DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM
DALAM NEGERI SELANGOR DARUL EHSAN
PERBICARAAN JENAYAH NO: 45-181-2005
DI ANTARA
PENDAKWARAYA
LWN
HUSIN BIN SITORUS
ALASAN PENGHAKIMAN
1.
The accused person [‘the OKT’] in this case had been charged
under section 39B(1)(a) of the Dangerous Drugs Act 1952 [‘the DDA
1952’] as can be seen in the preferred charge P2, which is clear and
unambiguous. The said P2 reads as follows, in its original language:
“ Bahawa kamu pada 22 Oktober
2004, lebih kurang
3.00 pagi, di perairan Selat Klang Selatan di kedudukan LAT
02 57.15’N, LONG 101 18.5’E, jarak 0.2 batu nautika dari
Pelabuhan Barat dan 0.28 batu nautika dari Pulau Che Mat
Zin, Pandamaran, di dalam daerah Klang, di dalam Negeri
Selangor Darul Ehsan, telah didapati memperedarkan dadah
berbahaya iaitu 143,915 gram Cannabis dan oleh yang
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demikian, kamu telah melakukan suatu kesalahan di bawah
seksyen 39B[1] [a] Akta Dadah Berbahaya 1952 dan boleh
dihukum di bawah seksyen 39B[2] Akta yang sama.”
2.
Having considered the evidence adduced by both parties in its
totality, I had concluded and decided that the Prosecution had
succeeded in proving the charge P2 above, beyond reasonable
doubt against the Husin bin Sitorus (OKT). I had delivered my
decision and I had convicted the OKT, and now I am setting out the
full reasons justifying the same.
The essential elements of the charge that required to be proved
by the Prosecution
3.
Besides having to prove the alleged factual circumstances
relating to the charge P2, the Prosecution needed to prove the
essential legal ingredients of the charge against the OKT in order to
succeed. In order to secure a conviction under section 39B(1) of the
DDA 1952, the followings needed to be established by evidence by
the Prosecution beyond reasonable doubt, although for the purpose
of calling for the defence, a prima facie case would suffice. Those
essential elements in the context of this case would be as follows:
(a)
That the OKT was in possession of dangerous drugs;
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(b)
That the dangerous drugs were cannabis as defined
under section 2 of the DDA 1952, weighing 143,915
grammes; and
(c)
That the OKT had trafficked in the said dangerous drugs.
The Prosecution’s case
4.
First let me set out briefly what the Prosecution’s case against
the OKT was all about. From the evidence led by the witnesses
called by the learned Deputy Public Prosecutor Encik Albert Egin
[‘the learned Deputy’], the Prosecution’s case may be summarily
described as follows:
On the 22nd October 2004, at about 2.30 am
ASP Khairuddin bin Jamal (SP3) was on patrol duty in the Malaysian
waters off Port Klang, Selangor when he noted on the radar screen
on his patrol craft, a boat heading towards Port Klang without any
light emanating therefrom. SP3 kept on tracking the said boat and
when it was about 10 metres from the said boat, he had identified
himself as the Malaysian Marine Police and had given it an order to
stop. The said boat stopped and SP3 then directed Chief Inspector
Mohd Rudzuan bin Ahmad (SP4) and his officers to board the said
boat for an inspection. Having boarded the said boat SP4 and his
officers went into the wheelhouse [the ‘rumah kemudi’] of the boat
and saw there was a man manning the wheel of the boat and at the
same time, he said that he saw three men were sleeping therein.
Those three men had to be awoken from their slumber. The man at
the wheel of the boat and the three men were ordered to go to the
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deck of the boat while the raiding party did an inspection on the boat.
After a little while, the police party found something suspicious inside
the cargo hatch of the boat. SP3 was duly alerted about this fact
and upon inspection it was found that there were 8 gunny sacks had
contained packages of slabs of dried leaves suspected to be
cannabis. The man who was seen to have captained the boat was
questioned by the police on these suspicious cargoes and in
response he had said that the 8 gunny sacks had contained ‘barang
terlarang dari Indonesia’ which he had been asked to ship into
Malaysia by somebody in Sumatra. I had disallowed this statement
from the said man from being admitted as evidence for the
Prosecution because as admitted to by the SP3 himself, upon being
queried by the learned Deputy Encik Alfred Egin (‘the learned
Deputy’), he did not administer any statutory caution on the said
man, who at that material point in time was already, for all intent and
purposes, under arrest. The case of PP v Lim Hock Boon [2007] 4
MLJ 114 may be cited on the issue of on arrest, as appear in the
speech of Justice Gopal Sri Ram JCA [as he then was]. The
suspected drugs were seized and a few documents were also seized
from the man who was seen having helmed the boat earlier. That
man was the OKT in this case, whereas the other 3 men were
charged under the immigration law for being in Malaysian territory
without any valid travel documents. The 3 men had since pleaded
guilty and they had served their time in jail for those immigration
offences. They were not called as witnesses by the Prosecution and
their present whereabouts were not known.
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The evidence and the pertinent issues raised in the course of
the trial.
5.
In the course of this trial, both the learned Deputy Public
Prosecutor Alfred Egin, Esq (‘the learned Deputy’) and the learned
Counsel Sebastian Cha, Esq for the OKT (‘the learned Counsel) had
raised a number of issues. The following few pertinent issues were
raised:
(i)
Whether the OKT was the captain of the boat at the
material time and whether adverse inference ought
to be invoked against the Prosecution for not calling
the three other men.
6.
