Babar Ali (W/n Pakistan) v Pendakwa Raya (B-05(M)-301-06/2018)

Court of Appeal of Malaysia19 Nov 2019B-05(M)-301-06/2018

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1 IN THE COURT OF APPEAL OF MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. B-05(M)-301-06/2018 BETWEEN BABAR ALI (W/N PAKISTAN) … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [In The High Court Of Malaya At Shah Alam, In The State Of Selangor Darul Ehsan, Malaysia Criminal Trial No. 45A-12-01/2015 Between Public Prosecutor And Babar Ali] CORAM: KAMARDIN BIN HASHIM, JCA RHODZARIAH BINTI BUJANG, JCA MOHAMAD ZABIDIN BIN MOHD DIAH, JCA JUDGMENT [1] The appellant, a Pakistani national was charged with and convicted of the offence of trafficking in 1295.5 grams of heroin and 2

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231.3 grams of monoacetylmorphines under section 39B (1)(a) of the Dangerous Drugs Act 1952 (“DDA”) and was sentenced to death under section 39B (2) of the said Act. His appeal against the said decision was heard by us on the 19/11/2019, where at the conclusion of which we dismissed the same and affirmed both the said conviction and sentence. The charge against the appellant reads as follows: “Bahawa kamu pada 7/8/2014 jam lebih kurang 2200 hrs bertempat di Kawasan Tuntutan Bagasi, Ketibaan Antarabangsa, Aras 3, MTB, KLIA, di dalam daerah Sepang di dalam Negeri Selangor Darul Ehsan, telah mengedar dadah berbahaya iaitu Heroin seberat 1295.5 gram dan Monoacetylmorphines seberat 231.3 gram, dan dengan itu, kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama.” The Prosecution Case [2] The prosecution called a total of 7 witnesses to prove its case against the appellant. The facts leading to the discovery and arrest of the appellant were not in dispute and as summarised by the learned High Court Judge (“HCJ”), they are simply this. [3] On the date, time and place as stated in the charge, the appellant was stopped by Detective Sgt. Nor Reshiam Bin Kasim (PW3) who was on duty then when the appellant was pulling a trolley 3 bag (Exh. P22) whilst on the way out of the Customs examination centre on the third floor of KLIA because he appeared to PW3 to be walking uncomfortably and behaving suspiciously. The appellant was then brought by him to the Airport’s Narcotic Office where the drugs of the weight and type (after analysis by the chemist, Suhana Ismail [PW4]) as stated in the charge were found tied to and strapped to both his legs by a compression calf sleeves (“pembalut betis”). [4] Based on these facts, the learned HCJ found the appellant has both custody, control as well as knowledge of the impugned drugs, relying on, inter alia, Parlan Bin Dadeh v Public Prosecutor [2008] 1 CLJ 717 and was therefore in possession of the same as decided in Ibrahim Mohamad & Anor v Public Prosecutor [2011] 4 CLJ 113. However, despite that affirmative finding, the learned HCJ also raised the presumption of possession under “section 37(da)” of DDA. Why the said section is put in quotation marks will be explained later. As for the element of trafficking the learned HCJ relied on the definition of trafficking under section 2 of DDA. [5] We paused here to mention that we had made this brief and cursory mention of the salient facts above relied on by the prosecution to establish a prima facie case against the appellant because in the 4 appeal before us, the attack was not on the finding of the prima facie case against the appellant but on His Lordship’s finding that the defence has failed to raise a reasonable doubt on the prosecution case. In fact learned counsel for the appellant candidly admitted that the appellant was not disputing that he was in possession of the drugs. Thus, the defence as raised would be the main focus of our judgment. The Defence [6] In his sworn evidence, the appellant said he came to Malaysia since 2011 to work in the construction industry. On 7/8/2014 he boarded a Thai Airways flight from Lahore International Airport with two checked in bags, one of which was the trolley bag he was caught with, to return to Malaysia. That trolley bag belonged to a friend of his named Shifaq in Malaysia and was given to him in Lahore by Shifaq’s friend named Rashid. He agreed to carry that trolley bag as a favour to Rashid, the owner of a travel agency in Lahore who at the request of Shifaq bought his flight ticket to Malaysia because the appellant said he had no cash to buy it himself. He went to collect the bag from Rashid’s office before going to the said Airport and Rashid opened it before him to show its content, that is, clothings for Shifaq. However, upon being told by Rashid on his arrival at KLIA whilst he was waiting for the checked-in bags that the latter forgot to mention that there was 5 medicine in the trolley bag which Rashid passed to him, he decided not to collect the said trolley bag because the appellant said he did not see the said medicine in the trolley bag when he examined it earlier at Rashid’s office. Thus, he exited KLIA with his own checked-in bag and sling bag but was forced to return to retrieve the trolley bag because Shifaq whom he met with two other persons and who were waiting for him outside KLIA would torture (“seksa”) him if he did not. That threat was conveyed by Rashid on his handphone after Shifaq asked him about the trolley bag. So, he was forced to re-enter KLIA after leaving his own luggage with Shifaq. We pause to note the undisputed fact of the appellant being given a security pass by KLIA’s airport security (Exh. D42) and Malaysia Airport Berhad’s tag (Exh. P17) to re-enter the Arrival Hall to retrieve the trolley bag two hours after his flight landed at KLIA. According to the appellant, Rashid also threatened that he would also caused harm to his family such as raping his sister if the appellant did not do his bidding. It was also Rashid, said the appellant who asked him to take the medicine and strapped it to his legs and he was able to do so without tying them because his trousers were tight. In other words, his defence was one of duress. [7] We also paused here to note that the appellant’s claim about not tying the drugs to his legs is totally against that adduced by the 6 prosecution from not just the evidence of PW3 but also from the photographs of the exhibits at pages 10 – 11 of Appeal Record Volume 3A which clearly shows not just the two packets of drugs but also the strings and the compression calf sleeves. [8] The learned HCJ identified three issues which he had to decide at the close of the defence in paragraph 46 of His Lordship’s judgment and in the subsequent three paragraphs made his findings on them. Given the importance of these findings in the appeal before us, the said paragraphs 46 – 49 are reproduced below: “I. Isu-isu Yang Perlu Diputuskan Di Akhir Kes Pembelaan [46] Di akhir kes pembelaan, Mahkamah perlu memutuskan 3 isu:

