Mohamed Ismail Bin Sahul Hameed V Pendakwa Raya


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Abdul Malik bin Ishak, JCA Azahar bin Mohamed, JCA Mohd Zawawi bin Salleh, JCA






The Antecedents


[1] This appeal has been preferred by the appellant against the judgment and order dated 14 May 2010, passed by the High Court at Penang, convicting him under section 39B(1)(a) of the Dangerous drugs Act 1952 (“DDA 1952”) and sentencing him to the mandatory death penalty prescribed under section 39B(2) of the same act.


[2] We have heard Encik Imran Hadzlie Bin Abdul Rashid, learned counsel for the appellant and Puan Shoba Venu Gopal, learned deputy prosecutor at length and we have gone through the appeal record in detail. We found the appeal to be without merit. Accordingly, we unanimously dismissed the appeal and affirmed the conviction and sentence passed by the High Court.


[3] We now give the reasons for our decision.


The Charge


[4] The charge against the appellant reads as follows:


“Bahawa kamu pada 10hb Mei 2007, jam lebih kurang 6.15 petang, di bilik No. 6313, Hotel Pearl View, Jalan Perai, di dalam Daerah Seberang Perai Tengah, di dalam Negeri Pulau Pinang, telah menawar untuk




memperedarkan dadah berbahaya iaitu sejumlah berat 155.7 gram (109.1 gram heroin dan 46.6. gram monoacetlymorphines) 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.”.


Facts Of The Case


[5] The facts of the case are correctly and succinctly narrated by learned deputy public prosecutor in the Respondent’s Written Submission, and we adopt and reproduce the same as hereunder:


“Facts Of The Case As Appreciated By The Learned


Trial Judge


[5] R/F 125653 L/Cpl G. Jaganathan a/l R Govindan (PW5) was one of the 2 agent provocateurs who were involved in this case. The other was D/Cpl Govindasamy (AP2) who did not testify but was offered to the defence. PW5 stated that on the 9th of May 2007, he was directed by the Head of the Narcotic Division at the Penang Police Headquarters that he and D/Cpl Govindasamy (AP2) were to act as buyers in a drug deal involving heroin on the 10th of May 2007 and both of them were to go to Pearl View Hotel in Seberang Perai.


[6] On the 10th of May 1007 at 8.00 a.m. PW5 and AP2 left Bukit Aman, Kuala Lumpur and reached Pearl View Hotel, Seberang Prai, Penang at about 12.00 noon. When both of them reached the hotel, Supt Batumalai, the Head of Narcotics Division met them there and briefed them in the hotel that the two of them would play the role of agent provocateur in the drug transaction. PW5 was given the name “James” and AP2 was called “Ravi”. PW5 was also given the telephone number of the raiding team




head (PW3) for him to contact and a credit card to book two rooms in the hotel.


[7] PW5 then booked two rooms namely, room No. 6312 and room No. 6313. He asked AP2 to stay inside room No. 6312 while PW5 himself stayed inside room No. 6313. At about 12.00 noon, he telephoned PW3 and told him to take up position in room No. 6312 where AP2 was already there and he would be inside room No. 6313.


[8] PW3 telephoned PW5 at 1.00 p.m. and informed him that he was already inside room No. 6312. Subsequently around 2.00 p.m., the informer telephoned Pw5 and told him that at about 2.30 p.m. a man called “Din” would come to his room No. 6313. PW5 told the informer the number of the room where he was staying during this telephone conversation.


[9] After PW5 received the telephone call from the informer, PW5 telephoned PW3 at about 2.15 p.m. to inform him that the targeted trafficker called “Din” would come to his room No. 6313 for the drug deal. Around 2.30 p.m., PW5 heard knocking on his room door and he opened it and saw two men standing outside the door. One of them greeted him and introduced himself as “Din” and asked PW5 “Awak ‘James’ kah?” PW5 answered “Ya”. The other man only kept quiet. After Din subsequently identified as the Appellant, came into the room, he asked PW5:


“Awak nak beli heroin berapa banyak?”


PW5 replied that he wanted 15 pounds and the Appellant told him:


“Sekarang saya telah hantar dua tempat, saya hanya ada 5 pounds. 1 pound saya boleh bekalkan kepada awak RM14,000.00.”.


