M. Yusuf (w/n Indonesia) v Pendakwa Raya (P-05(M)-18-01/2018)

The appellant in this appeal is an Indonesian national and the skipper of a boat, KM Pangeran, which was registered in Indonesia. As a result of a raid conducted by the Enforcement Unit of Royal Malaysian Customs Department (Customs Department) headed by a Superintendent of Customs, Zamrose Abdul Malik (PW3), various assortment of drugs were found in the boat and the appellant and 4 of his crew members were arrested and charged in the High Court of Penang with 5 charges which read as follows: 1st Charge: “Bahawa kamu bersama – sama pada 8.9.2015, jam lebih kurang 10.00 malam, di Pangkalan Marin Kastam, Pengkalan Weld, di dalam Negeri Pulau Pinang telah didapati mengedar dadah berbahaya iaitu Methamphetamine seberat 5805.1 gram, dengan itu kamu telah melakukan suatu kesalahan di bawah Seksyen 39B[1][a] Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B[2] Akta yang sama, yang dibaca bersama seksyen 34 Kanun Keseksaan.” 3 2nd Charge: “Bahawa kamu bersama – sama pada 8.9.2015, jam lebih kurang 10.00 malam, di Pangkalan Marin Kastam, Pengkalan Weld, di dalam Negeri Pulau Pinang telah didapati mengedar dadah berbahaya iaitu 3,4 Methylenedioxymethamphetamine [MDMA] seberat 4807.2 gram, dengan itu kamu telah melakukan suatu kesalahan di bawah Seksyen 39B[1][a] Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B[2] Akta yang sama, yang dibaca bersama seksyen 34 Kanun Keseksaan.” 3rd Charge: “Bahawa kamu bersama – sama pada 8.9.2015, jam lebih kurang 10.00 malam, di Pangkalan Marin Kastam, Pengkalan Weld, di dalam Negeri Pulau Pinang telah didapati memiliki dadah berbahaya iaitu Ketamine seberat 0.37 gram, dengan itu kamu telah melakukan suatu kesalahan di bawah Seksyen 12[2] Akta Dadah Berbahaya 1952 yang boleh 4 dihukum di bawah Seksyen 12[3] Akta yang sama, yang dibaca bersama seksyen 34 Kanun Keseksaan.” 4th Charge: “Bahawa kamu bersama – sama pada 8.9.2015, jam lebih kurang 10.00 malam, di Pangkalan Marin Kastam, Pengkalan Weld, di dalam Negeri Pulau Pinang telah didapati memiliki dadah berbahaya iaitu Nimetazepam seberat 0.05 gram, dengan itu kamu telah melakukan suatu kesalahan di bawah Seksyen 12[2] Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 12[3] Akta yang sama, yang dibaca bersama seksyen 34 Kanun Keseksaan.” 5th Charge: “Bahawa kamu bersama – sama pada 8.9.2015, jam lebih kurang 10.00 malam, di Pangkalan Marin Kastam, Pengkalan Weld, di dalam Negeri Pulau Pinang telah memiliki racun iaitu Pseudoephedrine seberat 994.1 gram, dengan itu kamu telah 5 melakukan suatu kesalahan di bawah Seksyen 9[1] Akta Racun 1952 yang boleh dihukum di bawah Seksyen 32[2] Akta yang sama, yang dibaca bersama seksyen 34 Kanun Keseksaan.”

At the close of the prosecution’s case, the learned Judicial Commissioner found no prima facie case has been made out by the prosecution against the crew members and they were discharged and acquitted of all 5 charges. There was no appeal filed by the prosecution against the said decision. As for the appellant, he gave sworn evidence and was the sole witness for the defence. He was convicted and sentenced to death for the 1st and 2nd charges, six months imprisonment for the 3rd charge, four months imprisonment for the 4th charge and one month imprisonment for the 5th charge. All the imprisonment sentences were ordered to take effect on the date of arrest and to run concurrently.

