Shanmugam A/L Ramalingam & 2 Ors v Pendakwa Raya (K-05-103-04/2015)

[24] The 3rd appellant testified that he was a rubber tapper in the estate and was also working as a security guard therein. On the day in question he had followed the 2nd appellant to see the 2nd appellant’s cattles. Thereafter he had requested the 2nd appellant to go on a security patrol around the estate with him on a motorcycle. Upon arriving at the scene, 10 he heard someone screaming ‘polis!’. They then attempted to flee the scene but failed. The 3rd appellant denied being involved in any drug transaction. [25] The learned trial judge found the defence of the three appellants to be unbelievable and further found that it had failed to raise a reasonable doubt upon the prosecution’s case. The three appellants were consequently convicted of the offence preferred against them and each of them were correspondingly sentenced to suffer the death penalty. The Appeal [26] Cumulatively, the appellants posited the following grounds:

(i) no common intention to commit the crime;

(v) the evidence of the defence witness, SD-4 (Sethanbaran a/l Ramamoorthy) was not considered by the learned trial judge. Our Decision First issue – no common intention [27] Learned counsel for the 3rd appellant submitted that the 3rd appellant was merely riding pillion on the 2nd appellant’s motorcycle to the scene of crime. The 3rd appellant denied counting the flash money when the raid took place. The 3rd appellant did not meet any police officer on 27.5.2012 to sell drugs or discuss with the other appellants to sell drugs and did not either bring the drugs to the scene on 5.6.2012. The 3rd appellant also did not know the items brought by the 1st appellant as the items were wrapped in plastic packets in a plastic bag. Learned counsel submitted that on the facts it was wrong for the learned trial judge to find that the appellants had the common intention to commit the offence. 12 [28] The issue of common intention was extensively discussed by the learned trial judge. In his judgment at pp. 273 and 274 of Jilid 3 RR, the learned trial judge found the following: “[19] Pihak pendakwa bergantung kepada niat bersama di bawah seksyen 34 Kanun Keseksaan bagi membuktikan kes terhadap Tertuduh-Tertuduh kerana keterangan yang dikemukakan tidak menunjukkan kesemua Tertuduh melakukan kesemua perbuatan tersebut secara bersama. Tertuduh Ketiga terlibat di dalam kes ini pada hari kejadian sahaja. Tertuduh Ketiga tidak terlibat bersama Tertuduh Pertama dan Kedua apabila Tertuduh Pertama dan Tertuduh Kedua berjumpa SP3. Keterangan yang dikemukakan juga menunjukkan Tertuduh Kedua yang berunding dengan SP3 untuk jual beli dadah tersebut. Pada hari kejadian tersebut Tertuduh Ketiga datang bersama Tertuduh Kedua ke tempat kejadian. [20] Untuk membuktikan niat bersama ini pihak pendakwa perlu membuktikan terdapat pelan yang diatur awal (pre-arranged plan) oleh Tertuduh-tertuduh untuk melakukan kesalahan ini (lihat Mahbob Shah v King Emperor [1945] LR 72). Sesuatu Mahkamah boleh membuat penilaian fakta sama ada terdapat niat bersama tersebut (Krishna Rao Gurumurthi v PP and Another Appeal [2009] 2 CLJ 603). Berdasarkan keterangan yang dikemukakan oleh saksi-saksi pendakwa saya dapati telah terdapat ‘pre-arranged plan’ untuk melakukan kesalahan ini di antara Tertuduh-tertuduh dan kedatangan Tertuduh Kedua bersama Tertuduh Ketiga ke tempat kejadian tersebut adalah bagi meneruskan ‘pre-arranged plan’ tersebut. Kedatangan Tertuduh Pertama membawa dadah berbahaya ke tempat kejadian juga adalah bagi meneruskan ‘pre-arranged plan’ tersebut.” [29] We were completely with the learned trial judge’s assessment of the evidence and the ultimate findings made by him. There is nothing inherently improbable in the evidence of SP-3 that he saw the 3rd appellant counting the flash money soon after it was handed to the 2nd appellant by D/Corp. Johari. Hence his evidence should be accepted. The 3 rd 13 appellant apparently knew what the issue was when the 2nd appellant insisted upon seeing and counting the money purportedly for the purchase of the said drugs by SP-3. [30] The existence of a common intention is a question of fact to be proved mainly as a matter of inference from the surrounding circumstances of the case. It pre-supposes prior concert which requires a pre-arranged plan of the accused participating in an offence and such pre-arranged plan may develop on the spot or during the course of the commission of the offence. Equally, common intention can be formed in the course of committing the crime or on a spur of the moment. In our view in all the circumstances of the case, it could safely be inferred that the 3rd appellant had equally harboured the common intention to commit the offence and had participated in the commission of the offence when he came to the scene with the 2nd appellant and thereafter counting the flash money with the 2nd appellant. His mere denial that he did not count the money is no ground to negate the hard evidence stacked against him that he had participated in the commission of the offence. 