Pendakwaraya v Lim Soon Wee (WA-45A-35-10/2019)

The Accused is charged for the offence of trafficking in dangerous drug under section 39B () (a) of Dangerous Drugs Act 1952 punishable under section 39B (2) of the same Act. The charge The charge “Bahawa kamu pada 22 Mei 2019, jam lebih kurang 3.35 petang, bertempat di Kawasan tempat letak kereta tingkat 2, Kondominium Shamelin Star, Jalan 4/91 2 Taman Shamelin Perkasa, di dalam daerah Cheras, dalam Wilayah Persekutuan Kuala Lumpur, telah mengedar dadah berbahaya iaitu seberat 1530.6 gram Methamphetamine. Oleh yang demikian kamu telah melakukan kesalahan di bawah Seksyen 39B (1) (a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B (2) Akta yang sama.”

The prosecution, in order to make out its case called five (5) witnesses. They are the chemist, Wan Rahimah binti Wan Ahmad (SP1), police photographer, D/Kpl Mohd Asrul bin Abdullah (SP2), complainant/arresting officer, Insp. Noor Khairul bin Abdul Rahman (SP3), agent provocateur (AP), L/Kpl Danny Sia Siaw Kian and the investigating officer, Insp Norhasriani binti Muhamad Nor. Prosecution case Prosecution case

The case against was initiated by SP4 who acted as an AP. He contacted the accused via a „WeChat‟ application through an ID „wwwxyz1949‟. After the accused accepted SP4, SP4 introduced himself as „Kang‟ and asked the price of 5000 ecstasy pills. Accused 3 responded that the price is RM13.00 if the amount is 5000 pills. They then agreed to meet so that the accused could pass him the sample.

Two (2) days later, on 18. May 2019, they met by the roadside somewhere along Jalan Cerdas, Taman Connaught, Cheras, Kuala Lumpur where the accused handed over the sample to SP4. The said sample consists of two ecstasy pills and a packet of methamphetamine.

SP4 then briefed his superior officer, SP3, who instructed SP4 to proceed with the „project‟ and to act as an AP.

Three (3) days later, on 21 May 2019, SP4 had his second meeting with the accused at a restaurant called Morganfield Restaurant in Sunway Velocity. A discussion was held and the accused agreed to supply one (1) kilo of „ICE‟ (Methamphetamine) at the price of RM40,000.00. SP4 then requested that the transaction be held as soon as possible and suggested the exchange to take place at condominium Shamelin Star.

The following day, 22 May 2019, SP4 informed SP3 of the said arrangement. On the same morning at about 11.00, SP3 briefed his arresting team of the impending operation. He divided his team into two 4 groups, namely the first group which included him, will be stationed at the parking area, second floor of the said condominium. This team will use an unmark police car to observe the whole transaction. While the second team be stationed at the parking lot in front of the said condominium.

At about 2.15 in the afternoon SP3 saw SP4 talking with the accused at the parking area on the second floor. After about 10 minutes SP3 saw both the accused and SP4 left the area. At about 2.50 the same evening, SP3 once again saw both SP4 and the accused at the same parking area, and they then left after a few minutes later.

SP3 was then informed by SP4 via a phone call that the accused will come back to the same area, alone with the drugs.

At about 3.35 pm SP3 saw SP4 alone at the parking area. minutes later, he saw the accused walking towards SP4, whilst carrying a blue colour bag in his right hand. SP3 and his team then arrested the accused at car park lot number 118.

SP3 then confiscated the blue bag and upon inspection discovered two (2) yellowish plastic packets with Chinese characters and red five 5 star. SP3 then made a small slice on both the said packets and discovered they contained substance suspected to be Methamphetamine.

Both these packets were seized by SP3 along with one (1) IPhone 7 and three (3) ATM cards from the accused. The accused along with the seized items were then handed to SP5, the investigating officer.

The two (2) plastic packets containing substance suspected to be drugs were then handed by SP5 to SP1 for analysis. SP1 then confirmed that upon analysis, the substance were indeed Methamphetamine. Onus of proof at the end of prosecution case Onus of proof at the end of prosecution case

The prosecution has to prove a prima facie case against the accused at the end of its case. A prima facie case is said to have been established once the prosecution had adduced credible evidence, subject to the maximum evaluation of the said evidence, proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction. (section 180 Criminal Procedure Code; 6 Balachandran v Public Prosecutor [2005] 2 MLJ 301; Public Prosecutor v Mohd Radzi bin Abu Bakar [2005] 6 MLJ 393; Ahmad Najib bin Aris v Pendakwa Raya [2009] 2 CLJ 800). Evaluation of evidence Evaluation of evidence

Evidence of SP4 as an AP appears to be the crux or basis of the prosecution case. I am fully aware of section 40A Evidence Act and the Federal Court decision in Wan Mohamad Azman Hassan v PP [2010] 4 CLJ which states that the evidence of an AP shall be admissible in evidence. Section 40A (1) provides the presumption of creditworthiness of an AP. This presumption of being a creditworthy witness is of course rebuttable. (PP v Han Kong Juan & Ors [1983] 1 CLJ 245; [1983] CLJ (Rep) 773).

