dalam mahkamah rayuan malaysia rayuan jenayah no. k-05-53

DALAM MAHKAMAH RAYUAN MALAYSIA
RAYUAN JENAYAH NO. K-05-53-2011
ANTARA
….. PERAYU
KHANASIRI TANBANCHONG
DAN
PENDAKWA RAYA
..…
RESPONDEN
[Dalam Perkara Mengenai Mahkamah Tinggi Malaya di Alor Star
Perbicaraan Jenayah No. 45A-30-2010
Antara
Pendakwa Raya
Dan
Khanasiri Tanbanchong]
CORAM:
MOHAMED APANDI ALI, JCA
LINTON ALBERT, JCA
HAMID SULTAN ABU BACKER, JCA
1
GROUNDS OF DECISION
[1]
The appellant was charged for an offence under section 39B(1)(a)
of the Dangerous Drugs Act 1950 (the Act) for trafficking in 2,832
grammes of cannabis and punishable under section 39B(2) of the Act.
The appellant was alleged to have committed the offence on 14 April 2010
at around 1.30 pm at the Immigration Complex Bukit Kayu Hitam, Kedah.
The appellant was convicted of the offence for which he was charged and
given the mandatory death sentence. Hence this appeal.
[2]
The facts established by the prosecution were these. On 14th
April 2010 Mohd Nizam bin Sungib (SP4) an Assistant Director of
Customs was on duty at the Immigration Complex. At about 1.00 pm SP4
stopped a motorcycle with a Thai registration number coming from Danok,
Thailand. Two Thai men were on the motorcycle, one was the rider while
the appellant was the pillion rider. The appellant was then carrying two
bags, one was on his back (exhibit P10) and the other slung over his
shoulder (exhibit P11). The appellant was also carrying two plastic bags
(exhibits P12 and P13 respectively) which were placed between the rider
and the appellant. The motorcycle was ferrying passengers from the Thai
border to Malaysia.
SP4 asked Saimi Azman bin Abdul Rahim (SP5)
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another Customs Officer to inspect the appellant and his luggage while he
inspected the rider of the motorcycle.
SP5 took the appellant to the
inspection desk. While inspecting the bag P11, SP5 found a plastic packet
suspected to contain cannabis. PW5 then informed SP4 that there was
cannabis in the appellant’s bag.
SP4 was at that time inspecting the
motorcycle rider who managed to run away when SP4 responded to SP5.
The motorcycle rider could not be traced although efforts to track him
down were made. SP4 instructed SP5 to watch over the appellant while
he went over to repot the matter to the Investigation Officer Sulaiman bin
Ayob (SP6). After that SP4 and SP6 went back to where SP5 and the
appellant
were
and
the appellant together with his belongings were
taken to the enforcement office where a thorough inspection of the
appellant’s belongings was carried out by SP4 and SP6 and witnessed by
the appellant and the photographer Mansor bin Sulaiman (SP2) and one
other by the name of Siti Zainura. As a result of the inspection three slabs
of dried leaves were found in the two bags P10 and P11. The three slabs
of dried leaves were seized by SP4 and handed over to SP6. SP6 later
handed the three slabs of compressed leaves to the government chemist
Maharyani Mad Saad (SP1) who conducted an analysis on them and
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confirmed that they constituted 2,832.1 grammes of cannabis. They were
returned to SP6 after the analysis.
[3]
In the circumstances aforesaid the learned trial judge concluded
that the prosecution had established a prima facie case against the
appellant after invoking the presumption of possession under section 37(d)
of the Act and relying on section 2 of the Act on the definition of trafficking
and concluding that there was actual trafficking of the cannabis because
the appellant had transported the drugs from Thailand and brought into
Malaysia.
[4]
The appellant elected to give sworn evidence. In her defence she
testified that she travelled from Bangkok to Danok by bus and admitted
that P10 and P11 were there.
She alighted at Danok and took the
motorcycle which was operating as a taxi. She left the bags P10 and P11
with the motorcycle man while she was queueing to have her passport
stamped. She suspected the motorcycle man to have something to do
with the drugs found in P10 and P11. She denied knowledge of the drugs.
[5]
The first issue canvassed on behalf of the appellant in this appeal
relates to the argument that there was a serious break in the chain of
evidence affecting proof as to the identity of the drugs, in that a very vital
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link in the prosecution case was missing. In support of the appellant’s
argument reference was made to the original charge against the appellant
before the Magistrate’s Court Jitra, Kedah under section 39B(1)(a) of the
Act which was for trafficking in 2,920 grammes of cannabis, whereas the
charge in the instant appeal was in respect of trafficking in 2,832 grammes
a difference of 25.8 grammes. In addition it was emphasized that SP4 did
not weigh the exhibit seized from the appellant which constituted the
cannabis for which he was charged to have trafficked in. SP6 said he did
weigh the exhibit but the answer did not add up because he said each of
the three slabs of compressed leaves was 0.9 kg or 900 grammes. In
considering this aspect of the appellant’s appeal it is apt to begin by
setting out the statement of the law relating to the duty of the prosecution
which is this;
“In so far as the trial Court is concerned, its duty is essentially to
decide whether on the evidence before it the prosecution has
proved its case, and if there are unsatisfactory features in the
prosecution case to determine whether, in the light of such
features, the prosecution case fell short of proof beyond
reasonable doubt”.
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(per Abdul Hamid Omar CJ (Malaya) in TEOH HOE CHYE V. PUBLIC
PROSECUTOR & Another Case [1987] CLJ (Rep) 386 at p 388). The
chain of evidence in relation to the exhibits (the cannabis) is clear and
unbroken. Seizure was made by SP4 and handed over by SP4 to the
investigation officer SP6 who kept them in the strong room at the Customs
Office at Bukit Kayu Hitam. SP6 subsequently handed them to SP1 the
chemist who returned them to SP6 after conducting the requisite analysis.
SP6 kept them in the strong room which was under his supervision and
brought
them with him when he was transferred to Langkawi. There
was no break in the chain of evidence in relation to the cannabis which
was ultimately produced by SP6 at the trial.
The reliance by learned
counsel for the appellant on TEOH HOE CHYE (Supra) was misconceived
because there the facts are different and they can be discerned from a
passage in the judgment of Abdul Hamid Omar CJ (Malaya) at p388:
“Fundamentally, the matter in issue is not whether there was a
failure to call or not to call the investigating officer but whether the
failure to call a particular witness gave raise to a serious gap in
the prosecution case.
6
In the instant case, Supt. Low testified to the effect that be
handed over the exhibits at his office to Supt. Lum, the
investigating officer, at about 5.20 pm.
The following questions may be asked: what did Supt. Lum with
the exhibits after he received them from Supt. Low; when did he
keep them; were they kept under lock and key; and did Supt. Lum
return to Supt. Low the very same exhibits he received from Supt.
Low. The answers to these questions are highly pertinent to a
proper determination of the identiti of the exhibits.
As it was clear that Supt. Lum was given custody of the exhibits
soon after the arrest of the appellants, it is reasonable to assume
that police statements would have been taken from him and that
he would ordinarily have been called to give evidence. He was
however not called’”
[6]
In the instant appeal all the witnesses who handled the exhibits
namely SP4, SP6 and SP1 were called. The learned trial judge did not
therefore fall into error in his finding that there was no break in the chain
of evidence.
7
Furthermore as held by the Federal Court in LOH KAH LOON V.
PP (2011) 5 CLJ 345, the difference in weight does not matter if the
exhibits were properly marked and identified. That was the position in the
case before us.
[7]
It is trite that the prosecution is not required to establish a minute
by minute account of the whereabouts of the exhibits.
Hence minor
discrepancies in relation to the exact time and the processes undertaken
in respect of the exhibits in the testimonies of SP4 and SP6 do not render
a break in the chain of evidence in relation to the drugs.
SIA PANG
LIONG V. PENDAKWA RAYA (Rayuan Jenayah No. 05-103-2010(B)
relied on by learned counsel for the appellant is similarly distinguishable as
can be seen in paragraph [17] of the judgment of Raus Sharif FCJ (as he
then was):
“In the circumstances of this case, ASP Izanizam should have
been called by the prosecution as its witness. This is bearing in
mind that the drug exhibits were in ASP Izanizam’s custody for
almost a month. If he was called as a witness, he could have
explained what he did with the drug exhibits in particular as to
how the drug exhibits were kept during the said period. Most
importantly, he could have also identify the drug exhibits. But, it
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did not happen in this case. This has raised a doubt as to the
identity of the drug exhibits. Therefore, we are giving the benefit
of the doubt to the appellant.”
[8]
In the instant appeal no such doubt arose because as stated
above all those who handled the exhibits were called to give evidence in
relation to the exhibits which were produced before the trial. Thus the
appellant could not be given the benefit of the doubt which the appellant
was entitled to in. SIA PANG LIONG (Supra).
[9]
In the circumstances there was no merit in the appeal.
The
appeal was for the reasons aforesaid dismissed and the sentence and
conviction by the High Court affirmed.
Dated: 28 February 2014
Sgd.
Linton Albert
Judge, Court of Appeal Malaysia
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Counsel:
For the Appellant
:
Tina Ong
Messrs Sivananthan
Suite No. 1, L17-01, PJX Tower
No. 16A, Persiaran Barat
46050 Kuala Lumpur
(NS.269.2012/TO)
(T)03-7491 8055 (F) 03-7491 9055
For the Respondent
:
Andi Razalijaya bin A. Dadi
Timbalan Pendakwa Raya
Bahagian Perbicaraan dan Rayuan
Aras 5, Jabatan Peguam Negara
No. 45, Lot AG7
Presint 4, Persiaran Perdana
62100 Putrajaya
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