Content
1 THE HIGH COURT OF MALAYA IN THE FEDERAL TERRITORY OF KUALA LUMPUR (CRIMINAL DIVISION) CRIMINAL TRIAL NO. WA – 45 – 21 – 03/2022; WA – 45A – 37 – 03/2022 BETWEEN PUBLIC PROSECUTOR AND AMAECHI OMEAKU S/N LVib3sJrsEGiAlk5It5x5g JUDGMENT Charges [1] Amaechi Omeaku (accused) stands charged for an offence of drug trafficking, an offence under section 39B (1) (a) of the Dangerous Drugs Act 1952 (DDA/Act 234). The nature of drugs is cannabis weighing 529.1 grams, which is subject matter of the first charge and methamphetamine (meth) weighing 184.04 grams, subject matter of the second charge. Aside that, he too faces a third charge for an offence of drug possession, an offence punishable under section 39A (2) read together with section 12 (2) of the DDA and the nature of drugs is meth weighing 37.81 grams. In sum, he faces a total of three (3) charges. [2] At the close of the case of prosecution, I had acquitted and discharged the accused for the offences of drug trafficking as the prosecution had been unsuccessful in making out or proving a prima facie case for those offences against him. That order was made pursuant to section 180 (2) read together with section 180 (1) of the Criminal Procedure Code (CPC/Act 593), simply because the prosecution had failed to adduce credible evidence proving the ingredients of the offences of drug trafficking, subject matter of the S/N LVib3sJrsEGiAlk5It5x5g first and second charge. Dissatisfied with that order of acquittal made, the prosecution has appealed to the Court of Appeal, which forms subject matter of this judgment. [3] As for the third charge for the offence of drug possession, I have called upon the accused to enter on his defence as the prosecution has been successful in making out or proving a prima facie case pursuant to section 180 (3) of the CPC, simply because the prosecution has adduced credible evidence proving each ingredient of the said offence which if unrebutted or unexplained by the accused would warrant a conviction, pursuant to section 180 (4) of the CPC. Trial of the case for the third charge is partly heard and underway. Prosecution narrative [4] To prove the offences of drug trafficking (subject matter of the first and second charge) against the accused, the prosecution had called two witnesses, being the raiding officer (RO) PW1 and investigation officer (IO) PW2. The evidence adduced by them are: • Pursuant to the first information report (FIR) P9, which is Cheras Report 018356/21, on 11.9.2021 at around 1 pm, the accused was arrested by the RO and his team at the roadside at Jalan S/N LVib3sJrsEGiAlk5It5x5g Puncak Gading, Cheras, which is a commercial area with passing traffic and pedestrians. • The RO had conducted a search on his body and found three (3) capsules containing meth in the front left pocket of the trousers he was wearing. The three capsules were contained in a translucent package, tendered in court respectively as P12 and P12A (1-3). This has to be pursuant to section 20 and 20A of the CPC. For the record, the said drugs formed the subject matter of the third charge, which is for the offence of drug possession, wherein the trial is ongoing. • Thereon, the RO proceeded to check the car driven by the accused, which was a white Myvi bearing registration number PLH 1536 and found a plastic courier envelope of red and white color, which was intact bearing the words Parcel to Post, tendered as exhibit P22 in the course of trial. • P22 was found on the floor bed of the car in front at the passenger seat, next to the driver’s seat. • Inside P22, was P15, a package marked Gardenia Original Classic (used for packing bread). Inside P15 was found P16 (1- 93) which were 93 small compressed packages containing dried plant material which turned out to be cannabis. The package was packed intact with a tape. S/N LVib3sJrsEGiAlk5It5x5g • Further, another translucent plastic package P19, inside which there were twenty (20) capsules found containing meth. The package was wrapped with a yellow translucent tape. • Also found five (5) big plastic translucent packs containing cannabis, tendered in court as exhibit P40 (1-5). • Another, four (4) translucent plastic packets containing meth was also found, tendered as exhibit P20 (1-4). • It is a fact that the drugs were recovered from the accused without any overt act on the part of accused at point of arrest. • There was no CCTV recording, nor other form of forensic evidence on handphone calls, and DNA evidence was tendered as proof. Albeit fingerprint dusting was done, it turned out negative. • At point of arrest, the accused was exiting the car which was parked at the roadside. • All the drugs found was sent