DALAM MAHKAMAH RAYUAN MALAYSIA RAYUAN JENAYAH NO: P-05-87-04/2013
NORHAZWAN BIN ABD. WAHAB
(Dalam Perkara Rayuan Jenayah No. 45-53-12/2011 dalam Mahkamah Tinggi Pulau Pinang) Antara
Pendakwa Raya Dan
Norhazwan bin Abd. Wahab
MOHTARUDIN BIN BAKI, JCA MAH WENG KWAI, JCA TENGKU MAIMUN BINTI TUAN MAT, JCA
MAH WENG KWAI, JCA DELIVERING THE JUDGMENT OF THE COURT
1. The Charge
On 30/3/11 at about 5.30 pm the Respondent was arrested for being in possession of 1767 grammes of cannabis and was charged in the Penang High Court for an offence of trafficking in a dangerous drug under Section 39B(1)(a) and punishable under Section 39B(2) of the Dangerous Drugs Act 1952 (the Act).
2. The Prosecution’s Case
On information received, the Respondent was arrested by the police when he was riding his motorcycle alone behind Lorong 11, Taman Guar Perahu, Kubang Semang, Penang. Upon a search of the motorcycle, Inspector Aziz bin Chak (SP7) recovered a sports bag from the carrier of the motorcycle which contained 2 slabs of compressed dried leaves wrapped with plastic suspected to be cannabis and a wallet belonging to the Respondent. A body search of the Respondent was carried out but nothing incriminating was found. SP7 testified that the Respondent attempted to run away when he was stopped by the police.
3. The Defence
3.1. The defence of the Respondent was that the bag had been placed in the carrier of his motorcycle by a friend known as “Apit” who was riding on another motorcycle, together with
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the Respondent at the material time. Apit managed to get away and was not arrested.
3.2. The Respondent denied knowledge of the contents of the bag and said that his wallet was not recovered from the bag but from his trouser pocket.
3.3. The Respondent also denied attempting to run away when he was stopped.
4. The High Court Trial
4.1. The learned trial Judge at the close of the prosecution’s case held that the prosecution had established a prima facie case of drug trafficking under Section 39B(1)(a) and called upon the Respondent to enter into his defence.
4.2. The Respondent elected to give his evidence on oath and at the close of defence the learned trial Judge held that the Respondent had managed to successfully cast a doubt on the prosecution’s case and hence acquitted and discharged the Respondent of the offence.
5. The Appeal
Being dissatisfied with the decision of the learned trial Judge the
Appellant appealed to the Court of Appeal against the order of
acquittal and discharge.
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6. Decision on Appeal
Upon reading the Record of Appeal, the written submissions of the Deputy Public Prosecutor and counsel for the Respondent and upon hearing the Deputy Public Prosecutor and counsel aforesaid, the Court decided unanimously to dismiss the appeal and to affirm the order of acquittal and discharge of the High Court.
7. Grounds of Decision
To begin with, it must be emphasised that this appeal was entirely fact based and premised upon inferences made from the facts by the learned trial Judge. The Court in deciding to uphold the decision of the learned trial Judge considered and determined the following main issues:-
7.1. Soon after his arrest the Respondent had mentioned the name of Apit to his father (SP2) at about 10.00 pm that same evening. Further the investigating officer (SP5) had said in evidence that a cautioned statement under Section 37 of the Act had been recorded from the Respondent and in it the Respondent had mentioned the name of Apit. Apit was not a fictitious person as he was in fact called by the prosecution as SP6. Apit’s full name is Mohammad Hafiz bin Fazil.
