Mohd dan Bin Abdul Hamid v Pendakwa Raya (B-05(M)-480-10/2017)

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1 IN THE COURT OF APPEAL, MALAYSIA (APPELLATE CRIMINAL JURISDICTION) CRIMINAL APPEAL NO: B-05(M)-480-10/2017 BETWEEN MOHD DAN BIN ABDUL HAMID … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [In the matter of Shah Alam High Court criminal trial No: 45A-44- 05/2014 Between Public Prosecutor And Mohd Dan bin Abdul Hamid] CORAM AHMADI HAJI ASNAWI, JCA ABDUL RAHMAN SEBLI, JCA KAMARDIN HASHIM, JCA JUDGMENT OF THE COURT [1] The appellant was charged with drug trafficking and the charge against him was as follows: “Bahawa kamu pada 7 Oktober 2013, jam lebih kurang 4.20 petang bertempat di Starbucks Café, Lot G1, 12 & 13, Ground Floor, Sunway Pyramid, No. 3, Bandar Sunway, Jalan PJS 11/15, Subang Jaya, di dalam Daerah Petaling, di dalam Negeri Selangor Darul Ehsan telah memperedar dadah berbahaya iaitu 100.5 gram Heroin dan 11.0 gram Monoacetylmorphines, dan oleh yang demikian kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama.” 2 [2] He claimed trial to the charge at the conclusion of which he was found guilty by the learned Judicial Commissioner (“JC”) and sentenced to death. This was his appeal against conviction. Having heard arguments by both sides, we dismissed the appeal by a unanimous decision and affirmed his conviction and sentence. These are the grounds of our decision. [3] The narrative of the prosecution’s case is as follows. On 3.9.2013 at about 12 pm, ASP Saravanan a/l Diwanantong (PW1) of the narcotics branch of the Royal Malaysian Police received information from a registered informer that a suspected drug supplier (later identified as the appellant) was looking for clients to sell heroin. PW1 contacted the appellant by phone and introduced himself as “Kumar”. The unsuspecting appellant arranged for a meeting with PW1 at Sunway Pyramid to discuss the sale and purchase of the drug. [4] On 9.9.2013, PW1 contacted the appellant to arrange for a meeting with him the next day. He told the appellant that he would be coming with his “business partner” (PW3 - ASP Prem a/l Sepermaniam). As pre-arranged, the appellant and PW1 met for the first time at Sunway Pyramid’s Brotzeit Café on 10.9.2013 at around 2 pm. The appellant introduced himself as Mohd Dan to PW1. [5] They then proceeded to discuss the purchase of the drug. The appellant told PW1 that he could supply any amount of drug that PW1 required. His selling price was RM7,000.00 per pound but expressed his willingness to reduce the price to RM6,500.00 per pound if PW1 3 purchased more than 10 pounds. PW3 merely listened and did not take part in the discussion. [6] On 15.9.2013, PW1 received a call from the appellant asking him how much drug he required. PW1 told the appellant he would come down to Kuala Lumpur in two days to discuss. On 16.9.2013, PW1 called the appellant to tell him that he would be at Sunway Pyramid on the next day to discuss the matter. [7] On 17.9.2013, PW1 went to Sunway Pyramid and met up with the appellant at Brotzeit Café. At this meeting, PW1 expressed his desire to buy 45 pounds of heroin and asked for time to raise the money. The appellant told PW1 to let him know 2 days in advance so that he could fix the place of delivery. [8] Six days later, i.e. on 23.9.2013, the appellant called PW1 to enquire about his request for the 45 pounds of drug. PW1 told the appellant that he had received RM292,500.00 from his customers and would be at Sunway Pyramid on 25.9.2013. [9] The appellant called PW1 again on 24.9.2013 to inform PW1 that he could deliver the drug the following day. A raiding team was then set up by the police to arrest the appellant. [10] On 25.9.2013, PW1 and PW3 waited for the appellant at Brotzeit Café. At about 3 pm, the appellant arrived and asked PW1 to show the cash. On being shown a sum of RM292,500.00 in cash by PW1, the appellant left the café, promising to return in 2 hours time with the drug. 4 [11] However, the appellant failed to show up and the sting operation was called off at 8 pm. PW1 did not hear from the appellant for a few days after that. Then on 5.10.2013, the appellant called PW1 and explained to him that the delivery could not be made the last time because he was unable to obtain the supply. [12] The appellant proposed another date for the delivery of the drug and asked if he could deliver 10 pounds first at Sunway Pyramid and the balance of 35 pounds to be delivered in Melaka. PW1 asked for time to discuss the proposal with his business partner. [13] On 6.10.2013, PW1 called the appellant to