to the chemist for analysis as to the form and nature of the substance, which was confirmed by the chemist to be cannabis weighing 529.1 grams and meth weighing 184.04 grams and 37.81 grams respectively. The chemist report was tendered as P43 via IO of the case, as it has been served on the accused pursuant to section 399 of the CPC and there has S/N LVib3sJrsEGiAlk5It5x5g been no notice issued for the presence of the chemist for cross-examination. Thus, the evidence of the chemist contained in her report stands unrebutted. • In fact, the chemist was supposed to be called as a witness to testify on the nature, identity and chain of evidence pertaining dangerous drugs seized from the accused at point of arrest and raid. She did not attend court, as she had refused to accept the requisite subpoena to be served on her, for the reason she was subpoenaed for another criminal case at the Shah Alam High Court, hence she cannot be attending as a witness in two different courts. Reason given for her refusal is with basis. • Be that as it is, the DPP was swift in informing the court that the chemist report had been served on the accused via his counsel and there was no intimation of a notice by the accused to the prosecution for the presence of the chemist in court for the purpose of cross examination. Thus, the law in its pursuit allows for the chemist report to be produced and tendered in court as proof by way of exhibit through the investigation officer SP2. This is made possible by section 399 of the CPC which allows for reception of the chemist report as admissible evidence without having to call the chemist, who is maker of the report, being an exception to the rule against hearsay. S/N LVib3sJrsEGiAlk5It5x5g • With the following: o production of the chemist report; o testimony of SP1 and SP2; o the dangerous drugs being subject matter of charges P2, P4 and P6 were confirmed to be dangerous drugs within the ambit of the DDA; o the same drugs found at the scene of crime cum raid, are produced as exhibits in this court; o there has been an unbroken chain of evidence when handling the said drugs. there is no issue on the identity, weight of the dangerous drugs and its production in court as proof. The finding of drugs is also confirmed by production of the seizure list and the handing over list from the RO to the IO. Search list [5] A search list P24 was prepared by the RO after the raid, arrest and seizure. He had admitted during cross-examination that he was selective in what he chose to include inside the search list. Items like the passport of the accused, car keys, wallet and phones were seized from the accused, but it was not stated. The handphones seized are material evidence, which was not included and not S/N LVib3sJrsEGiAlk5It5x5g investigated into, by opening it up or sending it for forensic examination to enquire on the calls which had taken place between the accused and other individuals, including Sani Abacha, against whom culpability is alluded to, as defence of the accused for the charges levelled against him. A further twist to the case is that the phones seized by the RO were not handed over to the IO, it was withheld and suppressed from disclosure. Defence version [6] The accused has advanced his defence which was contained: • in his police report lodged on 16.12.2024 vide Cheras Report 026143/22 and • a letter to the IO dated the same tendered in court during trial as P49, supported • by a statutory declaration (SD) dated 7.12.2022 attested by one Stanley Ourgeri together with a copy of a passport belonging to Sani Abacha. The IO of the case had acknowledged receipt of the said letter, although in the witness box, she claims she could not remember receiving it. But the fact remains, a stamp bearing a name accompanied by her signature brings home the evidence of receipt by her. S/N LVib3sJrsEGiAlk5It5x5g Sufficient Alcontara notice [7] Sufficient notice comprising particulars as to the mode and manner by which the accused had come into possession of the Myvi car he had driven and the package of drugs found in the said car was clearly explained both in the police report lodged by him as well as the letter written to the IO supplemented by the SD which was furnished to the IO, but she turned a blind eye to all those information, merely claiming she has no knowledge of it, despite having received it. [8] His defence is that the car and the impugned drug found inside the car belongs to Sani Abacha. It was properly explained and that he has no knowledge of the contraband stands unrebutted, simply because it was not investigated. Version of the accused vis a vis Sani Abacha was not plucked from thin air but