Public Prosecutor v Hassan Jafapour (B-05(LB)-338-08/2017)

38.2. Penama Ali Rahmani ini merupakan rakan Tertuduh Pertama yang bekerja sebagai ejen teksi semasa di Iran. Tertuduh Pertama yang ingin berhijrah ke Australia meminta bantuan Ali Rahmani dalam menguruskan visa tersebut kerana proses membuat visa berkenaan di Malaysia adalah lebih cepat daripada proses membuat visa di Iran. Tertuduh Pertama membuat bayaran sebanyak USD10,000 ke akaun Ali Rahmani semasa beliau di Iran;

38.3. Tertuduh Pertama bertemu dengan Ali Rahmani di lapangan terbang KLIA seperti yang telah dirancang kerana Ali Rahmani datang untuk menjemputnya. Tertuduh Pertama tinggal bersama Ali Rahmani di rumah sewa Ali Rahmani yang merupakan rumah jenis pangsapuri berdekatan dengan KLCC selama lebih kurang tiga bulan sebelum Ali Rahmani tersebut menghilangkan diri serta membawa lari paspot Tertuduh Pertama. Tertuduh Pertama ditinggalkan di rumah sewa itu;

38.4. Tertuduh Pertama cuba mencari Ali Rahmani tetapi gagal. Tertuduh Pertama juga ada menelefon Ali Rahmani tetapi taliannya telah dimatikan. Selepas itu, Tertuduh Pertama pergi ke kawasan di sebelah KLCC dan bertanyakan kepada mana-mana warganegara Iran yang ditemuinya sama ada terdapatnya sesiapa yang mengenali Penama Ali Rahmani tersebut;

38.5. Tertuduh Pertama seterusnya telah bertemu dan berkawan dengan Tertuduh Ketiga di KLCC. Malangnya, selepas itu Tertuduh Pertama dihalau oleh pemilik rumah yang disewa oleh Ali Rahmani tersebut. Dengan itu, Tertuduh Pertama mengambil pakaiannya dan 9 pergi ke KLCC untuk berjumpa Tertuduh Ketiga. Tertuduh Pertama telah menceritakan kejadian yang telah berlaku kepada Tertuduh Ketiga dan Tertuduh Pertama dijemput ke rumah Tertuduh Ketiga ini yang mengambil masa lebih kurang 20 – 30 minit perjalanan dari KLCC untuk pergi ke sana;

38.6. Tertuduh Pertama menyatakan bahawa dia mengikuti Tertuduh Ketiga ke rumah tersebut disebabkan Tertuduh Ketiga dapat bertutur Bahasa Inggeris dengan lebih baik daripadanya. Tertuduh Pertama meminta Tertuduh Ketiga agar menolongnya untuk mengesan Ali Rahmani, membantu menguruskan untuknya menyewa rumah, mendapatkan kembali paspot dan duit yang telah dibayar daripada Ali Rahmani. Tertuduh Pertama kemudiannya mengenali Tertuduh Kedua melalui Tertuduh Ketiga untuk urusan bagi menyewa rumah;

38.7. Pada hari kejadian jam lebih kurang 10 pagi, Tertuduh Pertama dari rumah Tertuduh Ketiga telah menaiki teksi ke KLCC untuk bersiar-siar kerana berasa bosan di rumah. Ketika Tertuduh Pertama berada di KLCC, Tertuduh Kedua menghubunginya mengenai urusan rumah sewa dan perkara ini juga ada dimaklumkan oleh Tertuduh Ketiga sehari sebelum ini mengenai Tertuduh Kedua yang akan menghubunginya;

38.8. Tertuduh Pertama selanjutnya semasa berada di tepi jalan telah berjumpa dengan Tertuduh Kedua dan Tertuduh Ketiga. Mereka berdua datang dengan menaiki kenderaan yang dipandu oleh Tertuduh Kedua. Tertuduh Pertama telah naik kenderaan itu dan tidak menanyakan ke mana arah tujuan dan tidak diberitahu apa-apa juga oleh Tertuduh Kedua dan Tertuduh Ketiga tersebut; dan 10

