Lau Shui Jimg v Public Prosecutor (S-05(M)-443-09/2017)

Based on the record of appeal, there was no evidence that there was a break in the chain of evidence or that there was any doubt of the identity of the items and drugs seized. These facts were not in issue. [20] The evidence established that at the time the Appellant was arrested, he was carrying the brown paper bag containing the impugned drugs and there was no evidence of any ‘ubat sabung ayam’ which he alleged he was delivering to PW5. The learned JC had said that although the Appellant protested that he had no knowledge of the drugs inside the paper bag he was holding, the Appellant never bother to ask or check whether it contained the ‘ubat sabung ayam’ or otherwise since he alleged that it was brought back to the hotel room by the 2nd accused, which the 2nd accused denied in his cautioned Page 8 of 16 statement exhibit D1. The Appellant never said that the 2nd accused or someone else had asked him to carry the bag or that he did not have exclusive possession of the bag and the drugs. The evidence showed that the Appellant went to Lahad Datu intending to deliver the brown paper bag to someone, meaning he intended to part with it and had the power to deal with it as if it belonged to him to the exclusion of all other persons. From the facts and circumstances of the case, the Appellant knew it contained the drugs: see PP v Dinesh a/l Madhavan [2009] 2 MLJ 194; Siew Yoke Keong v PP [2013] 4 MLRA 99. [21] Secondly, both counsel for the Appellant and the 2nd accused did not cross-examine or challenge the testimony or findings of the chemist (PW1) as to his analysis carried out or the weight or nature of the drugs nor his report (exhibit P2) that the crystalline substances sent to PW1 for analysis contained 688.5 gram methamphetamine which is a proscribed dangerous drug under section 2 and Schedule 1 of DDA. By failing to cross-examine PW1, they had accepted the evidence of PW1 as such: see Samundee Devan a/l Kerishnan Muthu v Public Prosecutor [2009] 1 MLJ 697. [22] Based on the evidence adduced, and for the reasons given, the learned JC did not err in finding that the Appellant was found to be in possession of the said drugs and that the Appellant had failed to rebut the presumption under section 37(da) of DDA. [23] The question submitted before us was whether the defence story was consistent with exhibit D1. The Appellant (DW1) testified under oath that he knew Inspector Mat Nor (PW5) because he was once arrested and investigated by PW5 in Lahad Datu but was not charged Page 9 of 16 for any offence. Since then they became friends and in constant communication. He said on the day before he departed for Lahad Datu from Tambunan where he resided, he received a phone call from PW5 who requested him to look for ‘ubat sabung ayam’ and wanted the ‘ubat sabung ayam’ urgently. He said as he could not find the ‘ubat sabung ayam’, he promised PW5 to ask a friend to look for it. While he was on his way to the airport he received another phone call from PW5 and he told PW5 that he would be going to Lahad Datu with a friend, namely the 2nd accused. He brought his backpack and the 2nd accused also brought a backpack which were scanned at the security at Kota Kinabalu International Airport (KKIA). [24] After arriving at Lahad Datu, they checked into a room at Silam Dynasty Hotel which he shared with the 2nd accused. He said the 2nd accused then went out for about 10 minutes and came back with a brown paper bag. Subsequently he received a phone call from PW5 saying that PW5 would meet him at the hotel and upon arrival would send a SMS message for him to come out of the hotel to meet. Later he saw PW5 arrived in a car and he went to meet PW5. [25] Regarding the bag that was brought back by the 2nd accused, the Appellant said he did not check the contents of the brown paper bag. At the material time the 2nd accused was following him from behind and while they were walking towards PW5’s car, the 2nd accused suddenly decided to run away. He said he proceeded and entered PW5’s car and told PW5 that the ‘ubat sabung ayam’ was in the bag and PW5 instructed him to place the bag at his feet. He said PW5 did not open the bag and he (the Appellant) did not know the content of the brown paper bag. Page 10 of 16 [26] The Appellant denied any knowledge of the drugs in the bag and that was why he did not up a struggle or attempted to escape upon being arrested. He reiterated that it was the 2nd accused who had looked for the ‘ubat sabung ayam’. He denied that upon his arrest he was shown the contents of the bag which he said he was only shown the contents of the bag in the police station. He also said the 2nd accused bought and paid the air-tickets for the trip to Lahad Datu and that he did not know where the 2nd accused had obtained the ‘ubat sabung ayam’. He said since the 2nd accused was acquitted he did not know the whereabouts of the 2nd