It was the Prosecution’s case that the OKT was seen at the
wheel of the said boat when it was about 10 meters from his patrol
boat when the spotlight was shone on it. The evidence pertaining to
this fact had emanated from SP3 where he had said:
“Saya nampak pada pagi itu, orang yang mengemudikan
bot
tersebut ialah Husin bin Sitorus. Saya pastikan
nama tekong itu adalah Husin bin Sitorus, berdasarkan
dokumen-dokumen yang diserah oleh Insp. Rudzuan
kepada saya yang dia ambil daripada rumah kemudi bot
itu. Saya boleh cam tekong yang bernama Husin b
Sitorus itu. Sekarang saya camkan orang yang berada di
dalam kandang orang salah di dalam mahkamah ini ialah
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orang yang bernama Husin b Sitorus yang saya lihat
mengemudikan bot tersebut pada malam/awal pagi di
hari kejadian.”
7.
During cross-examination by learned Counsel, he was asked
the following question:
“Oleh kerana keadaan gelap dan struktur rumah kemudi
yang sedia ada itu, saya cadangkan kamu pada masa itu
tidak dapat melihat siapakah yang sebenarnya yang
telah mengemudikan bot OKT?”
to which SP3 had disagreed and when he was further queried on the
same issue as to why he did not agree with the learned Counsel’s
suggestion, SP3 had responded like so:
“Kerana bila kita memberi arahan mengguna lampu
supaya bot itu berhenti, saya nampak OKT lah orangnya
yang
memegang
kemudi
bot
itu,
bila
bot
kami
berdekatan, kira-kira dalam jarak 10 meter di antara satu
dengan lain.
Itulah kali pertama saya Nampak OKT
pada hari itu….”
8.
During re-examination by learned Deputy, SP3 had said:
“Bila
saya
mula-mula
nampak
OKT,
dia
sedang
mengemudikan bot dan selepas saya merapati bot OKT
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saya nampak tiga orang lain sedang tidur di dalam
rumah kemudi”.
and it was noted further down in his evidence at that stage of the
proceedings that SP3 had said:
“Pada masa bot ini ditahan, OKT yang mengendali bot
ini.”
9.
Then there was the evidence of SP4 who had also testified to
the effect that he had seen the OKT at the wheel in the wheel house
of the boat and that there were three other men who were sleeping
there when he subsequently boarded the boat upon the instructions
of the SP3. His evidence on that score had been like this:
“Apabila saya menaiki bot itu, saya dapati seorang lelaki
sedang pegang kemudi bot itu dan 3 orang lelaki yang
lain sedang tidur di dalam rumah kemudi bot tersebut.
Saya telah kejutkan 3 lelaki itu supaya bangun”.
10.
He then said in this Court that he could and did actually
identify the OKT as the person whom he had seen at the wheel of
the boat during the search on the day as mentioned in the charge.
He proceeded to say that he first saw the OKT at the wheel of his
boat when the search light was shone on the OKT’s boat.
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11.
During cross-examination by learned Counsel, SP4 said that
the first time that he saw the OKT was when he boarded boat but
when he was re-examined by the learned Deputy, he said that he
had first seen the OKT at the wheel when the search light was shone
on the boat when SP3 ordered the boat to stop. He had told this
Court that he had answered the way he did during cross-examination
because he had forgotten what had actually happened. I accepted
his explanation as such and I saw no reason to doubt his veracity
and credibility.
12.
The fact that the OKT did not challenge the fact that all the
three other persons were found sleeping in the same wheelhouse
had lent more credence to the Prosecution’s contention on this fact
regarding the OKT being the man at the wheel of the boat when it
was stopped by SP3. In fact, the failure on the part of the defence to
challenge this averment of fact namely, that the 3 men were at that
time sleeping in the rumah kemudi and confront the relevant
witnesses for the prosecution must on it, in law be taken to amount
to an admission of that fact namely, that the 3 men were in fact,
sleeping in the wheelhouse of the boat. The Federal Court decision
in the case of Wong Swee Chin v PP [1981] 1 MLJ 212 is the high
authority for this legal proposition. On this account too, this court had
rejected the learned Counsel’s submission on the invocation of
adverse inference against the Prosecution’s case for its alleged
apparent failure to produce these three men as witnesses in this trial.
It is worth reminding myself that it is not every failure to produce a
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witness that must attract the operation of adverse inference under
section 114(g) of the Evidence Act 1950, rather such failure to
produce must, in the first place have related to producing a material
witness, as was expounded with great clarity and purpose by Justice
Mohamad Azmi SCJ in the case of Munusamy v PP [1987] 1 MLJ
492. On that premise therefore, each case must be considered on its
own attending merits. In this case, when the SP4, who had testified
to the effect that he had seen the three men sleeping in the
wheelhouse of the boat, was cross-examined by the defence, that
assertion was not denied and neither was it suggested to him what
these men were actually doing when the police party raided the boat
on that fateful night off the waters near Port Klang. When the SP4
said that these three men were sleeping in the wheelhouse, there
was no challenge mounted on that factual assertion by the SP4 on
the part of the defence. To my mind, two important conclusions could
be derived from that situation. One is that the fact that these three
men were actually sleeping was accepted by reason of nonchallenge and secondly, as there was no challenge to such factual
assertion, there was therefore no necessity for the Prosecution to
call any of these three persons to rebut anything as there was
nothing coming from the defence that needed to be rebutted
pertaining to that specific factual assertion by both SP3 and SP4. In
that regard, this Court would refer to the speech by Mukerji J in the
case of AEG Carapiet v AY Derderian AIR 1961 Cal. 359 where the
learned judge, having cited the House of Lords decision of Browne
v.Dunn [1893] 6 The Reports 67, had said as follows: “The law is
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clear on the subject. Wherever the opponent has declined to avail
himself to put his essential and material case in cross-examination, it
must follow that he believed that the testimony given could not be
disputed at all. It is wrong to think that this is merely a technical rule
of evidence. It is a rule of essential justice. It serves to prevent
surprise at trial and miscarriage of justice, because it gives notice to
the other side of the actual case that is going to be made when the
turn of the party on whose behalf the cross-examination is being
made comes to give and lead evidence by producing witnesses. It
has been stated on high authority of the House of Lords that this
much a counsel is bound to do when cross-examining that he must
put to each of his opponent’s witness in turn, so much of his own
case as concerns that particular witness or in which that witness
had any share. If he asks no question with regard to this, then
he must be taken to accept the plaintiff’s account in its entirety.
