Liew Kee Sin (K-05(M)-435-11/2016)

Subsequently, at about 3.00 p.m. PW4 handed over the appellant and the said exhibits which also included 3 hand phones seized from the appellant as well as articles of clothing found in the trolley bag [as shown in the photograph at the bottom page of 271 mentioned earlier] to the Investigating Officer of the case, Customs Officer P. Jayadevan Naidu A/L Ponnusamy [PW8]. The material part of PW8’s evidence was his sending of the 20 compressed packets to the chemist for analysis which was done 5 on 22/08/2013 at 3.00 p.m. and he received them back on 21/11/2013 at about 12:00 noon. Prior to that the said packets were kept in a safe [“peti kebal”] at the Narcotic Office, just like all the other exhibits and that was also where the packets after analysis were kept. The chemist, Faesmaziana binti Napiah [PW3] confirmed receiving the 20 compressed packets and in her report [ExP33] stated that after analysis the same contained 15062.1 grams of Methamphetamine [ExP33]. We have only made a cursory mention of the chemist evidence as aforesaid given that the issues raised before us were not with respect to her evidence, and neither the weight nor the type of drugs but on the legal requirements to prove trafficking, i.e. that of possession and knowledge. As for the three Samsung hand phones, PW8 had sent the same to Mohd Zamri bin Hanan Basri [PW5] of the Customs Department’s Forensic Unit for analysis. According to this witness he was only able to retrieve the data in a process called acquisition from only one of the hand phones i.e. ExP63, but not the other two [ExP64 and ExP65]. The data was then analysed by his colleague, Almizan bin Yahya [PW6] who transferred the information he retrieved into a compact disc [ExP71] and who prepared a report [ExP70]. The image which was retrieved from the said hand phone was compiled in a folder and tendered in court as ExP74 [at pages 334- 337 of Appeal Record volume 3]. It is pertinent to note that one of the 6 images retrieved from ExP63 is that of the 20 compressed packets, the other two of the appellant with a woman and the last, that of another man.

The Learned Judicial Commissioner found that the appellant had both custody and control of the drugs as he was seen pulling the trolley bag and had opened that combination lock of the trolley bag. His Lordship then invoked the presumption of knowledge under section 37 (d) of the DDA and as for the element of trafficking, since he was caught carrying the trolley bag containing the drugs and was about to board a bus heading to Kuala Lumpur, such act, according to His Lordship came within the definition of trafficking under section 2 of the DDA. The appellant was therefore called to enter his defence to the charge. The defence [6] The appellant gave sworn evidence and called another witness, Mohd Saffie bin Hashim [DW2], a friend who fetched him from his house in Changlun, Kedah and dropped him to go to the Bus Terminal for his trip to Kuala Lumpur. DW2 testified that the appellant did not have any bag with him that day, in support of the appellant’s own evidence that was so. The appellant said he wanted to meet his wife in Kuala Lumpur to sort out their marital problems as they were getting a divorce. At the Bus Terminal he had arranged to meet his Thai girlfriend’s cousin by the name of Poo 7 Yai whom he had earlier met in Bangkok on 17/08/2013 in order to show him around as the latter was not familiar with Kuala Lumpur. It was Poo Yai, said the appellant who had the trolley bag with him and who left him with it as well as the Samsung hand phone ExP63 and its charger when Poo Yai went to the Bus Terminal’s toilet. This happened just a few minutes before the Customs officers swooped in on him. The appellant said that hand phone actually belonged to his girlfriend but was lent to Poo Yai because Poo Yai‘s hand phone was not working. The appellant also claimed that he told PW4 that the trolley bag did not belong to him and he denied unlocking it with the combination numbers, alleging instead that PW4 did it himself. The appellant of course disclaimed any knowledge of the drugs and he said he had also told PW8 about the trolley bag belonging to Poo Yai but which evidence was denied by PW8 when he gave evidence.

The learned Judge Commissioner in evaluating the defence questioned why the appellant never mentioned Poo Yai by name to PW4 upon his arrest and only referred to a Thai national and why he straight away bought his bus ticket upon reaching the Bus Terminal without waiting for Poo Yai since he claimed they were going to Kuala Lumpur together. His Lordship also questioned why would anyone want to leave his hand phone and charger just to go to the toilet and why were Poo Yai 8 and the appellant’s girlfriend not called to give evidence. All these question marks led the learned Judge Commissioner to find that the defence story was created just to deflect the attention of the court that the trolley bag was recovered from the appellant by PW4. His Lordship concluded that Poo Yai was a fictitious character and there were overwhelming evidence that the trolley bag belonged to the appellant since he was seen by PW4 pulling the trolley bag and had unlocked it using the combination numbers. As for DW2’s evidence, the learned Judge Commissioner found his evidence suspicious for the appellant never informed PW8 about this DW2 and only revealed his existence after 3 years [that is, from the time of discovery and arrest and the latter’s testimony in court]. The appeal [8] This was centred on the finding of possession and presumption of knowledge as well as the data from the hand phone ExP63, the existence of Poo Yai and the evidence of PW4.

Learned counsel for the appellant sought to disparage the prosecution’s case for a number of reasons, the first of which was PW4’s failure to state in his police report [ExP62] that the trolley bag was unlocked with combination numbers by the appellant. He cited the case 9 of PP v Ng Sing Ting and Anor [2008] 7 CLJ 247 and Kesavan Petchayo v PP [2003] 1 CLJ 84 where an omission of a material fact in a police report of the arresting/enforcement officer was held against the prosecution. Although no one could argue against the irresistible inference that the trolley bag belonged to the appellant because he had the combination numbers to unlock it, nevertheless to say that PW4’s evidence on this fact ought to be rejected purely on his omission to state so in his police report would be to negate the whole weight of his oral evidence, and that would be totally wrong. His police report was a piece of corroborative evidence and the very important fact which he must state in it was the discovery of the drugs and arrest of the appellant. This he had done. The said omission, in our view does not in any way made his evidence incredulous or incapable of belief. Furthermore, he had given a rational and acceptable explanation in his re-examination that when making police reports he only put in the details such as that of the accused, the date, time and place of the offence and “perihal kes”.

In respect of the existence of Poo Yai, we do agree with learned counsel for the appellant that there was a high probability that he exists, despite the fact that his name was not mentioned by the appellant upon his arrest. This we say because from the call log extracted from ExP63, Poo Yai’s name [but spelt as “Pu Yai”] was stated therein. However, the 10 fact that there was such a person alive does not mean that the charge against the appellant has not been proven beyond a reasonable doubt because if indeed he was present at the scene at that material time and had just gone to the toilet in the same vicinity, we failed to understand why the appellant did not say so and made an attempt, even a feeble one at that, to bring PW4 to the toilet to get him. This failure on his part shows conclusively to our mind that his defence that the trolley bag belonged to Poo Yai and that Poo Yai was with him at the Bus Terminal was a mere fabrication on his part.

On the issue of the incriminating photograph in the hand phone [ExP63], the appellant’s counsel submitted that the said hand phone did not belong to the appellant because PW8 did not investigate who the registered owner of the hand phone was – only that it was registered with a telecommunication company named Happy in Thailand. The message in the hand phone were also written in a foreign language [besides in English] which the appellant said he was not well versed in for he communicated with his Thai girlfriend in Mandarin.

Other than 4 photographs tendered as exhibits, some of the photographs in the hand phone appeared to have been taken as selfies. This proved, submitted learned counsel in his written submission, that the 11 said hand phone was not that of the appellant. Of course the strenuous attempt to disassociate the appellant with that hand phone was simply because of the photograph of the impugned drugs as stated earlier.

We digress now to mention that the compact disk containing the data from ExP63 was played in open court during the hearing of the appeal before us and the appellant’s counsel pointed out to us the photograph of appellant and his girlfriend as well as that of a man and woman who were not identified. It is to be noted that the compact disk was never played in open court before the learned Judicial Commissioner and if indeed there were evidence contained in this compact disk favourable to the defence, the appellant could only blamed himself for not requesting it to be adduced before the learned Judicial Commissioner. It was simply too late in the day to ask us to do so when it is trite law that as an appellate court we should only looked at or review evidence as they were adduced in the court below.

All these contentions however failed to persuade us at all to review the conviction because, firstly, any person having a smart hand phone would know that it is not only the owner of the hand phone who can take a selfie with it. Anyone who had access to such a hand phone can do so. Secondly, the fact that the number was registered in Thailand or that it 12 belonged to someone else equally could not absolve the appellant of the guilt because as the evidence show he was caught alone and red-handed with the trolley bag containing the drugs. More importantly, even without the evidence of the hand phone, the incriminating evidence against him – pulling the trolley bag and unlocking it with combination numbers, were just too damning. Further, his allegation that PW4 opened the trolley bag was simply incredulous given that it was locked with combination numbers. He was definitely in custody and control of the drugs at that material time and was in possession of the same because the aforesaid evidence satisfied the requirement of legal possession as decided in Chan Pean Leon v Public Prosecutor [1956] 22 MLJ 237.

As for knowledge of the drugs we agree with the learned Judicial Commissioner that the defence of the appellant as described above have failed to rebut the presumption of it as raised by the learned Judicial Commissioner. In this regard and at the risk of being repetitive, the most damning conduct of the appellant was knowing the combination numbers for the lock of the trolley bag. The sole and irresistible inference from that conduct would be that he knew what was inside the trolley bag and as shown in the evidence – both PW4’s as well as the photograph marked ExP30 [c], the compressed packets were placed openly in the trolley bag 13 without concealment. On this note, the fact that the two canvas bags were padlocked and no padlock keys were found with the appellant, still does not whittle away the sheer weight of the evidence that he unlocked the trolley bag with the combination numbers. Similarly on this score, the absence of his fingerprints on the said packets as submitted by his counsel was really of no consequence to his guilt.

By way of a conclusion we must state that we have resolved this appeal on the four issues considered above given that they were stated at the outset of the appellant’s counsel’s submission to us at the hearing. Unfortunately for the appellant, as we have indicated at the end of the hearing and despite not agreeing with the learned Judicial Commissioner that Poo Yai was a fictitious character, but on the other three issues resolved in the prosecution’s favour, the appeal was dismissed and His Lordship’s decision to convict and sentence the appellant to death was affirmed. Dated: 4 May 2018 RHODZARIAH BINTI BUJANG Judge Court of Appeal Malaysia Putrajaya Note: This copy of the Court’s Grounds of Judgement is subject to editorial revision. 14 Parties appearing: For the Appellant: Mr. G. Ravishankar; Messrs. R. Shankar Gandhi & Assoc. For the Respondent: Mrs. Norinna binti Bahadun; Deputy Public Prosecutor. Cases referred to:

PP v Ng Sing Ting and Anor [2008] 7 CLJ 247 2. Kesavan Petchayo v PP [2003] 1 CLJ 84 3. Chan Pean Leon v Public Prosecutor [1956] 22 MLJ 237