Muhamad Zafir Bin Kamil v Pendakwa Raya (A-05(M)-199-04/2018, A-05(M)-200-04/2018)

MOHAMAD ALIFF BIN MOHAMED ALIAS CORAM: MOHTARUDIN BIN BAKI, JCA RHODZARIAH BINTI BUJANG, JCA MOHAMAD ZABIDIN BIN MOHD DIAH, JCA 3

The appellants in these two appeals were jointly charged and convicted by the High Court for the offence of trafficking in 5029 grams of cannabis under section 39B(1)(a) of the Dangerous Drugs Act 1952 (“DDA”) and sentenced to death for it. The charge is Bahasa Malaysia reads as follows: “Bahawa kamu bersama-sama, pada 7 Januari 2016 jam lebih kurang 3.30 pagi, di belakang Kedai Makan Restoren Tom Yam Kelapa Muda, No. 28, Hala Taman Meru 11, Taman meru 2B, Ipoh, di dalam Daerah Kinta, di dalam Negeri Perak Darul Ridzuan, telah mengedar dadah berbahaya iaitu sejumlah 5029 gram Cannabis dan oleh yang demikian kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan”. Gist of prosecution’s case

The prosecution’s case against the appellants was built on the evidence of PW2, an agent provocateur who, based on information received from his informer, contacted the appellant in Appeal No. A- 05(M)-200-04/2018, Muhamad Zafir bin Ramli (hereinafter referred to by 4 his nickname as adduced at the trial, that is, Ipin) for the purchase of the drug. The price offered by Ipin was RM2300.00 per kilogram. They both met at an arranged meeting place where the deal was set and on the appointed date, time and place, as in the charge, a second meeting for the delivery of five kilograms of the drug was held. After Ipin was shown the money by PW2 behind a burger shop, he asked PW2 to follow him to a lane behind a Tomyam shop. At that location the appellant in Appeal No. A-05(M)-199-04/2018, Mohamad Aliff bin Mohamed Alias (hereinafter referrred to as Aliff) was also present. Ipin then directed Aliff to hand over a bag (Ex.P 5A) to him, which he then opened to show its content, which were the slabs of cannabis, to PW2. The pre-arranged signal by PW2 prompted the police raiding team present in the vicinity to swoop in on the two culprits. Gist of the defence

Ipin’s testimony under oath was to deny that he was present at the scene. He said at that material time he was with a friend called Peh as well as Aliff in the latter’s house. He then saw these two leaving the house and shortly thereafter, the police came to the house and arrested him as well as seized his handphone. The said handphone was found to be without any Sim card. When he was brought out of the house, he saw that Peh and Aliff had also been arrested by the police. 5 Aliff’s defence, also given under oath, was that he chanced upon Ipin behind the Tomyam shop and was told by Ipin that he wanted to sell a stolen laptop to someone who would be coming shortly. He requested Aliff to get a bag with the stolen laptop from Peh’s house. He did as was told and after handing over the bag to Ipin who was with PW2 then, Aliff left and not long after that he was arrested. It can be seen from the brief summary of both the defences that they were a denial of the commission of the offence. That of Ipin is even a notch higher – he was not even at the place of arrest and bordered on alibi. However that defence of his was impugned by that of Aliff who positively placed him at the scene of the crime and this fact was considered by the learned Judicial Commissioner when Her Ladyship concluded that defence of Ipin failed to raise any reasonable doubt on the prosecution’s case. As for Aliff, she held that he was not an innocent carrier and was guilty of wilful blindness because he did not question Ipin about the content of the bag and there was no reason for the sale of the laptop to be made so early in the morning. The learned Judicial Commissioner also noted that Aliff struggled when he was arrested and this shows knowledge. Bearing in mind that this was a case of direct selling of the drug from the evidence of PW2 as the agent provocateur on the negotiation and the 6 delivery of the same, it cannot be gainsaid that the defence of Ipin should not exculpate him from the charge. As was rightly raised by the learned Judicial Commissioner