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1 IN THE HIGH COURT OF MALAYA AT TAIPING IN THE STATE OF PERAK DARUL RIDZUAN CRIMINAL APPEAL NO. AB – 41S – 1 – 01/2021 BETWEEN ROSZAINAL BIN ROSZIDI AND PUBLIC PROSECUTOR JUDGMENT Background Facts [1] Case pertains an offence of possession of drugs. It was found on the accused Roszainal bin Roszidi who was inside a room at Sayong Resort in Kuala Kangsar on 7.7.2019 at about 10 a.m. When the room was raided by the police, accused and his friend SP4, Muhammad Ikmal Adzha were found lying on separate beds in the hotel room. The setting was, the accused found with 9.18 gm of methamphetamine in a sling bag on his shoulder. He was then arrested along with SP4. There were also drugs found on SP4, who has admitted to its possession and case against him was resolved. [2] But the accused has denied the sling bag was his. He testified he was inside the room, waiting for SP2 who had borrowed his motorcycle earlier. Further he said the bag was not slung on his shoulder at the time of raid and his arrest but was in a drawer in the hotel room. He continued to say the bag belonged to SP2 and one Nurul Ain was supposed to come to the room to collect the said bag from SP2. Trial [3] Accused was tried at the Magistrate Court, Kuala Kangsar. The offence being possession of dangerous drugs under section 12(2) of the Dangerous Drugs Act 1952 (DDA/Act 234) punishable under section 39A (1) DDA, which carries a maximum period of five years imprisonment and nine strokes of the whip. The minimum sentence allowed by law is imprisonment for two years and three strokes of the whip. [4] To bring home the charge against accused, prosecution has to prove beyond reasonable doubt that accused was in possession of the drugs; he had knowledge of the existence and nature of the drugs found on him and the drugs found on him is scheduled as dangerous drugs in the First Schedule to the DDA. [5] As for the last ingredient of the offence, it is confirmed beyond doubt by the Science Officer with Department of Chemistry, Malaysia, in her laboratory report P9, dated 10.10.2019 that she had examined the substance sent to her and verified it to be clear crystals containing 9.18 gm Methamphetamine. The report prepared by her is unrefuted by the accused via cross-examination or by another expert, thus its contents remains intact and stands to proof beyond reasonable doubt that the substance sent for chemical analysis is methamphetamine, listed in the First Schedule of DDA, weighing 9.18 grams. It is also subject matter of the charge against accused. [6] At conclusion of trial, the magistrate has considered all the evidence adduced before the court and decided the prosecution has proved its case against accused beyond reasonable doubt. Cautiously, she has also found the accused has been unsuccessful in raising a reasonable doubt on the case of prosecution in order to earn an acquittal. (See: section 173 (m) (i) and (ii) of the Criminal Procedure Code (CPC/Act 593). Consequently, accused was found guilty of the offence charged, he was convicted on the said offence and sentenced to four years imprisonment and three strokes of the whip. Against that decision, he has appealed to this court via leave from the Court of Appeal, as the matter originated at the magistrate court, pursuant to section 50 (2) of the Courts of Judicature Act 1964 (Act 91). Appeal [7] His appeal is anchored on the following grounds: • He was not in possession of the 9.18 gm of Methamphetamine. • The chain of evidence involved when handling the impugned drugs was broken. Specifically, investigation officer (IO) of the case, SP8 did not mark the small plastic packets containing the impugned drugs, when it was handed over to him by the raiding officer (RO), SP3. • One Nurul Ain was not called as prosecution witness, since she was supposed to have come to the hotel room to collect the sling bag containing the impugned drugs from SP2. With that, there has been a gap in the case of prosecution and if called, a reasonable doubt could have been raised. [8] In the course of trial, there were two opposing versions as to the location where the impugned drugs were found. The case of prosecution is that it was found in a sling bag, slung on the shoulder of accused. Inside it, there were drugs together with other paraphernalia, viz. a lighter; modified glass bottle; a weighing scale/tool; and cash amounting to RM1140.00. Tellingly, identity card (IC) of the accused was also found in a smaller bag kept inside the sling bag. This version is supported by testimony of the raiding team comprising SP3 and SP7; as well as SP4 who was co-arrested with the accused but charged and prosecuted separately. The opposing version by the accused is that, at the time of raid and arrest, the sling bag containing the impugned drugs belongs to SP2 and was inside a drawer in the hotel room. Thus, for all intents and purposes, he has alienated himself away from the impugned drugs. [9] In sum total, arguments were advanced - as to who was the actual person in possession of the sling bag containing the impugned drugs at the material time of raid; location of the bag; broken chain of evidence as the seized drugs were not marked by the IO after receiving it from SP3; credibility of witnesses who had testified; and finally, existence of one Nurul Ain at the hotel room. The issues raised are elaborated below. Findings and conclusion [10] First up, issue on the sling bag found on shoulder of accused as testified by SP3 and SP4. Accused had denied it, and testified he had seen SP2 with that bag before. He has refuted that his IC was found inside the bag, but it was in a card holder in his trouser pocket which was taken out by the police. SP2 on the other end has testified he is a friend of the accused, had booked the hotel room at Sayong Resort for that day on the request of accused and waited for the accused to hand over the access card. Despite intense cross-examination, his testimony turned out uncontroverted. With that, it is a proven fact, accused had stayed in the hotel room at the material time when the raid took place. [11] SP2 was also able to identify the bag which was found by the RO slung on the shoulder of accused. SP2 confirmed, the sling bag was with the accused in that manner, when he met him to hand over the access card. Despite cross-examination, that the sling bag was an ordinary one; commonly found in the market with no exceptional features he has remained persistent, consistent and positive on identification of the bag which was with the accused. With SP2’s testimony, assertion by accused that the sling bag belonged to him is displaced. Additionally, assumption by defence that SP2 had deliberately distanced himself from the said bag in order to trap the accused and to save his own skin, fell like a pack of cards. Cross-examination, which serves as a mode to test the veracity and accuracy of a witness’s testimony and his credibility, applies with equal force to SP2. His status as a witness of fact pursuant to section 60(1) (a) of the Evidence Act 1950 (EA/Act 56), is fortified by his unwavering testimony in court. On that score, and in the absence of any contradiction or element of inherent improbability, evidence by SP2 on the fact in issue is correctly accepted by the trial magistrate. (See: PP v Mohamed Ali (1962) MLJ 287). [12] Testimony of SP2 has been viewed concomitantly by the magistrate with testimony of the RO, SP3 and SP7, Sergeant Ismail bin Ahmed who had positively testified, during the raid, the sling bag was found on the accused. He had also confirmed, the said bag was tagged subsequently and tendered in court as exhibit P3A. Thus, on all fours there is credible evidence free from reasonable doubt, that accused who was in the hotel room with SP4, was found in physical possession of the sling bag P3A containing the impugned drugs P7C. It was not found in isolation but with personal effects of the accused, which is his IC together with various paraphernalia, as referred to above. Inferentially, the impugned drugs were ready for use, as it was found in small plastic packets. There was also a cash amount of RM1140.00 found. [13] Further, there is also the telling testimony of SP4. He has confirmed the said sling bag was worn by the accused. It is also his evidence, he was arrested together with the accused, but the charge against him was for a different set of drugs also found in his physical possession. To that offence charged, he has admitted to it, and adequately dealt with by the law. He is not an accomplice, as he did not participate in the crime with the accused, but found separately with different set of drugs, albeit at the same place. (See: Davies v DPP (1954) AC 378; Goh Khok Phiong v Regina (1954) MLJ 223). His testimony in court remained unshaken after cross-examination. It is also corroborated in material particulars by the testimony of SP3 and SP7. Since, he has incurred wrath of the law, he cannot be considered to have an ulterior motive to save his skin. He has merely testified on what he saw happening on the day of raid and arrest including the manner in which the accused was found with the sling bag containing the impugned drugs when he was arrested. Thus, his testimony falls neatly within section 60(1)(a) EA, which has remained uncontroverted. In sum total, with the testimony of SP2, SP3, SP4 and SP7, denial by the accused that he was not in possession of the sling bag containing the impugned drugs and his IC turned out to be a concocted afterthought story in order to escape criminal liability. [14] On the presence of Nurul Ain, it is the testimony of police witnesses, SP3, SP7 and SP8, that she only appeared at the hotel room after the raid. She had knocked the door to enter but was disallowed. Thus, she was nowhere close to the impugned drugs, found on the accused and SP4 separately. There was a body search conducted on her so as to complete the process of investigation, but it had turned out, nothing incriminating was found on her. (See: content of section 17 CPC). Considering the stark fact that she was only at the locus in quo after the raid, even if she is called as witness, she would not assist the prosecution’s unfolding of narrative. Moreover, pursuant to section 136 (1) EA, the court shall only admit