Micheal Arinzeh (Nigerian) v Pendakwa Raya (B-05(M)-30-01/2018)

Page 1 of 15 IN THE COURT OF APPEAL AT PUTRAJAYA CRIMINAL APPEAL NO: B-05(M)-30-01/2018 BETWEEN MICHEAL ARINZEH (NIGERIAN) (PASSPORT NO: A01458683) … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [IN THE HIGH COURT IN MALAYA AT SHAH ALAM CRIMINAL TRIAL N0S. 45A-134 &135-12/2015 BETWEEN PUBLIC PROSECUTOR AND MICHEAL ARINZEH] CORAM UMI KALTHUM BINTI ABDUL MAJID, JCA HARMINDAR SINGH DHALIWAL, JCA STEPHEN CHUNG HIAN GUAN, JCA Page 2 of 15 JUDGMENT OF THE COURT The Appeal [1] The appellant was charged for two offences under section 39B(1)(a) of the Dangerous Drugs Act 1952 (DDA) for trafficking in heroin and monoacetylmorphines and methamphetamine. After a trial, the learned judge convicted the appellant and sentenced him according to the law. Hence this appeal. [2] The two charges against the appellant read as follows: 45A-134-12/2015 “Bahawa kamu pada 22 June 2015 pada jam lebih kurang 9.30 malam, bertempat di alamat No. 507 Blok V, No. 3 SD Apartment 11, PSN Meranti Bandar Damansara, di dalam Daerah Petaling, di dalam Negeri Selangor Darul Ehsan telah didapati memperedarkan dadah berbahaya sejumlah berat 888.2 gram (Heroin seberat 769.7 gram dan Monoacetylmorphines seberat 118.5 gram) dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama”. 45A-135-12/2015 “Bahawa kamu pada 22 June 2015 pada jam lebih kurang 9.30 malam, bertempat di alamat No. 507 Blok V, No. 3 SD Apartment 11, PSN Meranti Bandar Damansara, di dalam Daerah Petaling, di dalam Negeri Selangor Darul Ehsan telah didapati memperedarkan dadah berbahaya sejumlah berat 478.9 gram Methamphetamine dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya, 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama”. Page 3 of 15 Facts of the case [3] Based on the appeal record, on 22.6.2015, at about 6.15 p.m., SP12 with a team of police officers stopped a car at MMR2 Highway, Kepong, with two Africans inside namely Ifeanyi Atuenyi and Emmanuel Kamano (SP2). SP12 found drugs inside the car and brought them to IPD, Sungai Buloh for investigation. SP12 found a bunch of keys in the right front trouser pocket of SP2. On being asked, SP2 said these were the house keys for No.507, Block V, No.3 SD Apartment 11, PSN Meranti Bandar Damansara. [4] At about 8.30.p.m. SP12 handed SP2 and the keys to SP6 to carry out a search at the given address. SP6 assembled a team of police personnel including SP7 and SD3. Upon arriving at the apartment building at 9.20 p.m., SP6 instructed SP7 and SD3 to be on duty at the back of the ground floor of the apartments while SP6, SP2 and others went to the given address on the 5th floor. [5] In front of unit No. 506, SP6 asked SP2 to confirm that this was his house and SP2 confirmed. SP6 tried to open the door of the unit with the keys but failed to open. SP6 then knocked on the door which was opened by an Indian woman (wife of a pastor) and SP6 found out that it was the wrong address. [6] SP6 brought SP2 downstairs. Being not satisfied, SP6 and the team went to unit No. 507 on the 5th floor where SP6 succeeded in using the keys to open the door of unit 507. Inside this unit, SP6 found and arrested two Africans, one was Arinzeh Michael (the appellant) and the other Nkosana Collen Mbizane who testified as SP1 in this case. Page 4 of 15 [7] While making a search inside this unit, SP6 received a call from SP7 saying that a black bag was thrown out by someone. SP6 ordered SP7 to bring the bag. SP6 opened the bag in the presence of SP1, SP2 and the appellant. Inside the bag, SP6 found plastic bags and plastic packets containing crystalline powder and brown powder which the chemist (SP5) confirmed to be methamphetamine, heroin and monoacetylmorphines, namely dangerous drugs under the DDA. High Court’s decision [8] We set out the relevant paragraphs of the grounds of judgment of the learned judge as follows: “18. Setelah saya membuat penilaian maksima kepada fakta-fakta kes pendakwaan, saya berpuashati bahawa pihak pendakwaan telah membuktikan bahawa adalah satu penemuan fakta bahawa OKT sememangnya telah menghuni di alamat No. 507 tersebut pada masa serbuan dibuat. Ini berdasarkan kepada keterangan SP1 yang mengatakan OKT tinggal di bilik utama rumah tersebut dan beliau tinggal seorang diri di bilik itu, manakala bilik tengah didiami oleh SP1.

19. Keterangan SP1, yang mana pada masa kejadian berada di dalam rumah 507 bersama-sama OKT, mengatakan apabila berlaku keadaan kelam kabut di luar rumah, OKT telah masuk ke biliknya. Kemudian telah keluar daripada biliknya untuk membuka pintu kepada pihak polis. Apa yang berlaku di dalam bilik OKT semasa dia masuk itu tidak diketahui oleh SP1. Andaian yang boleh dibuat di sini ialah OKT telah cuba untuk melupuskan dadah di dalam beg tersebut dengan mencampakkannya ke bawah. Malangnya tindakannya itu telah dilihat oleh SP7 yang pada masa tersebut sedang “standby” di bawah dan memandang ke atas kepada tingkap rumah tersebut.

20. Walaupun keterangan SP7 yang agak keterlaluan, apabila beliau mengatakan yang dia melihat tubuh badan OKT, muka OKT dan pakaian OKT, akan tetapi suatu fakta yang tidak boleh disangkal ialah, beliau telah melihat beg tersebut jatuh dari atas dan setelah SP7 membawanya naik ke atas dan menyerahkan kepada SP6, SP7 Page 5 of 15 telah masuk ke bilik utama rumah tersebut untuk memeriksa, di mana SP7 mengatakan yang beliau telah melihat tingkap di dalam bilik itu terbuka. SP7 juga ada melihat ke bawah melalui tingkap tersebut.

21. Keterangan dari SP10 pula mengatakan semasa lawatan beliau ke rumah 507 tersebut beliau telah merampas buku nota warna oren di atas nama OKT dan juga salinan passport OKT di dalam bilik tersebut. Fakta-fakta ini menunjukkan yang OKT sememangnya menginap di dalam bilik utama tersebut dan mempunyai kawalan dan jagaan ke atas bilik itu. Fakta bahawa tingkap di dalam rumah tersebut dalam keadaan terbuka juga menguatkan fakta bahawa OKT telah mempunyai kawalan dan jagaan ke atas dadah tersebut dan OKT telah cuba untuk melupuskannya dengan mencampakkan beg berisi dadah tersebut ke bawah. Fakta-fakta ini menepati syarat-syarat yang dinyatakan melalui kes Chan Pean Leon vs Public Prosecutor (di atas).

22. Mengenai pembuktian DNA profil dan cap jari, yang dihujahkan oleh peguambela terpelajar telah tidak menyokong kes pendakwaan, saya berpendapat bahawa keterangan-keterangan ini tidak dapat mengatasi keterangan mata oleh SP7 yang melihat OKT mencampakkan beg berisi dadah tersebut ke bawah …...

23. Perbuatan OKT mencampakkan dadah tersebut menunjukkan pengetahuan beliau terhadap dadah tersebut. Satu tindakan “desperate” untuk melepaskan dirinya. Saya merujuk kepada kes Parlan Dadeh vs PP [2009] 1 CLJ 717.

24. Berdasarkan kepada alasan-alasan di atas, saya berpuashati bahawa pihak pendakwaan telah berjaya membuktikan elemen kedua ini pada tahap prima facie.

25. Mengenai elemen ketiga pula, pihak pendakwaan telah menggunapakai peruntukan di bawah seksyen 37(da) ADB, 1952. Saya bersetuju dengan pemakaian seksyen tersebut di dalam kes ini. Saya berpendapat dan berpuashati bahawa dadah tersebut bukanlah untuk kegunaannya sendiri akan tetapi adalah untuk diedarkan.” Page 6 of 15 The Submissions [9] The appellant submitted as follows:

(ii) The drugs were not found in unit 507 but in a bag supposedly thrown out from a window which was recovered by SP7. The appellant did not have custody, control or possession of the drugs in the bag.

(iii) SP7 was mistaken in the identification of the appellant as the person who threw the bag. The action of throwing the bag happened very fast. At best SP7 had a fleeting glance and could not possibly see the face of the person because SP7 was standing under a tree which blocked her view and this person was on the 5th floor whilst she was on the ground floor. At that time it was very dark.

(iv) None of the three Africans admitted to the bag belonging to them. The seizure list (P26) of the bag was signed by all three Africans. There was no document, identification or DNA in or on the bag to point to the fact that the bag belonged to the appellant. The appellant denied knowledge of the drugs and trafficking of the drugs.

(vi) The prosecution failed to establish a prima facie case against the appellant and the defence had raised reasonable doubts on the prosecution case. [10] The respondent submitted as follows:

(ii) Based on the testimony of SP1, the appellant and SP1 were the tenants in this unit and the appellant occupied the Page 7 of 15 master-bedroom from where the bag was thrown from an open window.

(iii) It was submitted that SP7 saw the appellant, who was wearing dark t-shirt, throwing the bag from the window and she could see his face. SP7 recovered the bag which contained the impugned drugs.

(iv) Although SP2 was not charged for the drugs in this case, he was charged for the drugs found in the car at MMR2.

(vi) The defence of the appellant was a mere denial and an afterthought.

(vii) The learned judge was correct in his ruling that the prosecution had proven its case beyond reasonable doubt against the appellant and in convicting the appellant for the charges. Our Decision [11] After reading the record of appeal, the written submissions and hearing oral submissions of the parties, we were unanimous in our decision that it was not safe to convict the appellant. Therefore we allowed the appeal, set aside the order of the High Court, acquitted and discharged the appellant from the two charges. We now give our grounds. [12] We were mindful of our role as an intermediate appellate court when reversing the findings of facts of the learned judge. It is well-settled law that an appellate court must be slow to interfere with the findings of fact by the trial court which has the oral and visual advantage of seeing and hearing the witnesses unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong Page 8 of 15 decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence. The test of ‘insufficient judicial appreciation of evidence’ is in relation to the process of determining whether or not the trial court has arrived at its decision of findings correctly on the basis of the relevant law and the established evidence. A court hearing the appeal is entitled to reverse the decision of the trial judge after making its own comparisons and criticisms of the witnesses and of its own view of the probabilities of the case. It is also entitled to examine the process of evaluation of the evidence by the trial court and reverse a decision if it is wrong: Gan Yook Chin & Anor (P) v Lee Ing Chin @ Lee Teck Seng & Anor [2005] 2 MLJ 1; UEM Group Berhad v Genisys Integrated Pte Ltd [2010] 9 CLJ 785; Stronpac Construction Sdn Bhd v Vast Consortium Sdn Bhd [2019] 2 MLJ 264. It has been held that it does not matter whether the issue for decision is one that arises in a civil or criminal case: the approach to judicial appreciation of evidence is the same: Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97, approved in Tengku Dato’ Ibrahim Petra bin Tengku Indra Petra v Petra Perdana Bhd and another appeal [2018] 2 MLJ 177. In this appeal, the oral evidence of the witnesses must be tested against the physical and documentary exhibits adduced. [13] The appellant was charged for trafficking the drugs on 22.6.2015 at about 9.30 p.m. at No. 507, Block V, No. 3 SD Apartment 11, PSN Meranti Bandar Damansara. It was the contention of the prosecution that when the police led by SP6 tried to open the door by using the keys seized from SP2, someone, presumably the appellant, threw the bag containing the drugs from a window of the unit. The crux of this Page 9 of 15 appeal is, was the appellant in possession of the drugs found in the bag (P29A). [14] The prosecution had relied on the evidence of SP7 that she saw the appellant threw the bag from a window of unit No. 507. SP7 testified that SP6 briefed the police team about a raid to be carried out at unit No. 507. Upon arrival at the five storey-building, she and SD3 were instructed by SP6 to stand guard at the back of the ground-floor and she took position under a tree. She said she kept looking up at the fifth floor. She said she saw a person throwing, she saw his face, before he threw the bag, he looked down, he was wearing a dark shirt, after that he threw, then he looked down again. SP7 identified the appellant as the person who threw the bag. The learned judge accepted SP7’s identification of the appellant as the person who threw the bag and invoked the presumption under section 37(d) of DDA against the appellant. [15] The appellant submitted that SP7 could not see the face of this person who was on the fifth floor where SP7 was standing under the tree which obstructed her view and that the action of this person throwing the bag happened very fast, within a few seconds. It was submitted that therefore SP7 only had a glance of this person and could not have seen his face bearing in mind that it was dark (see photographs 1, 2, 3, 4 and 5 of P39). It was also submitted that the police failed to conduct an identification parade to confirm her identification of the appellant and her identification as such was flawed in the circumstances. Page 10 of 15 [16] Based on the appeal record, SP6 and SP7 had never been to the apartments prior to the