His appeal before us is in respect of the said decision. We heard the appeal on the 24/1/2019 and 17/4/2019 and by a majority decision, his appeal was allowed and he was discharged and 6 acquitted of all charges. I dissented and my reasons for doing so are as follows. Salient Facts For The Prosecution 4. It is not in dispute that when the Custom Officers first came on board the boat, the appellant was not in it, only his crew members were. He was called by the 3rd accused who requested that he come to the Pangkalan Marin Kastam at Weld Quay where the boat was subsequently berthed and he did. He was present when the initial examination of the boat by the officers at 6.30 p.m. revealed nothing incriminating and in the subsequent one when the said drugs were discovered with the assistance of sniffer dogs from the Narcotic Unit of the Customs Department. These drugs were concealed in the wall at the back of the engine room and were only discovered after the said wall was demolished. Together with the drugs, a package containing one pistol, one bullet magazine and 31 bullets were also found in the same place. It was not in dispute that the drugs discovered, after the analysis by the Chemist (PW4), were of the type and weight as stated in the 5 charges and that these are drugs listed in the First Schedule of the Dangerous Drugs Act 1950 (“DDA”). Therefore, the first ingredient in respect of the 1st 7 to 4th charges have been satisfied. Likewise, the first ingredient for the 5th charge as the drug is listed under the Poisons Act 1952.

It is the second ingredient of the charge that is the element of possession of the drugs which was the bone of contention before the learned Judicial Commissioner and in the appeal before us. Before delving into that issue in respect of the appellant, just for completeness, I would just mention that at paragraph 43 of His Lordship’s grounds of judgment, he found that the 2nd to 5th accused has no custody and control of the boat as well as the drugs that were concealed behind the wall of the engine room.

In respect of the appellant, this was the learned Judicial Commissioner’s contrary finding at page 49 – 52 of the said grounds of Judgment: “[49] Dalam kes ini, OKT1 yang merupakan kapten dan juga pemilik Bot KM pangeran (keterangan ini juga tidak dinafikan dan dicabar) tersebut juga dijumpai kad pelautnya (ekshibit P15) bersama dengan kad pelaut OKT2 hingga OKT5 serta dokumen lain yang 8 menunjukkan bahawa kapal tersebut adalah milik OKT1 (ekshibit P13G (1-8), juga turut ditemui di dalam kapal tersebut oleh SP3. Bersandarkan kepada fakta ini, jelas membuktikan bahawa OKT1 mempunyai kawalan dan penjagaan ke atas Bot tersebut termasuk semua barangan yang berada di atas Bot tersebut. [50] Dalam kes Teh Hock Leong lwn PP [2008] 4 CLJ 764, di m.s 769 Mahkamah Rayuan memutuskan bahawa: “…we agree with the learned trial judge that the method employed to bring the drugs in question from Thailand into Malaysia was done in a most cunning fashion to escape detection by the authorities. The method employed to convey or transport a drug may sometimes furnish evidence of knowledge. For example, an attempt to carefully conceal a drug may indicate an intention to avoid detection and thereby point to knowledge. Of course it all depends on the facts of each individual case.” 9 [52] Berdasarkan kepada matriks fakta kes ini, saya bergantung kepada anggapan di bawah seksyen 37(f) Akta Dadah Berbahaya 1952 (Akta 234) yang berbunyi seperti berikut: “37. In all proceedings under this Act or any regulation made thereunder-

(a)…..

(f) If any dangerous drug is found to be concealed in any ship or aircraft it shall be presumed, until the contrary is proved, that the said drug is so concealed with the knowledge of the master of the ship or aircraft and has been imported in such ship or aircraft;”

On the final element of trafficking, the learned Judicial Commissioner relied on the definition of trafficking under section 2 of the Dangerous Drugs Act and the decision in Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64 and Public Prosecution v Abdul Manaf Bin Muhamad Hassan [2006] 3 MLJ 193 where conveyance of large quantity of drugs from one 10 place to another raises the inference that it was not for the accused’s personal consumption but for trafficking and that the accused must satisfy the Court on a balance of probabilities that it was for his own consumption before he can be acquitted of the charge of trafficking. The Defence 8. In essence the defence of the appellant was to put the blame on one fellow Indonesian from Acheh named Ali who he claimed was the previous owner of the boat and who sold the boat to him for 100 million rupiah. This sale said the appellant was witnessed by a friend, Md Noor, but the receipt for the payment was lost. He said 3 days after their arrival in Penang, Ali contacted him and requested him to bring back ‘jamu’ (herbal medication) and that he would collect the ‘jamu’ from him in Acheh. Ali promised to pay him 5 million rupiah for each box of the ‘jamu’ upon delivery. He was shown by Ali 12 boxes of this ‘jamu’ but not their content. However, the appellant said he did not accompany Ali to the boat to send the ‘jamu’ and an hour later Ali called him to say that he had done so and would be proceeding to Acheh. The appellant said the drugs seized from the boat belonged to Ali. 11