The Appellant further told PW5:




“Hari ini saya boleh bekalkan kepada kamu 5 pounds sahaja.”


The Appellant then enquired “Mana wang?”


PW5 answered “Tunggu”.


PW5 telephoned AP2 at approximately 2.40 p.m. and told him “Datang ke bilik No. 6313 dengan wang.”.


[10] A short while later, AP2 came to room No. 6313 and knocked on the door and PW5 opened it. PW5 saw him carrying a black sling bag and told him ‘Ini adalah Din.” The Apellant then greeted D/Cpl Govindasamy (AP2) who introduced himself as “Ravi” while the other man who came with the Appellant remained silent.


[11] PW5 then asked “Ravi”, “Tunjuk wang kepada Din”. AP2 then opened the bag and showed the money inside to the Appellant who did not count it. After showing the money to the Appellant, AP2 closed the bag and the Appellant told pW5:


“Awak ikatkan RM70,000.00 untuk 5 pounds.”.


[12] The Appellant told PW5 that he would come back later around 6.00 p.m. and then went out of the room with his friend. The two agent provocateurs then went into room No. 6312 and pW5 told PW3 about the conversation that he had with the Appellant. PW5 also told PW3 that later when either he or AP 2 was to contact him on the telephone and speak in the Tamil language, that would be the signal for him to raid the room No. 6313. The two agent provocateurs then returned to room No. 6313.


[13] Approximately at 6.00 p.m., PW5 received a telephone call from the Appellant who told him that he would be coming to room No. 6313 with 5 pounds of heroin. PW5 next called PW3 to inform




him that the Appellant would be coming to the hotel at 6.00 p.m. and above. Soon after the telephone call to PW3, around 6.10 p.m., PW5 heard knocking on the door of his hotel room and he opened the door and saw the Appellant alone standing holding a pink coloured paper bag in his right hand. PW5 invited the Appellant to come into the room. The Appellant entered the room and sat on the bed and put the paper bag on the bed mattress between PW5 who also sat on the bed and himself. The Appellant then asked for money.


PW5 asked “Mana barang heroin?”


The Appellant answered “Ini di dalam beg”, referring to the paper bag that he brought along with him.


The Appellant asked PW5:


“Awak sendiri tengok barang heroin tersebut.”


PW5 asked AP2 to examine the heroin inside the paper bag and the latter opened the bag and found a sheet of Astro advertisement paper on the top inside it. After taking out the advertisement paper, AP2 took out 5 packages each wrapped in sheets of Chinese newspaper and put them on the bed. He opened each sheet of Chinese newspaper wrapper and saw each wrapper contained a transparent plastic package containing powder and granules suspected to be heroin. According to PW5, the search was witnessed by the Appellant and himself.


[14] After AP2 had checked the contents taken out from the paper bag, he put back all the packages inside the paper bag. The Appellant then asked PW5 for the money and the latter seized the opportunity to ask AP2 to bring the bag of money. AP2 telephoned PW3 and spoke in the Tamil language. Not long after making the telephone call, there was knocking sound on the door and AP2 opened it. PW3 and his raiding team rushed into the room and




PW3 identified himself as “Police!” The appellant raised both hands in the air and looked frightened and panicky. PW5 and AP2 then went out of room No. 6313 immediately and left the hotel. PW5 said that his role in this operation ended at this stage.


[15] On entering the room, PW3 and PW5 sitting on the bed mattress on the left side (inner side) of the bed facing the wall while the man called “Din”, subsequently identified by PW3 as the Appellant in this case, sat on the same mattress on the right side (outer side) of the bed nearer to the room door facing the television. On the right side of the Appellant on the bed mattress, PW3 noticed a pink coloured flowery paper bag. PW3 then administered a warning under section 37A(1) of the Dangerous Drugs Act 1952 to the Appellant and he jotted down the questions and answers. Nonetheless, the learned Deputy Public Prosecutor told the Court that she would not be relying on the statement (ID9).