supported or corroborated in law by the SD of Stanley Ogueri was also conveniently ignored by the IO. As the law stands, the IO shall investigate and inquire into the defence or explanation advanced by the accused at the earliest possible opportunity, pursuant to the leading authority by our apex Court in the case of Alcontara a/l Ambrose Anthony v PP (1996) 1 MLJ 209 but not complied with by the IO. That leaves the defence and explanation put forward by the S/N LVib3sJrsEGiAlk5It5x5g accused, not investigated, which prejudices him, as his claim of innocence with regard to the impugned drug found inside the car was not investigated into by the IO in order to verify on the probability and/or truth of his explanation. [9] Adding up to that was the conversation between the accused and Sani Abacha which was also totally ignored by both the RO and IO. The RO chose to suppress the existence of the handphones seized from the accused by not disclosing it to the IO and the IO who came to be aware of the existence of Sani Abacha who was in contact with the accused before arrest, has blatantly ignored it. Furthermore, it has been proven by the defence, that Sani Abacha is no fictitious person, but an existing individual, as the copy of his passport was obtained by Stanley Ogueri and disclosed in his SD. Moreover, the white Myvi car driven by the accused in which the impugned drug was found, its ownership and/or rental was also not investigated into. The accused had offered explanation at the earliest opportunity that the said car was allowed by Sani Abacha to be driven by him after a football game but it was not investigated into by approaching the registered owner, one Mekanathan a/l Muniandy or another Janardhan Nair a/l Kumaran. Hence, the version of the accused, that the car was loaned to him by Sani Abacha which had contained S/N LVib3sJrsEGiAlk5It5x5g the impugned drug stays true until the end of the case of prosecution. [10] In the absence of the above material investigation into the case which in fact leads to the fact that the version of the defence could be probable and/or true, leaves a reasonable doubt in the case of the prosecution. The impression left at the end of the case of prosecution is that, both the RO and IO were only pin-pointing the accused as the trafficker when the actual or real trafficker could be Sani Abacha. Furthermore, failure to investigate into the existence of Sani Abacha and his role and/or involvement in the case, leaves a reasonable doubt in the case of prosecution, especially so when the accused has laid his cards by virtue of his police report and his letter P24 accompanying a SD P22, which was blatantly ignored by the IO. So, there was no investigation conducted to disprove the material facts advanced by the accused as his defence, implicating Sani Abacha, who is not a fictitious individual but real. [11] Therefore, the accused who is facing a death penalty charge, cannot be penalized for the lack of fairness, transparency and accountability by both the RO and IO of the case. The impugned drug forming subject matter of the drug trafficking charges is found inside the car which was loaned to the accused by Sani Abacha was S/N LVib3sJrsEGiAlk5It5x5g completely ignored when it was rearing its ugly head in the course of investigation from the earliest point of arrest of the accused, followed by raid and seizure of the impugned drug. The explanation given by both the RO and IO, for not investigating the version of the accused and dismissing it to be inconsequential, since he was arrested with the impugned drug, is unfathomable in law, as it is their bounden duty to investigate the crime allegedly committed by the accused with all fairness and frankness, regardless of his position as a suspect in the case, who had disclosed his defence at the earliest opportunity. In that respect, the accused has been denied of his right to a fair trial, occasioning oppression and miscarriage of justice. (See Mraz v The Queen (1955) 93 CLR 493 approved in the case of Lim Hock Boon v PP (2007) 1 MLJ 46). [12] Details of Sani Abacha’s name and other personal particulars like passport number, address and contact number were provided to IO of the case for her to enquire and investigate, two (2) years before commencement of trial, but not heeded to. It is a fact in a criminal trial like the present, that it is not only the case of prosecution that has to be considered by this court, but also version of the accused advanced to this court when the prosecution witnesses (PWs) were cross-examined at length. It is never the case that only if the S/N LVib3sJrsEGiAlk5It5x5g accused is ordered by the court to defend himself, his