Such failure leads to miscarriage of justice, first by springing surprise
upon the party when he has no further chance to meet the new case
made which was never put and secondly, because such subsequent
testimony has no chance of being tested and corroborated.”
[emphasis in bold added by me]
13.
Having considered the demeanour of the Prosecution
witnesses I had found as a matter of law and fact that the OKT was
at the wheel of the boat at the material time at a prima facie
threshold. The cross-examination by learned Counsel had not been
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sufficient in its impact to dislodge the affirmative evidence led by
SP3 and SP4. And the non-examination on the fact regarding the
three sleeping men had meant that the OKT was the man helming
the boat when it was stopped by SP3 and his men. Under the
circumstances surrounding the matter and based on the evidence
before this Court that would appear to be the only reasonable
closure to that issue. As such, it was my finding that the OKT was
the person who was seen by SP3 and SP4 as the person who was
manning the boat, at the material time as mentioned in the charge.
14.
Flowing from my finding as adverted to in the preceding
paragraph immediately above, there was therefore no basis
whatsoever for the Prosecution to lead any evidence respecting that
factual circumstance by calling any of the three men. The duty to call
a witness to the stand is premised upon the supposition that there is
an attending need demanded by law on a party to either establish a
fact in issue or to rebut the same. In the case of the Prosecution, that
consideration on whether to call a witness to the stand or not, must
always be premised on the need to ensure that there shall be no
material gap in its case against the accused person in the event that
it decides not to do so. The speech by Justice Salleh Abas LP in the
case of Abdullah Zawawi v PP [1985] 2 MLJ 16 is instructive in that
regard. In this case before me, as there was no challenge mounted
against the factual circumstance surrounding the conduct of the
three persons as alleged by the prosecution witness, there was
therefore nothing for the Prosecution to rebut and as such, there was
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no legal duty or obligation on the Prosecution to call any of them as
a witness in this case. Such being the case, the issue of invoking
adverse inference under section 114(g) of the Evidence Act 1950
against the Prosecution’s case did not, under the circumstances of
this case, arise. I found as a matter of law that the learned Deputy’s
decision not to call any or all of three men had not created a material
gap in the Prosecution’s case that would otherwise have been
adverse to it.
(ii)
15.
Whether the plant materials were cannabis and
whether the exhibits tendered in this Court were the
very same exhibits seized from the boat in question
As regards the Government Chemist’s [SP2] evidence, I had
found that there was nothing inherently incredible in his evidence so
led in relation to the identity and nature of the impugned dried plant
materials found inside the 8 gunny sacks that were analysed by him.
I also found that the tests undertaken by him during the analysis of
the plant materials had been proper and sufficient for its intended
purpose of establishing the true nature and identity of the said plant
materials. In the case of Munusamy v PP [supra] the learned
Justice Mohamed Azmi SCJ had occasion to share his thoughts and
that of his fellow appellate Justices on the true import of the
chemist’s role in the analysis of dangerous drugs, when delivering
the decision of the then Supreme Court, as follows:
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“As a rule, a chemist in drug cases does not give any
opinion as to the ownership, control or possession of the
substance sent for analysis, but he merely reports the
result of the chemical examination of the substance. The
only reason for sending the exhibits to the chemist is to
determine their identity and to confirm what other
witnesses have suspected. This type of opinion must in
our view be distinguished from opinions which are of very
technical or complicated nature, such as those given by
handwriting, trade mark, copy right or ballistic experts.
Without being derogatory it is common knowledge that
even animals, such as snuff dogs when sufficiently
trained, are able to detect certain dangerous drugs. We
are therefore of the view, that in this type of cases where
the opinion of the chemist is confined only to the
elementary nature and identity of substance, the court is
entitled to accept the opinion of the expert on its face
value, unless it is inherently incredible or the defence
calls evidence in rebuttal by another expert to contradict
the opinion. So long as some credible evidence is given
by the chemist to support his opinion, there is no
necessity, for him to go into details of what he did in the
laboratory, step by step.”
16.
In this case before me, the chemist had testified on his
academic
qualifications
and
work
experience
which
clearly
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established him as an expert. I ruled that he was an expert. He had
also testified as to the manner as to how he had analysed the plant
materials sent to him for analysis and the various steps that he had
taken in his analysis in coming to his conclusion that they were
cannabis as defined under section 2 of the DDA 1952. In the result,
applying the observation by Justice Mohamed Azmi SCJ in the
Munusamy’s case [supra], I was satisfied that his evidence had
been credible and sufficient to establish the true nature and identity
of the slabs of dried plant materials that were analysed and that they
were indeed cannabis as defined under section 2 of the DDA 1952.
I was also satisfied that the said 143,915 grammes of cannabis that
were seized on the 22nd October 2004 by SP3 and his men were the
same ones which were analysed by the chemist and subsequently
produced before this Court. I was satisfied that the relevant
witnesses had sufficiently and positively identified their respective
markings on the said exhibits. As such, prima facie, I was satisfied
that there was no break in the chain of exhibits in this case. The
principle set out in the case of Gunalan a/l Ramachandran [2004] 4
CLJ 551 was applicable to the facts of this case and had been
fulfilled.
17.
While at the subject-matter of exhibits, it must be mentioned
as well that the actual boat that was seized from the OKT was not
produced in court. The Investigating Officer (SP6) had offered an
explanation on this situation whereby SP3 had in fact lodged a police
report (P27) stating that the boat had since sunk at the Marine Police
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jetty due to leakages sustained by it. In fact SP3 had also been
recalled and he had indeed appeared in Court again to provide
information under oath on this matter relating to the said boat. He
had confirmed what was said by SP6 as to what had happened to
the boat. But it was not in dispute that the witnesses had testified
and identified the said boat through the various photographs taken of
it by SP1. Neither had there been a serious challenge that those
photographs were not the images of the said boat. Based on the
above explanation and the provisions under section 65 of the
Evidence Act 1950, it was my finding that as the boat had indeed
sunk and was therefore lost, the relevant photographs tendered in
this Court purporting to show the said boat were good enough
evidence to stand in its stead as secondary evidence, for the
purpose of this proceeding.
(iii)
18.
Whether the documents seized from the OKT ought
to be admitted as evidence of their contents
Earlier on, I had also alluded to the fact that during the raid
on the accused person’s boat, a few documents were seized from
the OKT. These documents were subsequently produced in this
Court and the learned Deputy had attempted to have them admitted
as exhibits and thereby to be treated as being part of the
Prosecution’s case. After hearing brief submissions from both
parties, I had allowed them to be admitted as seized items only but
that it would not extend ipso facto as admitting to the veracity of their
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respective contents. In that regard, those documents had been
accordingly marked as P20, P21 and P22. To be more specific, P20
had been entitled ‘Pas Kecil’; P21 had been entitled ‘Surat
Keterangan Kecakapan’ and P22 had related to ‘Sertifikat
Keselamatan’. P20 mentioned in it the name “HUSIN” as the owner
of the boat named therein. P21 had named “HUSIN SITORUS” as
the ‘Nakhoda’ [captain] of the boat named therein. The evidence led
by the Prosecution had shown that the boat that was stopped by
SP3 bore no discernible name assigned to it in any manner. Such
omission with respect to the name on the boat was conspicuous
from a perusal of the photographs marked as Prosecution’s exhibits
P4 [A-D]. To my mind, the law on this matter is trite and needed no
amplification. But if any was indeed needed, then the case of Myers
v DPP (HL) [1965] AC 1001 would suffice to illustrate the point
regarding documentary hearsay. Another case adverting to that
same effect must be the Federal Court decision in Sim Tiew Bee v
PP (1973) 2 MLJ 200. Further, by way of illustration, perhaps an
extract from Murphy on Evidence Seventh Edition by Peter Murphy
at page 215, would be useful food for thought, where even an
admission by the accused on the origin of the impugned goods of
which he had no knowledge at all was held to be of no evidential use
to the prosecution against the accused. Such had been ruled by the
Privy Council in the case of Comptroller of Customs v Western
Letric Co Ltd [1966] AC 367 like so: “If a man admits something of
which he knows nothing it is of no real evidential value. The
admission made by the respondents’ agent was an admission made
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upon reading the marks and labels on those goods and was of no
evidential value than those marks and labels themselves.” In the
case immediately before me, the learned Deputy had attempted to
admit documents seized from the OKT which had contained
particulars which,
if taken at their face value, would have
established the nexus between the OKT and the boat purportedly
issued by the ‘SyahBandar’ [Harbour Master] in Pangkalan Dodek, in
Sumatra. But the Prosecution was not calling any such officer from
Sumatra to verify the contents of such documents. To top it all, the
learned Counsel had objected to the admissibility of the said
documents as evidence. To my mind, the contents of those
documents, if they were being asserted to be the truth of what they
purported to say therein, then they must surely be hearsay and were
therefore inadmissible. The embargo on hearsay, as contained in
the Privy Council’s advice to the Head of the Federation of the then
Malaya in the locus classicus case of Subramaniam v PP (1956)
MLJ 220 would on that account, be triggered. Even in the case of
Western Letric Co Ltd [supra] an admission by the respondent’s
agent was held by Lord Hodson to be inadmissible. But the essence
of the matter, to my mind, was not so much whether the accused
had admitted to hearsay evidence or otherwise, because the crux of
the matter was that hearsay evidence being inadmissible, would
always remain as such regardless of whether the accused person
admitted or objected to its inclusion as evidence in the criminal trial.
In other words, the presence or absence of any objection with regard
to such evidence would not change its inherent illegality in any way.
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The Court was the final filter that must ensure that illegal evidence
generally be excluded from being part of the evidence that deserved
to be duly considered with the rest of the properly admitted evidence.
Having said that, however in the context of this case, even without
those impugned documents which, if admitted as evidence of their
contents would be detrimental to and incriminating against the OKT
in this case, I found that on the strength of the other available oral
evidence led by the witnesses for the Prosecution as alluded to by
me, it had been amply established as a matter of fact that the OKT
was the person who had manned the boat at the material time. He
was at the material time, the de facto captain of the boat. Whether
he was the de jure captain of the boat at the material time, to my
mind, would not count for much in terms of forwarding the OKT’s
cause, in the context of this case.
(iv) Whether the boat was stopped within the Malaysian
waters
19.