confirm that he was agreeable to the suggestion. In response, the appellant said he would deliver 10 pounds of heroin the next day at Sunway Pyramid. [14] On 7.10.2013 at about 4 pm, PW1 waited for the appellant at Starbucks Café instead of Brotzeit Café. He was alone. The change of venue was on the advice of his superior officer DSP Mohd Husni bin Manaf (PW6). PW3 and other senior police officers took their positions near Starbucks Café. PW1 then called the appellant to inform him of the change of venue. The appellant told him he was on the way to Sunway Pyramid by taxi. [15] About 25 minutes later, the appellant showed up at Starbucks Café. He was holding a laptop bag (P10) and sat across PW1. He told PW1 that he had brought 5 pounds of heroin and promised to deliver the balance at a later date in Melaka. The appellant then unzipped the laptop bag and handed the bag to PW1. PW1 looked inside the bag and saw 5 packages wrapped in newspaper. He unwrapped them and saw in each package a 5 clear plastic packet (P10A-E) containing substances suspected to be heroin. [16] PW1 then made a phone call to PW3, which was a pre-arranged signal that the drug had been delivered. The raiding team then entered Starbucks Café and arrested the appellant. His laptop bag was seized. [17] PW1’s testimony was that all his negotiations with the appellant for the sale and delivery of the drugs were conducted in Tamil. This was vigorously challenged in cross-examination. It was put to PW1 that the appellant did not speak in Tamil and that the person whom he negotiated with was not the appellant but one Haridas. PW1 stood his ground that it was the appellant whom he negotiated with and that the appellant spoke to him in Tamil. [18] The drugs seized from the appellant were sent to the Chemistry Department for analysis and were confirmed by the Chemist Dr. Vanitha Kunalan (PW4) to be 100.5 grammes of heroin and 11.0 grammes of Monoacetylmorphines, both dangerous drugs listed in the First Schedule to the Dangerous Drugs Act 1952 (“the DDA”). [19] Possession without lawful authority of a combined weight of 15 grammes or more of these two types of drug triggers the presumption of trafficking under section 37(da) (iiia) of the DDA. In this case the amount was 7 times more than the prescribed minimum. [20] On these facts the learned JC found, rightly in our view, that a prima facie case had been established against the respondent. This was a clear 6 cut case of trafficking. The appellant was accordingly called upon to enter on his defence. [21] When called upon to state his defence, the appellant chose to give sworn evidence. Essentially his defence was that he never negotiated with PW1 to sell the drugs and had no knowledge that there were drugs inside the laptop bag. He claimed that the “real trafficker” was his friend by the name of Haridas and that it was Haridas who passed to him the laptop bag to be handed over to “Kumar” (PW1) at Starbucks Café. He said he never opened the laptop bag. [22] To rebut PW1’s evidence that he spoke in Tamil during the negotiations for the sale and delivery of the drug, the appellant called two of his relatives as witnesses. Both testified that the appellant could not speak Tamil. [23] After carefully analysing the defence case, the learned JC rejected the appellant’s version of events and found that he failed to cast a reasonable doubt as to the truth of the prosecution’s case. She found that the case for the prosecution had been proved beyond any reasonable doubt. [24] Before us, learned counsel for the appellant pursued only three grounds of appeal as follows: “1. The Appellant has been deprived of a fair trial by reasons of the following:-

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(ii) Without the audio-visual advantage, it was difficult for the learned JC to resolve issues relating to the credibility of the key witnesses, particularly PW1; 8

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(iii) That the learned JC deprived the appellant of the opportunity to hear the evidence of SP7 and SP8 without assigning any reason and did not tell the appellant at the end of the trial that he was convicted based on presumed or actual trafficking or both, which could have been avoided if the trial was not fractured. [28] The situation raised by the appellant is covered by section 18 of the Courts of Judicature Act 1964 (“the CJA”), which provides as follows: “18. (1) Every proceeding in the High Court and all business arising thereout shall, save as provided by any written law, be heard and disposed of before a single Judge.