version has to be considered. His version put to the PWs at the earliest opportunity when they were cross-examined, like in the present case where the existence, role and involvement of Sani Abacha was imminent and put to both the RO and IO of the case, but it fell into deaf ears. Both of them had refused to verify the probability and/or truth of his version. They had merely taken an easy way out by approaching the investigation of the case as open and shut, as the accused was arrested with the impugned drug. [13] But in law, the version placed before the PWs which had remained unrebutted, has the effect of raising a reasonable doubt on the case of prosecution, rendering its case not to be water-tight, but lacking credible evidence that there is prima facie proof that the accused was trafficking drugs. It cannot be gainsaid that the accused in this case has fully complied with the law when he has repeatedly raised the issue of involvement of Sani Abacha with the impugned drug, since the time he was arrested, during the raid, prior to commencement of trial and during the trial. Logically, he cannot be faulted for belated disclosure and that his version to both the RO and IO and to this court as an afterthought. Emphatically, his version to the court and prior to the trial, is a complete answer and S/N LVib3sJrsEGiAlk5It5x5g explanation to the charges of drug trafficking levelled against him by the prosecution, thus dislodging its case to the core. (See the case of Ling Tee Huah v PP (1982) 2 MLJ 32). Moreover, with the details given on Sani Abacha, a good Alcontara Notice exists in the context of his defence as an innocent carrier, as similarly described by our Chief Justice in the case of Maria Elvira Pinto Exposto v PP (2020) 5 CLJ 1 FC. Maximum evaluation of the evidence adduced [14] It is settled and trite law that this court has to embark on a maximum evaluation of the evidence adduced by the prosecution via its witnesses who were examined in chief, cross-examined and re-examined. After the entire filtering process of examination during the trial, what is left are denials and explanation by the accused as to the manner in which he had driven the car which was loaned to him by Sani Abacha, which he does not own but borrowed from other individuals including Mekanathan and Janardhan, who were not called to testify as PWs. [15] The prosecution has to be mindful that if the impugned drug is found in a car, the fact that the car was accessible to all and sundry matters a lot in terms of criminal culpability, as even if the accused, like in the present case had driven the car prior to his arrest, it is a settled S/N LVib3sJrsEGiAlk5It5x5g fact that he is not the sole person who had handled the car. In the present case, the accused had repeatedly told the RO and later vide letter to the IO that he has nothing to do with the car and the impugned drug found in the car which was neatly packaged and inconspicuous to the naked eye. In that respect, since both the RO and IO deems it unfit to investigate on the existence and involvement of Sani Abacha, then it is only proper and prudent for the prosecution to have called him as a witness to testify against the accused. Sans his testimony, there is a huge gap left in the case of prosecution, inviting this court to invoke the adverse inference pursuant to section 114 (g) of the Evidence Act 1950 (EA/Act 56) as if he is called to testify, his testimony may favor the accused and be a complete defence to the charges of drug trafficking levelled against him. On that score, benefit of the doubt shall lean towards the accused, whose defence is essentially that it is Sani Abacha’s car, whom he had borrowed from for a fleeting time period to move from one point to another, not knowing if the package found on the floor bed at the passenger seat, in fact contained dangerous drugs. In law, that per se negates mens rea possession of the impugned drug which is the subject matter of the charges P2 and P4 for offences of drug trafficking. S/N LVib3sJrsEGiAlk5It5x5g [16] His version to the investigators of the case and to the court also smacks on an inherent probability of a fact in issue, that mens rea possession of the impugned drug was not his but of Sani Abacha. His version has been consistent, leading to incongruence in the case of prosecution with that of the accused, on the finding of the impugned drug inside the car, from which the accused had alighted. (See the decision of the Federal Court in the case of Dato’ Seri Anwar bin Ibrahim v PP & Another Appeal (2015) 2 CLJ 145) and also Muniandy & Ors v PP (1966) 1 MLJ 257). [17] In sum, juxtaposing the case of prosecution with that of