai polis menunjukkan tertuduh 1 tahu bahawa beliau membawa P4(C) ke dalam keretanya dan oleh kerana sekiranya tertuduh 1 hanya membawa satu beg plastik hitam yang mengandungi sepasang selipar yang baru ke dalam keretanya, tidak ada sebab bagi beliau cuba melarikan diri dengan mengundurkan kereta dan enggan membuka pintu kereta.”
 In the circumstances, it is our view that the invocation of section 114(g) of the Evidence Act does not arise.
 We found that the learned trial judge had considered the evidence in its totality and had given due weight to the defence. The findings of the learned trial judge was in accord with the probabilities of the case (see Moh Chuan Pin v PP  6 CLJ 420). Given all the above, it is our judgment that the conviction of the appellants is safe. We therefore unanimously dismissed the appeals and affirmed the conviction and sentence of the High Court.
Dated 17th June 2014
(TENGKU MAIMUN BINTI TUAN MAT) Judge
Court of Appeal, Malaysia
For the Appellants:
S. Anthonysamy bersama dengan
Messrs. Murali & Associates
Advocates and Solicitors
No. 92-A, Pusat Perniagaan Raja Uda
Jalan Raja Uda.
For the Respondent:
Mohd Fairuz bin Johari Timbalan Pendakwa Raya Jabatan Peguam Negara Bahagian Perbicaraan dan Rayuan Aras 5, No. 45, Lot 4G7 Persiaran Perdana Presint 4 62100 Putrajaya.