evidence if it thinks that the fact, if proved, would be relevant and not otherwise. In the case of Nurul Ain, premised on the sequence of events as elaborated by the police witnesses, she would be unable to testify on the matters of fact under inquiry (see: section 3 EA, on the interpretation of the word “evidence”). [15] Another witness called by the accused is his wife, SD2. Surreptitiously, in order to support his claim that the sling bag containing the impugned drugs was allegedly found in the drawer inside the hotel room; that it belongs to SP2; and to be collected by Nurul Ain; she has testified Nurul Ain had telephoned her to inform, her husband, the accused was arrested when she went to the resort to pick up the sling bag which belongs to SP2. Her version is obviously contrary to that of the police witnesses, who had pin-pointed positively as to her presence only after the raid and arrest of the accused and SP4. The magistrate has cautiously combed through SD2’s testimony and concluded it to be insignificant, simply because she was not there at the scene of crime, thus does not fit in section 60 (1) (a) EA, as she did not see what happened on the day of raid and arrest of her husband. What she has heard from Nurul Ain via telephone, is hearsay and lacks the value of testimonial evidence. As wife of the accused, she is also an interested witness, who would want to save her husband from criminal liability. In fact, she agreed during cross-examination by the deputy public prosecutor (DPP) that she wanted to save her husband from being incarcerated. In the realm of the law of evidence, testimony of an interested witness shall not be disbelieved unless there is compelling reason to do so. It is apparent, SD2’s testimony runs contrary to section 60(1) (a) EA, since she merely reported to the court on the telephone conversation which purportedly took place between her and Nurul Ain, on which she cannot be cross-examined further on truth of the statement made by the caller, Nurul Ain. Save for information on the arrest of her husband, the accused, it is dubious for Nurul Ain to inform SD2 that she went to the resort to collect the sling bag from SP2, when the alleged transaction is not even established to be known to SD2. It only goes to support the concocted defence of accused who has attempted to alienate himself from the sling bag containing the impugned drugs. He has dragged his wife to court to support his concocted story. If the said story is not concocted, why is Nurul Ain not called as his witness to support his defence. He cannot complain; the prosecution did not offer her as a witness for him to call. However, there is also no iota of evidence demonstrating a police statement was in fact recorded from Nurul Ain, before the prosecution attempts to offer her as witness to the defence. Although in law, the accused is not required to prove his defence but only to raise a reasonable doubt on the case of prosecution, but he is at liberty to support his defence, if the explanation offered by him is to negate criminal liability, which would have the effect of raising a reasonable doubt on the case of prosecution, especially so when a complete case of physical possession of drugs has been made out by the prosecution against him. (See: Choo Chang Teik v PP (1991) 1 CLJ (Rep) 54). As opposed to SD2, Nurul Ain is in a better position to support his defence. Bereft of Nurul Ain’s testimony, case of the prosecution is not dislodged, but proven beyond reasonable doubt. (See: PP v Ling Tee Huah (1982) 2 MLJ 324). The other appropriate finding arrived at by the magistrate is that premised on the body of evidence available, even if Nurul Ain is supposed to be present to pick up the drugs from SP2, the proven fact is, the accused was found in physical possession of the impugned drugs, which has remained unaltered from commencement of the case of prosecution. [16] On the chain of movement of the impugned drugs, SP8 had testified he had placed the nine packets of drugs into a plastic bag and labelled the said bag as SR2 although he did not label each packet of the drugs individually. On that score, to contend the offending exhibits could have been inappropriately handled and tempered is without basis in the light of SP3’s testimony who had picked it at the scene of crime, has diligently marked it and handed it over carefully to the IO. The IO need not do anything else but to send it to the chemist via SP5, later collected by SP6. Hence, the same drugs, picked up by SP3 from the accused, was analysed by the chemist and returned to the IO, who had then produced it in court as exhibit P7C. On that score, there is no evidence of temperance of the said impugned drugs, which is the subject matter of charge against accused. Therefore, non-marking by the IO do not in any way alter the character of the impugned drugs as offending exhibits. The chain of evidence has been proven beyond reasonable doubt by the prosecution. On that premise, it is factually correct for the magistrate to conclude there has been no break in the chain of evidence on the handling and movement of the impugned drugs. [17] In précis, the trial magistrate is both factually and legally correct to conclude the impugned drugs which was in a sling bag was in the physical possession of the accused at point of arrest as identified and elaborated by SP3, SP4, SP7 and SP8. As the said drugs were also found with his IC, it is correctly inferred the accused has knowledge he was in possession of dangerous drugs which is a crime, as he would have known the contents of the bag, when he placed his IC inside it. The obvious presence of the various paraphernalia would also be known to him with ease. The sling bag was fastened to his body at all material time. (See: PP v Denish Madhavan (2009) 2 CLJ 209). Ensuing from that, it is also factually and legally correct for the magistrate to have found that the prosecution has proven its case against the accused, beyond reasonable doubt. She arrived at that finding, after having considered defence of the accused, which includes his explanation and denial which is an afterthought to escape criminal liability. He was merely alienating himself from the impugned drugs by blaming SP2 and Nurul Ain, but the stark fact which is borne out by uncontroverted evidence is, the impugned drugs was found on him at time of arrest. [18] In a criminal appeal, this court exercising appellate jurisdiction would only interfere to correct a perverse finding of fact, not based on evidence or a finding which is contrary to law. In the present appeal, combing through the appeal record and premised on the body of evidence available, the trial magistrate has arrived at the requisite finding of fact and law premised on the evidence proffered in the case. She has arrived at her decision on issues of fact by assessing, weighing and for good reasons accepted or rejected the whole or any part of the evidence placed before her. In doing so, she has test it against relevant criteria. She has also considered the presence or absence of any motive that a witness may have in giving his evidence. She has also tested the evidence of witnesses against probabilities of the case. As trier of fact, she has undertaken critical analysis of the witnesses’ evidence in the case. Thus, in sum total there has been adequate judicial appreciation of evidence proffered in the case. (See: Lee Ing Chin & Ors v Gan Yook Chin & Anor (2003) 2 MLJ 97 CA). Therefore, I do not see any justifiable reason for appellate intervention as there is no error of law or fact committed by her. (See: section 307 (1) CPC). In arriving at this conclusion, I have adequately afforded proper weight and consideration on the views of the trial magistrate as to credibility of all witnesses called; right of the accused to benefit of any doubt and slowness of this court to disturb finding of fact arrived at by the trial magistrate who had the audio-visual advantage over witnesses who had testified before her in open court; maximum evaluation of the evidence proffered by the prosecution at the end of the case of prosecution; deepest consideration of the explanation and defence advanced by the accused that it has got an effect of a reasonable doubt on the case of prosecution, that the prosecution has proven its case against the accused beyond reasonable doubt. [19] However, on the sentence meted out by the magistrate, which is four years of imprisonment and three strokes of the whip, I take the position that the sentence of four years imprisonment is manifestly excessive considering the weight of drugs involved as well as the fact that upon arrest, the subsequent act of the accused to deal with the impugned drugs is crippled, and it was seized immediately so as to prevent it from distribution. Thus, to all intents and purposes the accused has only committed an offence of drugs possession simpliciter. On that premise, a minimum sentence of two years imprisonment allowed by the law is adequately sufficient. The three strokes of the whip, which is also the minimum allowed under the law is more than adequate to serve as deterrence to him and would be offenders who wishes to attempt such crimes. The accused would now be having second thoughts to repeat a similar criminal conduct and with the clanging of prison gates with him incarcerated, he would tend to ponder on his follies and reflect on his life and turn to honest living and lead a happy life with his family, which is what he wishes, as raised in his plea in mitigation. [20] Therefore, with no sufficient grounds for interfering with the finding of guilty and conviction by the trial magistrate, the appeal on conviction is dismissed pursuant to section 316 CPC but the sentence of imprisonment meted out is varied. The variation is sanctioned by section 316 (b) (ii) CPC. The sentence of whipping stays, as it is the minimum allowed under section 39A (1) DDA. For the record, at point of hearing and decision of this appeal, I was the Judicial Commissioner at the High Court, Taiping. Order of conviction affirmed. Sentence of imprisonment reduced. Sentence of whipping restored. Dated 22 May 2023 SGD Muniandy Kannyappan Judge, High Court. P Ravee of Messrs. P Ravee & Co, counsel for appellant/accused. DPP Azrul Faidz Abdul Razak for respondent/prosecution.