accused. [27] He said exhibit D1 confirmed the fact that he did not have and did not bring any brown paper bag when traveling to Lahad Datu and that the 2nd accused had admitted that the 2nd accused brought the brown paper bag back to the room purportedly containing the ‘ubat sabung ayam’. [28] In his defence, the Appellant relied on exhibit D1 to support or corroborate his defence. Reading the appeal record, during the prosecution case, counsel for the Appellant did not refer to nor put the contents of exhibit D1 to PW5 who was the police officer who seized and arrested the Appellant and to PW8 who was the investigating officer of this case. It was not put to them that the testimony of the Appellant was consistent with exhibit D1. It was not put to them that exhibit D1 confirmed the fact that the Appellant did not have and did not bring any brown paper bag to Lahad Datu and that it was the 2nd accused who brought the bag containing the ‘ubat sabung ayam’ to the hotel room after he went out of the room for about ten minutes. Page 11 of 16 [29] Based on the appeal record, it was counsel for the 2nd accused, when cross-examining PW8, who had referred to and tendered the cautioned statement of the 2nd accused as exhibit D1. At that material time the Appellant and the 2nd accused were present in court. This was the first time that D1 was referred to and produced in court by counsel for the 2nd accused, and not by the Appellant. This was well after PW5 had testified in court. D1 was never referred to PW5 nor was PW5 cross-examined on the contents of D1 when he was giving evidence. Failure by the defence to cross-examine the prosecution witness on a crucial part of the case not only went to the credibility of the Appellant and his defence but amounted to an acceptance of PW5’s testimony: Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212. [30] We now refer to the cautioned statement of the 2nd accused (exhibit D1). In his statement the 2nd accused referred to the Appellant as ‘David’. We must emphasize the fact that counsel for the Appellant never challenged exhibit D1 nor its contents. Counsel for the Appellant also did not challenge or objected to the admissibility of D1 as an exhibit or the weight to be given to it. To reiterate, at the end of the prosecution case, the 2nd accused was acquitted and discharged of the offence and the 2nd accused did not testify in the trial. The Appellant explained that since then he did not know the whereabouts of the 2nd accused and could not call him as his witness. However the Appellant placed reliance on D1 to support his defence. [31] In exhibit D1, the 2nd accused said his intention in going to Lahad Datu was to buy ‘ubat sabung ayam’ in Lahad Datu and to bring it back to Sibu, meaning he was not delivering the ‘ubat sabung ayam’ to Page 12 of 16 Lahad Datu or to someone in Lahad Datu. After arriving at Lahad Datu, they used a taxi to the hotel. After they checked into the hotel room, the Appellant went out for a while and came back to the room. He did not know where the Appellant went and he did not see the Appellant bringing anything back to the room. He said about one hour later, he said he wanted to get something to eat and he went down to the hotel café whereas the Appellant went out into the car park carrying a paper bag. He said he did not know the contents of this paper bag which the Appellant was carrying. He said while he was at the café, he heard noises and he quickly ran out of the hotel because he thought it was a robbery. He was then arrested and a body search was conducted but nothing was found on him. He was brought to the police station. He said the police made a search of their hotel room but nothing was found in the room. He said when the police searched them, the Appellant was carrying the paper bag containing ‘syabu’. [32] Before the trial, the 2nd accused had given notice of alibi to the police that at the material time he was in the café and not together with the Appellant in the car park. Again the Appellant did not challenge the notice of alibi or that the 2nd accused was never in the café. [33] The averments of the 2nd accused, instead of corroborating the defence, contradicted the testimony of the Appellant as follows: (i) that PW5 had asked the Appellant to look for ‘ubat sabung ayam’; (ii) after they checked into the hotel room, the 2nd accused went out for about ten minutes and brought back the brown paper bag purportedly containing the ‘ubat sabung ayam’ to the room; and (iii) that he and 2nd accused went out to the car park but the 2nd accused suddenly ran away. There was no explanation for these material contradictions. Page 13 of 16 Therefore the Appellant was in no position to submit that his defence was consistent with exhibit D1. In fact, in exhibit D1, the 2nd accused distanced himself from the Appellant in respect of the drugs found in the paper bag. [34] Based on the appeal record, PW5 was cross-examined and had denied that he had phoned the Appellant to look for ‘ubat sabung ayam’ or that he knew that the Appellant would be arriving Lahad Datu via ‘MASwings’ on that day. Reading the appeal record, there was no evidence of this communication or that PW5 had asked the Appellant to look for the ‘ubat sabung ayam’. On the contrary, the 2nd accused in exhibit D1 had said that he (2nd accused) intended to buy ‘ubat sabung ayam’ in Lahad Datu to bring back to Sibu. This raised doubts on the Appellant’s assertions that PW5 had asked him to look for the ‘ubat sabung ayam’. At the time of their arrest, there was no evidence of any ‘ubat sabung ayam’ except for the drugs found in the brown paper bag. [35] The Appellant had testified that he brought a backpack with him to Lahad Datu and that the 2nd accused also brought a bag containing a shirt. The Appellant did not say what was inside his backpack. The evidence adduced by the prosecution was that when the Appellant came out of the hotel, the Appellant was seen carrying something and he was arrested at the car park. He was not arrested inside a car which contradicted his allegation that he entered the car and was arrested inside the car. The evidence showed that at that time the Appellant was carrying the brown paper bag containing the drugs. In exhibit D1, the 2nd accused said the Appellant was carrying a paper bag which contained ‘syabu’. This paper bag, which was produced in court as the brown paper bag, was tendered as exhibit P19. PW5 found crystalline Page 14 of 16 substances inside this bag which PW1 confirmed to be methamphetamine. [36] In his judgment, the learned JC found that the Appellant was carrying the brown paper bag which was found to contain the drugs. He found that the Appellant knew of the contents of the bag which he was carrying and that the Appellant knew of the drugs. Accordingly the learned JC found that the Appellant was in possession of the drugs. Therefore the case of Zaruna Yusoff lwn PP [2016] 2 CLJ 258 cited by counsel cannot support the contention of the Appellant. The learned JC found that based on the weight of methamphetamine was more than 50 gram, the prosecution was entitled to rely on the presumption of trafficking under section 37(da) of DDA. He also found that at the end of the prosecution case the Appellant had failed to explain or rebut the presumption. On the facts and circumstances of the case, the learned JC was not plainly wrong in his findings as such. [37] We have scrutinized the record of appeal and that the learned JC had properly directed himself and had considered the defence and exhibit D1. The learned JC had dealt with the defence of the Appellant that PW5 had asked him to look for the ‘ubat sabung ayam’ and that his sole purpose of going to Lahad Datu was to deliver the ‘ubat sabung ayam’ to PW5 and the learned JC found that the Appellant had failed to adduce evidence to establish his defence as such. The learned JC also found that although the Appellant asserted that he did not know of the contents of the paper bag he was carrying, he failed to take any step to check that it contained the ‘ubat sabung ayam’ and not the drugs found inside. There was no basis for the Appellant to submit that the learned JC had failed to consider the defence of the Page 15 of 16 Appellant was consistent with exhibit D1 and on the record of appeal, the case of Derrick Randall lwn PP [2018] 3 CLJ 212 cited by counsel is not applicable. [38] After reading the record of appeal and in particular the defence, we agreed with the decision of the learned JC that the Appellant had failed to raise a doubt on the prosecution’s case. The prosecution had relied on the presumption of trafficking under section 37(da) of DDA and the learned JC ruled that the Appellant had failed to rebut the said presumption. The learned JC had also ruled that the prosecution had proved its case beyond reasonable doubt. Notwithstanding that the prosecution had relied on the presumption under section 37(da) of DDA and the learned JC ruled that the Appellant failed to rebut the presumption, in fact, based on the evidence, the Appellant travelled to Lahad Datu via ‘MASwings’ bringing the paper bag containing the said drugs intending to deliver it to someone but was arrested at the car park of the hotel. His activity as such came within the definition of ‘trafficking’ in section 2 of DDA: see Ong Ah Chuan v Public Prosecutor; Koh Chai Cheng v Public Prosecutor [1981] 1 MLJ 64. [39] Therefore, we were unanimous in our decision that there were no merits in the appeal and that the conviction was safe. The appeal was dismissed and we affirmed the conviction and sentence imposed. Dated: 29th November, 2018 signed STEPHEN CHUNG HIAN GUAN (delivering judgment of the court) Court of Appeal Judge Putrajaya Page 16 of 16 For Appellant : Ram Singh Messrs. Ram Singh & Co For Respondent : DPP Mohd Zain bin Ibrahim Attorney General Chambers