Andy Bin Majudil v Public Prosecutor (S-05(M)-40-01/2017 Heard Together with S-05(M)-41-01/2017)

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Criminal Appeal No. S-05(M)-40-01/2017 & 41-01/2017 1 IN THE COURT OF APPEAL, MALAYSIA AT KOTA KINABALU (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. S-05(M)-40-01/2017 BETWEEN ANDY BIN MAJUDIL … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT HEARD TOGETHER WITH CRIMINAL APPEAL NO. S-05(M)-41-01/2017 BETWEEN MOHAMMAD NOOR BIN HJ JUMAT … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [In the Matter of High Court in Sabah and Sarawak at Kota KInabalu Criminal Trial No. BKI-45A-6/9-2014 Between Public Prosecutor And Andy bin Majudil] And Criminal Appeal No. S-05(M)-40-01/2017 & 41-01/2017 2 [In the Matter of High Court in Sabah and Sarawak at Kota Kinabalu Criminal Trial No. BK1-45A-9/11-2014 Between Public Prosecutor And Mohammad Noor bin Hj. Jumat] CORAM TENGKU MAIMUN TUAN MAT, JCA MARY LIM THIAM SUAN, JCA YAACOB BIN HAJI MD. SAM, JCA JUDGMENT OF THE COURT Introduction [1] There were two appeals before us which arose from the decision of the High Court at Kota Kinabalu where both appellants were convicted and sentenced to death for the offence of trafficking in dangerous drugs. [2] The appellant in the first appeal, Andy bin Majudil (the first accused) and the appellant in the second appeal, Mohammad Noor bin Hj. Jumat (the second accused) were charged under section 39B(1)(a) of the Dangerous Drugs Act 1952 (“the DDA”), punishable under section 39B(2) of the DDA. They were jointly tried by the High Court. Criminal Appeal No. S-05(M)-40-01/2017 & 41-01/2017 3 [3] The charge against the first accused reads: “That you, on the 19th day of November 2013 at about 9.30pm, infront of house No. 42A Lot 58, Taman Nelly, Phase 8C, Jalan Nountun, Inanam, in the District of Kota Kinabalu, in the State of Sabah, did on your own behalf traffic in dangerous drug to wit 745.6 grammes of Methamphetamine and that you have thereby committed an offence under Section 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234) and punishable under Section 39B(2) of the same Act.”. [4] As against the second accused, the charge reads: “That you, on the 19th day of November 2013 at about 9.30pm, inside a room of house Lot 58, Taman Nelly, Phase 8C, Jln. Nountun, Inanam, in the District of Kota Kinabalu, in the State of Sabah, did on your own traffic in a dangerous drug to wit 52.1 grammes of Methamphetamine and that you have thereby committed an offence under Section 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234) and punishable under Section 39B(2) of the same Act.”. The Prosecution Case [5] On 19.11.2013, at about 9.30pm, acting on information received, ASP Ahmad bin Jawila (“PW3”) with his team from the Narcotics Department, IPD Kota Kinabalu went to raid a house at No. 42A, Lot 58, Taman Nelly, Phase 8C, Jalan Nountun, Inanam, Kota Kinabalu, Sabah (“the house”). [6] The gate of the house was wide opened. There was a car, a silver Volkswagen Beetle with a number plate KG5550 at the garage. PW3 saw a male (later identified as the first accused) at the driver’s seat. The first accused got out of the car. He was seen carrying one (1) white cloth bag “BOWLEE” (exhibit P10EZ). Criminal Appeal No. S-05(M)-40-01/2017 & 41-01/2017 4 [7] PW3 moved in to arrest the first accused. The first accused was then asked by PW1 to hand over exhibit P10EZ. Upon inspection, PW3 found the said bag to contain a box written with the words “MICO” (exhibit P10EZ(A)). Inside the box MICO, there were two (2) aluminium plastic packets (P10EZ(A)(1)) and P10EZ(A)(2)). [8] PW3 arrested the first accused. Immediately after the arrest, PW3 saw a man (later identified as the second accused) running from the ground floor to the first floor of the house. The grille door of the house was locked but the sliding door was opened. PW3 shouted “buka pintu police”. The second accused refused to open the door and continued running. PW3 instructed his team to break the grille door. PW3 also instructed some of the officers to guard the backyard of the house while PW3 and a few others went to the first floor. [9] On the first floor, PW3 found the second accused inside a room. The second accused was near the window. Suddenly, the second accused jumped out of the window and fell on the ground at the backyard of the house. The second accused was arrested and brought back to the room he had jumped from, which was the master bedroom. [10] Upon inspection of the master bedroom, PW3 found the following exhibits on the floor:

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(ii) One Lacoste brand box which contained:

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(ii) that he had never lived in the house;

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(iii) that the reason why he was there on the date of his arrest was to collect rental from the second accused;

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(iv) that he was standing by the door grille calling for the second accused to open the door when the police arrested him;

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(vi) that he was forced at gunpoint to his head and a vegetable knife to his neck by the police to admit that the bag belonged to him;

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(vii) that the bag was found some 20 minutes later under the BMW car of the second accused; and

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(viii) that the bag was never opened in the house or in front of him. [20] In essence, the second accused stated the following in his unsworn statement (exhibit D2): Criminal Appeal No. S-05(M)-40-01/2017 & 41-01/2017 8

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(ii) in return, the first accused offered him to stay at the house whenever he comes to Sabah;

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(iii) he was given a duplicate key to the house;

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(iv) he slept in the spare room whereas the first accused occupied the master bedroom;

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(vi) on the day of his arrest, he was relaxing on the ground floor and he could see the first accused walking to the house;

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(vii) as the first accused was about to enter the house, a group of people ambushed the first accused;

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(viii) he thought that they were robbers, hence he fled through the window. [21] Both the accused denied having any knowledge of the drugs. The first accused stated that the drugs belonged to the second accused while the second accused denied that his personal belongings were found in the master bedroom. Findings of the High Court at the conclusion of trial [22] The learned judge made reference to section 120(3) of the Evidence Act 1950, IP Ying Wah v PP [1958] 1 MLJ 34; PP v Er Ah Kiat [1965] 2 MLJ 238 and PP v Shariff Kadir [2003] 2 MLJ 203 and reminded herself of the Criminal Appeal No. S-05(M)-40-01/2017 & 41-01/2017 9 principles regarding an unsworn statement and the fact that both accused could not be cross-examined. [23] Her Ladyship also reminded herself of the duty of the court to evaluate the entire evidence at the conclusion of the trial. She asked herself the question whether the unsworn statements of both accused had raised a reasonable doubt on the prosecution case and proceeded to analyse the unsworn statements of both the accused. [24] Her Ladyship evaluated the statement of the first accused that he was forced by the police to admit that the bag and the drugs belonged to him. The learned judge observed that it was a very serious allegation to make against the raiding party and that if the allegation of the first accused was true, he would have taken immediate step when his counsel first approached him. Nevertheless the first accused did not lodge a police report which led the learned judge to conclude that his allegation was false and baseless. [25] The lack of any personal belongings of the first accused in the house was also considered by the learned judge. Her Ladyship opined that it showed the transient nature of the usage of the house for drug related activities. From the statements of both the accused on the living arrangements, the learned judge drew an inference that together, the accused persons hedged a plan to make the house a place for their drugs going concern. [26] In respect of the second accused, the learned judge believed that he was coherent of PW3 when PW3 shouted to open the door. From the facts and circumstances, the learned judge concluded that the second accused Criminal Appeal No. S-05(M)-40-01/2017 & 41-01/2017 10 must have realized that he had the offensive drugs and related utensils upstairs inside the room alongside his personal belongings, hence his conduct of running and jumping off the window. [27] Having evaluated the defence of both the accused, the learned judge found that the unsworn statement of the first accused did not amount to a credible defence. Likewise the second accused. The learned judge found that both the accused had not raised a reasonable doubt on the prosecution’s case and had failed to rebut, on a balance of probabilities, the presumption of trafficking under section 37(da) of the DDA. Having regard to the totality of the evidence, the learned judge found that the prosecution had proved the trafficking charges against both the accused beyond reasonable doubt. [28] Both accused were thus convicted and sentenced to death, hence the appeals. The Appeal [29] Learned counsel for the first accused raised the following grounds of appeal:

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(ii) That the charge was amended but was not read and explained to the first accused; and

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(iii) That the prosecution had not proved the power of the first accused to dispose the drugs. [30] In respect of the first ground, learned counsel highlighted the evidence of PW5 that on 21.11.2013 at about 2.00pm, he brought the drug exhibits to Criminal Appeal No. S-05(M)-40-01/2017 & 41-01/2017 11 IPK Kota Kinabalu for purposes of a press conference and on 22.11.2013, he conducted finger dusting before delivering the exhibits to the chemist. It was the submission of learned counsel that PW5 did not explain where he kept the exhibits after the press conference till the next day when he did the finger dusting and before he sent the exhibits to the chemist. Learned counsel contended that in the absence of any explanations which are crucial to the movement of the exhibits, there was a break in the chain of evidence which affect the identity of those drugs. [31] On the second ground of appeal, learned counsel’s complaint was that the prosecution amended the charge to state the correct address of the house, without the charge being read and explained to the first accused. [32] As regards the third ground of appeal, learned counsel submitted that the learned judge erred in her finding that the first accused had the power of disposal when there was no evidence adduced to show that the first accused in fact had the power to dispose the drug exhibits. Our Findings [33] The learned judge had extensively dealt with the issue raised by the first accused on the break in the chain of evidence (see Record of Appeal Vol. 1: pg 21-25). Her Ladyship alluded to the evidence of each of the prosecution witnesses who handled the exhibits, i.e. PW1, PW3, D/L/Kpl Shahril bin Narawi (PW4) and PW5. The learned judge found that the same drugs that were seized and which were marked accordingly, were identified by all the relevant parties handling them. Her Ladyship further found that the substance that was analysed by PW1 were the same drugs seized from the Criminal Appeal No. S-05(M)-40-01/2017 & 41-01/2017 12 accused persons and she ruled that discrepancy in weight per se is not a sufficient ground to discredit the drug’s identity so long as there is no break in the chain of evidence. [34] The issue on the break of chain of evidence arose from the following evidence of PW5 (Record of Appeal Vol. 2: pg. 234): “Q: Apakah yang kamu lakukan terhadap barang kes apabila kamu menerima barang kes tersebut? Saya menyimpan di dalam almari milik saya sendiri selepas dikosongkan tanpa bercampur dengan barang kes yang lain. Seterusnya pada 21.11.2013 jam lebihkurang 2.00 p.m. saya membawa barang kes ke sidang media yang diadakan di IPK, Kota Kinabalu. Seterusnya pada 22.11.2013 pada jam 9.30 pagi bertempat di pejabat pegawai penyiasat IPD K.K. saya bersama barang kes dilakukan proses dusting oleh pihak forensic dan seterusnya saya mengambil barang kes, melabel, membungkus dan menghantar pada hari yang sama barang kes ke Jabatan Kimia. Sampai di Jabatan Kimia jam lebihkurang 3.49 petang, barang kes diserahkan kepada Encik Biling selaku Ahli Kimia.”. [35] In our judgment, the absence of any evidence as to where PW5 kept the exhibits after the press conference until the next day when finger dusting was conducted, did not ipso facto cause a break in the chain of evidence, given that PW5 had also testified as follows in relation to the exhibits (Record of Appeal Vol. 2: pg. 236-237): “Q: Adakah almari tersebut berkunci? Ya. Siapa lagi kah yang mempunyai akses almari tersebut selain kamu? Criminal Appeal No. S-05(M)-40-01/2017 & 41-01/2017 13 Tiada cuma saya seorang saja. Adakah almari tersebut mempunyai kunci pendua? Ya. Siapakah yang memegang kunci pendua tersebut? Saya sendiri. Selain tujuan sidang media, proses dusting dan juga mengambil gambar barang kes serta melabel, adakah pada bila bila masa barang kes dikeluarkan daripada almari tersebut yang dikunci? Tiada. Siapakah yang mengambil gambar barang kes? L/kpl Mc Alister selaku Jurufoto. Bilakah gambar barang kes diambil? Pada 22.11.2013 sebelum dihantar ke Jabatan Kimia lebihkurang 1.00 petang. Dimanakah barang barang kes diambil? Di pejabat saya sendiri. Siapakah yang mengawal barang kes semasa gambar barang kes diambil? Saya sendiri.”