Pendakwa Raya v Murugan A/L Manoharan … Appellant (S-05-245-08/2014)

(a) The accused was seen taking and carrying the said bags from the conveyor belt to the trolley;

(b) He was also seen placing the said bags on the trolley before pushing it and walked towards the exit door;

(c) The impugned drugs were found hidden in the secret compartment in the said bags;

(d) The drugs were carefully packed in the packages which were sewn together before it was placed in the secret compartment. These drugs were not visible to the naked eyes and it was only after custom officer, Ombra @ Omrah bin Sailillah, PW12, had carefully checked one of the bags (P24) that the drugs were discovered.

(e) The accused was from India and entered Sabah through Immigration check point at the airport via Kuala Lumpur. [6] As to trafficking, since it involves Ketamine, the learned trial Judge had, by relying on section 2 of the DDA, 1952, further found that the very act of carrying the bags containing the large amount of drugs i.e Ketamine weighing 8,137.5 gram, in which the amount are too large for personal consumption, and the manner it was hidden show that the Accused was trafficking in the said drugs. The accused was thus called to enter upon his defence on both the charges. 6 The Defence [7] The appellant gave evidence on oath. The learned trial judge had aptly summarized it as follows: “He testified that he came to know one Pretam Singh in August 2012. He first met Pretam Singh in Butterworth. He then bought some furniture on credit from Pretam Singh. He claim that both his mother and wife had seen Pretam Singh delivering the furniture to his house. After paying two installment the accused could not afford to pay Pretam Singh and he ended obtaining a loan of RM1,500.00 (sic) Pretam Singh payable on monthly basis with an interest of 20% per month. He then worked with Pretam Singh. One day, Pretam Singh told the accused that he wanted to send the accused to India to collect some jewellary and ladies accessories and to bring them to Tawau. The accused further testified that a person by the name of Nathan gave him the flight ticket to India and 10,000 India rupee. He left for India sometimes in March 2013 and was met by Pretam Singh at the airport. He spent one week in India and during that time he stayed in a hotel. Pretam Singh then gave him two bags which were locked and wrapped in a plastic wrapper. The keys were kept by Pretam Singh. He was given a receipt (P34) by Pretam Singh and was informed that the contents of the two keys are as per the receipt. He was instructed to call someone upon his arrival in Tawau. The accused claimed that he did not know that there were drugs in the bag”. Finding at the end of the defence case [8] The learned trial judge found that the appellant’s defence was a mere denial and, as a whole, had also failed to raise a reasonable doubt on the prosecution’s case. The prosecution thus had successfully proven its case against the accused beyond reasonable doubt. In the result the Appellant was found guilty and sentenced to death by hanging. 7 The Instant Appeal [9] At the hearing of the appeal, learned counsel for the appellant addressed the court on four main issues namely:

(a) The learned trial judge had erred in law and facts when he failed to realize that the appellant’s evidence did cast reasonable doubts;

(b) The learned trial judge had failed to consider at all the relevancy of the report from Cyber Security Malaysia which can confirm the details of telephone numbers of the third parties;

(c) The trial judge had erred when he found that the character of one Pretam Singh was fictitious, or a creation of the appellant, and commented adversely about the failure to call Pretam Singh and/or mother or wife of the appellant being fatal to defence case; and

