Prabhagaran A/L Kegobalu v Pendakwa Raya (J-05(M)-396-08/2017)

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1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE CRIMINAL JURISDICTION) CRIMINAL APPEAL NO: J - 05 (M) – 396 - 08/2017 & J – 05 (SH) – 421 - 09/2017 BETWEEN PRABHAGARAN A/L KEGOBALU … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [In the matter of the High Court at Johor Bahru Criminal Trial No: 45A – 07 - 02/2015 & 45D – 04 - 03/2015 Between Public Prosecutor v Prabhagaran a/l Kegobalu] CORAM MOHTARUDIN BAKI, JCA AHMADI HAJI ASNAWI, JCA ABDUL RAHMAN SEBLI, JCA JUDGMENT OF THE COURT [1] In the High Court at Johor Bahru, the appellant was charged with three offences as specified in the following charges: First Amended Charge (Case No: 45A-07-02/2015) “Bahawa kamu pada 16.9.2014 jam lebih kurang 1.20 pagi, bertempat di Kuil Muniandy, REM Estate, dalam daerah Kota Tinggi, dalam Negeri Johor Darul Takzim telah didapati mengedar dadah berbahaya jenis Heroin berat bersih 45.50 gram. Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah Seksyen 39B(1) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B(2) Akta yang sama.” First Amended Charge (Case No: 45D-04-03/2015) 2 “Bahawa kamu pada 16.9.2014 jam lebih kurang 1.20 pagi, bertempat di Kuil Muniandy, REM Estate, dalam Negeri Johor Darul Takzim telah didapati memiliki 1 laras senjata api AK-47 No Siri 56-I 29002527, 1 pucuk pistol jenis Revolver .38 4 inch Smith Wesson No Siri 806108 tanpa kebenaran. Oleh yang demikian, kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 8 Akta Senjata Api (Penalti Lebih Berat) 1971.” Second Amended Charge (Case No: 45D-04-03/2015) “Bahawa kamu pada 16.9.2014 jam lebih kurang 1.20 pagi, bertempat di Kuil Muniandy, REM Estate, dalam daerah Kota Tinggi, dalam Negeri Johor Darul Takzim telah didapati memiliki 156 butir peluru dalam hal keadaan yang boleh menimbulkan satu anggapan yang munasabah bahawa ia bercadang untuk menggunakan senjata dan peluru tersebut untuk tujuan yang menyalahi undang-undang. Oleh yang demikian, kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 33 Akta Senjata 1960.” [2] He claimed trial to all three charges but was found guilty of all three at the conclusion of the trial. For the charge under section 39B of the Dangerous Drugs Act 1952 (“the DDA”), he was sentenced to death. For the charge under section 8 of the Firearms (Increased Penalties) Act 1971, he was sentenced to 7 years imprisonment and 6 strokes of the rotan and for the charge under section 33 of the Arms Act 1960, he was sentenced to 3 years imprisonment and 3 strokes of the rotan. [3] His appeal before us was against conviction and sentence in respect of all three charges. Having heard arguments by both sides, we dismissed the appellant’s appeals by a unanimous decision and these are our grounds. [4] The salient facts are as follows. On 16.9.2014 at around 12.05 a.m., a team of police officers from the Special Task Force on Organised Crime (STAFOC) led by Superintendent of Police Shazli bin Kahar (SP2) conducted a raid at No. 86, Jalan Kobis, Taman Sri Lalang, Kota Tinggi in connection with Kota Tinggi Report 6860/14. 3 [5] The raid led to the arrest of the appellant. After his arrest, the appellant was interrogated by SP2. In the course of the interrogation, the appellant uttered the following words, “Itu beg ada senjatapi, peluru dan dadah. Saya simpan di Kuil Muniandy REM Estate. Saya boleh tunjuk itu Kuil.” [6] Guided by the appellant, SP2 and his team proceeded to the Hindu temple, REM Estate, Kota Tinggi, Johor. On their arrival at around 1.20 a.m. the same day, SP2 and his team were directed by the appellant to a place behind a steel cupboard at the temple where the drug, the firearm and the ammunition were discovered, amongst other things. The appellant appeared normal when the exhibits were being examined. [7] The drug was sent to the Chemistry Department for analysis and was confirmed by the Chemist to be 45.50 grams of Heroin. Possession of 15 grammes or more of this type of drug triggers the presumption of trafficking under section 37(da) of the DDA. [8] As for the firearm and ammunition, they were sent to the Firearms Unit, IPK Johor for serviceability test. The test result conducted by the Armament Officer, Inspector Nor Hakimi bin Abdul Rahman (SP9) confirmed that all the exhibits were in serviceable condition. [9] At the close of the prosecution case, the learned trial judge ruled that a prima facie case had been established against the appellant in respect of all three charges. This was a correct finding because the drug, the firearm and the ammunition were found as a result of information given by the appellant himself. 