in her judgment, the Federal Court’s decision in Wan Mohd Azman Hassan v Public Prosecutor (2010) 4 CLJ 529 is that the evidence of an agent provocateur is one worthy of credit as provided under section 40A (1) of the DDA, even though presuming that he is so is rebuttable by evidence to the contrary. We have to say that upon our scrutiny of the evidence, none can be taken to impinge on PW2’s credit worthiness and his evidence on the negotiation and the sale remains intact. As for Aliff, it is a fact that the Investigating Officer (PW6) answered ‘maybe’ to the questions posed by learned counsel for Aliff that he had no knowledge of the content of the bag and thought it was a stolen laptop. This was how the questions were framed: Saya cadangkan bahawa OKT2, tidak mempunyai pengetahuan tentang kandungan dalam beg tersebut Mungkin. Setuju, OKT2 menyangkakan bahawa dalam beg pink tersebut terdapat laptop curi Mungkin. 7 Against that evidence is the evidence of PW2, though disputed by Aliff, that he was present and standing in between Ipin and PW2 when the bag and its content was shown. It was also not disputed that Aliff never brought up the issue about the stolen laptop during the investigation of the case by PW6, DSP Mohd Syukry, although he was cross-examined on this at the trial which evidence we had just referred to above. We also need to mention that Aliff’s counsel also put it to Ipin that Aliff told Ipin he was selling a stolen laptop and that the buyer would come shortly (see page 129 lines 3844 to 3846 of Appeal Record Volume 2). Based on the role played by Aliff and if one were to discount the evidence of PW6 as reproduced above there would indeed be no reason to say the learned Judicial Commissioner was wrong in dismissing his defence of an innocent carrier. However, that equivocal evidence of the PW6 which was never mentioned by the learned Judicial Commissioner in her judgment must, in fairness be construed in favour of Aliff for the benefit of the doubt expressed by no less than the officer tasked with the investigation of the case, must be given to him. Assuming we were wrong to say so, then from the role played by Aliff, one cannot deny that the circumstances were such that the ingredient of common intention under section 34 of the Evidence Act 1950 had been fulfilled by Ipin negotiating the deal with PW2, and the said deal being set by the delivery of the drug 8 by Aliff. As was held by the Federal Court in Krishna Rao Gurumurthi v PP and Another Appeal (2009) 2 CLJ 603, The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case. It has been said that as common intention essentially being a state of mind direct evidence as proof is difficult to procure. Invariably inferences have to be relied upon arising from such acts or conduct of the accused, the manner in which the accused arrived at the scene, the nature of injury caused by one or some of them or such other relevant circumstances available. Indeed the totality of the circumstances must be taken into consideration in arriving at a conclusion whether there was common intention to commit the offence for which the accused can be convicted. The facts and circumstances of case may vary. As such each case has to be decided based on the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. For a charge premised on common intention to succeed it is essential for the Prosecution to establish by evidence, direct or circumstantial, that there was a plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of s. 34 notwithstanding 9 that it was pre-arranged or on the spur of the moment provided that it must necessarily be before the commission of the offence.”. In other words there was from the respective roles played by the two, evidence of a pre-planned action which constituted the act of trafficking as defined in section 2 of the Act, to wit, ‘selling’. Nonetheless, we had after hearing arguments on the appeal decided to not just acquit Aliff but Ipin as well on this one issue which we are certain had rendered the convictions entered by the learned Judicial Commissioner unsafe. Identity of the drug exhibit

