Hassan Bin Nawali v Public Prosecutor (S-05(M)-437-12/2016)

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1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) SANDAKAN CRIMINAL APPEAL NO: S-05(M)-437-12/2016 BETWEEN HASSAN BIN NAWALI … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [In The Matter of the High Court in Sabah and Sarawak At Sandakan Criminal Appeal No. SDK-45A-1/2-2015] BETWEEN PUBLIC PROSECUTOR AND HASSAN BIN NAWALI CORAM: David Wong Dak Wah, JCA Hamid Sultan Bin Abu Backer, JCA Kamardin bin Hashim, JCA Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of The Court) 2 GROUNDS OF JUDGMENT [1] The appellant’s appeal on conviction and sentence in relation to a charge under section 39B(1)(a) came up for hearing on 26-9-2017. We allowed the appeal principally on the ground that the learned trial judge had failed to give due weight and consideration to the defence story. [2] In the instant case, the appellant’s evidence of his incapacity on medical grounds to discredit prosecution’s sole witness evidence was not debunked by the prosecution at the prosecution stage and/or at the defence stage, thereby making the conviction and sentence unsafe. In addition, the prosecution evidence through PW2 as well as chemist evidence to link the accused was in our view, weak evidence to establish a prima facie case more so when the arrest was as a result of prior information by an informer. Further, the chemist report in respect of DNA was not conclusive to implicate the appellant. [3] It must be emphasized here again and again that the hallmark in writing judgment in criminal case substantially requires the trial judge to weigh the case of the defence even though at the most it will only stand as a story without supporting evidence. The story has to be contrasted with the version of the prosecution and their witnesses, and whenever possible, the court is obliged to take the most favourable evidence or contradiction which will corroborate or support the defence story and decide whether a conviction or acquittal ought to be granted. The threshold in criminal cases to accept the defence story generally is low and only in cases where presumption or it’s like, the story of the defence must be able to create a reasonable doubt in the mind of the trial judge. To create a reasonable doubt, the court has gone to the extent of saying 3 a plausible explanation by the accused is sufficient. That is to say, there are two standard of proof to weigh the defence story. Generally for penal code offences, creating a doubt in the mind of the judge is sufficient, whereas for drug offences, etc. the standard of proof rests on achieving the requirement of what we call as reasonable doubt. Support for the proposition is found in a number of cases. To name a few are as follows:

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(1) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecution;

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(2) The evidence must be such as to exclude to a moral certainty every reasonable doubt of the guilt of the accused;

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(3) In matters of doubt it is safer to acquit than to condemn.”

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(ii) In Public Prosecutor v Noor Azman bin Abidin [2014] 1 CLJ 58, the Court of Appeal considered the case of PP v Saimin & ors [1971] 2 MLJ 16 and had this to say: "The hallmark of judgment writing in criminal case is achieved only when there has been a just and fair assessment of the defence story as long as it is not inherently incredible taking into consideration that it 4 is for the prosecution to prove its case beyond reasonable doubt at the prosecution case as well as the defence stage, notwithstanding the fact where the law may require the defence to rebut the charge on balance of probabilities. Lack of proper assessment will in actual fact compromise the integrity of the decision making process, making the conviction unsafe. The related jurisprudence on assessment of the defence case was eloquently stated by Justice Sharma as early as 1971 in the case of PP v Saimin & ors [1971] 2 MLJ 16 in the following words: A conviction cannot be sustained even if the court is satisfied that the prosecution story "may be true" unless and until it is found that the prosecution story "must be true." The burden of proof remains on the prosecution throughout the trial. If the learned magistrate was not satisfied with the case of the prosecution it was his duty to acquit and discharge the accused at the close of the prosecution case. The falsity of the defence does not relieve the prosecution from proving the prosecution case beyond reasonable doubt." [Emphasis added].

