Mohammad Zulfikar Supiyandi Bin Kasmin v Pendakwa Raya (J-05(SH)-366-07/2024)

19.12.2019, 23.12.2019 and 2.3.2020. On the issue of discrepancy on the time when the exhibits were handed to the Chemist (SP3), the Prosecution contends that the discrepancy is not material when one looks at the official receipt issued by the Chemistry Department which states that the exhibits were received at 3.12PM. Therefore, it must be taken that the actual time of handing over to SP3 was at that time and not earlier. What is to be emphasised is that, SP3 confirmed that the exhibits were received properly sealed and in good condition with S/N gpoGLj2ae0maD/9Cb/Si7A no signs of tampering. The collective evidence of SP3, SP4 and SP5 all show that the exhibits were not only properly handled, secured and stored but also clearly marked and identified at the trial. Reference was made to the decisions in Hasbala Mohd Sarong v PP [2013] 6 CLJ 945; [2013] 6 MLJ 636, and Lew Wai Loon v PP [2014] 2 CLJ 649; [2014] 3 MLJ 325, on the finding of no break in the chain of evidence. [26] On the next issue of credibility and reliability of the evidence of the arresting officer (SP4), the Prosecution argues that SP4 gave consistent narrative on events leading to the arrest of the Appellant, seizure of the backpack and discovery of the drugs. Although SP4 was the sole witness from the arresting team, there was no impediment to the Learned JC in accepting SP4’s evidence as being trustworthy. In contrast, the Appellant could only allege that the backpack was found at the roadside and not on him with no corroborative evidence to support the Appellant’s version. There is no reason or motive for SP4 to fabricate evidence and frame the Appellant for a capital offence. [27] With regards to the evidence of SP5 and the alleged uncertainties in his answers during cross-examination, the Prosecution argues that SP5 had offered explanation and clarification in his re-examination. In particular, he stated that he was uncertain about certain facts because he was not personally present during the arrest and also because of his inability to recall certain facts as the arrest occurred in 2019, some 4 years before SP5 gave evidence in Court. In any event, S/N gpoGLj2ae0maD/9Cb/Si7A the consideration of SP5’s entire testimony showed that he had undertaken a complete investigation in determining the Appellant’s movements and how he came into possession of the drugs. Thus, there is no uncertainty that the backpack containing the drugs were in the Appellant’s custody and control. Contrary to what the Appellant claimed was an incomplete investigation by SP5, the evidence showed that SP5 had undertaken a full investigation. Further, the Appellant’s reaction in wanting to escape arrest when approached by SP4 showed he had knowledge of the drugs. [28] To add further, the Prosecution argues that there is no material issue on the question where the Appellant’s passport was actually found, whether in the bag or in a wallet in his trousers. Exhibit P12 which is SP4’s police report clearly stated that the passport was found in the backpack and not in the Appellant’s trousers. This is supported also by SP5’s findings in his investigation. The real issue is where were the drugs found, not the passport. For that reason, the failure to state in the Search List (Exhibit P13) where the passport was found is not crucial to the Prosecution’s case. Further to that, the photographs in exhibit P11 (1-3) was not to record the discovery of the passport nor every little item that may have been found in the bag but to serve as a documentary record on how the drugs were found in the bag. [28] Reference was made to the decision of the Federal Court in Balachandran v PP [2005] 1 CLJ 85; [2005] 2 MLJ 301, where it was held: S/N gpoGLj2ae0maD/9Cb/Si7A "...Where the evidence of a witness does not require to be corroborated in law there is no obligation to tender corroborative evidence to support his testimony. Thus if the case for the prosecution rests solely on the evidence of one witness in such a category there is no requirement in law for his evidence to be corroborated. Any such requirement will conflict with s. 134 of the Evidence Act 1950 which provides that no particular number of witnesses shall in any case be required for the proof of any fact. This means that the testimony of a single witness, if believed, is sufficient to establish any fact (see Khaw Cheng Bok & Ors v. Khaw Cheng Poon & Ors [1998] 1 LNS 340; [1998] 3 MLJ 457)." [29] On the final issue, the Prosecution argues that the Learned JC did not substitute the test of reasonable doubt with any other test. Notwithstanding that the words “tidak meyakinkan (not convincing)” were used, a true and fair reading of the findings and conclusion of the Learned JC’s Grounds of Judgment show that the term “not convincing” merely refers to the quality