the version of the accused, the case of prosecution leaks with inconsistencies and doubt. The following testimonial evidence says it all: • The RO had confirmed that at point of arrest of the accused, he had said to him, “It is Abacha’s, I don’t know, I don’t know”. • He too confirmed that the Parcel to Post courier envelope was intact, closed and sealed and he had not opened it. • Thus, the accused was not going around on a frolic driving with an open source full of drugs on the floor bed of the Myvi car in broad daylight. • He had only driven the car for about fifteen (15) minutes before he was arrested when alighting the car. S/N LVib3sJrsEGiAlk5It5x5g • The target of raid by SP2 is the Myvi car bearing registration number PLH1536, driven by an individual. • Hence, the individual could be Sani Abacha and not the accused, whom are both Nigerians. • The said car arrived at the side of Jalan Puncak Gading, Taman Connought Cheras. It was parked and the accused had alighted from the car. Upon alighting, he was arrested by SP1 and his team. • On examination of the inside of the car, SP2 and his team found on the front passenger side, at the foot rest, dangerous drugs larger in content and weight, to wit, 93 packets of compressed cannabis weighing 529.1 grams, produced in court as P16 (1-93) and P40 (1-5). Further 20 capsules containing meth weighing 184.04 grams, produced in court as P19 (1-20) as well as P20 (1-4). All these drugs were found inside a parcel bag P22, inside which was another Gardenia plastic bag P15. • The handphones seized were totally excluded from the search list nor it was shown to the IO for further investigation. • Messages or conversation recorded in the handphone could be crucial to enquire if the version by the accused is true. S/N LVib3sJrsEGiAlk5It5x5g • Apparently, both the accused and Sani Abacha were in communication, as they were friends, and although his handphone was seized by SP1 but not listed out in the seizure list nor handed over to the IO SP2 for forensic investigation. • The content of the handphone was not analysed and investigated. The IO merely testified, she found it not important and left it be. That explanation is unacceptable on the face of the assertion by the accused on the existence of Abacha and his car. • The accused would not have lied, as he dared himself to lodge a police report explaining his innocence and how he had gotten himself to drive the car loaned to him by Sani Abacha. That was also confirmed by his friend Stanley Ogueri. • To reiterate, the communication between him and Abacha via handphone would be crucial and sans that piece of information, this court is deprived of material evidence, which has the effect of negating criminal culpability of the accused. In all fairness and justice, benefit of doubt operates in favour of the accused. What is left is that Sani Abacha went missing. • Conduct of the accused stands parallel to his innocence, as he did not react overtly when he was arrested and confronted with the impugned drug found in the Myvi car driven by him at the material time. S/N LVib3sJrsEGiAlk5It5x5g • Hence, in a nutshell, twist to the arrest, raid and drugs found inside the car is the following - o The accused has alerted SP1 and his team, the car belongs to his friend Abacha, from whom he borrowed. o He was merely driving the car to the place, without knowing what is inside the car. o Very much later, he lodged a police report to that effect. o Following to that there was also a statutory declaration (SD) affirmed by a friend of the accused confirming the borrowing of the car by the accused, and before that borrowing, the declarant was all the while with the accused. o On the existence and content of both the police report and SD, denial by the IO was blatant, as when shown to her by counsel for the accused during cross examination that the letter sent to her was duly acknowledged by her, she agreed that both the documents exist and she did not take positive steps to investigate into it. She has also admitted in court that she had heard the accused smattering the name Abacha earlier but she did not pay heed to it, as she claims the English spoken by the accused was incoherent. She too admits, Abacha exist as an individual and not fictitious. S/N LVib3sJrsEGiAlk5It5x5g o The production of the police report and SD, acknowledged receipt by the IO lends credence to the defence advanced by the accused which was not an afterthought or a belated disclosure but made clear to both the RO and IO at the earliest opportunity during arrest and before trial. o The confirmation by the IO that Abacha do exist, only goes to support the defence of the accused as an innocent carrier, and that he was only in momentary possession of the package P22 inside the car driven by him, without knowing its content. o Ensuing from that, P22 found inside the car, its ownership and subsequent rental not investigated into by SP2, also throws a reasonable doubt on the mens rea possession of P22 and its dangerous drugs content. o As such this court is unable to arrive at an affirmative finding of mens rea possession before it could invoke the presumption of trafficking pursuant to section 37 (da) of the DDA. Law applicable [18] The legal position is, if the accused is able to demonstrate to the court, like in the present case, that he is only an innocent carrier, it S/N LVib3sJrsEGiAlk5It5x5g serves as a complete defence in a drug trafficking case. His Lordship Suriyadi Halim Omar FCJ (as he then was) had decided in the case of Munuswamy Sundar Raj v PP (2016) 1 CLJ 357 (FC) in the following terms: “… the defence of innocent carrier is a valid defence that could be alluded to by an accused person, and in this case the appellant. A plethora of cases sprinkles the legal journals in Malaysia and suffice if we merely refer to a chosen few to clarify this defence without the need for comprehensive judicial activism. The Court of Appeal in Venkatesan Chinnasami v PP (2011) 1 LNS 1736 put it aptly in the following terms: … A defence of innocent carrier refers to a state of affairs where an accused person acknowledges carrying, for example a bag or a box, as in the case before us, containing the dangerous drugs but disputes having knowledge of the drugs. Whether it will succeed or not would very much depend on the facts of each case. In the present case, the accused was only with the car which was borrowed from Sani Abacha for a short period of fifteen (15) minutes, a duration of time which is short enough for a reason for suspicion or even for an opportunity to examine the package found in the car, as the car has to be returned once the accused has finished his chore. In that circumstance ignorance of the package of the impugned drug in the car tantamount to be a good defence. (See S/N LVib3sJrsEGiAlk5It5x5g again Munuswamy Sundar Raj v PP; Hoh Bon Tong v PP and Tan Ah Tee v PP (1980) 1 MLJ 49). Findings and Conclusion [19] Ensuing from the above, this court at the end of the case of prosecution was unable to conclude that there is a prima facie case made out or proved against the accused of the offence of mens rea possession, as a starter, before the presumption of drug trafficking pursuant to section 37 (da) of the DDA could be invoked, by sheer weight of the drugs cannabis and meth seized from the car driven by the accused which was borrowed from Sani Abacha. [20] As alluded to above, it is legitimate for this court at the end of the case of prosecution to scrutinize the evidence adduced by the prosecution which was vehemently cross-examined by counsel for the accused whom had conducted her case ably, diligently and with foresight, as to what the accused had said to the RO contemporaneously at point of arrest and also the surrounding circumstances under which the accused acted. It is also not wrong for this court to say that the state of mind of the accused could be gathered from the evidence of what he said at point of arrest, which comes within the excited utterance rule, relevant pursuant to section 6 of the Evidence Act 1950 forming part and parcel of the narrative S/N LVib3sJrsEGiAlk5It5x5g in which the accused was involved with and subsequently arrested. (See illustration (a) to that section and by analogy, see also the case of PP v Badrulsham bin Baharom (1986) 2 MLJ 585). [21] Therefore, at the close of the case of prosecution, on the face of explanations and denials by the accused at point of arrest, later by letter and SD to the IO of the case, and also put to the PWs, the RO and IO of the case during the trial, thus confirming his innocence fortifies my view that there has been absence of credible evidence proving the ingredients of the offence of drug trafficking in order to enable this court to order the accused to enter on his defence. Ensuing from that, the accused is acquitted and discharged of the first and second charge for offences of drug trafficking. Accused acquitted and discharged of the charge of drug trafficking at the end of the case of prosecution. Dated 12 April 2025 SGD Muniandy Kannyappan Judge, High Court 2 (Criminal) Kuala Lumpur. S/N LVib3sJrsEGiAlk5It5x5g Parties DPP Izalina binti Abdullah with DPP Nur Aqilah Ishak for and on behalf of the Public Prosecutor for the prosecution. DC Grace Nathan of Messrs. Grace S. Nathan for the accused. S/N LVib3sJrsEGiAlk5It5x5g