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(iii) In Public Prosecutor v Thenegaran a/I Murugan & Another Appeal [2013] 4 CLJ 364, the Court of Appeal discussed the jurisprudence relating to unsafe to convict and had this to say: "In the Singapore case of Yusof bin A Samad v PP [2004] 4 SLR 58, it was stated: In addressing the question whether there was any failure or miscarriage of justice or whether a conviction was unsafe, the court will ask itself the subjective question of whether it was content to allow the verdict to stand, or whether there was some lurking doubt that an injustice had been done to the appellant. 5 In our view whether it is a subjective or objective question or test it must in criminal cases be a decision where there is lurking doubt leans in favour of the accused. On the factual matrix of the case we find it unsafe to sustain the conviction substantially based on the testimony of SP2, in the absence of any independent witness or any other corroborative evidence to support the assertion that it was Lobo who slashed Murali and caused his death. [See Jandel Singh v State of Madhya Pradesh (SC) (2003) 2 LRI 609]." The Charge [4] The charged was under section 39B(1)(a) of the Dangerous Drug Act 1952 (DDA) for trafficking. The charge reads as follows: "Bahawa kamu, pada 07/01/2015 jam lebih kurang 12.30 tenghari, bertempat di kawasan setinggan Kg. Mangkalinau Batu 3 Sandakan, dalam daerah Sandakan, di dalam Negeri Sabah, Malaysia, bukan sebagai seorang yang diberi kuasa atau disifatkan sebagai seorang yang telah diberi kuasa di bawah Akta Dadah Berbahaya 1952, kamu telah didapati telah mengedarkan dadah berbahaya sejumlah 69.46 gram Methamphetamine. Oleh 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". 6 Brief Facts [5] The brief facts as well as the grounds of decision as summarized before us in a rudimentary style can be stated as follows: “1. On 7.1.2015, Inspector Solahuddin (PW2) led a drug raid with an information and description of a drug trafficker. PW2 saw the man as per description given and PW2 went and introduce himself as a police officer to that man. That man was later identified as the accused/appellant (OKT). OKT tried to run away but was apprehended by the police team. OKT then handed over a black plastic bag and found 3 transparent plastic packet contain clear crystalized substance suspected to be syabu. OKT was arrested and the drugs were sent for analysis at Jabatan Kimia Malaysia.

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(2) The fact that it uses the word 'presumption' does not mean that ss. 37(d) or 37(da) of the DDA independently can stand to say the accused is guilty of the offence. It only pushes on to the accused some burden to explain his involvement relating to the drug which is said to be in his custody, control and possession by fact or law. (para 16)

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(3) The law does not require for the presumption to be invoked per se by the judge. Presumption of law under s. 4 of the Evidence Act 1950 ('EA 1950') attaches by operation of law as long as the basic elements are satisfied. Whether the trial judge says in his grounds of judgment that it is a finding of actual possession or he is invoking the statutory presumption is immaterial as far as s. 4 of the EA 1950 is concerned. (para 19)

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(4) The fact that the drugs were found in the stomach and recovered when excreted satisfied the element of custody, control inclusive of possession by operation of law by virtue of s. 37(d) itself. In addition the fact that it was concealed in the stomach and was transported at least attracted more than two grounds stated in s. 2 of the DDA, i.e. concealing, transporting, etc. The positive element as opposed to the passive conduct to show intention to trade or deal in the drugs to attract trafficking will be satisfied by the irresistible 15 inference proposition to drive home the charge of trafficking pursuant to s. 2 of the DDA itself and without any reliance on ss. 37(d) or 37(da). (para 39)