4 [10] The information that the appellant gave under section 27 of the Evidence Act 1950 (“the Evidence Act”) was that he kept (“simpan”) the three incriminating exhibits at the temple. Section 27 of the Evidence Act provides as follows: “27. (1) When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of that information, whether the information amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.” [11] On the issue of conduct, the learned judge correctly addressed his mind to the law when he cited the following passages in Amathevelli a/p P Ramasamy v Public Prosecutor [2009] 2 MLJ 367: “The admissibility of the information supplied by the appellant does not affect the admissibility of the evidence of her subsequent conduct under s 8 of the Evidence Act 1950 irrespective of s 27. As Chinnappa Reddy J said in Prakash Chand v State AIR 1979 SC 400 at p 404: The evidence of the circumstances, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapon which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under s 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously will or antecedent to such conduct falls within the purview of s 27 of the Evidence Act (vide Himachal Pradesh Administration v Om Prakash AIR 1972 SC 975).” [12] The presumption of trafficking under section 37(da) of the DDA was also correctly invoked by the learned judge as the amount of drug in the appellant’s possession exceeded the minimum prescribed by section 37(da) of the DDA. 5 [13] When called upon to enter his defence, the appellant chose to give sworn evidence. The narrative of his defence has been set out in detail by the learned judge, as can be seen from paragraphs [86] - [118] of his grounds of judgment. Essentially, the appellant’s defence was that it was the police themselves who found the drug, the firearm and the ammunition, and not as a result of information given by him. [14] He denied SP2’s testimony that he pointed towards the steel cupboard where the incriminating exhibits were found. His version was that while the police conducted a search at the temple premises, he remained in the police car together with one policeman and was only brought to a “Tokong Cina” located in the temple premises to be photographed beside the steel cupboard. [15] The appellant did not deny that the exhibits belonged to him but implied that they belonged to one ‘Manogaran’. He called SD2 as his witness, who testified that Manogaran would be at the temple every Tuesday and Sunday as well as at every festival. According to SD2, he heard there were “barang” at the temple but did not know what it was. [16] Another witness called by the appellant, viz. SD4 claimed that he saw the police getting out of the police car and heading towards the temple. He said he did not see the appellant at the temple. What he saw was the police “circling the place as if they were looking for something”. The evidence was obviously to support the appellant’s claim that he did not give the information that SP2 said he gave. 6 [17] After a careful assessment and evaluation of the defence case and after directing his mind to section 182A(1) of the Criminal Procedure Code and the relevant case law, the learned judge found as follows: “[165] Under all the circumstances of the case, I find that the accused has failed to rebut the statutory presumption under section 37(da) of the DDA on a balance of probabilities and neither has he raised a reasonable doubt as to possession of the impugned drugs. I therefore convict the accused under section 39B(1) A of the DDA. [166] I also find the accused has failed to raise a reasonable doubt in respect of the offence under section 8 of the Firearms (Increased Penalties) Act 1971 and I convict him accordingly. [167] In respect of the offence under section 33 of the Arms Act 1960, I also find that the accused had failed to rebut the reasonable presumption that he has used or intended or was about to use the arm or ammunition for an unlawful purpose and neither has he raised a reasonable doubt as to the charge of possession of the arms and ammunition.” [18] The learned judge’s reference to section 39B(1)A of the DDA in paragraph [165] above must have been a typographical error. There is no section 39B(1)A but there is section 39B(1)(a). We do not think the error has any bearing on his decision in respect of the trafficking charge, let alone vitiating the conviction. [19] The appellant filed 20 grounds of appeal, but at the hearing learned counsel focused his argument on 6 grounds, namely:

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(1) The learned judge failed to give maximum evaluation to the prosecution’s evidence at the close of its case; 7

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(2) The learned judge failed to give adequate consideration to the appellant’s explanation before concluding that he failed to raise any reasonable doubt in the prosecution case;

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(3) The learned judge erred in failing to find that the prosecution witnesses were not credible;

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(4) The learned judge erred in failing to draw adverse inference under section 114(g) of the Evidence Act for the failure by the prosecution to call material witnesses;

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(5) The learned judge erred in failing to find that the chain of evidence pertaining to the exhibits had been broken;

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(6) The learned judge made a wrong finding on the exhibits seized. [20] With due respect to learned counsel, we found nothing of substance to any of the grounds. Ground (1) is contradicted by the record, which shows that the learned judge had carefully analysed the prosecution’s evidence and in so doing had applied the law correctly to the facts. [21] Ground (2) is baseless as the learned judge was mindful of his duty under section 182A(1) of the Criminal Procedure Code (“the CPC”) and had sufficiently considered the defence put up by the appellant before finding him guilty of the offences charged. We reproduce below section 182A(1) of the CPC: 8 “182A. (1) At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.” [22] Having addressed his mind to the above provision, the learned judge had properly and adequately evaluated the defence case against and in the light of the evidence adduced by the prosecution. This can be seen at paragraphs [126] – [164] of his grounds of judgment. [23] Of particular relevance is paragraph [145] where the learned judge reaffirmed his finding that the appellant did in fact utter the incriminating words after his arrest. This is what the learned trial judge said: “[145] With regard to the contention of the defence that the accused had never uttered the words which led to the discovery of the bag, I had ruled earlier that based upon the evidence adduced by the prosecution, I was satisfied that the words were in fat uttered by the accused and was admissible under section 27 of the Evidence Act 1950. I see no reason to alter those findings at this stage.” [24] Ground (3). We do not think we need to dwell on this ground as it is trite principle that the credibility of the witnesses was for the learned trial judge to determine, having had the advantage of seeing and hearing them giving evidence. There was absolutely no basis for us to find that the learned judge had not taken proper advantage of his having seen and heard the witnesses. This ground is likewise baseless. [25] As for Ground (4), learned counsel had not made it clear why the inference under section 114(g) of the Evidence Act ought to be drawn against the prosecution except to say that the other members of the raiding party needed to be called to “to unfold the narration of events”, 9 which according to counsel was contradicted by the version given by the defence. [26] The main complaint appears to be that no witnesses were called to support SP2’s evidence that the appellant gave the information which led to the discovery of the offending exhibits. It was submitted that it was wrong for the learned judge to accept wholesale the evidence of SP2. [27] We found no merit in the complaint. In the first place, there was no suggestion by the appellant that the prosecution was actuated by oblique motive in not calling the other members of the raiding party. Secondly, there is no law to say that the evidence of a police witness, in this case SP2, must in law be corroborated. Thirdly, the failure to call the other members of the raiding party and the witnesses to support SP2’s evidence had not resulted in a gap in the prosecution’s case, such that no prima facie case had been established at the close of its case. [28] As to when the inference under section 114(g) of the Evidence Act could properly be drawn, the following observations by the Federal Court in Munusamy Vengadasalam v PP [1987] CLJ (Rep) 221 FC are relevant: “It is essential to appreciate the scope of s. 114(g) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, or for non-production of not just any witness but an important and material witness to the case.” [29] Grounds (5) and (6) - that the chain of evidence pertaining to the exhibits had been broken and that the learned judge made a wrong finding 10 on the exhibits seized. On the evidence, this ground is groundless. We found nothing wrong with the following findings by the learned judge: “[79] As far as the drug exhibits are concerned, SP2 handed over the exhibits to SP12 who then handed them over to SP11. SP11 in turn handed the exhibits to SP4 for analysis. After the completion of analysis, SP4 handed over the exhibits to the Store room where it was received and acknowledge by SP6. [80] In respect of the firearms and ammunition, SP2 handed them over to SP12 who sent the exhibits for serviceability tests by SP9 and SP5. After completion of analysis and serviceability tests the exhibits were returned to SP12 who kept them at the store room (criminal cases) before registering the exhibits and placing them at the AMRA store room. [81] The evidence adduced by the witnesses coupled with the documentary evidence tendered therefore showed that there was also no break in the chain of exhibits of the drug exhibits and all the firearms and ammunition. [82] The missing bullets and casings as evident during the course of the case was explained by SP9 and SP12 as having been sent for serviceability tests. SP10 in his evidence also explained that parts of the firearms were destroyed by termites or white ants. [83] There was also evidence that although the serial numbers and markings were not clearly visible on P17(1), it was identified as the same firearm recovered. I was satisfied therefore that under all the circumstances, there was no break in the chain of these exhibits.” [30] It was for all the reasons aforesaid that we dismissed the appellant’s appeal and affirmed the decision of the High Court. We were satisfied that his convictions on all three charges were safe. 11 Signed ABDUL RAHMAN SEBLI Judge Court of Appeal Malaysia Dated: 11 June 2019 For the Appellant: Lee Wenxu, Alicia Goh and Radhi of Messrs Abdul Hakim Abdul Rahman & Co. For the Respondent: Faizah Binti Mohd Salleh, Deputy Public Prosecutor of the Attorney General’s Chambers.