JEFRI v Pendakwa Raya (B-05(M)-75-03/2023)

The appellant was charged for trafficking in dangerous drugs. The charge reads:- “Bahawa kamu pada 24.4.2019 lebih kurang jam 9.00 pagi bertempat di Bilik 101 Portview Hotel, No. 1 Jalan Sungai Aur, 42000 Pelabuhan Klang, di dalam Daerah Klang di dalam Negeri Selangor telah memperedarkan dadah berbahaya iaitu methamphetamine seberat 6022.3 gram dan dengan itu kamu telah melakukan kesalahan di bawah S/N iAqh8yjxU23MiugWo6gQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Seksyen 39B (1) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B (2) Akta yang sama.” The Prosecution Case [2] On 24.4.2019, acting on information received, the police party led by ASP Nurul Hafiz bin Mohamad (PW3) laid an ambush at a hotel, specifically at a room No.101 Portview Hotel, No.1 Jalan Sungai Aur, 42000 Pelabuhan Klang, Klang Selangor (hereinafter referred to as “the room”). Observation was first conducted outside the hotel and the hotel lobby. PW3 and two of his team members then headed to the room.

According to PW3 he knocked on the door of the room several times and after a while someone opened the door slightly. When PW3 introduced himself as a police officer that someone, later identified as the appellant, immediately closed the door and PW3 could hear that the door was locked from inside the room. Assisted by his two team members, PW3 managed to force open the door. As a result of the force entry, the hinge of the door was damaged.

Upon entering the room, PW3 saw the appellant standing near the window of the room. The appellant was said to be uncooperative in his arrest and as a result a scuffled ensued between him and PW3 and his two team members. The appellant was later arrested and handcuffed.

No incriminating item was found when a body search was conducted on the appellant. However, PW3 found the impugned drugs in a black Polo Louie backpack (P19) on the bed in the room. The impugned drugs were found in eight (8) “GUANYINWANG” Chinese tea plastic S/N iAqh8yjxU23MiugWo6gQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 packets in P19. The appellant’s passport and some cash were also found in P19.

The appellant and the seized items together with the relevant documents were handed over by PW3 to the investigating officer, Inspector Saiful Adzreen bin Mohamad (PW7) at around 11 a.m. on the same day.

On 26.4.2019, Dr Vanitha Kunalan (PW4) conducted examination and analysis on the impugned drugs and found them to be methamphetamine weighing 6,022 grams. Finding of the Learned Trial Judge [8] At the close of the prosecution’s case, the learned trial Judge (“LTJ”) found that the appellant had custody and control over the impugned drugs recovered from P19 in the room based on the following grounds: i. The appellant’s passport (P20) and cash of RM300 were recovered from P19 found in the room; ii. The access card to the room was seized together with the appellant by SP3 showing that the appellant was the person who rented the room. This evidence was further corroborated with the evidence by Mr Lee Yun Sheng (PW2) the Hotel Manager and the hotel invoice (P9) stating that the appellant was the person who rented the room; S/N iAqh8yjxU23MiugWo6gQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 iii. The statement of one Rusdalina binti Mohamed Hamza (P32), the Front Desk Manager who had identified the appellant as the only person who came to register himself as the hotel guest on 19.4.2019. Rusdalina binti Mohamad Hamza (“Rusdalina”) further identified P19 through the photograph shown to her as the bag which was carried by the appellant at the time when she registered the appellant as the hotel guest on 19.4.2019; iv. The DNA evidence; v. The footages (P11) showing the appellant’s images entering and exiting the room.

The LTJ was satisfied that the prosecution has proved a prima facie case against the appellant and ordered the appellant to enter his defence. The Defence Case [10] The appellant testified that he was working as a labourer at a construction site and lived in Telok Gong. According to the appellant he came to Malaysia from Northern Sumatra, Indonesia with a valid passport.

The appellant stated that he had received a call from his acquaintance in Indonesia known as Ronald who had requested him to assist Ronald’s brother by the name of Jahar who was in Malaysia (as an illegal immigrant) and wanted to return to Indonesia. The appellant was requested to give a copy of his passport to Jahar to enable Jahar to register at a hotel for a few nights before he return to Indonesia. S/N iAqh8yjxU23MiugWo6gQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

The appellant stated that he sent a copy of his passport to Jahar’s hand phone via WhatsApp for Jahar to rent a hotel room. According to the appellant he never met Jahar before.

On 23.4.2019 at around 10 p.m. the appellant went to the hotel and met Jahar to accompany Jahar whilst he was in Malaysia. The appellant himself had bought a ticket to return to Indonesia on 26.4.2019 via Port Dickson.

According to the appellant he had brought along a brown “Polo Sport” backpack with his name and hand phone number stated at the side of the backpack. The appellant further testified that he saw a black backpack belonging to Jahar in the room. It is the appellant’s testimony that he had never opened the backpack belonging to Jahar.

It is the appellant’s defence further that on 24.4.2019 at around 6.30 a.m. Jahar left for breakfast with his friends and the appellant was left alone in the room. At around 9 a.m. the appellant heard someone knocking the door to the room and upon opening the door, he saw two hotel staffs asking whether they could do the housekeeping. The appellant requested for the housekeeping to be done later in the afternoon as he wanted to continue sleeping. However, before he could close the door to the room, a few men barged into the room. The appellant alleged that his face was covered with adhesive tape and he was kicked and beaten. After the adhesive tape on his face was undone, the appellant saw some packets together with the backpack (P19) belonging to Jahar. According to the appellant he had never seen the packets before. S/N iAqh8yjxU23MiugWo6gQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6

It is the appellant’s defence that P19 belonged to Jahar and he knew nothing of its contents. The appellant further stated that it was Jahar who had checked into the hotel and he had no idea as to how his name, Jefri was stated in the hotel invoice. He further denied that the hand phone number 017-344 3013 stated in the invoice belonged to him. Finding of the Trial Judge [17] Summarily, the LTJ found that the appellant’s defence was denial of having knowledge of the impugned drugs found in P19 which according to the appellant belonged to Jahar. The appellant denied that he was the registered guest of the room and that it was Jahar who had checked into the hotel and used copy of his passport to register as the hotel guest.

The LTJ first found that the appellant’s version of having a valid passport upon entering Malaysia and was working as a labourer were never raised at the prosecution stage. The LTJ found that the appellant failed to show any letter of offer from his employer and to give details as to where he lived.

The appellant’s passport disclosed that he had entered Malaysia in February 2019 and had exited Malaysia on 2.3.2019. The appellant re-entered Malaysia on 15.4.2019. The LTJ opined that it was illogical for the appellant to frequently leave and entered Malaysia in a short span of time and at the same time was working as a construction labourer in Teluk Gong. In fact, the appellant agreed that based on his passport (P20) he had only the Social Visitor Pass without a valid Temporary Visit Work Pass (Pas Lawatan Kerja Sementara (PKLS)). The LTJ further found that the existence of Jahar was not proved. According to the LTJ, the appellant’s version that Jahar had borrowed his underwear was S/N iAqh8yjxU23MiugWo6gQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 unreasonable because the appellant had said that he had just entered the room at 10.00 p.m. the night before the raid and the very next morning, Jahar was said to have left the room. The appellant’s DNA was in fact found from the underwear when the appellant was alone in the room at the time the room was raided.

The LTJ further found that the appellant’s version that it was Jahar who had checked in and registered as the hotel guest using copy of the appellant’s passport cannot be believed as PW2, the Hotel Manager testified that a passport must be shown by a foreign guest upon registration at the hotel.

It was the LTJ’s finding that the appellant’s version cannot be believed and was satisfied with the credibility of the prosecution’s witnesses. The LTJ was further satisfied that the prosecution had proven a case beyond reasonable doubt that the appellant was trafficking in the dangerous drugs pursuant to section 2 of the DDA and sentenced him to death according to section 277 of the Criminal Procedure Code. The Appeal [22] Before us, counsel for the appellant raised various complaints against the decision of the LTJ. Learned counsel argued that the LTJ has failed to evaluate the evidence on a maximum evaluation and arrived at a wrong conclusion.