The learned Judicial Commissioner rejected this defence as being one of an afterthought as it was not supported by his caution statement (Ex.D118) and Ali was never brought up by the defence during the prosecution’s case. His Lordship cited at length the Federal Court’s decision in Tan Kim Ho & Anor v PP [2009] 3 CLJ 236 as well as this Court’s decision in Megat Halim Megat Omar v PP [2009] 1 CLJ 154 on the failure to cross-examine prosecution’s witnesses in support of an accused’s defence. That excerpt from Tan Kim Ho’s case (supra) is reproduced below: “[33] In our adversarial system of justice, the duty of each party is to show that his case is the truth. This is done by him adducing his own witnesses to support his contention. When it is the plaintiff or prosecutor who is adducing the evidence, his witnesses are subject to cross examination by the defence or the accused person. When a prosecution witness makes a statement of fact which is disagreed to by the defence it becomes the defence’s duty to, in whatever way, put to the plaintiff or prosecution witness that what the witness has said is not true. In 12 addition, he could also use the plaintiff’s or prosecution’s witnesses to adduce evidence to support his defence and to indicate what his defence is. This he is required to do to enable the plaintiff or prosecution to bring out evidence to disprove what the defence intends to adduce. If the defence does not in any way indicate by cross examination of those facts, those statements made by the plaintiff’s or prosecution’s witnesses must be accepted as true. Even if the plaintiff’s or prosecution’s witness does not say anything relating to the defence case, it is still the duty of the defence to bring out his case during plaintiff’s or prosecution’s case. In fact this duty to disclose his defence during the prosecution’s case is more relevant in criminal cases than in civil. This is particularly so when the plaintiff or prosecution’s witness is relevant to the fact in issue. In criminal cases, the prosecution does not know what the defence is going to be, except in alibi, until the defence adduces its evidence. [34] The failure of a party to put questions to his opponent’s material witnesses in cross-examination is said by Gopal Sri Ram, JCA in Aik Ming (M) Sdn Bhd & 8 Ors 13 v Chang Ching Chuen & 3 Ors & Another Case [1995] 3 CLJ 639 to be an abandonment of the pleaded case and may be barred from raising it in argument thereafter.”

His Lordship went on to consider the caution statement of the appellant (ExD.118) where the appellant did mention Ali and the ‘jamu’ that he was asked to bring back to Acheh but that he did not know Ali’s full name as he just knew him and could not remember Ali’s telephone number which he did not save. In the said statement he also said he did not bring the ‘jamu’ himself to the boat because some people say that it should not be done. The learned Judicial Commissioner noted the appellant had failed to give Ali’s personal details to enable the Investigating Officer to investigate and only gave description of Ali’s personal appearance in his witness statement. His reason for not bringing the boxes to the boat himself was merely to hide the fact that he know that the boxes contained drugs. As for the huge amount paid for him to deliver the ‘jamu’ i.e. totaling 60 million rupiah, the learned Judicial Commissioner noted that it was even more than half the cost of the boat and totally illogical for Ali to do so. The appellant should have ensured that the boxes indeed contained ‘jamu’ said His Lordship and he was therefore willfully 14 blind and therefore not an innocent carrier. Guided by the case authorities in respect of this defence such as Hoh Bon Tong v PP [2010] 5 CLJ 240, Munuswamy Sundar Raj v PP [2016] 1 CLJ 357 and PP v Herlina Purnama Sari [2017] 1 MLJ 499, His Lordship concluded that the appellant had knowledge of the impugned drugs.

