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IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. R-05-15-01/2015

BETWEEN

AKBAR ALI BIN ABDUL RAHMAN …APPELLANT

AND

PUBLIC PROSECUTOR …RESPONDENT

(In the Matter of the High Court of Malaya

At Kangar

Criminal Trial No. 45A-01-02/2014

Between

Public Prosecutor

And

Akbar Ali Bin Abdul Rahman)

CORAM:

AZIAH BINTI ALI, JCA

ZAKARIA BIN SAM, JCA

AHMADI BIN HAJI ASNAWI, JCA

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JUDGMENT

[1] The appellant was convicted and sentenced to suffer the death

penalty upon the following charge:

“Bahawa kamu pada 12 Oktober 2013 jam lebih kurang 9.00 malam di tepi

jalan berhadapan Kedai Celcom, Kompleks Tok Arau, Arau, di dalam

Negeri Perlis, telah didapati mengedar dadah berbahaya iaitu cannabis

seberat 9401.8 gram dan dengan yang demikian kamu telah melakukan

kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya, 1952 yang

boleh dihukum di bawah seksyen 39B(2) Akta yang sama”.

[2] The appeal before us was in respect of the said conviction and

sentence.

[3] We found no merit in the appeal and dismissed the appeal without

more. We now give our grounds.

The Case for The Prosecution

[4] PW-3 (Detektif Koperal Mohd Dahalan bin Yunus) acted as the

agent provocateur in this case. On 10.10.2013, PW-3, who at the material

time was attached with Jabatan Siasatan Jenayah Narkotik (‘JSJN’) Bukit

Aman, had received a call from Detektif Sarjan Salim (‘DSS’) from JSJN

Ibu Pejabat Polis Kontinjen Perlis (‘IPK Perlis’) relating to an information

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received by DSS from his informer about drug trafficking activities

involving a Malay male known by his moniker ‘Li’. DSS gave the phone

number ‘019-5277640’ said to be used by ‘Li’ to PW-3 and instructed him

to contact ‘Li’ and make an arrangement for the purchase of 10

kilogrammes of ‘ganja’.

[5] At about 7.15 p.m. the same day, PW-3 called the said number. The

call was unanswered. However, at about 7.50 p.m., PW-3 received a call

from the said number. PW-3 assumed an undercover name of ‘Abang Zan’

and the caller introduced himself as ‘Li’ during the conversation. PW-3

told ‘Li’ that he got his number from his friend ‘Man’ and enquired about

purchasing 10 kilogrammes of ‘ganja’ from ‘Li’. The purchase price was

agreed at RM1,600.00 per kilogram. PW-3 was told to call him when he is

ready with the purchase money within a day or two.

[6] At about 8.40 p.m. the same day, PW-3 related his conversation with

Li to DSS and ASP Meor. PW-3 was asked to meet ASP Mior at his office

at IPK Perlis the next morning. PW-3 met ASP Meor at his office at about

11.30 a.m. on 11.10.2013. Before that at about 10.05 a.m., PW-3 had

again talked to ‘Li’ to confirm about the availability of the said ‘ganja’.

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[7] PW-3 next called ‘Li’ on 12.10.2013 at about 11.35 a.m. but his call

went unanswered. At about 12.20 p.m., PW-3 received a ‘SMS’ from the

said number, indicating in part: “Insyallah malam ni pukul 8.00 aku p kat

hang lagi elok di Kuala Perlis”. PW-3 forwarded the said ‘SMS’ to ASP

Meor and DSS.

[8] A briefing session was held at about 3.00 p.m. on 12.10.2013 at IPK

Perlis by ASP Meor attended by, among others, PW-2 (Inspektor Abdul

Shukor bin Yusoff), PW-3, PW-4 (Detektif Koperal Mohd Khairizan bin

Baharudin) and PW-5 (Detektif Koperal Azhar bin Lazim). PW-4 was to

accompany PW-3 as the ‘moneyman’ during the transaction. PW-2 was

assigned as head of the raiding team. PW-5 was a member of a raiding

team.

[9] On the same day at about 7.00 p.m. PW-3 received a call from the

said number. He left it unanswered. At about 8.15 p.m. he returned the

call and talked to ‘Li’. A meeting point to transact the ‘ganja’ was agreed

at Restoran Yasmeen, Kompleks Tok Arau.