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(5) On the factual matrix of the case a charge of trafficking could be sustained by application of s. 37(da) of the DDA.” [18] We do not find any merit in the appellant’s argument on sections 37(d) and 37(da). To put it simply, section 37(d) may assist the prosecution in all offences specified in DDA 1952. However, section 37(da) can only become operational once custody, control, knowledge with actual possession has been established. [19] In the instant case, the learned judge has rightly relied on the provision of section 37(d) but the evidence to rely on the provision related to section 37(d) is anchored on weak evidence, thereby not satisfying the test for prima facie case, to call for defence, as stated in a number of cases. Defence Case [20] Notwithstanding the prosecution evidence was weak, the learned trial judge also had not given weight to the story of the accused. The court is obliged to give weight to the story of the accused as long as it is not inherently incredible. In Phrueksa Taemchim’s case, the Court of Appeal at page 11 on this issue observed: “[16] What ss. 37(d) or 37(da) attempts to do is that it effectively changes the common law position which requires actus as well as mens rea for criminal culpability. However, the fact that it uses the word 'presumption' does not mean ss. 37(d) or 37(da) independently can stand to say the accused is 16 guilty of the offence. It only pushes on to the accused some burden to explain his involvement relating to the drug which is said to be in his custody, control and possession by fact or law. (see PP v. Yuvaraj [1968] 1 LNS 116; [1969] 2 MLJ 89 PC; Lee Chee Meng v. PP [1992] 1 CLJ 345; [1992] 1 CLJ (Rep) 168). [17] Section 37(d) or s. 37(da) also effectively changes the burden of proof placed on the prosecution in some aspect by whittling the test laid down in Woolmington v. DPP [1935] AC 462 – i.e. the beyond reasonable doubt test. (See PP v. Mohd Aszzid Abdullah [2008] 1 MLJ 281). And also places the burden on the accused to rebut the statutory presumption on the balance of probabilities. If accused fails to do so conviction will result. However, the concession for the accused is that notwithstanding ss. 37(d) or 37(da) attempts to place an onerous burden on the accused in contrast to the common law position, over the years courts have whittled down the 'test of balance of probabilities' in favour of the accused to an extent that it is sufficient if the story of the accused is not inherently incredible and that story when tested with prosecution case creates a doubt in the mind of the judge as advocated in Sochima 's case and which this panel has dealt with in a number of cases. (See (i) Munuswamy Sundar Raj v. PP [2013] 1 LNS 183; (ii) Zulkifli Md Rodzi v. PP [2013] 4 CLJ 250; (iii) Rozmi Yusof v. PP [2013] 4 CLJ 384;

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(iv) Tong Kam Yew & Anor v. PP [2013] 4 CLJ 470; [2013] 3 AMR 248). [18] In actual fact the so called burden on the balance of probabilities in drug cases have become illusory through the ingenuity of the counsel or courts, all for the single purpose of ensuring that a probable innocent person is not convicted by presumption, inference and statutory imposition in breach of art. 5(1) of the Federal Constitution which says: No person shall be deprived of his life or personal liberty save in accordance with law. What these presumptions have achieved is that it has now forced the accused to speak of his innocence when that was not the position under the common law.” 17 [21] On the issue of PW2’s evidence and its contradiction as to medical incapacity, the learned counsel had submitted in length and to save courts time we highlight some of the relevant parts only: “27. There is one more important issue we wish to highlight. PW2 told the Court that the Appellant held the bag plastic bag with his right hand. Q65. Bagaimana cara lelaki tersebut pergi ke garaj kenderaan di kawasan tersebut? Berjalan kaki sambil memegang 1 plastik hitam di tangan kanan.

