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Federal Court of Malaysia |
] [Hide Context] DALAM MAHKAMAH PERSEKUTUAN MALAYSIA (BIDANGKUASA RAYUAN)
RAYUAN JENAYAH NO.: 05-141-2009(J)
ANTARA
JAMALUDIN BIN MD KASIM … PERAYU DAN
PENDAKWA RAYA … RESPONDEN
[Dalam Mahkamah Rayuan Di Malaysia
Rayuan Jenayah No: J-05-98-2007
Mahkamah Tinggi Di Johor Bahru – Perbicaraan jenayah No: MTI-45-55-2005]
Antara
Jamaludin bin Md Kassim … Perayu
Dan
Pendakwa Raya … Responden]
CORAM: ARIFIN ZAKARIA, CJ(MALAYA) RAUS SHARIF, FCJ
HELILIAH MOHD YUSOF, FCJ
1
JUDGMENT OF THE COURT
1. The appellant was charged before the High Court at Johor Bahru with three charges: first, under s 39B(2)
of the Dangerous Drug Act 1952 (DDA) with trafficking in 32.6 grams of monoacetylmorphine; second, under s 12(2) of the DDA read
with s 39A of the same Act for possession of 3.99 grams of methamphetamine; and third, under s 6 of the DDA for possession of 2.02
grams of cannabis. The appellant was convicted of all these charges. He was sentenced to death on the first charge, 5 years imprisonment
and 10 strokes of the rotan on the second charge and 4 years imprisonment on the third charge. The imprisonment terms on the second
and the third charge were ordered to run concurrently.
2. Aggrieved, the appellant appealed to the Court of Appeal. On
20 August 2009, the appellant’s appeal was dismissed. The Court of Appeal upheld the conviction and sentence imposed on the appellant.
The appellant now appeals to this Court against the conviction and sentence.
3. After hearing the parties, we adjourned the matter for our consideration and decision. We now give our decision and the reasons
for the same. We first start with the facts.
4. On 23 July 2003 at about 6.00 am, acting on information received, Chief Inspector Arman bin Ibrahim (SP5) and a
police
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party consisting of D/Kpl Jasmani bin Ali Othman (SP6) and several other police personnel conducted a narcotics raid on a house at
No. 50C, Kg. Hajjah Fatimah, Batu 3 ½ Jalan Tampoi Majidee, Johor Bahru (“the premise”). While conducting a search on the
premise, SP5 heard human movements behind the wooden wall of a room. Upon examination, he found a sliding panel on the wooden
wall covering a window. He pushed apart the panel and opened the window which led to a dark alley. He shone a torch
into the alley and saw the appellant squatting on the floor holding a blue sling bag (P13) in his left hand and a white plastic
bag (P20) on his right hand. The appellant was shivering. SP5 then directed SP6 and another policeman to enter the
dark alley and bring the appellant out. PW5 found P13 and P20 to contain the incriminating drugs which form the subject matter
of the three charges.
5. SP5 later handed the drugs to Inspector Muhamad Johar bin Yusof (SP7) who thereafter sent them to the Chemist, Abdullah bin
Mohd Yusof (SP3) for analysis. Upon analysis, SP3 confirmed the identity and quantity of the drugs to be 32.6 grams of monoacetylmorphine;
3.99 grams of methamphetamine; and 2.02 grams of cannabis, which are dangerous drugs under the DDA.
6. The appellant, in his defence, claimed that he hid himself in the alley when he detected the presence of the police because
he
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was in breach of an order under the Emergency (Public Order and Prevention of Crime) Ordinance 5 (1969) (“PCO Order”) made against him. Under the PCO Order he was supposed to report himself in Kelantan and he had not complied with the order since December 2002. The appellant denied of having physical possession of P13 and P20 or knew the contents thereof. The appellant further claimed that he was spotted and asked to come out of the alley by an Indian policeman, D/Kpl Ravidass and not by PW5 and PW6. He also alleged that he was beaten by the police with two canes, while he was in the room and this was seen by the wife.
Findings of the High Court
7. At the close of the prosecution’s case, the trial judge found the prosecution has proved a prima facie case against
the appellant based on maximum evaluation on both elements of physical possession and mens rea possession. On the issue of physical
possession, the trial judge stated:
“On the issue of possession, I am satisfied that the prosecution has successfully proved these physical and mental elements of possession
which lead me to hold that the accused was in actual possession. The factual matrix adduced through the prosecution’s witnesses
in particular SP5 and SP6
reveals that the accused was found holding P13
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and P20 in his hands – it was in his physical possession and hence he had custody and control over it.”
8. On the issue of mens rea possession, the trial judge found as follows:
“As regards the mental element – i.e. knowledge of contents of P13 and P20 can only be proved by inference from surrounding
circumstances – relevant factors are from where the drugs were found, how it was recovered, reaction of the accused,
the manner it was kept and weight of the drugs (see Suretheran Selvaraju v PP [2005] 2
In this connection the factor of the accused hiding in the dark alley behind a false wall panel which is not locked holding in his
hand P13 and P20 the plastic bag and the factor of the weight of the drugs i.e.
32.6 grams of monoacetylmorphine are pointers
that the drugs are clearly not for his personal consumption. Though his reaction on shivering is by itself not evidence of knowledge
nevertheless taking into consideration that the drugs were found in P13 and P20 which was physically held by him in
his hands and the amount of drugs recovered to my
5
mind has the cumulative effect of establishing the mental element of knowledge which leads me to conclude that the prosecution
has successfully establish that the accused actually knew the nature of the offending exhibits found in P13 and P20.
By reason thereof the presumption of trafficking under section 37(da) arises. I am satisfied that at the close of the prosecution’s
case a prima facie case has been made out and hence the accused is called upon to enter his defence on all 3 charges.”
9. In analysing the defence on the issue of possession, the trial judge found that the appellant’s defence was one of denial.
He stated as follows:
“The whole scheme of the accused defence is one of denial – denial of holding P13 and P20 in his hands, denial of having knowledge
as to the contents of P13 and P20 which he asserts was found in the alley after he had come out of the alley and into
the room, denial that it was SP6 and not D/Kpl Ravidass who found him in the alley and denying that it was 3 police personnel that
entered into the alley and seeing him holding P13 and P20. The denial aforesaid does not to my mind cast a
reasonable doubt on the prosecution’s case (see
6
In my judgment the case of Chan Chor Shuh v PP [2003] 1 CLJ 501 (C.A) relied on by learned Defence Counsel is distinguishable on its facts. There the Court found many infirmities in the prosecution’s
case whereas in the case at hand I have made the finding that SP5 and SP6 are witnesses of truth. The issue of D/Kpl Ravidass presence
in the room does not and cannot to my mind create a reasonable doubt.”
10. The trial judge also found that the appellant’s defence in regards the issue of the PCO Order and the existence
of the 2 canes which was allegedly used by the police to beat the appellant was an afterthought. This is what he said:
“Further it is my finding that the accused defence was an afterthought as regards both the issue of the PCO and the existence
of 2 canes that was allegedly used to beat the accused in that the PCO issue was raised after the prosecution closed its
case and no cross-examination was made to the raiding party. The issue of the existence of the 2 canes which was allegedly
used to beat the
accused was never put to any of the prosecution’s
7
witness. As was stated in the case of Hamidon bin
“question were not put to … in the cross-examination … and subsequently they can be dismissed as mere afterthought.”
Findings of the Court of Appeal
11. At the Court of Appeal, every finding of the trial judge was vigorously challenged by the appellant. However, the Court
of Appeal could not find any fault with the findings and reasoning of the trial judge (see Jamaluddin Md Kasim v Public Prosecutor [2010] 5 CLJ 928, [2010] 3 MLJ 221). The Court of Appeal held that from SP5’s and SP6’s evidence, D/Kpl Ravidass was not the police personnel who spotted
the appellant in the alley and asked to come out as suggested by the defence. The Court of Appeal found that D/Kpl Ravidass was
not even in the house at the time of the appellant’s arrest. Thus, there was no necessity for the prosecution to call D/Kpl Ravidass
to give evidence, just because it was put to SP5 and SP6 under cross-examination that D/Kpl Ravidass was the person who spotted the
appellant in the alley and requested him to come out. It was held that the non-calling D/Kpl Ravidass by the prosecution
had not resulted in procedural
unfairness to the appellant to occasion a miscarriage of justice.
8
12. The Court of Appeal also held that since the findings of the trial judge were based on credibility or otherwise of the prosecution’s witnesses, in particular SP5 and SP6, and of the appellant as well as his witness, the trial judge’s view is entitled to great respect. The Court of Appeal found no reason to interfere with those findings. In regard to the appellant’s defence, the Court of Appellant held that the trial judge had not erred when he concluded that the appellant’s explanation about his fear of the police because he had contravened the PCO order, was a product of an afterthought.
Findings of this Court
13. It is clear in this appeal that both the High Court and the Court of Appeal had made the concurrent findings of facts that the appellant was in physical possession and mens rea possession of the dangerous drugs. Both Courts had also made a concurrent findings that the appellant’s defence had failed on the balance of probabilities to rebut the presumption of trafficking under s 37(da) of DDA, or capable of raising any reasonable doubt as to the truth of the prosecution’s case. Being concurrent findings of facts, at both levels, this Court, as the final appellate courts is normally slow in interfering with such findings unless there are serious error committed in coming to such findings (see Lee Ah Seng & Anor v PP [2007]
9
14. The learned counsel for the appellant however submitted that there is a serious issue of law that arises in this appeal which if resolved in the appellant’s favour, would entitled him to an acquittal. The issue pertains to what was said by the Federal Court in Ti Chuee Hiang v Public Prosecutor [1995] 2 MLJ
15. The Federal Court in acquitting Ti Chuee Hiang, inter alia held that:
While the prosecution has a complete discretion as to the choice of witnesses to be called at the trial, it also has the duty to call
all necessary witness essential to the unfolding of the narrative of the prosecution’s case to establish proof against the
accused beyond all reasonable doubt. At the very least, the prosecution should make them available
for cross-examination by the defence. If the
10
prosecution failed to fulfill this duty, the accused must be acquitted.
16. Thus, learned counsel for the appellant submitted that in the instant appeal, D/Kpl Ravidass was a material witness
and failure by the prosecution to call him as a witness has resulted a serious gap in the prosecution’s case. He contended that
without the evidence of D/Kpl Ravidass, the trial judge could not have conducted a maximum evaluation of the reliability and credibility
of SP5 and SP6. He submitted that the prosecution at the very least should make D/Kpl Ravidass available for cross-examination
by the defence. This was never done, and as such the appellant is entitled to an acquittal.
17. The learned counsel for the appellant further submitted that the timing of making a witness available for cross-examination
must be before the close of the prosecution’s case. In support, he referred to two passages in Blackstone’s Criminal
Practice
2006 at pages 1568 and 2278 where it is stated:
“As an alternative to calling a witness and examining him in the normal way, it is open for the prosecution counsel
to tender a witness for cross- examination. Counsel merely calls the witness, establishes his name and address, and then invites
the defence to ask any question they wish.”
11
“Usually cross-examination follows immediately after examination in chief, but witnesses are sometimes merely tendered by
the prosecution for cross-examination. Such a witness is called by the prosecution, sworn, asked no question in chief other than
his name and address, and then cross- examination by the defence (see Brooke [1819] 2
Stark 472).”
18. The learned Deputy Public Prosecutor did not dispute the point that when the prosecution’s witness is made available for
cross- examination by the defence, it must be made before the close of the prosecution’s case. However, she submitted that in
the instant case there is no necessity to do the same. The reason is, unlike the witness in Ti Chuee Hiang v Public Prosecutor, D/Kpl Ravidass was not a material witness that must be called or offered to the defence to be cross-examined before the close of
the prosecution’s case.
19. Having read and re-read Ti Huee Hiang v Public Prosecutor, we agree with the learned Deputy Public Prosecutor that the principle of law established in that case cannot be of general application
as suggested by learned counsel for the appellant. Ti Chuee Hiang v Public Prosecutor was a decision peculiar to its own facts. In that case, the witness in issue was the informer, who enticed Ti Chuee Hiang to walk
into a trap which
the police had pre-set. On the facts, Federal Court found that
12
the informer having regard to his role, was not a mere informer, but had assumed the mantle of an agent provocateur. He was the
active instrument without whose intervention Ti Chuee Hiang might never have been arrested. The informer’s identity was
no longer a secret and thus he had lost the protection from disclosure of identity normally accorded to informers under s 40 of DDA.
20. It was on those facts and circumstances that the Federal Court ruled it was the obligation of the prosecution to call
and examine the informer as its witness as he came within the category of witnesses described by Lord Roche in Senevirate v The King [
1936] 3 ALL ER 36, “witnesses essential to the unfolding of the narratives on which the prosecution case is based”. And if he was not called,
at the very least make him available for cross-examination by the defence.
21. We have no hesitation in accepting the above principle. But, we are of the view it is not applicable to the facts of our
case. In our case, the witness, D/Kpl Ravidass was not a material witness in regard to the arrest of the appellant and the recovery
of P13 and P20, which contained the dangerous drugs. D/Kpl Ravidass cannot be termed as a witness essential to the unfolding of
the narrative of the prosecution’s case to establish proof against the appellant beyond reasonable doubt. The absence of his
testimony did not create a serious gap in the
prosecution’s case.
13
22. The material witnesses in our case were SP5 and SP6. SP5 in his evidence said that when he spotted the appellant in the alley,
he directed SP6 and another policeman to enter the alley and bring the appellant out. What was said by SP5 was confirmed by SP6.
The trial judge ruled SP5 and SP6 to be credible witnesses and gave his reasons for doing so. The Court of Appeal agreed with
trial judge. We have no reasons to disagree. We too are of the view that there is no necessity for the prosecution to call D/Kpl
Ravidass to give evidence, just because it was put to SP5 and SP6 under cross-examination that D/Kpl Ravidass was the person who
spotted the appellant in the alley and requested him to come out.
23. We are also of the view that the failure of the prosecution to offer D/Kpl Ravidass to be cross-examined before the close of
the prosecution’s case was not fatal to the prosecution’s case and as such it not could result in the acquittal of the appellant.
This is especially so when D/Kpl Ravidass, at the end of the prosecution’s case was offered to the defence whereas in Ti Chuee Hiang v Public Prosecutor, the informer was never offered as a witness to the defence.
24. Another point is this. In Ti Chuee Chiang v Public Prosecutor, learned counsel for Ti Chuee Hiang in the course of his submission before the High Court criticised the prosecution
for failing to call the informer, but nowhere in his
judgment did the trial judge direct his attention to this point.
14
This was ruled by the Federal Court to be a serious misdirection by way of non direction which had occasioned a
grave miscarriage of justice. In our case, the failure by the prosecution to call D/Kpl Ravidass as a prosecution’s witness has
been addressed by both the trial judge and the Court of Appeal. Both Courts ruled that the failure to call D/Kpl Ravidass
as a prosecution’s witness was not fatal to the prosecution’s case. Thus, the issue of misdirection by way of non direction
which can occasion a miscarriage of justice does not arise in this case.
25. We also wish to state that we have considered the other authorities submitted by learned counsel for the appellant. We found
them to be of no assistance to the appellant. At the end of it, we are satisfied that the conviction of the appellant is safe. We
therefore dismissed the appeal. The conviction and sentence imposed on the appellant are affirmed.
Dated this 18th day of October 2010.
Raus Sharif
Judge
Federal Court, Malaysia
15
Counsel for the appellant: En. Gobind Singh Deo
En. S. Prakash
Solicitors for the appellant: Tetuan Gobind Singh Deo & Co. Counsel for the respondent: Puan Fatnin Yusof
Solicitors for the respondent: Jabatan Peguam Negara
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