Abbas Dehghani Ebrahim v Pendakwa Raya (B-05(M)-147-04/2017 (IRN); B-05(M)-149-04/2017 (IRN))

The appellants in these two appeals which were jointly heard are Iranian nationals who were jointly charged and then convicted of a charge under section 39B of the Dangerous Drugs Act 1952 (“DDA”). The charge, in Bahasa Malaysia reads as follows: “Bahawa kamu, bersama-sama pada 6 November 2012, lebih kurang jam 6.30 petang di Bay Pemeriksaan Kastam Import/Eksport, Zon Perdagangan Bebas, Lapangan Terbang Antarabangsa Kuala Lumpur (KLIA), di dalam daerah Sepang, di dalam negeri Selangor Darul Ehsan telah mengedar dadah berbahaya iaitu Methamphetamine anggaran seberat 3500 gram dan dengan itu 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, yang dibaca bersama seksyen 34 Kanun Keseksaan”. 3

For ease of reference the two appellants would be referred to by their first names in this judgment where we set out the reasons for affirming the convictions and sentences passed by the learned High Court Judge after discussing their respective appeals. The Prosecution’s Case

The facts leading to the discovery of the drugs and the arrests of Abbas and Benham are largely undisputed. On the day and time in question they had gone to the MAS Cargo Office with the intention of collecting a consignment containing an assortment of crockeries described as “Box of Dishes” in two courier documents named Air Waybill and marked as ExP10 and ExP11, respectively at the trial. On ExP10 the consignee’s name is one Nader Dehghan and the sender, David Ziaee. ExP11 is the same Airway Bill but with the consignee’s name changed to ‘Abbas’. The said consignment which consist of 6 small boxes containing dishes, glasses and mugs was opened for inspection by a Customs Officer (PW7) who, upon being alerted by the presence of powdery substances on these crockeries, conducted a further examination of the contents and 4 discovered the drug. This was later sent for analysis to the chemist (PW3) who confirmed that it was the type of drug and of the weight as stated in the charge.

At the close of the prosecution’s case, the learned High Court Judge ruled that just by the mere fact that they went there to collect the said consignment, the prosecution had failed to prove that Abbas and Benham had possession of the impugned drugs and he therefore discharged and acquitted them of the said charge. His Lordship was of the view that the failure of the Investigation Officer (PW8) to investigate the sender and the recipient stated on the Airway Bills was fatal to the prosecution’s case. He further opined that the alteration on ExP11 to substitute Abbas’s name as consignee in place of its original was based on a telex received by the office of MAS Cargo which was not produced. We pause here to note that a telex on the name change was tendered as ExP14 at the trial (see page 113 of Volume 3(2) of the Appeal Record). Therefore there was, said His Lordship, no explanation of the circumstances and reasons for the said substitution. However, that decision of his was reversed on appeal by this court who ordered Abbas’s and Benham’s respective defences to be called. 5 The Defences In Gist

In his sworn evidence, Abbas denied any knowledge of the drug and said he was merely accompanying Benham whom he had earlier helped to register an oil and gas company in Malaysia and who took over the premises of Abbas’s own company here in Malaysia. Sometime at the end of October 2012, he said Benham called him from Iran and asked to put Abbas’s handphone number on a package containing kitchen utensils that he was sending from Iran because Benham wanted to stay and rent a house in Malaysia. When the consignment arrived and he received the call, Abbas said he did inform Benham that the name of consignee was wrong and Benham said he would have it changed to his name. Abbas denied telling the caller to have his name substituted as the consignee. On the day in question, he said he was persuaded by a fellow Iranian to accompany Benham to collect the parcel as the latter was not conversant in English. It was only at the Cargo Office that he discovered his name had been substituted as the consignee.

