Thenagaran A/L Ganapathy v Pendakwa Raya (B-05(M)-64-02/2017)

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1 IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. B-05(M)-64-02/2017 BETWEEN THENAGARAN A/L GANAPATHY …APPELLANT AND PUBLIC PROSECUTOR …RESPONDENT HEARD TOGETHER WITH CRIMINAL APPEAL NO: B-05(M)-66-02/2017 BETWEEN RAM SINGH A/L JIGIR SINGH …APPELLANT AND PUBLIC PROSECUTOR …RESPONDENT 2 (In The Matter Of The High Court Of Malaya At Shah Alam Criminal Trial No. 45A-222-12/2013 Between Public Prosecutor

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(ii) inside the white coloured sack (with a picture of a chicken and the printed words ‘Garam Halus Australia’), a white/green coloured bag printed with the words ‘Shan-Shui Golf & Country Club’, 5 slabs of compressed dried plant materials suspected to be ganja. [30] The government chemist, SP-3 (Puan Norhaya binti Jaafar), upon analysis found that the said compressed dried plant materials were cannabis weighing 14,418 grammes, a dangerous drug as defined in s.2 of the DDA (herein after referred to as ‘the said drugs’). Her report is exhibit P17. [31] At the end of the prosecution’s case, the learned trial judge found (at p.36, Jilid 1, Rekod Rayuan (RR)): “21. Mahkamah ini mendapati keseluruhan keterangan saksi-saksi pendakwaan adalah konsisten, bermula dari panggilan telefon yang dibuat oleh SP4 dengan Tertuduh Pertama, pertemuan pada 7/5/2013 antara Tertuduh Pertama dengan SP5 dan AP2, dan pertemuan pada 18/5/2013 antara Tertuduh Pertama dengan SP5 dan AP2 sehingga dadah yang dibawa oleh Tertuduh Kedua di hadapan Restoran New Hailam Kopitiam 11 yang membawa kepada tangkapan dan rampasan barang kes telah menunjukkan penglibatan Tertuduh Pertama dan Tertuduh Kedua di dalam pengedaran dadah di dalam kes ini. Didapati keterangan kesemua saksi pendakwaan adalah ‘unshaken’ dan tiada apa-apa alasan yang boleh menunjukkan keraguan atau mereka menganiayai kedua-dua Tertuduh. …………

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(ii) While having his drink, the 1st appellant saw ‘Aci Boy’ outside the said Kopitiam, sitting astride on a motorcycle. He approached Aci Boy and conversed with him. He identified SD- 3, Selvakumar a/l V. Subramaniam, as Aci Boy.

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(iii) Next, the 1st appellant saw Aci Boy throwing his mobile phone he had with him and then left the scene on his motorcycle. He picked up Aci Boy’s mobile phone (exhibit P33) and was almost immediately arrested by the police.

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(iv) The police seized the said mobile phone, where it was later found to have the registered telephone number ‘0102735928’ which was used in the drug transaction with SP-4.

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(ii) Ganesh later joined in for lunch. He rode a Honda EX5 motorcycle bearing the number WXW 5431.

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(iii) As they were about to leave the restaurant after finishing their lunch, he heard Ganesh telling SD-3 that he had wanted to send the motor spare parts he had in the basket carrier of his motorcycle to his customer in Pandan Jaya. Ganesh enquired about the place and SD-3 responded that he knew the area. They left together for Pandan Jaya.

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(iv) Upon reaching the Petronas MRR2 station, Ganesh stopped his motorcycle and hastily proceeded to the toilet whilst simultaneously requesting the 2nd appellant to continue and follow SD-3 on his (Ganesh) motorcycle to send the motor spare parts to its destination.