46.1 Sama ada pembelaan dapat menimbulkan keraguan yang munasabah ke atas kes pendakwaan?

46.2 Sama ada pembelaan dapat mematahkan anggapan dibawah seksyen 37(da) Akta Dadah Berbahaya 1952?

46.3 Sama ada pendakwaan telah membuktikan kesnya melampaui keraguan yang munasabah? J. Dapatan Mahkamah [47] Mengenai isu I, Mahkamah berpandangan bahawa pembelaan “duress” Tertuduh tidak menimbulkan sebarang keraguan yang munasabah. Adalah jelas Tertuduh mengedar dadah berbahaya tersebut. Tertuduh melengah-lengahkan mengeluarkan beg yang berisi dadah dan kemudiannya mengambil dadah tersebut dan mengikat dikakinya untuk mengaburi mata pihak berkuasa di Malaysia. 7 [48] Mengenai isu 2, Mahkamah berpandangan pembelaan gagal mematahkan anggapan dibawah Seksyen 37(da) Akta Dadah Berbahaya 1952 atas imbangan kebarangkalian. [49] Mengenai isu 3, Mahkamah berpandangan bahawa pendakwaan telah menimbulkan kes melampaui keraguan yang munasabah. The Appeal [9] As indicated earlier and which we now reiterate, the appellant’s possession of the drugs was not disputed. Therefore learned counsel for the appellant raised only these two issues before us:

(i) The defence of duress has been proven.

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(ii) The judgment of the learned HCJ was a non-speaking judgment in that it was summarily written without full consideration or assessment of the evidence and this amounts to a serious misdirection. Duress [10] The said defence is provided under section 94 of the Penal Code and it reads as follows: “Act to which a person is compelled by threats 8

Except murder, offences included in Chapter VI punishable with death and offences included in Chapter VIA, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence: Provided that the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint. Explanation 1 – A person who, of his own accord, or by reason of a threat of being beaten, joins gang-robbers knowing their character, is not entitled to the benefit of this exception on the ground of his having been compelled by his associates to do anything that is an offence by law. Explanation 2 – A person seized by gang-robbers, and forced by threat of instant death to do a thing which is an offence by law – for example, a smith compelled to take his tools and to force the door of a house for the gang-robbers to enter and plunder it – is entitled to the benefit of the exception.” (emphasis added) [11] The law on the application of this section has been settled since way back in 1949 when it was decided in Tan Seng Ann v Public Prosecutor [1949] MLJ 87 that in order to succeed as a defence, the duress must be imminent, extreme and persistent at the time of the commission of the offence and this must be proven on a balance of probability. The learned Deputy Public Prosecutor (DPP) has quoted two of this court’s decision in Chu Tak Fai v Public Prosecutor [1998] 9 4 MLJ 246 and Mohammad Ghavipanjehjo Ali v Public Prosecutor [2017] 1 LNS 114 where the same defence was raised by the respective appellants in the cited cases who were also drug traffickers but unsuccessfully, as well. [12] Learned counsel for the appellant however submitted that the said legal burden had been discharged by his client in this case because the evidence shows that:

