Muhamad Ridha Bin Baharudin v Pendakwa Raya (W-05(SH)-560-11/2018, W-05(SH)-560-11/2018)

In the High Court of Kuala Lumpur, Muhamad Ridha Bin Baharudin was accused of trafficking in 963 grams of cannabis which is an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (“DDA”) and upon his conviction, he was sentenced to life imprisonment under section 38B(2A) of the DDA by the learned High Court Judge (“HCJ”). The said decision prompted the filing of a notice of appeal by both the accused and the Public Prosecutor, against the conviction and sentence by the former and against the sentence by the latter. We heard both appeals together and allowed the appeal of the accused whilst that of the Public Prosecutor was dismissed.

Although my learned brother, Justice Datuk Dr. Haji Hamid Sultan Bin Abu Backer had written a judgment explaining the reasons for our decision, I am moved to write my own in view of my disagreement with respect to a certain aspect of His Lordship’s reasonings. 3 The Prosecution’s Case [3] The foundation of the prosecution’s case against the accused has been laid out in my learned Justice Datuk Dr. Haji Hamid Sultan Bin Abu Backer’s judgment. The gist of it is that the accused was arrested by Corporal Mohd Faizal Bin Mohd Fuzee (PW4) who was patrolling the scene of the crime with four of his teammates. He testified that he was alerted by the suspicious manner of the accused who was then seated on his motorcycle. This was further exacerbated by the accused’s conduct of throwing a sling bag which was in front of him when PW4 identified himself as a policeman. The sling bag was later found to contain the drug as stated in the charge. PW4 made a police report (Exh. P12) on the said arrest and discovery but in which he contradicted himself by stating, unlike his oral evidence as summarised above, that the accused threw the said bag before he introduced himself. PW4 was the only witness called by the prosecution in respect of the said arrest and discovery. Thus the whole foundation of the prosecution’s case rests with him. The above, by no means, was the only discernible weakness of the case for the prosecution for an equally critical problem also arose during PW4’s testimony and that is when he refused to answer questions posed by the accused’s counsel which were crucial to the defence of the accused. 4 The Defence [4] The accused’s defence was that he was not arrested at the place as stated in the charge but in front of the guardhouse of a block of condominium called Kondo Awana Puri, specifically Block A, and where a friend of his, Muhammad Noor Imran Bin Soanan (“Muhammad Noor Imran”) was also arrested by PW4 and his teammates at about the same time and place whilst the latter was in his car. The accused said he was there to meet Muhammad Noor Imran about a job opportunity since he had just quit his job. The accused claimed that the sling bag containing the drug was never with him when he was arrested as testified by PW4. A police report lodged by one of the policemen, Mohamad Hafizul Akhyar Bin Hilmi on the incident was tendered as exhibit by the defence and marked as Exh. D15. In the report it was stated that Muhammad Noor Imran actually handed over to the police a package containing cannabis upon being detained by the policemen.

It is part of the accused’s defence that the drugs seized in this case belonged to Muhammad Noor Imran and learned defence counsel attempted to put questions pertaining to the said arrest of Muhammad Noor Imran to PW4. However as can be seen from pages 70 – 72 of the Appeal Record Volume 2(a), PW4 refused to answer 5 the said pertinent questions. Nevertheless, PW4 was re-examined on the said arrest of Muhammad Noor Imran from pages 77 to 80 of the same Appeal Record eventhough initially when asked to explain the two police reports on the said arrests, PW4 again refused to do so because he said he only came to testify in the accused’s trial (see page 77 line 26 to page 78 line 13 of the same Appeal Record). Arising from all the aforesaid questions by the learned DPP, learned defence counsel asked for and was granted leave by the court to put a question to PW4 that the drugs produced in court was actually seized from Muhammad Noor Imran and not the accused but which PW4 of course disagreed.

Without a need to belabour the issue further, I am in full agreement with my learned brother Justice Datuk Dr. Haji Hamid Sultan Bin Abu Backer that the prosecution has, in view of the infirmities in the evidence of PW4, upon which I again stressed, the case of the prosecution rested upon, no prima facie has been proven against the accused. Granted that the law is trite that evidence is to be weighed and not counted and that no particular number of witnesses needs to be called to prove a fact in court as provided in s. 134 of the Evidence Act 1950, nevertheless the glaring contradiction in PW4’s oral evidence and his police report (Exh. P14) on a very 6 material fact which is the conduct of the accused, coupled with his stubborn refusal to answer the aforesaid questions have impacted negatively on his credibility and accordingly, compromised the strengh of the prosecution’s case. It has also caused injustice to the accused because as held by the Federal Court in Tan Kim Ho & Anor v Public Prosecutor [2009] 3 CLJ 236: “[33] In our adversarial system of justice, the duty of each party is to show that his case is the truth. This is done by him adducing his own witnesses to support his contention. When it is the plaintiff or prosecutor who is adducing the evidence, his witnesses are subject to cross examination by the defence or the accused person. When a prosecution witness makes a statement of fact which is disagreed to by the defence it becomes the defence’s duty to, in whatever way, put to the plaintiff or prosecution witness that what the witness has said is not true. In addition, he could also use the plaintiff’s or prosecution’s witnesses to adduce evidence to support his defence and to indicate what his defence is. This he is required to do to enable the plaintiff or prosecution to bring out evidence to disprove what the defence intends to adduce. If the defence does not in any way indicate by cross examination of those facts, those statements made by the plaintiff’s or prosecution’s witnesses must be accepted as true. Even if the plaintiff’s or prosecution’s witness does not say anything relating to the defence case, it is still the duty of the defence to bring out his case during plaintiff’s or prosecution’s case. In fact this duty to disclose his defence during the prosecution’s case is more relevant in criminal cases than in civil. This is particularly so when the plaintiff or 7 prosecution’s witness is relevant to the fact in issue. In criminal cases, the prosecution does not know what the defence is going to be, except in alibi, until the defence adduces its evidence.