38.9. Di tempat kejadian, mereka bertiga telah ditangkap oleh pihak polis.” [9] In essence, the defence of the respondent was that he had no knowledge of the drugs in the bag and consequently, no possession. The bag was already in the car when the respondent entered the said car. When the said car was raided, he also ran out of the car as both the driver (2nd accused) and the front passenger (3rd accused) ran out of the said car. The respondent claimed that he did not throw the bag as alleged. [10] At the conclusion of the trial, the learned Judge was doubtful that SP5 had seen the respondent throw the bag near the rear wheel of the car in view of the fact that the 3rd accused had also run out from the same side of the car. His Lordship considered that both the doors could have blocked the vision of SP5. [11] The learned Judge also criticised the prosecution for not calling at least one other member of the raiding team to say that it was the respondent who threw the bag. The learned Judge also considered that the prosecution could have called the 2nd and 3rd accused as “rebuttal evidence or witness” to rebut that the bag was already in the said car when 11 the respondent got into it. In the result, the learned Judge came to the finding that the prosecution had failed to prove the charge against the respondent beyond reasonable doubt. An order of acquittal and discharge followed as a consequence. The Instant Appeal [12] Before us, the pivotal issue raised by the appellant was that the learned Judge, after finding that SP5 was a credible witness, had a change of heart and made what was effectively a reversal of his earlier finding that there was no reason to disbelieve the evidence of SP5. This issue was critical in that it involved the question of possession and knowledge of the impugned drugs by the respondent. [13] The criticism that was fashioned before us was that having accepted the credibility and evidence of SP5, the learned Judge went on to hold that a reasonable doubt had been raised by the defence when no evidence was produced in the defence case which undermined the credibility and evidence of SP5. 12 [14] Now, to be fair, the learned Judge had reconsidered the evidence of SP5 and came to the view that it was doubtful as to whether SP5 could have seen the respondent throwing the bag as his view would have been blocked by the doors of the car. This could have been so as the 3rd accused had also come out of the car on the same side as the respondent and hence SP5’s view would have been blocked by both the doors of the car. The question now is: was the learned Judge entitled or justified in arriving at such a finding after clearly expressing the view that there was no reason to disbelieve the evidence of SP5. [15] On the issue of revisiting an earlier finding, the Federal Court in Duis Akim & Ors v PP [2013] 9 CLJ 692 had this to say (at p. 709): “[38] We note that when assessing the defence the learned trial judge surprisingly revisited his earlier findings upon which he called for the defence. Such approach is quite contrary to the principle of maximum evaluation of the evidence adduced at the close of the prosecution’s case. Indeed in his judgment the learned trial judge made it very clear that he had conducted a maximum evaluation of the evidence adduced by the prosecution before calling for the defence. [39] In PP v. Khong Soh [1966] 1 LNS 141; [1966] 2 MLJ 137 Macintyre J said this at p. 139: 13 Having held that a prima facie case had been made out against the respondent, the learned president should have given his reasons for holding why the respondent’s evidence had created a reasonable doubt in his mind. [40] Thus, in the present case the learned trial judge, having given the evidence before him the maximum evaluation before calling for the defence, should have therefore focused on whether the defence had cast a reasonable doubt in the prosecution’s case and even if it did not, whether as a whole the prosecution had proved its case beyond reasonable doubt before finding the appellants innocent or guilty for the offence as charged.” [16] On this score, we would surmise that having accepted the evidence of the prosecution witnesses and having decided that a prima facie case had been established, the duty of the trial judge was then to evaluate the evidence of the defence and then decide, firstly, whether the defence had cast a reasonable doubt on the prosecution’s case and secondly, if the defence had not done so, whether the prosecution had proved its case beyond reasonable doubt. [17] So, the question which the learned Judge in the instant case had to contend with was whether the defence had cast a reasonable doubt and then whether the prosecution had proved its case beyond reasonable 14 doubt. In this respect, the evidence of SP5 was