(i) The appellant had re-entered the Arrival Hall two hours after landing at KLIA although he had a choice not to make the re-entry. Therefore the fact that he did shows that he had been threatened by Rashid to do so and it was Rashid who was the real trafficker;

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(ii) The forensic report (Exh. P51) of a Nokia handphone seized from the appellant which was prepared by ASP Mohd Zaid Bin Abu Hassan (PW7) shows the existence of telephone calls from Pakistan which began right after his arrival and after his arrest as well as from a local number after his departure from the Arrival Hall before his arrest. The details of these calls are in pages 83, 84, 89 and 91 10 of the Appeal Record Volume 3A which learned counsel summarised at paragraph 4.7 of his written submission but which we declined to reproduce because we have no hesitation to accept that such calls were indeed received from the said handphone. We noted also, as highlighted by learned counsel before us, that the two handphones (the other was a Q Mobile) seized from the appellant were never produced as exhibits at the trial but we say that failure does not aid the appellant in proving his defence of duress because there was no dispute that the calls were received or as also reflected at page 73 of the Appeal Record Volume 3A, that 5 calls were made to this one number, that is, 011-28058530 starting from 1.22.31 a.m. to 1.23.08 a.m. on 8/8/2014 which was a few hours after the appellant’s arrest at 10.00 p.m. on 7/8/2014. Real Trafficker [13] It was decided by the Federal Court in Alcontara a/l Ambross Anthony v Public Prosecutor [1996] 1 CLJ 717, where details of the real trafficker, such as his telephone number and place of abode has been given in the appellant’s caution statement, the onus is on the 11 prosecution to check on the appellant’s version of the facts as they appeared in his statement whether it is true or false. [14] In this case before us, by failing to give any other personal details of Rashid, other than his name and not even his handphone number to PW6, the appellant has failed not only to persuade us that PW6 has the duty to investigate what was alleged by the appellant against him but that omission has also driven us to also conclude that Rashid was just a fictitious person made up by the appellant to exculpate himself from the dire situation he was caught in. Notably too, even though the appellant in his examination-in-chief said he mentioned about Shifaq and the two other persons waiting for him outside KLIA when he was arrested, this fact was not put to PW3 and PW6, especially PW3. This would have been the most logical thing to do given his defence that the trolley bag with the drugs was meant for Shifaq and that his own two bags were with them. Further, there is inconsistency in this particular aspect of his evidence because in his cross-examination at page 110 of Volume 2B of the Appeal Record, he said he did not tell the police about Syifaq and two others waiting outside because Syifaq had warned him not to do so. Although in re-examination he reiterated that he told the police about Rashid and Shifaq at the Narcotic Office after his arrest, this inconsistency in his evidence was not explained to the court. In addition, the reason given 12 by the appellant for putting the drugs on his legs which is that it was as instructed by Rashid, is simply improbable because Rashid was thousands of kilometers away and not there to see if his so-called command was followed. Therefore there is just no logic in complying with such an instruction even though the appellant said he was scared because his brother was killed in Lahore but he never said this death was in any way connected with Rashid and the drugs he was carrying. (See his evidence at page 105 of the Appeal Record Volume 2B.) That statement of the appellant, in our view, was just a ruse to hide the actual fact that he did the said act simply to avoid detection by the authorities. The sheer improbability of the defence is also evidenced by the fact that the drugs, as we had mentioned earlier, was not just tied with strings on the appellant’s legs but also held in place by the compression calf sleeves. This clearly shows that the appellant had done so with prior planning and not on the spur of the moment as raised by him in his defence because obviously the two items we had underlined above could not have been found lying around at KLIA. The prosecution evidence on the existence of these two items from the testimony of PW3 and PW7 as corroborated by the photographic evidence we had mentioned earlier is definitely credible for we see no reason why PW3 and PW7 would want to fabricate their evidence on the existence of these items at all. 13 The Calls [15] Learned counsel submitted that the existence of these calls proved that the defence of duress was not an afterthought and that the appellant was indeed threatened by Rashid as he claimed. There is no reason why, said counsel he would return for the trolley bag after exiting KLIA unless he had been so threatened. [16] However, as rightly submitted by the learned DPP and with respect to learned counsel, the existence of these calls received from Pakistan and even the absence of the two handphones at the trial did nothing to discharge the burden of proof on the defence raised because such threats being made were not evidenced in