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(2) Whenever any Judge, after having heard and recorded the whole or any part of the evidence in a proceeding, is unable through death, illness or other cause to conclude the proceeding, another Judge may –

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(ii) act on the evidence partly recorded by the previous Judge and partly by himself; or

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(3) Where the Judge acts under subparagraph 2(a)(i) he may, either on his volition or at the request of any party to the proceeding, recall any of the witnesses as in respect of any part of the evidence already recorded, or he may take their evidence afresh: Provided that in respect of a criminal proceeding, the Court of Appeal and the Federal Court may, on appeal, set aside any conviction had on evidence not wholly recorded by the Judge before whom the conviction was had if such Court is of the opinion that the accused had been materially prejudiced thereby, and may order a new trial.” 9 [29] It was not a ground of appeal, nor was it argued before us that in deciding to hear the case to its conclusion instead of resummoning the witnesses and recommencing the proceeding pursuant to section 18(2)(b) of the CJA, the learned JC had exercised her discretion under section 18(2)(a) wrongly. The appellant must therefore be taken to accept that she had exercised the discretion correctly. [30] On our part, we were not persuaded that the appellant had been materially prejudiced by the fact that three different judges heard the case to warrant the setting aside of the conviction and to order for a new trial. For this reason, we refrained from making an order pursuant to the proviso to section 18 of the CJA. [31] As for the point raised by the appellant that without the audio-visual advantage it was difficult for the learned JC to resolve issues relating to the credibility of the key witnesses (particularly PW1), the point to note is that PW1 was an agent provocateur. His role was merely to secure evidence against the appellant in his official capacity as a police officer. [32] In his capacity as an agent provocateur, PW1’s credibility as a witness is not open to question, unless his evidence was inherently incredible or that he had been proved to be lying on any material part of the case. Section 40A(1) of the DDA is relevant and provides as follows: “40A. (1) Notwithstanding any rule of law or the provisions of this Act or any other written law to the contrary, no agent provocateur shall be presumed to be unworthy of credit by reason of his having attempted to abet or abetted the commission of an offence by any person under this Act if the attempt to abet or abetment was for the sole purpose of securing evidence against such person.” 10 [33] In any event, PW1’s evidence was corroborated by PW6, PW3 and the telephone records, not that his evidence required corroboration in law. It was therefore safe for the learned JC to accept him as a credible witness although she did not see and hear him giving evidence first hand. In fact, the appellant himself in his defence did not refute PW1’s evidence that he handed the laptop bag containing the drug to PW1, except that he was, according to him, asked by Haridas to do so. [34] What is also important to note is that the appellant had the right but chose not to make any application to recall any of the witnesses who had given evidence before the two other judges. We do not accept counsel’s argument that it was the duty of the learned JC to ask the appellant if he wished to recall the witnesses. There is nothing in section 18(2) of the CJA that makes it mandatory for the learned JC to do so or to recall the witnesses on her own volition. [35] The other complaint by the appellant was that the learned JC deprived him of the opportunity to hear the evidence in chief of PW7 and PW8 without any reason. The evidence in chief of these witnesses was tendered through their witness statements, which were not read aloud in open court. It was submitted that the failure by PW7 and PW8 to read their witness statements aloud amounted to the evidence being given in the absence of the appellant. [36] The record at pages 105 and 137 of the notes of proceeding shows that the learned DPP did apply to have PW7’s and PW8’s witness statements read aloud but the learned JC decided that it was not necessary to do so. Section 402B(6) of the Criminal Procedure Code reads as follows: 11 “(6) So much of any statement as is admitted in evidence by virtue of this section shall, unless the Court otherwise directs, be read aloud at the trial and where the Court so directs an account shall be given orally of so much of any statement as is not read aloud.” [37] The answer to the appellant’s complaint is found in the Federal Court case of Miss Rossarin Nuekaew v Public Prosecutor [2017] 5 MLJ 1 where it was held, inter alia, as follows: “[17] We are of the view that from the wording of sub-s 402B(6) of the CPC, it is clear that so much of the witness statement to be admitted in evidence must be read aloud at the trial. However, this prerequisite is not to be applied across the board and without exception. Under this subsection, there is an exception to this general rule. The exception is expressed in the use of the words ‘unless the Court otherwise directs’, which means that the court can dispense with the requirement for the witness statement to be read aloud if the court finds it appropriate to do so.” [38] In our view the learned JC made the right call in deciding that it was not necessary for the witness statements of PW7 and PW8 to be read aloud. First, it was within her power to do so. Secondly, the statements had been served on the defence and thirdly, the appellant was represented by two senior counsel throughout the trial. [39] Furthermore, the appellant was given full and every opportunity to cross-examine PW7 and PW8 on their witness statements and in fact they were cross-examined at some length by learned counsel. The appellant could not therefore be heard to say that he had been prejudiced by the learned JC’s decision not to have the witness statements read aloud at the trial. 12 [40] The last issue raised by the appellant was that the appellant was deprived of a fair trial due to the learned JC’s failure to tell him at the end of the trial whether he was convicted based on presumed trafficking or based on actual trafficking or both, which could have been avoided if the trial was not fractured. According to learned counsel it was not clear on what ground the learned JC convicted the appellant. [41] With due respect to learned counsel, we found no substance to the argument. The appellant was caught red handed in the act of selling drugs. This was a clear act of trafficking within the meaning of section 2 of the DDA, and he was found guilty for that act. [42] In determining the guilt or otherwise of the appellant, the learned JC applied the test in Mat v Public Prosecutor [1963] 1 LNS 82, i.e. that to entitle the appellant to an acquittal, his burden was merely to cast a reasonable doubt in the prosecution’s case, which was lighter than the legal burden of proving his defence on the balance of probabilities had the learned JC invoked the presumption of trafficking under section 37(da) of the DDA. [43] So, if at all the learned JC had erred, she had erred in favour of the appellant by not invoking the presumption of trafficking under section 37(da)(iiia) against the appellant, given the fact that mens rea possession of the drugs had been affirmatively proved against the respondent at the close of the prosecution case. Section 37(da)(iiia) of the DDA provides as follows: “37. In all proceedings under this Act or any regulation made thereunder – (da) any person who is found in possession of – 13 (iiia) a total of 15 grammes or more in weight of heroin, morphine and monoacetymorphines or a total of 15 grammes or more in weight of any two of the said dangerous drugs; otherwise than in accordance with the authority of this Act or any other written law, shall be presumed, until the contrary is proved, to be trafficking in the said drug;” (emphasis added) [44] In the Federal Court case of Muhammed Hassan v Public Prosecutor [1998] 2 CLJ 170 FC; [1998] 2 MLJ 273, Chong Siew Fai CJ (Sabah & Sarawak) in dealing with the presumptions under section 37(d) and (da) of the DDA said: “The ‘deemed’ state of affairs in s. 37(d) (ie, deemed possession and deemed knowledge) is by operation of law and there is no necessity to prove how that particular state of affairs is arrived at. There need only to be established the basic or primary facts necessary to give rise to that state of affairs ie, the finding of custody or control. Such presumptions as under s. 37(d) (and for that matter, the one under s. 37(da)) are sometimes described as “compelling presumptions” in that upon proof of certain facts by a party (in our present case, proof of custody or control in s. 37(d) by the prosecution), the court must in law draw a presumption in its favour (ie, presumptions of possession and knowledge) unless the other party proves the contrary. Such a presumption has the compelling force of law. It is a deduction which the law requires the trial court to make.” (emphasis added) [45] If the presumption under section 37(da)(iiia) of the DDA had been invoked by the learned JC as she should have, it would not have been sufficient for the appellant, in order to succeed in his defence, to merely cast a reasonable doubt in the prosecution’s case as to whether or not the drug in his possession was for the purpose of trafficking. [46] He must prove by admissible evidence that the drug was not for the purpose of trafficking, failing which the consequence would be a 14 conviction: See Public Prosecutor v Yuvaraj [1968] 1 LNS 116; [1969] 2 MLJ 89. In that case the Judicial Committee of the Privy Council held as follows: “Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact: it is sufficient for his acquittal if any of the facts which if they existed would constitute the offence with which he is charged are “not proved”. But exceptionally, as in the present