[16] PW3 then searched the body of the Appellant and found a chocolate coloured wallet containing an identity card in the name of Mohamed Ismail bin Sahul Hameed. He also found cash amounting to RM71.00 and one hand phone brand Nokia 2300 with one battery. Next pW3 searched the contents of the paper bag on the bed and saw a sheet of Astro advertisement paper on top inside it. After he had removed this advertisement paper, PW3 saw 5 packages wrapped in sheets of Chinese newspaper. After opening the 5 Chinese newspaper wrappers, PW3 saw that each wrapper contained a transparent plastic package containing dirty white powder and granules (serbuk dan ketulan warna putih kotor) suspected to be heroin.


[17] The drugs seized were confirmed to be 109.1 gram of heroin and 46.6 gram of monoacetylmorphines




based on the evidence of the chemist Teoh Choon Ping (PW4).


Defence Case


[18] The Appellant narrated that on the 10th of May 2007 at 3.00 p.m. and above, he went to Pearl View Hotel with his friend named Fazlul Haq. He was called by a person with the name “Babu” telling him “Ada kerja”. Before going to hotel, the Appellant met Babu around 11.00 a.m. on the same day. When Babu asked the Appellant to go to the hotel, he told the former that he had no transportation to go there. Consequently, Babu came to the Appellant’s house by car to fetch him to a motorcycle shop and asked him to take the motorcycle No.PDW 4855 from the shop and at 3.00 p.m. go to one Fajar Restaurant where he would be waiting from him.


[19] The Appellant testified that “Babu” is an Indian man and “Babu” was his name in disguise. Based on conversation from his friend, the real name of Babu is “Devaraj”. Devaraj is the owner of the said motorcycle. At 3.00 p.m. the Appellant rode the motorcycle No. PDW 4855 to Fajar Restaurant. His friend Fazlul Haq rode another motorcycle and went together with him. On reaching the restaurant and meeting Babu, the Appellant was brought to room No. 6313 in Pearl View Hotel. The Appellant did not have the opportunity to ask Babu on the nature of the task given to him because the latter told him that it was urgent.


[20] At the hotel, Babu and the Appellant entered room No. 6313 where he introduced himself to the two Indian men who were inside the room. Babu talked to the two Indian men but the Appellant did not talk to them. Babu then told the Appellant “Ada kerja” and showed some money to him. Babu told the Appellant that the money would be divided between himself and the Appellant. A few minutes later, Babu directed the Appellant to go to Petronas Petrol




Station in Seberang Jaya and wait there. He told the Appellant that an Indian man wearing black shirt would hand over something to him. After getting the thing, the Appellant was told to return to the hotel.


[21] After receiving the instruction from Babu, the Appellant alone left the room No. 6313 leaving the former still inside the room. The Appellant however went to Fajar Restaurant and told Fazlul Haq there that he did not know the way to the Petronas Petrol Station. Fazlul Haq showed him the way to the Petronas Petrol Station and both of them went there on two motorcycles. The Appellant used the motorcycle No. PDW 4855. After waiting at the Petronas Petrol Station for 20 minutes, the Appellant saw an Indian man wearing a black shirt approaching him and asked him whether the Appellant was “Orang Babu”. The Appellant answered “Yes” and the man gave him a bag and requested him to hand it over quickly to Babu. At that time Fazlul Haq was still with him.


[22] After receiving the bag, the Appellant and Fazlul Haq left the Petronas Petrol Station and rode their respective motorcycles towards Pearl View Hotel. On the way to the hotel, Babu telephoned the Appellant and asked him “Sudah ambil barang yang saya suruh tadi?”


[23] On reaching Pearl View Hotel, Fazlul Haq left the Appellant and proceeded to Fajar Restaurant while the Appellant went to room No. 6313. The Appellant said that he did not know the contents inside the bag and he did not examine them. When the Appellant arrived at room No. 6313, he noticed that Babu was not inside the room but there were two Indian men present. He asked one of them “Mana Babu?” This particular Indian man replied that Babu had gone down the hotel. The Appellant entered the room and put the paper bag on a table beside the television and then telephoned Babu




enquiring his whereabouts. Babu answered that he was inside the room next to room No. 6313. The Appellant shut his hand phone and asked one of the Indian men on why when he enquired about the whereabouts of Babu just now, he was told that he went down the hotel but on the telephone, Babu told him that he was next door.


[24] Fazlul Haq bin MKYH Roohul Haque (DW2) testified that on the 10th of May 2007 at about 3.00 p.m. he and the appellant each rode a motorcycle to Fajar Restaurant located about 50 metres from Pearl View Hotel. At the restaurant, an Indian man met the Appellant and then both of them headed towards Pearl View Hotel while he remained in the restaurant drinking.