Firstly, the LTJ is argued to have erred in law and fact when he found that the appellant had the custody and control of the backpack, P19 where the impugned drugs were found. The LTJ had stated that the S/N iAqh8yjxU23MiugWo6gQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 appellant had custody and control of P19 by the fact that personal belonging i.e. the appellant’s passport (P20) was found in P19 and the recovery of RM300 cash as stated in the seizure list (P12). It was submitted by the learned counsel that nowhere in P12 that states the appellant’s passport and the RM300 cash were found in P19. In P12 it was stated that the passport and the RM300 cash were found in “Room 101”. PW3 testified that the RM300 cash was seized from the dressing table in the room. It was further argued that according to PW6 who is one of the raiding team members, the RM300 cash and the appellant’s passport were recovered after the entire room was searched and he could not remember whether there was any other item recovered from P19 although he stated he witnessed the whole seizure process. In short it was submitted that the LTJ erred in fact by failing to assess and evaluate the oral evidence of PW6 and the document P12 and that had create doubt on the prosecution case.

We have read PW3’s witness statement and his oral evidence. In his witness statement, PW3 stated that apart from the impugned drugs, the appellant’s passport (P20) was also found in P19. During cross-examination, it was suggested to PW3 that P20 was recovered from the table beside the bed to which PW3 disagreed. We find that the LTJ did not err in finding that P20 was in fact found in P19 together with the impugned drugs. Mere suggestion without more does not cast any doubts on the witness’s evidence. We are of the considered view that in the present matter, the failure on the part of the prosecution witnesses i.e. PW3 and PW6 to state or remember the exact place where the passport (P20) and the RM300 cash were recovered or found does not negate the fact that these items were recovered from the room in the appellant’s presence. It must be borne in mind that the P20 belonged to no one else S/N iAqh8yjxU23MiugWo6gQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 but the appellant. There was no evidence to show recovery of any other passport in the room. We have examined the appeal record and are satisfied that the omission/contradiction/discrepancy as to where the items were seized are not materially inconsistent with the prosecution’s narration of facts as to the recovery of the items together with the impugned drugs in the presence of the appellant who was the only person found in the room. We find no merit in the appellant’s argument on this issue.

Secondly, the LTJ was submitted to have erred in finding the appellant was the one who rented and/or registered for the room. It was contended that there was no observation conducted outside the room before the raid to show whether the appellant had indeed carried P19 into the room from 19.4.2019 until 24.4.2019. It was contended that there was no need for anyone to have an access card to enter the lift and the staircase of the hotel and as such the seizure of one access card from the room could not conclusively show that the appellant was the only occupier of the room.