14 [31] The common intention of the appellants to commit the offence were further made apparent by the fact that after the 2nd and 3rd appellants had completed counting the money, the 2nd appellant made a telephone call to someone, which was followed shortly after by the arrival of the 1st appellant with the said drugs to be sold to SP3. The second ground – SP-1’s written statement was not read aloud at the trial in breach of s.402B(6) of the CPC [32] Learned counsel for the 3rd appellant submitted that when SP-1 took the stand and testified, her written statement was consequently tendered and marked as exhibit P7. Thereafter, the learned Deputy Public Prosecutor (‘DPP’) embarked upon marking the relevant exhibits referred to by SP-1 in her written statement P7. However, the written statement P7 itself was never read aloud at the trial pursuant to s.402B(6) of the CPC. The said provision enacts that: “(6) So much of any such statement as is admitted in evidence by virtue of this section shall, unless the Court otherwise directs, be read aloud at the trial and where the Court so directs an account shall be given orally of so much of any statement as is not read aloud.” 15 [33] Learned counsel submitted that the failure to comply with the said statutory requirement is fatal as there is now nothing before the Court to show how the analysis of the incriminating exhibits were conducted and how the results as shown in SP-1’s chemist report (exhibit P2) were achieved. In anticipation of the learned DPP’s reply that the defence had consented to the admissibility and tendering of the said written statement and had cross examined SP-1 relating to the contents of her written statement, learned counsel relied on Mahdi Keramatvigarsagh Khodavirdi v PP [2015] 3 CLJ 336, to fortify his position, in particular, at held No. 2 where it was held that: “The fact that SP1 was cross examined could not derogate from the legal position of s.402B of the CPC. Any default, waiver or consent could not supersede the written law. Thus the inadmissible evidence of SP1 remained inadmissible notwithstanding any waiver or consent by the appellant”. [34] It is to be noted that the aforesaid authority relied by learned counsel is specifically on the non-compliance of the conditions to be complied under s.402B(2) of the CPC and not s.402B(6) of the same. In addition, the pertinent issue in Mahdi Keramatviyarsagh Khodavirdi v PP (‘Mahdi’s case’) (supra) is easily distinguishable from the case before us. In Mahdi’s case (supra) the written statement was not read aloud at the trial; it did not bear the signature of the witness; it did not contain a 16 declaration as required under subsection (2)(b) of s.402B; and it was not marked as an exhibit by the Court. The non-compliance of the conditions under the said provision was the reason given by the Court for remitting the said case to the High Court for retrial. However, in the case presently before us, all the conditions required under s.402B, in particular subsection (2) have been complied with. The only common issue is that PW1’s written statement was not read aloud at the trial. In that sense we opined that SP-1’s written statement (exhibit P7) was properly admitted albeit the written statement was not read aloud at the trial. [35] The learned DPP however, contended that the issue now raised by the appellants is a non-issue on account of the decision of the Federal Court in Fauzi Naim bin Muhamad Zaki v PP [Criminal Appeal No: 05- 253-11/2015 (K)] whereby the same issue was raised and was held by the Federal Court that the non-compliance with the provisions of subsection 402B(6) of the CPC did not render the whole proceeding a nullity and that the conditions to be complied with under the said subsection are only directory and not mandatory. 17 [36] However, in our view the latest decision of the Federal Court in Miss Rossarin Nuekaew v PP [Criminal Appeal No. 05-286-12/2015 (K)] is directly on point. In the above said case, the appellant’s learned counsel had raised as a ground of appeal pertinent issues on the application of s.402B of the CPC relating to the tendering of the written statement of the chemist by the prosecution. The issues for determination were:

(i) whether the written statement to be admitted in evidence in Court must be read aloud at the trial;

…………

We are of the view that the Court can use its discretion when it considers appropriate and with the concurrence of all parties, to dispense with the requirement that the witness statement must be read aloud. This is to avoid an unnecessary lengthy reading of such statement in Court and so as not to defeat the purpose of the insertion of section 402B into the CPC, which is to provide a speedy disposal of criminal cases…..” [38] On whether the conditions to be complied with under subsection 402B(6) is directory or mandatory, His Lordship stated: “25. Applying the test and the principle laid down in Hee Nyuk Fook, it is our judgment that the requirement to read aloud the witness statement under subsection 402B(6) of the CPC is only directory and not mandatory. In coming to this conclusion, we have considered the subject matter of the case which was in relation to the admissibility of evidence by way of witness statement of the chemist (‘SP1’). The witness statement was prepared by the maker by signing the witness statement to show that the statement made by the maker was based on truth and to his knowledge. The witness statement was duly served on the other party. We also noted from the Records of the Proceedings of the trial Court that the appellant had also agreed and had no objection to the tendering of the statement during the proceedings.