raid. Even looking up at the apartments, although she was told that the police would conduct a raid at unit No.507, SP7 did not know which unit was unit No.507. Looking up, she said she saw someone throwing a bag. Obviously she assumed it was unit No.507 whereas SD3 testified that he was not sure who threw the bag. [17] We refer to the testimony of SP6 who led the police raid at the apartment building. He was the key witness for the prosecution in respect of the search, arrest and seizure of the drugs. The prosecution chose not to call any witness to corroborate the evidence of SP6. [18] SP6 initially testified that at about 8.00 p.m. SP12 handed to him a suspect by the name of Emmanuel Kamano (SP2) with a bunch of keys to carry out a search for drugs at the address of No. 507. However SP6 and the police team brought SP2 to the 5th floor, in front of No. 506, and SP6 asked SP2 who confirmed that this was his house. SP2 used the keys to open the door of No. 506 but did not succeed. SP6 then knocked on the door which was opened by the Indian woman. SP6 searched unit No. 506 and did not find any drugs. SP6 brought SP2 to the ground-floor. Being not satisfied with the initial search, SP6 brought SP2 to the 5th floor again and succeeded in opening the door of unit No. 507, which was across from No. 506, using the keys seized from SP2. SP6 testified that the appellant and SP1 were inside this house, that is, No. 507 when he received a call from SP7 that someone had thrown a bag. Page 11 of 15 [19] The learned DPP then referred SP6 to his police report (P25). SP6 then corrected his evidence by saying that he conducted the raid in No. 507 whereas the Indian woman was in No.506. He said he made a mistake earlier. However he did not explain whether it was a slip of tongue, whether he made a mistake as to the house number or that he went to the wrong house bearing in mind SP12 requested him to search the house of SP2 at No. 507 and gave to him the keys to No.507 seized from SP2. This information was extracted from SP2 after SP12 had interrogated SP2. Notwithstanding that SP1 had said that he and the appellant stayed in No. 507, it was not in dispute that after SP6 had brought SP2 to the fifth floor of the apartment building, he asked SP2 to confirm that unit “No. 507” was his house and SP2 had confirmed as such. SP6 could not open the door of “No. 507”. The prosecution did not call any other witnesses including the Indian woman to clarify the so-called mistake and contradictions and the learned judge failed to direct himself on these contradictions. [20] Based on the evidence of SP6 that he succeeded in opening the door of unit “No. 506”, before he corrected the unit number, which the prosecution failed to clarify, if SP6, SP1 and the appellant were in No.506, how could the appellant have thrown the bag from unit No. 507 as SP7 had testified? SP1 had testified that the appellant at the material time was not wearing any shirt. This piece of evidence was not challenged and had contradicted SP7 when she identified the appellant as the person wearing a dark shirt who threw the bag. These contradictions raised serious doubts on SP7’s identification of the appellant as the person who threw the bag from the window of the master-bedroom of No.507. In his grounds of judgment, the learned judge did not refer or deal with the Turnbull guidelines (see [1976] 3 Page 12 of 15 All ER 549) and the case of Duis Akim 2 Ors v Public Prosecutor [2014] 1 MLJ 49 on the identification of a suspect. Reading the record of appeal, the learned judge had failed to fully appreciate the evidence adduced and had erred in accepting SP7’s identification of the appellant which had been contradicted. [21] We also refer to the testimony of SP2 who denied that he stayed in No. 507. He said he told the police that he stayed in Puchong but the police took him to the house of the Appellant. He said when he was brought to the apartments and was asked to show where he was living, he simply pointed to one place, a pastor house and he could not remember which floor. He said the occupant of the house (the Indian woman) denied knowing him and the police took him downstairs and continued to beat him until he could not stand the beating. He said the police then found a bunch of keys which they used to open the door of a house. Before they took him up, one officer went to check and said the keys could open the house and they then took him up. Then somebody brought a bag and told him that somebody threw the bag from the house where he was living. What he said was clearly in contradiction with the evidence of SP6, SP7, SP10, SP11 and SP12, bearing in mind that SP2 was the prosecution’s witness and the prosecution chose not to impeach his evidence. Again, the prosecution and the learned judge did not deal with these contradictions which raised a lot of doubts on the prosecution’s case. [22] We now refer to the evidence of SP8 and SP9 who testified that since 1.1.2015, SP2 was the tenant of No.507 and they were not aware that the appellant and SP1 were tenants or staying in the house. Based on their testimonies, which were not seriously challenged, Page 13 of 15 obviously SP2 had not been truthful, in particular where he stayed. After he was arrested by SP12 at the MMR2 Highway with the drugs found inside the car, SP2 had every reason to lie to try to save himself. On the evidence of SP8 and SP9 and the keys seized from SP2, it pointed to the fact that SP2 had access to unit No. 507. SP2 never said that he had sublet the unit to SP1 and the appellant and that he no longer stayed or had access to the unit. The fact that SP2 was asked to sign the seizure list (P26) together with SP1 and the appellant in respect of the items seized from the house, including the bag which contained the drugs, amplified the fact that SP2 had access to unit No.