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[10] PW-3 and PW-4 arrived at the restaurant at about 8.30 p.m.. At

about 8.45 p.m. PW-3 received a call from ‘Li’ informing him of his arrival

at the restaurant, wearing a blue ‘kopiah’ (skullcap) and blue shirt. PW-3

saw and identified ‘Li’ in blue shirt and blue ‘kopiah’ and hailed him to his

table (herein after referred to as ‘the appellant’). PW-3 suggested that the

appellant had dinner but the appellant declined. Instead the appellant

asked PW-3 to follow him to his car. PW-3 said he will go alone as PW-4

have yet to finish his dinner. PW-3 followed the appellant to his car.

[11] Inside the car was a woman sitting at the front passenger seat and

three boys sitting at the back seat. The appellant told PW-3 that the drug

(referred to as “ikan” in their conversation) was inside the rear car-boot.

When PW-3 again asked whether he had the drug, the appellant ensured

him by knocking on the car-boot several times. PW-3 told the appellant

that he had left the money with PW-4. The appellant then told PW-3 to

wait at a tyre shop in front of the said restaurant. The appellant next

entered his car. Thereupon, PW-3 gave the agreed signal to the raiding

team by removing his skullcap and immediately left the place together with

PW-4 who was, at all times waiting at the restaurant.

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[12] Upon seeing the signal, PW-2 and his team members raided the car.

PW-2 introduced himself as a police officer and ordered the appellant who

was sitting at the driver’s seat to exit the car. A body search conducted

upon the appellant found nothing incriminating. The team members then

searched the car.

[13] Resulting from the search, PW-2 had found, at the spare-tyre

compartment inside the car-boot, a garment bag branded ‘DIACOPPER’

(Exhibit P18) containing a black plastic bag (Exhibit P19) containing 10

slabs of compressed dried plant materials (“10 ketulan mampat daun-

daun kering”) wrapped with transparent plastic tape. The appellant was

thereupon arrested and handcuffed.

[14] PW-2 took custody of the appellant and the incriminating exhibits.

[15] The appellant and other occupants of the car were taken to IPK

Perlis. The bag and the 10 slabs were marked with the letter ‘S’ and ‘S1

to S10’ respectively by PW-2 before they were handed over to the

investigating officer, PW-8 (Inspektor Mohammad Fairiz bin Nawi), on

13.10.2013 at about 12.45 a.m. PW-2 had also lodged a police report

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(exhibit P6) pertaining to the arrest of the appellant and the seizure of the

drugs evinced at p. 305, Jilid 2, Rekod Rayuan (‘RR’).

[16] PW-8 had also put his mark on the bag with the letter ‘F’ and the 10

slabs with letters ‘F1 to F10’. The exhibits were kept in a locked iron

cabinet inside PW-8’s room. The exhibits were taken out from the cabinet

on 13.10.2013 at about 2.30 p.m. for finger-print dusting process and

photo taking. The exhibits were again taken out from the cabinet on

14.10.2013 at about 8.00 a.m. for a media conference. The exhibits were

finally put in a sealed box marked ‘M’ by PW-8 and handed over to the

chemist on 14.10.2013 at about 12.18 p.m.

[17] The chemist, PW-1 (Puan Nur Izzati binti Suib) had analysed the ‘10

ketulan mampat bahan tumbuhan’ and found it to be cannabis within the

meaning of s.2 of the Dangerous Drugs Act, 1952 (‘DDA 1952’) (herein

after referred to as “the said drugs”) weighing 9401.8 grammes. Her report

is marked as exhibit P11, evinced at p.312, Jilid 2, RR.

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[18] The defence had raised the involvement of a person named Mohd

Adlin bin Abdul Rahman (‘Adlin’).

[19] PW-3 disagreed with the learned counsel’s suggestion that during

the briefing session conducted by ASP Meor on 12.10.2013 at 3.00 p.m.,

ASP Meor had informed the briefing about the arrest of Adlin on 1.10.2013

and the present operation were made pursuant to the said arrest. PW-3

testified that he was never informed about the involvement of Adlin, or

even of his existence.

[20] PW-2 as the raiding officer, also testified that he had no knowledge

about the existence and involvement of Adlin.