the call logs at all. As testified by the Investigating Officer, Insp. Adzilee Bin Suili (PW6) at page 81 of the Appeal Record Volume 2B, the forensic examination of the two handphones was done because of the alleged threats mentioned by the appellant but the results revealed no such threats – only messages of love and family matters. Admittedly, he had mentioned about this threats to PW6 as testified by him at page 82 of the Appeal Record Volume 2B but that does not render the defence probable. As for the act of returning for the trolley bag, with 14 respect, we have to say that the fact that he did go back to retrieve the trolley bag was not an act which is consistent with innocence for it appears from our consideration of the evidence above that it was just a ruse to cover the eyes of our law enforcers. Based these bare allegations and our considerations above, the defence of duress have not been proven on a balance of probability because the alleged threats were not even shown to have been made, let alone sufficient to satisfy the requirements of the law as stated earlier. The Judgment [17] As conceded by the learned DPP, the judgment of the learned HCJ was brief and without much of or an in-depth analysis of the evidence. However, that fact alone is not a ground for us to say that His Lordship had committed a serious misdirection as alleged for the appeal before us is after all a rehearing and we are fully entitled to examine the evidence ourselves to ensure that the findings made by the learned HCJ was correct as was held by this court in Ahmad Najib Bin Aris v Public Prosecutor [2009] 2 MLJ 613 which was quoted with approval by the Federal Court in Pathmanabhan Nalliannen v Public Prosecutor & Other Appeals [2017] 4 CLJ 137. At page 642, this is what this court held: 15 “46. ........... The Court of Appeal has the discretion to re-evaluate the remaining evidence and to scrutinize in totality such other evidence, apart from the confession to determine whether the evidence is sufficient to satisfy all the elements of the charges against the appellant. After all such steps have been taken, the Court of Appeal is obliged to scrutinize whether the evidence is sufficient to affirm the conviction against the appellant. (See PP v Abdul Rahman Akif [2007] 4 CLJ 337) ...” [18] As for the other complaint raised by learned counsel for the appellant that he had been burdened by the fact that the learned HCJ had raised both the presumption under section 37(da) and section 2 of the DDA as proof for the element of trafficking under the charge, the learned DPP submitted that the mention of section 2 by His Lordship was a mere verbosity which does not impact negatively on the conviction of the appellant. For clarity, the relevant paragraphs 19 and 20 of the judgment are reproduced below: “[19] Mahkamah juga mengguna pakai anggapan dibawah seksyen 37(da) Akta Dadah Berbahaya 1952. [20] Mengenai elemen 3, Mahkamah berpuas hati bahawa Tertuduh telah mengedar dadah berbahaya itu menurut Seksyen 2 Akta Dadah Berbahaya 1952.” (emphasis added) [19] With respect to the learned DPP, to us it was not a question of verbosity. This is because it is patently clear from the words 16 emphasized above that it was section 2 which was used by the learned HCJ to prove the element of trafficking and given that paragraph 19 was the last one on His Lordship’s consideration of the element of possession which started at paragraph 18, it is obvious that the mention of section 37(da) in paragraph 19 was a typographical mistake – His Lordship must have meant section 37(d). As stated earlier, possession is not an issue with the defence and that obvious typographical mistake does not change our view that the conviction entered against the appellant was safe for his defence of duress had not been proven on a balance of probability whereas on the flip side, the evidence adduced by the prosecution against him was simply overwhelming for the drugs were found on his very person. [20] For the reasons as stated above, the appeal was dismissed by us and the decision of the learned HCJ was affirmed. Signed. (RHODZARIAH BINTI BUJANG) Judge Court of Appeal Malaysia Putrajaya Date: 3rd January 2020 17 Parties Appearing: For The Appellant: Muhammad Rafique Rashid Ali Akif Rusli (M/s Law Practice of Rafique) For The Respondent: Jasmee Hameeza Binti Jaafar Deputy Public Prosecutor (Attorney-General’s Chambers) Cases Referred To:

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(1) Parlan Bin Dadeh v Public Prosecutor [2008] 1 CLJ 717;

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(2) Ibrahim Mohamad & Anor v Public Prosecutor [2011] 4 CLJ 113;

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(3) Tan Seng Ann v Public Prosecutor [1949] MLJ 87;

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(4) Chu Tak Fai v Public Prosecutor [1998] 4 MLJ 246;

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(5) Mohammad Ghavipanjehjo Ali v Public Prosecutor [2017] 1 LNS 114;

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(6) Alcontara a/l Ambross Anthony v Public Prosecutor [1996] 1 CLJ 717;

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(7) Ahmad Najib Bin Aris v Public Prosecutor [2009] 2 MLJ 613 at page 642.

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Babar Ali (W/n Pakistan) v Pendakwa Raya (B-05(M)-301-06/2018)

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