Another pertinent issue which to my mind deserved this
Court’s consideration had been the issue of whether, when the boat
was stopped in its track at the material time, it was actually within the
Malaysian waters. It related to the issue of whether this Court had
competent jurisdiction to try this OKT. The charge had read, inter
alia, that at the material time the boat was alleged to be at the
position “dalam perairan Selat Klang Selatan” whereby the relevant
readings were recorded as Lat 02 57.15’N and Long 101 18.5’E,
which in geographical sense meant that it was merely 0.2 nautical
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mile from Pelabuhan Barat and 0.28 nautical miles from Pulau Mat
Zin, Pandamaran Klang, Selangor, Malaysia. SP3 had also testified
that at that time, he was patrolling the Malaysian waters along Port
Klang when he stumbled upon this boat on his patrol boat’s radar
screen. He had testified that the boat entering the Port Klang area. In
his re-examination, SP3 had said: “Semasa mula-mula dilihat, bot itu
sudah berada dalam perairan Malaysia, sebab ia berada di perairan
Pintu Gedong di mana peraiaran tersebut adalah 36 batu nautika
daripada perairan antarabangsa.” The fact that the boat was stopped
at a position within the Malaysian waters was confirmed by the
evidence of a former official from the Marine Department Malaysia
who at the material time had worked at Port Klang, namely Encik
Selvaraju a/l Maruthamutu (SP7), a qualified navigator and pilot in
his own right. He had testified that he had plotted on P26 the nautical
chart the position of the boat based on the geographical readings
given tohim by the Investigating Officer of this case, Chief Inspector
Wan Shamsudin (SP6). Wan Shamsudin had obtained the said
readings from the police report lodged regarding this case by SP3. It
was SP7’s evidence that having plotted the readings on the nautical
chart he had established that the position of the boat when it was
stopped by SP3 was within Malaysian waters, being in front of the
Port Klang area. This would support the evidence of SP3 who had
testified before me that the boat was stopped in the waters near Port
Klang, Selangor. SP3 had also identified the photograph marked as
exhibit P4 (E) as showing the location where the boat manned by the
OKT was stopped, as alleged in the charge P2. From that
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photograph it was clear how near the place of arrest was to the Port
Klang, which at all material times was within Malaysian sovereignty.
In fact, this factual assertion was not challenged by the defence
when SP3 was crossed examined. I had dwelled on the effect of
failure to cross-examine on a material point. Neither was it seriously
argued that the geographical readings via GPS as appear in the
charge P2 actually was not within the Malaysian territorial waters.
Indeed, the geographical readings were not challenged as being
inaccurate. To my mind, the Prosecution had successfully proved as
an established fact that the boat was inside the Malaysian waters as
per alleged in the charge P2. As such, I was satisfied that when the
OKT was arrested, his boat was actually within the Malaysian
territorial waters thus clothing this Court with the proper jurisdiction
to hear and adjudicate the allegations contained in the P2 against
the OKT in this case.
(v)
20.
Whether on the facts of this case the presumption
under section 37(f) of the DDA 1952 ought to be
invoked against the OKT
During the course of this trial, the Prosecution had urged this
Court to invoke the presumptive provisions under section 37(f) of
the DDA 1952, which reads: “37 (f) if any dangerous drug is found to
be concealed in any ship or aircraft it shall be presumed, until the
contrary is proved, that the said drug is so concealed with the
knowledge of the master of the ship or aircraft and has been
Page 20 of 50
imported in such a ship or aircraft;” At first blush, it was quite
apparent to me that the operative phrase in that provision must
necessarily be the words “is found to be concealed”. Within that little
phrase itself, the word ‘concealed’ must bear considerable
significance. But that same word was not defined anywhere in the
DDA 1952 and in such a situation then according to the canons of
interpretation of a statute, where the statute under review was silent
on a definition of a word which had assumed critical significance,
then a normal dictionary meaning ought to be given to it. Indeed Lord
Reid had opined in his speech in the House of Lords case of Warner
v Metropolitan Police Commissioner [1968]2 All ER 357 at page
366 that “Normally the plain ordinary grammatical meaning of the
words of an enactment affords the best guide.” In that regard I had
made reference to the Webster’s Third New International
Dictionary and in so doing, I had yielded some enlightenment as to
the meaning of the word ‘conceal’. It was revealed therefrom, that
the word ‘conceal’ actually had originated from the latin word
‘concelare’ which in the English language simply meant ‘to hide’. In
the context of the said presumption, that was the primary factual
circumstance that needed to be established by the Prosecution
before the said presumption could become operative against the
master of either the aircraft or ship whichever was applicable. I had
ruled that such provisions under section 37(f) could not be invoked
against the OKT although he was the de facto captain or master of
the boat because the factual matrix in this case could not justify this
Court in invoking the said presumption. The facts, as had been said,
Page 21 of 50
had shown that the 8 gunny sacks were found in the cargo hatch
underneath a pile of boxes of ‘Indomie’, the popular instant noodles
from Indonesia. The 8 gunny sacks were not easily visible because
apart from being underneath the said boxes, there were wooden
planks placed on-top and there was also a layer of plastic sheet over
the boxes. Based on this factual matrix, the learned Deputy had
invited this Court to invoke the said presumption under section 37(f)
of the DDA 1952 against the accused person in this case. As I had
said earlier, my rejection of the learned Deputy’s contention on the
operation of that presumption was based on the peculiar facts in this
case and based on those facts, at least 2 reasonable inferences may
be concluded therefrom. One inference is that those 8 gunny sacks
were so placed to conceal and hide them as they contained
contraband items and that as captain of the vessel, the accused
person ought therefore to be presumed to be accountable for the
same within the contemplation of the said presumptive provisions.
The second inference is that those 8 gunny sacks were but placed
inside the cargo hatch of the boat, a place that was specially but
ordinarily meant to put cargoes, including such 8 gunny sacks. The
fact that they were placed underneath the boxes of ‘Indomie’ and
covered by wooden planks and plastic sheet did not in any way
change the innocuous complexion that could be readily made to it
bearing in mind those planks and plastic sheet could very well serve
the purpose of protecting the 8 gunny sacks from sea water, a
consideration which would be readily reasonable and acceptable in
the context of any sea-going vessel. Nothing sinister ought to be
Page 22 of 50
readily assumed against the OKT in that regard. In other words,
these 8 gunny sacks might not have been placed as such with the
deliberate intention of putting them ought of sight. The fact that they
were found to be so placed in the cargo hatch of the boat ought not,
to my mind, automatically trigger the inference that they were so
concealed with sinister intent. I have come to that view because a
cargo hatch on a boat is a place where its cargo would ordinarily be
placed. To my mind, an act of concealing would connote and
presuppose that some element of something which was less than
being honest was in play. It was but an anti-thesis of being
transparent because essentially, to conceal would mean to
effectively eclipse transparency. So, it was my finding that the 8
gunny sacks were not concealed when they were found inside the
cargo hatch of the boat. Having so found, under criminal law, where
there exist two reasonable inferences, the one that would be most
likely to favour the accused person must be drawn accordingly. The
relevant portion in the speech of Justice Spencer Wilkinson J in the
case of Tai Chai Keh v PP [1948-49] MLJ Supp 105 on this legal
principle which had been so embedded in criminal jurisprudence
may need to be reproduced, for its desired impact and I quote:
“Where there is more than one inference which can be drawn from a
set of facts in a criminal case, we are of the opinion that the
inference most favourable to the accused should be adopted.”