(6)

The learned High Court Judge rejected both their defences which His Lordship said was essentially pointing a finger at each other. He pointed out the fact that the Airway Bills contained both their information that is the handphone number of Abbas and the office address of Benham, although none were originally named as the consignee of the parcel. Although Abbas denied asking his name to be substituted as the consignee, the clerk from Mas Kargo Logistik Sdn Bhd (PW5) said the man answering the call he made to the handphone number stated in the Airway Bill upon the arrival of the consignment, identified himself as Abbas and had asked for his name to be substituted from that of the named consignee on the Airway Bill. The learned High Court Judge chose to believe PW5’s testimony as being more probable and by reason thereof, there was, said His Lordship, admission of Abbas that he was the recipient of the package. Whilst Abbas claimed that he dealt with the Customs 7 Officer (PW7) based on Benham’s request, Benham said he merely stood idle and only helped to carry the boxes to the taxi, driven by PW2, that they used to go there.

The learned High Court Judge then concluded his evaluation of the defence as follows:- “14. In considering the totality of the evidence both of the prosecution and defence, the court concluded that both the accused played an equal role in right from collecting the package from the MAS cargo until the inspection carried out by the customs officer discovering the concealed dangerous drugs.

In assessing and evaluating the entire evidence in this case a picture that emerged showed that both the accused acted in concert in bringing the dangerous drug in to the country thus satisfying the charge of trafficking as well as common intention.

Section 2 of the Dangerous Drugs Act defines trafficking to include the doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, 8 buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug otherwise than under the authority of this Act or the regulations made under the Act;

Mens rea against both accused could be inferred from the manner the drugs were concealed in between the crockery and the painstaking planning done by both the accused by having the package sent from Iran and collecting it at the MAS cargo in Malaysia.

Common intention can be inferred from the fact that both the accused knew each other and by their own admission the 2nd accused had taken over the tenancy of the office of the 1st accused. Further the fact that the Airway Bill contained particulars of both the accused speaks volume of their complicity. Finally both the accused going together to collect the package lends great credence to the fact that both the accused acted in concert.” 9

Before us learned counsel for Abbas raised three issues which he submitted compromised the conviction of his client and which Benham’s counsel also adopted in addition to his own written submission The said issues are:-

Proceeding with Benham’s defence in the absence of Abbas’s counsel;

(ii) Non-appreciation of Abbas’s defence;

(iii) Failure to make a finding of presumed or direct trafficking. Absence of counsel

It is not disputed that on the day fixed for re-examination of Abbas by his then counsel, that proceeding was adjourned as learned counsel was sick and instead of adjourning the trial to another date, the learned High Court Judge ordered Benham to proceed with his defence despite Abbas’s protest that his counsel was not present. This course of action had compromised the fair trial in respect of Abbas, submitted his present counsel before us, and a further infirmity of the trial was Abbas’s complaint of the quality of interpretation. In respect of that latter complaint, we noted that remedial action was taken by 10 the learned High Court Judge for a new interpreter and who was appointed and Benham’s counsel was allowed to re-ask his questions. Thus there was nothing left to consider on our part. However, learned counsel for Abbas submitted there was still unfairness in the conduct of the trial because of not just the absence of his counsel as stated earlier but because on the resumption of the hearing on 19/9/2016 (see page 388 Volume 2(5) of the Appeal Record), the learned High Court Judge directed that Abbas be re-examined, Benham was further examined, then cross-examined by the learned Deputy Public Prosecutor before finally being re-examined by his counsel. The trial was therefore fractured and there was further prejudice said his counsel when Benham was allowed “to give evidence on certain aspects and given that his entire evidence was fraught with inaccuracies, it should be expunged.”