[21] However, PW-8 confirmed that the appellant had mentioned about

the involvement of Adlin. Based on the information given by the appellant,

PW-8 found that Adlin was arrested on 1.10.2013 for a drug-related

offence. PW-8 met Adlin on 12.11.2013 at Penjara Reman Pulau Pinang

and recorded his statement. In his statement Adlin denied any

involvement in the case as claimed by the appellant. PW-8 also testified

that he had failed to trace Adlin at his home address after his release.

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[22] At the end of the prosecution’s case, the learned trial judge had

considered the evidence of PW-2 and PW-8 and dismissed any

involvement of Adlin.

[23] The learned trial judge found that the prosecution had proven that

the ‘10 ketulan mampat’ were cannabis within the definition of s.2 of the

DDA, 1952 and there was no break in the chain of the movements,

custody and handling of the said cannabis. The cannabis analysed by

PW-1 and produced in court through PW-1 were the same cannabis

seized by PW-2 from the appellant’s motorcar at the scene of the crime.

[24] The learned trial judge also found PW-3 to be a credible witness.

He accepted the evidence of PW-3 who had identified the appellant as the

same person known as ‘Li’ with whom he had been dealing through the

phone for the drug transaction and the one he met at the restaurant. He

also accepted PW-3’s evidence that the appellant was the person who

had brought the drug and ensured him that the drug was inside the car-

boot. He thus concluded that the appellant indeed had possession of the

said drugs and he had committed an act of trafficking by delivering the

said drugs to PW-3 (‘perbuatan Tertuduh membawa dadah berbahaya

tersebut untuk diserahkan kepada SP3’’) within the ambit of s.2 of the

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DDA, 1952 (at para 14 and 15 of the Grounds of Judgment – at p. 256-

257, Jilid 2, RR).

[25] Having satisfied that the prosecution had established a prima facie

case, the learned trial judge ordered the appellant to enter his defence.

The Defence of The Appellant

[26] The appellant gave evidence on oath. In brevity, the appellant

testified that he was requested by his friend Adlin to deliver the said bag

to Adlin’s friend named ‘Abang Zan’.

[27] The appellant testified that on 2.10.2013, he had received a call from

Adlin asking for his help to bail him out. Adlin told the appellant that his

friend would call the appellant to discuss on how the bail money of

RM6,000.00 would be raised. The money raised would also be used to

settle Adlin’s debt to the appellant.

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[28] On 11.10.2013 at about 10.00 a.m. Adlin again called the appellant

and told him that his friend would pass to him something to be delivered

to Abang Zan at Arau, Perlis.

[29] On 12.10.2013 at about 10.00 a.m. the appellant received a call from

Adlin’s friend. The appellant then met Adlin’s friend beside a highway at

Batu Uban, Penang, on his way back home from work. Adlin’s friend

showed him a bag and put the bag at the spare-tyre compartment in the

rear car-boot. The appellant did not ask him the content of the bag.

However, the appellant did open the bag and saw the black plastic bag

but did not see its content. He explained that he did not see the content

of the plastic bag in order not to breach the trust placed upon him by Adlin.

He testified that it never crossed his mind that the said bag contained drug

as he had never been involved in any drug activity or that Adlin would

implicate him with such a horrible crime.

[30] The appellant went to Arau with his wife and children. He took his

family along as they had planned to do some ‘hari raya’ shopping. They

left home at about 6.00 p.m. and reached Arau at about 8.45 p.m. The

appellant thereupon called Abang Zan who was already waiting at

Restoran Yasmeen. He went to the restaurant and met Abang Zan. He

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parked his car in front of ‘kedai Celcom’ nearby the restaurant. His wife

and children were waiting inside the car. He did not bring the bag with him

as he wanted to know Abang Zan first. There was another man at the

table. He declined Abang Zan’s invitation for dinner as his family was

waiting and he was already late for Isyak prayer. When Abang Zan asked

him where is the ‘barang’, he went back to his car to get the bag. He went

alone. During cross-examination, he denied asking Abang Zan to follow

him to his car.

[31] Upon reaching the car, he entered and sat at a driver’s seat and

pushed a button to open the car-boot. While still inside the car, the

policemen raided the car. He was pull out of the car. The policemen

searched the car but nothing incriminating was found. He was handcuffed

and, together with his family, taken to Arau police station.

