Nguyen Thanh Ngoc Tuyet V Public Prosecutor


Download PDF Here





CRIMINAL APPEAL NO: P-05-202-07/2012










(In the Matter of High Court of Malaya at Pulau Pinang Criminal Trial No: 45-52-12/2011




Public Prosecutor And


Nguyen Thanh Ngoc Tuyet)






– 1 –






[1] The appellant, a Vietnamese national, was convicted by the High Court at Penang, of the offence of trafficking in dangerous drugs, contrary to section 39B(1)(a) of the Dangerous Drugs Act 1952 (“DDA 1952”). She was sentenced to death under section 39B(2) of the DDA 1952.


[2] Aggrieved by the conviction and sentence, she filed this appeal.


The Charge


[3] The Charge against the appellant reads as follows:


“Bahawa kamu pada 26.6.2011 jam lebih kurang 10.10 pagi, di Balai Ketibaan Domestik, Lapangan Terbang Antarabangsa Bayan Lepas di dalam Daerah Barat Daya, di dalam Negeri Pulau Pinang telah memperedar dadah berbahaya jenis Methamphetamine seberat 2030.5 gram. Oleh itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama.”.


[4] We have carefully considered the competing submissions. We have also perused the appeal record available before us. We were satisfied that the conviction was amply supported by the evidence and we did not find any appealable error by the High Court warranting our intervention. Consequently, we unanimously


– 2 –


dismissed the appeal and affirmed the conviction and sentence passed by the High Court.


[5] We now give our detailed reasons.


Facts of the Case Prosecution’s Case


[6] On 26.6.2011, Kpl. Wan Noraini binti Pa Wan Teh (PW6) was on duty at the domestic arrival hall at the Bayan Lepas International Airport, Penang. At about 10.10 a.m., PW6 saw the appellant acting suspiciously. The appellant was not looking at the rotating carousel but was unsettled and constantly casting furtive glances left and right. This had aroused PW6’s suspicion and prompted her to conduct further observation on the appellant.


[7] PW6 then observed the appellant took a grey coloured bag (Exhibit P15) from the carousel. The said bag was wrapped with plastic. The appellant also had another black backpack (Exhibit P16C) which was slung across her body.


[8] As the appellant was passing by the scanning machine, PW6 approached the appellant and identified herself as a police officer. She then directed the appellant to take the bag (Exhibit P15) for scanning. Having scanned Exhibit P15, Customs Officer, Afizatul binti Mohd Yusof (PW4), informed PW6 that there was a suspicious image.


– 3 –


[9] PW6 instructed the appellant to open the plastic that was wrapped around Exhibit P15, to which the appellant complied. The appellant was very reluctant when PW6 instructed her to open Exhibit P15. PW6 gave the instruction twice but the appellant refused to comply.


[10] PW6, D/Kpl Mat Safar (PW7) and D/Kpl Abd Wahab then brought the appellant and the bags to The Airport Narcotics Office.


In the Office, PW6 once again instructed the appellant to open Exhibit P15. This time, the appellant complied and opened the combination lock of Exhibit P15.


[11] PW6 conducted manual examination of Exhibit P15. She found some adhesive residue on the edges of the luggage fabric.


She cut open the fabric and upon further examination of Exhibit P15, PW6 found a brown plastic package hidden inside a modified compartment. The package contained crystallite powders which were later confirmed by the chemist (PW3) to be methamphetamine, weighing a total of 2030.5 grammes.


Findings Of The T rial Judge At The End Of The Prosecution’s Case


[12] At the end of the prosecution’s case, the learned trial judge found that the appellant had custody and control of the impugned drugs. The learned trial judge relied mainly on the following evidence –


– 4 –


(a) The appellant carried the bag (Exhibit P15) and opened the combination padlock key of the bag;


(b) The bag (Exhibit P15) was checked-in under the appellant’s name as seen in the luggage tags (Exhibits P20A and P20B); and


(c) The particulars such as passenger’s name, flight number and the number of checked-in luggage printed on both luggage tags were consistent with the particulars on the luggage collection tags (Exhibit P165) that were found on the appellant.