Learned counsel for the accused submitted at length on the issue of the credibility of SP4. SP4‟s credibility was attacked basically on three

issues;

SP4 had failed to preserve the evidence obtained as an AP;

(ii) SP4‟s failure to produce his pocket book or notes, and detailed information with regards to the chronology of events; 7

(iii) There exists material contradiction between oral evidence of SP4, SP3 and SP5 who are the key witnesses in the prosecution case. [17] SP4‟s role as an AP is crucial as he was the one who started this chain of events in this case. According to SP4 he first contacted the accused through WeChat application. Once he was accepted, he then communicated with the accused using WeChat massages, WeChat voice massages and WeChat calls. These communications are vital pieces of evidence in proving to this court how contact was made, what were the negotiations between SP4 and the accused, meetings were set up and price, quantity and type of drugs agreed upon by both parties and any other relevant evidence proving the offence charged against the accused. [18] However, none of these communications were presented in court as according to SP4, he had deleted them. No reason was offered as to why he had taken such action. [19] Neither did SP4 showed any of the WeChat massages or the voice massages to SP5 who is the Investigating Officer in this case. 8 [20] Records of these WeChat communication are critical since according to SP4 they started communicating about „Ecstasy‟ and its price if bought in large quantity. This according to SP4‟s oral evidence started after he introduced himself as „Kang‟ and started asking about this drug. (refer to para 4 and 5 of SP4‟s witness statement, PSP4). “Para 4: Pada 16.5.2019 jam lebih kurang 9.23 malam semasa saya di pejabat BJSN IPD Cheras, KL suspek telah menambah saya sebagai kenalan dalam aplikasi WeChat. Saspek telah berbual dengan saya dengan menggunakan Bahasa Mandarin tentang harga-harga dadah jenis ecstasy yang dapat diberikan jika diambil dalam kuantiti yang besar. Perbualan tersebut bermula saya memperkenalkan diri sebagai „Kang‟ dan menggunakan Bahasa Mandarin. Persoalan saya sama ada boleh dapat harga dadah ecstasy yang dibekalkan (supply). Para 5: Saspek bertanya berapa banyak yang saya ingin beli dan saya menjawab berapa harga kalau saya beli 5000 biji?. Saya bertanyakan sama ada saspek mempunyai sample untuk dicuba. Saspek kata ada dua (2) jenis ecstacy, dia tanya saya ada di mana dan boleh hantar kepada saya esok. Harga dalam RM13.00 jika ambil 5000 biji. Saya bersetuju.” 9 This is the conversation that started the whole events leading to the arrest of the accused. [21] It is pertinent to note that this purported conversation took place immediately after SP4 was added to the WeChat bearing an ID „wwwxyz1949‟. [22] It was learned counsel‟s contention that it was unreasonable for any drug trafficker to have immediately reveal his identity to a potential drug purchaser whom he had never knew or met prior to the said WeChat conversation. [23] Furthermore, as SP4 is an experience officer, this is not his first assignment as an AP, having acted as an AP for seven (7) times, he knew the importance of preserving such records. Nevertheless, in this case he chose to delete all records of communication between him and the accused, without explaining why he took such an action. [24] Learned counsel also submitted that it is odd and illogical that SP4‟s and the accused‟s handphones, which were confiscated and handed over to SP5 were not sent to the forensic expert to extract the 10 said information and verify the owner of WeChat wwwxyz1949. The only explanation offered by SP5 was that there was no instruction to take that course of action from the Deputy Public Prosecutor. [25] These failures according to Learned counsel leaves a gap in the prosecution case, as SP4 during cross examination admitted that he would not know who was the actual user of the said WeChat ID with whom he was communicating. “Q: Saya mengatakan wechat „wwwxyz1949‟ adalah kepunyaan sebuah syarikat bernama „Bu Xiang Zhe‟. Adakah kamu tahu atau tidak tahu? Tidak tahu. Jadi sekarang saya mengatakan bila kamu add, kamu tidak tahu siapa yang hantar mesej balik. Kamu hantar ke sebuah ID, lepas itu kamu terima mesej dari ID itu. Setuju kamu tidak tahu siapa yang reply? Setuju. Tengok perenggan 4 sekarang. Saspek telah menambah saya sebagai kenalan. Saya mengatakan kamu tidak tahu siapa. Kamu hanya tahu bila WeChat wwwxy1949 yang menambah kamu sebagai kenalan. You sent an ID, that person in charge of the ID accepted. You don‟t know who accepted. It is an ID, setuju? 