Based on the appellant’s own admission in his witness statement where he answered to a question posed to him, viz, “S15 Adakah kamu tahu tanggungjawab sebagai tekong atau kapten kapal?. “J15: Sebagai Tekong Kapal, saya bertanggungjawab ke atas kapal dan barang yang saya bawa dan saya adalah orang yang ada kuasa penuh ke atas kapal dan kargo yang ada atas kapal.” the learned Judicial Commissioner found the appellant has custody and control of all that was on board the boat which were out in the open or concealed. He therefore concluded that the defence was a mere denial and a fabrication and the appellant has failed to rebut the presumption of knowledge under the said 15 section 37(j) of the DDA on a balance of probabilities as well as failed to raise any reasonable doubt on the prosecution’s case. Section 37(j) had been quoted in the learned Judicial Commissioner’s judgment which I had reproduced earlier. The Appeal 12. The appellant’s learned counsel in his submission before us raised only one issue and that is that the prosecution has failed to establish a prima facie case against the appellant as it has failed to prove that the appellant had custody and control of the impugned drugs. He highlighted the fact that it was the 2nd accused who was the person responsible for the engine room and as agreed by PW3 in his cross-examination at page 92 and 93 of the Appeal Record Volume 2A, the appellant has no custody and control over the drugs when the witness said as follows: “S: Sewaktu serbuan dilakukan, OKT boleh ambil barang salah ubah ke tempat lain? Tidak boleh. Kenapa tidak boleh? Kerana OKT1 tidak berada di dalam bot ketika itu.” 16

Learned counsel also stressed the fact that the boat and engine room were accessible to the crew and others. Reference was made to the evidence of PW3 at page 97 and 98 as well as page 102 of Volume 2A of the Appeal Record in support of the said contention: “S: Di tempat di mana bot-bot ini berlabuh, tiada apa-apa halangan untuk sesiapa menaiki masuk ke dalam bot dan keluar dri bot, setuju? Tidak tahu. Di tempat di mana bot-bot ini berlabuh, melalui jalan laut, tiada apa-apa halangan betul? Betul. … Sewaktu isi barang siapa keluar masuk naik bot kamu tidak tahu? Ya, tidak tahu. Rujuk P33 gambar bot, ini gambar bot sewaktu tangkapan? Ya. 17 Kalau dirujuk gambar bot, tidak ada apa-apa halangan seperti kunci, mangga dari luar masuk terus ke bilik enjin, betul? Betul. Bila tiada apa-apa halangan, sesiapa ada akses bot itu boleh terus ke tempat barang salah ditemui, betul? Betul. (Rekod Rayuan Jilid 2A, M/S 102) Kamu tidak tahu siapa yang naik kapal, siapa yang turun kapal sebelum serbuan? Betul.”

On knowledge, learned counsel submitted that the appellant’s conduct in voluntarily going to the boat upon being informed about the raid by the 3rd accused shows absence of knowledge for if he had such knowledge he would have run away. With respect, I am unable to agree with that submission because that call was made to the appellant after the raiding party boarded the boat but before the discovery of the drugs and it must be remembered that the drugs were not kept in some open space 18 but concealed behind a wall in the engine room. Surely such concealment would raise a certain amount of confidence in a person similarly circumstanced that it would not be easily discovered. In fact without the assistance of the sniffer dogs, the drugs would not have been discovered.