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(vi) The 2nd appellant also testified that he did not know the 1st appellant at all. The Testimony Of SD-3 (Selvakumar a/l V. Subramaniam/Aci Boy [35] SD-3’s name was bandied around by both the appellants. Consequently he was called to testify for the defence. However, on account of apparent inconsistences/contradictions in his testimony in court and his statement taken under s.112 of the Criminal Procedure Code (‘CPC’), exhibit P47, the learned Deputy Public Prosecutor (‘DPP’) had applied for the impeachment of his credibility. [36] The learned trial judge after referring to several leading authorities (PP v Scott Allen Hazlett & Ors. [2005] 3 CLJ 47; Dato’ Mokhtar bin Hashim & Anor v PP [1983] 2 MLJ 232; Yuill v Yuill [1945] P15; Muniandy & Ors v PP [1966] 1 LNS 110)) allowed the said application. In para 56.4 of his grounds of judgment (p.63, Jilid 1, RR) the learned trial judge found: “Berpandukan kepada prinsip-prinsip di atas, Mahkamah ini telah dengan berhati-hati mempertimbangkan keterangan SD-3 secara keseluruhan selepas beliau diperiksa dalam perbicaraan bersama-sama keterangan lain termasuklah keterangan dalam kes pendakwaan dan Mahkamah ini memutuskan kredibiliti SD3 telah tercabar dan mendapati SD3 adalah saksi yang tidak kredibel serta Mahkamah ini menerima keterangan SP-8 yang merupakan seorang pegawai penguatkuasaan dalam menjalankan tugasnya dengan merujuk kepada Public Prosecutor v Mohamed Ali [1962] MLJ 257 yang menyatakan: 15 “When a police witness says something that is not inherently improbable his evidence must in the first instance be accepted…..if his evidence is contradicted by other evidence or is shaken by cross-examination then it becomes the business of the Magistrate to decide whether or not it should be accepted. In the absence of contradiction, however, and in the absence of any element of inherent improbability, the evidence of any witness, whether a police witness or not, who gives evidence on affirmation should normally be accepted”. (Penekanan ditambah) [37] We have scrutinised the evidence and the procedures adopted by the learned trial judge in the impeachment proceedings. We concluded that there was no room to warrant our interference. [38] At the end of the defence’s case, the learned trial judge found (at pp. 71, 72, Jilid 1, RR): “Mahkamah ini telah memberi pertimbangan teliti kepada keterangan dalam kes pembelaan dan membuat penilaian semula ke atas keterangan kes pendakwaan di akhir kes pembelaan ini, dan telah mendapati pembelaan Tertuduh Pertama dan Tertuduh Kedua masing-masing gagal menimbulkan sebarang keraguan yang munasabah terhadap kes pendakwaan. Oleh yang demikian, Mahkamah ini memutuskan bahawa pihak pendakwaan telah berjaya membuktikan kesnya di tahap melampaui keraguan yang munasabah terhadap Tertuduh Pertama dan Tertuduh Kedua atas pertuduhan yang dikenakan di dalam kes ini”. 16 The Appeals Before Us [39] The 1st appellant’s ground of appeal was pivoted on the following:

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(ii) common intention to commit the offence within the meaning of s.34 of the Penal Code with the 2nd appellant was not proven; and

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(iii) The prosecution’s failure to produce Ganesh was fatal. [40] Meanwhile, the 2nd appellant ventilated the following:

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(ii) common intention between the 1st and 2nd appellant to commit the offence was not proven; and