11 Setuju. Jadi kamu kata saspek berbual dengan kamu menggunakan Bahasa Mandarin berkaitan harga dan jenis dadah. Jadi saya juga mengatakan kamu berbual dengan ID sahaja, kamu tak tahu siapa yang sebenarnya berbual dengan kamu. Setuju.” [26] SP4 also failed to produced his notes or diary which he claimed he had. According to SP4 he noted down every conversation he had with the accused. Yet these notes were never produced in court despite SP4‟s evidence being challenged in court. [27] Learned counsel contended that this failure had resulted in a material gap in the prosecution case which attract an adverse inference under section 114(g) Evidence Act. He quoted the case of Public Prosecutor v Tan Kim Lye & Anor [2012] MLJU 378 (HC) which stated that: “[46] The court also drew an adverse inference against the prosecution under section 114(g) of the Evidence Act 1952 for not producing the noted of the conversation between PW6 and the informer concerning the intended purchase of the heroin by PW6 12 from Ah Loi. If they were produced they would have shown that the buy operation was between the informer and Ah Loi and not between PW7 and the 2 accused persons….”. [28] In his oral evidence SP4 testified that he did not bring any money when he met the accused on 22 May 2019 for the purported sale and purchase transaction. And that the accused did not ask him to show any money. The whole transaction is said to be done based „trust‟. [29] However, during cross examination of both SP3 and SP5, both confirmed that SP4 did bring money to the meeting but they were not sure of the amount. No explanation was offered for this contradiction. This, is a material issue since this is the first time a transaction is held between SP4 and the accused who had known each other only a few days prior to this transaction. [30] In fact, SP4 throughout his evidence never stated the amount of methamphetamine that he agreed to buy nor the agreed price. It is incredulous that the purported sale was arranged in such a manner. [31] Next is the location of the meeting. Evidence of SP3 that he was the person who arranged for the meeting to be held at the said car park 13 is contradicted by SP4 who stated in his witness statement that he (SP4) was the one who asked the accused to met him at the said car park. To make matters worse, SP4 then contradicted himself when during re-examination he stated that it was SP3 who arranged the meeting place. [32] SP4, during cross examination, admitted that he used to stay at the said condominium for one month. During his stay he was given four access cards, two access cards for the lobby and another two for the car park. These cards, according to him were never returned to his landlord once his tenancy ended. These were the cards he used on the date of arrest. However, this was contradicted by SP5 who testify that SP4 told her, he gained entrance through permission granted by the security. Again, this contradiction was never explained by the prosecution. SP5 also testified that she was told by SP4 that he was not staying there, therefore did not have any access cards. This again is another contradiction between these two witnesses, which was never explained by the prosecution. [33] SP4 was also very evasive when asked about his pervious stay at the condominium. He claimed not to remember which unit he used to occupied, nor the landlord‟s name. He can not even remember which floor his unit was. All these questions, asked during cross examination 14 are simple and direct questions, yet SP4 would pause and asked for these questions to be repeated. [34] SP3 in his evidence stated that he saw the accused at the car park on three occasions. On the first two occasions the accused was not carrying any bag. It was on the third occasion that he saw the accused carrying one bag, that is, prior to the arrest and only one bag was recovered during the arrest (P23, his arrest report and P21, search list prepared by him). This is contrary to exhibit P19 (1- 4, 9 – 22), photograph of the accused carrying two bags. SP4 in his witness statement confirmed SP3‟s evidence but under cross examination, after being shown exhibit P19 (23 – 30), photograph of the accused carrying not one but two bags just before his arrest, changed his evidence. Again, no explanation was offered for this contradiction. [35] SP3 claimed in his evidence that he and his team conducted an observation from inside his car which was situated about 15 meters away, directly in front of lot 118 at level 2 of the car park where the accused was arrested. This is proven to be an impossible feat as a site visit by the Court on 28.8.2020 revealed that the space directly in front of the said parking lot is in fact a ramp going to another level. (exhibit P18). 