To further support our view that the application of subsection 402B(6) of the CPC is merely directory, we would refer to the provision of section 17A of the Interpretation Acts 1948 and 1967 [Act 388] [‘the Interpretation Acts’]. Section 17A of the Interpretation Acts provides: 19 “In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object”

We are of the considered view that based on the purpose or object of the insertion of the new section 402B into the CPC as shown through the explanatory statement of the Bill and the Hansard and applying the principle as laid down in section 17A of the Interpretation Acts, the requirement to read aloud the witness statement of the chemist (SP1) is not mandatory and it can be dispensed with if the Court finds it appropriate to do so and it is satisfied that no failure of justice will be occasioned by such dispensation”. [39] On whether the non-compliance of the conditions under subsection 402B(6) of the CPC is curable under s.422 of the CPC, the Federal Court ruled: “28. Section 422 of the CPC, inter alia, provides that any finding, sentence or order passed or made by a court of competent jurisdiction cannot be reversed or altered on the basis of an error, omission, irregularity, want of sanction, or improper admission or rejection of evidence unless it had occasioned a failure of justice. 29……..

We are of the view even assuming that the witness statement was improperly admitted due to the omission of reading the statement aloud during the trial, it nevertheless had not occasioned a failure of justice. Our view is fortified by the argument that the witness statement of SP1 contained a declaration and was signed by SP1. The statement was tendered with the agreement of the appellant during the proceedings. The defence had the opportunity to challenge SP’s evidence and SP1 was under oath at all times. The procedural non-compliance of subsection 402B(6) of the CPC is merely an irregularity and not an illegality and is curable under section 422 of the CPC. The appellant cannot be said in the circumstances of the case to have been denied a fair trial”. 20 [40] So much for the law. It is now settled. Hence, we were of the view that SP1’s written statement was properly admitted under s.402B of the CPC on account that SP1 had signed the written statement; it contained SP1’s declaration that the statement is true to the best of her knowledge and belief; and the appellant had no objection and consented during the proceeding for the written statement to be tendered in Court and marked as exhibit P7, evinced at p.12, Jilid 1, RR. The only non-compliance with s.402B of the CPC was that the written statement was not read aloud at the trial, in breach of subsection 402B(6) of the CPC. However, as decided in Miss Rossarin Nuekaew v PP (supra), the said provision is only directory and its non-compliance is merely an irregularity and not an illegality and henceforth curable under s.422 of the CPC. The appellant had the opportunity to challenge SP1’s evidence and SP1 was in fact cross-examined intensively by learned counsels for the appellants. In such event the appellant cannot be said to have been denied a fair trial in all the circumstances of the case. Hence, we found the ground of appeal grounded upon this issue to be of no merit. 21 The third ground – the nature of the said drugs, whether it was Heroin or Diaceptylmorphines and the description relating to the colour of the said drugs [41] Learned counsel for the 3rd appellant submitted that when SP1 was cross-examined on the nature of the drugs, SP1 answered the drugs that was identified following her analysis according to the computer printout was Diacetylmorphines and not Heroin (at p.21, Jilid 1, RR). She then explained that Diacetylmorphines is the technical or international term for Heroin. Learned counsel, however, submitted that SP1 did not clarify whether there is any explanation for Diacetylmorphines in the DDA. SP1 did not also clarify whether Diaceptylmorphines is listed in the DDA. In fact Diacetylmorphines is not listed in the First Schedule of the DDA. It was thus further submitted that SP1’s testimony had created doubts pertaining to the nature of the said drugs and as such, it must be resolved in favour of the appellants. [42] SP1 had explained in her testimony that Diaceptylmorphines is the technical or international term for Heroin. Only Malaysia used the term ‘Heroin’ in its drug laws (at p.21, 22, Jilid 1, RR). The learned trial judge had accepted the explanation