The failure of a party to put questions to his opponent’s material witnesses in cross-examination is said by Gopal Sri Ram JCA in Aik Ming (M) Sdn Bhd & 8 Ors v. Chang Ching Chuen & 3 Ors & Another Case [1995] 3 CLJ 639 to be an abandonment of the pleaded case and may be barred from raising it in argument thereafter.” (emphasis added)

Whilst I fully appreciate the law that the credibility of a witness is primarily within the purview of a trial judge to determine and that an appellate court can only interfere on compelling reasons as held in Lee Ah Seng & Anor v Public Prosecutor [2007] 6 MLJ 1, I believe that the said compelling reason is present here for the reason which I have just canvassed. This I say in spite of the learned HCJ’s finding that the said difference in PW4’s evidence was a slight one and that PW4 had “afforded a plausible explanation.” (See page 18 of Appeal Record Volume 1). As I have said earlier the contradiction is a material one and looking at his evidence in re-examination at page 75 line 10 until page 77 line 11, with respect to the learned HCJ, the explanation given by PW4 on the said contradiction was anything but plausible. The said evidence is reproduced below: 8 “Pemeriksaan semula: Kpl Faizal, semasa disoal oleh Peguam OKT tadi berkenaan dengan P12 pohon dirujuk saksi kepada P12 adalah laporan polis, soalan saya semasa dibacakan oleh peguam kepada Kpl tadi P12 pada tarikh 23.3.2017 jam lebih kurang 2.10 pagi semasa saya bersama anggota sebagaimana tadi dan telah lihat satu lelaki Melayu sedang duduk di atas motosikal sebagaimana dalam report sambil menyandang satu beg berwarna gelap di bahu kiri di Jalan 15/119 Taman Mutiara Barat Cheras saya telah arahkan LKpl 173796 dan LKpl 180150 untuk membuat pemerhatian ke atas lelaki Melayu tersebut 10 minit semasa hendak menjalankan pemeriksaan ke atas lelaki Melayu tadi dalam masa yang sama lelaki telah membuang satu beg sandang dengan tangan kiri ke bahu jalan sebelah kiri. Soalan saya semasa dibaca P12 ini kepada kamu dan dengan keterangan yang telah Kpl berikan kepada Mahkamah tadi, Kpl berkata bahawa setuju versinya adalah berbeza tetapi maksudnya sama. Bolehkah Kpl jelas kepada Mahkamah apa yang Kpl maksudkan versi berbeza tapi maksudnya adalah sama keterangan P12 ini. Saksi: Saya ada beritahu saya hampiri lelaki Melayu tersebut dalam masa yang sama dia telah membuang satu beg sandang P12 ini ada tulis semasa hendak menjalankan pemeriksaan ke atas lelaki Melayu tadi dalam yang masa lelaki Melayu tersebut telah membuang satu beg sandang setelah memperkenalkan diri sebagai anggota polis setelah menunjukkan kad kuasa. T{R” Faizal, jawap soalan saya kamu kata versi berbeza maksudkan sama jelaskan dengan ringkas. Saksi: Saya hampiri saya tunjukkan kad kuasa pada lelaki Melayu tersebut pada masa yang sama dia telah 9 membuang satu beg. Di report ini pula YA, semasa hendak menjalankan pemeriksaan ke atas lelaki Melayu tadi dalam masa yang sama lelaki Melayu tersebut telah membuang satu buah beg sandang dengan tangan kiri saya bersama anggota polis hampiri lelaki Melayu tadi dan jalankan tangkapan setelah memperkenalkan diri sebagai anggota polis dan menunjukkan kad kuasa polis. Jadi? Saksi: Di sini saya beritahu setelah memperkenalkan diri. Jadi maksudnya? Saksi: Samalah setelah memperkenalkan diri sebagai anggota polis. Perkataan setelah itu YA. Mahkamah: Rujuk saksi kepada P12. S: Semasa dibaca P12 dan dengan keterangan lisan versi adalah berbeza dan maksudnya berbeza. J: Maksud saya lelaki Melayu tersebut dalam masa yang sama telah membuang beg sandang setelah memperkenalkan diri sebagai anggota polis. Jadi maksudnya samalah.” As was held by Raja Azlan Shah FCJ in PP v Datuk Haji Harun Bin Haji Idris (No. 2) [1977] 1 MLJ 15 there will always be discrepancies in a witness’s testimony. The question is, said His Lordship, whether the existence of certain discrepancies is sufficient to destroy the witness’s credibility and I say that in this case it has, because the contradiction is not a minor one for it has a bearing on the conduct of the accused which is a relevant consideration on his culpability as decided in Parlan Dadeh v PP [2009] 1 CLJ 717. 10