We find the above contention are without merit. Even without the recovery of the access card or observation made before the ambush, the incontrovertible facts as found by the LTJ was that P19 was found in the room on the bed in the presence of the appellant alone at the time the raid took place. Custody and control of P19 and possession of the impugned drugs found therein can be inferred from the fact that the impugned drugs and the appellant’s passport (P20) were found in P19. The impugned drugs were hidden in P19 and securely wrapped in Chinese tea packages with the word “GUANYINWANG”. Plethora of authorities had held that when an accused person is so situated with respect to a moveable thing, S/N iAqh8yjxU23MiugWo6gQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 he is in fact having possession of that thing and has the power to deal with it as owner to the exclusion of all other persons and when the circumstances are such, he may be presumed to intend to do so in case of need (see PP v Abdul Rahman Akif [2007] 4 CLJ 337; Chan Pean Leon v Public Prosecutor [1956] 1 LNS 17; [1956] 22 MLJ 2367). Apart from the appellant’s passport found together with the impugned drugs in P19, the LTJ had supported his findings with the appellant’s conduct. We do not accept the appellant’s defence that he had opened the door to see to the hotel staffs whom the appellant claimed to have come to the room for housekeeping. The undisputed fact remained that the hinge of the door was damaged given the fact that PW3 and his team had to force opened the door since the appellant was reluctant to open it. Further, PW3 could hear the door was locked from the inside the room. There was no reason for the appellant not to open the door if indeed he was innocent because PW3 and his team had first knocked on the door and had mentioned that he is a police officer. We find that the appellant’s conduct is influenced by the facts in issue i.e. that he had knowledge of the impugned drugs which were in the room hidden in P19. The LTJ correctly inferred when he stated the followings: “[31] Mahkamah ini juga membuat inferens tentang pengetahuan Tertuduh ke atas dadah berbahaya tersebut yang merupakan suatu barang salah berdasarkan kepada kelakukan (conduct) Tertuduh semasa serbuan dibuat oleh SP3. Tindakan Tertuduh yang menutup semula pintu bilik serbuan itu daripada dalam bilik setelah SP3 memperkenalkan diri sebagai pegawai polis sehingga menyebabkan pasukan serbuan terpaksa memecah masuk bilik tersebut. Malahan juga telah berlaku pergelutan akibat keengganan Tertuduh memberikan kerjasama semasa dalam proses penahanan Tertuduh, sedangkan pada masa itu belum pun lagi dikenalpasti barang rampasan dadah S/N iAqh8yjxU23MiugWo6gQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 tersebut. Adalah jelas berdasarkan kelakuan Tertuduh tersebut bahawa Tertuduh mempunyai pengetahuan tentang barang salah yang dimilikinya dan barang salah itu adalah dadah berbahaya.”

The inference made by the LTJ is in line with section 8(2) of the Evidence Act 1950 which states: “8(2) The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.”

The appellant further contended that the invoice (P9) was only generated after the event and PW2 was not the person in charge of the registration for the room on 19.4.2019. Thus, it was argued that this could not confirm whether the registration of the room was indeed done using a passport which was a requirement of the hotel according to PW2. It was further argued that P9 itself was insufficient to prove that the appellant was the person who rented the room. However, the statement from the front desk person by the name of Rusdalina statement (P32) was accepted as evidence by the LTJ pursuant to s. 32(1)(i) of the Evidence Act 1950 as it was proven that Rusdalina had passed on. The appellant argued that the LTJ erred in relying on P32. We disagree. Under s.32(1)(i) of the Evidence Act 1950, statements made in the course of, or for the purposes of, an investigation or inquiry into an offence under or by virtue of any written law made by person who are dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under S/N iAqh8yjxU23MiugWo6gQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 the circumstances of the case appears to the court unreasonable, are themselves relevant facts (see section 32(1)(i) Evidence Act 1950). In P32, Rusdalina confirmed that the appellant was the person who registered himself at the hotel on 19.4.2019 and could identify P19 based on the photographs shown to her during investigation.

We find that the LTJ did not rely solely on P32. It cannot be disputed that the Appellant’s name was stated in P9. PW7 further investigated as to the occupant of the room and found that no one else but the appellant who had stayed in the room since 19.4.2019 until 24.4.2019 when the room was raided. PW7 had confiscated a few personal items belonging to the appellant such as toothbrush, underwear and cotton buds where the appellant’s DNA profile was obtained. CCTV recording was also obtained showing the appellant’s movement entering and exiting the room alone. No cogent reasons are proffered in rejecting PW7’s evidence as the Investigating Officer. The only contention is that his investigation is unsatisfactory. We find that there was sufficient evidence to show that the appellant was the only occupant of the room and we agree with the LTJ when he reasoned as follows: “[28] (d) Walaupun pekerja di ‘Frontdesk’ yang bertanggungjawab bagi pendaftaran masuk hotel oleh Tertuduh tidak dapat dipanggil memberi keterangan, namun Mahkamah ini telah berpuas hati bahawa prasyarat di bawah seksyen 32(1)(i) Evidence Act [Akta 56] telah dipenuhi dan oleh itu rakaman percakapan ke atas pekerja ‘Frontdesk’ yang berkenaan iaitu Rusdalina binti Mohamed Hamza yang diambil semasa dalam proses siasatan telah diterima masuk sebagai keterangan [ekshibit P32]. Berdasarkan ekshibit P32 tersebut, Rusdalina binti Mohamed Hamza telah mengecam Tertuduh yang merupakan orang yang membuat pendaftaran masuk ke hotel tersebut pada 19.4.2019 S/N iAqh8yjxU23MiugWo6gQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 secara seorang diri. Malahan beliau juga dapat mengecam beg hitam [ekshibit P19] apabila ditunjukkan dengan gambar berdasarkan bentuk dan warna beg tersebut serta terdapat jalur-jalur pada bahagian hadapan beg berkenaan;