[25] Later the Appellant returned to Fajar Restaurant alone and Sd2 asked him “Nak balik?” The Appellant told SD2 that his friend asked him to go to Seberang Jaya Hospital to meet a friend of Babu. The Appellant did not know the way to Seberang Jaya Hospital and requested SD2 to show him the way. At the Seberang Jaya Hospital, the Appellant received a telephone call asking him to go over to the Petronas Petrol Station located a stone’s throw from the said hospital. At the Petronas Petrol Station, the Appellant met the friend of Babu who came on a blue motorcycle. SD2 was 20 metres away from both of them and he saw the friend of Babu giving a package to the Appellant. SD2 did not know the contents of the package.


[26] After the Appellant received the package, he and SD2 then proceeded to Pearl View Hotel, and on arriving there, the Appellant went into the hotel, SD2 went to one Aliya Restaurant where he was arrested by the police late evening on the same day.




[6] At the end of the defence’s case, the learned trial Judge found the appellant’s defence had failed to create a reasonable doubt on the prosecution’s case and thereby convicted him with the charge.


The Appeal


[7] Before us, the sole issue raised by learned counsel for the appellant challenging the impugned decision is that the learned trial Judge erred in failing to adequately consider the defence put forth by the appellant and his failure to do so amounted to a material misdirection in law, warranting appellate intervention.


[8] It was the complaint of learned counsel for the appellant that the learned trial judge paid scant regard to the defence. Learned counsel for the appellant submitted that the defence of the appellant was that he had no knowledge about the content of the package which contained the dangerous drugs. The appellant had been manipulated into carrying and delivering the offending drugs by Babu, a police informer.


[9] Learned counsel for the appellant further submitted that there was nothing inherently incredible about the appellant’s story




which was corroborated by the evidence of SD2 and consistent with his cautioned statement that was tendered during defence case and marked as Exhibit D19. Had the learned trial Judge evaluated and appreciated the defence properly, he would inevitably have found that the appellant was a mere innocent carrier.


[10] Learned counsel for the appellant contended that the trial court has a duty to consider all the evidence that have been adduced in support of the appellant’s defence and to determine fairly and justly whether that evidence is capable of raising a reasonable doubt in the prosecution’s case.


[11] As a result of misdirection, the case for the appellant must have been seriously weakened in the eye of the learned trial Judge, and the chance of his attaching any degree of credence to the appellant’s defence seriously prejudiced.


[12] In support of his submission, learned counsel cited the case of Mohd Johi Said & Anor v P.P [2005] 1 CLJ 389 where the Court of Appeal had this to say:


“We have here a case where a serious defence, supported by credible evidence was presented to the




court. It was the bounden duty of the learned trial judge to consider that defence. This was not done. There was simply no judicial appreciation of the defence case. This is accordingly a case of non- direction by the learned judge unto himself. And we find it sufficient in this context to quote from two authorities merely to remind ourselves of the importance of the point that is being made. In Balasingham v. Public Prosecutor [1959] 1 LNS 8 [1959] MLJ 193, Ismail Khan J (later CJ Borneo) said:


There was therefore a direct conflict of evidence and a serious defence cannot be summarily dismissed as an improbable story without adequate reasons for such a conclusion.


In Gooi Loo Seng v. PP [1993] 3 CLJ 1, Edgar Joseph Jr SCJ when delivering the judgment of the Supreme Court said:


Clearly, therefore, the trial judge, was bound to, but did not view the whole of the evidence objectively and from all angles, with the result that the appellant had lost the chance which was fairly open to him of being acquitted. On this point, we consider that the nondirection amounts to a misdirection, for, in the words of Pickford J in R v. Bundy (5 Cr App R 270):


“the trial was not satisfactory, and the case was not put to the jury in a way to ensure their due appreciation of the value of the evidence.


We must treat the failure of a trial judge sitting alone, to direct himself correctly in the same way as a failure to direct a jury correctly. In these circumstances, a miscarriage of justice may well have occurred.”.