Apparently, it would seem to me that Justice Mohd. Azmi must have
the same principle in mind when he made the following conclusions
when his Lordship had dismissed an appeal by the Prosecution
Page 23 of 50
before him in the case of PP v Kasmin bin Soeb [1974] 1 MLJ 230
as follows:
“As far as leading the police to the place of discovery
was concerned, there were at least two distinct
inferences that could be drawn in the absence of
information given by the accused. Either the accused
had hidden the stolen property there or he had come to
know of its whereabouts through a third person. In a
criminal case, the inference favourable to the accused
should be drawn.”
21.
In view of that cardinal principle, in this case before me, there
had existed no primary factual basis for invoking the presumption
under section 37(f) of DDA 1952 against the OKT. Based on that
finding as well, it was my finding too, that at the material time as
mentioned in the charge, the accused person had only physical
custody and control over the 8 gunny sacks so found on his boat, as
opposed to possession with mens rea.
(vi)
22.
whether the boat had deliberately travelled under
the cloak of darkness so as to avoid detection by
the Malaysian enforcement authorities
In the course of his able submissions, the learned Deputy
had tried to convince this Court that the boat was travelling under
cover of darkness when it was detected by the radar on the Marine
Page 24 of 50
Police patrol boat. In other words, he was suggesting that the boat
was travelling stealthily and was doing so deliberately so as to avoid
from being detected. That would point to the OKT’s knowledge of the
nature of all of his cargoes including the contents of the 8 gunny
sacks in the cargo hatch. Having perused through the evidence led
by the Prosecution, I could not find any evidence tending show that
the said boat, in fact, had lights attached to it which were in good
working condition but which were deliberately not switched on. If
there had been such evidence before this Court, then perhaps an
inference, such as the one contended and advocated by the learned
Deputy might very well, with some justification, be drawn against the
OKT. But as I had said, no such evidence was readily available for
this Court to so consider that such probably had been the case, to
begin with in the first place.
(vii) whether there was ‘possession’ established against
the OKT
23.
In order to incriminate, the possession that was sought to be
established against the OKT must fulfill certain criteria and the
learned judges in the Court of Appeal in the case of Toh Ah Loh &
Mak Thim v R [1949] MLJ 54 had clearly spelt out those criteria, like
so: “Possession, in order to incriminate, must have the following
characteristics. The possessor must know the nature of the thing
possessed, must have in him a power of disposal over the thing, and
lastly must be conscious of his possession of the thing. If these
Page 25 of 50
factors are absent, his possession can raise no presumption of mens
rea, without which (except by statute) possession cannot be
criminal.” [ per Gordon-Smith Ag CJ ]
24.
Based on the above appreciation of the evidence led by the
Prosecution, it was this Court’s finding that the Prosecution had
failed to establish at a prima facie level that this OKT had possession
with the necessary mens rea over the impugned drugs.
(viii)
25.
Whether presumption of possession under
section 37(d) DDA 1952 could be invoked in aid
of the Prosecution and whether there was
evidence of actual trafficking in the said drugs
by the OKT
But be that as it may, nevertheless it was my finding that the
Prosecution was still entitled to invoke in aid, the presumption of
possession under section 37(d) of the DDA 1952 against the OKT.
This was because as master of the boat, albeit a de facto one at
that, this OKT had physical custody of the 8 gunny sacks in the
cargo hatch of the said boat and the said 8 gunny sacks must qualify
as “anything whatsoever containing” as envisaged under that
provision. As a direct consequence of that, the law had thereby
presumed that the OKT knew the nature of the drugs contained in
the 8 gunny sacks found in the cargo hatch of his boat. However, as
a result of the invocation of that presumption of possession against
Page 26 of 50
the OKT in this case, although the amount of cannabis in this case
had been established to have far exceeded the threshold amount of
200 grammes which would have ordinarily triggered off the
presumption of trafficking under section 37[da] of the DDA 1952
against the OKT, nevertheless the embargo created under the
principle against double presumption as enunciated in the case of
Mohammad bin Hassan v PP [1998] 2 MLJ 273 would set in and
must apply in full force. As a result thereof, the presumption of
trafficking could not, in law be invoked against the OKT in this case.
However, looking at the evidence together with the presumption of
possession, I was satisfied that the conduct of the accused person in
transporting the said 143,915 grammes of cannabis in the cargo
hatch of the boat that he was captaining at the material time had
clearly established the element of actual trafficking as defined under
section 2 of the DDA 1952. It has not escaped my notice too that the
amount of the cannabis in this case was far too huge, so as to
render it next to impossible, to conclude that it was meant for the
OKT’s own personal consumption.
Ruling by the Court at the end of the Prosecution’s case
26.
