DALAM MAHKAMAH RAYUAN MALAYSIA
RAYUAN JENAYAH NO. P-05-86-04
MEGAT HALIM BIN MEGAT OMAR … PERAYU
PENDAKWA RAYA DAN … RESPONDEN
[ Dalam Mahkamah Tinggi Malaya di Pulau Pinang Perbicaraan Jenayah No. 45-11-2001 ]
CORAM: LOW HOP BING, HMR
ABDULL HAMID EMBONG, HMR AHMAD BIN HJ. MAAROP, HMR
JUDGMENT OF THE COURT
1. The appellant, Megat Halim, was convicted and sentenced by the High Court Penang for an offence of drugs trafficking of 797.59 grammes of cannabis, under S.39 B (1)(a) Dangerous Drugs Act 1952 (DDA).
2. We dismissed his appeal and now give our reasons.
3. The facts show that on 17.3.2000 at 11.25 pm, Cif Inspector Rajaram (SP9) and 7 of his men from the Narcotics Division, upon information received, raided the appellant’s house at Block 111-B-4-3, Hilir Pemancar, Gelugor, Penang.
4. When SP9 knocked on the main door the appellant opened it. In the house was SP7, the appellant’s wife and their two young children, sleeping in the first bedroom.
5. SP9 introduced himself as a police officer and asked the appellant if he kept any illegal items in the house, the exact question being “Ada kamu simpan apa-apa barang salah dalam rumah?”
6. The appellant then brought SP9 to the second room and produced one black cigarette box (JPS brand) from underneath a bag found on the floor of that room.
7. Upon inspection of the JPS box it was found to contain dried leaves suspected to be cannabis.
8. SP9 immediately cautioned the appellant pursuant to S.37A (1) (b) DDA – the caution being so worded –
“ adalah menjadi kewajipan saya memberi amaran kepada kamu bahawa kamu tidak diwajibkan berkata apa-apa atau menjawab apa-apa soalan, tetapi apa-apa jua yang kamu nyatakan samada sebagai menjawab kepada sesuatu soalan atau tidak boleh diberi sebagai keterangan. ”
9. That caution was recorded by SP9 on a piece of paper. The contents of that piece of paper was admitted by the learned trial judge as an exbibit (P.12) after conducting a trial within a trial.
10. Following that caution, SP9 asked the appellant the following questions to which the appellant answered –
Boleh kamu beritahu saya apa yang
ada dalam bekas warna hitam
jenama JPS ini?
Jawapan: Saya punya.
11. SP9 then asked the appellant this question “Ada kamu simpan lagi dadah ganja”, to which the appellant responded “Ada sikit”.
12. The appellant then brought SP9 to a wardrobe in that second bedroom and pointed to SP9 to a brown bag kept in a wardrobe.
13. When SP9 retrieved the bag he asked the appellant these questions –
Boleh kamu beritahu saya apa yang
ada dalam beg warna brown ini?
Jawapan: ^ kilo.
14. SP9 then inspected the contents of the bag and found it to contain a slab of dried leaves, later confirmed to be cannabis, wrapped in transparent plastic, a plastic packet containing smaller plastic packets, and a knife.
15. SP9 then inspected the room further and found within the folds of a pair of trousers two white plastic bags both containing dried cannabis.
16. Arguments on this appeal centered around three issues which are now separately discussed.
17. The first issue was whether the appellant’s conduct in reply to the queries made by SP9, before the administering of the caution, was admissible.
18. It was submitted by learned counsel that the circumstances under which those questions were asked and the manner in which they were posed showed that the appellant was actually under arrest.
And since no caution was given in relation to those questions, the answers given by the appellant were thus inadmissible under S.37A DDA.
As regards the allegation that the appellant was already arrested at that point, learned Counsel relied on PP v ROSYATIMAH BTE NEZA (1989) 1 MLJ 360, a High Court case which held that –
“ a person is under arrest already if he is in a state of being watched or guarded to prevent his escape, or from circumstances it can be implied that his personal liberty has been restrained. ”
The evidence however did not show us that any arrest had been effected on the appellant at that point. There was no evidence of force or physical restrain on the appellant. There was no question by the appellant put to SP9 on this issue throughout his testimony.