[13] In inferring the requisite knowledge on the part of the appellant, the learned trial judge relied on the following pieces of evidence –


(a) The impugned drugs were deceitfully concealed in the bag (Exhibit P15); and


(b) The appellant refused to open the bag (Exhibit P15) when she was directed to do so.


[14] Concerning “trafficking”, the learned trial judge relied on the acts of “carrying” and “concealing” coupled with the quantity of the impugned drugs to come to the conclusion that the appellant was engaged in trafficking in the dangerous drugs. “Carrying” and


– 5 –


“concealing” clearly fall under the definition of “trafficking” under section 2 of the DDA 1952.


[15] Consequently, the appellant was ordered to enter her defence on the original charge.


The Defence’s Case


[16] The appellant gave evidence on oath. She presented a different story.


[17] According to the appellant, her trip from Vietnam was sponsored by her good friend, Miss Tam. At the material time, the appellant was having family conflict and relationship problems and Miss Tam suggested to the appellant to go on a holiday trip to Penang.


[18] The appellant and Miss Tam arrived in Penang on 17.6.2011. According to the appellant, she only brought along a backpack containing her clothes, books and other personal belongings. The appellant had a brief stay of 10 hours in Penang. Miss Tam then invited the appellant to join her and her African boyfriend for a trip to Africa.


[19] The appellant, Miss Tam and the boyfriend then travelled to Kuala Lumpur, Mumbai (India), Addis Ababa (Ethiopia), Lome (Togo), and Cotonou (Benin). While the appellant was in Cotonou, the appellant was locked in a room for three days. On 23.6.2011,


– 6 –


the appellant, Miss Tam and her boyfriend flew to Brazzaville of the Republic of Congo and then to Addis Ababa (Ethiopia). While they were at Addis Ababa, Miss Tam told the appellant that they could not board the plane to Mumbai with the appellant because they had to search for a ring that was lost during the flight from Addis Ababa.


[20] While at the Mumbai Airport, the appellant communicated with Miss Tam via social media. According to the appellant, Miss Tam had requested the appellant to look after the bag (Exhibit P15) that Miss Tam had checked-in at the Brazzaville Airport.


[21] The appellant acceded to her friend request and managed to locate the bag. The officer on duty at the airport showed the appellant the bag and it was then sent away. The appellant did not see the actual condition of the bag.


[22] On 26.6.2011, the appellant arrived at Kuala Lumpur International Airport (KLIA) and communicated with Miss Tam. Miss Tam told the appellant to retrieve the bag (Exhibit P15) at the Penang airport. The appellant took a flight to Penang on the same day.


[23] At the Penang Airport, the appellant took the bag (Exhibit P15) and found that the bag was opened. The appellant approached PW6 and made a complaint. The appellant also told PW6 that the bag was not hers but belonged to a friend. However,


– 7 –


PW6 seemed to have problem understanding the appellant and took the bag for scanning.


[24] The bag was taken for examination. During the course of examination, the appellant phoned Miss Tam using her mobile phone and inquired about the contents of the bag (Exhibit P15). Miss Tam assured the appellant that there were only clothes inside the bag.


[25] The appellant gave the mobile phone to PW7 who had difficulty understanding Miss Tam. The conversation was then discontinued.


[26] The appellant denied that the bag and its contents were hers.


Findings Of The T rial Judge At The End Of The Case


[27] At the conclusion of the trial, the learned trial judge found that the appellant had failed to raise any reasonable doubt on the prosecution’s case. The Court accepted the fact that Miss Tam was not a fictitious character. However, the learned trial judge found that the defence was merely bare words crafted to throw the blame onto Miss Tam because the appellant was caught red-handed with the impugned drugs. The appellant was thus convicted and sentenced as stated earlier.


– 8 –


Application To Adduce Fresh Evidence At The Court Of Appeal


[28] On 11.10.2013, a different panel of the Court of Appeal allowed the appellant’s application for leave to adduce fresh evidence. We have recorded the evidence from two Vietnamese Investigators attached to the Ministry of Public Security of Vietnam. They are Tran Thi Lan Huang (“DW2”) and Bui Minh Hieu (“DW3”).


[29] The defence tendered through DW2 and DW3 the documentary evidence (Exhibits D22A, D24A and D24B).


[30] We will deal with DW2 and DW3’s oral evidence and Exhibits D22A, D24A and D24B in detail in the later part of this judgment.