At the end of the case for the prosecution, the applicable law
which this Court had to consider was contained in section 180 of the
Criminal Procedure Code [‘CPC’] and this Court had to determine
whether, a prima facie case had been established by the
Prosecution against the OKT. I had subjected the evidence led by
Page 27 of 50
the Prosecution to the maximum evaluation and I had found them to
be credible and believable. There was nothing inherently incredible
about the Prosecution evidence and I have also found that the
pertinent witnesses called by the learned Deputy to be credible
witnesses overall. A question might be asked: “What was the
evidence making up that prima facie case against the OKT in this
case?” The short answer to that question could be seen in the
cumulative evidence as outlined by me above, in particular that of
the Government Chemist which had confirmed the nature and
identity of the plant materials that were analysed, to be cannabis as
defined under section 2 of the DDA 1952. It could also be seen in the
evidence of the SP3 and SP4 who testified on the arrest of the boat
and the OKT and the conduct of the OKT who was seen at the wheel
of the boat while in Malaysian waters and the finding in the cargo
hatch, of the 8 gunny sacks of plant materials suspected to be
cannabis. The evidence had proved that the OKT, as the de facto
captain of the said boat had physical custody of the said 8 gunny
sacks on his boat and as a direct corollary to that the presumption of
possession under section 37(d) of the DDA 1952 was invoked
against him. And then there was of course the evidence of the sheer
amount of the cannabis which clearly would negative any notion to
the effect that they were meant for his own consumption and the fact
that when the boat was stopped in Malaysian waters off the Port
Klang in Selangor, it was actually in the act of transporting or
conveying the said drugs on his boat. The cumulative strength of the
evidence adduced was such that it needed to be rebutted by the
Page 28 of 50
OKT, failing which a conviction would be warranted on the preferred
charge. In the case of Saminathan & Ors v PP [1955] MLJ 121
Justice Buhagiar J had described what he understood the phrase
‘prima facie’ case to mean as follows: “A litigating party is said to
have a prima facie case when the evidence in his favour is
sufficiently strong for his opponent to be called on to answer it. A
prima facie case, then, is one which is established by sufficiently
strong evidence, and can be overthrown only by rebutting evidence
adduced by the other side.”
27.
In the light of the various pronouncements subsequently
made
on the proper way to ‘measure’ the quantum of evidence
required in coming to a proper finding of a prima facie case, it had
become clear that the trial Court, this Court included, must subject
the evidence led by the Prosecution to a maximum evaluation as
opposed to a two-tier exercise expounded by the Privy council in the
case of Haw Tua Tau v PP [1981] 2 MLJ 49 and the product of that
maximum evaluation was such that in the event the Court called for
defence to be entered and the accused person chose to remain
silent, then he must be convicted. So the question that needed to be
asked by the Court had been postulated by Justice Gopal Sri Ram
JCA [as he then was] in the case of Looi Kow Chai v PP [2003] 1
CLJ 734 as follows: “If I decide to call upon the accused to enter on
his defence, and he elects to remain silent, am I prepared to convict
him on the totality of the evidence contained in the prosecution’s
case?” According to the learned Justice, if the answer to that
Page 29 of 50
question was in the negative, then the Prosecution had failed to
establish a prima facie case and the accused must, of necessity be
discharged and acquitted. But, if the answer to the same question be
in the affirmative, then and only then would the Court be justified to
call for the defence to be entered. The apex court in the case of
Balachandran v PP [2005] 1 CLJ 85 has since
affirmed that
approach and is now the leading authority on the issue on what a
prima facie case means and the immediate ramifications that would
entail as a consequence thereof.
28.
In the course of arriving at that ruling as well, this Court had
found that the OKT had only physical custody and control of the
gunny sacks that were found in the boat of which he was the captain
at the material time. Under the circumstances of this case, in the
light of the evidence adduced by the prosecution, this Court had
invoked the operation of the presumption of possession under
section 37(d) of the DDA 1952 against the OKT and therefore on
account of Mohammad bin Hassan v PP [supra] which prohibits
the use of the so-called ‘double presumption’. As such, the
prosecution would have to prove actual trafficking against the OKT
at the end of the whole case without any aid from the provisions of
section 37(da) DDA 1952. I had found too that the Prosecution had
proven the element of trafficking on account of the fact that he was
transporting the 8 gunny containing the contraband drugs, which
according to the Government Chemist was cannabis as defined
under section 2 of the Dangerous Drugs Act 1952 [‘the DDA 1952’].
Page 30 of 50
Quite apart from that the sheer amount of the cannabis that were
found in this case had persuaded this Court to readily infer that they
were more meant for trafficking rather than for his own consumption,
the latter being a factual circumstance that was never suggested by
the accused in the course of his cross-examination of the relevant
Prosecution witnesses. In this regard, the explanation by the Privy
Council case of Ong Ah Chuan v PP [1981] 1 MLJ 64 must be
viewed as being highly instructive. It was my finding that there was
ample evidence led by the Prosecution pointing to such conclusion
of trafficking by the OKT in this case of the impugned drugs, to wit,
143,915 grammes of cannabis as defined under section2 of the DDA
1952, at a prima facie case level that needed to be rebutted by the
OKT failing which he must be convicted accordingly on the preferred
charge.
29.
Premised on the above, I had therefore ruled that the
Prosecution had succeeded in establishing a prima facie case
against the OKT as per the charge preferred against him in P2. As
such, I had ordered the OKT to enter on his defence to the said
charge. And as a consequence of that, I had also reminded the
accused person of the three rights open to him in the management
of his defence. After due consultation with his learned counsel, the
accused person had chosen to give evidence under oath from the
witness stand.
Page 31 of 50
The defence
The evidential burdens in play
30.
In such a situation as obtaining in this case, the burden of
proof incumbent on the OKT in this case may be postulated as
follows. In respect of the rebuttable presumption of possession as to
the nature of the drugs which was invoked against him under section
37(d) of the DDA 1952, he would have to rebut that presumed fact of
possession on the threshold of proof on the balance of probabilities.