of the Appellant’s evidence to raise a reasonable doubt rather than the burden of proof. Thus, the Learned JC was not wrong to make such finding without losing sight in the final conclusion to make a finding whether the Appellant had succeeded, on the whole of his evidence, in raising a reasonable doubt in the Prosecution’s case. [29] In the context of the presumption of trafficking under section 37(da) of the DDA, the burden of proof had shifted to the Appellant to rebut the presumption on a balance of probabilities. Thus, it was not wrong for S/N gpoGLj2ae0maD/9Cb/Si7A the Learned JC to not be convinced by the Appellant’s version of the case. DELIBERATIONS AND FINDINGS [30] After hearing arguments, we find that this Appeal centers around the following issues: (i) the reliability of SP4’s sole testimony; (ii) whether there was any gap in the chain of evidence relating to the custody and control of the drugs exhibits from when it was seized until it was sent to the Chemistry Department; (iii) the reliability of SP5’s evidence as the Investigating Officer; and (iv) whether the Learned JC had adopted a wrong test at the end of the trial. On the credibility of the SP4 and SP5 [31] Now, it is provided by law under section 134 of the Evidence Act 1950 and held by numerous judicial precedents that a case may be proved by reliance on the evidence of a single material witness and such evidence may not be corroborated. The requirement is on the quality of the witness, not the number. In Md Zainudin Raujan v PP [2013] 4 CLJ 21; [2013] 3 MLJ 773, the Federal Court held: “PW5 was a police witness. The learned trial judge found him to be a credible witness. It is true that the prosecution's case rested solely on the evidence on PW5. However, under the law there is no requirement for his evidence to be corroborated. The learned trial judge believed PW5 and as such his evidence was sufficient to S/N gpoGLj2ae0maD/9Cb/Si7A establish the case for the prosecution. Any requirement for PW5's evidence to be corroborated will conflict with Section 134 of the Evidence Act 1950 which provides that no particular number of witnesses shall in any case be required for proof of any fact (see Balachandran v. PP [2005] 1 CLJ 85).” [32] Next, guidance can be taken from a plethora of cases on how to evaluate the evidence of a witness. One such case is the decision of the Court of Appeal in Ho Sek Kong v PP [2011] 6 CLJ 522; [2011] 5 MLJ 359, where Ahmad Maarop JCA (as he then was) speaking for the Court stated the following: “[7] While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. (See State of U.P. v. M.K Anthony, AIR [1985] Supreme Court 48). The Privy Council has stated that the real tests for either accepting or rejecting the evidence of a witness are how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with the rest of the evidence and the circumstances of the case (See Bhojraj v. Sita Ram AIR [1936] PC 60). In our judgment, the approach and the tests as aforesaid S/N gpoGLj2ae0maD/9Cb/Si7A were applied by the learned trial judge in evaluating SP4's evidence in the present case.” [33] Applying those principles, we find, upon evaluation of SP4’s evidence, there is nothing to indicate that his evidence was weak, lacking in particulars and inconsistent on material aspects of the case, namely the events leading to the Appellant’s arrest, the backpack on the Appellant’s body and the eventual discovery of dangerous drugs in that bag. The issues raised by the Appellant against SP4’s evidence did not affect the believe worthiness of his evidence. His poor recollection of whether there was a ferry terminal and bus station were had no impact on the facts of the arrest and discovery of the drugs in the backpack. The law does not fault a witness for being human and failing to recollect every surrounding detail of an event. What is more crucial is the recollection of events directly related to the criminal act. We do not find SP4’s evidence lacking in clarity and consistency in this aspect. We therefore agree with the Prosecution that SP4’s sole evidence was sufficient to prove the Prosecution’s narrative of the events leading to the Appellant’s arrest. [34] To add, we find it incredible for the Appellant to claim that the backpack was actually found on the roadside and SP4 had wrongfully pin and connect him to the backpack out of others who may have been in the vicinity. That is a very serious claim and unless the Appellant could produce any cause or evidence to show why SP4 would want to frame him for a criminal act in a public area, then the Court is entitled to reject that claim as frivolous and unconvincing. S/N gpoGLj2ae0maD/9Cb/Si7A Based on the Appellant’s own evidence, he had just arrived in Malaysia and certainly he was unknown to SP4. There is no reason for SP4 to randomly victimise the Appellant and frame him for such offence. [35] We also