On that last complaint, with respect, there was no legal basis to expunge the evidence of witnesses just on the aforesaid ground and which evidence were not even highlighted in either the written submission of counsel nor in the oral one before us. As for proceeding with Benham’s defence in the absence of Abbas’s 11 counsel and the allegation of the fractured trial, these could not be so serious so as to prejudice and nullify a fair trial for Abbas because his counsel was given a transcript of what was said by Benham during his absence and was given the opportunity to cross-examine him when the trial resumed. Further as stated earlier, he was present when Benham was being cross-examined by the learned Deputy Public Prosecutor and during the re-examination by Benham’s counsel. This court’s decision in Ogbodo Sunday Tochukwau v Public Prosecutor & Other Appeal [2016] 9 CLJ 686, as quoted by Abbas’s counsel, which held that: “[86] In our view, the learned trial judge had ignored the requirement of a fair trial and had breached the essence of s.255 of the CPC. There is no legal impediment then to prevent counsel from defending the second accused. We were of course very mindful that s.255 is not a mandatory provision and of the many adjournments sought by the accused when they embarked on a series of change of counsel, but this trial involved a capital offence carrying the death penalty. Hence, a greater latitude ought to be given to the accused to adequately prepare and 12 properly defend their case. Anything short of the requisite norm would occasion a miscarriage of justice. Apparently the learned trial judge, though laudable, had acted in haste at the expense of justice. …… [103] On account of the infirmities in the conduct of the trial by the learned trial judge enumerated above, we were with the submissions of learned counsels before us that the second accused had been deprived of a fair trial, amounting to an infringement of a constitutional right and as such the conviction is tainted - see Lee Kwan Woh v PP [2009] 5 CLJ 631, at para. p.645. Although the infringement relates only to the second accused, nevertheless it had occasioned a failure of justice to all three accused as all three were charged with common intention in committing the crimes where in such even the culpability of one would invariably affect the culpability of the others.” is clearly distinguishable because the infirmities complained of goes right to the root of a fair trial – whereas here the remedial action taken by the learned High Court Judge which we mentioned earlier and the 13 opportunity accorded to Abbas’s counsel to cross-examine Benham later had given him a fair chance of disputing the blame thrown at him by Benham. This is evidenced by the notes of proceedings at line 5 - 25 of page 382 and page 384 lines 11-30 of the Appeal Record Volume 2(5). The Caution Statements

Learned counsel for Abbas submitted that the learned High Court Judge had failed to consider his caution statement which by the authority of this court’s decision in Prasit Punyang v Public Prosecutor [2014] 1 MLRA 387, which had been affirmed by the Federal Court, entitled him to an acquittal. Held

of the report is reproduced below: “(1) The JC had a duty to consider and scrutinise exh D1 of the appellant and make his own findings why, even if he did not believe exh D1, it did not raise a reasonable doubt on the prosecution’s case as a whole. The defence was not a recent fabrication as the contents of exh D1 was substantively similar to the appellant’s defence advanced at trial. It was the duty of the trial judge to consider the defence of the appellant in the light of exh D1 that he had given to 14 the police. On the facts of the present case, the failure on the part of the JC to consider and evaluate exh D1 constituted a serious non-direction which amounted to a misdirection, warranting appellate intervention. As a result, there was a failure or a miscarriage of justice, which had the effect of rendering the conviction very unsafe. Accordingly the appellant’s conviction and sentence was quashed and set aside. (paras 13-16)”

With respect, in the absence of a full grounds of the judgment of the Federal Court, we would not to be able to say whether the legal point canvassed in respect of the failure to consider the caution statement was what moved the apex court to affirm the acquittal of the appellant in that case. In this case before us, the great similarity of Abbas’s testimony in court with his caution statement was not in dispute and the same goes for Benham’s. The learned High Court Judge had evaluated the same and had correctly identified the key aspects of it, as well as that of Benham’s. He did not just pay lip service to their respective defences and as can be seen from his narration of their defences, even though in a summary form. His Lordship 15 had even made this pertinent observation in paragraph 26 of the Appeal Record Volume 1 as follows: “9. From my observation both the accused were not speaking the truth and the actual fact was that both the accused had voluntarily on their own free will gone to the MAS cargo to collect the package belonging to both of them. This fact is augmented by the information contained in the Airway Bill. The Airway Bill is the central document evidencing the sending of the package from Iran to Malaysia and it bore part of the details of both the accused. The Airway bill while containing the phone number of the 1st accused had the office address of the 2nd accused.” (emphasis added)

