DALAM MAHKAMAH RAYUAN DI PUTRAJAYA (BIDANGKUASA RAYUAN)
RAYUAN JENAYAH NO. N-05-24-02/2012
PUBLIC PROSECUTOR … APPELLANT
MOSTAFA KAMAL ABADI … RESPONDENT
(Dalam Mahkamah Tinggi Malaya di Seremban Perbicaraan Jenayah No. 2-45-12-2010)
DATO’ ABDUL MALIK BIN ISHAK, JCA DATO’ AZAHAR BIN MOHAMED, JCA DATO’ BALIA YUSOF BIN HJ WAHI, JCA
The Respondent is an Iranian. On 11.6.2010 at about 10.30 pm he landed at the Kuala Lumpur International Airport and had a baggage with him. His baggage was scanned by customs officer SP3. There was nothing amiss. He was handed over to SP5 who took him to a room for further examination. In examining the Respondent’s shoes, SP5 made a slight tear to the sole of the right shoe and discovered a transparent plastic packet containing crystalline substance. The Respondent was told to put on his shoes back and was handed over to SP6 and taken to the Department’s Narcotics office at Nilai.
At the narcotics office in Nilai, a closer examination was made on the shoes by SP6 and a transparent plastic packet containing crystalline substance was found hidden under the soles of each shoes.
SP6 instructed photographs to be taken while SP7 prepared a search list, exhibit P32 and Senarai Barang Yang Disita exhibit P33. Both P32 and P33 were acknowledged and signed by the Respondent. In both P32 and P33 the pair of shoes was described as “sepasang kasut warna kelabu yang dipakai OYDS bertulis Tabril Leather di bahagian bawah tapaknya”. The shoes were tendered and marked as exhibit P13A dan B.
The exhibits were marked and later sent to the Chemistry Department for analysis which found it to contain 371 grammes of methamphetamine for which the Respondent was charged for trafficking, an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (“DDA”) and punishable under section 39B(2) of the DDA.
At the end of the prosecution’s case, the learned Judicial Commissioner (“JC”) found a prima facie case against the Respondent and ordered him to enter his defence.
The essence of the Respondent’s defence was that the shoes produced in court were not the ones recovered from him and he could not understand or knew what he signed when referring to exhibits P32 and P33.
The learned JC found the Respondent to have cast a reasonable doubt on the prosecution’s case and accordingly acquitted and discharged him.
Being dissatisfied with the order of the learnedJC, the Public Prosecutor filed the instant appeal.
The only issue for determination in this appeal is whether the learned JC, on the evidence available was right in drawing an inference and making a finding that there were two pairs of shoes seized from the Respondent by the customs officer on the day of his arrest (See pg 34 of the Record of Appeal Jilid 1). This inference was made by the learned JC having taken into consideration the conflicting evidence regarding the identity of the pair of shoes marked as Exhibit P13A and B tendered in court. Arising from this, His Lordship entertained a doubt as to whether the exhibits P13A & B were the same pair of shoes that were seized from the Respondent. Premised on that, His Lordship held that the Respondent has successfully rebutted the presumption raised against him and has cast a reasonable doubt on the prosecution’s case.
The learned JC found that the identity of the shoes was established by the prosecution through its brand name and colour. All the prosecution witnesses SP3, SP5, SP6 and SP7 say that the colour of the shoes was grey and its brand name was Dabriz Leather. (See: pages 52, 91 and 103 of the Appeal Record Jilid 1). However, exhibits P32 and P33 stated it was Tabril Leather grey in colour. The Respondent in his defence also stated the brand name to be Dabriz and blue in colour. (Pg
135 of the Appeal Record Jilid 1). The learned JC, however, in various parts of his judgment has referred to the brand name of the shoes as Debriz Leather (Pgs 13, 14, 17, 35 and 36 of the Appeal Record Jilid 1) and the colour to be blue. In finding the colour with the shoes to be blue, the learned JC must have been influenced by the coloured photographs exhibits P4(11) and P4(12).
On our part, we have taken the liberty to ask the prosecution to produce the shoes before us for our inspection. We have examined the pair of shoes (exhibits P13A and B) and found yet another different spelling of the brand name that is, Tabriz Leater. We found the colour to be grey. We have compared the colour of the shoes with the photographs tendered and agree that the coloured photographs appeared to be slightly bluish (exhibits P4(11) and P4(12). Hence the observation of the learned JC. Both the learned deputy public prosecutor and the learned counsel for Respondent have also examined the same pair of shoes and concurred with what we found. We also found the letterings to be rather small and not too easily decipherable.
With the greatest and most sincere respect to the learned JC, we found that His Lordship’s conclusion reached at the end of the defence case goes against his own earlier finding where His Lordship had stated at page 19 of the Record of Appeal Jilid 1 as follows:
“Dengan hormatnya, berdasarkan keterangan saksi-saksi SP3, SP5, SP6 dan SP7, mahkamah mendapati mereka telah camkan kasut yang dikemukakan sebagai Eksibit P13A dan B secara pemeriksaan dan pemerhatian fizikal dan bukannya sahaja berdasarkan jenama atau warna.
Ini jelas menunjukkan bahawa hanya kasut itu yang dirampas daripada OKT dan tiada kasut lain selain kasut tersebut yang berada dalam kawalan dan jagaan SP7 sehinggalah ianya dikemukakan di mahkamah. Jesteru, tidak wujud inferens bahawa terdapat dua kasut yang berbeza jenama dan warna di dalam kes ini.”
The real question to be determined is whether the exhibits recovered by the customs officers in this case is the same exhibit subsequently produced in court and marked as exhibits. (See: Loh Kah Loon v. PP  5 CLJ 345)
Suffian LP in Su Ah Ping v. Public Prosecutor  1 MLJ 75, at
page 76, said:
In our judgment, if the officer who picked up an object at the scene produced it and identified it as that very object, that is enough …”
We are satisfied and so was the learned JC (at least during the prosecution’s case) that the shoes that were produced in court were the very same shoes that were seized from the Respondent. The evidence of SP3, SP5, SP6 and SP7 have established the chain of evidence in respect of the same.
We are of the view that the learned JC has erred in drawing an inference that two pairs of shoes were seized from the Respondent. Such an inference is in our view in conflict with the evidence available. The learned JC himself had erroneously referred to the shoes as Debriz, when all the witnesses say Dabriz and so was the Respondent. Exhibits
P32 and P33 described it as Tabril and our own examination showed it to be Tabriz Leater. Be that as it may, we are satisfied, and the evidence is overwhelming that there was only one pair of shoes seized from the Respondent and it was the very same pair that was produced in court as exhibits P13A and B. The evidence clearly points to that and only that conclusion ought to be drawn or inferred. We are satisfied that there was no break in the chain of evidence in respect of the drugs found and the shoes.
We are mindful of the fact that an appellate court ought to be greatly influenced by the opinion of the JC who has had every advantage of seeing and hearing the witnesses. In appropriate cases, we are entitled to act upon our own view of the conflicting evidence. (See: Yusoff Kassim v. Public Prosecutor  1 CLJ (Rep) 376).
“A Court of Appeal has to bear in mind that its duty is to rehear the case and the Court must reconsider the materials before the judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong”. (See: Coghan v. Cumberland (1893) 1 Ch D 704).
James L.J in the case of Bigsby v. Dickinson (1876) 4 Ch D 24
repeated what was said by the Court of Appeal in The Glannibanta (1876) 1 Ch D 283 as follows:
“A Court of Appeal cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses, and should make due allowance in this respect.”
We have given our utmost consideration over the matter and we strongly feel that this is one such case where we ought to interfere and make our own inference and conclusion. We feel impelled to overrule the learned JC.
For the reasons we have stated above, we hereby allow the appeal by the Public Prosecutor and set aside the order of acquittal and discharge made by the learned JC. The Respondent has failed to rebut the presumption of trafficking on the balance of probabilities and has failed to cast a reasonable doubt on the prosecution’s case. The Respondent is convicted for the offence under s. 39B(1)(a) of the DDA and punishable under s. 39(B)(2) of the DDA. He is sentenced to death by hanging.
DATO’ BALIA YUSOF BIN HJ WAHI Judge Court of Appeal Malaysia
Dated: 15 January 2013
For the Appellant
For the Respondent:
Mangaiarkarasi, Deputy Publice Prosecutor Attorney General’s Chambers
N Sivananthan Messrs Sivananthan