ABD WAHAB BIN SAID v Pendakwa Raya (T-05(M)-331-09/2020)

Preamble

pursuant to s. 39B(1)(a) of the Dangerous Drugs Act 1952 and concurrent 3 years imprisonment from the date of arrest on 10th December 2017 on the drug possession charges pursuant to s. 12(2)/12(3) of the Dangerous Drugs Act 1952. FINDINGS OF THIS COURT [26] The Appellant has in his written submissions in this appeal raised five broad issues wherein the learned High Court judge allegedly misdirected himself. However, amongst them, the Appellant solely focused orally before us on the learned High Court judge’s failure to analyse and evaluate the testimony of the Respondent’s witnesses in its entirety, particularly on answers to the questions put to them by the Appellant. Failure to analyse and undertake maximum evaluation on the testimony of the Respondent’s witnesses in its entirety [27] The Appellant basically impressed upon us that the learned High Court judge failed to appreciate that the drugs were planted in the House and Car. In other words, the Appellant was framed-up. [28] In this respect, the Appellant submitted that the learned High Court judge narrated in his judgment that Insp. Hafizul acted on tip off information received that the Car was used by the Appellant for drug trafficking activities. Insp. Hafizul testified under cross examination that he obtained the information from Det. Corp. Kamaruddin. However, Det. Corp. Kamaruddin subsequently testified under cross examination that he only obtained information on a Malay man who was involved in drug trafficking unconnected with the Car. Hence, the learned High Court judge was clearly mistaken. [29] Furthermore, the Appellant submitted Det. Corp. Kamaruddin conceded in his testimony that the raiding Team went to the House because the tip off information received mentioned the House. He further conceded that he carried out surveillance of the House twice prior to the raid by the Team. It was subsequently also Det. Corp. Kamaruddin who peeped through the unlocked window and saw the Appellant sitting on the bed in the room of the House. This seems suspicious and accordingly questionable as far as the Appellant is concerned. [30] The Appellant, therefore, postulated that the informer knew of the existence of the drugs in the room of the House and Car which were planted to frame up the Appellant who was then asleep therein. The window of the room in the House was purposely left unlocked and slightly ajar for the Appellant to be spotted by the Team (“Postulation”). [31] In the premises, the Appellant relied on the case of Ibrahim Mohamad & Anor v. PP [2011] 4 CLJ 113 (FC) where Zuklefli Makinudin FCJ (later PCA) held as follows: “[11] It is also pertinent to take note in the present case that the police raiding party were acting on a tip-off which led to the arrest and detention of both the accused. The relevance of this established fact can be seen in the decision of the then Supreme Court in Abdullah Zawawi bin Yusoff v. PP [1993] 4 CLJ 1 where it was inter alia held as follows: Given the fact that this was a case where the police were acting on a tip-off, the onus was not on the defence to prove possibility of access by others but on the prosecution to exclude such possibility. [12] The Supreme Court in Abdullah Zawawi had therefore highlighted the danger of relying on a tip-off's case as there is a possibility that in such a situation the drugs may have been planted in order to implicate the accused. Hence the need for the prosecution to exclude the possibilities that other individuals may have access to the drugs in question. We find on a proper perusal of the evidence it would show that the prosecution had failed to exclude the possibility of others having access to the said vehicle. No evidence whatsoever was adduced by the prosecution to exclude the possibility that Zainuddin and/or other individuals had access to the vehicle prior to the date of arrest. This is further compounded when the courts below erroneously took the position that the failure to call Zainuddin is not fatal as he was not together with both the accused when they were arrested. We also noted even Zainuddin's statement that was taken from him was not adduced and tendered as evidence pursuant to s. 32(1)(i) of the Evidence Act 1950 if at all for some valid reasons Zainuddin could not be called to give evidence.” (emphasis added) [32] Additionally, the Appellant submitted that Det. Corp. Kamaruddin’s crucial testimony of having seen the Appellant sitting on the bed in the room of the House from the ajar window is logically unreliable based on the photographs of the window tendered in exhibit 36. This is because his view would have been blocked by a party wall of the House. [33] As the result and since the Respondent has not satisfactorily excluded the possibility of