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(iii) The prosecution’s failure to call Ganesh was fatal. 17 Custody, Control and Knowledge [41] On the issue of custody or control and knowledge of the said drugs, learned counsel for the 1st appellant submitted that at the time of arrest, the 1st appellant was away from the place where the drugs were found and later seized. The drugs were on the 2nd appellant’s motorcycle, whereas the 1st appellant was at the side of SP-5’s Vios motorcar. Therefore, there was no delivery. In addition, there was no evidence of any communication between the 1st appellant and the 2nd appellant. There was equally no evidence either of any communication between the 1st appellant and SP-5 or AP2. Further, the evidence showed that SP-4 did not know the 1st appellant. SP-4 also did not know with whom he was communicating with in the purported drug transaction. There was also no evidence that the 1st appellant had shown the drugs to SP-5 or AP2. It was finally submitted that in all the circumstances of the case, the prosecution had failed to prove that the 1st appellant had custody or control and knowledge of the said drugs at all material times. [42] Meanwhile, learned counsel for the 2nd appellant submitted that the 2nd appellant was never present in any of the meetings between SP-5, AP2 and the 1st appellant pursuant to the purported drug transaction. He only appeared on the day of his arrest (on 18.5.2013), riding motorcycle 18 number WXW 5431, closely following motorcycle WTH 2896 and was instructed to stop by the rider of motorcycle WTH 2896 at the designated location. Further, there was no communication between the 1st and 2nd appellant at all material times. Equally, both SP-5 and AP2 had never communicated with the 2nd appellant. [43] It was further submitted that the motorcycle ridden by the 2nd appellant was Ganesh’s and he went to the designated location upon Ganesh’s request to send the spare parts to Ganesh’s customer. And, once he stopped at the location designated by the rider of WTH 2896, he was pounced by the police almost immediately. The 2nd appellant had at no time opened the box and sack and therefore, had no knowledge of its contents. He had custody or control of the said box and sack only momentarily. In addition, the learned trial judge did not infer or presume knowledge of the contents of the box and sack although the 2nd appellant had custody or control of the box and sack containing the said drugs. [44] It was finally submitted that the learned trial judge erred when he found that the 2nd appellant’s evidence in respect of the existence of Ganesh was an afterthought when in the fact Ganesh existed and the role played by him was neatly put to the prosecution witnesses. 19 [45] We have thoroughly scrutinised the appeal records and we were satisfied that the evidence showed that the 1st appellant was involved in trafficking of the said drugs by way of direct sale from the very beginning when the scheme was first initiated by SP-4. [46] The 1st appellant was involved in the first tele-conversation (on 6.5.2013) of the sale of the said drugs with the SP-4 where it led to the first meeting between SP-5, AP2 and the 1st appellant on 7.5.2013. [47] The 1st appellant met SP-5 and AP2 on 7.5.2013 pursuant to the said first tele-conversation. The discussion in this first meeting was dominated by the purported sale of drugs. The 1st appellant even informed both SP-5 and AP2 that “Barang kami memang cantik…kalau tak cantik u boleh return….tak payah risau….kita main kiri kanan. Kalau u mahu barang mesti datang sini. Biasa di deretan kedai ini juga….” [48] On 8.5.2013, SP-4 received a phone call from the 1st appellant. Now, the cost of 1 kilogram of ganja was agreed at RM2,150.00 being the first transaction. The 1st appellant assured SP-4 of further discounts in subsequent transactions. 20 [49] On 13.5.2013, SP-4 received another phone call from the 1st appellant. Now, the 1st appellant wanted to know the amount of ganja that SP-4 had wanted to purchase and the actual date of delivery of the said purchase. SP-4 replied that he wanted 20 kilograms of ganja and he would take delivery of the same upon receiving payments from his customers. [50] On 16.5.2013, the 1st appellant yet again called SP-4. Now, he informed SP-4 that he had only 15 kilograms of ganja for sale/delivery. [51] On 17.5.2013, SP-4 called the 1st appellant notifying him that SP-5 and AP2 would collect the 15 kilograms of ganja on 18.5.2013. It was also mutually agreed the rendezvous would be at Petronas MRR2 station, Ampang, between 12.00 noon to 1.30 p.m. [52] The events on 18.5.2013 was most telling. It is worth repeating the course of events to show the extent of the 1st appellant’s custody/control and knowledge of the drugs he is dabbling in. At the Petronas MRR2 station the 1st appellant, riding pillion on motorcycle number WTH 2896, got down from his motorcycle and entered and sat at the rear seat of 21 SP-5’s motorcar and asked “mana duit bang”. The 1st appellant was shown the money by SP-5 and subsequently, after the initial proposal to go elsewhere for the delivery of the said drugs was rejected by SP-5, told SP-5 to go to New Hailam Kopitiam while awaiting for his friend to bring the drugs. [53] Once inside New Hailam Kopitiam, the 1st appellant received a phone call. Soon after the 1st appellant told SP-5 that “…Bang kawan saya dah nak sampai, mari kita keluar. U nanti buka bonet kereta. Kawan saya terus akan masukkan ganja itu dalam bonet kereta”. [54] SP-5, AP2 and the 1st appellant left the Kopitiam and stood beside SP-5’s motorcar which was parked outside the Kopitiam and waited for the arrival of the 1st appellant’s friend. [55] Then two motorcycles arrived at the location. The motorcyclist ahead indicated to the motorcyclist at his rear, ridden by the 2nd appellant, to stop at the rear of SP-5’s motorcar. The 2nd appellant did so and introduced himself as Ram Singh. 22 [56] SP-5 examined the box and sack brought by the 2nd appellant in his motorcycle’s carrier. He then scratched his head to indicate that the 2nd appellant had indeed delivered the said ganja as negotiated and agreed between SP-4 and the 1st appellant. [57] The narrative repeated above clearly showed that the 1st appellant knew exactly what he was dabbling in and with whom (SP-4). He knew what he was selling to SP-4. He indicated the amount of drugs he had for sale. He indicated the purchase price of the drugs per kilogram. He also arranged for the delivery of the said drugs in the most meticulous fashion. He eliminated the chances of being conned by SP-4 by making sure that the purchase money was there. He eliminated the risk of being arrested by the authorities by changing the location for the delivery of the said drugs. And, finally he delivered the drugs to SP-5 as promised and as was agreed between him and SP-4 over the telephone on 17.5.2013. [58] The narrative equally showed that the 1st appellant had full knowledge of the sale of the drugs he had entered with SP-4. At the Kopitiam, he had clearly informed SP-5 and AP2 that his friend will deliver the drugs to the said place and forthwith put the drugs in the bonnet of SP-5’s motorcar to complete the sale. 23 [59] It was not a coincident that the 1st appellant was at the scene of crime together with the 2nd appellant, SP-5 and AP2. He was there as part of the grand design in the drug sale devised by both the appellants and the other accused person still at large. He was there to see to it that the sale was fully completed with the delivery of the said drugs to SP-5. [60] The narrative also showed that the 1st appellant was in complete control of the said drugs. Although the said drugs was not physically with him, it showed that the 1st appellant was still able to control the movement of the said drugs. He managed to alter the initial delivery location from the Petronas MRR2 station to a new location in front of New Hailam Kopitiam. It is clear that in all the circumstances of the case, the first appellant had all the intention of dealing with the drugs as if it belonged to him. [61] We are of the view that there is nothing in law to suggest that one must have physical control or custody of the drugs before he or she can be said to be in control or having in custody of the said drugs. 24 [62] Hence, it is immaterial that the 1st appellant was away from the drugs at the time of its delivery by the 2nd appellant or at the time of the 1st appellant’s arrest. The 1st appellant was in control of the said drugs for he had taken all the necessary steps for the possible delivery of the said drugs to SP-5. Indeed there was actual delivery of the drugs when the 2nd appellant stopped behind SP-5’s motorcar to deliver the drugs. The Court in Faiz Khairudin v PP [2011] 5 CLJ 509 followed the Federal Court decision of Wan Marzuki Wan Abdullah v PP [2013] 1 CLJ 177 and held that the acts of the appellant in bringing the drug to PW-9’s motorcar after they had agreed with the price of the drug earlier when taken cumulatively constituted actual delivery. [63] In Wan Marzuki Wan Abdullah v PP (supra) what the appellant did was to place the bag containing the cannabis on the cement floor near PW-5. It was then argued that the acts of the appellant did not amount to sale of the drugs as there was no actual delivery as the appellant did not hand over the drug to PW-5. The Federal Court approved the approach taken by Gopal Sri Ram JCA (as he then was) in Wan Marzuki Wan Abdullah v PP [2008] 4 CLJ 631 where his Lordship said: 25 “[5] In our judgment whether there is actual delivery is a question of fact and of degree. It depends on the particular facts of an individual case. Varying fact patterns may be envisaged. An accused may physically hand the drug to the buyer (usually an agent provocateur). Or he may place it near the buyer. Or he may make it readily available for the buyer to take control of it as happened in Sa’ari Jusoh. Or he may place it in a vehicle or a room and hand the keys to the same to the buyer. In all those cases there is actual delivery. There may be cases where delivery is constituted by more than one act. Take this very case. The acts of the appellant in bringing the drug to the petrol station and placing it near PW5 when taken cumulatively constitute actual delivery”. [64] In so far as the 2nd appellant is concerned, he was spot on. Of course he had never cross path with or have had any discussion with SP- 4 or