Apit was a material witness and was called to rebut the evidence of the Respondent that Apit was the one who had placed the bag in the carrier of the Respondent’s motorcycle. However, the evidence of Apit was wholly rejected by the
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learned trial Judge who considered him to be an unreliable witness and not a witness of truth. The learned trial Judge had come to this conclusion because Apit had given two contradicting accounts of his whereabouts on 30/3/11 at about 5.30 pm in an attempt to show that he was nowhere near the Respondent just before the Respondent was arrested. In his earlier evidence Apit had said that he was working at the Pan Fabric factory on 30/3/11 from 8.00 am and that he reached home only at about 6.30 pm and that he did not meet the Respondent. On being challenged by counsel for the Respondent, Apit said he could produce his punch card to show that he was working that day from 8.00 am to 5.00 pm. However, at the continued hearing of the case Apit, who did not produce his punch card, changed his evidence on his whereabouts entirely and said that he was at home with his sister Norhafiza and mother. This latter evidence contradicted materially with the evidence of the investigating officer Insp. Siti Nurshida bt. Ali (SP5) who testified that her investigations revealed that Apit was at his work place at all material times! It will be noted that the prosecution did not call either Apit’s sister and/or mother to support his changed evidence. We are of the view that the learned trial Judge was correct in holding that Apit was not a truthful witness as he had given conflicting evidence on a material fact without any valid explanation (see Karthiyayani & Anor v Lee Leong Sin & Anor  1 MLJ 119). In our judgment it is probable that Apit also lied when he denied meeting the Respondent on the day in question.
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7.2. SP7 claimed that the Respondent attempted to run away when he was being stopped whereas the Respondent had denied this allegation. While the Court agrees with the prosecution that generally when a suspect flees from the scene of crime it may indicate a guilty mind, but the Court must be satisfied as to whether the evidence of the witness who says this can be supported. In this case the Court finds that the evidence in support of SP7 lacking. He could have but failed to mention this incriminating piece of evidence in his police report.
7.3. SP7 testified that he recovered the Respondent’s wallet containing his identity card, driving licence and Maybank ATM card, from the bag whereas the Respondent said that it was recovered from his rear trouser pocket. The learned trial Judge held that it was more probable for the wallet to be recovered from the Respondent’s trouser pocket as “no sane or reasonable man would place his wallet containing his identity card in the bag P14 knowing that the said bag contained proscribed drugs which attract the death penalty”. While the learned trial Judge may have been a little too dramatic when he said that the recovery of the wallet in the bag was “too good to be true”, but what it really pares down to is that it is highly improbable for the Respondent to place his wallet in the bag containing the drugs unless of course he was unaware that the bag did in fact contain the drugs, in which case then it cannot be said that the Respondent had knowledge of the drugs being in the bag.
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7.4. The prosecution contended that if Apit was present at the scene he too would have been arrested. The Court is of the view that this may not necessarily have been so if Apit was indeed an informer but unfortunately no evidence was led on this important point.
7.5. From the facts it was not in dispute that the Respondent was in possession of the motorcycle and was in custody and control of the bag which was in the carrier of the motorcycle. (See PP v Lin Lian Chen  2 MLJ 561).The prosecution contended that the Respondent had actual knowledge of the cannabis inside the bag and was not relying on the presumption under Section 37(d) of the Act. But given the evidence of the Respondent that the bag was placed in his carrier by Apit and was told to ride his motorcycle into Lorong 11, the Court is of the view that the Respondent did not have knowledge of the contents of the bag as firstly the bag was zipped and not transparent and secondly the Respondent was prevented by Apit from opening the bag when he tried to do so after Apit had placed the bag into the motorcycle carrier.
7.6. In any event, it is the judgment of the Court that the defence
of the Respondent was sufficient to rebut the statutory presumption under Section 37(d) of the Act, although it was not relied on by the prosecution. (Case of PP v Letchumanan Suppiah  1 CLJ 557 CA
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7.7. The Court is mindful of the established principle of law that when dealing with findings of facts, the trial judge is more often than not, to be in a better position to decide. The appellate court must be reluctant to interfere with such findings, unless the facts obviously disclose the court below had clearly and wrongly evaluated the facts, as enunciated in the case of Tan Kim Ho & Anor v PP  3 CLJ 236 FC. In the present case we do not think that the learned trial Judge had wrongly evaluated the relevant material facts.
In the result, the appeal was dismissed and the order of the High Court affirmed.
Date of decision : 2nd day of December 2013 Dated this: 31st day of March 2014
( MAH WENG KWAI )
Court of Appeal Malaysia
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For the Appellant : Samihah bt. Rhazali; Deputy Public Prosecutor
For the Respondent : Yagoo Subramaniam ; Messrs Yagoo & Associates
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