access by others to the House and Car, the learned High Court Judge, therefore, erred in finding that the Appellant was in possession of the drugs. [34] We have accordingly, in the exercise of our appellate duty and function, carefully reviewed the decision of the learned High Court judge. In respect of the Appellant’s submission that he has been framed up, we find that the critical facts of the frame up (if any) took place between the night of 9th December 2017 and the morning of 10th December 2017 when he was supposedly asleep in the room of the House. It is not in dispute that the Appellant was the last person who drove the Car to the House before he allegedly fell asleep there. [35] We are aware that whilst undertaking the review, we have the power as that also explained by Zulkefli Makinudin FCJ (later PCA) in Ahmad Najib Aris v. PP [2009] 2 CLJ 800 (FC) as follows: “[20] As regards the first main ground of appeal raised by the appellant, I am of the view that the Court of Appeal has the power to review or to re-evaluate all the evidence available as adduced by the prosecution. The Court of Appeal is in a position to do so in the present case even though the grounds of decision of the trial judge as appearing in the appeal records is found lacking in specific findings and with no reasons for the findings. In a case involving purely a question of fact, the Court of Appeal is free to determine whether or not the various findings of the trial Court are correct. (See Mohamed Mokhtar v. PP [1972] 1 MLJ 122). In the present case even though the Court of Appeal took the view that the High Court judgment was of no assistance, it nevertheless had considered and subjected all the evidence adduced by the prosecution to a critical re-examination. The Court of Appeal had given sound reasons as to why the evidence was admitted and how it had implicated the appellant. There was no miscarriage of justice against the appellant as the Court of Appeal's decision was based on evidence adduced from the witnesses called by the prosecution as appearing in the appeal records. I am therefore of the view that the Court of Appeal did not err on this issue.” (emphasis added) [36] That notwithstanding, we find that this does not derogate from the settled principle on findings of fact made based on oral testimony of witnesses that an appellate court will generally not disturb the findings of the trier of fact who enjoyed the audio-visual advantage of observing and assessing the credibility of the witnesses; see Maria Elvira Pinto Exposto v. PP [2020] 5 CLJ 1 (FC). [37] Hence in analysing the Appellant’s Postulation, we firstly find the learned High Court judge correctly found in paragraph [104] and [105] of his judgment correctly found that the Appellant is the sole tenant of the House and the Appellant’s nephew is the owner of the Car respectively. [38] Furthermore, we find that the learned High Court judge has in paragraphs [32] to [42] of his judgment correctly found that the Appellant was in possession of the drugs in the House. In particular, he found that the drugs were so physically proximate to him as seen by Det. Corp. Kamaruddin and he had the keys of the House at the material time. [39] Likewise, we find that the learned High Court judge has in paragraphs [43] to [68] of his judgment correctly concluded that the Appellant was in possession of the drugs in the Car because he had the key and remote control of the Car at the material time. [40] We also find the learned High Court judge properly and correctly found in paragraphs [108] to [110], [112] and [118] of his judgment that the Postulation is fabricated and false because the other likely persons involved as suggested by the Appellant, to wit, Hafiz, Farid and Din were neither put to the Respondent’s witness during the prosecution stage of the trials nor stated in his cautioned statement or informed to the investigating officer in the course of police investigation that constituted an “Alcontara” notice. It is justified for the learned High Court judge to conclude that the Postulation is incredulous. In the circumstances, we find that the case of Ibrahim Mohamad & Anor v. PP (supra) relied by the Appellant is starkly distinguishable because the investigating officer and prosecution therein knew in advance of the identity of other persons likely to be involved that must be excluded to sustain a prima facie case. This is not the position here. [41] In addition, we find that the learned High Court judge properly and correctly found in paragraphs [101] to [103] of his judgment that the members of the raid Team who testified are honest witnesses without any motive to frame up the Appellant. The aspersion suggested by the Appellant on Det. Corp. Kamaruddin is baseless. [42] The learned High Court judge also found in paragraphs [113] to [117] of his judgment that the testimony of Mie Tiger who attempted to corroborate the Appellant’s Postulation could not be believed because of lack of credibility. We do not find any appealable error here because the learned trial judge who enjoyed the audio-visual advantage is in the best position to assess the credibility and hence believability of the witness. [43] Finally, in paragraphs [63] and [64] of the judgment, the learned High Court judge dealt with the Appellant’s suggestion on the placement of the drugs in the House by others. We find that the learned High Court judge has properly and correctly analysed the circumstances and consequently held in paragraph [119] of his judgment that the Postulation is an afterthought. The Appellant’s defence is, in substance, a bare denial of the Respondent’s prima facie case. [44] For completeness and since the learned High Court judge has not specifically addressed in his judgment on Det. Cpl. Kamaruddin’s ability to see the Appellant sitting on the bed in the room of the House from the ajar window, we nonetheless find that the learned judge was satisfied with Det. Cpl. Kamaruddin’s testimony and has hence merely accepted that was what he indeed saw. This is neither a non-direction nor a misdirection by him. We have nonetheless carefully viewed the photographs tendered in exhibit 36 but we do not find them per se to assist the Appellant’s proposition without a site visit of the House. It is incumbent upon the Appellant to have invited the learned High Court judge to visit the site if this was indeed necessary to advance the Appellant’s Postulation but this was however not done. Hence, we find nothing further turns on it. [45] Finally, we noted that the Appellant submitted the case materials were not properly handled and documented by the Team, particularly in the search list prepared and signed off by Insp. Hafizul notwithstanding the drugs were in fact discovered by the other members of the raid Team. According to the Appellant, the proper identification of the drugs is hence doubtful. [46] We however find that the learned High Court judge has satisfactorily dealt with the discovery, identification, marking and recording of the drugs in paragraphs [7] to [11] of his judgment and we do not detect any error or confusion therein including the subsequent re-identification of the analysed drugs vis a vis their originally discovered packaging as testified by several of the relevant raid Team witnesses at trial. [47] In the premises, we find that there is on the overall no misdirection on the part of the learned High Court judge that warranted appellate intervention by us. We are satisfied that he has dealt with all the material evidence adduced including answers to cross examination questions before him in entirety. It is our view that the alleged Postulation raised by the Appellant is at its best a fanciful doubt but certainly not reasonable doubt. [48] We are consequently satisfied that the Appellant’s submission on the issue of the learned High Court judge’s failure to analyse and undertake maximum evaluation on the testimony of the Respondent’s witnesses in its entirety is unmeritorious. Failure to make inferences that favoured the Appellant [49] The Appellant submitted that there is inconsistency between the testimony of Sub-Insp. Yajid and Det. Cpl. Kamaruddin on the knocking of the front door of the House vis a vis sight of the Appellant in the room through the ajar window; hence the benefit of the discrepancy and thus doubt must be accorded in favour of the Appellant following See Kek Chuan v. PP [2018] 6 MLJ 885 (CA). Additionally, the Appellant submitted it is improbable that the exposed drugs in the room were observable from an ajar window of the room from an otherwise of the wholly locked House. There was also no attempt by the Appellant to hide the drugs when he was awakened by the scream “Polis” which pointed to the Appellant having no knowledge of the existence of the drugs therein. [50] We have accordingly reviewed and scrutinized the Appellant’s submissions here but do not find any major material contradiction and/or improbability as so alleged that attracts appellate intervention. No custody and control of the discovered drugs and knowledge thereof [51] According to the Appellant, it is unsafe of the learned High Court judge having relied on the testimony of Mazura per se disregarding the testimony of Mie Tiger on access into the House. Moreover, the learned judge has not taken into account the testimony of Sufian that the Appellant’s residence is adjacent to his house and the Appellant hence only lived in the House intermittently. It cannot, therefore, be assumed that the Appellant had sole custody and control of the drugs in the House. [52] Moreover, the Appellant submitted that his conduct of