Hasil siasatan oleh Pegawai Penyiasat (SP7) mendapati bahawa Tertuduh telah menginap di bilik hotel tersebut sejak 19.4.2019 dan SP7 tidak mendapati sesiapa yang lain turut tinggal di bilik serbuan tersebut sama ada orang lur mahupun pelawat yang lain. Malahan SP7 telah merampas barang-barang keperluan peribadi Tertuduh dari dalam bilik serbuan itu iaitu berus gigi [ekshibit P8(A) (2)I], seluar dalam [ekshibit P8(A) (1)] dan putik kapas [ekshibit P8(A) (3) I];

Hasil analisa oleh Muhammad Fauzi bin Ahmad, Ahli Kimia Forensik (SP1) ke atas barang-barang keperluan peribadi tersebut mendapati bahawa seluar dalam dan putik kapas tersebut adalah positif mempunyai DNA yang berpadanan dengan DNA Tertuduh. Ini mengesahkan lagi bahawa Tertuduh adalah satu-satunya individu yang tinggal dalam bilik serbuan tersebut. SP1 telah menyediakan Laporan Kimia No. Makmal 19-FR-B-10985 bertarikh 27.5.2019 [ekshibit P7]; dan

SP7 juga telah mendapatkan rakaman CCTV dan diterima masuk sebagai keterangan dalam Mahkamah [ekshibit P11]. Walaupun rakaman CCTV tersebut tidak secara berterusan, namun jelas ada menampakkan Tertuduh keluar dan masuk bilik serbuan tersebut.” [30] We disagree with the appellant’s argument that the prosecution should have produced the CCTV footages at the receptionist counter and outside the room from 19.4.2019 until 24.4.2019 and that the receptionist by the name of Chua who was on duty on 19.4.2019 should have been called to testify. We find that the prosecution witnesses had explained that S/N iAqh8yjxU23MiugWo6gQ the CCTV footages on the 19.4.2019 might have been overridden after a few days. Ultimately, cctv footages are merely corroborative evidence in nature. Corroboration must be in material particulars but it is not necessary that the whole prosecution story or all material particulars should be corroborated (see: Attan bin Abdul Ghani v Public Prosecutor [1970] 2 MLJ 143). We are of the view that adverse inference cannot be invoked due to the non-production of the CCTV footages from 19.4.2019 to 24.4.2019 and the non-calling of Chua as we find that there were affirmative links between the appellant and the impugned drugs. The strongest evidence and the first link adduced by the prosecution were the presence and close proximity of the appellant with the impugned drugs. [31] The next set of link relates to P19 which was placed on the bed in the room where the prosecution witnesses testified that it could easily be seen and opened. The fact that the appellant’s passport was found in P19 could only lead to an irresistible inference that P19 belonged to the appellant and no one else. The DNA profile obtained from the toothbrush, underwear and cotton buds seized from the room matched the appellant’s blood sample which shows the link of the room with the appellant as the occupant. These affirmative links tied together can only lead to an irresistible inference that the appellant not only have custody and control of the drugs but he had knowledge of the same. The affirmative links are further supported with the evidence of contemporaneous conduct of the appellant when the room was raided which further shows that the appellant knew what the police was looking for. [32] Thirdly, the appellant raised the issue on the failure of the LTJ to consider the presence of the mixed DNA profiles on the underwear seized S/N iAqh8yjxU23MiugWo6gQ from the room and submitted that this leads to a serious misdirection on the part of the LTJ. It can be understood from the appellant’s argument, the mixed DNA profile obtained from the underwear supports the appellant’s defence as to the existence of Jahar. The appellant testified that Jahar had borrowed the appellant’s underwear (P8(A)(1)I) on the night before the raid. We agree with the LTJ’s view as follows: “[72] (e) Adalah tidak munasabah juga keterangan Tertuduh yang mengatakan Jahar telah meminjam seluar dalam Tertuduh [ekshibit P8