The appellant during his testimony also did not raise this matter. Nor was there any mention by him that he felt threatened or afraid or that he was restrained.
23. Conversely, the evidence shows that the appellant told SP10 (L/Kpl. Logason) before the caution was read, not to arrest him, thus showing that he knew then that he was not then under
24. In our view the correct statement on when an arrest occurs is as stated by the Privy Council in SHAABAN & ORS v CHONG FOOK KAM & ANOR (1969) 2 MLJ 219, in these words of Lord Devlin, stating –
“ An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when by words or conduct he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go. It does not occur when he stops an individual to make enquiries. ”
25. S. 15 Criminal Procedure Code states the law as follows –
“ (i) In making an arrest the police officer …. making the arrest shall actually touch or confine the body of
the person to be arrested unless there be a submission to the custody by word of action.
(ii) If such person forcibly resist the endeavour to arrest him or attempt to evade the arrest such officer … may use all means necessary to effect the arrest. ”
26. There is of course a close correlation to Art. 5(3) of the Federal Constitution which requires an arrested person to be informed of the grounds of his arrest. The appellant was not so informed.
27. In JAYARAMAN & ORS v P.P. (1982) 2 MLJ p. 311, Suffian LP stated that the facts of each case will determine if an arrest had actually occurred.
28. Thus we say that the surrounding circumstances including the fact that the appellant knew that he was arrested would determine if the arrest had actually been effected.
29. In our view, in the circumstances of this case, the appellant was not yet arrested when he answered the initial question put to him by SP9.
30. As such, we find his answers to those questions as admissible.
31. It is also our view, the admissibility of this piece of evidence is a question of fact, as found by the trial judge, should not be interfered at this appellate stage.
32. We also find that the initial discovery of the cannabis in the JPS box is a direct consequence of the information given by the appellant.
33. As such the appellant’s conduct relating to the discovery of that incriminating cannabis must be admissible under S.27 of the Evidence Act. (see WAI CHAN LEONG v PP (1989) 3 MLJ 356 – Supreme Court).
34. And we find that the appellant’s action in bringing SP9 to the recovery of the cannabis in the JPS box is in effect a confession, albeit a non plenary one.
35. The second issue raised was on the admissibility of the cautioned statement (P.12) made by the appellant.
36. A trial within a trial was held by the learned judge, after which His Lordship found P.12 to have been voluntarily made and as such was admissible in evidence.
37. The submission against the admissibility of P.12 was twopronged.
38. Firstly, it was argued that no caution was administered. Secondly, it was contended that P.12 was not voluntarily given.
39. A full-fledged voire dire was held in which the learned trial judge found on the facts that the statutory caution under S.37A (1)(b) DDA was indeed administered to and understood by the appellant.
40. Reading P.12 itself, we find that a few simple questions were put to the appellant as regards the cannabis recovered from the brown bag to which the appellant had admitted that it belonged to him.
41. The learned trial judge also took into consideration, the testimony of the appellant’s wife who could not confirm whether the appellant had been coerced into making the confession as
he did in P.12. The learned judge concluded that P.12 had been voluntarily given.
42. From our own scrutiny of the evidence, we hold that the circumstances under which P.12 was given was not oppressive on the appellant.
43. The purpose of conducting a trial within a trial is for the court to determine that the conditions to the admissibility of a statement made pursuant to s.37A (1)(b) DDA by the appellant are satisfied.
44. In this instance, the crucial condition of voluntariness of that statement had been fully evaluated by the learned judge in that exercise.
45. We hold that the learned judge had made a correct finding on this issue when he concluded that the prosecution had proven beyond a reasonable doubt that P.12 was not made in consequence of any threat, inducement or promise.
46. We find no reason to differ with that finding of facts made by the learned judge after a full scale trial within a trial.
47. The third and final issue was whether the appellant was in exclusive control and custody over the cannabis found in the second room of his house.
48. The learned trial judge had called upon the defence when he found that the appellant was in possession of those drugs, based on direct evidence adduced by the prosecution.
49. In his defence the appellant contended that the room from which those drugs were found was also accessible to the appellant’s brothers, Megat Harun and Megat Haris.
50. Thus, the closet in that room, from which the brown bag containing the drugs were recovered was also accessible to others.