cooperating with the police upon arrest instead of attempting to flee when he was awakened after hearing the scream “Polis” is consistent with him not knowing the existence of drugs in the House and Car following Ibrahim Mohamad & Anor v. PP [2011] 4 CLJ 113 (FC) and Akliansyah v. PP [2014] 6 CLJ 1 (CA) [53] The Appellant further submitted that there is doubt as to who actually rented the House because the testimony of Ibrahim is hearsay as well as questionable. This is because Ibrahim did not deal with the Appellant personally but only by WhatsApp communication over the handphone (tel no. 019-5343509) allegedly belonging to the Appellant. Ibrahim identified the Appellant via a blurred copy of the Appellant’s driving license that was WhatsApp over to Ibrahim. There was no investigation by Insp. Tan Poh Poh on the bearer of the handphone (tel no. 019-5343509). [54] The Appellant also submitted that the Respondent illegally tendered in evidence clothing seized from the House allegedly that of the Appellant by body-fit without a caution administered to him following PP v. Premakumar Balan & Anor [2010] 3 CLJ 736. [55] Finally, the Appellant submitted that the discovery of the drugs in the car was too easy because they were not concealed and Insp. Tan Poh Poh conceded during interrogation that the last person using the Car was Mie Tiger. It is thus unlikely that the drugs in the Car are associated with the Appellant. [56] We have again accordingly reviewed and scrutinized the Appellant’s submissions here but we find that these are peripheral matters which do not affect the principal findings of the learned High Court judge. We reiterate paragraphs [38] to [48] above. We also find that the alleged inadmissible evidence (if any) such as the clothing is not the primary crucial evidence but secondary corroborative evidence only. Failure to inform Appellant whether he bears onus to cast doubt or rebut on balance of probabilities in defence [57] The Appellant submitted that the learned High Court judge failed to inform him on whether the prima facie case was found for the elements of possession and trafficking based on direct evidence and/or statutory presumption provided under the Dangerous Drugs Act 1952 in order for the Appellant to properly make his defence. Reliance is made on the cases of Roman Zolotarov v Public Prosecutor [2020] MLJU 915 (CA) and Dato’ Sri Mohd Najib bin Hj Abdul Razak v Public Prosecutor [2022] 1 MLJ 137 (FC). [58] The Appellant has however failed to satisfy us that the learned High Court judge indeed failed to so inform the Appellant at the material time when the prima facie case was pronounced. We also noted if that was indeed the case as alleged, the Appellant was duty bound to inquire from the learned High Court judge but had failed to do so to his own detriment. [59] In any event, it is clear to us that the learned judge found possession of the drugs based on direct evidence from paragraph [59] of his judgment and trafficking based on statutory presumption from paragraph [76] of his judgment. [60] However, before us, we find that the Appellant has failed to satisfy us with particulars as to how the Appellant was exactly prejudiced having now known the manner the learned High Court judge found possession and trafficking in the drugs. [61] We, therefore, find no merit in the Appellant’s submission on onus of proof of his defence. Failure to adequately consider the Appellant’s defence [62] Lastly in this regard, the Appellant submitted that the learned judge failed to consider what the Appellant had stated to Insp. Tan Boh Boh that he was asleep in the House at all material times and the Car was driven by Mie Tiger. [63] This seems to us to be a rehash of the issue of the learned High Court judge’s failure to analyse and evaluate the testimony of the Respondent’s witnesses in its entirety and we reiterate our views in paragraphs [34] to [48] above. CONCLUSION [64] In the premises, we are satisfied that the conviction of the Appellant is safe. It is for the foregoing reasons that we dismissed the appeals as so ordered. Dated this 20th April, 2023 s.g.d LIM CHONG FONG COURT OF APPEAL JUDGE LIST OF COUNSELS: Counsel for Appellant : Solicitors for Appellant : Messrs. Ghazali Ismail & Co. Counsel for Respondent : Solicitors for Respondent : LEGISLATION REFERRED TO: Section 12 (2) & Section 39B Dangerous Drugs Act 1950 CASES REFERRED TO: Ibrahim Mohamad & Anor v. PP [2011] 4 CLJ 113; Ahmad Najib Aris v. PP [2009] 2 CLJ 800; Maria Elvira Exposto v. PP [2020] 5 CLJ 1; Akliansyah v. PP [2014] 6 CLJ 1; PP v. Premkumar Balan [2010] 3 CLJ 736; Roman Zolotarov v Public Prosecutor [2020] MLJU 915; and Dato’ Sri Mohd Najib bin Hj Abdul Razak v Public Prosecutor [2022] 1 MLJ 137; Ghazali bin Ismail DPP Mohd Fuad bin Abdul Aziz . Attorney General Chambers (AGC)