It was an observation which was on the evidence fully justified. Therefore, given that the caution statements and the sworn evidence of Abbas and Benham were substantively the same, the failure of the learned High Court Judge to specifically mention and consider the matters raised in the caution statements could not in our view be fatal to the defence. In this regard, reference is made to another of this court’s decision in 16 Msimanga Lesaly v Public Prosecutor [2005] 1 CLJ 398 where it was held, at page 412, paragraphs b-d: “The degree of credence that a court is reasonably expected to assign to a particular version of events depends on the facts and circumstances of each case. And, the mere fact that an accused’s evidence is consistent with his earlier out of court statements does not require a court in every case to hold that he or she is a witness of truth. Were it otherwise, the assessment of oral testimony would become a robotic function. But the judicial appreciation of evidence is a human and not a robotic function. There are no fixed rules about it: only general guidelines. That much is made clear by numerous judgments of our courts…” Presumed Or Direct Trafficking

It is salutary to remind ourselves that the learned High Court Judge had been ordered to call for defence by this court and of course given his earlier decision to discharge and acquit them at the close of the prosecution’s case, he need not have to say whether this was a case of presumed or direct trafficking 17 especially when His Lordship found that the first essential element of the charge, to wit, possession was not proved. It is not denied that His Lordship did not state in clear terms whether he found direct or presumed trafficking but that failure does not impact negatively on his judgment on the culpability of Abbas and Benham because he reproduced section 2 of the DDA at paragraph 16 of his judgment. Thus by clear inference, that section was raised by him, and rightly so, since the sending of the drug by air freight would come under ‘transporting’ in that section. As this court had stated in Henry Igwebuike Nwaorah v Public Prosecutor [2014] 1 LNS 1147:- “[16] Judgment writing is an art and very individualistic. Each judge has his or her own way of writing. We are more concerned with substance rather than form. We found nothing objectionable in the notation and the manner in which the learned trial judge had expressed her findings over the matter.” In saying the above we do not deny the fact that it would have been more ideal if a clear pronouncement on the raising of the aforesaid section had been made. Nonetheless, as we have just said, the saving 18 grace here was the reproduction of that section for if it was not in His Lordship’s contemplation, it would not have been so clearly stated in his judgment. Obviously, that reproduction of the section was not just a window dressing simply to add length to the judgment. Benham’s Submission

As stated by his counsel in his written submission filed in court, Benham’s ground of appeal is premised on the erroneous finding of the learned High Court Judge by drawing improbable inferences and wrong conclusion prior to invoking section 34 of the Penal Code to convict him.

Learned counsel alluded to evidence adduced at the trial that it was Abbas who produced the essential documents to the Customs Officer (from the evidence of PW7) and who cut open the boxes at PW7’s instruction whereas Benham only followed Abbas’s instruction. The reaction of Benham upon discovery of the powdery substance said PW7 was normal until he was told by PW7’s superior that it was drug upon his arrest whereas Abbas turned red and he appeared shocked. This reaction of Benham, submitted his counsel, showed that Benham was not aware of the illicit contents of the boxes. PW7 also agreed that 19 Benham could not understand English and that even PW5’s witness statement corroborated his contention that the active role here was played by Abbas. As for the placing of Benham’s office address on the Airway Bill, learned counsel submitted that it was probably done by Abbas without Benham’s knowledge for Abbas was renting the said premises at that given address before Benham took over. There was no evidence, he further submitted, that Abbas had moved to another premises and in fact ExD57, a photograph of the office premises tendered by Abbas, was taken from that given address on the Airway Bill. Thus, in all probability Abbas still had access to the said premises, submitted his counsel.