crucial. If there was any doubt as to his evidence that it was the respondent who threw the bag, the respondent was entitled to an acquittal. [18] In this context, we found the evidence of SP5 to be compelling. At page 82 of the Appeal Record Vol 3(2) this is what SP5 said: “Saya dan anggota-anggota serbuan kemudian telah keluar dari kereta dan mengepung kereta tersebut. Ketika itu saya mendapati di dalam kereta tersebut terdapat (3) orang lelaki. Ketika itu kedudukan saya adalah di bahagian hadapan kiri kereta tersebut.” [19] And further at page 83, Appeal Record Vol 3[2]: “saya melihat dengan jelas seorang lelaki yang keluar dari pintu penumpang belakang sebelah kiri kereta tersebut telah mencampakkan satu beg di bahagian luar tepi pintu penumpang belakang sebelah kiri kereta tersebut.” [20] And at page 84, Appeal Record Vol 3[2]: “Penama Hassan Jafarpour merupakan tangkapan yang saya lihat mencampakkan beg” 15 “Saya juga boleh cam kereta yang mereka gunakan serta lokasi di mana beg dicampakkan oleh penama Hassan Jafarpour.” [21] Now, in a criminal trial, witnesses are essential in the unfolding of the narrative of each party. Events of the past are reconstructed. Witnesses attest to these events. Their evidence is presented, then tested by cross-examination and finally evaluated by the trial judge. It is assumed that witnesses will be truthful as they feared the consequences of untruthful testimony. At the end of the trial and before a verdict is delivered, much of the discourse will invariably pivot around the reliability of witness testimony. [22] From experience, there are generally three types of witnesses at a trial. The first two are clear cut. They are the truthful and untruthful witnesses. The third type of witness can sometimes provide some difficulty to the trial judge. This is the truthful but mistaken witness. In other words, this is a witness who is telling the truth as he perceives it but he may be mistaken as to what he saw or heard. Acuity of hearing or observation may differ among witnesses. So his credibility, in one sense, is not in doubt but the accuracy of his evidence is although some might say a witness is not credible if he is mistaken in his testimony. 16 [23] In this context, it is interesting to note that under s. 146(a) of the Evidence Act 1950, when a witness is cross-examined, he may be asked any questions which tend “to test his accuracy, veracity or credibility” thus implying that there is a difference between the three characterisations. This is fortified by s. 155 of the Evidence Act 1950 where the impeachment of a witness appears to be limited to an attack on a witness’s truthfulness. This much can also be gathered from the celebrated case of Muthusamy v PP [1948] MLJ 57 where Taylor J opined that where a witness is able to explain the material differences, his credit is saved but there may be a doubt as to the accuracy of his memory. [24] Even so, Yong Pung How CJ in Kwang Boon Keong Peter v PP [1998] 2 SLR 592, sought to make a distinction between credit and credibility of a witness in the following way (at p. 602): “Nokes, in the fourth edition of An Introduction to Evidence at pages 407- 408, sought to define and distinguish between credit and credibility. The learned author stated that credit involves ‘antecedents, associates, character, impartiality and consistency’ while credibility concerns the ‘opportunities for a power of observation of the witness, his accuracy for recollection, and capacity to explain what he remembers’. It can thus be 17 deduced that the credit of a witness refers to his character and moral reliability whereas the credibility of a witness refers to his mental capacity and power to be a witness of veracity.” [25] It can therefore be surmised that the Evidence Act 1950 refers to both the narrower definition of witness credit which focusses on the truthfulness of a witness and the broader notion of credibility which encompasses both truthfulness and accuracy of evidence. In this way, the credit of a witness can only be impeached under s. 155 of the Evidence Act 1950 on the ground of witness untruthfulness. [26] Reverting to the instant appeal, there was no question of SP5 being unworthy of credit. There was no issue of SP5 fabricating evidence and being untruthful. His credibility was challenged on the basis that SP5 could have been mistaken in his evidence about the respondent throwing the bag. To put it in another way, the evidence of SP5 was challenged on the ground that his evidence was unreliable and not safe for the court to act upon based on the reasons given by the trial Judge. [27] In this respect, it was conceded that SP5 was never challenged as to what he saw. It was never suggested to SP5 that he was mistaken or that 18 he could not have seen the respondent throwing the bag as his vision