case, an enactment creating an offence expressly provides that if other facts are proved, a particular fact, the existence of which is a necessary factual ingredient of the offence, shall be presumed to exist “unless the contrary is proved”. In such a case the consequence of finding that that particular fact is “disproved” will be an acquittal, whereas the absence of such finding will have the consequence of a conviction.” (emphasis added) [47] Public Prosecutor v Yuvaraj (supra) was a corruption case, but in Cohen Lorraine Philis & Anor v PP [1989] 2 CLJ 956; [1989] 1 CLJ Rep 18, which was a drug trafficking case, the then Supreme Court recognised that the law on statutory presumptions as stated in the Privy Council case has become “part of our law”. The ratio decidendi of the case is therefore applicable in drug trafficking cases. [48] On the proved facts, the appellant could not have succeeded in rebutting the presumption of trafficking under section 37(da)(iiia) of the DDA as he did not even raise, as his defence, that the drug was not for the purpose of trafficking. Rather, his defence was that he had no knowledge of the drugs inside the laptop bag as he was merely handing over the bag to “Kumar” as requested by Haridas. [49] The defence of “no knowledge” is separate and distinct from the defence of “no trafficking”. The defence of no knowledge really is a 15 defence that the appellant was not even in “possession” of the drug as the word is understood in criminal law: Chan Pean Leon v PP [1956] 1 LNS 17; [1956] 1 MLJ 237; Leow Nghee Lim v Regina [1955] 1 LNS 53; [1956] 22 MLJ 28. The importance of the distinction lies in the fact that the appellant was not charged with simple possession of the drug under section 12(2) of the DDA but for trafficking under section 39B(1). [50] To succeed in rebutting the statutory presumption of trafficking, the appellant must first admit that the drug was in possession, i.e. he knew about the drug except that it was not for the purpose of trafficking. But this was not the appellant’s defence to the charge. It was his choice not to rebut the presumption of trafficking, hoping perhaps to succeed in his defence of no knowledge, but that would only mean that the presumption remained unrebutted at the conclusion of the trial. [51] Since the presumption of trafficking had not been rebutted, the appellant must be convicted of the offence charged, unless he had succeeded in casting a reasonable doubt in the prosecution’s case as to his knowledge of the drug, in which case he would be entitled to an acquittal as without proof of knowledge he committed no offence under the DDA, not even the offence of possession under section 12(2). [52] However, this was not the case as the evidence is overwhelming that the appellant knew about the drug. No reasonable doubt could have been cast on PW1’s evidence by the appellant’s mere assertion that he knew nothing about the drug as he was just helping Haridas to hand over the laptop bag to “Kumar” (PW1). 16 [53] The law is settled that the prosecution is only required to prove its case beyond any reasonable doubt and not beyond the shadow of a doubt. On the degree of proof required, we reproduce below the oft-quoted pronouncement by Denning J (as he then was) in Miller v Minister of Pensions [1947] 2 All ER 372 at page 373: “That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt.” [54] Sharma J spoke in the same vein when he said in Public Prosecutor v Saimin & Ors [1971] 1 LNS 115; [1971] 2 MLJ 16: “The following definition of ‘reasonable doubt’ is often quoted: “It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.” “It has again been said that “reasonable doubt” is the doubt which makes you hesitate as to the correctness of the conclusion which you reach. If under your oaths and upon your consciences, after you have fully investigated the evidence and compared it in all its parts, you say to yourself I doubt if he is guilty, then it is a reasonable doubt. It is a doubt which settles in your judgment and finds a resting place there. Or as sometimes said, it must be a doubt so solemn and substantial as to produce in the minds of the jurors some uncertainty as to the verdict to be given. A reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an imaginary doubt or conjecture unrelated to evidence.” (emphasis added) 17 [55] In Underhill’s treaties on the Law of Criminal Evidence (5th Ed. Vol. 1 at page 34), the following passage can be found: “A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in their minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt.” [56] It was for all the reasons aforesaid that we came to the conclusion that the learned JC was right in finding the appellant guilty of the offence charged, hence our decision to dismiss his appeal and affirm his conviction and sentence. Signed ABDUL RAHMAN SEBLI Judge Court of Appeal Malaysia Dated: 4 July 2019. For the Appellant: Hisyam Teh Poh Teik and Naran Singh of Messrs Teh Poh Teik & Co. For the Public Prosecutor: Jasmee Hamiza Jaafar, Deputy Public Prosecutor of the Attorney General’s Chambers.