IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. P-05-199-2010
Mohd Faizal Bin Abdul Razak
[In the matter of High Court Of Pulau Pinang, Malaysia Criminal Trial No. 45-7-2005]
Public Prosecutor And
Mohd Faizal Bin Abdul Razak
MOHAMED APANDI ALI, JCA LINTON ALBERT, JCA MOHD ZAWAWI SALLEH, JCA
GROUNDS OF DECISION
The respondent was charged with trafficking in 1846 grammes of cannabis, an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act). At the end of the prosecution’s case, the learned Judicial Commissioner ruled that the prosecution had failed to establish a prima facie case against the respondent who was accordingly acquitted and discharged without calling for his defence. The prosecution appealed.
The factual matrix of the case are as follows:-
The respondent was arrested on 22.06.2005, at around 8.30 pm, behind the Esso Petrol Station at Jalan Tun Hussein Onn, Seberang Jaya, Seberang Prai Utara, Penang. The main witness for the prosecution relating to the arrest of the respondent was ASP Ahmad Sidi bin Mohamad Lazin (SP6). He led the police party of 15 other policemen who were already waiting to ambush the respondent on the night of the incident. Che Man bin Che Amar (SP7) was a member of SP6’s team that night. SP6 and SP7 were the only witnesses for the prosecution who were involved in the arrest of the respondent and subsequent actions taken by the police on that night. SP6 testified that while he and his men were waiting in ambush
on the night of 22.05.2005, at around 8.30 pm, a male malay riding a motorcycle came around. When the motorcycle stopped, SP6 and his men rushed towards the motorcycle and the rider left and ran but he was subsequently subdued and arrested. He was identified as the respondent. The motorcycle ridden by the respondend was a Honda C70 model bearing registration number PBH 9736. After arresting him, SP6 took the respondent to his motorcycle where SP6 conducted a body search on the respondent, but nothing incriminating was found. SP6 then inspected the motorcycle and found a red plastic package inside the motorcycle basket. Inside the red plastic package were two slabs of dried material, each wrapped with the “Harian Metro” newspaper believed to be cannabis. SP6 seized the red plastic package with the two slabs of compressed dried material wrapped with newspaper. SP6 also seized the motorcycle bearing registration number PBH 9736 together with the ignition key and a helmet. Subsequently, the respondent together with the exhibits seized were taken to the Seberang Jaya Police Station while the motorcycle was ridden by a police constable to the police station as well. SP6 interrogated the respondent there and then instructed SP7 to arrest two of the respondent’s accomplices. SP6 together with the respondent accompanied SP7 when one of the accomplices was arrested at the Petronas Petrol Station. SP6 then went to the respondent’s house together with the respondent. Nothing
incriminating was found in the house but a slab of compressed material believed to be cannabis was found at the roof of the car shed and this was seized by one Inspector Lim. From there, SP6 took the respondent together with the exhibits seized at the Esso Petrol Station to the Police Station at Bukit Mertajam where he marked the exhibits, issued the search list (P15) to the respondent and made a police report (P16) there, after which SP6 handed over the exhibits to acting ASP Mohd Razi bin Ismail (SP8) and completed the handing over and acknowledgement of receipt form (P14).
SP6 admitted that there was a mistake in P16 because the date ought to be 23.06.2005 at 1.30 am and not 22.6.2005 as stated in P16. About one week after the incident, SP6 together with the photographer and SP8 went back to the place of incident and took photographs there of the location and the other relevant exhibits including a photograph of a black jacket shown covering the red plastic package P3(H) and (M) inside the motorcycle basket. SP6 said he had also seized the black jacket.
In his cross-examination, SP6 confirmed that the other person arrested at the Petronas Petrol Station was Mohd Akhir, who was also handed over to SP8. SP6 also confirmed that the respondent had told him
that the drug was not his and that he was only asked to carry it. SP6 testified that the other person who was arrested in connection with the drug was Amirul Haq, who was also handed over to SP8. SP6 confirmed that he could not identify the motorcycle and the jacket because they were not produced.