agree with the Prosecution’s argument that there is no cause to suspect that SP4 may have mislead the investigation and the Court on where the Appellant’s passport was found. The police report had sufficiently stated that the passport was found in the backpack and there is no reason to doubt the truth of the matter just because it was not specifically stated in the Search List. What is of more importance is where the backpack and drugs were found. [36] We hold the same to be true for SP5’s evidence. Although he initially gave a series of answers suggesting uncertainty about some facts in particular whether the backpack was actually not found on the Appellant, but at the roadside and that the passport was actually in the Appellant’s trousers, we find that SP5’s answers reflected candidness on his ability to recall certain facts and this bears the mark of a truthful witness. Those uncertainties were then clarified in re-examination and any doubts that may have been casted initially was effectively removed. As held by the Federal Court in the oft-quoted decision of Public Prosecutor v Datuk Haji Harun bin Haji Idris (No 2) [1977] 1 MLJ 15; [1976] CLJU 184: “…discrepancies there will always be, because in the circumstances in which the events happened, every witness does not remember the S/N gpoGLj2ae0maD/9Cb/Si7A same thing and he does not remember accurately every single thing that happened. It may be open to criticism, or it might be better if they took down a notebook and wrote down every single thing that happened and every single thing that was said. But they did not know that they are going to be witnesses at this trial. I shall be almost inclined to think that if there are no discrepancies, it might be suggested that they have concocted their accounts of what had happened or what had been said because their versions are too consistent. The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other. It is, therefore, necessary to scrutinize each evidence very carefully as this involves the question of weight to be given to certain evidence in particular circumstances.” [37] Further, we do not find that there was any failure by SP5 to conduct a full investigation into the case despite there being no evidence of the Appellant’s DNA or fingerprint on the incriminating items and there being no CCTV recording. The evidence would only have been corroborative in nature and they were not crucial in proving the Prosecution’s case. [38] Based on the evidence, SP5 had managed to determine the Appellant’s illegal entry into Malaysia and his movement between Johor Bahru and Kukup. He found that the Appellant had initially S/N gpoGLj2ae0maD/9Cb/Si7A stayed in Kukup for 4 days before going to Johor Bahru to collect the drugs and then returned to Kukup to transport them back to Indonesia. This part of SP5’s testimony was not challenged in cross-examination and therefore stood intact as the Prosecution’s evidence. Thus, there can be no doubt that the Appellant had custody, control and knowledge of the drugs. On whether there was a break in the chain of evidence [39] Our perusal on the cross-examination of SP5 did not show that any question was posed to him on the movement of the exhibits from when they were handed by SP4 to SP5 and until they were handed to SP3 for analysis. The cross examination was focused mainly only on where the backpack and passport were found and the surrounding area where the Appellant was arrested. No question was asked about how SP5 handled the exhibits. They were raised after the trial had concluded. On this issue, it would be pertinent to quote the decision of this Court in Timhar Jimdani Ong & Anor v PP [2010] 3 CLJ 938; [2010] 1 MLJ 775: “It is trite that if the defence had any misgivings on the authenticity or suspicious nature of any narration of the evidence by the prosecutions’ witness, then that witness should have been cross-examined on that disputed fact so that an explanation can be given to be properly assessed by the trial court. More so here when the defence is now submitting that the evidence given by the prosecution had been fabricated and not supported by the police report. To S/N gpoGLj2ae0maD/9Cb/Si7A merely advert to the omission to details in the police report at the submission stage would amount to springing a surprise on the prosecution. Essential justice requires that the defence should be put during the cross-examination of any witness that part of the evidence which is disputed. An early exposition of the defence, even at the prosecution’s stage has become an essential feature in the adversarial system of criminal trials in the common law jurisdictions.” [40] It would be equally relevant to refer to the oft-quoted decision in Wong Swee Chin v PP [1980] CLJU 138; [1981] 1 MLJ 212; on the failure to cross examine on a material issue: "SP2 was not an interested witness, but a police