Suheri Bin Ibrahim V Pendakwa Raya

  

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W-05-291-2009

 

DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN JENAYAH NO.W-05-291-2009

 

DI ANTARA

 

SUHERI BIN IBRAHIM … PERAYU

 

LAWAN

 

PENDAKWA RAYA … RESPONDEN

 

(Dalam Mahkamah Tinggi Malaya Kuala Lumpur Perbicaraan Jenayah No: 45-69-2005

 

Pendakwa Raya Lawan

 

Suheri Bin Ibrahim)

 

KORUM

 

AHMAD BIN HAJI MAAROP, HMR CLEMENT SKINNER, HMR AZAHAR BIN MOHAMED, HMR

 

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GROUNDS OF JUDGMENT

 

[1] Suheri Bin Ibrahim (‘the appellant”) was charged with trafficking in 879 grams of cannabis, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952, and punishable under s 39B(2) of the same Act. On 6.10.2009 the High Court, Kuala Lumpur found him guilty of the offence, convicted him, and sentenced him to death. He appealed against that decision. We dismissed his appeal. These are our reasons for doing so.

 

The facts

 

[2] On 22.3.2005, upon receiving information about drug related activities at Jalan Datuk Keramat, Kuala Lumpur, ASP Haslah Binti Bachok (PW3) went there together with 7 other policemen and took up position to keep the area under surveillance. Det. Sgt. Maj. Rahim Bin Sulaiman (PW6) was in the police team. The police team arrived there at about 8.00 pm. About 45 minutes later PW3 observed a person (later identified as the appellant) who was alone, slowly walking along the road looking left and right. There was nothing in the appellant’s hands. SP3 and another policeman then stopped the appellant and identified herself as a policewoman and showed him her warrant card. The appellant was surprised and tried to run away but was caught by PW6 and another policeman. PW6 then conducted a body search on the appellant and found a packet of compressed leaves wrapped in aluminium foil and plastic wrapping

 

hidden inside the front of the appellant’s trousers in the region of the

 

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appellant’s navel. The appellant and the package (exh P10) were then taken to the police station. The package and its contents (exh P10) was sent to the Chemistry Department for analysis and the contents were confirmed (by the chemist Puan Maimonah Bte Sulaiman (PW2)) to be cannabis, weighing 879 grams.

 

A prima facie case

 

[3] On the basis of the evidence mentioned above, the learned High Court Judge made an affirmative finding that the appellant was in possession of the package at the time of his arrest and that the appellant knew that the package contained prohibited drugs. As the weight of the cannabis was over 200 grams, the learned Judge invoked the presumption under s 37(da)(vi) to presume that the appellant was trafficking in the drug. Accordingly the learned High Court Judge found a prima facie had been made out against the appellant in respect of the offence charged.

 

The defence

 

[4] On being called to make his defence, the appellant elected to give evidence an oath.

 

[5] The appellant’s defence was that before his arrest, he worked by selling clothes at the market at Datuk Keramat, Kuala Lumpur and lived close by. On 22.3.2005, after he had finished work he was at home when he received a call from a friend called Adi who asked for

 

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a favour. Adi asked the appellant to collect Adi’s ‘barang’ from a Malay man but did not tell the appellant what the ‘barang’ was. At first the appellant said he told Adi to collect the ‘barang’ himself, but since Adi said he was then outside the Keramat area and would come to the appellant’s house to collect the ‘barang’ when he returned, the appellant agreed to do so. Adi then informed the appellant that when the Malay man arrived there, he (Adi) would phone the appellant to let him know. About 45 minutes later Adi phoned the appellant to say that the Malay man had arrived at Datuk Keramat in a white coloured Proton Saga and had parked his car at the roadside in the direction of Jelatek. The appellant said he went to meet the Malay man. On exiting Lorong 6 where he lived, the appellant said he noticed a white Proton Saga parked at the roadside. The car was parked facing Jelatek and there was a Malay man seated in the driver’s seat of the car. On reaching the car the appellant said he noticed the car’s engine was still running. The appellant then asked the person in the car if he was Adi’s friend. When the person in the car said he was, the appellant informed him that he (the appellant) had been requested by Adi to collect the ‘barang’, whereupon the person in the car produced a red plastic bag with the ‘barang’ inside to handover to the appellant. According to the appellant, before he had a chance to even touch the ‘barang’ someone suddenly hugged him from behind saying “Polis”, whereupon the Malay man in the Proton Saga sped off. The appellant said he did not receive the ‘barang’ which he saw lying on the road when he was arrested. The appellant said that when he was arrested even though he was surprised, he did not manage to run

 

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away. The appellant also denied that he had concealed the ‘barang’ in the front portion of his trousers at the area of his waist as he said he normally tucks his shirt into his trousers when he goes out and he wears fitting trousers. The appellant also maintained that he did not know what was in the package, until the police showed to him the contents of the package at the police station, for the first time.

 

The High Court decision

 

[6] At the conclusion of the case the learned Judge found that the appellant’s defence had not raised a reasonable doubt on the prosecution’s case, and neither had the appellant rebutted the presumption of trafficking on a balance of probabilities. In particular, the learned Judge held that the appellant’s story about being asked by Adi to collect a package from a Malay man in a white Proton Saga, was an afterthought because that story only surfaced during the defence case. The learned Judge pointed out that during the prosecution’s case, the name and story about Adi was not mentioned and neither was it put to the prosecution’s witnesses that the Malay man in the Proton Saga was in the process of handing over the package to the appellant when he was arrested. The appellant was accordingly convicted of the offence charged and sentenced accordingly.

 

[7] To be fair to the learned Judge, the matters that we have just mentioned were not the only matters which the learned Judge considered when evaluating the defence of the appellant. In fact the

 

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learned Judge had dealt with all the issues raised by learned defence counsel in the latter’s submissions, but we have confined ourselves to these aspects of the appellant’s case as they form the very core of his defence.

 

This appeal.

 

[8] Although there are some 7 grounds of appeal set out in the appellant’s Petition of Appeal, learned Counsel for the appellant informed the court that they all relate in one way or the other to the central question of whether the appellant was found in “possession” of the cannabis stated in the charge i.e. that he not only had physical custody and control over the package but he also knew what the package contained.

 

[9] It was the appellant’s contention that the learned High Court Judge had erred in law and in fact when she held that the appellant was in possession of the package containing the drugs when he was arrested, as the learned Judge had failed to carry out a maximum evaluation of the evidence before the court. The appellant complained that the learned Judge had not tested the prosecution’s evidence. According to the appellant, there was a lack of judicial appreciation of the evidence.

 

[10] In support of what he complained about above, the appellant drew attention to the following facts revealed by the evidence:

 

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(a) According to PW3 and PW6, the package was found concealed in the front part of the trousers worn by the appellant;

 

(b) The photographs taken of the appellant soon after his arrest shows that he was wearing close fitting trousers;

 

(c) The package measured some 1 inch in thickness and 9 inches in length;

 

[11] According to the appellant in the light of these facts, it would not have been physically possible to conceal a package measuring some 1” x 9” in the front part of a close fitting trousers, as alleged by the prosecution’s witnesses. The appellant further contended that if the learned Judge had properly appreciated the evidence before the Court, she would have noticed that (i) no finger-prints were found on the package; and (ii) the Investigating Officer had confirmed that no measurements were taken of the appellant’s waist to compare it with the waist size of the trousers he was wearing. To reinforce the point he made, the appellant contended that if the package was found tucked into his trousers at the waist as alleged, then it would be reasonable to expect that a line would be left on the package but the photographs of the package indicate no such line was left on the package.

 

[12] And to further demonstrate that a package of 1” x 9” could not be tucked into the front of a trousers as alleged, learned Counsel for the appellant informed the Court that before the hearing of this appeal

 

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he had used a book with the same dimensions as the package but he could not tuck it into his trousers.

 

[13] Accordingly, it was the appellant’s contention that had the learned Judge properly directed herself she should have asked herself whether a package of that size could fit into the waist size and trousers size of the appellant and she would have found that for the reasons he gave above, a reasonable doubt had been created whether the package was found concealed in the appellant’s trousers as alleged. According to the appellant, at its very highest, the prosecution had only proved that he was an innocent carrier of the package.

 

[14] We do not agree with the contentions of the appellant. Whether the package of drugs was found concealed in the front part of the appellant’s trousers as the prosecution alleged, or whether it was found lying on the road as the appellant alleged purely was a question of fact. The learned Judge had, based on the evidence before the Court, arrived at a finding of fact that the package of drugs was found concealed on the appellant. We find no reason to interfere with such a finding of fact. It has not been demonstrated that such finding is against the weight of evidence or perverse in any way. In coming to her finding of fact the learned Judge was fully aware of the arguments made about the size of the package and that no measurements had been taken of the appellant’s waist size, but having considered these factors she arrived at the finding which she did. We do not think the learned Judge was wrong in coming to her

 

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finding. The arguments made about the size of the package and the close fitting trousers worn by the appellant as well as the fact that no line was seen in the photographs of the package do not detract in any way from the fact that the human body is not rigid and neither was the package in question solid or rigid. Conversely stated, both the human body and the package are flexible in nature. Therefore, the prosecution’s evidence that the package was found concealed in the front part of the appellant’s trousers is not an inherently improbable one. The learned Judge found that PW3 and PW6 had not given inherently incredible evidence when they testified that on conducting a body search of the appellant they found the package concealed in his trousers. We find no error in the learned Judge’s acceptance of their testimony on the point. What PW3 and PW6 said about the package being found concealed in the appellant’s trousers is also consistent with their evidence that they had kept the street under surveillance and had seen the appellant arrive there with nothing in his hands. Further, the finding of the package concealed on the appellant’s body is more consistent with the prosecution’s witnesses narration of the events that unfolded on the night in question i.e. that the appellant was confronted while he was walking along the street and immediately searched after he was apprehended while trying to flee. This is to be contrasted with the appellant’s story that the package was found lying on the road because that is where it fell when the Malay man in the Proton Saga tried unsuccessfully to hand it over to the appellant on his being arrested. In our judgment the appellant’s story is worthy of very little weight as his version was not

 

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tested by being put to PW3, PW6 or PW7 but was instead held up his sleeves so to speak and only revealed during the defence case.

 

[15] We find no substance or justification in the appellant’s complaint that the learned Judge failed to carry out a maximum evaluation of the evidence or to judicially appreciate the evidence before her. In fact a reading of her judgment shows that just the opposite was the case.

 

[16] The fact that the appellant’s finger prints were not found on the package do not in our view raise a reasonable doubt in the prosecution case in view of the fact that there is other cogent evidence from PW3 and PW6 that the package was found concealed on the appellant’s body.

 

[17] With regard to the appellant’s contention that at most he was an innocent carrier, we do not agree. The proved facts show that when recovered, the contents of the package was wrapped in aluminium foil and plastic wrapping. Therefore the contents of the package were not visible from the outside. The fact that the package was found hidden in the front of the appellant’s trousers indicates that he was trying to conceal what he was carrying. Logically speaking, there was no reason for the appellant to want to hide the package he was carrying because its contents were not visible from the outside. The proper inference to be drawn from his having done so is that he wanted to avoid detection of the package he was carrying — he wanted to avoid detection of the package as he knew something

 

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about the contents of the package which another person looking at the package would not know, namely that it contained prohibited drugs – hence the appellant’s act of concealing the package in his trousers. He was accordingly not an innocent carrier.

 

[18] We find the conviction of the appellant safe. We unanimously dismiss his appeal and confirm the conviction and sentence passed by the High Court.

 

DATUK CLEMENT SKINNER Judge

 

Court of Appeal Malaysia

 

Dated: 30th July 2012

 

COUNSEL

 

For the Appellant: Encik Mohd Firuz Bin Jaffril

 

Tetuan Firuz Jaffril, Aidil & Zarina Advocates & Solicitors Kuala Lumpur

 

For the Respondent: DPP Jamil bin Aripin

 

Attorney-General’s Chambers PUTRAJAYA

 

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