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(ii) the appellant has failed to cast any reasonable doubt on the prosecution’s case. [23] We have looked at the appreciation of evidence by the learned judge in respect of the medical issue and we took the view that the learned judge without the benefit of medical evidence to support his surmise and conjecture ruled against the appellant. Expert evidence on important issues which will relate to culpability in criminal cases cannot be substituted by views on those issues by trial judge. The Federal Court, even in civil cases had ruled that the trial court cannot decide on technical issue without the benefit of expert evidence. There are tests to be conducted before one could say that a person has recovered from his illness and/or disability. [See U Television Sdn Bhd & Anor v Comintel Sdn Bhd [2017] 5 MLJ 292]. Much judicial time will be saved to repeat that part of the judgment related to medical issues which read as follows: “[14] While the prosecution is contending that the Accused was carrying the black plastic bag the Accused on the other hand suggested that it is impossible for the Accused to carry the said black plastic bag because he is a stroke patient. It was submitted that it is not possible for the Accused to run as alleged by the prosecution due to his condition. Further the Accused also suggest that he had been framed by the police and was subjected to police brutality. 23 [15] The issue of the medical condition of the Accused had been 15 established by the defence through the cross examination of PW1 (Dr. Ee Lay Ze). This witness was called by the prosecution to prove the fact that he had collected the blood sample of the Accused for DNA analysis. During cross examination of this witness PW1 told the court that the Accused was admitted to the Duchess of Kent Hospital Sandakan on 8th day of August 2013 for ischemic stroke. PW1 testified that at the time of admission his power over the right upper limb was 2/5 which means that he could not raise his hand vertically. His power over the right lower limb was 1/5 which means that he could not raise his right leg. PW1 agree that the Accused's condition could deteriorate. PW1 also testifying that he did not treat the Accused but state that if his condition did not deteriorate nor improve most probably he could not run. He also agrees that the Accused is currently on medication for high cholesterol. In re-examination the witness told the court that there is a possibility that the Accused may recover from the stroke but he will not go back to his premorbid state. He also said that if his condition improved, he could hold something in his right hand. [16] In view of the medical/physical condition of the Accused as confirmed by PW1 can we now say that the very foundation of the prosecution case has collapsed? Should the court take the evidence of PW1 on face value without considering other facts that has been established by the prosecution? [17] In this regard it must be pointed out that the offence was allegedly committed on 7th day of January 2015. The Accused was admitted to Duchess of Kent Hospital Sandakan on 8th day of August 2013. The offence was committed more than 2 years after he was admitted to the hospital for Ischemic stroke. Hence the PW1's evidence on the Accused's physical condition of 8th day of August 2013 has little relevance to his physical condition on 7th day of January 2015. From the photograph of the Accused at exhibit P3(5) and (6) it can be seen that he is able to squat down with his hands at his back, probably because he was handcuffed. The photographs at exhibit P4 (1) - (5) show that the Accused was able to stand up. Furthers in 24 his cross examination of PW2, the Accused suggested that he was supposed to go to Bandar Kim Fung, Sandakan to meet his wife to buy his medicine. He was at the scene waiting for a pirate taxi. This means that the accused had been walking from his house to the place where he was arrested. From the above facts it is safe to infer that he physical condition of the Accused have improved since the time he was diagnosed with ischemic stroke. In fact the Accused did not deny that he was at the scene which further confirms that he was able to walk from his house. [18] The Accused in his cross examination also attempted to cast doubt on the prosecution case when he challenged PW2's evidence that the Accused had attempted to run when he (PW2) introduced himself as a police officer. It was suggested that due to his condition there is no need for the Accused to run away. [19] In this respect the words used by PW2 was the Accused had attempted to run. In Bahasa Malaysia PW2 used the word "ingin melarikan diri". In my opinion the word "attempted to run" do not mean that the Accused had ran away after PW2 introduced himself as a police officer. PW2 did not say that the Accused had run away. In view of the fact that he Accused was not arrested at his house, it is safe to infer that he had walked from his house to the garage area where