507. Reading his grounds of judgment, the learned judge failed to appreciate the significance of the evidence adduced which would have alerted him to the very important issue as to who had access to the house and the drugs. [23] This begs the question, who among the three who signed P26 had the custody, care, control and possession of the drugs found. They were arrested and investigated but not jointly charged for possession and or trafficking in the drugs. The prosecution explained that SP2 was charged instead for the drugs found in the car at MMR2 Highway. SP1 was initially charged together with the appellant but the prosecution decided to withdraw the charge against SP1 and made him a witness for the prosecution. These facts did not answer the question as to who had the custody, care, control and possession of the drugs found in the bag bearing in mind that the testimony and identification by SP7 were suspect and had been contradicted by the other prosecution witnesses. The learned judge however failed to properly address and deal with these issues. Page 14 of 15 [24] The evidence showed that the police had taken a swap from the bag (backpack labelled as AS-D2) and straps of the bag containing the drugs for DNA analysis. The police had also taken blood specimen from the appellant (AS-D1(a)) and SP1 (AS-D1(b)) for DNA matching. The DNA report (P49) reads “The DNA profile developed from swap taken of backpack ‘AS-D2’ consisted of a mixed DNA types from at least two contributors. The donor of blood specimens ‘AS-D1(a)’ (labelled ‘Arinzeh Michael’) and AS-D1(b) (labelled Nkosana Collen Mbizane) were excluded as being one of the contributor of this mixed DNA profile.” This piece of evidence clearly excluded the appellant and SP1 to have come into contact with the bag or to have thrown the bag from the fifth floor or from the window of the master-bedroom purportedly occupied by the appellant: see Aghu Goodluck Ugochukwu lwn Pendakwa Raya [2018] 3 MLJ 645 and Tee Yee Sein v Public Prosecutor [2018] 6 MLJ 81 re DNA evidence. [25] This piece of evidence again contradicted the identification and testimony of SP7 that she saw the appellant as the person who threw the bag from the window. The appellant denied knowledge of the bag. Based on the facts and circumstances of the case, the appellant did not and could not have custody, care, control and or possession of the bag containing the impugned drugs. Again the learned judge failed to appreciate the totality of the evidence adduced during the trial. His findings of facts were against the weight of evidence and plainly wrong which led to a misdirection resulting in a miscarriage of justice: see Romi bin Ali v Public Prosecutor [2018] 6 MLJ 123; Public Prosecutor v Sah Chin Chong [2018] 6 MLJ 505; Noor Ismahanum Mohd Ismail v Public Prosecutor [2019] 2 MLJ 536. Page 15 of 15 [26] On the evidence adduced, there are many contradictions and doubts in the prosecution’s case. For the reasons given, we were unanimous that it was not safe to convict the appellant and that the prosecution had failed to prove its case beyond reasonable doubt against the appellant as per the two charges. Dated: 19th April, 2019 signed STEPHEN CHUNG HIAN GUAN (delivering judgment of the court) Court of Appeal Judge Putrajaya For Appellant : Anwar Bin Ab. Raof Messrs. Anwar Raof & Co. For Respondent : DPP Mohamed Faizal bin Mohamed Fedder Attorney General Chambers