[32] The appellant came to know that the bag contained drugs only at

the police station. The bag was shown to him at the police station. He told

police about Adlin.

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[33] At the end of the defence case, the learned trial judge rejected the

appellant’s defence of an innocent carrier vis-à-vis the involvement of

Adlin. The learned trial judge found that the defence was unreasonable,

unbelievable and unacceptable.

[34] The learned trial judge opined that it is incredibly unbelievable for

Adlin to orchestrate the transaction while in detention and for the appellant

to simply agree to deliver the bag without knowing its content. The learned

trial judge found that the defence of the appellant had failed to cast a

reasonable doubt upon the prosecution’s case and thereby found the

appellant guilty and convicted him of the offence as proffered.

The Grounds of Appeal

[35] During the submissions, the learned counsel had canvassed the

following grounds of appeal:

I. No express affirmative finding of knowledge of the drugs by the

learned trial judge;

II. Failure of the prosecution to call, offer or tender Adlin’s statement

under s.112 of the Criminal Procedure Code (CPC);

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III. Failure by the learned trial judge to apply the Radhi’s Direction;

IV. Doubts as to whether the alleged drug transaction ever took place

on account that:

a. No call records or SMS adduced to corroborate the alleged

transaction;

b. The glaring discrepancies as to what had transpired on

12/10/2013;

V. Failure by the learned trial judge to appreciate the defence’s

case;

VI. The learned trial judge had misdirected himself in admitting

hearsay and inadmissible evidence, which was highly prejudicial

to the appellant;

VII. Non-production and/or suppression of CCTV recordings.

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Our Decision

Ground (I) – No express affirmative finding of knowledge of the

drugs by the learned trial judge

[36] Learned counsel submitted that that there was no credible and

corroborative evidence to show prior negotiation for drug transaction to

sustain the prosecution’s case of direct trafficking. As such, it was

incumbent on the trial judge’s to make an express and affirmative finding

of knowledge on the part of the appellant. However, nowhere in the trial

judge’s grounds of judgment did the learned trial judge make any express

affirmative finding that the appellant had the necessary knowledge of the

contents of the bag (exhibit P18) or in other words that the appellant was

in mens rea possession of the impugned drugs found in exhibit P18.

[37] It was further submitted that there was no shred of credible evidence

from which the appellant’s knowledge of the impugned drugs can be

inferred. There was no overt act on the part of the appellant to suggest

that he had the necessary knowledge of the contents of the bag. The

appellant never took out the bag from the spare-tyre compartment.

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[38] The learned DPP submitted that the prosecution did not depend on

the presumption under s.37(d) of the DDA 1952 but on direct evidence of

trafficking by way of ‘selling’ and ‘carrying’ within the ambit of the definition

of ‘trafficking’ under s.2 of the DDA 1952.

[39] Regarding possession, the learned trial judge, at the end of the

prosecution case, upon accepting the evidence of PW-3 that a drug

transaction had taken place between PW-3 and the appellant, had found

at pp. 256, 257, Vol. 2 RR, as follows :

“[14] Saya juga pertimbangkan keterangan sama ada identiti Li sebagai

orang yang membuat rundingan dan perbincangan jual beli dadah tersebut

melalui telefon adalah sama dengan Tertuduh. Walaupun benar Tertuduh

dan SP3 tidak pernah bertemu sebelum hari kejadian namun keterangan

SP3 menunjukkan dia telah mempastikan identiti Tertuduh sebagai orang

yang membawa dadah tersebut dan juga memastikan dadah berbahaya

tersebut berada di dalam kereta yang dipandu Tertuduh. Saya menerima

keterangan SP3 Tertuduh dan mendapati Li yang berunding dengan SP3

adalah Tertuduh.

[15] Pada akhir kes pendakwa ini saya dapati pihak pendakwa telah

mengemukakan keterangan yang membuktikan Tertuduh mempunyai

pemilikan ke atas dadah-dadah berbahaya yang menjadi perkara pokok

pertuduhan. Saya juga mendapati pihak pendakwa telah berjaya

membuktikan perbuatan Tertuduh membawa dadah berbahaya tersebut

untuk diserahkan kepada SP3. Perbuatan ini adalah perbuatan mengedar

dadah berbahaya tersebut seperti yang ditakrif di bawah seksyen 2 Akta

Dadah Berbahaya 1952.”