In addition to the above factors, there is another one evidence which further adds to the weakening of the prosecution’s case, particularly when viewed in relation to PW4’s evidence on the accused throwing the sling bag. That evidence is from the testimony of the Investigation Officer, Insp. Mohd. Alifth Bin Abu Hassan (PW5) who said that the exhibits seized from the accused, which includes the sling bag of course, was negative of fingerprints as determined by the Forensic Unit of Kuala Lumpur Police Headquarters. Now, although fingerprint evidence is merely corroborative in nature as held by this court in Okonkwo Ugochukwu Stephen v PP [2019] 1 LNS 190 but here the evidence of PW4 is that the accused held the sling bag and threw it. Therefore his fingerprints should, at least, be on the sling bag and the absence of it lends credence to the defence allegation that he was not arrested with the said bag. Based on my consideration of the facts and the law above, the accused’s defence should not even be called. It is an equally trite law in a criminal case that the duty of the court is to ensure that the conviction is safe and I am again in agreement with my learned brother Justice Datuk Dr. Haji Hamid Sultan that it was not so in this case for the reasons as stated above.

However, with all due and much respect to my learned brother Justice Datuk Dr. Haji Hamid Sultan Bin Abu Backer, I am not in 11 agreement with what is stated in paragraph 7 of his judgment which reads: “[7] In addition, the jurisprudence stated in the supporting judgment of the Court of appeal in the case of PP v. Aluma Mark Chinonso (Nigerian) and Anyim Daniel Ikechukwu v. PP [B-05(LB)-449-09/2018 & B-05(M)-449-09/2018] must also be considered in favour of the accused wherever it is applicable.”

The reason for that is because the issues and consideration raised in the cited cases (which appeals we heard jointly) were never argued before us and again with much due respect to my learned brother Justice Datuk Dr. Haji Hamid Sultan Bin Abu Backer, I am of the humble opinion that incorporating it in this judgment, or for that matter in the said cited judgment itself because similarly they were never raised in the appeals before us there too, was unwarranted then, and now. I hold the said view because the parties before us in the said cited cases and now in this appeal were never accorded the right to be heard and to ventilate their own views on the jurisprudence with respect to the constitutionality of the death sentence expressed by my learned brother Justice Datuk Dr. Haji Hamid Sultan Bin Abu Backer in the cited cases. It is for the above reason that I have decided to write this separate judgment to express my clear stand on the said paragraph 7. I am fortified by the course of action I take from the 12 words of Siti Norma Yaakob, FCJ (as Her Ladyship then was) in Dato’ Seri Anwar Ibrahim v Public Prosecutor [2004] 3 MLJ 517 at page 535 which reads as follows: “[60] As an extension of the arguments of the learned Attorney-General, who appeared for the respondent, it is my considered opinion that s 94(2) does not prevent or debar separate written judgments being given by the other members of the corum even though the consensus reached had been a unanimous one. This is so as the reasons relied on to arrive at the unanimous conclusion need not necessarily be the same for each member of the corum and it is only through the separate judgments that the differing reasonings can be expressed.”

My learned sister, Justice Dato’ Hadhariah Binti Syed Ismail has read this judgment and has expressed her concurrence with the same.

In conclusion, I reiterate our unanimous decision that the appeal of the accused be allowed and a fortiori, that of the Public Prosecutor be dismissed. Signed. (RHODZARIAH BINTI BUJANG) Judge Court of Appeal Malaysia Putrajaya Date: 23/07/2020 13 Parties Appearing: For The Appellant: En. Mohd Haijan Omar Mr. Ravin Jay [Messrs Haijan Omar & Co.] For The Responden: Tn. Muhammad Azmi Mashud, DPP [Attorney General’s Chambers] Cases Referred To:

Tan Kim Ho & Anor v Public Prosecutor [2009] 3 CLJ 236;

Lee Ah Seng & Anor v Public Prosecutor [2007] 6 MLJ 1;

PP v Datuk Haji Harun Bin Haji Idris (No. 2) [1977] 1 MLJ 15;

Parlan Dadeh v PP [2009] 1 CLJ 717;

Okonkwo Ugochukwu Stephen v PP [2019] 1 LNS 190;

Dato’ Seri Anwar Ibrahim v Public Prosecutor [2004] 3 MLJ 517.