15 [36] During SP3 and SP4‟s cross examination, learned councel continuously suggested and contended that the accused was not arrested at the car park at level 2 of the said condominium, instead he was arrested at the outdoor car park in front of the condominium. These were strongly denied by both witnesses. [37] Learned counsel also contended that there exist another person by the name of Khoo Chong Bun or „Ah Lun‟ who was arrested together with the accused, after he opened his car boot, from where the drugs were actually seized instead of being carried by the accused. Again, both SP3 and SP4 denied these contentions. [38] It was also contended that the WeChat ID belongs to a company named Bu Xiang Zie and has multiple user as it was a group ID was met with “tidak tahu” answer from SP4. Finding Finding [39] Bering in mind that SP4 is an AP, and the applicability of section 40A Evidence Act, this court still has to subject his oral evidence to the 16 maximum evaluation just as that of the other prosecution witnesses, namely SP3 and SP5. [40] Looking at the evidence of these three witnesses, I find that there exist too many major contradictions which are left unexplained by the prosecution. These contradictions as stated above, in my mind, left material gaps in the prosecution case and also affect the credibility of these witnesses, especially SP3 and SP4. [41] SP4 evidence about his initial contact and communications with the accused could have been easily be supported by the records which he admitted to have deleted with no explanation offered. These records are material as the credibility of his evidence was seriously challenged during cross examination. For SP4 to delete such important evidence is baffling given the fact that he was an experience office having acted as an AP in not less than seven other cases. It raises a serious question whether his oral evidence is a true version of what really transpired. [42] His evidence could still be supported had the prosecution tendered his written records. But in this instance the prosecution chose not to do so. That leaves this court with nothing else except his oral evidence. In 17 order for this court to accept his evidence, it is important for this court to assess his credibility as a witness. [43] Beside this part of his evidence, his evidence regarding the events at the condominium leading to the accused‟s arrest and events subsequent to that arrest revealed too many material and irreconcilable contradictions with that of SP3 and SP5 so as to strike at the very root of the charge. (Pie Bin Chin v PP [1985] 1 MLJ 234, Andy Bin Bagindah v PP [2000] 3 MLJ 644). [44] In fact, I find the contradictory evidence of these three main witnesses for the prosecution had seriously affected the veracity of their evidence. [45] SP4‟s failure to preserve any records of his communications with the accused, his failure to provide the exact location where the accused handed him the drugs sample, his evidence of setting a meeting to purchase the drugs in the absence of any evidence as to the amount of drugs agreed to be purchased and the agreed purchase price is too incredulous to be accepted. Just as SP4‟s claim that he did not bring any money to the meeting as this transaction is conducted based on trust is just too incredible to be accepted. 18 [46] On the issue of money, SP4‟s evidence is contradicted by SP3 and SP5 who confirm that SP4 did brought money to the meeting but they are not sure of the amount. Again, this is something very odd as SP3 who is in charge of this operation had instructed SP4 to continue as an AP when SP4 first informed him of his contact with the accused. Surely as the person in charge, he should be in a position to know this. [47] SP4 also contradicted SP3‟s evidence on who actually set the meeting place. SP3 claimed it was him who set the meeting place. SP4 initially claimed in his evidence that he was the one who set the meeting place, at level 2 of the condominium parking lot but later during reexamination change his testimony that it was SP3 who set the meeting place. However, no evidence was led when this was conveyed to SP4 by SP3. [48] SP4 in his witness statement confirmed SP3‟s evidence that the accused was carrying one bag before he was arrested but under cross examination, after being shown exhibit P19 (23 – 30), photograph of the accused carrying not one but two bags just before his arrest, changed his evidence. Again, no explanation was offered for this contradiction. 19 [49] Based on all of the above I find that SP4 is not a credible witness. [50] As for SP3, apart from the contradictory evidence with SP4, he also contradicted himself on critical and material issue. SP3 in his evidence stated that he saw the accused at the car park on three occasions. On the first two occasions the accused was not carrying any bag. It was on the third occasion that he saw the accused carrying one bag, that is, prior to the arrest and only one bag was recovered during the arrest (P23, his arrest report and P21, search list prepared by him). This is contrary to exhibit P19 (1- 4, 9 – 22), photograph of the accused carrying two bags. No explanation was offered for this material contradiction. [51] As P19 clearly showed the accused was carrying two bags just before his arrest, the question that arises, where is the other bag? Why was only one beg stated in P21 and P23. And what happen to the other bag. [52] In Yusoff bin