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[40] At the end of the defence case, the learned trial judge upon

dismissing the involvement of Adlin raised by the defence, concluded that

(at para 25, pp. 261, Vol.2, RR, of his Grounds of Judgment):

“[25] Saya berpuas hati bahawa Tertuduh telah mengadakan rundingan

dengan SP3 untuk menjual dadah dan berikutan dengan persetujuan jual

beli dadah tersebut Tertuduh datang menyerahkan dadah tersebut kepada

SP3. SP3 juga telah mempastikan Tertuduh benar-benar membawa dadah

kepadanya hasil dari rundingan jual beli dadah tersebut. Saya dapati

keterangan pembelaan Tertuduh tidak dapat menimbulkan keraguan yang

munasabah ke atas kes pendakwa bahawa Tertuduh tahu barang yang

dibawa untuk diserahkan kepada SP3 adalah dadah berbahaya jenis

cannabis seberat 9401.8 gram.”

[41] Based on the evidence before us, we had no reason to disagree with

the finding of the learned trial judge that “Li’ and the appellant is the same

person and there was a negotiation for a drug transaction between the

appellant and PW-3.

[42] We were satisfied that a reading of para 15 cited in para 39 above

indicated that the trial judge’s had expressly made the finding of

knowledge and direct trafficking. We found no reason to depart from the

trial judge’s finding. We were satisfied that the evidence were

overwhelmingly clear that there was a negotiation for a drug transaction

between PW-3 and the appellant as indicated by the phone

communication prior to the meeting between the two at the restaurant, and

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later leading to the discovery of the drugs inside the car. We were also

satisfied that PW-3 is a credible witness as was the finding of the learned

trial judge. As such, we found no reason to doubt PW-3’s testimony

relating to his telephone conversation with the appellant on the sale and

purchase of the said drugs, although no documentary evidence was

adduced to support such telephone conversation.

[43] It was our finding that the appellant had the custody, control and

knowledge of the impugned drugs acquired through prior negotiation for

the drug transaction and the subsequent meeting and discovery of the

drugs from the car boot driven by the appellant.

[44] We, therefore, agreed with the conclusion of the learned trial judge

that the prosecution had proved a prima facie case of ‘actual or mens rea

possession’ and ‘direct trafficking’ under s.2 of the DDA 1952 and at the

end of the defence’s case, the appellant had failed to raise a reasonable

doubt against the prosecution’s case. Though the words ‘actual or mens

rea possession’ were not used by the learned trial judge, that much is clear

from his Lordship’s judgment. We thus allude to the following passage

that appears in the case Chua Boon Hong v. PP [2011] MLJU 1332 :

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“[33] The second complaint centred on the failure of the learned JC to

sufficiently appreciate the defence case and the failure to consider whether

the defence of passive possession was available to the appellant. Now,

we have perused through the grounds of judgment of the learned JC and

we find that his Lordship had applied his mind to the evidence of the

prosecution as well as the defence. The learned JC stated in his grounds

of judgment that he was satisfied that the prosecution had proven a prima

facie case against the appellant at the end of the prosecution's case and

therefore he directed the appellant to enter his defence on all the three

charges. The learned JC too considered the issue of possession of the

sling bag containing the drugs at great length and concluded that the

appellant was in possession of the drugs as per the charges. And when

his Lordship invoked section 37(da)(xvi) of the DDA, he was satisfied that

possession had been proven. Although the learned JC did not use the

words "actual possession" or "mens rea possession", His Lordship had

these in mind and it is reflected in his judgment. We cannot find fault with

the style of the learned JC in writing his judgment. It is his own personal

style and we acknowledge it in this judgment. His Lordship Akhtar bin Tahir

JC (now Judge) addressed his mind to all the relevant issues and that is

what that matters (Nur Azmi So'aib v. Public Prosecutor [2011] 1 LNS

1135).”

