Public Prosecutor v Sardar Ali Hassan Muhammad [W/Pakistan] (B-05(M)-531-11/2017)

(i) The appellant’s evidence was illogical as he testified that he came to Lahore on 6.8.2014 from Faisalabad and on the same day, upon 8 Rashid’s instruction, he took a flight to Malaysia via Bangkok without having any chance to make any preparation for the journey;

(v) The appellant failed to give reasonable explanation as to why he did not picked up his own bag and only took the bag given by Rashid’s cousin which contained allegedly, the medicine.

(i) The evidence of Detective Corporal Sri Ramathasi (SP1) ought not to be relied upon as he was not a reliable witness;

(v) The consent issued for the prosecution of the appellant in this case was a defective consent. Deliberation And Decision Of This Court [19] In the present case, the appellant did not deny that he had physical possession of the two transparent plastics containing the brown substances which were strapped to his calves. However, he was told that the substances were medicine and he was threaten to strap it to his calves by Rashid. 10 [20] In the circumstances, the first pertinent issue here is the issue of knowledge as to the impugned drugs. Knowledge is a required element to prove actual possession of the drugs as lucidly explained by the Federal Court in Ibrahim Mohamad v PP [2011] 4 CLJ 113 as follows: “The law is well settled that having only custody or control over the said drugs is insufficient to establish “possession”. The physical act of custody or control must be accompanied with the evidence that the accused had knowledge of the said drugs. In the absence of any statutory presumptions, knowledge has to be proved either by direct evidence or circumstantial evidence. Mere knowledge alone without exclusivity of either physical custody or control or both is insufficient in law to constitute possession let alone trafficking.” (emphasis added) [21] Clearly, knowledge can be proved by direct inference from the surrounding circumstances (see PP v Badrulsham Baharom [1988] 2 MLJ 585; Samundee Devan v PP [2009] 1 MLJ 699 (FC); PP v Reza Mohd Shah Ahmad Shah [2010] 1 CLJ 541 (FC)) [22] Reverting to the present case, the appellant’s conduct in behaving suspiciously before his arrest can reasonably be inferred that he had knowledge of the impugned drugs that were strapped to both his calves. His conduct was narrated by SP1 in his testimony as follows: “ S : Apa maksud Koperal nampak lelaki mencurigakan itu ? 11 J : Maksud mencurigakan itu nampak nervous, diperhatikan ke hadapan, ke belakang, ke kiri, dan mata melilau pandang ke tempat keluar, belakang dan persekitaran. Dia tak focus tempat ambil barang.” ……. “ S : Pergerakan yang macam mana mencurigakan ? J : Dia nampak nervous lagi. Cara jalan dia agak berlainan, tak normal. Masa dia berhadapan dengan saya. Saya telah mengenalkan diri saya polis pada dia dan minta tunjukkan passport dan dia tunjukkan passport” ……. “ S :Masa kamu kenalkan diri sebagai polis, apa riaksi OKT pada masa itu ? J : Dalam keadaan nervous tapi dia hulurkan passport dia. [23] In the instant case, his conduct being suspicious and nervous in addition to his action in strapping the drugs to his calves to avoid detection by the enforcement officers only points to the fact that the appellant had knowledge of the drugs even before he picked up the bag at the carousel of the arriving hall. [24] Here, we agree with the trial judge that the appellant had mens rea possession of the impugned drugs that was found strapped to both his calves. Credibility of SP1 [25] On this issue, counsel for the appellant submitted that SP1 was not a reliable witness and as such his testimony cannot be relied upon by the 12 court. SP1 was said to be very evasive and not sure of certain facts when he was cross-examined. Counsel also submitted that no sane person would carry a telephone without a sim card in it as the evidence given by SP1. [26] In this regard, we have perused the notes of proceedings including the evidence of SP1 and find that there was no material discrepancies or any material flaw that affects SP1’s testimony. We therefore agree with the finding of fact by the trial judge the SP1 was a credible witness and accepted his evidence. Furthermore, the evidence of SP1 was corroborated by his superior SP5 who was present when SP1 conducted the search on the appellant and found the impugned drugs strapped to his calves. [27] Further, it is trite law that the finding of fact on credibility of witnesses by the trial judge who had the advantage of seeing and hearing the witnesses must be given proper weight. This court should be slow in disturbing the findings of fact the trial judge unless there was substantial and compelling reasons to do so which was none in the present case. (see Amri Ibrahim & Anor v PP [2017] 1 CLJ 617 (FC)) [28] The Federal Court in the case of Tan Kim Ho & Anor v PP [2009] 3 CLJ 236 at 252 on similar issue, held as follows: “ It is an established principle of law that when dealing with finding of facts, the trial judge is more often than not, in a better position to decide. The appellate 13 court must be reluctant to interfere with such findings, unless the court below had clearly and wrongly evaluated the facts. In Lee Ah Seng & Anor v PP [2007] 5 CLJ 1 this court held : The approach to be taken by an appellate court when dealing with a trial court’s assessment on credibility of witness is well established by high authorities. The credibility of a witness is primarily for the trial judge. An appellate court should always be slow in disturbing such finding of fact arrived at by the trial judge who had audio-visual advantage of the witness, unless there are substantial and compelling reasons for disagreeing with the finding. Discrepancies will always be found in the evidence of a witness but what a judge has to determine is whether they are minor or material discrepancies. It would be wrong to say just because a witness may have contradicted in his evidence or even told lies on one or two points, his evidence should be totally rejected. In the final analysis it is for the trial judge to determine which part of the evidence of a witness he is to accept and which to reject….” (emphasis added) [29] Coming back to the present case, the finding of fact made by the trial judge on credibility of SP1 and accepting his evidence was correctly made and we have no reason to interfere with the said finding. [30] In addition, at the material time, SP1 was only carrying out his duty as an enforcement officer with the Narcotic Division KLIA. There was no evidence to suggest that SP1 know the appellant before he was arrested and no reason too for SP1 to manufacture or embellish evidence against the appellant. SP1’s evidence was not inherently incredible to be accepted by the trial judge. As such we find, there was no compelling reason for this court to disturb the finding of the trial judge 14 in respect of the credibility and evidence of SP1. Hence, the contention by the appellant’s counsel on this issue is untenable. The issue whether the impugned drugs were strapped to the appellant’s calves from Pakistan or at the KLIA. [31] The learned counsel for the appellant also argued that the trial judge erred in his finding that the impugned drugs were strapped to the appellant’s calves from Pakistan. Beside the evidence of the appellant, two defence’s witnesses testified on the security at Pakistan’s airports which were very tight and it was impossible to carry the drugs from Pakistan or strapped it to the legs without being detected by the enforcement authority. [32] As regard to this issue, the trial judge in his finding that the element of trafficking has been proved by the prosecution, had relied on the definition of “trafficking” under section 2 of the DDA 1952. Trafficking under the said definition includes “carrying” and “transporting”. Discerning from the grounds of judgment, the trial judge did make reference to the fact that the drugs were brought into Malaysia from other country. In the grounds of judgment what was stated are the following: “14. Pihak Pendakwaan telah menggunapakai maksud pengedaran dadah di bawah seksyen 2 Akta Dadah Berbahaya 1952 dan menghujahkan perbuatan OKT yang membawa dan mengangkut dadah dengan amaun yang begitu banyak dari tempat lain ke negara ini adalah menepati perbuatan “mengedar” seperti yang ditakrifkan dibawah seksyen 2 Akta Dadah Berbahaya 1952. ( Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64; Mohamed Yazri Minhat v PP [2003] 2 CLJ 65 ) 15

Mahkamah ini mendapati bahawa tindakan OKT yang mengikat dan menyembunyikan bungkusan dadah terbabit di dalam kain putih (P17 dan P18), menyarung betisnya dengan pembebat dan mengikat bungkusan dengan tali kain pada betisnya adalah didapati menjurus kepada perbuatan pengedaran secara langsung sebagaimana yang ditakrifkan di bawah seksyen 2 Akta Dadah Barbahaya

Mahkamah ini mendapati sedemikian dengan merujuk kepada kes PP v Atisheshan Singaram [2010] 1 LNS 463, dimana Mahkamah menyatakan; “ Whether the accused was trafficking in dangerous drugs. I am making a positive finding of fact that the accused was trafficking 20,689.5 grams of the dangerous drug ketamine as defined under Section 2 of DDA 1952 on the 26th of April 2008 when he was arrested at the airport. In arriving at this finding, I am relying on the same factual analysis to which I have based my finding to establish that the accused was the person who was carrying the dangerous drugs in exhibit P16 from New Delhi to Singapore on the 25th of July 2008 and from Singapore to Kuala Lumpur on the 26th of July 2008 via Singapore Airlines flights number SQ 407 and SQ 108 and that the accused had the knowledge that the exhibit P16 contained the dangerous drugs. The facts to which I have enumerated in the above passages establish that the accused was not merely in passive possession or merely holding exhibit P16. The accused was carrying exhibit P16 i.e., moving exhibit P16 from New Delhi to Kuala Lumpur via air travel. This act of the accused amounts to trafficking as defined by Section 2 of the DDA 1952….” [33] Be that as it may, the pertinent issue here is whether the finding of the trial judge was supported by evidence. Here, the undisputed facts was that the appellant’s flight to Malaysia on 6.8.2014 was from Lahore International Airport, Pakistan and landed at KLIA on 7.8.2014 via Bangkok. This fact was also supported by the passenger’s electronic ticket under the appellant’s name (P35). The appellant was then arrested at KLIA when the impugned drugs was found strapped to his calves. 16 [34] The evidence that the drugs were strapped to the appellant’s calves in the toilet at KLIA after being instructed and threaten by Rashid who called him on his telephone was adduced by the appellant. However the trial judge has made his finding that the appellant’s evidence was unreliable, illogical, an afterthought and rejected his evidence. [35] We have perused the reasoning of the trial judge in arriving to his finding of facts as alluded to earlier as well as the evidence before the court. It is our view that the findings by the trial judge was correct and supported by evidence. Therefore there is no reason for us to interfere. [36] Reverting to the evidence presented by the defence that the appellant received a telephone called from Rashid at KLIA, SP1 testified that he had made an observation on the appellant at the carousel about 20 minutes and denied seeing the appellant received any call at the material time. SP1 also narrated that he did not see the appellant went to the toilet as after the observation made on him, SP1 approached him and brought him to the scanning machine and thereafter to the office of KLIA Narcotic Division for further examination. [37] SP1’s testimony and the search list (P9) also revealed that a telephone was confiscated from the appellant with no sim card in it. The sim card was found in the appellant’s wallet which was also seized from the appellant. This was further confirmed by the Investigating Officer, Inspector Amrin bin Mohamad Ariff (SP6) who testified that one of the 17 exhibit that he received from SP1 was a telephone without a sim card. In his evidence, this was what he said: “ S : Kenapa tidak siasat panggilan telefon antara Rashid dan OKT ? J : Memandangkan semasa diserahkan kepada saya telefon tersebut tidak mengandungi sim kad. Dalam siasatan saya, bagaimana OKT boleh terima panggilan dari Rashid sedangkan telefon tersebut tidak mengandungi sim kad.” [38] Further, in the appellant’s testimony, he said when Rashid called him he did threatened him that if the appellant did not follow his instruction, Rashid will ask someone to kill his family, rape his daughters and the daughters of his brother and sister in Pakistan. The appellant will also be killed when he step out from the airport. [39] However, in the appellant’s cautioned statement (D58), which was a contemporaneous document, on the issue of threats, the appellant only said this: “ Sampai di Kuala Lumpur, saya telah dihubungi oleh Rashid dan dia memberitahu dalam beg tersebut ada ubat untuk lelaki dan minta saya bawa keluar barang tersebut dari Lapangan Terbang. Saya tidak setuju, Rashid kemudiannya telah mengugut saya bahawa sekiranya saya tidak bawa keluar barang tersebut ,akan ada orang akan ambil saya, rampas passport saya dan kemudian akan pukul saya. Rashid juga beritahu saya sekiranya dia rugi, dia akan susahkan keluarga saya di Pakistan. Saya kemudian bersetuju dan dia arahkan saya ke tandas di Lapangan Terbang, keluarkan bungkusan dari dalam beg dan ikat pada kedua dua betis saya. 18 Selepas itu saya boleh keluar. Saya pun mengikut arahan yang diberikan oleh Rashid.” [40] Clearly, in the appellant’s cautioned statement, nothing was mentioned about him and his family in Pakistan will be killed or his, his brother’s and sister’s daughters will be raped. These threats as in the appellant’s oral testimony are very serious and if the threats were true, highly unlikely the appellant omitted to state these threats in his cautioned statement. If these threats were true and if there was a sim card in his telephone, the appellant would frantically make calls to his family in Pakistan to warn them about the threats. This is most pertinent thing to do to ensure the safety of his family. However, this was not done. [41] Based on the aforesaid reasons, we agree with the trial judge in rejecting the evidence of the appellant that he received a call from Rashid at KLIA and thereafter went to the toilet to strap the impugned drugs to both his calves. We also agree with the trial judge that the evidence of SD2 and SD3 on the issue of tight security in Pakistan’s airport as well as the evidence of SD4, SD5 and SD6 were of no assistance to the defence’s case in raising a reasonable doubt to the prosecution’s case. After all, SD2 described the security at Faisalabad Airport and SD3 about Sialkot Airport not Lahore Airport which the appellant boarded his flight to Malaysia in the present case. [42] On the totality of evidence, we find, there was no error by the trial judge in his finding that the element of trafficking has been proved by the 19 prosecution as defined under section 2 of the DDA 1952. There was evidence of carrying or transporting the drugs into Malaysia by the appellant either from Pakistan or even from Bangkok, Thailand. As such, the issue raised by counsel for the appellant is devoid of any merits. Adverse finding on the return flight. [43] Counsel for the appellant submitted that the trial judge erred in his finding against the appellant based on the return flight to Pakistan as it was a normal process to book a return flight. On this issue, it is not disputed that booking a return flight is not something extraordinary but in the present case, the appellant himself testified that he came to Malaysia to work including on the material time when he was arrested. His flight from Lahore Airport was on 6.8.2014 and landed in Malaysia on 7.8.2014. However his return flight to Pakistan was scheduled on 13.8.2014. Here, the trial judge correctly made his finding that if the appellant came to Malaysia to work on 6.8.2014, it was illogical and unreasonable to have a return flight to Pakistan on 13.8.2014, which only a week after. This goes to the credibility of the appellant and the reliability of his evidence that he came to Malaysia to work and not to traffic dangerous drugs. Clearly it was improbable that the appellant’s intention was to work in Malaysia but had a return flight to Pakistan scheduled a week after he reached Malaysia. [44] On this issue of credibility, it is instructive to make reference to the Federal Court case of Muniandy & Ors v Public Prosecutor [1966] 1 MLJ 257 where Ong Hock Thye FJ said this : 20 “ In our view, being unshaken in cross-examination is not per se an all-sufficient acid test of credibility. The inherent probability or improbability of a fact in issue must be the main consideration.” (emphasis added) [45] Hence, the issue raised by counsel for the appellant with regard to the return flight is without basis. Consent to Prosecute [46] Lastly, counsel for the appellant contended that the Consent To Prosecute (CTP) issued by the prosecution was defective. It was submitted that the Consent To Prosecute under section 39B(3) DDA 1952 issued by the prosecution was dated 27.4.2014 that was before the appellant was arrested on the 7.8.2014. As such it was a defective consent. [47] On this issue, it was not disputed that there was a CTP issued to prosecute the appellant for an offence under section 39B(1)(a) DDA 1952 as required under section 39B(3) of the same Act. However, there was an error as to the date of the CTP. In this regard, we are of the view that there was no failure of justice in the present case and the error as to the date of the CTP is curable under section 422(a) of the Criminal Procedure Code which states: “422. Subject to the provisions contained in this Chapter no finding, sentence or order passed or made by a Court of competent jurisdiction shall be reversed or altered on account of – 21

(a) Any error, omission or irregularity in the complaint, sanction, consent, summons, warrant, charge, judgment or other proceedings before or during trial, or in any inquiry or other proceedings under this Code;

(b) ….

(c) …. unless such error, omission, irregularity, want, or improper admission or rejection of evidence has occasioned a failure of justice.” (emphasis added) [48] In any event, even if there was no CTP issued, the trial in the present case was conducted by Deputy Public Prosecutor Puan Rozana binti Husin, who was the alter-ego of the Public Prosecutor. Her presence provides an implied consent for the prosecution of the appellant. [49] On the same issue, Yusoff Mohamed J in Public Prosecutor v Lim Boon Hock & Ors [1985] 2 MLJ 219 had this to say : “ I held that the consent was valid first, on the ground that in this case the Public Prosecutor himself conducted the prosecution and the consent as required under section 39B(3) of the Act was implicit in his presence.” [50] Likewise in the case of Public Prosecutor v Datuk Haji Dzulkifli [1982] 1 MLJ 340 where Justice Tan Chiaw Thong said this: 22 “ Even if a fresh consent to prosecute the accused on the altered charge, I consider that, the authorithy of Perumal v Public Prosecutor, supra, the prosecution of the accused by the Deputy Public Prosecutor in this court from the outset constitutes such a consent.” (see also PP v Oie Hee Koi & Associated Appeals [1968] 1 MLJ 148; PP v Chai Chong Yin & Anor [1983] 1 MLJ 267; PP v Mohamed Halipah [1982] 1 MLJ 155) [51] In the circumstances, we find that the error with regards to the date of the CTP in the instant case does not affect the validity of the decision of the trial judge. [52] Apart from the above mentioned issues, we noted that counsel for the appellant did not raise the defence of duress under section 94 of the Penal Code although the appellant testified that he was threatened to strap the impugned drugs to his calves. In any event, even if it is true that the appellant was threatened by Rashid, which we find otherwise, the defence has not shown on the balance of probability that the duress was imminent, extreme and persistent to succeed in this defence. (see Tan Seng Ann v Public Prosecutor [1949] MLJ 87; Chu Tak Fai v Public Prosecutor [1998] 4 MLJ 246) Conclusion [52] Based on the totality of evidence in this case and the reasons as stated above, we are satisfied that the defence had failed to raise a reasonable doubt to the prosecution’s case and the prosecution had 23 proved its case beyond reasonable doubt. As such, we unanimously find that the conviction and sentence by the trial judge is safe. The appellant’s appeal against his conviction and sentence is dismissed and the decision by the trial judge on conviction and sentence is consequently affirmed. Dated this day, 14 September 2020. (DATO’ NORDIN BIN HASSAN) Judge Court of Appeal Malaysia Putrajaya. For the Appellant : Surjan Singh (Tetuan Surjan Singh Sidhu & Co. Advocate and Solicitor) For the Respondent : Puan Nurul Farhana binti Khalid Deputy Public Prosecutor (Attorney General’s Chambers) 24