(A) (1) I] pada malam tersebut sedangkan Tertuduh baru sahaja sampai di hotel itu jam 10 malam pada 23.4.2019. Seterusnya adalah tidak masuk akal juga apabila seluar dalam yang mempunyai DNA yang berpadanan dengan DNA Tertuduh boleh berada dalam bilik serbuan tersebut pada 24.4.2019 sedangkan Tertuduh hanya seorang diri dalam bilik serbuan itu tanpa kehadiran Jahar.” [33] At this juncture it is apposite to state the finding of the LTJ in regard to Jahar. The LTJ stated: “[72] (i) Walaupun Tertuduh cuba mengatakan bahawa Tertuduh telah memaklumkan peranan Jahar itu sejak awal ditahan polis dan juga memaklumkan kepada Pegawai Penyiasat, tapi tiada apa-apa keterangan yang dapat membuktikan perkara tersebut seperti rakaman percakapan beramaran ke atas Tertuduh sehinggalah pihak pembelaan menutup kes pembelaan. [73] Oleh yang demikian, Mahkamah ini mendapati versi pembelaan Tertuduh bahawa individu bernama Jahar yang mendaftar masuk ke hotel tersebut menggunakan imej paspot yang dia hantar melalui aplikasi Whatsapp kepada nombor telefon Jahar dan tentang beg sandang hitam yang mengandungi dadah berbahaya itu sebagai milik S/N iAqh8yjxU23MiugWo6gQ Jahar juga adalah tidak dapat dipercayai atau tidak dapat meyakinkan Mahkamah ini” [34] We agree with the LTJ’s finding in regards to Jahar. No cogent and convincing evidence have been adduced by the appellant to show that Jahar exists. We are of the considered view that the appellant had invented character to show that there was another person who occupied the room. We agree with the LTJ that the appellant’s defence did not cast any reasonable doubt on the prosecution’s case. [35] Returning to the mixed DNA profile found from the underwear, it must be emphasised that the incontrovertible fact remains that the appellant’s DNA profile was also found from it and the other contributor of the DNA profile cannot be ascertained (see the chemist report, P7). As such the other contributor of the DNA profile remained unknown and the mixed DNA profile did not prove that it was the DNA profile of Jahar. This evidence alone cannot support the contention of the existence of another occupier of the room. We are of the considered view that the mixed DNA profiles which were developed from the underwear has no relevance and weightage at all upon the culpability or otherwise of the appellant in the commission of the offence of trafficking of dangerous drugs preferred against him based on the circumstances and evidence alluded to earlier. Conclusion [36] We find no reason to reverse the conviction passed by the LTJ. Thus, having considered the issues raised by the appellant, we are satisfied that there is no appealable error on the part of the LTJ that would warrant our appellate intervention. We therefore affirmed the conviction passed by the LTJ under s. 39B(2) of the Dangerous Drugs Act 1952. The appellant’s appeal against conviction is dismissed. S/N iAqh8yjxU23MiugWo6gQ [37] On appeal against sentence, having considered the facts and circumstances of the case and the change in law, the appeal against sentence is allowed. The death sentence imposed on the appellants by the High Court is set aside and substituted with imprisonment of 30 years from the date of arrest on 24.4.2019 and 12 strokes of whipping. Dated:13th May 2025 Sgd Noorin Binti Badaruddin Judge Court of Appeal Malaysia LIST OF COUNSELS:

Ooi Pen Lyn; and

Azura Binti Alias [Messrs Gooi & Azura (Kuala Lumpur)] Counsel for Respondent TPR Faizal@Amrin Bin Noor Hadi [Deputy Public Prosecutor Attorney General’s Chamber] S/N iAqh8yjxU23MiugWo6gQ