given by SP1. The burden is now thrusted upon the appellants to procure its own expert evidence if they are 22 challenging SP1’s testimony in respect of the said terms or if they are suggesting that Diaceptylmorphines and Heroin are two distinct types of drugs. However, none were forthcoming from the appellants. Hence, in our view this has become a non-issue in the absence of any evidence to the contrary that Diaceptylmorphines and Heroin are two distinct drugs. [43] The ruling by His Lordship Ajaib Singh J in PP v Ong Tee [1980] 1 LNS 217 is most pertinent and directly on point. It had sufficiently answered learned counsel’s contention on the issue. At p. 409, His Lordship stated: “The position is quite different in the present case before me. Heroin is not technically defined in the Dangerous Drug Ordinance nor is it now in the Dangerous Drugs Act 1952 (Revised – 1980). It had a somewhat technical definition at one time until the First Schedule to the Dangerous Drugs Ordinance was amended on February 18, 1971 by the Emergency (Essential Powers) Ordinance No. 82 of 1971. Before the amendment heroin was listed in the First Schedule in item 11 as ‘Diacetylmorphine (commonly known as diamorphine or heroin) and the other esters of morphine, and their respective salts’. After the amendment it is now just plain heroin as one of the dangerous drugs listed in the First Schedule unlike cannabis or raw opium for example which have technical definitions apart from merely being listed as cannabis and raw opium in the First Schedule. In the present case the chemist’s report states that the chemist had analysed the 1.25 grammes of the light brown powder and that he had found it to contain 0.47 grammes of heroin. This in my view was sufficient and there was no deed to state further in the report that the heroin as found came within the definition of the Dangerous Drugs Ordinance. Heroin is fairly well-known and it is listed as a dangerous drug. Therefore in the absence of any technical definition of heroin in the Dangerous Drugs Ordinance the chemist report stating that after analysis the chemist had 23 found heroin in the powder without stating that it came within the definition of heroin under the Dangerous Drugs Ordinance was not fatal but was sufficient for the purpose of proving that the light brown powder found in possession of the respondent contained a dangerous drug namely heroin to the extent of 0.47 grammes”. [44] Learned counsel for the 2nd appellant added that SP-1 in her report exhibit P2 stated that the incriminating exhibit (drugs) were yellow (kuning) in colour whereas the investigating officer, SP-6, stated that the said exhibits were coloured orange. The photographs also showed that the exhibits were orange in colour. SP-6 further admitted that he had no explanation for the difference in the said description of the colour of the exhibits. Learned counsel further submitted that the learned trial judge had failed to consider this apparent discrepancies in the testimonies of SP1 and SP-6. [45] We were of the view that the discrepancies in the description of the colour of the drugs is a matter of one’s perception. SP1 perceived it as yellow in colour whereas SP-6 saw it as orange in colour. None is contradicting each other because it concerned one’s perception. Hence, SP-6 was correct when he said that he cannot explain the discrepancy between what he saw and what was perceived by SP-1. It is beyond him to explain why SP-1 perceived it as yellow in colour. Nevertheless such 24 differential perceptions is not enough to create a reasonable doubt upon the prosecution’s case, particularly in respect of the identity of the said drugs. What is of real substance is whether the said drugs seized by SP- 4 were the same drugs that was sent to the chemist for analysis and finally produced in evidence in Court, the test applied in Gunalan Ramachandran v PP [2004] 4 CLJ 551. Hence, it envisages a situation where it warrants a scrutiny of whether there is a break in the movement or the handling or the custody of the said drugs which tantamount to a break in the chain of evidence as postulated by the Federal Court in Lew Wai Loon v PP [2014] 3 CLJ 649. [46] The evidence showed that SP-4 had effected the seizure of the said drugs in plastic packets exhibits P10, P11 and P12 and the plastic bag exhibit P9. Thereafter the exhibits were handed over to the investigating officer, SP-6, who kept the same in his locked kabinet besi in his office. Later still, SP-6 handed over the said exhibits to SP-2 (Insp. Mohd. Zulhafiz bin Zainudin) to be delivered to the chemist, SP-1, for analysis. Upon completion of her analysis, SP-1 handed over the said exhibits back to SP-2 and SP-2 further delivered the said exhibits to SP-6 on the same day, whereupon SP-6 proceeded to have it registered and stored in the Stor Barang Kes for safe keeping pending the disposal of the hearing of 25 the charge against the appellants. The said exhibits were finally tendered in evidence in Court through SP-1 and marked as exhibits P10, P11 and P12. In the course of the trial, these witnesses (SP-1, SP-2, SP-4 and SP-6) had positively identified the said drug exhibits as the same drug exhibits that were seized by SP-4 and later in the course of investigation had passed through the hands of SP-6, SP-2, SP-1 and finally found its way in Court. Each stage of the handing over or delivery of the drug exhibits to the respective witnesses until its production in Court were also properly documented. The said documents were also positively identified by the respective witnesses. [47] There was no challenge in respect of the movements, handling and custody of the said exhibits enumerated above. In the event, we harboured no doubt at all that the drug exhibits that were tendered in evidence in Court were the same drug exhibits that were seized by SP-4 at the scene of the crime notwithstanding SP-1’s perception that the said drug exhibits were yellow in colour or SP-6’s perception that the said drugs exhibits were coloured in orange. Verily, we opined that this ground of appeal in essence, has no merit at all. 26 The fourth ground – the failure to produce the appellants’ handphone and call logs. [48] Learned counsel for the 1st appellant submitted that SP-3 had communicated through his handphone with the 2nd appellant at least twice (on 27.5.2012 and 5.6.2012) and the 2nd appellant had also purportedly telephoned the 1st appellant on 5.6.2012 prior to the ambush by PW4’s team. However, not a single handphone was recovered from any of the appellants when the facts adduced showed that the 1st and the 2nd appellants had no opportunity to dispose of their handphones prior to their arrest. In the event, not a single handphone was tendered in Court. SP- 3’s handphone was also not seized nor investigated to confirm that he had made such telephone calls to the 2nd appellant in the course of the sale and purchase transaction of the drugs. The investigating officer also did not investigate the telephone number (019-4243615) given by SP-5 to SP- 3 in order for SP-3 to contact the alleged drug trafficker (Annai/the 2nd appellant). [49] Hence, Iearned counsel submitted that the prosecution’s failure to tender the handphones would warrant the invocation of the adverse inference rule under s.114(g) of the Evidence Act, 1950, to operate against the prosecution. 27 [50] We reckoned that the defence’s insistence on the production of the handphones, call logs, bills, etc. is for the purpose of corroborating SP-3’s evidence of his conversation and meetings with the 2nd appellant. [51] We were of the view that the evidential value of the existence and tendering in evidence of the handphones or telephone bills or call logs is only corroborative in nature. The substantive evidence must come from the oral testimonies of the principal witnesses involved in the case where its veracity, as a matter of course, had always been subjected to the test and vagaries of cross-examination and probabilities of the case in tandem with the entire evidence adduced during the trial. [52] SP-3, the principal witness for the prosecution herein emerged unscathed from the intensive and most thorough cross-examination mounted by the defence. He stated in very certain terms of his first meeting with the 2nd appellant resulting from the telephone call he made from the telephone number (019-4243615) given to him by SP-5. SP-5 confirmed he gave the said number to SP-3. This meeting with the 2nd appellant is obviously consistent with the sequence of events narrated by SP-3 that he had contacted the 2nd appellant through the handphone and later arranged to have a meeting with him. 28 [53] It was also SP-3’s testimony that he had received a telephone call from the 2nd appellant on 5.6.2012 indicating that he had the drugs with him and SP-3 could take delivery of the drugs at about 7.30 p.m. the same evening in an oil palm estate at Kampong Sungai Para, Bedong, Kuala Muda. What subsequently happened that led to the arrest of the three appellants and the seizure of the said drugs enumerated at length in paras. 11, 12, 13, 14, 15 and 16 above is again consistent with the testimony of SP-3 and the position held by the prosecution that there was a prior arrangement between SP-3 and the 2nd appellant for the sale and purchase and subsequently for the delivery of the said drugs. The arrangement materialised when the 1st appellant brought the drugs after the flash money was handed over to the 2nd appellant and the 2nd and 3rd appellants had counted the moneys. [54] It is apparent that SP-3’s evidence of the telephone call from the 2nd appellant in respect of the said delivery of the drugs is well supported by the evidence of the sequence of events that took place at the crime scene. [55] On the facts, we opined that there is no need for further corroborative evidence to support SP-3’s testimony. There is equally no need to produce the handphones or call logs or telephone bills or 29 recordings of conversation between SP-3 and the 2nd appellant or between the 2nd appellant and the 1st appellant as corroborative evidence. Hence there is no plausible reason to invoke the adverse inference rule to operate adversely against the prosecution. [56] In addition we opined that the nature of the case herein does not fall within that category of cases where the nature of the testimony of a single witness itself requires that corroboration should be insisted upon. Any such requirement will conflict with s.134 of the Evidence Act, 1950, which provides that no particular number of witnesses shall in any case be required for the proof of any fact, meaning that the testimony of a single witness, if believed, is sufficient to establish any fact – see Balachandran v PP [2005] 1 CLJ 85. We have no hesitation in agreeing with the finding of the learned trial judge that SP-3 is a credible witness and his evidence ought be accepted without more. The fifth ground – non-consideration the evidence of SD-4 [57] Learned counsel for the 1st appellant contended that the 1st appellant was a security guard at the said estate and was on guard duty at the material time. SD-4, the contractor in charge of the security of the 30 estate at the material time, confirmed that the 1st appellant was his employee, employed as a security guard, and at the material time he was on duty/working. Learned counsel complained that the evidence of SD-4 was not evaluated and considered by the learned trial judge. Learned counsel further submitted that this omission was fatal. [58] We were in agreement with the submission that the learned trial judge did not evaluate nor consider SD-4’s testimony. However, it is trite that an appeal is a continuation of proceedings by way of rehearing and a court sitting in appellate capacity is empowered to review or re-evaluate all the evidence available as adduced before it. [59] The evidence stacked against the appellants is overwhelming. In our view this case is a fit and proper case for us to invoke the powers under s.60 of the Courts of Judicature Act, 1964, to evaluate and consider the testimony of SD-4 in the light of the entire evidence adduced before the trial, bearing always the learned trial judge’s omission to do so. 31 [60] Having done so, we were of the view that had the evidence of SD-4 been considered by the learned trial judge, it would not have made any difference on the outcome of the proceedings on account that the evidence of SD-4 is wholly irrelevant. SD-4 was not at the scene at the time of the transaction and when the ambush was made by SP-3. He was nowhere there to throw some light as to what had actually taken place at the crime scene. Clearly, SD-4’s evidence had failed to raise any doubt to negate the participation of the 1st appellant nor the two others in the commission of the offence. Indeed, SD-4’s evidence has no leg to stand on in the light of the uncontroverted testimonies of SP-3 and SP-4. Conclusion [61] For all the reasons given, we dismissed the appeals by all the appellants and affirmed the convictions and sentences handed down upon them by the learned trial judge. Dated: 27th November 2017 ( AHMADI HAJI ASNAWI ) Judge Court of Appeal, Malaysia 32 Counsel Solicitors:- For the 1st. Appellant: Geethan Ram Messrs Geethan Ram For the 2nd Appellant: Hasshahari Johar Tetuan Hasshahari & Partners. For the 3rd Appellant: K.A. Ramu Tetuan K.A. Ramu Vasanthi & Associates. For the Respondent: Ahmad Sazilee bin Abd. Khairi Timbalan Pendakwa Raya Jabatan Peguam Negara 62100 Putrajaya