In her reply to the issue raised, the learned DPP submitted, inter alia, that defence of Ali being the original owner of the boat was never raised in the caution statement recorded from the appellant in this case but in that recorded by the police in respect of the firearm (ExD.123). This is a correct statement and it is also noted that the caution statement given to the police was recorded earlier i.e. 18/9/2015 whereas that to the Customs officer was on 9/12/2015 i.e. almost 3 months later. It may be that the appellant omitted to mention that fact because he had already mentioned it in earlier caution statement even though in both caution statements he did say the exact same facts about Ali giving him the ‘jamu’ and the other related events. The benefit of the doubt here must be given to the appellant. However, even with benefit of that doubt, it does not impinge on the prosecution’s success in proving a prima facie case against him because I am of the like mind as that of the learned Judicial 19 Commissioner that he had custody and control of the drug by virtue of being the skipper or master of the boat. There is a perfectly good and sound reason why the presumption under section 37(j) was enacted and that is because common sense and sheer logic dictates that a person who is the captain of an aircraft or a master of a boat by virtue of his position as such is the person in charge of the vessel and in full custody and control of it. The fact that the appellant was not physically present when the Customs Officers first raided the boat does not negate the fact that he was still the man who was overall in charge and therefore had control and custody of the vessel. What is most damming in this case is the fact that the drugs were not found in some accessible place in the boat where possession could be latched onto anyone else who had access to the boat but concealed behind a wall of the engine room which had to be demolished in order to retrieve the drugs. I stressed again the fact that had it not been for the sniffer dogs, the drugs would not have been discovered. Thus, custody and control of the drugs had been proven by the prosecution and with the aid of the said presumption under section 37(j) the element of possession had been established as well. I would even venture to say that even without the said presumption, in the given facts of this case from 20 the way the drugs were concealed, the only inference to be drawn is that it must be done with the appellant’s knowledge for it must be remembered that the appellant was not just the master of the boat but also its owner. It stands to reason that in his capacity as both master and owner of the boat, he was in possession of it and hence the drugs even though he was not physically present when the raid was first conducted. Unlike the owner of a house where drugs are found, he may not live in it or may rent it out but the master of a ship or the captain of an aircraft has to be in the aircraft though not all 24 hours in a day. Thus, it behoves upon the appellant in his defence to rebut the presumption of knowledge and to raise a reasonable doubt on the prosecution case.

Learned counsel for the appellant also submitted that the learned Judicial Commissioner had wrongly found that the appellant was trafficking under section 2 of the DDA because he concealed and transported drugs of such huge quantity. Learned counsel sought to distinguish PP v Abdul Manaf Bin Muhamad Hassan [2006] 3 MLJ 193 on the ground that the drugs were found on Abdul Manaf’s body i.e. tucked at the waist and in the pocket of his track top and trousers. 21

Although it is stated in the cited case that the mere act of transporting drugs from one point to another does not make an accused a trafficker but the Federal Court did say that whether he is one must be considered in the circumstances of the case including the quantity of the drug. It has also been decided that the larger the quantity the more probable it is that the drugs were not personal consumption but meant for trafficking. The manner of concealment has also been said to be a relevant consideration. Now given the huge quantity of the drugs in this case as well as the manner in which it was concealed coupled with the fact that it was carried in the boat, these facts would satisfy the usage of section 2 of the DDA as was done by the learned Judicial Commissioner and I am therefore of the view that the learned Judicial Commissioner has not erred in finding a prima facie case against the appellant.

As for the defence, it is clear from the evidence that the defence has failed to rebut the presumption of knowledge and raised a reasonable doubt on the prosecution case as held by the learned Judicial Commissioner. Not only was there justification to say that Ali was just a fictitious character cooked up by the appellant, 22 it is also totally improbable that Ali would be able to dismantle the wall of the engine room, hid the drugs there and then reconstruct the wall all within one hour for that was the period the appellant said when Ali left with the boxes from the appellant’s rented room and then called him from the boat to say that the deed was done. It is equally improbable for him not to save Ali’s contact number in his handphone when he was supposed to be paid upon delivery of the ‘jamu’ in Acheh. The accusation levelled against the Investigating Officer by his learned counsel that he failed to investigate Ali does not hold water because with that scanty details of just a first name and physical description, how was the Investigating Officer supposed to investigate? The defence was therefore rightly rejected by the learned Judicial Commissioner and on these considerations, I have decided to dismiss the appeal and affirmed the conviction and sentence passed by the learned Judicial Commissioner. Signed. (RHODZARIAH BINTI BUJANG) Judge Court of Appeal Malaysia Putrajaya Date: 15th July 2019 23 Note: This copy of the Court’s Grounds of Judgment is subject to editorial revision. Parties Appearing: For The Appellant: Mohd Irwan Bin Sumadi (Messrs Selvi Sandrasegaram) For The Respondent: Dhiya Syazwani Izyan Binti Mohd Akhir Deputy Public Prosecutor Attorney General’s Chamber Cases Referred To: