Pendakwa Raya v Mohd. Razali bin Zakariya (K-05(LB)-12-01/2016)

Court of Appeal of Malaysia22 Sept 2016K-05(LB)-12-01/2016

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1 IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. K-05(LB)-12-01/2016 BETWEEN PUBLIC PROSECUTOR …APPELLANT AND MOHD. RAZALI BIN ZAKARIYA …RESPONDENT (IN THE MATTER OF THE HIGH COURT OF MALAYA AT ALOR SETAR CRIMINAL TRIAL NO. 45A-15-07/2014 BETWEEN PUBLIC PROSECUTOR AND MOHD. RAZALI BIN ZAKARIYA) CORAM: TENGKU MAIMUN TUAN MAT, JCA AHMADI HAJI ASNAWI, JCA KAMARDIN HASHIM, JCA 2 JUDGMENT [1] In the court below, the appellant was charged as follows: “Bahawa kamu pada 20hb. Januari 2014, jam lebih kurang 10.45 malam, di tepi Jalan Kg. Sg. Pasir, Sungai Petani, di dalam Daerah Kuala Muda, di dalam Negeri Kedah Darul Aman telah didapati mengedar dadah berbahaya cannabis seberat 8676.9 gram. Oleh yang demikian 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”. [2] At the end of the defence’s case, the respondent was acquitted and discharged of the aforesaid offence. [3] The appeal before us by the Public Prosecutor was in respect of the said acquittal and discharge. [4] We allowed the said appeal after due consideration of the issues raised and the submissions made in support thereof and set aside the order of acquittal and discharge made by the learned trial judge and substituted it with an order convicting the respondent of the offence and henceforth sentenced the respondent to suffer the death penalty by hanging. 3 [5] We now give our grounds. The Case For The Prosecution [6] On 19.1.2014, SP4 (L/Corpl. Mohd. Aznawi Fariz bin Miskom, of BSJN, IPK, Kedah) received information of a suspect believed to be involved in drug trafficking activities in Sungai Petani. He conveyed the information to his superior, SP-5 (ASP Abdul Razak bin Osman, Pegawai Turus Risikan/Operasi/Tahan, JSJN, IPK, Kedah). [7] SP-4 was then instructed by SP-5 to get further information of the suspect. [8] SP-4 met his informer on the same day (19.1.2014), who then contacted the suspect. SP-4 then spoke with the suspect using the informer’s handphone. [9] In the telephone conversation, the suspect introduced himself as ‘Li’ while SP-4 introduced himself as ‘Boy’. 4 [10] SP-4 convinced the suspect to sell to him nine (9) kilograms of cannabis. The agreed purchase price for the whole amount was RM17,100.00. The suspect further agreed to meet SP-4 at Giant Hypermarket, Sungai Petani, the following day pursuant to the said sale. [11] On 20.1.2014, SP-4 briefed SP-5 of his dealing and agreement with the suspect. At about 5.00 p.m., SP-5 proceeded to organise a further briefing with his officers to nab the suspect. SP-4 was instructed to act as an agent provocateur (AP) to buy the said drugs. SP-4 was also given RM17,100.00 as flash money by SP-5. In addition SP-4 was instructed to ignite his lighter as a signal to the raiding party to act once he could confirm that the suspect has the drugs with him. [12] SP-4 arrived at the Giant Hypermarket at around 8.30 p.m. He saw his informer who was already there. They proceeded to the KFC Restaurant, located in the premises. A short while later the suspect arrived. He came alone. [13] SP-4 was introduced to the suspect by the informer who then went away and sat at a table nearby. 5 [14] SP-4 unequivocally identified the respondent/accused as the said suspect. Equally, SP-4 firmly stated that the respondent had come alone in the said first ever meeting with him. [15] SP-4 said that they spoke for about 10 to 15 minutes, where in the course of their conversation, SP-4 had wanted to show the flash money to the respondent but the respondent had refused to see it. [16] The respondent left the restaurant at about 8.45 p.m. on a motorcycle bearing the number PHX 7289 (exhibit P22). Before leaving the respondent told SP-4 to wait at the parking area for his return. [17] SP-4 proceeded to the parking area and waited in his car for the respondent to return. He informed SP-5 of the outcome of his meeting with the respondent. SP-5 then instructed a member of his team, one Zakariah, to get into SP-4’s motorcar to assist SP-4. [18] The respondent returned about an hour later. SP-4 saw him having a paper box (exhibit P11) on top of his motorcycle basket. The respondent approached SP-4 and then instructed SP-4 to follow him. 6 [19] The respondent came out from the parking area, followed by SP-4 in his car, and drove towards Jalan Kampong Sungei Pasir, not far from Giant Hypermarket. The respondent pulled over at the side of the said road. SP-4 also stopped his car behind the respondent’s motorcycle. [20] SP-4 alighted from his car and went up to the respondent who was still seated astride on his motorcycle. The respondent showed the contents of the paper box exhibit P11 to SP-4. SP-4 saw several packets of compact substances inside the paper box. He checked the packets and found that it contained compressed plant materials suspected to be cannabis. [21] SP-4 then ignited his lighter. SP-5 and his officers moved in and managed to arrest the respondent while the respondent was still astride on his motorcycle. SP-5 said that there was a brief struggle between his officers and the respondent when they tried to apprehend the respondent. [22] After the respondent’s arrest, SP-5 searched and seized the paper box (exhibit P11) which was still on the respondent’s motorcycle and 7 found it contained nine (9) packets of compressed plant materials wrapped in tin foil papers and plastics, suspected to be cannabis. [23] The respondent and the incriminating exhibits were brought back to IPD, Kuala Muda. At about 1.00 a.m., the respondent was handed to one Insp. Tan Cheng Yee, and was taken to his house for a further search of incriminating drugs. However, no drugs were found at the respondent’s house. SP-5 though was not involved in this search. [24] SP-5 finally handed over the respondent and the seized items to the investigating officer, SP-6 (Insp. Mohd. Zulhafiz bin Zainuddin), on 21.1.2014, who later had the incriminating exhibits sent to the chemist, SP-2 (Faesmazianna bt Napiah). [25] The chemist found the nine packages (exhibits P12 to P21) to contain 8676.9 grammes of cannabis (hereinafter referred to as ‘the said drugs’) as defined under s.2 of the Dangerous Drugs Act, 1952 (hereinafter referred to as ‘the DDA’). SP-2 also prepared a report of her analysis, exhibit P10, evinced at p.335, Jilid 4, Rekod Rayuan (‘RR’). 8 [26] The learned trial judge was satisfied that the prosecution had established a prima facie case against the respondent upon the charge preferred and hence, ordered the respondent to enter his defence. The Case For The Defence [27] The respondent gave evidence on oath. [28] The respondent testified that prior to the year 2009, he was running a food stall business with his family in Simpang Taman Satria, Jalan Langgar, Alor Setar, Kedah. [29] He met a lot of people in the course of running his food stall, one of whom was “Along” whom he had known in 2000 or 2001. He knew Along was involved in drug trafficking activities and had even invited him to join in the trade on several occasions. [30] In 2009, he left the family food business when he got an offer to work as a general worker at Bakar Arang Health Clinic, Sungai Petani. Consequently he moved his family to Sungai Petani. In 2013, he 9 purchased a house in Taman Semarak, also in Sungai Petani, and yet again had his family moved into the new house. [31] The respondent further testified that a week before he was arrested on 20.1.2014, Along had been calling and texting messages to him, seeking his help to look for someone who could supply drugs. Along told him that he was no longer involved in supplying drugs and was seeking the respondent’s help to get someone who could supply drugs. [32] The respondent said that he had then informed Along that he could not help because he did not use drugs and did know anyone who could supply drugs. However, Along was very persistent and had continuously sought his assistance by sending three or four messages a day. [33] On 19.1.2014, Along called the respondent at around 8.00 – 9.00 p.m., whereupon the respondent proceeded to tell Along that there was a supplier but had imposed a condition that he (Along himself) must come and discuss with the supplier personally. 10 [34] The respondent informed Along that the supplier is Pak Ca who was then staying in Kampong Sungai Pasir, Sungai Petani, Kedah. He said he managed to contact Pak Ca through his friend, Sobri, and was told by Pak Ca that the price of one kilogram of cannabis was RM1,900.00. [35] Along asked the respondent the price quoted by Pak Ca. Along also told the respondent that he would go to Pak Ca’s place the next day. In addition, Along also said that he wanted to meet him (respondent) the next day (20.1.2014) at KFC Restaurant in Kampung Sungai Pasir, Sungai Petani, at around 8.00 to 9.00 p.m. [36] The respondent continued that on 20.1.2014, he went home after he had finished work at 5.00 p.m. His good wife went to work at around 7.45 p.m. to 8.00 p.m. He sent his daughter (SD-2, Nurel Aisyah Binti Mohd. Razali) for religious classes also at about the same time. While waiting for his daughter’s class to end, he received a call from Along who told him that he (Along) had arrived at the KFC Restaurant at Giant Hypermarket. 11 [37] After her daughter’s religious class had ended, the respondent went to meet Along at KFC Restaurant on a motorcycle. He took along her daughter who was 11 years old at the material time. [38] The respondent testified that at the restaurant he saw Along with his friend, whom Along introduced to him as “Boy” (in the defence narrative “Boy” was SP-4). [39] The respondent sat next to Along while Boy was seated a distance away. The respondent said that he did not speak to Boy. Along informed him that Boy had wanted to buy drugs. He told Along that the price was RM1,900.00 per kilogram and the drugs were with Pak Ca. The respondent agreed to lead the way to Pak Ca’s place. [40] They left the restaurant, leaving Boy behind. Boy was told to wait at the restaurant for Along’s return. The respondent was the rider, Along was the pillion rider and the respondent’s daughter was seated in front. They went to the respondent’s house to send the daughter home before going to Pak Ca’s place. 12 [41] When they reached the respondent’s house, the respondent’s friend, SD-4 (Mohd. Azhar bin Hashim), had just arrived as well. SD-4 came with his nephew and had wanted to borrow a nebulizer from the respondent. The respondent said that he had always kept a nebulizer at home because his daughter was suffering from asthma. [42] The respondent and Along left for Pak Ca’s place about half an hour later. SD-4 and his nephew had decided to leave too at the same time. [43] Midway to Pak Ca’s place, Along requested the respondent to go back to the restaurant to get Boy to come along to meet Pak Ca. [44] When they reached the Giant Hypermarket parking area, Along waved at Boy instructing him to follow them in his car. [45] They exited the parking area and went in the direction of Kampong Sungai Pasir. Then Along instructed the respondent to stop at the road side because he had wanted to make a call to his friend. 13 [46] Along got off from the motorcycle. He started talking on his mobile phone and slowly walked away from the respondent. The respondent was still on his motorcycle with the engine running. [47] A car pulled over at the back of his motorcycle. A man dashed out from the car and went straight to him and pulled him away from his motorcycle until he fell off. A second car came. Three or four men alighted from the second car and pinned the respondent on the ground and had the respondent handcuffed. They identified themselves as police officers. [48] The respondent stated that while he was pinned down, he saw Along running away towards the junction to Kampong Sungai Pasir. The police did not go after Along. At the same time he saw a policeman going to a tree nearby and took out a box, exhibit P11. The policeman found the said incriminating drugs inside the box exhibit P11. The respondent claimed that he was shocked at the discovery. 14 [49] The respondent and the incriminating exhibits were later brought to IPD, Kuala Muda. The incriminating drugs were taken out of the box exhibit P11 and placed on the table before the respondent. [50] The respondent denied that the box exhibit P11 and the incriminating drugs inside the said box were his. The respondent also denied that he was trafficking in drugs. The respondent claimed that Along could have set him up because he had scolded Along for asking him to look for a drug supplier a week before he was arrested. [51] At the end of the defence’s case, the learned trial judge found that ‘Along’ was not a fictitious character but a real person in the defence’s narrative. In addition SD-2, SD-3 and SD-4 were credible witnesses, corroborating the appellant’s evidence regarding the existence of Along and that the respondent could have been set up by Along because the respondent had scolded Along earlier for asking him to look for a drug supplier. The defence’s narrative in totality had cast a reasonable doubt upon the prosecution’s case, particularly with regard to the inducement of this character, Along. The prosecution had failed to discharge its heavy responsibility to disprove the defence’s story vis-a-vis to disprove the 15 purported facts in the defence’s narrative. Hence, the respondent was discharged and acquitted of the charge preferred against him. The Appeal [52] The learned Deputy Public Prosecutor (‘DPP’) for the appellant submitted that:

(i) the learned trial judge was in error when he found that Along is a real person and not a fictitious character and the inducement of Along had cast a reasonable doubt upon the prosecution’s case;

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(ii) the learned trial judge erred when he had considered and had accepted the testimonies of the defence’s witnesses when it is apparent that they are interested witnesses; and

Subparagraph

(iii) the learned trial judge was in error when he found that the respondent could have been set up by Along when there was no evidence suggesting the same nor any motive shown. 16 Our Decision Ground (i) and (iii) – the existence of Along and the set up to entrap the respondent [53] The learned trial judge found that the respondent’s narrative suggested that he was being framed for the offence charged and the culprit was the character in the defence’s narrative, Along. After a lengthy discourse, the learned trial judge was convinced that the character of Along was not fictitious, but a real character in the defence’s narrative. [54] The learned DPP thus contended that the finding of the learned trial judge that Along is a real person was without basis. It was further contended that the presence of Along and the role played by him was an afterthought and a recent invention on account that the respondent did not disclose the same to SP-5, the arresting officer, at the earliest available opportunity. In fact the character Along was never disclosed to SP-5 until the cross-examination of SP-5 during the trial. [55] The learned DPP also submitted that Along’s character was also not made known to the investigating officer, SP-6. There were questions put 17 to SP-6 though that the respondent had disclosed the presence of Along but the same were, however, denied by SP-6. [56] Hence, it was submitted that the respondent had failed to give notice of his defence i.e. the existence of Along and the role played by him at the first available opportunity to account for the horrible mess he is presently in. [57] It is our considered view that in all the circumstances of this case, the first opportunity to give notice of the respondent’s defence in respect of the existence of Along must occur at the point soon after his arrest and the discovery of the said drugs – see Teng Howe Sing v PP [2009] 3 CLJ 733 at pp. 749 – 750; PP v Badrulsham b. Baharom [1988] 2 MLJ 585. Otherwise, it is absolutely an afterthought where the weight to be accorded therein is a matter in which the court has little option but to dismiss it with little or no weight to warrant due consideration. [58] We have tooth combed the evidence of SP-5 and were in full agreement with the learned DPP that the character of Along and the role played by him was never disclosed to SP-5 soonafter the respondent’s 18 arrest and the discovery of the drugs thereafter. The respondent could have and should have informed SP-5, of the existence of Along if indeed Along did exist. All the more so when, by the defence’s own narrative, Along had played a very profound role in the scheme of events from the very beginning until the final minutes before the arrest of the respondent and the seizure of the said drugs were effected. [59] The period immediately after his arrest would provide the most opportune moment for the respondent to tell his version of the event as SP-5 was the first officer to have accosted him with the drugs. However, the respondent had chosen to disclose the existence of Along and the role played by him to SP-5 only years later in Court. We have no doubt at all that such disclosure was a belated disclosure suggesting that it was an afterthought. The respondent has all the time in the world to concoct his story to suit with the crux of his defence. It is not the product of spontaneity and it is not the first reaction of the respondent in response to his arrest. Hence, the chance of embellishment and improvement in the challenge cannot be ruled out. 19 [60] Even if we agree with the suggestion of the defence that the respondent had disclosed the existence of Along to the investigating officer, SP-6, in the course of SP-6’s investigation, we were of the considered view that such disclosure is equally a belated disclosure and worst still, no specific details of Along was given to enable SP-6 to mount an effective investigation. The evidence indicated that the respondent did not give the specific date and time of such disclosure to SP-6. Hence, we reckoned that it must have occurred after the respondent was handed over to SP-6 by SP-5 in the early hours following the day after his arrest. In a nutshell it must have been several hours or days after his arrest. [61] Be that as it may, it is of no assistance to the cause of the defence. In Teng Howe Sing v PP (supra), the Federal Court hence decided that: “[30]….The learned trial judge’s comments on the late disclosure of the real identity of ‘Ho Seng’ at the defence stage merely goes to show the weight that the court attached to the appellant’s defence which is permitted by the law. On this point we would like to refer to the case of Public Prosecutor v Badrulsham bin Baharom [1988] 2 MLJ 585, wherein Lim Beng Choon J at p.591 said that: …So we are left with nothing more than the bare oral assertion of the accused that it was Noor Azlan who asked him to collect the bag on behalf of the former and that the accused himself had no knowledge of the contents of P3. If that be the case, one would hardly imagine that he would not have told either PW3 or PW5 at the railway station at Alor Setar at the time of his arrest that P3 belonged to Noor Azlan instead of saying that there was nothing in P3. 20 [31] In Badrulsham’s case, the court was of the view that the failure of the accused to inform the raiding officers that the white plastic bag belonged to Noor Azlan at the time of his arrest and only revealing this information during the interrogation two hours after his arrest, goes some way to support the case for the prosecution.” [62] The respondent before us was caught on all fours in the same conundrum as the accused in the case cited above. There is no reason for the respondent to withhold the information relating to the existence of Along at the time of his arrest from SP-5. As found in the authority cited above, the want of disclosure of Along at the earliest available opportunity goes some way to support the testimonies of SP-4 and SP-5 that Along did not exist at all in the scheme of events and that at all material times the respondent was alone in his dealing with SP-4 and on the day in question he had come alone with the said drugs to be transacted to SP-

[63] At pp. 148 – 149, Jilid 2, RR, the respondent stated: “S: Adakah kamu tahu barang kes dadah di dalam kotak itu milik siapa? J: Mungkin Along ingin memerangkap saya kerana sebelum ini saya ada perselisihan faham sebab saya pernah marah Along sebab bertanyakan kes dadah. Berkenaan pembekal dalam seminggu sebelum tangkapan. S: Itu anggapan kamu? 21 J: Mungkin juga sebab dia lihat kesenangan saya sebab saya ada rumah, kereta dan isteri. Ini anggapan saya.” [64] The Federal Court in Wan Mohd. Azman Hassan v PP [2010] 4 CLJ 529 at pp. 543, 544 had reiterated the principles applicable in relation to entrapment: “[26] …..In our view, the common law position that entrapment is not a substantive defence remains the law, The position taken by the High Court in Kang Ho Juan where it was pronounced that there is no place in Malaysian law to allow the so called defence of entrapment, is still good law here. [27] In any event, it is for the appellant to prove that he committed this offence as a result of an entrapment. This can only be determined from the facts to be evaluated by the trial court. In other words it is a question of fact. As there was no finding of facts on this issue by the trial court the issue of entrapment as a defence does not arise in this case. On this point alone, it demolishes the first argument raised by learned counsel for the appellant. For the defence to operate at all, the appellant needed to show that he was actually an ‘unwary innocent’ who would not, but for the entrapment, have committed this offence. The facts however show that the appellant was a person with an opposite disposition; i.e. that of an ‘unwary criminal’ who readily participated in this offence. In this case, at worst, SP3’s action can only be described as soliciting the appellant to supply the drugs. There was no entrapment as such.” [65] We have scrutinised the evidence and found nothing to suggest that the respondent had discharged the burden of proving that he had committed the offence as a result of entrapment. The excuse that there was a misunderstanding between him and Along because he had scolded Along earlier for asking him to look for a drug supplier or that Along was 22 envious of him because he was leading a comfortable life with a wife, house and motorcar is too trivial and remote to propel Along to take such drastic measures to entrap the respondent to commit a capital offence. [66] In addition, it makes no complete sense for the respondent to continue offering his services to Along until the final minutes before he was arrested by SP-5 if he feel very strongly against Along’s request to look for a drug supplier. The logical thing for him to do is to completely ignore Along. The facts indicate that the respondent readily entertained SP-4’s request to buy drugs from him. The respondent is an ‘unwary criminal’ who readily participated in the commission of this offence. Ground (ii) – the acceptance of the testimonies of the defence witnesses by the trial judge. [67] The testimony of the respondent was diametrically opposed to that of SP-4 and SP-5. As seen in the earlier paragraphs of this judgement the testimony of the respondent was replete with the omnipresent of Along who was depicted as the principal player in the drug transaction between him (the respondent) and Along and not between him and SP-4. He had never spoken to nor have had any dealing with SP-4. The testimonies of 23 SD-2 and SD-4 verily corroborated the respondent’s evidence of the presence or existence of Along. Meanwhile SD-3 (Mohd. Shaiful bin Zakariya, the younger brother of the respondent) testified that he had received a telephone call from Along informing him that the respondent has been arrested by the police and SD-3 was told to do the needful to assist the respondent. [68] The learned trial judge found SD-2, SD-3 and SD-4 to be credible witnesses and had indeed accepted their testimonies on the existence of Along. [69] On the other hand, SP-4’s testimony singularly incriminates only the respondent. It was his testimony that at all times his dealing was only with the respondent and at all times the respondent had acted alone i.e. from his first telephone call to the respondent up to the moment he met the respondent in his first meeting at KFC Restaurant right until the delivery of the said drugs and the arrest of the respondent as narrated in paragraphs 6 to 21 above. SP-4 reiterated that the respondent did not bring his daughter along in the meeting with him at the KFC Restaurant. SP-4 also denied that his informer’s name is Along and denied the presence of Along and the role played by him at any point of time. 24 [70] SP-5’s testimony ran in tandem with the evidence of SP-4. He saw the respondent coming alone to meet SP-4 at KFC Restaurant. He saw the respondent sitting together with SP-4 at the same table and talking. He saw the respondent leaving the restaurant alone. He saw the respondent coming back alone to the parking area about an hour later with a paper box on the top of his motorcycle basket. He saw the respondent leaving the parking area alone on his motorcycle going towards Jalan Kampung Sungai Pasir followed by SP-4 in his car. He saw the respondent being alone when he stopped his motorcycle by the roadside along Jalan Kampung Sungai Pasir. He saw SP-4 inspecting the contents of the paper box together with the respondent and he saw SP-4 igniting his lighter after the inspection. And, when he ambushed the respondent, the respondent was sitting alone astride his motorcycle. [71] The learned DPP complained that in the light of the uncontroverted evidence of SP-4 and SP-5, it is wrong for the learned trial judge to have accepted the testimonies of SD-2, SD-3 and SD-4 pertaining to the existence of Along without regard that these witnesses are interested witnesses on account that SD-2 is the respondent’s daughter, SD-3 is his younger brother and SD-4 was his friend. It raised issues of credibility and their evidence ought to be rejected for want of credibility. The learned 25 DPP concluded that in all the circumstances of the case, the witnesses called by the respondent were not credible witnesses. [72] The law on interested witnesses is plain that, to quote from the judgment in Balasingham v Public Prosecutor [1959] 25 MLJ 193, there is no legal presumption that an interested witness should not be believed. He is entitled to credence until cogent reason for disbelief can be advanced in the light of evidence to the contrary and the surrounding circumstances. While the authorities also suggest that the evidence of interested witnesses must be treated with caution, there is no rule of law requiring the trial judge to caution himself and make a specific ruling or finding on the credibility of such witnesses – see Rasmi bin Yusof v Public Prosecutor [2013] 5 MLJ 66; Magendran a/l Mohan v Public Prosecutor [2011] 6 MLJ 1; [2011] 1 CLJ 805; Lim Boon San v Public Prosecutor [1968] 2 MLJ 45; Kumaran a/l Sappani v Public Prosecutor [2012] 6 MLJ 153. [73] The evidence of the interested witnesses will thus be assessed and weighed like that of any other witnesses and be subjected to the vagaries of cross-examination to test their veracity. Whether the testimony of the witnesses should be rejected in whole or in part will depend on the 26 outcome of the cross-examination. And, it is the business of the trial judge to make a finding on the veracity of the witnesses and whether to reject their evidence in whole or in part at the end of the trial, having seen and heard them. [74] Be that as it may, as noted earlier the evidence of the respondent and his witnesses were diametrically opposed to that of SP-4 and SP-5. Apparently it raised issues of credibility and the learned trial judge preferred the testimonies of the former rather than the latter. However, the learned trial judge did not assign any reason for his preference in rejecting the testimonies of the latter. [75] In dealing with issues of credibility, it is always necessary to take into consideration the tests that a trier of fact should ordinarily apply when evaluating oral evidence. One of them is motive. The presence or absence of motive on the part of a witness is a relevant consideration which a trial court should take into account. [76] It is apparent that both SP-4 and SP-5 are total strangers in relation to the respondent. It has not been shown that they have crossed path in 27 the past. It has also not been shown that they have an axe to grind against the respondent to propel them to manufacture evidence and testify adversely against the respondent in a capital offence. In addition, it is true that SP-4 was an AP and SP-5 was part of the grand design in an undercover sting operation. But the testimony of an AP, by reason of s.40A of the DDA is not to be presumed unworthy of credit by reason only of his having attempted to abet or abetted the commission of any offence by any person under s.39B if the attempt to abet or the abetment was for the sole purpose of securing evidence against such person, as was the case here (see also Wan Mohd. Azman Hassan v PP (supra) at para. 15, p.539 and paras. 31, 32, 33, pp. 544, 545. There is also nothing inherently improbable in the testimonies of both SP-4 and SP-5. Equally, there is also nothing in the evidence to suggest that SP-4 and SP-5 had harboured an oblique motive to fix the respondent in the commission of a capital offence. It is thus apparent that the testimonies of SP-4 and SP-5 were grounded upon the abundance of evidence that there was an agreement for the sale of drugs between the respondent and SP-4, in which the respondent had failed to dislodged, which the court cannot simply ignore. 28 [77] Another material consideration when evaluating oral evidence are the probabilities of the case. If the testimony of the witness is improbable, then the trial court should not hesitate to reject his evidence or according it very little weight. But where the evidence of a witness accords with the probabilities of the case, it would be a serious misdirection on the part of the trial court to give little or no weight on grounds of credibility – see Tengku Mahmood v Public Prosecutor [1974] 1 MLJ 110; Muniandy & Ors v Public Prosecutor [1966] 1 MLJ 257. [78] SP-4, the principal witness for the prosecution stated in very clear terms of his first meeting with the respondent on 20.1.2014 at KFC Restaurant, where the respondent had come alone, unaccompanied by any other person. The respondent confirmed that there was such a meeting at KFC Restaurant where he met SP-4 albeit with several divergence as indicated in the previous paragraphs. However, what is important here is the fact such a meeting did actually take place between the two of them consistent with the testimony of SP-4 that he had called and had in fact spoken with the respondent a day earlier (on 19.1.2014) using his informer’s mobile telephone, where in the said telephone conversation, both of them had agreed that – 29

(i) SP-4 is to buy about 9 kilograms of cannabis from the respondent;

Subparagraph

(ii) the purchase price for the 9 kilograms of cannabis is RM17,100.00; and

Subparagraph

(iii) the two of them had agreed to meet at Giant Hypermarket the next day (20.1.2014) to finalise the deal and take delivery of the drugs. [79] In addition, SP-4 had with him the purchase money amounting to RM17,100.00 and had offered to show it to the respondent but the latter had declined to see it at that moment. The said sum of RM17,100.00 is consistent with the price quoted by the respondent for 9 kilograms of cannabis. It is also consistent with SP-5’s evidence that he was told by SP-4 of his agreement to buy 9 kilograms of cannabis at RM17,100.00 for the whole amount from the respondent and that he had raised the said sum through contributions from his fellow officers, rank and file. The said sum amounting to RM17,100.00 brought by SP-4 to the meeting at KFC Restaurant is also consistent with the agreement by the respondent to deliver the said drugs on the day in issue. 30 [80] SP-5 saw the respondent leaving the said restaurant on a motorcycle and later saw SP-4 seated in his car at the parking area of Giant Hypermarket. This is consistent with the evidence of SP-4 that he was told by the respondent to wait for him at the parking area whilst he went elsewhere momentarily. [81] SP-4 said that about one hour later, the respondent came back to where he was waiting for him as instructed earlier. Now he came with a paper box on the basket of his motorcycle. SP-5 also saw the respondent coming back to where SP-4 was waiting with a paper box on the basket of his motorcycle. This is again consistent with SP-4’s testimony that the respondent had told him to wait for his return at the parking area. [82] SP-5 saw the respondent exiting the parking area and moving towards Jalan Kampong Sungai Pasir, followed by SP-4 in his car. This is consistent with SP-4’s testimony that he was told by the respondent to follow him (respondent) in his car. [83] Midway along Jalan Kampong Sungai Pasir, the respondent stopped his motorcycle by the roadside, followed by SP-4, whereby SP-4 31 was then invited to examine the contents of the paper box. SP-4 confirmed that the several packages inside the paper box contained compressed plant material suspected to be cannabis and ignited his lighter. This confirmed the prosecution’s case that there was a sale and purchase agreement between SP-4 and the respondent, whereby SP-4 had agreed to purchase the said drugs from the respondent and the respondent had agreed to sell the same to SP-4. The respondent had delivered his side of the bargain by delivering the said drugs to SP-4. [84] SP-5 saw the respondent stopping his motorcycle by the roadside and soon after saw SP-4 nosed around the paper box and later igniting his lighter. He rushed in and effected the arrest of the respondent and seizure of the drugs. Again this is consistent and in fact confirmed SP-4’s testimony that there was such a sale and purchase agreement between the respondent and SP-4, and the respondent was performing the tail-end of the bargain by delivering the said drugs to SP-4. [85] In addition, SD-2 was 11 years old at the time she gave her testimony on 18.10.2015. She was only slightly more than 9 years old at this time of the respondent’s (her father) arrest on 20.1.2014. She gave 32 an unsworn testimony. Obviously her veracity cannot be tested against the vagaries of cross-examination and hence, earned little weightage. [86] In the meantime, SD-3 (the respondent’s younger brother) jumped into the fray out of nowhere to state that at about 12.00 a.m. on 21.1.2014, he had received a telephone call from Along informing him that the respondent had been arrested by the police and he was also told to do the needful to assist the respondent. [87] In our view, SD-3’s evidence did little to assist the defence as it did not run in tandem with the respondent’s stated defence that he was set up by Along in the commission of the offence because he had scolded Along earlier for asking him to look for a drug supplier. It is unimaginable that Along would inform SD-3 of the respondent’s arrest if Along had all along wanted to set up or fix the respondent. [88] In so far as SD-4’s evidence is concerned, he appeared to be at the right place at the right time. He had arrived at the respondent’s house with his nephew to borrow the respondents nebulizer just as the respondent had just arrived together with her daughter and Along. SD-4 33 also left the respondent’s house at about the same time when the respondent left his house with Along. In our view, SD-4’s evidence appeared fraught with coincidences rendering it to be less than believable. In addition, a nebulizer is for personal use and not meant to be pass around to be used by all and sundry. [90] In all the circumstances of the case, we opined that the evidence of SP-4 and SP-5 accords well and was squarely in sync with the probabilities of the case. The uncontroverted factual evidence enumerated above goes a long way to support the testimonies of SP-4 and SP-5 that there was indeed a drug transaction exclusively between SP-4 and the respondent without the involvement of a third party (Along). Clearly, the respondent was arrested with the said drugs after he had delivered his side of the bargain i.e. delivering the said drugs to SP-4 as mutually agreed upon. Conclusion [91] We are very mindful that factual findings are primarily the domain of the trial judge who had all the advantage of seeing and hearing the witnesses testifying before him. However, an appeal is merely a 34 continuation of proceedings by way of rehearing and the appellate court is entitled to make its own findings if the findings of the trial court is plainly perversed, unsustainable and not supported by the evidence adduced, as here before us. [92] Hence we allowed the appeal by the Honourable Public Prosecutor. The order of the High Court discharging and acquitting the respondent of the offence preferred against him at the end of the defence’s case is set aside and substituted with a finding of his guilt and his conviction of the offence thereof. Consequently the respondent is sentenced to death by hanging according to law. Dated: 27th December 2017 ( AHMADI HAJI ASNAWI ) Judge Court of Appeal, Malaysia 35 Counsel Solicitors:- For the Appellant: Muhammad Azmi bin Mashud Timbalan Pendakwa raya Jabatan Peguam Negara 62100 Putrajaya For the Respondent: En Rahmatullah B. Baharudeen Tetuan Rahamat & Mashuri Peguambela & Peguamcara

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Court: Court of Appeal of Malaysia
Decision date: 22 Sept 2016
Case number: K-05(LB)-12-01/2016
Coram: YAA TUN TENGKU MAIMUN BINTI TUAN MAT; YA DATO' AHMADI BIN HAJI ASNAWI; YA DATUK KAMARDIN BIN HASHIM
Practice area: Dangerous Drugs — Appeal against acquittal and discharge order by the Public Prosecutor — Trafficking in dangerous drugs — Cannabis weighing 8676.9 grams — Respondent was arrested while delivering drugs to agent provocateur — Whether overwhelming evidence established against the respondent — Whether there is drugs delivery due to negotiation and agreement with the agent provocateur — Whether trial judge properly evaluated defence — Whether existence of Along and defense of the frame up to entrap the respondent raised reasonable doubts — Dangerous Drugs Act 1952 [Act 234], s 2, s 39B(1)(a), s 39B(2), s 40A
Version: 1015_mohd. razali zakariya.pdf 2
Published: 26 Dec 2017
Source ID: 669f670d-598f-4249-a94a-9d6c765b14e2

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Dangerous Drugs — Appeal against acquittal and discharge order by the Public Prosecutor — Trafficking in dangerous drugs — Cannabis weighing 8676.9 grams — Respondent was arrested while delivering drugs to agent provocateur — Whether overwhelming evidence established against the respondent — Whether there is drugs delivery due to negotiation and agreement with the agent provocateur — Whether trial judge properly evaluated defence — Whether existence of Along and defense of the frame up to entrap the respondent raised reasonable doubts — Dangerous Drugs Act 1952 [Act 234], s 2, s 39B(1)(a), s 39B(2), s 40A

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Pendakwa Raya - appellant - ejudgment_parties
Mohd. Razali bin Zakariya - respondent - ejudgment_parties

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Pendakwa Raya v Mohd. Razali bin Zakariya (K-05(LB)-12-01/2016)

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Pendakwa Raya v Mohd. Razali bin Zakariya (K-05(LB)-12-01/2016)

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