he was attested. Hence it is probable that he had done an act of attempting to run away after PW2 introduced himself as a police officer. [20] Further it was also PW2's evidence that he weigh the exhibit in the presence of the Accused when he was at the police station. It was revealed that the weight of the exhibit was 151.6 gram. In this respect, I take judicial notice that 151.6 gram is relatively light in term of weigh and it would not be difficult for the Accused, considering his physical condition, to hold it in his right hand. 25 [21] I am also of the opinion that it is highly improbable for the police to frame the Accused of this serious offence. While the prosecution did not call either member of the raiding team to corroborate PW2's evidence, in view of the fact that the arrest was done at a public place (as can be seen from the photograph at exhibit P3(l) - (3)), it is highly improbable for the police team to throw the black plastic bag to the Accused and then put it in his hands because such act can be seen by anyone happened to be at the vicinity of the scene. For the same reason, I am also of the opinion that it is highly improbable for the police team to assault the Accused in a public place. [22] In the circumstances, I am of the opinion that the Accused was the person who carried the black plastic bag containing drug with his right hand at the time of his arrest. The act of holding indicates that the accused was in control of the said plastic bag.” [24] It is well settled that to rebut the charge of trafficking a plausible explanation by the accused may be sufficient. In Public Prosecutor v Oo Boon Khim [2013] 1 LNS 986, the Court of Appeal dealt with the meaning of ‘plausible explanation and reasonable doubt’ in relation to acquittal and had this to say: "It is now well settled that the threshold requirement to rebut the charge of trafficking is low, as propounded by a number of cases which had considered Radhi's direction as well as the case of Sochima Okoye v Public Prosecutor [1995] 1 MLJ 538. [See Rozmi bin Yusof v PP [2013] 4 CLJ 384; Ahmad Mukammal bin Abdul Wahab & ors v PP [2013] 4 CLJ 949]. As long as the story of the accused is not inherently incredible the court has to test the story with that of the prosecution and if it creates a reasonable doubt in the mind of the judge it is sufficient to earn an acquittal. The test whether the story is capable of being accepted as not being inherently incredible must necessarily be one that demonstrates 'plausible explanation' to earn an 26 acquittal. The 'plausible explanation' proposition was advocated as early as 1981, in the Privy Council decision of Ong Ah Chuan v PP [1981] 1 MLJ 64 where Lord Diplock had this to say: 'Proof of the purpose for which an act is done, where such purpose is a necessary ingredient of the offence with which an accused is charged, presents a problem with which criminal courts are very familiar. Generally, in the absence of an express admission by the accused, the purpose with which he did an act is a matter of inference from what he did. Thus, in the case of an accused caught in the act of conveying from one place to another controlled drugs in a quantity much larger than is likely to be needed for his own consumption the inference that he was transporting them for the purpose of trafficking in them would, in the absence of any plausible explanation by him, be irresistible -- even if there were no statutory presumption such as is contained in section 15 of the Drugs Act. [Emphasis added].” [25] It is well settled that it is in the hands of the trier of facts to assess the quality of evidence and to determine whether the evidence on record justifies a conviction. Taking a holistic view of the facts of the case from the prosecution stage as well as defence case, we take the view that it will be unsafe to convict. In addition, the principle related to prima facie case and the requirement of credible evidence to call for defence in the instant case has been compromised. Further, failure to give sufficient weight to the defence story in relation to his medical incapacity which has not been debunked by the prosecution at all material stage of the proceedings compromises the integrity of the decision making process warranting the appellate court to quash the conviction as well as sentence. 27 [26] For reasons stated above, the conviction and sentence of the High Court is set aside and the appellant is acquitted and discharged of the charge. We hereby ordered so. Dated: 12 January 2018 sgd (DATUK DR. HJ. HAMID SULTAN BIN ABU BACKER) Judge Court of Appeal Malaysia Note: Grounds of Judgment subject to correction of error and editorial adjustment etc. Counsel for Appellant: Mr. Ken Yong [with Ms Noor Ilienna Rahayu binti Ibrahim] Messrs Ken Yong & Co Advocates & Solicitors Block B3, Lot 3, 1st Floor Bandar Labuk Jaya, Mile 7 North Road 90000 Sandakan, Sabah. Counsel for Respondent: Mr. Mohd Zain bin Ibrahim Deputy Public Prosecutor Appellate and Trial Division Attorney General Chambers Putrajaya.