Pendakwa Raya v Yang Xinghua (B-05(LB)-94-02/2018)

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1 IN THE COURT OF APPEAL MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. B-05(LB)-94-02/2018 BETWEEN PUBLIC PROSECUTOR … APPELLANT AND YANG XINGHUA … RESPONDENT (PASSPORT NO. E30174891) [In The Matter Of The High Court Of Malaya At Shah Alam Criminal Trial No. 45A-63-06/2015 Between Public Prosecutor And Yang Xinghua (Passport No. E30174891)] CORAM: YAACOB BIN HJ MD SAM, JCA RHODZARIAH BINTI BUJANG, JCA HADHARIAH BINTI SYED ISMAIL, JCA

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(1) In this brief judgment of mine I would not repeat the facts and the issues in this appeal as the same have been laid out in the 2 majority judgment of my learned sister Judge, Dato’ Hadhariah Binti Syed Ismail which I adopt. I would now give my reasons for agreeing with the learned Judicial Commissioner (“JC”) that the respondent be discharged and acquitted without his defence being called.

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(2) Stating the obvious, the subject matter of the charge against the respondent was the 1,493.3 grams of Methamphetamine and it is the duty of the prosecution to prove beyond reasonable doubt that the appellant was trafficking in the said drug of the weight as stated above. After due consideration of the evidence tendered at the trial in respect of the said drug, I am in total agreement with the learned JC that this one vital element of the charge, which was the weight of the drug, had not been proven. As can be seen from the undisputed evidence of PW4 and PW5 and narrated at page 3 of my learned sister’s majority judgment, there was an unexplained difference of 43.44 grams in the gross weight of the drug weighed respectively by each one of them, even though both were using a calibrated scale when doing so. The learned JC had in my view rightly followed the Federal Court’s decision in Yusri Palami v Public Prosecutor [2010] 6 CLJ 878 which held that when there exist a discrepancy in the weight of the drug (cannabis in the said case) as found by the chemist and by the Investigation Officer, it created a doubt as to the 3 identity of the drug and the prosecution could not be said to have proven the offence of trafficking beyond reasonable doubt against the appellant. Granted that in the cited case, the chemist found the weight of the drug to be more by 10.21 grams than that weighed by the Investigating Officer, whereas here it was less, that to me is not a factor which distinguishes the application of its ratio to this appeal because whether the weight was more or less, the identity of the drug is still called into question.

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(3) Although in the Federal Court’s decision of Hasbala Mohd Sarong v Public Prosecutor [2013] 6 CLJ 945 the difference in the gross weight of the drugs as found by the chemist and the Investigating Officer did not move the court to acquit the appellant, that was because the court found a probable explanation which justifies the said difference of 81.55 grams of the drug cannabis, such as climate condition and humidity. None could be explained for the synthetic drug in this appeal before us. Similarly, the Federal Court’s decision in Lew Wai Loon v Public Prosecutor [2014] 2 CLJ 649 on the same issue is distinguishable because the earlier weighing of the drug by the Narcotic Department Head of KLIA and forensic officer was by using an uncalibrated scale whereas that used by the chemist was calibrated. Again, there was justification for the 4 difference in the weight of the drug, whereas there was none in this case before us.

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(4) Furthermore, there is an added reason why the difference in weight is detrimental to the prosecution’s case in this appeal and that is the existence of a total of seven puncture holes on the drug exhibits and which PW5 noted. As stated by PW5 during cross-examination, there were four puncture hole marks on the package marked Exh. P61, one each of Exh. P62, Exh. P63 and Exh. P64. However, PW4 in re-examination said he only punctured one hole on one of the package of drug seized as a preliminary step to determine the content of the package. Although PW8 did say in paragraph 9 of his witness statement that the other six holes (not the one made by PW4) were the result of using screws in an attempt to hide the four drug packages in the luggage, however PW4 being the person who made the initial discovery after unscrewing the hard surface at the base of the luggage did not testify as to the existence of the other holes being caused by the screws.

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(5) In the light of these evidence, even though there may be no break in the chain of the evidence pertaining to the drug exhibits but as held by this Court in Public Prosecutor v Khoo Chong Ban 5 [2015] 2 CLJ 36, the integrity of the exhibits would still be compromised if there was tampering of the exhibits. Given the unexplained difference in weight of the drug and the existence of the holes on four packages of the drug, not just one hole on one package, the possibility of such a tampering could not be ruled out in this appeal before us.

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(6) Thus, for the above reasons I have decided that the appeal should be dismissed and the decision of the learned JC to discharge and acquit the respondent without her defence being called be affirmed. Signed. (RHODZARIAH BINTI BUJANG) Judge Court of Appeal Malaysia Putrajaya Date: 12th March 2020 Parties Appearing: For The Appellant: Dato’ Rajpal Singh (Tiew Poh Nee with him) (Messrs Rajpal, Firah & Vishnu) For The Respondent: Nurshafini Binti Mustafha Deputy Public Prosecutor (Attorney-General’s Chambers) 6 Cases Referred To:

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(1) Yusri Palami v Public Prosecutor [2010] 6 CLJ 878;

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(2) Hasbala Mohd Sarong v Public Prosecutor [2013] 6 CLJ 945;

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(3) Lew Wai Loon v Public Prosecutor [2014] 2 CLJ 649;

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(4) Public Prosecutor v Khoo Chong Ban [2015] 2 CLJ 36.