(d) There are unexplained great discrepancies between the drug exhibits, the total drugs recovered and tendered in court. [10] On issue (a), learned counsel argued that the appellant had already raised his defence at the first available opportunity during the prosecution’s case when the Investigating Officer, Fardly Harris Salleh (PW15) was giving his evidence. In addition, the evidence given by the appellant was consistent with the questions posed by defence counsel during the cross examination of the PW15. The appellant in his evidence stated that he had been deceived by Pretam Singh from the beginning (offered and bought electrical items and furniture) to the end (he was stuck in the situation that he had to pay back installment with 8 interest of 20% per month). At the end, he agreed to repay the money he borrowed by working with Pretam Singh. He denied that he had any knowledge about the drugs which had been sealed in the secret compartment of the bags as he did not have the key, the bags were locked, and the bags were already wrapped when it was given by Pretam to him to carry it from India to Tawau. It was stressed upon us that the learned trial judge had misdirected himself when he had failed to compare or give weight to the evidence of the Appellant and totally rejecting the version as being an afterthought and not casting any doubt. [11] The prosecution on the other hand argued that the appellant had possession and knowledge of the drugs. Mohd Khairy bin Amat (PW6), testified that the appellant was only carrying a sling bag (P27) and a teddy bear (P28). The appellant went to Conveyor A and took 2 baggage (P25 and P26) from the conveyor belt and placed the two baggage on a trolley and proceeded to carry them to the exit door before he was stopped by PW6.The appellant’s baggage were scanned by Suhaina binti Hussin (PW10), and upon scanning, PW10 found incriminating image. PW10 informed Norasmah binti Gani (PW7), and later on she asked the appellant to open the P25. After the wrapping on P25 was cut open, and upon seeing that P25 was locked by a padlock, PW7 had asked the accused to open the padlock. When asked about the key, the accused said that P25 along with P26 were his uncle’s and his uncle had asked him to deliver the baggage on his behalf. In addition, the baggage tags (P25A) and (P26A) clearly show that the baggage were registered under the appellant’s name. Therefore, there 9 was no issue of false identity of P25 and P26 belonging to the appellant. Thus, learned DPP submitted that the appellant had custody and control over the said drugs and that the learned trial judge was right in making the affirmative finding of possession with knowledge of the impugned drugs. [12] In our opinion learned counsel’s argument on this issue has no merit. The learned judge had rightly made a clear affirmative finding of possession and knowledge of the impugned drugs based on the evidence by the prosecution witnesses that he had accepted. We have gone through the entire evidence on record and we are in complete agreement with the learned trial judge on the above affirmative finding of possession. It was not disputed that the Appellant was carrying the said bags all the way from India to Tawau Sabah via Kuala Lumpur. It was not disputed and if disputed, not successfully challenged, that the bags contained a substantial amount of the impugned drugs. As to knowledge of the drugs, we find that it is impossible that the appellant did not know about the drugs. It must be noted that P25 and P26 were wrapped in plastics and both were locked by padlock, and, in addition, were placed in secret compartments in each bag. The appellant also gave different answers about the content of the bags when asked by two different officers. When he was asked by PW7 he said that he was delivering the bags on behalf of his uncle, while before PW10 he said that the goods inside were meant to be sold in Tawau. From the different versions given, the most reasonable inference is that the appellant had knowledge of the drugs in the said bags. In the 10 circumstances, we find that the learned trial judge had rightly arrived at the following ultimate facts (at pages 14, 15, 16 and 17, AR): “At this juncture it must be stressed that the said drugs were found in the two big bags P25 and P26 and in another small blue bag P24 found in P25. Both P25 and P26 were locked with a padlock and wrapped with transparent plastic wrapper (P25A and P26A). The drugs were kept in 4 packets made of cloth and sewn together and then place/hid in a secret compartment located in the inner front and back portion of the bags (P24, P25 and P26). Besides that the net weight of Ketamine and Pseudoephedrine of 8,137.5 gram and 2,962.3 gram respectively which is two large of a quantity also fortify my view that he (sic) Accused do have knowledge of the drugs in the said bags. It is perhaps pertinent to note that all the bags were locked with small padlocks but the keys were not with the Accused. In other words the Accused was carrying the locked bags without keeping he keys with him and this could lead to an inference that the Accused do not know the content of the bags. However as can be seen from the evidence of PW7 and PW14 that said bags could still be opened even without the keys by poking the zipper with the scissors. Even though it was PW7 who instructed the Accused to open the bag using the scissors the fact remains that the bag could still be opened without using the keys. As such the non production of the keys is not fatal to the issue of knowledge. The second point to be noted is the purported owner of the said bags. The Accused initially told PW7 that he was carrying the said bags for his uncle whereas when questioned by PW14 the Accused admitted that the bags belong to him. In my opinion the issue of the owner of the said bags is not relevant because the prosecution is not required to prove ownership of the said bags. The primary concern of the court is on the issue of possession of the said drug and it is irrelevant for this court to determine the ownership of the said bags at this stage. The other point to be considered is the fact that the Accused had produced a receipt from Aman Traders (P34) as proof of purchase of the ladies accessories found in the bags. It is proven that among the items seized by the Custom Officers from the bags were ladies accessories. It is also proven that the Accused did produce the said receipt to the Custom Officers when they proceeded to access the tax payable by the 11 Accused on the imported goods. However it must also be noted that the said drugs were kept hidden in a secret compartment in the inner front and back portion of the bags. Also it was PW12’s evidence that when the contents of small blue bag (P24) was taken out, the bag (P24) was still heavy which led to his suspicion that there are something hidden in it. As it turn out to be further checks done by PW14 shows that there were a total of 16 packets made of cloth sewn together, each packet contained drug. Hence, it is my considered opinion that the mere fact that the Accused could adduced the receipt of the purchase of the ladies accessories it not a ground to negate the element of knowledge on the part of the Accused of the presence of the drugs in the bags. To the contrary, the fact that the said drugs were hidden in the secret compartment of the said bag and securely stuffed inside the packets shows that the Accused know that he was also carrying drugs with him. I must also not loose sight of the fact that the 2 bags (P25 and P26) were securely wrapped with plastic wrapper. Again it must be noted here that the drugs were also found hidden in the inner front and back portion of the two bags (P25 and P26). The very act of wrapping the said bags could be inferred as the Accused’s intention of ensuring that the said drugs would not easily be detected during his journey.” [13] Flowing from the above, we also find that the learned trial judge had considered the defence in the light of the prosecution evidence and had rightly made the following finding (pg 35-37, AR): “Hence it is my considered opinion that so called Pretam Singh is merely the creation of the accused in his attempt to cast doubt on the prosecution case. This so called creation is even more obvious when the accused gave different answers as to the owner of the bags when question by the custom officer. He told PW7 that the bags when question by the Custom Officer. He told PW7 that the bags belong to his uncle but when asked by PW14 he admitted that the bags were his. This inconsistencies only shows that the accused was trying to find ways to distance himself from the offence but this does not cast any doubt in the prosecution’s case. 12 The defense put forward by the Accused is one of the Denial. He denied having knowledge of the presence of the drugs in the said bags. In my opinion, his denial has not cast any doubt in the prosecution’s case.” [14] Issues (b) and (c) are inter-related. We will elaborate it together. Learned counsel argued that the prosecution team did seize (3) three telephones (exhibits P52, A-C), and that the appellant did mention to the prosecution witnesses that the phone numbers of the appellant’s boss was recorded in one of the telephones. It was pointed out that this fact was agreed by PW15 in his cross examination. Learned counsel referred us to the case of Emeka Promise v PP [2015] 3 CLJ 916 where the Court of Appeal held that the version given under oath by the appellant was consistent with his evidence and the events that happened during the time the appellant was arrested, and learned counsel contended that the defence had raised reasonable doubts on the prosecution’s case and it was the duty of the prosecution to investigate the defence version when the cyber security report stated “analisa tidak menunjukkan input terguna”. The appellant argued that he had already complied with the “Alcontara Notice”. [15] Besides, learned counsel also argued that the trial judge erred when he said the character of one Pretam Singh was fictitious or a creation of the appellant and commented adversely about the failure to call Pretam Singh and/or mother or wife of the appellant was fatal to the defence case. 13 [16] On behalf of prosecution, learned DPP in her submission argued that PW15 had done all that was required to investigate on the existence of one Pretam Singh based on the report from the cyber security, P 357 (in the CD report). PW15 had also explained it in his evidence that he had taken steps in his investigation to search for the appellant’s boss. Thus, it was submitted that this issue had no merit at all and should be rejected. [17] We agree with the learned DPP submission and in considering these issues, it is germane to refer to pages 250 and 251, AR, where PW15, upon cross examination, says as follows: “Q14: I put it to you that ig (sic) the hard copy of the CD record was tendered, it would not be favourable to the prosecution? A; Saya tidak bersetuju sama sekali kerana kandungan hard copy dan juga cakera padat tersebut adalah sama. ……………. I put it to you that you did not personally investigate to see whether the accused’s boss Pretam Singh was in existence or not, but you only rely on the CD report? Saya tidak setuju kerana petunjuk yang ada pada minggu kritikal pertama di mana tertuduh ditahan, pihak kami Cuma mempunyai nombor telefon sahaja yang didakwa oleh tertuduh sebagai bos beliau tetapi seperti apa yang saya nyatakan tadi maklumkan lanjut menegenai (sic) individu terbabit untuk rujukan kepada pihak JPN ataupun pihak Imigresen dan kedutaan negara India tidak ada sama sekali. Nombor telefon “bos” yang didakwa oleh OKT hanya bertahan dan boleh dihubungi dalam masa beberapa hari sahaja.” 14 We do not find any flaw in PW15’s investigation on these issues. He has done what is reasonable in the circumstances and there is clearly no issue of suppression by the prosecution. Even if there is such a short fall in PW15’s investigation as alleged by learned counsel, we are of the opinion that it is not fatal so as to create a reasonable doubt to the prosecution case. On the case of Emeka Promise v PP, supra, relied by learned counsel to back his above proposition, this Court had held that it was important for the prosecution to lead evidence on the hand phones as they could confirm or negate the appellant's version on the existence of one Oba and Moruko and on the defence that the appellant therein had no knowledge of the dangerous drugs as he was merely to deliver the same to Moruko. Upon such failure, this Court had acquitted and discharged the appellant in Emeka Promise (supra). On appeal by the prosecution, the Federal Court vide Rayuan Jenayah 05-63- 03/2015(B), reversed the judgment of this Court. Although we did not have the benefit of a written judgment of the Federal Court, we were of the view that Emeka Promise (supra) could no longer be relied upon. So too in the case of Rahmani Ali Mohamaad v PP (MPRJ-05-195/13) where the Federal Court held that such a failure was not fatal to the prosecution case. A fortiori, the Appellant was charged for trafficking and it is not an issue that whether he was not the owner of the bags or the impugned drugs in it. Hence, whether the alleged Pretam Singh existed and that he was the owner of the bags, or the true trafficker is not relevant. What had to be proved and had been conclusively found by the trial judge was that the Appellant was found in mens rea possession of the impugned drugs. In this regard, the learned counsel’s argument has no merit. 15 [18] On issue (d), learned counsel argued that the prosecution had failed to provide any explanation as to the doubt pertaining to the discrepancies in the weight of the drugs exhibits. According to the first charge the drugs exhibit was 14,106 grams of ketamine, while in the first amended charge the drugs exhibit was 8137.5 grams of ketamine, and the second amended charge the drug exhibit contained 2962.3 grams of Pseudophedrine. There were serious discrepancies between the first charge (D1) and first amended charge i.e a difference of 315 grams, and no explanation was proffered by the prosecution on such difference. Learned counsel suggested that there was actually an earlier chemist report issued before the chemist report dated 16.8.2013 (P8). To add further, the prosecution also did not adduce any evidence to show who was carrying the drug exhibit during the journey from Tawau Airport to the Customs office at Tawau. This break in the chain of evidence was relevant when there were differences in the weight of the drugs exhibit viz: between the one given by the customs officer and that of the chemist as per his report (P8). [19] On the other hand, the learned DPP submitted that there was no issue pertaining to the chemist report as the evidence by PW2 had explained that he did not produce any chemist report other than exhibit P8. Apart from the explanation proffered by PW2, PW15 also had explained about D1 where he stated in his testimony that whenever there was such a case like the present case, he will refer any matter for further instruction or action from the Office of Customs Legal Department in Putrajaya and the Office of the State Legal Advisor of Sabah. Therefore the decision to charge was done by either one of 16 these offices in the present case, and D1 was filed against the accused before the issuing of Chemist report P8. PW14 in his testimony further said that the gross weight of the drug exhibits seized was 14,106 grams. Referring to pages 241-243, AR, PW14, on this issue, said as follows: I put it to you that there was also at first chemist report that dated before 4.4.2013 which was not served on the accused Tidak setuju sama sekali. I put it to you that in the first chemist report the result of the analysis was 14.106kg of ketamine. Tidak setuju sama sekali. I put it to you that the weight of the Ketamine mentioned in your first charge (D1) was in accordance with the first chemist report. Tidak setuju sama sekali. Could you charge without chemist report? Apabila berlaku sesuatu kes, kami sebagai Pegawai Penyiasat akan sentiasa rujuk sesuatu perkara untuk mendapatkan sebarang arahan ataupun tindakan lanjut daripada pihak pejabat pengarah perundangan Jabatan Kastam Diraja Malaysia, Putrajaya dan juga pejabat peguam Kanan Persekutuan Negeri Sabah. Ole (sic) yang demikian, keputusan sama ada sesuatu kes itu dipertuduhkan ataupun tidak adalah keputusan yang dibuat daripada kedua-dua pejabat ini. Dan dalam kes ini, pertuduhan tanpa adanya laporan analisa kimia telah dipersetujui oleh kedua-dua pejabat ini.” 17 [20] We had duly considered both parties’ submissions and we found that the issue raised by learned counsel as to the identity of the drugs is devoid of any merit. We noted that learned counsel primary basis in raising this issue revolves entirely on the alleged differences in the weight of the impugned drugs in the first charge and in the first and second amended charges. First and foremost it startled us when learned counsel argued that there was such a possibility of there being an earlier chemist report before the chemist report P8 was issued. Learned counsel vehemently stressed that there were great differences as to the weight of the impugned drugs stated in the first charge with the weight stated in the first and second amended charges. To us, no further elaboration needed on this issue except to say that the first charge was preferred against the accused when he was first (initially) charged in court (in the magistrate court) and the charges were later amended after the chemist report (P8) had been issued by PW2. This is the common practice in cases involving section 39B of the DDA 1952. It startled us even more when learned counsel suggested to PW15 that there was no direction from any higher authorities to prefer such initial charge against the appellant without there being a chemist report. PW15, the investigation officer, explained in such clarity that the charging of the appellant before the issuance of the chemist report was a common procedure, and furthermore, the Appellant was charged upon the direction of the Public Prosecutor. We believe that learned counsel is very much confused here because that first charge (D1) was signed by a Deputy Public Prosecutor, the concerned authority. In addition, PW2 categorically said that he had never issued any earlier report, other than P8, on the impugned drugs. The weight stated in the 18 first charge was, as found and accepted by the trial judge which we undoubtedly agree, weighed by PW14 as being the gross weight of the impugned drugs. In this regard, we do not see any reason to disbelieve PW2. In the above scenario, we fail to see any merit in the proposition raised on the above issue and we agree with the finding of the learned trial judge that such proposition was merely a speculation. To us, this finding is enough to reject this issue in limine. [21] In any event, as to the difference in weight and the handling of the impugned drugs, we see no merit in learned counsel’s argument as well because there is no doubt as to the identity of the drugs recovered from the appellant’s possession with the drugs that were finally tendered in court. They were the same. Upon perusing the records, we find that the discrepancy is indeed minor in nature and easily explainable. It is to be noted that the impugned drugs were initially weighed by PW14 in the office using the office uncalibrated weighing machine. The gross weight was 14,106 grams including the packages, all in. Again, this is a common practice pending the accurate weighing by the chemist. The chemist, PW2, however, has his own procedure in weighing the drugs. In his evidence he had explained and differentiated the three terms used viz: gross weight (berat kasar), net weight (berat bersih) and pure weight of the drugs (berat tulen). PW2 in his evidence, among others, explained the terms as follows: Boleh kamu terankan (sic) bagaimana kamu mendapat jumlah berat bersih bungkusan-bungkusan yang telah kamu timbang? 19 Untuk mendapatkan berat bersih, terlebih dahulu saya mendapatkan berat kasar kandungan bahan bersama-sama dengan bungkusan-bungkusan kain dan daripada perbezaan berat kasar dan berat bungkusan kain kosong yang telah dikeluarkan isi kandungannya maka saya mendapatkan berat bersih, Kaedah ini adalah diguna pakai untuk kesemua barang kes di dalam kotak bertanda L, M dan N.” (page 53, Appeal Record) On net weight of the drugs (berat tulen) and upon being asked by the trial judge during his re-examination (page 73, AR), PW2 further explained as follows: “Court: Tadi kamu kata berat tulen. Apa perbezaan di antara berat tulen, berat kasar dan berat bersih? Berat bersih adalah perbezaan berat, berat kasar dan berat bungkusan kain kosong. Berat kasar adalah jumlah bungkusan kain termasuk kandungannya. Berat tulen diperolehi dnegna (sic) menjalankan ujian kuantitatif menggunakan GCFID. Dalam Laporan Kimia merujuk kepada L(a) berat bersih ialah 2509.6 gram dan berat tulen Ketamin adalah 1952.7 gram.” [22] The above evidence debunks learned counsel’s argument that there could be a break in the chain with regard to the identity of the drugs when there is a great difference of 315 grams (it should be 312.4 grams) not accounted for viz: the difference between 14,106 grams (first charge) and gross weight of 13,791 grams. We find that it should be a net weight of 13,793.6 grams as found by PW2 (not gross weight) as per page 25, AR. These differences can be further tabulated as follows: 20 Drugs marked as Net Weight Pure Weight P9 2,509.6 gms 1952.7 gms Ketamine (A2(i)-A2(iv)) P10 2,464.0 gms 1856.6 gms Ketamine (A3(i) – A3(iv)) P13 2,962.3 gms 2962.3 gms Pseudoepherine (C2(i)-C2(iv)) P14 3,022.5 gms 2098.8 gms Ketamine (C3 (i)-C3(iv)) P17