We reiterate that it is the prosecution’s case that the five slabs of cannabis were found in the bag brought over by Aliff and handed over to Ipin which was shown to PW2. It was not disputed that five slabs of cannabis were produced in court as exhibits and marked as ExP6(A)ii, P6(B)(ii), P6(C )(ii), P6(D)(ii) and P6E(ii) and they were the very same ones which were sent to the chemist (PW3) for analysis who confirmed that it was cannabis and of the weight as stated in the charge. PW6 also stated that the five slabs were marked and initialled by him after receipt from PW2, that they were in safe custody from then on until they were sent to, then returned by the chemist and until their production in court. However, what was disputed was whether these were the very same slabs 10 seized at the time of the raid and we say that there was a reasonable doubt raised that this was not so for the following reasons. First, photographs of the slabs of cannabis seized (ExP9(C) to (L) at pages 10 to 14 of Appeal Record Vol 3 shows in total 10 slabs of cannabis – not five. Secondly, the evidence of PW5 was that he made a small nick (‘torehan kecil’) at the corner of aluminium cover of each slab but the chemist, PW3 very clearly said in the cross-examination by learned counsel for Ipin that the 5 slabs he received were nicely wrapped. The exact question put to him at page 42 or the Appeal Record Volume 1 were as follows: Semasa memeriksa bungkusan SD1-SD5, bungkusan ini dibalut dengan pita pelekat dan kertas aluminium Betul. Adakah bungkusan-bungkusan dibalut dengan pita pelekat dan kertas aluminium dalam keadaan baik dan tiada kesan koyakan Setuju. Saya katakan pada pemeriksaan pada kelima-lima bungkusan dalam keadaan elok dan tidak dibuka oleh sesiapa melainkan encik Setuju. Bungkusan SD1-SD5 encik buka utuk tujuan analisa Setuju. 11 Saya katakan bungkusan ini SD1-SD5 ada yang telah dibuka terlebih dahulu sebelum encik buka Tidak setuju. (emphasis added) His insistence that the packages were properly wrapped, particularly in respect of the aluminium foil was very damning to the prosecution because it contradicted that of PW5 as stated earlier. Further, from the photographs of the exhibits (IDD26) as produced from the press conference held by PW5 on 7/1/2016, a day before the exhibits were sent to the chemist, there were not just a small nick on the aluminium foil cover of 2 of the slabs of cannabis but a big one (see page 39 of Appeal Record Vol 3). Now although IDD26 was not formerly marked as an exhibit, but PW6 had admitted the authenticity of the same and the failure to do so was therefore not fatal to the issue raised. Based on these evidence there was, in our view, a genuine reason to doubt the identity of the exhibits produced. For the record, PW6 had been challenged in cross examination that the exhibits sent to the chemist were not the ones seized on that day. This challenge, as well as the evidence referred to above appears at page 105 Volume 2 of the Appeal Record and is reproduced below: 12 Saya katakan kelima-lima ketulan dadah yang dihantar ke JKM ini bukanlah dadah yang terlibat dalam tangkapan OKT1 & 2 Tidak setuju. Dalam kes ini ada dibuat sidang akhbar Ada. Bila Rujuk ID siasatan dan keratan akhbar Peguambela : Tidak perlu pada masa ini kerana keratan tiada dalam eksibit. Rujuk Berita Harian Online TPR: Bantah kerana tidak tahu punca daripada mana dan bukan terlibat dalam siasatan dan tiada siapa boleh sahkan salinan ini En Khairil : Percaya saksi boleh sahkan kerana ada gambar saksi Sahkan ini gambar saya. Mahkamah: Teruskan. Boleh baca kandungan repot muka surat 2-3 Gambar dan kandungan betul. 13 The exact same points on the identity of the exhibits when ruled in favour of an accused person and had earned him an acquittal have been decided by the Federal Court and we were appraised of two of them by Ipin’s counsel. In Sia Pang Liong v Public Prosecutor (2013) 2 MLJ 490 this was what was crucially said by the court on this issue: “[10] In this case, it is not true that the identity of the drug exhibits was not disputed by the defence. PW7 was cross-examined on this issue. At p 84 of the record of appeal, PW7 was asked: Saya cadangkan barang-barang kes yang dirampas daripada OKT jika ada bukanlah barang-barang yang ada di Mahkamah hari ini. [11] Thus, the identity of the drug exhibits was being challenged by the appellant. Once there is such a challenge, the prosecution bears the burden of proving beyond reasonable doubt that there are no gaps in the chain of evidence. It is the burden of the prosecution to adduce evidence that the drug exhibits that were recovered from the appellant and that were sent to the chemist for analysis were the same drug exhibits that the appellant was charged with.” (emphasis added) Earlier, in Yusri Pialmi v Public Prosecutor (2011) 4 MLJ 533 this was what the court similarly held: 14 “[11] We would like to categorically state here that the evidence adduced by the prosecution in the present case showed there is a reasonable defect in the identity of the case exhibit which is the subject matter of the prosecution against the appellant. In a criminal trial an accused person is permitted to take every available opportunity to reveal any defect in the prosecution’s case (see the case of Yeong Kia Heng v Pendakwa Raya [1992] 1 MLJ 327. A defect with regard to the identity of the case exhibit in the present case to us is a serious matter. On this ground alone the appellant would succeed in his appeal.” (emphasis added) Hence, on the strength of the case authorities as cited above which we have no reason to distinguish, we have to discharge and acquit Ipin and Aliff for the safety of their convictions had been compromised. Their respective appeals were therefore allowed and the convictions and sentences passed by the learned Judicial Commissioner are set aside. Date : 27 March 2019 signed RHODZARIAH BINTI BUJANG Judge Court of Appeal Malaysia Putrajaya Note: This copy of the Court’s Grounds of Judgement is subject to editorial revision. 15 Parties appearing: For the Appellants: Case No. A-05(M)-199-04/2018 Encik Ariff Azami bin Hussein Messrs Azizzul & Ariff Advocates & Solicitors 12-33A, Plaza Azalea, Persiaran Bandaraya, Seksyen 14 40000 SHAH ALAM SELANGOR DARUL EHSAN Case No. A-05(M)-200-04/2018 Encik Mohamad Hafiz bin Jalaludin (with him Encik Mohd Fitri bin Asmuni dan Encik Mohamad Salihen bin Mastor) Messrs Alif, Hafiz & Partners Advocates & Solicitors No. 24B, Jalan The Hawa, 30300 IPOH, PERAK DARUL RIDZUAN For the Respondent: Tuan Mohamed Faizal bin Mohamed Fedder (with him Tuan Muhammad Azmi bin Mashud, Puan Ku Hayati binti Ku Haron) Jabatan Peguam Negara, Putrajaya Cases Referred to :

Wan Mohd Azman Hassan v Public Prosecutor (2010) 4 CLJ 529

Krishna Rao Gurumurthi v PP and Another Appeal (2009) 2 CLJ 603

Sia Pang Liong v Public Prosecutor (2013) 2 MLJ 490

Yusri Pialmi v Public Prosecutor (2011) 4 MLJ 533