In re-examination, SP6 said he handed over the jacket to SP8 but confessed that he had no explanation as to why the jacket did not feature in P14 and P15. He confirmed that both Mohamad Akhir and Amirul Haq were arrested by SP7.
The testimony of SP7 confirmed the material particulars of the testimony of SP6 relating to the arrest of the respondent and the relevant circumstances relating to the arrest. SP7 also confirmed that he carried out the arrest of both Mohamad Akhir and Amirul Haq at two different locations on the night of the incident, subsequent to the arrest of the respondent.
SP8 confirmed that at 1.30 am on 23.6.2005 SP6 handed over to him the respondent and the items set out in exhibit P14. He stated that the registration number of the motorcycle was PBH 9736 and not PBH 9738 as set out in P14 and that the date in P14 ought to have been 23.6.2005 and
not 22.06.2005. SP8 admitted that he weighed the two slabs of compressed material and found their gross weight to be 2000 grammes and on 28.6.2005 he went to the place of incident together with SP6 and the photographer who took photographs there. The photographs taken were shown to him including exhibit P3(M) and he confirmed that they were the photographs taken on 28.06.2008. SP8 said that after the motorcycle was handed over to him, he inspected it and found a jacket underneath the rider’s seat. He admitted that the motorcycle, ignition key, helmet and the jacket could not be traced because he was transferred to another State before the trial and another investigation officer took over from him. SP8 confirmed that SP7 handed over to him both Mohamad Akhir and Amirul Haq, who were arrested in connection with the drug found with the respondent. He testified that the respondent had told him that the drug belonged to Mohamad Akhir and Amirul Haq both of whom were arrested and detained because of that.
Lance Corporal Nordin Bin Othman (SP1) the photographer, testified that on 28.06.2005 he was with SP8 taking photographs at the Esso Petrol Station as directed by SP8. Exhibits P3(A)-(M) were some of the photographs taken.
Teoh Choon Ping (SP5) the chemist, who conducted the analysis of the 2 slabs of compressed plant material, weighed them and their total gross weight was found to be 1889,96 grammes. Before returning the exhibits sent for analysis, SP5 provided one cardboard, box E3, in which he placed part of the exhibits analysed and marked the cardboard box as “No. Report Polis Seberang Jaya 3389-94/05” which was also accompanied with the chemist report (P8).
The learned Judicial Commissioner highlighted four aspects of the prosecution’s case which led him to conclude that the prosecution had failed to establish a prima facie case against the respondent. Firstly, the stark difference in PW6’s version and that of PW8 regarding where the jacket was found and PW6’s inability to explain why he did not include the jacket in P14 and P15 together with PW8’s woeful explanation that he had actually retrieved the jacket under the rider’s seat and yet it was seen in photograph P3(H) and (M) to be in the motorcycle basket, had led the learned Judicial Commissioner to doubt the credibility of both SP6 and SP8. According to the learned Judicial Commissioner, they were not mere discrepancies but were in fact material contradictions. The relevance of the jacket was in relation to the inference to be drawn on the conduct of the respondent at the time he took flight, when he was approached by SP6 and
his men. Obviously, a different inference could be drawn if the jacket was not covering the proscribed drug in the motorcycle basket and was in fact hidden under the rider’s seat.
The second aspect of the prosecution’s case was its reliance on the conduct of the respondent taking flight to infer the respondent’s knowledge of the proscribed drug. The learned Judicial Commissioner made a finding that the conduct of the respondent need not necessarily infer that he had knowledge of the drug in the motorcycle basket because at the material time, the jacket covered the red plastic package and because of that the respondent would probably not have the knowledge of the drug. The learned Judicial Commissioner had relied on a passage in the judgment of Augustine Paul FCJ in Parian Dadeh v PP  1 CLJ 717 at page 745:
“But evidence of mere absconding or flight is not such a vital circumstance which can be considered to show that the absconder was having any guilty mind. ”
The third aspect of the prosecution’s case was the finding by the learned Judicial Commissioner that the disappearance of all the exhibits referred to in the testimony of SP8 was inconsequential except the jacket
which was very important and the loss of which must necessarily adversely affect the prosecution’s case.