Benham’s counsel therefore submitted that the trial judge adopted an over simplistic approach to the case for the prosecution in that he failed to take into account or give a proper weight to every inference which he had raised on behalf of Benham. He continued to add that a proper evaluation from all angles will not exclusively and inevitably connect Benham to the drugs found in the boxes, that he was an innocent person who was dragged into the scheme of deceit of Abbas. 20

Granted that it was Abbas who played the active role as submitted by learned counsel, that could not in our view negate the finding of common intention as found by the learned High Court Judge. It must be emphasised that this court had found on the evidence that there was a prima facie case against him and the cross-examination of Abbas at the defence stage had failed to elicit Benham’s purported ignorance of the contents of the boxes/consignment. His reason for following Abbas, despite them staying apart (Benham was staying in a hotel), just because the boxes were bulky, was not logical as could be seen from the photographs numbers 21 - 23, at pages 35 – 36 of the Appeal Record Volume 3(1), such size and weight as alleged did not appear to be so. Thus, there was no reason why Abbas could not do the task alone or even enlist the help of the taxi driver (PW3) who, as the evidence showed, not only sent Abbas and Benham to the said location but was also engaged for a return trip from there. Besides; as pointed out by Abbas’s counsel in his written submission, Benham agreed that it was he who hired the taxi to pick him up at the hotel where he stayed and the evidence of the taxi driver that he was told by Benham to go to said Cargo Office , after picking up Abbas from another hotel. This evidence, to us showed that Benham was playing an 21 active role in the collection of the parcel. Finally, on the date of the Airway Bill, Benham was in Iran and that being so it was probable, as alleged by Abbas, that Benham called him from Iran to tell him about sending the consignment to Malaysia.

On the considerations of these evidence, we failed to see why the learned High Court Judge had gone wrong in his findings of common intention at the close of the trial. His Lordship had rightly referred to the Federal Court’s fairly recent decision on this element, that is, Faruse Tamure Mohamad Khan v Public Prosecutor [2016] 9 CLJ 769 which held: “[66] 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. Direct evidence as proof is difficult to procure because the common intention is essentially a state of mind. Invariably inferences have to rely 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. The totality of the circumstances must be taken into 22 consideration in arriving at a conclusion whether there is a common intention to commit the offence for which the accused could be convicted. The facts and circumstances of each case might vary. As such, each case should be decided based on the facts involved.” It was obvious from the incriminating evidence given by PW5 against Abbas, and that by Abbas against Benham and vice versa that both were in possession of the consignment containing the drug. Since they were in possession of the drug, the presumption of knowledge under section 37(d) should be raised against them as submitted by the learned Deputy Public Prosecutor. Of course, we acknowledged that given the earlier acquittal of Abbas and Benham on the learned High Court Judge’s finding that they were not in possession of the same and in the absence of a clear pronouncement by this court on whether section 37(d) was invoked when it called for their defence, there was nothing in black and white that the said presumption was applied when the defence was called. 23

It therefore now behoved upon us to state in no uncertain terms that the said presumption must be raised on the facts of this case and that the defences of both Abbas and Benham as considered earlier failed to rebut the same on a balance of probability.

Nonetheless, even if we were wrong to say so, that in fact their defences were called because there was mens rea possession proved by the prosecution on the facts of this case, their respective defences still failed to raise any reasonable doubt on the said ingredient based on the consideration of the defence by the learned High Court Judge which we fully support.

In conclusion we found no merits in the submissions raised by both counsel and we found the conviction and sentence are safe. Accordingly both appeals were dismissed. Signed. (RHODZARIAH BINTI BUJANG) Judge Court of Appeal Malaysia Putrajaya Date: Note: This copy of the Court’s Grounds of Judgement is subject to editorial revision. 24 Parties appearing: For the Appellants: B-05(M)-147-04/2017 (IRN) Mr Hisham The Poh Teik Messrs The Poh Teik & Co. Advocates & Solicitors B-05(M)-149-04/2017 (IRN) Mr. Salim Bashir Messrs Salim Bashir, Ruswiza & Co. Advocates & Solicitors For the Respondent: Tuan Zaki Asyraf Zubir Jabatan Peguam Negara, Putrajaya Cases Referred to:

Ogbodo Sunday Tochukwau v Public Prosecutor & Other

Prasit Punyang v Public Prosecutor [2014] 1 MLRA 387

Msimanga Lesaly v Public Prosecutor [2005] 1 CLJ 398

Henry Igwebuike Nwaorah v Public Prosecutor [2014] 1 LNS 1147

Farine Tamure Mohamad Khan v Public Prosecutor [2016] 9