The Appeal


[31] Before us, learned counsel for the appellant raised only the following issues:


(i) whether the prosecution had succeeded in establishing the case against the appellant beyond reasonable doubt; and


(ii) whether there was a break in chain of the drugs exhibits.


Issue (i): Mens rea possession


[32] Learned counsel for the appellant argued that the learned trial judge erred in holding that the prosecution had succeeded in establishing mens rea possession against the appellant. Learned


– 9 –


counsel invited our attention to the appellant’s pre-arrest conduct as follows:


(i) The appellant informed PW6 that the bag was not hers at the first available opportunity; and


(ii) The appellant did not attempt to run away when approached by PW6.


[33] Learned counsel for the appellant posited that the appellant’s conduct was equally consistent with both guilty and an innocent mind. Since one or more inference can be made, the learned trial judge was in error in failing to draw the inference that was favourable to the appellant. (See Tai Chai Keh v P.P [1948-49] MLJ Supp 105).


[34] Learned counsel further submitted that the fresh evidence adduced showed that the appellant had no requisite knowledge. DW2 and DW3 had tendered Miss Tam’s Interrogation Report and her Memorandum of Declaration. These two documents put together point to the fact that the appellant was merely employed to transport clothes samples.


[35] In reply, learned Deputy Public Prosecutor (“DPP”) submitted that the learned trial judge had properly appraised the evidence on record and found that the appellant was in possession of the impugned drugs at the time of her arrest. The DPP contended that


– 10 –


the appellant’s refusal to cooperate with PW6 and to open the bag was “evidence of conduct” and therefore was admissible under s.8 of the Evidence Act 1950 for it has direct bearing to the fact in issue i.e. whether the appellant has the requisite knowledge of the impugned drugs. She cited the celebrated case of Parian bin Dadeh v PP [2008] 6 MLJ 19, in which the Federal Court stated at page 45:


“In this case the reaction of the appellant in looking stunned or shocked upon being approached by the police is clearly admissible under s.8 since it has a direct bearing on the fact in issue as the drugs were tucked away in the front of the jeans worn by him


[36] Learned DPP further contended that the method employed to bring the impugned drugs from the African continent to Malaysia was done in a cunning fashion to escape detection by the authorities. Learned DPP posited that the fact that there was an attempt to carefully conceal the impugned drugs, coupled with the appellant’s refusal to co-operate with PW6, point to the requisite knowledge on the part of the appellant.


[37] Pertaining to the fresh evidence, learned DPP submitted that the probative value of the evidence of DW2 and DW3 is very little. The evidence was derived from interviews and therefore unreliable. Further, the maker i.e. Miss Tam was not called to give evidence and such her statements in those two documents were not subject to test of cross-examination.


– 11 –


Our Findings On Issue (i)


[38] We must first consider the approach to be taken in respect of the fresh evidence that had been admitted. The test has been exhaustively analysed in a number of authorities in the United Kingdom. In R v Pendleton [2002] 1 All E R 524, the House of Lords held that where fresh evidence had been received on an appeal against conviction, the correct test to be applied by the Court of Appeal in determining whether to allow the appeal was the effect of the fresh evidence on the minds of the Court.


[39] The guiding principle was neatly expressed by Judge L J in R v Hakala [2002] EWCA Crim 730, at para II, thus:


“However the safety of the appellant’s conviction is examined, the essential question, and ultimately the only question for this court, is whether, in the light of the fresh evidence, the conviction are unsafe.”.


[40] In Dial and Dottin v The State [2005] 65 WIR 410, the


Judicial Committee of the Privy Council, in applying the principles stated in R. v Pendleton (supra) said:


“31. In the Board’s view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the


– 12 –


appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view ‘by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict! (Pendleton at p 83, para [19]. The guiding principle nevertheless remains that stated by Viscount Dilhorne in Stafford (at p 906) and affirmed by the House in Pendleton:


“While … the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question (whether or not the verdict is unsafe).”.


[41] It is clear, therefore, from the foregoing authorities, that the Court’s task was to follow Lord Bingham in Pendleton (supra) to consider the effect to our minds of the fresh evidence relied upon to support the appeal and to determine whether the conviction was safe or can be supported by the evidence or has otherwise resulted in a miscarriage of justice.


[42] We have carefully considered the fresh evidence, i.e. the DW2 and DW1 ’s oral evidence and the documentary evidence tendered and marked as D22A, D24A and D24B alongside the evidence given at trial. We were unimpressed by the fresh evidence. We formed the view that they were trying to pull the wool over the Court’s eyes.


– 13 –


[43] DW2 interrogated Miss Tam on 13.12.2012 and his Interrogation Report (recorded in Vietnamese) was tendered and marked as D22A. The English translation to the Interrogation Report was marked as D22B. DW3 recorded Miss Tam’s statement on 4.7.2013. He prepared a Memorandum of Declaration. The said document was tendered and marked as D24A. The English translation was tendered and marked as D24B.


[44] Both DW2 and DW3 recorded statements from Miss Tam in relation to a different drug trafficking case. In both statements, Miss Tam revealed to the interrogators that she had introduced the appellant to an African man to transport clothes samples from one country to another. However, Miss Tam did not know whether the appellant knew the actual contents of the suitcase that was handed over to her. This was because the appellant had contacted and dealt directly with the African man herself as the appellant could speak English.


[45] In our considered opinion, both statements (Exhibits D22B and D24B) did not assist the appellant’s case. In both statements, Miss Tam stated that the appellant was employed to transport clothes samples and the appellant received the bag directly from the Africans i.e. Chizoke and Peter. This clearly contradicted the appellant’s earlier defence that the bag belonged to Miss Tam.


– 14 –


[46] The other issue is the evidentiary value of both statements. The general rule for both civil and criminal trial is that any fact which needs to be proved shall be by way of oral evidence. If the witness is unable to attend the trial, or has died, the “best evidence rule” may be applied so as to allow the admission of the next best evidence, perhaps a written statement. In the case of Omychund v Baker [1945] 1 Atk 21, Lord Hardwicke remarked at page 49 that:


“…the judges and sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of the case will allow.”


[47] In our view, the weight and degree of credit to be attached to statements by a declarant who was not called to testify must be examined with the greatest caution. In the instant appeal, Miss Tam was said to be in Xuan Loc Prison (Vietnam) but she refused to come to Malaysia to give evidence in support of the appellant because she was too ill. Pursuant to Article 25 of the Vietnam Law on Legal Assistance, she has a right whether to agree to give evidence at the requested country. We fully understood Miss Tam’s right under the Vietnamese law. However, there was no certificate before the Court confirming her medical condition and other materials justifying her non-attendance in Malaysia. Further, it is pertinent to note that Miss Tam was not a patently disinterested witness. In the circumstances, it was difficult or impossible for us to


– 15 –


determine the truth and accuracy of the statements without the maker being tested by cross-examination.


[48] Scrutinising the fresh evidence together with the whole of the evidence adduced during the trial, the critical issue to be determined is whether it may be legitimately inferred that the appellant had the requisite knowledge of the impugned drugs found in the bag (Exhibit P15).


[49] It is trite that the element of knowledge may be established by evidence of acts, statements or conducts of an accused which support the inference that he or she knew of the existence of the drugs. Thus, knowledge may be proven by circumstantial evidence or by the surrounding circumstances of the case. (See Gunalan a/l Ramachandran & Ors v PP [2004] 4 MLJ 506; Saad Ibrahim v PP [1968] 1 MLJ 158).


[50] In R v Blom [1939] AD at pages 202 – 203, the Court set out the test of drawing inferences from circumstantial evidence as follows:


“1. The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.


2. The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other


– 16 –


reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.


[51] This test has been followed by our courts in PP v Letchumanan Krishnan [2008] 3 MLJ 290 (HC), Yap Boon Thai v PP [2013] 1 LNS 1181 (CA), PP v Azilah Hadri & Anor [2015] 1 CLJ 579 (FC)).


[52] The circumstantial evidence that the learned trial judge relied upon to infer the requisite knowledge on the part of the appellant are as follows:


(i) The appellant’s act of keeping a lookout and continuously casting furtive glances left and right at Penang Airport;


(ii) The refusal of the appellant to open the bag when instructed by PW6;


(iii) The appellant opened the bag using combination code; and


(iv) The way the drugs were concealed in the bag.