Finding Of This Court


[13] It is trite that the trial court is duty-bound by the principle of justice and fairness to judicially appreciate the defence case and consider all relevant aspect of the defence including those parts of the evidence of the prosecution that may tell in favour of the accused and not just provide lip service by merely saying it had considered the defence (See Dato’ Hj. Azman Mahalan v P.P [2007] 3 CLJ 495).


[14] No matter how weak or unreasonable the defence story may be, the court cannot just brush it aside without any proper or due consideration. In Ganapathy a/l Rengasamy v P.P, [1998] 2 CLJ 1; [1998] 2 MLJ 557, the Federal Court observed as follows:


“It needs to be remembered that however weak a defence may be, trial judges being judges of both fact and law should not just brush aside the defence on the basis that the prosecution witnesses are to be believed and not the defence. Where the law cast the onus of giving an explanation upon an accused person, and the explanation is given, which if consistent with innocence, the court is duty bound to consider whether it might reasonably be true, although not convinced of its truth. On the issue of the court’s duty to consider the defence, the age-old decision in Mat v PP [1963] MLJ 263 is still good law today as it was then. This was followed by the Supreme Court in Mohamad Radhi bin Yaakob v PP [191] 3 MLJ 169.”.




[15] The principle of law that can be distilled from the above cases is that a defence, be it in the form of sworn testimony or a mere statement from the dock, has to be appropriately considered or appreciated. Any failure or omissions to do so is an appealable error warranting appellate intervention.


[16] With this principle in mind, we will proceed to consider the issue raised by learned counsel for the appellant. We have scrutinized the learned trial Judge’s grounds of judgment and found that he had carefully considered the defence objectively and from all angles. It can be seen from the appeal record that the learned trial Judge has gone on an elaborate process of evaluating and assessing the evidence of the appellant as well as the evidence of his witness, SD2, before he reached the conclusion that the appellant’s defence had failed to cast a reasonable doubt in the prosecution’s case.


[17] Concerning the issue of Babu asking the appellant for assistance, the learned trial Judge had this to say:


“The accused said that on the 10th of May 2007 when Babu (if “Babu” existed) asked him “Ada kerja”, he told Babu that he did not have any transportation.




Nevertheless, it does not make sense that although the task was urgent as Babu had indicated yet he still wanted the accused to carry it out even though the latter did not have transportation. He met Babu approximately at 11.00 a.m. that particular day.


What is more, Babu went to extent of using his car to come to the accused’s house in order to send him to a motorcycle shop to take a motorcycle no. PDW 4855 belonging to Babu himself and asked the accused to ride it to Fajar Restaurant at 3.00 p.m. and wait for him there.


At the restaurant, Babu brought the accused to Pearl View Hotel to meet the two agent provocateurs and after that he directed the accused to go the Petronas Petrol Station in Seberang Jaya. Why did not Babu send the accused straightaway to the hotel in his car instead of wasting time taking the motorcycle especially when the former said that the task was urgent? What defies common sense is that even alter taking the motorcycle to the said restaurant yet Babu still went to the restaurant to fetch the accused to the hotel and wasted time.


In fact Babu himself could have also gone to the Petronas Petrol Station instead of asking the accused.”.


[18] We are in agreement with the findings of the learned trial


Judge. Based on the evidence as alluded by the learned trial


Judge as above, it defies reason to accept that the appellant


merely assisting Babu to deliver the package. One is left with an


inescapable core of facts and circumstances which to our mind


inexorably to the view that the appellant’s story, is, quite simply,


incredible. All logic, common sense and reason compel us to that






[19] As regards the issue that the appellant was an innocent carrier, the learned trial Judge had this to say at pages 31-32 of the Appeal Record:


“Any ordinary and sane person when asked to perform such a task purportedly urgent under such suspicious circumstances when it was obvious that the person who asked him to do the job could have done it himself, would surely enquire about the nature and purpose of the task. Nonetheless, the accused did not pose the question even though he had ample time. From 1.00 a.m. to 6.00 p.m over, (7 hours) the accused was involved in this task.


If the accused had asked, he would have found out that he was going to do something illegal and he would have plenty of time to think about it on whether to accept it or not. The circumstances in which the accused was asked to carry out the task ought to have aroused his suspicion that something was not right somewhere but the accused chose not to ask. A reasonable man would have asked for fear of contravening the law. The only conclusion that the Court can draw is that the accused knew about the task he was going to do.”.


[20] In our view, the appellant’s defence of innocent carrier was


correctly rejected by the learned trial Judge as it was totally


against the evidence of PW5 who testified that the appellant had


negotiated the sale of heroin with him in the hotel room. (See Hari


Bahadur Ghale v P.P [2012] 2 CLJ 1006).




[21] Even if we assume for the sake of argument that the appellant did not negotiate the sale of heroin with PW5 in the hotel room, we are of the opinion that the appellant was wilfully blind because he did not take any steps to check and examine the contents of the package that he was tasked to deliver. (See Mukhtar Shaker Aslien v Pendakwa Raya, (Rayuan Jenayah No D-05-135-2011).


[22] It is germane, at this juncture, to refer to the case of Ubaka v P.P [1995] 1 SLR 267. In this case, the appellant’s defence was that he was tricked into carrying the bags with the hidden diamorphines on his way home. In short, he was an innocent carrier without the necessary knowledge. The Court of Appeal Singapore affirmed the findings of fact made by the trial Judge in that there were a number of weaknesses or shortcomings in the defence story. Karthigesu J A at page 273 of the Law Report observed as follows:


“In the light of these findings, the learned judge had to decide whether the appellant had successfully rebutted the presumptions of knowledge of the presence of the drugs and their nature. He applied the principles laid down in Warner v Metropolitan Police Commissioner as modified by Tan Ah Tee & Anor v PP and which were reiterated in the recent decision of this court in the case




of Lim Swee Thong v PP. The learned judge concluded that:


Ignorance is a defence when there is no reason for suspicion and no right opportunity of examination, and ignorance simpliciter is not enough. Even if I had accepted what the accused said (which I did not), he was not an innocent custodian. He should have been wary about Mike Udo by the time he was asked to carry the bags and he should check (sic) the bags before taking them with him.”.


[23] As regards the cautioned statement, learned counsel for the appellant criticized the learned trial Judge for failure to consider, in his judgment, D19, which formed part of the evidence before him. Learned counsel submitted, had he done so, the learned trial Judge would have found that the appellant’s defence of innocent carrier was strengthened.


[24] The cautioned statement of the appellant (D19) was exculpatory in nature and was admitted in evidence without objections. It is to this effect:


Pada 10/5/07 pukul 3.30 petang saya telah pergi ke bilik No 6313 Hotel Pearl View apabila sampai saya terus masuk kedalam bilik. Saya lihat 3 lelaki India dalam bilik dan salah seorangnya bernama Babu l/kurang 4.15 petang. Babu suruh saya pergi ke Petronas seberang dan menunggu di sana. Beliau beritahu ada orangnya akan datang memakai baju hitam berjumpa dengan saya di sana dan akan berikan barang kepada saya. Kemudian saya turun dari bilik dan naik




m/sikal Babu No PDW 4855 jenis EX5 pergi ke Petronas Seberang Jaya. L/kurang 10 minit saya sampai di Petronas Seberang Jaya dan menunggu di sana. L/kurang 10 minit kemudian, satu lelaki India menaiki m/sikal no saya tidak tahu datang kepada saya dan berikan satu bungkusan dan pergi dari situ. Kemudian Babu telah talipon saya dan suruh saya datang ke no bilik no 6313 Hotel Pearl View di depan Pasifik Perai. Pada pukul 5.00 petang saya menaiki m/sikal pergi ke hotel itu, dan mahu berikan barang itu kepada Babu. Apabila saya sampai di bilik no 6313 itu, saya ketuk pintu bilik. Kemudian ia telah dibuka oleh 1 lelaki India. Saya terus masuk ke dalam bilik dan lihat terdapat hanya 2 lelaki India dalam bilik sahaja tetapi Babu tiada di situ. Saya terus masuk letakkan barang yang saya bawa di atas meja hotel dan saya telah bertanyakan salah seorang lelaki India dalam bilik di manakah Babu. Saya diberitahu Babu telah turun ke bawah. Dalam beberapa saat sahaja, pintu bilik ditolak dan saya lihat Polis datang. Polis suruh kami meniarap dan saya telah digari. Apabila saya bangun saya lihat 2 lelaki India tadi telah tiada kemudian saya telah dibawa ke Balai Bukit Mertajam.”.


[25] It appears from the Appeal Record that the defence put forth by the appellant during his testimony at trial was similar to the statement that he gave the police in D19. In essence, in both his testimony and D19, the appellant blamed Babu for everything and he merely delivered the package for Babu.


[26] Now, it is trite law that a wholly self-serving or purely exculpatory cautioned statement made by an accused to the police is not generally in itself evidence of the truth of the facts stated




therein. The cautioned statement must not be accepted at face value but has to be tested and evaluated by taking into account the entire evidence placed before the Court. (See Nenggani Asmo v Pendakwa Raya (2013) 1 LNS 265); P.P v Chan Kim Choi [1989] 1 MLJ 404 and P.P v Mohd Nadzir bin Mohd Noor [1988] 3 MLJ 238). But as correctly held in R v Donalson & Others [1977] 64 CAR 59, such a statement, though it is not evidence of the facts stated therein, is evidence in the trial, in that it is evidence that the accused person made the statement and his reaction, which is part of the general picture which the trial Judge has to consider.


[27] With respect, we disagree with the submission of learned deputy public prosecutor that the cautioned statement (D19) was self-serving, and as such there was no obligation on the learned trial Judge to consider it as part of the appellant’s defence. Learned deputy public prosecutor contended that even if it was admissible it could not have been used for the truth of its contents, thereby rendering it a little weight. We are of the considered opinion that the learned trial Judge must consider all the evidence which has been presented in the trial. It is for the learned trial Judge to consider as to what weight, if any, should be given to it or




what use should be made of it in considering the defence of the appellant.


[28] Having said that, in the circumstances of the case, we are of the considered opinion that although the learned trial Judge did not refer D19 specifically in his judgment, his failure to do so did not constitute a serious misdirection warranting appellate intervention. It can be said with a reasonable degree of certainty that had the learned trial Judge considered D19, his decision might have not been different.


[29] Before we conclude, we would like to emphasise that in so


far as the appellant’s defence is concerned, the findings of the


learned trial Judge are mostly related to factual matters. In this


regard, time and again we have held that findings of fact of the trial


Judge should not be disturbed on appeal unless the trial Judge


has ignored or overlooked certain facts and circumstances of


weight and significance which, if considered, would alter the


decision of the case. Underlying reason for this rule is that having


the opportunity to observe the witnesses testifying during the trial,


the trial Judge is able to detect that sometimes thin line between


fact and prevarication that will determine the guilt of the accused.




That line may not be discernible from a mere reading of the impersonal appeal record by the appellate court. The appeal record will not reveal those tell-tale signs that will affirm the truth or expose the contrivance, like the angry flush of an insisted assertion or the sudden pallor of discovered lie or the tremulous mutter of a reluctant answer of the forthright tone of a ready reply. The appeal record will not show if the eyes have darted in evasion or looked down in confession or gazed steadily with a serenity that has nothing to distort or conceal. The appeal record will not show if tears were shed in anger, or in shame or in remembered pain, or in reigned innocence. Only the judge trying the case can see all these on the basis of his observations arrive at an informed and reasoned verdict.




[30] We are satisfied that the learned trial Judge had given a


maximum evaluation of all the evidence before him and came to


the right conclusion. We are satisfied that in substance and effect,


his Lordship had adequately considered and judicially appreciated


the defence of the appellant. The failure of the learned trial Judge


to specifically mention D19 in his grounds of judgment, could not in


the circumstances of this case, be said to be a misdirection




because the appellant’s line of defence, both in his cautioned statement and in his testimony at trial, were similar and duly considered by the learned trial Judge.


[31] All in all, we found no basis upon which the findings of the learned trial Judge can be faulted. Accordingly, we dismissed the appeal of the appellant. We affirmed the conviction and sentence of death against the appellant.


Dated: 20 August 2013






Court of Appeal Malaysia


Counsel for the Appellant:


Imran Hadzlie bin Abdul Rashid Tetuan Elida, Imran & Partners 18-G-01, Jalan Medan PB 2A Seksyen 9,


43650 Bandar Baru Bangi Selangor


Counsel for the Respondent: Shoba Venu Gobal


Timbalan Pendakwa Raya Bahagian Perbicaraan dan Rayuan Jabatan Peguam Negara Putrajaya



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