. [36] The issue of the identity of drug exhibits raised by the first accused is very much fact sensitive. The learned judge accepted the evidence of the prosecution witnesses that the exhibits had been properly kept and handled. On our part, we were not satisfied that the learned judge erred. The finding of the learned judge on the identity of the drug exhibits was in accord with the law as propounded in Hasbala Mohd Sarong v PP [2013] 6 CLJ 945 and Lew Wai Loon v PP [2014] 2 CLJ 649. Criminal Appeal No. S-05(M)-40-01/2017 & 41-01/2017 14 [37] On the failure to read and explain the amended charge to the accused, we found that this failure was not fatal to the prosecution’s case. The amendment as can be seen from the record of appeal was to add No. 42A to the address of the house. The original charge reads “… Lot 58, Taman Nelly …” whereas the amended charge reads “… No. 42A, Lot 58, Taman Nelly …”. Clearly, the amendment was not substantial. The place where the offence was committed by the first accused remained the same. The amendment did not change the facts. The first accused knew exactly what he was facing. He was able to answer the charge through his unsworn statement. Thus, it cannot be said that the first accused was prejudiced or that the procedural non-compliance with section 158 of the Criminal Procedure Code (CPC) for the amended charge to be read and explained, had occasioned a miscarriage of justice to the first accused which cannot be cured under section 422 of the CPC. Applying section 422 of the CPC, the amended charge preferred against the first accused was not rendered defective in law. We therefore found no merits in the second ground of appeal raised by the first accused. [38] In respect of the third ground of appeal which relates to the issue of possession, we similarly found it to be devoid of merit. The answer to the issue raised on the power of disposal is found in the case of Chan Pean Leon v PP [1956] 22 MLJ 237 where Thomson J said at pg. 238-239: “Possession” itself as regards the criminal law is described as follows in Stephen’s Digest (9th Edition, page 304) – “A movable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the Criminal Appeal No. S-05(M)-40-01/2017 & 41-01/2017 15 exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need.” To put it otherwise, there is a physical element and a mental element which must both be present before possession is made out. The accused must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also be shewn that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so, … Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case.”. [39] The law therefore does not require direct evidence to be adduced to show the power of disposal before the learned judge could make a finding on possession. Her Ladyship was entitled to draw an inference, as she did from the facts and circumstances of the case, that the first accused had the power of disposal and hence the custody and control, and knowledge of the dangerous drugs in the bag that he was carrying. Conclusion [40] Having considered the evidence in totality, we were unanimous in our view that the conviction of the first accused was safe. We therefore dismissed the appeal of the first accused and we affirmed the conviction and sentence of the High Court. [41] As for the second accused, at the outset of the hearing of his appeal, the prosecution offered him a reduced charge for possession of 52.1 grams of Methamphetamine under section 12(2) of the DDA, which offer was Criminal Appeal No. S-05(M)-40-01/2017 & 41-01/2017 16 accepted by the second accused. We therefore set aside the conviction and sentence of the High Court against the second accused. We sentenced him to 10 years imprisonment and 10 strokes of whipping under section 39A(2) of the DDA. Dated: 2nd October 2018 signed (TENGKU MAIMUN BINTI TUAN MAT) Judge Court of Appeal Counsel/Solicitors : For the Appellant: Ram Singh (Kimberly Ye Wanchun with him) Messrs. Ram Singh & Co For the Respondent: Muhammad Azmi b Mashud (Mohd Zain b Ibrahim with him) Deputy Public Prosecutors AG’s Chamber