SP-5 nor AP2. Nor were there evidence of communication between him and the 1st appellant. But his conduct was verily consistent with what the 1st appellant had told SP-5 after he received a phone call while inside New Hailam Kopitiam that “…Bang kawan saya dah nak sampai, mari kita keluar. U nanti buka bonet kereta. Kawan saya terus akan masukkan ganja itu dalam bonet kereta…”. [65] True enough the 2nd appellant arrived at the scene soon after with the drugs as was told by the 1st appellant to SP-5. From the facts and circumstances, the only inference irresistibly to be had was that the 2nd appellant knew exactly what he had in his possession inside the box and sack, placed in the basket carrier of his motorcycle. He had in his 26 possession almost 15 kilograms of drugs, the amount the 1st appellant had agreed to sell and deliver to SP-4 and the amount accepted by SP-4. He had stopped behind PW-5’s motorcar in complete obeyance of the directive coming from the other accused person still at large. [66] The acts of the other accused person still at large and the acts of 2nd appellant cannot be seen in isolation. It must be assessed in tandem with the acts of the 1st appellant in particular when he shifted the point of delivery from Petronas MRR2 station to New Hailam Kopitiam and PW- 5’s testimony that the 1st appellant told him that his friend will bring the drugs to them and subsequently requesting SP-5 and AP2 to come out of New Hailam Kopitiam to meet the said friend, whereupon the 2nd appellant arrived soon after with the drugs. [67] Again, it is not coincidental that the 2nd appellant and the other accused person still at large were at the scene on some other pretext. He was there with the 1st appellant, SP-5, AP2 and the other accused person still at large as part of the grand design devised by both the appellants and the other accused person still at large to make good the drug sale transaction. The 2nd appellant was there to fulfil his part of the bargain to effect delivery of the drugs to complete the sale of the drugs. 27 Common Intention Of The Both Appellants [68] The learned trial judge in his grounds of judgment at pp. 39, 40, 41 and 46, Jilid 1, RR, had alluded to several passages in Sabarudin Non v PP & Other Appeals [2005] 1 CLJ 466, Namasiyiam & 3 Ors v PP [1987] 2 MLJ 336 and Wan Yurillhami Wan Yaacob & Anor v PP [2010] 1 CLJ 17, regarding the constitution and purport of criminal liability under s.34 of the Penal Code, commonly known as common intention. [69] The gist of these high authority relating to common intention would suggest the presence of a pre-concert or pre-planning to commit the offence and such plan must precede the act constituting the offence. There must be a meeting of minds of the offenders in furtherance of their common intention to commit the offence and that such pre-concert or pre-planning may develop on the spot or during the course of the commission of the crime. [70] The section is also intended to make a person liable for the commission of an offence not committed by him but by another person with whom he shared the common intention – see Suresh v State of Uttar Pradesh AIR [2001] Sc. 1344. Further, the presence or existence of 28 common intention is a question of fact to be proved mainly as a matter of inference from the surrounding circumstances of the case. [71] From the narrative enumerated in paragraphs 45 to 67 above, we were satisfied that both the appellants and the other accused person still at large were acting in concert in furtherance of their common intention to traffic in the said drugs through a direct sale of the same to SP-4. [72] Both the appellants’ presence together with the other accused person still at large at the scene of crime were not coincidental and taken cumulatively, were concerted efforts in furtherance of their common intention to traffic in the said drugs. Their presence were part of their grand design to traffic in the said drugs. It culminated in the 2nd appellant’s delivery of the drugs at the location determined by the 1st appellant. [73] The 1st appellant initiated and took every practical steps and measures for the possible delivery of the drugs. And, the 2nd appellant with the other accused person still at large, in furtherance of their common intention, had acted with precision to make or effect the actual delivery of the drugs. Indeed, the drugs were actually delivered by the trio as agreed 29 and concretised between the 1st appellant and SP-4. In addition, what was delivered was consistent with the nature of the drugs purchased, the amount of the drugs purchased, the mutually agreed purchase price and the location of the delivery point of the drugs initially agreed between the 1st appellant and SP-4. [74] For all the reasons given we were in full agreement with the findings of the learned trial judge, where at p. 47, Jilid 1, RR, he stated: “36. Justeru itu, Mahkamah ini memutuskan bahawa perbuatan Tertuduh Pertama dan Tertuduh Kedua di dalam kes ini mempunyai niat dan perancangan bersama yang dapat dilihat melalui peranan setiap Tertuduh pada hari kejadian melalui keterangan yang diberikan oleh SP4, SP5, SP7 dan SP8 bahawa mereka berdua telah dengan niat bersama untuk mengedar dadah tersebut.