was blocked. Surely, if it was not the case that it was the respondent who threw the bag, there would have been a vigorous and spirited cross-examination of the accuracy and reliability of SP5’s evidence. Failure to do so, we would agree, amounted to acceptance of the witness’s testimony, in this case SP5 (Wong Swee Chin v PP [1981] 1 MLJ 212). [28] In coming to his view, the learned Judge criticized the prosecution for not calling other witnesses to say that it was the respondent who threw the bag. With respect, this criticism is unwarranted as a witness cannot be disbelieved only on the ground that he was the only witness. No particular number of witnesses are required to prove any fact (section 134 of the Evidence Act 1950). Unless it is a type of situation where corroboration is mandatory, the testimony of a single witness may be sufficient to ground a conviction (see Selvam a/l Arjunan v PP [2012] 4 MLJ 755 where the following Indian cases were cited with approval; Badri v State of Rajasthan [1976] 1 SCC 442; Vadivelu Thevar v State of Madras AIR 1957 SC 614 and Ram August Tewari & Ors v Bindeshwari Tewari & Ors AIR 1972 Pat 142). 19 [29] The criticism by the learned Judge that the prosecution should have called either the 2nd or 3rd accused as rebuttal witnesses was also misplaced as they were also charged together with the respondent under s. 34 of the Penal Code. The prosecution had accordingly appealed against their acquittal. So again, no criticism is warranted. [30] In the circumstances, we were constrained to hold that the learned Judge, with respect, had entertained a fanciful or imaginary doubt based on conjecture rather than one raised by the evidence. In this context, leaping to mind are the pertinent observations of Lord Denning in Miller v Minister of Pensions [1947] 2 All ER 372 at 373: “That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence 'of course, it is possible but not in the least probable,' the case is proved beyond reasonable doubt.” [31] We were mindful that an appellate court must be slow in disturbing a finding of fact arrived at by a judge who had the audio-visual advantage of 20 seeing the witnesses (see Lim Kheak Teong v PP [1985] 1 MLJ 38). However, an appellate court has jurisdiction to interfere with a trial court’s finding of facts if, after considering the entirety of the evidence, the appellate court was satisfied that the finding and the order of acquittal was against the weight of the evidence and had led to a miscarriage of justice. [32] Given the evidence we have alluded to in the foregoing, it was plain to us that the finding of acquittal by the learned Judge was against the weight of evidence and in particular the unchallenged evidence of SP5 that it was the respondent who threw the bag. As noted by the learned Judge, the respondent could have left the bag in the car but he chose to throw it out of the car. As correctly observed again by the learned Judge, if there was nothing incriminating in the bag, then why throw it out of the car. In our view, the evidence of throwing the bag by the respondent precipitated the irresistible inference that the respondent knew the bag contained illicit drugs. [33] Now, the respondent in his testimony, raised the existence of one Ali Rahmani. In our view, the learned Judge was right in finding that the existence of Ali Rahmani had no bearing on the illicit drugs recovered at the time of the respondent’s arrest. In any event, we agree with the learned 21 Judge that this character was created by the respondent as his involvement with the respondent was never raised prior to the evidence of the respondent. [34] In all the circumstances of the case, the respondent, in our view, had failed to cast any reasonable doubt on the case for the prosecution. He was proved to have been in possession with knowledge of the illicit drugs at the material time stated in the charge. He had also failed to rebut the presumption of trafficking. After considering the entirety of the evidence, we found that the prosecution had proved the charge against the respondent beyond a reasonable doubt. The respondent, to our minds, was clearly guilty of trafficking in the drugs mentioned in the charge. Conclusion [35] In the circumstances, and for the reasons we have given, we were of the view that there were merits in the appeal and that appellate intervention was warranted. Accordingly, we allowed the appeal and set aside the order of acquittal by the High Court. In its stead, the respondent was convicted on the charge and sentenced to death. 22 Dated: 11 April 2019 Signed (HARMINDAR SINGH DHALIWAL) Judge Court of Appeal Malaysia Counsel: For the Appellant: Tetralina binti Ahmed Fauzi Timbalan Pendakwa Raya Jabatan Peguam Negara Malaysia For the Respondent: Hisyam Teh Poh Teik (M/s Teh Poh Teik & Co)