Finally, the difference of 110.04 grammes in the gross weight of the drug between the weight arrived at by SP8 and SP5 respectively was, according to the learned Judicial Commissioner, analogous to the situation in Tan Yen Choy v PP  4 CLJ 245, where the Federal Court held that the discrepancy in the net weight of the cannabis as determined by the chemist which exceeded the gross weight of the cannabis when it was first recorded by the police, had created a reasonable doubt as to whether the cannabis recovered by the police that was sent to the chemist for analysis was the same substance that was found to be cannabis.
Doubt was also created as to the identity of the drug, referred to the police report exhibit P16 under Seberang Jaya Report No. 3389/05 and the analysed drug returned by SP5 to SP8 in the cardboard box E3, which was labeled under Report No. 3389-94/05. The learned Judicial Commissioner found that there could have been a mix-up with the rest of the drug found and recovered from the respondent’s car shed.
Learned DPP submitted that the learned Judicial Commissioner had
erred in his approach in not appreciating the evidence adduced by the prosecution in its totality because if the learned Judicial Commissioner had done so as laid down in PP v. Mohd Radzi Abu Bakar  1 CLJ 457, he would have found that the prosecution had established that the respondent had custody and control of the drug found in the motorcycle basket. It was submitted on behalf of the prosecution that the learned Judicial Commissioner had erred in his findings relating to the jacket because it had no bearing on the prosecution’s case. Learned DPP also submitted that the learned Judicial Commissioner’s finding on the credibility of SP6 and SP8 was wrong. The prosecution contended that the respondent had knowledge of the drug because he was the owner of the motorcycle and he was riding it when the drug was found in the motorcycle basket. It was also argued that the conduct of the respondent taking flight amounted to an admission of guilt. Finally, relying on Loh Kah Loon v PP  5 CLJ 345, learned DPP submitted that the difference in the weight of the exhibit as found by SP8 and the chemist, SP5 could not by itself have created doubt as for the identity of the drug.
With respect, we are of the opinion that the various findings of fact made by the learned Judicial Commissioner were not shown to be plainly
wrong, or otherwise perverse which would warrant appellate intervention. (see Herchun Singh & Ors v. PP  2 MLJ 209). Obviously, the various findings of fact on the infirmities of the prosecution’s case must not be taken in isolation because each by or of itself would be of little consequence, but taken together, they were in the circumstances aforesaid, sufficient to raise a reasonable doubt on the prosecution’s case, particularly as to the identity of the drug and on that ground, the question of possession of the drug did not arise.
In our opinion, this was a case where the appellant was entitled to the benefit of doubt which arises upon the consideration of the evidence adduced by the prosecution. The prosecution’s case is so unsatisfactory that it would be unsafe to convict the appellant upon it.
For the reasons aforesaid, the appeal was without merit and was accordingly dismissed. The acquittal and discharge were affirmed.
Court of Appeal Malaysia
Dated : 30 Oktober 2014 Putrajaya
Jabatan Peguam Negara Bahagian Perbicaraan Dan Rayuan Aras 5, No. 45, Lot 4G7 Presint 4, Persiaran Perdana 62100 Putrajaya
Mohd Ruruz Jaffril
Messrs. Firuz Jaffril, Aidil & Zarina Lot No. 3A-13A, No. 1, Jln. PJU 8/5G Perdana The Place Bandar Damansara Perdana 47820 Petaling Jaya [FJ/LMIS/1847/13]