51. It was also submitted that it was not determined who was the owner of the jeans from which the other drugs were recovered. As such it cannot be inferred that the appellant had exclusive control or custody of those drugs too.
52. The learned trial judge upon evaluating the evidence had found as a matter of fact that the appellant had full knowledge of the
drugs recovered in the brown bag. This fact came from his own admission pursuant to question under caution by SP9 that the cannabis found in the brown bag and in the JPS box, was his.
53. It was also a finding of fact that the appellant and his family were the occupiers of the house, including the room from where the drugs were found.
54. It was also the learned judge’s finding that, that room was used to keep the appellant’s clothing, meaning that it was in use by the appellant daily.
55. The learned judge concluded that it was impossible, in the circumstances of those facts, to say that the appellant had no knowledge of those drugs.
56. On the claim by the appellant in his defence that his two brothers had access to that room, this was rejected by the learned judge as unbelievable and not raising a reasonable doubt.
57. The appellant’s evidence itself shows that the brothers had no keys to the house and as such the trial judge concluded that they could not access the house whenever they like.
58. The trial judge also dismissed the claim by the appellant that both Megat Haris and Megat Harun who had stayed in the room 3 months before the police raid, are drug addicts; thus implying that they could have left the drugs there.
59. This defence was also found to be unbelievable by the learned judge who said that it would be most unlikely that a drug addict could have just left a big amount of drugs in a room used daily by the appellant.
60. Our own perusal of the defence shows that the appellant’s evidence had a gaping hole as regards Megat Harun being a resident of the second room from which the drugs were found. No serious questions were put to SP11, the investigating officer, regarding this matter, considering that this was the appellant’s main thrust of defence.
61. We find no flaw in the learned judge’s reasoning and his conclusion and inferences of the facts.
62. In our view, a serious discrepancy thus emerged in the appellant’s own testimony, one that discredited the credibility of his defence.
63. Although in our criminal jurisprudence, there is no burden on an accused person to prove his innocence but merely for him to raise a reasonable doubt as to his guilt, it is trite that his defence should be put to the prosecution at an early stage during the prosecution case. Failure to do so may move the trial court to dismiss a particular line of defence as an afterthought, or a recent invention as happened in this case.
64. Raja Azlan Shah CJ (Malaya) (as His Highness then was) in WONG SWEE CHIN v PP (1981) 1 MLJ 212 puts this principle in these now famous words –
“… there is a general rule that a failure to cross-
examine a witness on a crucial part of the case will amount to an acceptance of a witness’s testimony. ”
65. In our adversarial system, that principle is applicable in both civil and criminal trials.
66. The appellant’s defence can be ascertained not merely from his own evidence but also the line of cross-examination of the prosecution’s witnesses (see KULI & ORS v EMPEROR AIR 1930, Cal 442, cited in PP v DATO SERI ANWAR BIN IBRAHIM (No. 3) (1999) 2 MLJ 1). This has been termed as a rule of essential justice.
67. In AEG CARAPIET v AY DERDERIAN AIR 1961 Cal 359, (also cited in the DATO SERI ANWAR’s case), this principle was explained in this manner –
“ It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examination that he must put to each of his opponent’s witnesses in turn, so much of his own
case as concerns that particular witness or in which that witness had any share. ”
68. It is our view that the trial judge was right in finding that the appellant’s defence as suspicious or inherently improbable. We have however reminded ourselves that the trial court is still bound to consider that defence and that the obligation is upon the prosecution to prove its case beyond a reasonable doubt. (see ALCONTARA a/l AMBROSS ANTHONY v PP (1996) 1 MLJ 209).
69. In the circumstances, we would hold that this third ground of appeal is also without substance.
70. For these reasons, this appeal was dismissed. We affirmed the conviction and sentence.
Dated: 28th October, 2008
DATO’ ABDULL HAMID EMBONG Judge Court of Appeal Malaysia
Counsel for the Appellant
Encik Amer Hamzah Arshad (Cik Rubini Murugesan with him) (Solicitors Tetuan Zain & Co)
Counsel for the Respondents
Encik Samsudin bin Hassan Timbalan Pendakwa Raya Jabatan Peguam Negara