Ground (II) and (vii) – Failure of the prosecution to call, offer Adlin or

tender Adlin’s 112 statement; and non-production and/or

suppression of CCTV recordings

[45] Learned counsel submitted that despite the fact that throughout the

case the appellant had strenuously maintained that he was delivering the

bag to Abang Zan at the request of Adlin, the prosecution had failed to call

Adlin or at least offer him to the defence.

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[46] It was further submitted that the learned trial judge had failed to draw

an adverse inference against the prosecution under s.114(g) of the

Evidence Act, 1950 for the failure to call this material witness or to tender

his s.112 statement recorded under the CPC.

[47] The learned trial judge in his judgment held that adverse inference

was not applicable against the prosecution as sufficient effort to trace Adlin

had been done.

[48] The learned trial judge also held that the failure by the prosecution

to produce evidence by Adlin did not create a gap in the prosecution case

as the evidence of PW-3, PW-4 and PW-2 were sufficient to prove the

ingredients of the charge.

[49] The learned DPP had pointed out that the s.112 statement of Adlin

was never referred to during the cross-examination of any of the

prosecution’s witnesses including PW-8, during whose testimony the

statement’s existence first came to surface. It was also pointed out that

there was no application made by the defence to produce the statement.

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[50] Under the circumstances, we found ourselves in agreement with His

Lordship’s findings on this point. We found no basis to rule that the failure

to produce the statement was tantamount to deliberate withholding of

evidence of a material witness by the prosecution to frustrate the defence.

A reference is hereby made to the case of Nanda Kumar Kunyikanan &

Anor v PP [2011] 8 CLJ 406, cited to us by the learned DPP, whereby

this Court had laid down as follows:

“[64] Under s. 114(g) of the Evidence Act 1950 the court may presume that

evidence which could be and is not produced would, if produced be

unfavourable to the person who withholds it. The usage of the word "may"

give the discretion to the court whether or not to invoke the adverse

inference to a given set of facts. It is not a mandatory inference.

[65] Since time immemorial, the courts are reluctant to draw an adverse

inference against the prosecution. The courts must be satisfied that:

(a) the witness that was not offered was a material witness;

(b) the prosecution purposely withhold evidence which it

possessed and which was always available; and

(c) what the prosecution did was done with an ulterior motive to

frustrate the defence.”

We found none of the above had any application to the appeal

presently before us. Hence, there is no ground to invoke the adverse

inference rule to operate adversely against the prosecution.

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[51] It was submitted that the non-production of the CCTV recording at

the restaurant which had been viewed by PW-8 during his investigation

amounted to conscious suppression of evidence by the prosecution that

must give rise to the presumption under s.114(g) of the Evidence Act 1950

and had created a gap in the prosecution case due to the material

contradictions in the prosecution witnesses’ testimonies on how the event

took place on the date of the arrest in particular whether the appellant went

alone to his car or together with PW-3.

[52] In the same vein, we held that the CCTV recording was

corroborative in nature and its non-production did not create a serious gap

in the narrative of the prosecution’s case. It was the evidence of PW-3

and PW-2 that both the appellant and PW-3 went to the car. The learned

trial judge was perfectly entitled to rely on the testimonies of PW-3 and

PW-2 unsupported by the CCTV recording to make a finding that PW-3

had followed the appellant to his car where the drugs were found. We

have no business to interfere with such legitimate exercise of powers.

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Ground (III) and (v) – Failure by the learned trial judge to administer

the Radhi Direction; and the failure by the learned trial judge to

appreciate the defence’s case

[53] Learned counsel submitted that despite distinct and uncontroverted

evidence proving the existence of Adlin, the learned trial had misdirected

himself in not administering the Radhi Direction.

[54] Learned counsel also submitted that the learned trial judge did not

judicially appreciate the defence when he appeared to have brushed it

aside, without due consideration, premised on the notion that the defence

cannot be believed and was a mere denial.

[55] However, we took note of the learned trial judge’s findings at the end

of the defence case where the trial judge had this to say regarding the

defence raised by the appellant, at pp. 266, 267, Vol. 2, RR:

“[23] Saya telah pertimbangkan pembelaan Tertuduh dan saya dapati

pembelaan Tertuduh ini tidak munasabah, tidak boleh dipercayai dan tidak

boleh diterima. Soal utama pembelaan Tertuduh adalah kewujudan Adlin

dan peranan yang telah dimainkan oleh Adlin.…

[24] Saya tidak dapat mempercayai bahawa Adlin mengatur segala-

galanya kerana adalah jelas pada masa itu Adlin sedang berada di dalam

tahanan. Keterangan pembelaan bahawa dia tidak mengetahui

kandungan beg yang kononnya diterima dari seseorang ketika di sebelum

datang ke Perlis tidak dapat dipercayai. Saya telah menerima keterangan

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SP3 yang menunjukkan terdapat rundingan jualbeli dadah dengan

seorang yang bernama Li dan saya dapati Li tersebut adalah Tertuduh.

Keterangan SP3 bahawa dia mempastikan dengan Tertuduh dadah telah

dibawa oleh Tertuduh di dalam kereta selepas bertemu Tertuduh di

restoran Yasmeen dan ketika berjalan ke arah kereta Tertuduh tidak

pernah dicabar melalui keterangan pembelaan Tertuduh. Keterangan ini

membuktikan Tertuduh adalah Li dan Tertuduh tahu apa yang dibawa

tersebut adalah dadah berbahaya. Jika benar Tertuduh menerima beg

mengandungi dadah tersebut dari seseorang dan tidak mengetahui

terdapat dadah di dalamnya Tertuduh akan mencabar keterangan SP3

bahawa dia mengesahkan kepada SP3 tentang dadah berbahaya yang

dibawa terdapat di dalam kereta tersebut melalui keterangan pembelaan.”

[56] With due respect to the learned counsel, from the passage above,

we found his criticisms on this issue unjustified. We have perused through

the grounds of judgment and found that his Lordship had applied his mind

and considered the evidence of the defence. We were satisfied that the

learned trial judge had meticulously considered the defence and had

adequately explained why he chose to disbelieve the evidence of the

defence. In addition, the above findings are findings of fact by the learned

trial judge. We were very mindful of our limitation sitting on an appellate

capacity and thereby adopted the approach that we would have no

business to mess up with such findings in the absence of a very

compelling reason to find otherwise. We found none of the same herein.

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Ground (iv) – Reasonable doubt as to whether the alleged drug

transaction ever took place

[57] Learned counsel had raised the following points as infirmities in

prosecution’s case that a drug transaction had taken place between PW-

3 and the appellant :

(i) failure by the prosecution to adduce the phone call and SMS

records of the mobile phones used by PW-3 and the appellant;

(ii) the glaring discrepancies as to what had transpired on

12.10.2013 i.e. (a) the time when PW-3 and the appellant met

at the restaurant. According to PW-2, PW-3 had arrived at the

restaurant at 8.35pm and the appellant arrived at at 9.00 p.m

; PW-4 said that the appellant arrived at 8.45 p.m ; PW-5 said

it was 8.00 p.m. ; and, PW3 himself said he arrived at 8.30 p.m

and he received a call by the appellant at 8.45 p.m ; and (b)

discrepancies about the events preceding the arrest i.e. the

whereabouts of PW-2 when the appellant was heading

towards the car from the restaurant. PW-2 said he had

followed and moved closer as the appellant was seen heading

towards the car. PW-3 however answered in the negative

26

when he was asked by learned counsel whether PW2 was

present when he was heading towards the car.

(iii) ASP Meor and Sarjan Salim were not called to testify in

relation to the negotiation between PW-3 and the appellant;

(iv) It is very peculiar for the appellant to proceed with the drug

transaction at a public place in full view of his wife and their

four children;

(v) It is also peculiar for the alleged drug transaction that the

appellant did not request to see the money and the agent

provocateur did not show the money/flash roll (‘wang tunjuk’);

(vi) Discrepancies about the amount of money used as ‘wang

tunjuk’ i.e. PW3 said the amount was RM16,000.00 while PW4

gave an amount of RM6,000.00.

27

[58] It is an established principle of law that an agent

provocateur's evidence requires no corroboration and that an accused

person can be convicted on the uncorroborated evidence of the agent

provocateur if the court accepts the truth of the evidence: see Wan

Yurillhami Wan Yaacob & Anor v PP [2010] 1 CLJ 17.

[59] The learned trial judge found that the discrepancies between the

evidence of PW-3 with that of the other witnesses were immaterial and

minor and did not render the evidence of PW-3 unacceptable.

[60] We were with the learned judge. These are minor discrepancies and

infirmities. It has no effect upon the core issue that PW-3 had negotiated

to buy drugs from the appellant and that the appellant had indeed

delivered the said drugs to PW-3 pursuant to the said negotiation and

upon the terms of the said negotiation.

[61] It was submitted that the telephone calls made by PW-3 to the

appellant and vice-versa relating to the said negotiation for the drug

transaction were not supported by any documentary evidence. Hence it

brings the reliability of PW-3’s evidence into question. Be that as it may,

28

in our view the seizure of the 10 ketulan mampat had fortified the

testimony of PW-3, confirming the existence of the said drug transaction

and the arrangement as to where the said drugs were to be transacted. It

lent credence to PW-3’s testimony that there was an agreement between

PW-3 and the appellant to transact the said drugs.

Ground (vi) – The learned trial judge had misdirected himself in

admitting hearsay and inadmissible evidence, which was highly

prejudicial to the appellant

[62] Learned counsel submitted that since Sarjan Salim was not called,

whatever he said to PW-3 was hearsay. The relevant part of the evidence

referred to were as follows:

Examination in chief of PW3:

“S: Pada masa yang kamu beritahu iaitu pada 10/10/2013, kamu

bertugas sebagai anggota bantuan dalam satu operasi yang akan

dijalankan. Boleh terangkan sedikit.

J: Pada 10/10/2013 saya mendapat panggilan daripada seorang

anggota risikan Jabatan Siasatan Jenayah Narkotik Ibu Pejabat Polis

Perlis yang bernama Detektif Sarjan Salim, dia telah menghubungi

saya dan menyatakan beliau telah berjumpa dengan pemberi

maklumatnya. Dimana pemberi maklumat telah memberitahu ada

seorang lelaki Melayu pembekal dadah.

S: Ceritakan apa yang berlaku pada 10/10/2013, tentang kamu sendiri

menerima arahan atau maklumat daripada sesiapa?

J: Pada 10/10/2013 saya telah mendapat satu nombor talian

‘handphone’ daripada Detektif Sarjan Salim iaitu anggota risikan

29

Jabatan Siasatan Jenayah Narkotik Ibu Pejabat Polis Kontinjen

Perlis. Nombornya 019-5277640 yang mengatakan dengan meminta

saya untuk menghubungi nombor ini dan membuat permohonan

untuk membeli dadah ganja sebanyak 10kg.

S: Kamu ada menghubungi nombor ini?

J: Saya ada menghubungi nombor tersebut.

S: Kamu tahu nombor telefon ini kepunyaan siapa?

J: Saya mendapat tahu daripada Detektif Sarjan Salim bahawa nombor

ini adalah kepunyaan seorang lelaki Melayu nama panggilannya ‘Li’.”

[63] It was submitted by the learned counsel that the learned trial judge’s

acceptance of PW-3’s evidence that the telephone number belonged to

the appellant and that the appellant and ‘Li’ were the same person was

tainted by reliance made upon the above quoted evidence which should

not have been admitted in the first place.

[64] In this regard, we found ourselves in agreement with the learned trial

judge’s finding that the appellant and ‘Li’ were the same person based on

the identification made by PW-3 during the subsequent meeting at the

restaurant and not solely on what was informed to him by Detektif Sarjan

Salim. The learned counsel’s argument that the finding was tainted by

reliance on the above quoted ‘hearsay’ evidence was therefore misplaced.

In fact the appellant told PW-3 that he would be wearing a blue kopiah and

a blue shirt. Consequently, PW-3 had identified the appellant and called

30

out for him at the restaurant through the said colour of the apparels worn

by the appellant.

Conclusion

[65] For all the reasons given, we dismissed the appellant’s appeal and

affirmed the conviction and sentence handed down by the High Court.

Dated: 31st May 2017

( AHMADI HAJI ASNAWI )

Judge

Court of Appeal, Malaysia

Counsel Solicitors:-

For the Appellant:

Wan Azman Diman with Tanis Scivetti & Fazreen Hazrina Bt Rahman

Tetuan Scivetti & Associates

Peguambela & Peguamcara

For the Respondent:

Samihah Razali

Timbalan Pendakwa Raya

Jabatan Peguam Negara