[53] The learned trial judge also took note that the items that were recovered from the appellant’s backpack were her personal belongings, books and two (2) pieces of underwear. The learned trial judge found it unreasonable that the appellant did not bring any


– 17 –


spare clothing for her ten (10) days trip through Vietnam, Penang, the African continent and back to Penang.


[54] We were satisfied that there was sufficient circumstantial evidence which the learned trial judge could find, as he did find, that the appellant had knowledge of the impugned drugs discovered in the bag (Exhibit P15). We noted that the learned judge went through the evidence adduced during the trial meticulously. He had considered all the relevant evidence of the case; not just the evidence supporting the prosecution’s case, before arriving at his conclusion. Certainly, as a tribunal of fact, the learned trial judge had clear and distinct advantage of seeing and hearing the witnesses at the trial and of weighing and assessing the demeanour of the witnesses. (See Andy bin Bagindah v P.P [2003] 3 CLJ 289 and Wjchai Onprom v P.P [2006] 3 CLJ 724).


[55] Further, on the factual matrix of the case, we were of the opinion that the appellant was wilfully blind of the presence of the impugned drugs concealed in the bag (Exhibit P15).


[56] The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. (See Reza Malik Zadeh Sahabah v PP [2014] 3 MLJ 380; PP v Tam Kiam Peng [2008] 1 SLR(R) 1; P.P v Hla Win [1995] 2 SLR 424).


– 18 –


[57] As observed by the Supreme Court of Canada in the case of Sansregret v The Queen [1985] 1 S.C.R. 570, wilful blindness performs the role of filing the gap between suspicion and actual knowledge. Simply put, one must make the appropriate inquiries if he or she has a suspicion that a crime may occur.


[58] In the instant appeal, the appellant was guilty of wilful blindness for the reasons stated below –


(i) According to the appellant, she only stayed in Penang for less than ten hours. She then travelled to India, Ethiopia, Togo, Benin, and the Republic of Congo. The appellant was to visit Penang for a holiday as suggested by Miss Tam. However, the appellant only had a brief stay in Penang without making any visit to tourist spots and she was on board of a whirlwind flights. Such an unusual arrangement would have aroused the suspicion of the appellant. The learned trial judge was correct to observe that it defies logic for the appellant to follow Miss Tam on a whirlwind of flights without a final destination; and


(ii) The appellant gave evidence that she did ask Miss Tam for the reason as to why they have to transit at various airports. Miss Tam and her boyfriend told her that there were not enough tickets for three of them and the


– 19 –


appellant could still see different things at the airports. The appellant still decided to tag along with Miss Tam after the appellant was locked up for three days while they were in Cotonou, Benin. The appellant was hardly a gullible person as she was educated. In view of her background, her repose of such a high degree of trust in Miss Tam was unbelievable.


[59] Having addressed our minds to the whole of the evidence adduced by the prosecution, we were satisfied that the learned trial judge was correct in holding that all ingredients of the offence had been proven by the prosecution beyond reasonable doubt.


Issue (ii): Breach In The Chain Of Evidence Of The Drugs Exhibits


[60] Learned counsel for the appellant submitted that in the instant appeal there were serious doubts as to the identity of the drugs exhibits based on the following reasons –


(i) The difference in colour of the duct tape found on the brown plastic package (Exhibit P11C); and


(ii) Discrepancies in the weight of the package mentioned in PW6’s police report (Exhibit P13 – 2700 grams) compared to the chemist’s evidence (2632.26 grams).


[61] The material evidence in respect of this issue was that of PW3, PW6 and PW8. PW6 testified that from the time she took


– 20 –


possession of the exhibits at the place of incident until she handed them over to the investigating officer (PW8), the drugs exhibits were under her personal custody and control. She marked the bag (Exhibit P15) as ‘E’ and the brown plastic package as ‘EA1’. The brown plastic package was weighed by one Kpl Safar under PW6’s supervision. She then handed over the exhibits to PW8.


[62] PW8 in his testimony confirmed that he received the exhibits bearing those markings from PW3 at about 3.00 p.m. He later marked the bag as ‘K’ and the brown plastic package as ‘K1. He then kept the exhibits in the steel cabinet under lock and key.


[63] On 27.6.2011, at about 11.00 p.m., PW 8 took the exhibits from the steel cabinet for the purpose of having them photographed. The exhibits were then packed in a box. PW8 placed a wax seal bearing with the words ‘PDRM 47’, his name and the report number on the box. The box was kept in the steel cabinet under lock and key.


[64] On 30.6.2011, PW8 sent the box containing the marked exhibits to PW3, together with a cover letter requesting chemical analysis, POL 31 (Exhibit P8). While preparing P9, PW8 had listed the description of the bag and the drugs exhibits and the markings that he made. PW3 opened the box and inspected the exhibits in the presence of PW8 before issuing the receipt (Exhibit P9). He


– 21 –


received the same box from PW3 on 7.10.2011 at about 12 noon


together with the report (Exhibit P10).


[65] PW3 in her testimony confirmed that she received the said box and the brown plastic package bearing those markings from PW8 on 30.6.2011. After having examined the exhibit contained in the said box, she had issued receipt (Exhibit P9). She conducted the analysis on 21.9.2011. The box and the exhibits were returned to PW8 on 7.10.2011. PW3 testified that from the time she took possession of the exhibits until she handed them over to the investigating officer (PW8), the drugs exhibits were under her personal custody and control. The box and the exhibits were kept in the steel cabinet under lock and key.


[66] Learned counsel contended that the exhibits received by PW3 were different from what was seized by PW6. According to PW3, the plastic package (Exhibit P11C) had blue duct tape at the edges of the package. However, as can be seen from the photographs (Exhibits P4(13) and P4(14)), the colour of the duct tapes was white. It was the learned counsel’s submission that this discrepancy, coupled with the difference in weight, cast serious doubts to the identity of the drug exhibit. Learned counsel further submitted that no explanations were given for the discrepancies in the colour of the package and the weight of the drugs exhibits.


– 22 –


Our Findings on Issue (ii)


[67] We were minded of the fact that decided cases by the Federal Court had shown that the difference in weight of the drugs exhibits between the police and the chemist when left unexplained could result in creating a reasonable doubt on the prosecution’s case [See Yeong Kia Heng v PP [1992] 1 CLJ 364, Tan Yew Choy v PP [2009] 4 CLJ 245, and Zaiful Muhammed v PP [2013] 2 CLJ 383]. This however, is dependent on the facts and circumstances of each case.


[68] While we agreed that there exist discrepancies in the gross weight of the drugs mentioned in the police report (Exhibit P13) and PW3’s evidence, we were of the considered view that the unexplained difference in weight was not sufficient to create a reasonable doubt on the prosecution’s case. As alluded to earlier, both PW6 and PW8 had identified the markings that they had made on the drugs exhibits. The movement of the drugs exhibits was also well explained. There was no break in the chain of evidence regarding the drugs exhibits. Therefore, on the facts of this instant appeal, the discrepancies cannot be said to have created doubt as to the identity of the drugs exhibits. [See Loh Kah Loon v PP [2011] 5 CLJ 345 (FC), Hasbala bin Mohd Sarong v PP [2013] 6 MLJ 636 (FC)].


[69] We observed that the issue had been dealt with by the learned trial judge. His Lordship found that there was no break in


– 23 –


the chain of evidence and the drugs exhibits were positively identified by the prosecution witnesses, in particular PW6 and P8.


[70] On these reasons, we found that the issue (ii) raised was also without merit. We have no doubt that the exhibits recovered by the police was the same exhibits sent to and examined by the PW3 and subsequently produced in court as evidence.




[71] The prosecution had led sufficient evidence to prove the case against the appellant beyond reasonable doubt. The grounds of appeal advanced by the appellant to impugn the decision of the learned trial judge were not impressed with merit. As such, we dismissed the appeal and affirmed the conviction and sentence imposed by the High Court.


Dated: 27th October 2015 sgd.






Court of Appeal Malaysia


Counsel for the Appellant: Simon Murali


Messrs. Lio & Partners Advocates & Solicitors No.29, Green Hall 10200 Penang.


– 24 –


Counsel for the Respondent: Norinna Bahadun Deputy Public Prosecutor The Attorney General’s Chambers Appellate and Trial Division 62100 Putrajaya.


– 25 –

PDF Source: