Pendakwa Raya v Mohd Riedzuan Bin Hamzah (C-05(LB)-78-02/2019)

The respondent was acquitted and discharged by the learned High Court judge at the end of the prosecution’s case for all three charges. This is an appeal by the prosecution. The three charges against the respondent reads as follows : The First Charge Bahawa kamu pada 28 Januari 2017, jam lebih kurang 3.20 pagi, di dalam Ladang Kelapa Sawit Keratong 9, 26700 Muadzam Shah, di dalam Daerah Rompin, di dalam Negeri Pahang Darul Makmur, telah mengedar dadah berbahaya iaitu Heroin seberat 31.80 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1) (a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama. The Second Charge Bahawa kamu pada 28 Januari 2017, jam lebih kurang 3.20 pagi, di dalam Ladang Kelapa Sawit Keratong 9, 26700 Muadzam Shah, di dalam Daerah Rompin, di dalam Negeri Pahang Darul Makmur di dapati dalam kawalan kamu dadah berbahaya iaitu 3 Monoacetylmorphines seberat 14.60 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 12 (2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39A (2) Akta yang sama. The Third Charge Bahawa kamu pada 28 Januari 2017, jam lebih kurang 3.20 pagi, di dalam Ladang Kelapa Sawit Keratong 9, 26700 Muadzam Shah, di dalam Daerah Rompin, di dalam Negeri Pahang Darul Makmur, didapati dalam kawalan kamu dadah berbahaya iaitu Methamphetamine seberat 43.63 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 12 (2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39A (2) Akta yang sama. The Prosecution’s case 1. Acting on information received that drugs possession and distribution activities will be carried out in an oil palm estate of Felda Keratong 9 (the location), on 28.1.2017 SP7 had assembled a group of nine officers, four of which are from the Narcotic Division of IPD Rompin and 4 others from the Felda Muadzam Ancillary police team.

After briefing the team, SP7 and his team then proceeded to the location with a van. The van was parked at the entrance 4 of the oil palm estate. The team had to walk for about 2 hours and arrived at the location at 2.50 am.

According to SP7, upon arriving at the said location, the area was dark and dimly lighted by moonlight. SP7 saw a Proton Perdana bearing registration number JDU 2990 (the said car) parked in that area with a Malay male in the said car. At a distance of about 30 meters from the said car, the raiding team made an observation for approximately 30 minutes before SP7 and his team proceeded to approach and arrested the man in the said car. The man was later identified as the respondent.

A body search was carried out by SP7 and no incriminating item was found on the respondent. Thereafter, SP7 conduct a search in the said car and found : i) An orange plastic bag at the back of the driver’s seat which contains 5 packets of substance suspected to be Heroin; ii) A box written “get closer to love” underneath the driver’s seat which contains 6 packets of substance suspected to be Methamphetamine; and iii) 5 handphones. 5 Findings of the trial judge At the close of the prosecution’s case, the learned trial judge ruled that there is no prima facie case made out against the respondent on the following grounds : a. The prosecution has failed to proof that the respondent had exclusive control and possession of Proton Perdana JDU 2990 as the said car was accessible by other individuals. b. SP7 is not a credible witness and his evidence on the identity of the drugs seized had raised doubt. c. The investigating officer, SP8 is not a credible witness. d. The chemist report purportedly prepared by SP6 is not conclusive as the caliberated machine was not functioning and the drugs analysis was not carried out by SP6 personally. The issues 1. Whether the respondent had the knowledge, custody and control of the drugs found in motorcar Proton Perdana No. JDU 2990?

Whether there was a break in the chain of evidence on the movement of exhibits and the finding of the chemist. The first issue Before us, the learned Deputy Public Prosecutor (DPP) submitted that the drugs found inside the said car was under the custody 6 and control of the respondent to the exclusion of others because the respondent was alone in the car. It is said that this fact is reinforced with the evidence of SP7 that he saw the respondent was at the driver’s seat with the driver’s side door open whilst the rest of the car’s doors were closed. It was further submitted that the respondent’s father, SP2 who is the owner of the said car had testified that he was the last person using the car prior to the respondent and he (SP2) confirmed that there were no drugs inside the car. It was further submitted that the respondent must have knowledge about the drugs because the drugs were placed behind and underneath the driver’s seat and were easily found by SP7. In the aforesaid circumstances, the learned DPP submitted that a reasonable inference can be drawn that it was the respondent who must have put the drugs inside the said car. She further submitted that the learned trial judge had erred when she held that the respondent had no exclusive control of the Proton Perdana car when the prosecution is only required to prove that the respondent had control over the drugs and not exclusive control. In support, PP v Denish Madhavan [2009] 2 CL J 209 was cited. With respect, we disagree with the learned DPP’s submission. The respondent’s father, SP2 has told the court that he normally left his car unlocked at the back of his house, in an open area. SP2 also told the court that 2 weeks before 17.4.2018 (the date SP2 gives evidence at the trial), a person named Azairi bin Mohd Rozi came to SP2’s house and told SP2 that he (Azairi) was together with the respondent inside Proton Perdana No JDU 2990 on the date and time the respondent was arrested. Azairi told SP2 that he (Azairi) was seated at the front passenger seat. He opened the car door and run away the moment he saw the policemen were coming towards the respondent. 7 The police cannot locate Azairi. The learned DPP submitted that SP2’s testimony about Azairi is a hearsay evidence and cannot be admitted by the court. There is no doubt that SP2 is an interested witness and his testimony is not favourable to the prosecution. With regard to SP2’s testimony about the car being unlocked and it was seized at SP2’s house, the learned DPP submitted that the learned trial judge had failed to take into consideration that “SP2 telah dijadikan saksi belot sepertimana di bawah seksyen 154 Akta Keterangan 1950 kerana SP2 memberi keterangan yang berbeza dari rakaman percakapan yang diberikan oleh SP2 kepada polis”. However, we reminded the DPP that at the trial, the DPP had informed the court that he does not wish to impeach the credit of SP2, but will proceed to cross-examine him under section 154 of the Evidence Act 1950 (see page 78 Appeal Record Jilid 2A). However, in the process, the DPP did not tender in court the so-called statement made by SP2 to the police for the trial judge and counsel for the respondent to see and determine whether there was indeed any discrepancy between SP2’s oral testimony and his written statement for the judge to make a ruling before the prosecution could be allowed to cross-examine SP2. Learned counsel for the respondent submitted that the prosecution has failed to adhere to the procedure under section 154 of the Evidence Act 1950. We agree with him. In a textbook titled Evidence, Practice and Procedure (Fourth Edition) by the late Augustine Paul (FCJ), the learned author has laid down the procedure under section 154 at pages 1092-1093 as follows : “Procedure to be followed in allowing a party to cross-examine his own witness. Per Yong Pung How CJ in Yuen Chun Yii v Public Prosecutor [1997] 3 SLR 57, 64 (HC): 8 Section 156 EA (our section 154) itself does not say how such ‘cross-examination’ should take place.In this regard, some useful guidelines have been laid down by Brown J in Re Wee Swee

Hoon,deceased; Lim Ah Moy & Anor v Ong Eng Say [1953] ML J Brown J opined that it was sufficient that the witness had contradicted what he had said in his former statement in relation to a material issue in the case. His Honour went on to say ( at page 124): When a witness has given an answer or answers, which the party calling him knows to be in conflict with some statement or evidence which he has previously made or given, the proper procedure, in my opinion, is for counsel then to ask him (as was done in this case) whether he had made a statement (or gave evidence) at a certain place on a certain date. Having heard his answer (whatever it may be) no further questions should be put at that stage. But counsel should then hand to the judge the statement (or record of the evidence), and apply for leave to cross-examine him under the provisions of [section 156 EA] (our section 154). The judge, having given the other side an opportunity of seeing the document and making his submissions on the application,will then give his ruling. That, in my view, is the proper procedure, in a situation of this kind. The highlighted portion above emphasises the need to strictly observe the safeguards for the adverse party. Indeed, the primary safeguard is that the defence should be allowed to view the statement sought to be referred to. Irrespective of whether the correct procedure was under section 161 EA (our section 159) (refreshing memory) or section 156 EA (our section 154) (cross-examining one’s own witness), the defence was entitled to view the statement.” 9 In the present case, we find the cross-examination of SP2 is not in accordance with the procedure as the prosecution has failed to tender SP2’s statement to the presiding judge and to the defence counsel for viewing. We also find the failure of the prosecution to impeach the credit of SP2 had created a gap on the issue of access to the car. In PP v Poh Chee Huong [2016] 10 CL J 123 where the Court of Appeal in dealing with contradictory statement from prosecution’s own witness had this to say: “There was no impeachment of PW5’s credit at the earliest opportunity. Thus, her version remained on record as the prosecution’s evidence which in the result led to two diametrically opposed versions in the prosecution’s case. In a situation where the prosecution’s evidence admits of two or more inferences, one of which is in the accused’s favour, it is the duty of this court to draw inference that is favourable to the accused (PP v Mohd Radzi Abu Bakar [2006] 1 CL J 457 atp.466). It would be wrong for this court to completely disregard PW5’s evidence purely on the basis that she is an interested witness for it is now obvious that such witness is, in law, a competent witness. Neither could we, on the other hand, make light of the fact that there were contradictions in the prosecution’s case.” The above statement of law is applicable to the present case. Since SP2’s credit was not impeached, his evidence resulted in two contradictory versions. His evidence created a gap in the prosecution’s case on the issue of access to the car. The learned trial judge has accepted SP2’s evidence that the car was accessible by anyone and was not in the exclusive use of the respondent. When the prosecution ‘s evidence admits of two inferences, one of 10 which is in the accused’s favour, the court is duty bound to draw inference favourable to the accused. In this case, the learned trial judge was right in drawing an inference in favour of the respondent ie the car is accessible by anyone and not the exclusive use of the respondent and that the drugs could have been brought and put inside the car by Azairi. SP7 admitted Azairi is not a fictitious person and that Azairi was a drug addict who was imprisoned for drugs related offence. Indeed SP2’s evidence had destroyed the prosecution’s case. In answer to the learned DPP’s submission that the prosecution is not required to prove exclusive possession, we refer to the case of Tan Teck Seng & Anor v PP [2018] 10 CL J 315, wherein Mohd Zawawi Salleh (now FCJ) stated: “[44] Our courts have consistently held that possession must be exclusive. The term ”exclusive possession” is not defined in the DDA

Nevertheless, the courts have elucidated “exclusive possession” as follows: Thus, to sum up, the common usage, plain, natural and ordinary meaning of “exclusive” is “excluding or to exclude all others; not share or divided”. In the context of drug possession, ”exclusive possession” can be construed to mean that the place where the drugs are found must be exclusive to the accused. However, possession of the drugs need not be exclusive. Possession may be joint, that is two or more persons may jointly have possession of the 11 contraband, exercising custody and control over it. In that case, each of these person is considered to be in possession of that contraband.” In the present case, in view of SP2’s evidence, the drugs found in the car cannot be said to be in the exclusive possession of the respondent because the car is accessible by anyone. So, the prosecution has failed to prove that the respondent had exclusive possession of the car and the drugs found in the car in the sense of excluding other persons having access to the car. On the issue of knowledge, it is trite law that drugs found in a car does not fit into the definition of “anything whatsoever containing” and therefore cannot get the aid of section 37 (d) of the DDA to presumed knowledge and possession [Syed Ali Syed Abdul Hamid & Anor v PP (1982) CL J 340] . Therefore, the prosecution must prove knowledge through direct evidence. In this case, to prove knowledge, the prosecution relied on the facts that the respondent was alone inside the car and the drugs were placed very near to the respondent. Similar argument was made in Romi Amora Amir v PP [2011] 1 CL J 870 and the court held : ‘[15] Making a statement that the appellant had possession of P9, just because it was under the driver seat and that he was the sole driver of the taxi, was a bare statement without more. Unless knowledge is proved, an item however close to a person, could just be miles away..” Based on the facts that the drugs were found in a dark area, not visible and the respondent did not attempt to escape from the car, 12 we agree with the learned judge’s findings that the prosecution had failed to prove the respondent had knowledge of the drugs. The second issue The learned trial judge held that the drugs recovered from the respondent and the drugs the respondent was charged with had not been proven on the prima facie level. Her ruling is based on the following evidences : i) SP7 had only shown one packet of drugs (Z6) seized from the car to the respondent throughout the search until it was handed to SP8.The respondent has a right to know exactly what are the incriminating exhibits found against him. ii) SP7 had never stated the markings made on the drugs in the police report (exhibit P49), search list (exhibit P50) and handing over list (exhibit P52). iii) SP6’s (the Chemist) chemist report on the weight and types of drugs were based on analysis carried out by Puan Masniah and Puan Safura. Both Puan Masniah and Puan Safura were not called to give evidence. For this reason, the trial judge ruled that the chemist report (exhibit P40) is not conclusive and is hearsay. 13 iv) SP8 (the investigating officer) had never checked the content of the exhibits seized before handing it to the chemist. On the issue that the drugs analysis was conducted by SP6”S ASSISTANTS, Puan Shafura and Puan Masniah, SP6 has explained that they merely assisted SP6 in the analysis of the drugs. Any decision or finding based on the GCMS and GCFID tests were verified and confirmed by SP6 himself. As such, the non calling of Puan Shafura and Puan Masniah is not fatal to the prosecution’s case and the chemist analysis and its report can be accepted as evidence. SP6’s report (P40) is also not hearsay. Further, the evidence of SP6 is not inherently incredible and the defence has not adduced evidence in rebuttal by another expert and as such SP6’s evidence can be accepted on its face value without the necessity to go into details of what SP6 did in the laboratory step by step. (see Balachandran v PP [2005] 2 MLJ 301, Munusamy v Public” Prosecutor [1987] 1 MLJ 492, Public Prosecutor v Lam san [1991] 3 MLJ 426 and Khoo Hi Ching v Public Prosecutor and another appeal [1994] 1 MLJ 265). In relation to the other issues, having read the trial judge’s grounds of judgment, we find that they were finding of facts arrived at after she had the advantage of seeing the witnesses. It is trite law that the appellate court will not disturb the trial judge’s views on the credibility of witnesses. We see no error committed by the trial judge in her evaluation of the evidence. Her decision is supported by the evidence. 14 Our decision We find that there is no merit in this appeal. We therefore dismiss the appeal. Dated 3rd June 2020. Signed Hadhariah bt Syed Ismail Judge Court of Appeal. For the Appellant : Ms How May Ling, Deputy Public Prosecutor; Trial and Appeal Division, Attorney General Chambers. For the Respondent : Mr Kee Wei Lon (Mr Low Wei Loke with him); Messrs Low.