officer performing his duties. He had related what he actually saw and did on that day. SP2's evidence is credible and ought to be believed. (See the cases of PP v. Mohamed Ali [1962] CLJU 129; [1962] 1 CLJU 129 and PP v. Teh Cheng Poh [1979] CLJU 82).... It is also to be noted that there is no challenge by the defence on the evidence of SP2 of any ulterior motive that he might have to concoct evidence against the appellant. On this point there is a principle of law which states that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness' testimony." [41] The Appellant’s failure to cross-examine SP5 on the issue of movement of the exhibits, therefore bounds him to that evidence. He cannot now revisit the issue. In any event, we have evaluated the evidence and find no mishandling of the drug exhibits that might raise S/N gpoGLj2ae0maD/9Cb/Si7A suspicion as to their identity. All the drugs exhibits were formally and accurately identified of their respective markings and tendered in Court by SP3, SP4 and SP5. As decided by the Federal Court in Hasbala Mohd Sarong v Public Prosecutor [supra]: "[19] …On the facts and circumstances of this case, we answer the issue raised in the negative. In this case PW4, and PW6 had clearly identified the drug exhibits that were produced before the High Court. Both PW4 as well as PW6 had identified the markings that they had made on the exhibits including the date and the signatures they placed on the five slabs of the drug exhibits. PW3 too had identified the markings as found on the exhibits when she received it from PW6. [20] Having regard to the evidence of PW4, PW6 and PW3, learned counsel's contention that the drug exhibits produced before the High Court might not be the same as the one seized by PW4 from the appellant is, in our view, misconceived. On the evidence adduced, we are not in doubt that the drug exhibits seized and handed to PW6 and examined by PW3 were the same drug exhibits that were produced before the High Court upon which the appellant was charged. There was no break in the chain of evidence that could have created a reasonable doubt as to the identity of the drug exhibits. … S/N gpoGLj2ae0maD/9Cb/Si7A [25] …In fact, the identity of the drug exhibits was never challenged before the High Court. It had never been raised as an issue before the High Court…” On whether the Learned JC had adopted a wrong test at the end of the trial [42] On this issue, we find the Appellant’s argument to be devoid of merit. A fair and wholesome reading of the Learned JC’s grounds of judgment would show that he had ultimately found that the Appellant had failed to raise a reasonable doubt in the Prosecution’s case and failed to rebut the presumption of trafficking under section 37(da) of the DDA on a balance of probabilities. In our view, the expression “not convincing” or “unconvinced” used by the Learned JC merely referred to the quality of the Appellant’s discharge of his evidentiary burden to raise a reasonable doubt. We find no error in that expression. In fact, the case of Gunalan Ramachandran & Ors v Public Prosecutor [supra] referred to by the Appellant supports this view: “[21] It is against this background that the defence case ought to be tested, to see whether it has succeeded to cast any reasonable doubt on the prosecution’s case. The burden on the defence throughout is a light one as stated by Mohamed Azmi SCJ in Mohamad Radhi Bin Yaakob v PP (supra) at p. 171: S/N gpoGLj2ae0maD/9Cb/Si7A To earn an acquittal, the court may not be convinced of the truth of the defence story or version. Raising a reasonable doubt in the guilt of the accused will suffice. It is not, however, wrong for the court to be convinced that the defence version is true, in which case the court must order an acquittal. In appropriate cases it is also not wrong for the court to conclude that the defence story is false or not convincing, but in that instance, the court must not convict until it asks a further question, that even if the court does not accept or believe the defence explanation, does it nevertheless raise a reasonable doubt as to his guilt? It is for this reason that in dealing with the defence story or explanation, the majority or judges rightly prefer to adopt straightaway the legally established ‘reasonable doubt’ test, rather than to delve in the ‘believable and convincing’ test before applying the reasonable doubt test.” [emphasis added]

In conclusion, we find no cause to disturb the findings of fact and law by the Learned JC. We do not find any manifest error committed by Learned JC warranting an interference by this Court in accordance S/N gpoGLj2ae0maD/9Cb/Si7A S/N gpoGLj2ae0maD/9Cb/Si7A For the Appellant : 1. Ho Zhi Qian

Azura binti Alias [Messrs. Gooi & Azura] For the Respondent : Mohd Zain Bin Ibrahim Deputy Public Prosecutor [Attorney General’s Chambers] S/N gpoGLj2ae0maD/9Cb/Si7A