Kassim v Public Prosecutor [1992] 1 LNS 31 where two Custom Officers contradicted each other on whether the accused was carrying one or two bags, the Supreme Court had this to say: 20 “There was thus an acute conflict of evidence upon a question of central importance in the case for the prosecution itself, giving rise to more than a reasonable doubt as to whether the appellant carried one or two bags, the benefit of which he is entitled to.” [53] Next is SP3‟s claim that he and his team conducted an observation from inside his car which was situated about 15 meters away, directly in front of lot 118 at level 2 of the car park where the accused was arrested. This is proven to be an impossible feat as a site visit by the Court on 28.8.2020 revealed that the space directly in front of the said parking lot is in fact a ramp going to another level. (exhibit P18). This begs a question, where were SP3 and his team actually situated whilst conducting the said observation. [54] Next is the evidence of SP5, the investigating officer. She admitted that both SP4‟s and the accused‟s handphones, which were confiscated and handed over to her were not sent to the forensic expert to extract the record of the communications between SP4 and the accused and verify the owner of WeChat wwwxyz1949. The only explanation offered by SP5 was that there was no instruction to take that course of action from the Deputy Public Prosecutor. 21 [55] This is a crucial and of great importance to the prosecution case. Court of Appeal in Rahmani Ali Mohamad v Public Prosecutor [2014] 6 MLJ 525 stated: “[15] …… In this regard, PW8 said that he did not investigate the appellants hand phone because saya terlepas pandang. PW8 also said, saya tak periksa rekod-rekod panggilan keluar masuk OKT 2. Jika disiasat mungkin boleh dapat maklumat lanjut. The appellants cannot be penalized for lack of ingenuity, negligence or inadvertence on the part of the investigator depriving him of the time honoured benefit of doubt (see Pang Chee Meng v Public Prosecutor [1992] 1 MLJ 137). The manner in which PW8 had conducted his investigations left many stones unturned and material gaps exists. Based on this omission, an inference in the appellants favour ought therefore to have been drawn by the learned High Court judge at the close of the prosecution case (see Lee Kwan Who v Public Prosecutor [2009] 5 MLJ 301; [2009] 5 CLJ 631 and Alcontara a/l Ambross Anthony v Public Prosecutor [1996] 1 MLJ 209).” [56] SP5 also failed to produced the actual recording footage of the cctv that was available at the condominium. P19, photographs, tendered during the trial did not show a complete chronology of the events in its entirety and its running sequence. Her excuse that she forgot to bring a 22 cd when she visited the control room at the condominium is a flimsy one. She could have easily gone there again the next day or requested someone form the police station to bring a cd then could have easily solve the matter. [57] The complete cctv recording is material as it was the defence contention that there exist another person in this case, by the name of „Ah Lun‟ whom the defence claimed was visible in photographs P19. [58] Furthermore, the failure of the prosecution to tender the records which SP4 claimed he made throughout his communications and meetings with the accused is also fatal. [59] Both this failure invites the invocation of an adverse inference under section 114(g) Evidence Act. [60] Based on the abovementioned reasons I find that there are irreconcilable versions and material gaps and major contradiction in the prosecution‟s case which were not clarified or explained by the prosecution. 23 Decision [61] Having subjected the evidence adduced by the prosecution witnesses to the required maximum evaluation, I find that the prosecution had failed to prove a prime facie case against the accused. The accused is therefore acquitted and discharged. -tt- (AZHAR BIN ABDUL HAMID) PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI KUALA LUMPUR (MAHKAMAH TINGGI JENAYAH 7) Dated : 13 November 2020 COUNCEL: For the Applicant : Puan Annur Atiqah bt Abd Hadi Public Prosecutor [Attorney General Chambers] For the Respondent : Gooi Soon Seng (Ooi Pen Lyn) (Messrs Gooi & Azura) 24 Cases referred to: Balachandran v Public Prosecutor [2005] 2 MLJ 301 Public Prosecutor v Mohd Radzi bin Abu Bakar [2005] 6 MLJ 393 Ahmad Najib bin Aris v Pendakwa Raya [2009] 2 CLJ 800 Wan Mohamad Azman Hassan v PP [2010] 4 CLJ PP v Han Kong Juan & Ors [1983] 1 CLJ 245; [1983] CLJ (Rep) 773 Public Prosecutor v Tan Kim Lye & Anor [2012] MLJU 378 Pie Bin Chin v PP [1985] 1 MLJ 234 Andy Bin Bagindah v PP [2000] 3 MLJ 644 Yusoff bin Kassim v Public Prosecutor [1992] 1 LNS 31 Rahmani Ali Mohamad v Public Prosecutor [2014] 6 MLJ 525 Legislation referred to: Section 39B (1) (a), (2) Dangerous Drugs Act 1952 Section 180 Criminal Procedure Code; Section 40A Evidence Act Section 114(g) Evidence Act