DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA (BIDANGKUASA RAYUAN) RAYUAN JENAYAH NO: B-05-294 & 296-2009 (Mahkamah Tinggi

Shah Alam Perbicaraan Jenayah No. 45-127-2005)

DI ANTARA

1. ZAIFULL BIN MUHAMMAD 2. MAZLI BIN MANAN

PERAYU-PERAYU

DAN PENDAKWA RAYA RESPONDEN

CORAM : ZALEHA BT ZAHARI, JCA SULAIMAN BIN DAUD, JCA BALIA YUSOF BIN WAHI, JCA

JUDGMENT

Both the appellants were charged and convicted in the Shah Alam High Court for the offence of trafficking in dangerous drugs and were sentenced to death. Being dissatisfied with the decision, they now appeal to this court. Both appellants filed their appeals separately but for convenience, we heard both appeals together, with the concurrence of the appellants and needless to say, their respective counsels.
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The Prosecutions Case The prosecutions case against both the appellants is primarily pivoted on the evidence of SP4, Chief Inspector Loi Yew Lik who had testified that he had negotiated for the purchase of cannabis from one person by the name of Osama at an agreed price of RM2,700 per kilogram. In the court below, he identified the second appellant as During the

Osama who was introduced to him by his informer.

negotiation, SP4 offered to buy 3 kilograms of cannabis from Osama but the latter had turned it down as he was apprehensive about it because he had never dealt with SP4 before. This took place at about 10 am at a food stall at Simpang Empat Kampung Delik, Klang, Selangor.

With that information, SP4 went back to his office at the Police Headquarters in Shah Alam, briefed his men about the pending meeting between him and Osama later that evening for the drug transaction. SP4 arranged for an ambush party and at about 7 pm he saw an Iswara bearing registration No. BHC 4954 stopping at about 15 meters from where he was standing. Out came the second appellant from the front passenger seat of the car walking towards SP4 and asking SP4 to follow him to the said car to collect the cannabis. SP4 refused. The second appellant then walked back to the car. About two minutes later, SP4 saw the second appellant coming out of the car and got into SP4s car and told SP4 to wait for his friend to go and fetch the cannabis. SP4 agreed. Subsequently, SP4 was told by the second appellant to drive to Taman Melawis because the cannabis would be delivered there. Again SP4 agreed. Near the junction towards Taman Melawis, SP4 stopped
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his car and waited there. About five minutes later, SP4 saw the same Iswara driven by a Malay man identified as the first appellant past by his car, slowly. The second appellant than asked SP4 to follow the said Iswara which SP4 did. A while later, the Iswara stopped and SP4 also stopped his car directly behind it. Upon stopping, the second appellant alighted from SP4s car and went into the Iswara. About a minute later, the second appellant came back and informed SP4 that the first appellant wanted the money first. SP4 disagreed and told the second appellant to go and collect the cannabis first as he would not pay without seeing the cannabis. The moment SP4 saw the second appellant going into the Iswara, he gave the prearranged signal for the ambush party to act. A police Pajero vehicle came and blocked the Iswaras path. SP4 rushed out of his car and arrested the second appellant while Chief Inspector Husni (SP5) arrested the driver of the Iswara, later identified as the first appellant.

A search was conducted on the Iswara by SP4. From under the front passenger seat of the car, a white plastic bag with the word Mobil Mart on it containing in the words of SP4, satu ketulan mampat dadah ganja yang berbalut plastik lutsinar dan kertas timah. On the back seat of the car, was a small black bag with the words Bahagian Pembangunan Kesihatan Keluarga Kementerian Kesihatan printed on it. On examination, SP4 found it to contain again in his own words, satu mampatan kecil ganja yang berbalut selotape berwarna kuning dan plastik warna kuning, di dalam beg itu. We choose to quote the exact words of SP4 on the ketulan because as will be seen in the later part of
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our judgment, an issue was raised at least by the first appellant as to the number of ketulan of cannabis found by the police.

These items were seized by SP4 and later handed over to the investigating officer, SP8 who later sent it to the chemistry department for analysis. The Government Chemist, SP2 confirmed that upon his analysis, he found the ketulan mampat to be cannabis as defined under Section 2 of the Dangerous Drug Act 1952. The weight of the cannabis was 799.4 grams.

At the end of the prosecutions case, the learned trial judge found a prima facie case against both the appellants and ordered them to put up their defence.

The Defence case In his defence, the first appellant said that he borrowed his fathers car, the Iswara (Exhibit P16) to pick up the second appellant to send him to work. Along the way, while in the car, the second appelllant received a phone call and requested to be dropped at Simpang Empat, Kampung Delik Teluk Pulai Klang to meet a friend. After dropping the second appellant there, the first appellant himself also received a phone call from a friend named Madin who wanted to see him at a restaurant at Taman Melawis, Klang. He met Madin there and Madin borrowed his car for about hour. After that he wanted to fetch the second appellant whom he had earlier dropped off at Simpang Empat but on the way he was stopped by the second appellant whom he saw was in SP4s car at the road side. The first appellant stopped in front of SP4s car. The
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second appellant came out of SP4s car and came towards him and asked him to wait. The second appellant then walked back to SP4s car and a short while later walked back towards his car and sat on the front passenger seat. As he was about to move his car, suddenly a Pajero vehicle appeared and blocked his path. The first appellant testified that he knew nothing about the drugs found in the car and has nothing to do with it. The first appellant also called his mother as a witness but the trial judge after considering her evidence found it to be of no assistance to the first appellants defence.

The second appellant in his defence admitted having met SP4 who was introduced to him as Alex. Their conversation centred mainly on fishing and fishing trips to various islands. The second appellant denies any negotiation for the sale of drugs with Alex. He said he was introduced to Alex by his friend Sabri at a stall. On the day of the

incident while he was on his way to work in the first appellants car, Sabri called him to come over to the stall again. The first appellant dropped him there and he met Sabri and Alex and they chit chatted. He then asked Alex to send him to his work place because the first appellant did not turn up to pick him up as promised. On the way, the first appellant called him saying he was at Taman Melawis. The second appellant then saw the first appellants car overtaking them and stopping in front of Alexs car. He then got out and went over to the first

appellants car to thank him and suddenly a Pajero vehicle blocked the first appellants car and they were arrested by the police.

Like the first appellant, the second appellant also called his wife as a witness. The learned trial judge however found her evidence to be affording no assistance to the defence put forth by the second appellant.

It strikes us that both the appellants stories as regard the sequence of events from the introduction of the second appellant to Alex right up to their arrest by the police seem to tally with the prosecutions narration of events except for the drug deal and the finding of the drugs in the Iswara.

In essence, the learned trial judge found the appellants defence to be one of denial of any knowledge of the drugs found at the foot rest of the front passenger seat and on the back passenger seat of the said car.

The Appeal Before us, learned counsel for both the first and the second appellants contend that the learned trial judge has misdirected himself in the treatment of the evidence of SP4. In essence, both counsels submit that the trial judge has failed to subject the evidence of SP4 to a more vigorous test of credibility. As submitted by the learned counsel for the second appellant, SP4 is an agent provocateur and therefore he has an interest and is an interested witness. He further submitted that there is a contradiction between the evidence of SP4 and SP8. En Hisyam Teh Poh Teik, counsel for the first appellant submits that the evidence of SP4 has been contradicted by exhibit D27 and has labelled SP4 as an unreliable witness.
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Another ground of appeal put forth by the first appellant is that there are serious doubts in the identities of the drugs and there was a break in the chain of evidence.

Learned Counsel for the second appellant also raised the issue that his client was never in possession of the impugned drugs and there was no sale and delivery of the same. Likewise he submitted, the

second appellant was never involved in transporting the drugs which the learned trial judge has held to be one of the elements of trafficking in the case. He further contends that the learned judge has erred both in law and in fact in failing to invoke section 114(g) of the Evidence Act 1950 on the failure of the prosecution to call the informer.

Contradiction between the Evidence of SP4 and SP8 The contradiction in the evidence of these two witnesses relates to the place where the arrest was made. SP8 says he was told by SP4 that the arrest was made di jalan lorong belakang rumah 2 teres tepi Jalan Emas, Taman Melawis, Klang (Pg 135 of the Appeal Record). SP4 however in his evidence referred and marked photograph Exhibit P8(7) with a marking X showing the place of arrest and also a spot marked X in the sketch plan Exhibit P22. This according to counsel for the second appellant is contradictory to what SP8 has testified.

Still on the credibility of SP4, En Hisyam Teh Poh Teik, counsel for the first appellant submits that SP4s evidence has also been contradicted by Exhibit D27 a letter for the return of the car No. BHC
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4954 under Section 413 of the Criminal Procedure Code. In Exhibit D27, SP8 gave a brief narration of the facts of the case to the learned Magistrate relating to the arrest of the appellants. He did not mention about the existence and the role played by SP4 and the negotiation for the sale of the drugs. This, according to learned counsel for the first appellant is contradictory to the evidence given by SP4. Learned

counsel further submits that SP4 is an unreliable witness and urged us to treat his evidence with suspect.

While we agree that there is a contradiction here, we are of the view that it is not a material contradiction which affects the credibility of the witness. Only material contradiction which affects the credibility of the witness matters. We are not concerned with minor contradictions such as this instant case. evidence of a witness It has been generally accepted that the will always contain contradictions and

discrepancies. But that does not mean that he is not a truthful and unreliable witness. [Lee Ah Seng v. PP (2007) 5 CLJ, Public Prosecutor v. Datuk Harun b. Hj Idris (No. 2) (1976) 1 LNS 97, Pie b. Chin v. PP (1983) 1 LNS 70)].

The learned trial judge has found that SP4, the star witness of the prosecution was a credible witness whose evidence, taken with the rest of the prosecutions witness was reliable and safe to be acted upon. (See Pg 400 of the Appeal Record). As an appellate court, we should be very slow to disturb the finding of the trial judge on the credibility of witnesses. The credibility of a witness is primarily an issue within the domain of the trial judge who has the audio visual advantage
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in assessing the witness. (Lai Kim Hon & Ors v. PP (1981) 1 MLJ 92, Herchun Singh & Ors v. Public Prosecutor (1969) 2 MLJ 209).

In respect of SP4 being an agent provocateur, we are satisfied that the learned trial judge has rightly applied Section 40A(1) and (2) of the Dangerous Drugs Act 1952 and his reliance on the Supreme Court case of Namasiyam & Ors v. PP (1987) 2 MLJ 336. There is no

presumption or rule of law to suggest that an agent provocateur is unworthy of credit. In the circumstance, the objection of the appellant on the evidence of SP4 is without merit. It is far from the truth as submitted by both the appellants counsel that the learned trial judge has failed to consider the evidence of SP4 carefully and test his credibility against the rest of the evidence of the prosecution. The objection of the appellants on this ground must fail.

In furtherance of his attack on the evidence of SP4, En Hisyam Teh Poh Teik, counsel for the first appellant has drawn our attention to the defence application for the production of the police report made by the said witness. During examination-in-chief by the Deputy Public

Prosecutor, SP4 admitted having lodged 2 police reports regarding the arrest in this case. The first report is regarding the arrest of the first and second appellants while the second one is regarding the arrest of 2 other persons. (Pg 73 Appeal Record).

This application was rejected by the learned trial judge after hearing submissions from both the prosecution and the defence. Before us, learned counsel submitted that the rejection of the defence
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application has prejudiced the appellants to impeach SP4 and this according to counsel, is procedural unfairness.

We note that in the court below, counsel for the first Appellant has submitted before the learned trial judge that the failure of the prosecution to produce the reports made by SP4 should attract the provisions of Section 114(g) of the Evidence Act 1950. (Pg 200 Appeal Record). Before us, the first appellants new counsel submitted and complained of procedural unfairness.

We further note that while giving his evidence, SP8 stated 3 police reports were lodged by SP4 namely Klang Reports 45619/04, 45623/04 and 45624/04. The first 2 reports relate to the arrest of the 2 appellants in this case and the seizure of the drugs while the third report relates to the arrest of the other suspects. (Klang Report 45619/04 the subject matter was the seizure of the drugs while Klang Report 45623/04 relates to the arrest of the 2 appellants.)

It appears to us that only Klang Report 45619/04 and 45623/04 are related to the case. It further seems to us that these were reports upon which SP8 commenced his investigation into the case (Pg 133 Appeal Record).

These two reports set SP8 into motion to carry out his investigation into the case. Yong Pang How CJ in Tan Pin Seng v. Public Prosecutor (1008) 1 SLR 418 explained the nature of a first information report or police report as follows:
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 I agreed entirely with the trial judge. It is a misconception to regard the first information report or police report as a document which should contain the entire case for the prosecution. Its main purpose is merely to give information of a cognizable offence to the police so as to set them in motion. The form of the police report merely requires the information to provide brief details including date, time and place at which the offence occurred. The form itself clearly does not contemplate that the informant or complainant should give elaborate details of the alleged offence. The fact that such details are not mentioned in the report is therefore irrelevant.

We are of the view over emphasis on the reliance of counsels on these reports is misplaced.

In Sivakumar Thenarasu v. PP (2011) 8 CLJ 307 this court had an occasion to consider whether the credibility of a witness could be challenged on the ground of discrepancies between his evidence in court and the police report he made earlier. The police report in the said case, was however tendered as Exhibit P12. Upon consideration of the whole circumstances of the case, this court held that the discrepancies between the evidence and the police report does not in any way affect the prosecutions case.

It is an established principle that in any criminal proceeding the prosecution has the discretion, provided there is no oblique motive, which witness to be called and what documents to be produced and there is no adverse presumption on its failure to call a particular witness or to produce a particular document if there is already sufficient evidence to prove its case. ( Low Kian Boon v. PP (2010) 4 MLJ 425, Public Prosecutor v. Dato Seri Anwar b. Ibrahim (No. 3) 1999) 2 MLJ).
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The learned trial judge has found that the evidence of SP4 was already sufficient to prove the essential ingredients of the offence with which both the OKTs in this case was charged. (See page 400 Appeal Record). No particular number of witnesses shall in any case be Section 134 of the Evidence Act 1950

required to prove a case.

provides as such. This is in line with the well recognised maxim of testes ponderantur non numerantor (evidence has to be weighed and not counted). SP4 was found by the learned trial judge as a witness so essential to the unfolding of the narratives upon which prosecution case is based. (Seneviratne v. R [1936] 3 All ER 36) and his evidence was accepted as sufficient for the purpose.

Whether or not to allow the defence application for the production of the report, the learned trial judge has to consider the credibility and the sufficiency of SP4s evidence.

We are in no better position to decide on the credibility of SP4. Hence whether or not to direct the prosecution to produce the police reports made by SP4 was solely within the purview of the trial judges discretion. We intend to leave it at that.

Having considered the evidence of SP4 and the whole circumstances of the case in its totality, we do not think that the non production of SP4s police reports has affected the prosecutions case against the appellants. On the same token, we fail to see how the

appellants have been prejudiced by its non production.

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Identity of the Drugs It was submitted before us that the learned trial judge has misdirected himself in failing to appreciate the doubts as to the identity of the drugs produced as exhibits against the appellants. These doubts, according to learned counsel for the first appellant are in respect of the discrepancy in weight and in the number of ketulan and also the loss of certain exhibits namely items 3 and 4 of Exhibit P11, the search list.

We will deal with items 3 and 4 of Exhibit P11 first. These two items are: 1) satu pas Kementerian Kesihatan Malaysia atas nama Zaifull b. Muhammad KP 721119-10-5601 yang bertanda C.2) satu pas pelabuhan atas nama Zaifull b. Muhammad KP 721119-10-5601 yang bertanda D. These two passes allegedly belonging to the first appellant were found together in the car (Iswara) but were lost and were not produced as exhibits. The investigating officer in charge of these

exhibits has been interdicted and efforts to trace the two passes has been futile.

We are of the view that the non production of these items does not affect the prosecutions case even in the slightest manner. We are more concerned with the drugs which is the subject matter of the offence for which they have been found guilty.

On the weight of the drugs, learned counsel for the first appellant submitted that there is a difference in the weight of the cannabis which according to the investigating officer (SP8) is 880 grams (Pg 134 Appeal Record) while the chemists evidence says the gross weight is 820.49
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grams. This discrepancy has not been explained. On the number of ketulan what seems to puzzle the counsel for the first appellant was whether there were 2 ketulan or 6 ketulan of cannabis were found. The evidence clearly points out that there were only 2 ketulan found but the charge sheet as per page 12 of the Appeal Record says 6 ketulan.

At the very outset we must point out that the charge referred to by the learned counsel is the original charge framed against the appellants when they were first charged in the lower court. This charge was later amended to read as trafficking in 799.4 grams of cannabis and not 6 ketulan of mampatan daun kering yang disyaki ganja 800 grams (berat kasar) as in the original charge.

We have considered this issue and our short answer to it is that upon consideration of the evidence in its totality, we agree with the finding of the learned trial judge that there was no break in the chain of evidence and as to the identity of the drugs. At page 390 of the Appeal Record the learned trial judge observed that:
But the simple fact of the matter must be that all the relevant witnesses called by the prosecution had positively identified the material drug exhibits based on their contemporaneous markings which they had made on the material exhibits.

Relying on the established principles as laid down in the case of Su Ah Ping v. PP (1980) 1 MLJ 75 (FC) the learned trial judge went further at page 399 of the Appeal Record and said:
But in this case, SP4 had positively identified the drugs tendered in this court as being the same drugs that he had seized from inside the 1st OKTs car on that fateful night. In this particular case before this court, SP4 was also able to identify the drugs seized by him based on the fact that he had
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cut into the wrapping which he had done by using his pen knife so as to enable him to look at its contents.

Again, with respect, we found no merit in the appellants contention. We are satisfied that there is no doubt as to the identity of the drug exhibits and we are further of the view that there was no break in the chain of evidence relating to the drug exhibits.

Section 114(g) Evidence Act 1950 Learned counsel for the second appellant, En Aminuddin has submitted before us that the learned trial judge has erred in failing to invoke the provisions of Section 114(g) of the Evidence Act 1950 on the failure of the prosecution to call the informer. It is in evidence that SP4 was introduced to the second appellant as Alex by the informer. Counsel submitted because the informer is known to the second appellant as his friend by the name of Sabri, it is incumbent upon the prosecution to call him to confirm the information given by him to SP4.

With respect, we do not think there is any merit and substance in this argument. In the first place, the prosecution has a discretion

whether or not to call any particular witness. The drawing of adverse inference pursuant to Section 114(g) is not an inflexible rule but depends on the circumstances of each particular case. (PP v. Mansor Abd

Rashid & Anor (1997) 1 CLJ 233 (FC). It may however be invoked for example, where an important witness, the umbilical cord to link the accused with the heroin was not called as in the case of PP v. Tan Kok An (1996) 2 CLJ 96. As stated by Mohamed Azmi SCJ (as he then
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was) in Munusamy v.PP (1987) 1 MLJ 492, adverse inference under the illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, or for non production of not just any witness but an important and material witness to the case.

The learned trial judge, on our perusal of the records has addressed his mind to this issue. In his judgment at pages 399 400 of the Appeal Record it was stated:
It was also submitted by learned counsels that the prosecution had failed to call certain witnesses thus occasioning a gap to appear that must be fatal to the prosecutions case. The law on the calling of witnesses by the prosecution has been clearly spelt out by Justice Salleh Abas LP in the case of Abdullah bin Zawawi v PP [1985] 2 MLJ 16, at pages 18-19 where his Lordship had said: The practice of making available witness or witnesses from whom statements have been taken is to prevent the defence from commenting upon the honesty of the prosecution and thus invoking the often-quoted presumption of adverse inference under section 114(g) of the Evidence Act. But where the evidence prosecution falls short of proving a prima facie case at the end of its case, the right not to call such witness or witnesses and to make him/them available to the defence will be of no avail. If the doubt consists of a gap arising out of the matter adumbrated earlier, the prosecution must close this gap. It is not for the defence to call the offered witness or witnesses to supplement the prosecution case. So, it is clear that the exercise of the right to call or not to call a particular witness or witnesses by the prosecution is premised upon the consideration that no gap will be created by non-calling of the same. In this case before me, the case for the prosecution was based entirely on the evidence of the agent provocateur [SP4]. The SP4 is the kind of witness whose evidence must be led by the prosecution in order to establish its case against both the OKTs in this case. He is a witness so essential to the unfolding of the narrative upon which the prosecution case is based. And as such, his is an impressive in the prosecution scheme of things. [see: Seneviratne v R [1936] 3 All ER 36.] In this case, in the context of the prevailing legal framework, the prosecution non-calling of other witnesses is not fatal as there was already sufficient evidence as led by SP4 to prove the essential ingredients of the offence with which both the OKTs in this case were charged.
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Common intention It was contended by learned counsel for the second appellant that his client was never in possession of the drugs. Most of the time the second appellant was with SP4. Learned counsel further submitted that the learned trial judge has erred both in law and in fact as there was no element of sale of the drugs because there was no delivery.

We are of the view that this argument of counsel is misplaced. The learned trial judge has found that there was ample evidence before him pointing to the fact that both the appellants had with common intention transported the drugs in the Iswara car for the purpose of selling it to SP4 at the agreed price of RM2,700 per kilogram. The trial judge has found that the transportation of the drugs by Zaifull (the first appellant) in the car was for the purpose of delivering it to Alex after Osama (the second appellant) had struck a deal with SP4 (page 396 of the Appeal Record). Further at page 397 of the Appeal Record the learned trial judge has stated:
From the evidence of SP4, it is clear to my mind that both the OKTs were acting in concert in furtherance of a common intention as understood under section 34 of the Penal Code. Where the 2nd OKT (OSAMA) was the negotiator in the deal to deliver the drugs to SP4 for a price, Zaifull (the 1 st OKT) was the transporter of the drugs and according to the 2nd OKT, Zaifull was the one who made the call on the price of the drugs.

We fully agree with the said finding by the trial judge and we need say no more. There is more than ample evidence to suggest that both appellants were acting in concert in the said drug deal with SP4.

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On the finding of the learned trial judge on the issue of possession against the appellants, his Lordship concludes at pages 385 386 of the Appeal Record thus:
According to SP4, the 2nd OKT had told him that he had seen the cannabis which was inside the Iswara car driven by his partner, who later on had turned out to be the 1st OKT. It was the 1st OKT, according to the 2nd OKT who had decided on the price of the said drugs. In the circumstances of this case, there was actual possession proven against both the OKTs. It was apparent from the evidence that they were in that enterprise to sell the ganja to Alex [SP4] together. Whereas the 2nd OKT (Mazli/Osama) was the negotiator, the 1st OKT (Zaifull) played the role of the main man calling the important shots regarding the price determination, so to speak, including providing transportation to ensure delivery of the said drugs. It was the 2nd OKTs statement to SP4 that the 1st OKT would bring along the cannabis for delivery to SP4 later in the evening. Taken in the totality of the evidence, there being negotiation, there being evidence that the 2nd OKT had told SP4 that he had seen the ganja and that according to SP4, the 2nd OKT had told him that his partner, the 1st OKT (Zaifull) had wanted payment to be made first by SP4 before he could see the ganja (cannabis) and the fact that the plastic bag containing the ganja was found in the car that was driven by Zaifull, it is clear to my mind that both of the accused persons had actual possession of the ganja that was found and seized from inside the car by SP4 when he raided it.

This too, deserves no comment from us. We are in agreement with the learned trial judge and we affirm it.

For the reasons above stated, we unanimously dismiss both the appeals and the conviction and sentence passed by the trial judge is affirmed.

sgd DATO BALIA YUSOF BIN HAJI WAHI Judge Court of Appeal Malaysia Dated: 23rd May 2012
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Parties:

For the First Appellant

Hisyam Teh Poh Teik Tetuan Teh Poh Teik & Co. En Aminuddin Tetuan Aminudin & Co. Munahyza Timbalan Pendakwa Raya Jabatan Peguam Negara Malaysia

For the Second Appellant:

For the Public Prosecutor:

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