This is clear pursuant to the Supreme Court decision in the case of
Mohd Radhi bin Yaakob v PP [1991] 3 MLJ 169 (SC). As regards
the element of actual trafficking of the said drugs, he would just have
to raise a reasonable doubt in the mind of this Court in order to
discharge the required burden in that regard. Those are the
evidentiary burdens that the OKT would have to surmount with
regard to the respective presumed as well as factual circumstances
and if he succeeded in discharging any one of these burdens
respectively, he would be entitled to an acquittal. However, having
said that, the overall legal burden to prove the guilt of the OKT on
the threshold of beyond reasonable doubt always remained with the
prosecution throughout the entirety of this case.
31.
With that understanding, I had considered the evidence led
by the OKT in response to the ‘prima facie’ case established against
him. Essentially, the defence put forth by the OKT could be
described as one of denial of any knowledge of the drugs inside the
Page 32 of 50
8 gunny sacks which were found inside the cargo hatch of the boat
that he was seen captaining, an act that he had also denied in the
course of his evidence.
32.
In order to appreciate the OKT’s version of events, this Court
must juxtapose it alongside the prosecution’s version. Having done
that, it is abundantly clear that the bulk of the evidence of the OKT
had been focused on what had allegedly happened at Batu Bara in
Sumatra, Indonesia immediately before the boat set sail to Klang in
Malaysia. In essence, the OKT had testified that he was requested
by one man by the name of Ahmad Tengkis to transport, for him to
Klang in Malaysia, a cargo of Indomie and together with two
Achinese men. According to him, the boat was not his but that it had
belonged to one of Ahmad Tengkis’s men. According to him further,
the boat needed some repair before it could set sail to Klang. He
said that he was paid a fee for his effort whereby he was to deliver
the instant mee Indomie to one by the name of Wondar by calling
him upon arrival in Klang. After the boat was repaired, the OKT set
sail to sea and was headed towards Klang in the early hours of the
morning with the instant mee cargo and the two Achinese men.
However, after sailing for about 15 minutes or so, the OKT said that
he was contacted by Ahmad Tengkis who asked him to stop and to
wait for him because he wanted to put onboard more cargo and that
one man by the name of Asar Nawi would be joining him on the trip
to Klang. According to the OKT, when the cargo was being loaded
onto the boat, he was in the wheel house and that he did not see
Page 33 of 50
what the cargo was. However, when he asked Asar Nawi about it, he
was told that the cargo had been daily provisions. It was also the
OKT’s evidence that he was told by Ahmad Tengkis that Asar Nawi
could help the OKT to helm the boat if that was necessary. When
everything was ready they then set sail to Klang. The trip was a long
one and it had taken the boat about 18 hours to reach the Klang
waters. There the OKT said that he had contacted Wondar about his
cargo and the three Achinese men. Wondar asked him to wait for
him which the OKT told this Court he had obliged. But after waiting
for about 10 minutes, and seeing that Wondar did not come despite
having promised earlier to meet up, the OKT said that he decided to
sail back to Sumatra. In so doing, he had asked Asar Nawi to man
the boat as he [the OKT] was feeling tired having been behind the
wheel of the boat for the entire journey from Batu Bara to Klang.
According to the OKT, it was during this trip back to Sumatra that
they were stopped by the Malaysian Marine Police patrol boat and
that his boat was subsequently inspected. It was also his evidence
that his boat was still in the Malaysian waters when it was stopped
by the Malaysian Marine patrol boat. So according to the OKT, at
the time when the boat was stopped, it was Asar Nawi who was the
captain of the boat. That in essence, would materially describe the
version of the events according to the OKT prior to his arrest
together with the three men and the impugned cargo.
33.
Besides his own evidence, the OKT had also called a legal
officer from Batu Bara in Sumatra for the sole purpose of tendering
Page 34 of 50
the two affidavits from Ahmad Tengkis and Ibit Kopi who could not
come to testify in persons because of severe financial constraints
that they were experiencing back home. Their existence was
described in the words of SD2 as “Kais pagi makan pagi, kais petang
makan petang” which practically would, mean barely making ends
meet, or barely surviving on a daily basis.
34.
Now, it is clear that the evidence of both parties only started
to converge when the boat was stopped by the Malaysian police
marine patrol boat inside the Malaysian waters just outside Port
Klang. Here, according to the prosecution witnesses they saw the
OKT was the person at the wheel of the boat whereas according to
the OKT in his evidence, it was Asar Nawi who was at the wheel.
According to the prosecution witnesses, upon boarding the boat,
apart from seeing the OKT at the wheel they had seen three men
sleeping in the ‘rumah kemudi’ of the boat and that they had to be
awoken from their slumber by the police boarding party. Upon further
checking by the police raiding party, one of these three men who
were seen sleeping was a man by the name of Asar Nawi. This
apparent point of convergence would at the same time represent the
point of divergence between them as well, whereby according to the
OKT in his defence, the person who was helming the boat was Asar
Nawi. At this juncture, it would be opportune for this Court to see
how this issue was handled during the prosecution’s case and that
Page 35 of 50
could be done by looking at the cross-examination of the relevant
witness of the prosecution by the learned defence Counsel.
35.
Before this Court reverted to the relevant portion of the
evidence, perhaps it would be appropriate to recap as to what the
applicable law says on the matter. Two very important legal
principles were in play during cross-examination which the party
conducting such an exercise upon the relevant witness, must always
bear in mind, namely, (1) to challenge a fact asserted by a witness
which is inconsistent with his client’s factual version of event and (2)
to confront the relevant witness called by the opposing side by way
of putting to him the essential and material case of his client. In that
regard, I wish to reiterate what I had said earlier on in this judgement
on the matter of the duty incumbent on counsels during crossexamination of a critical witness. Suffice it to say that this case was
cited with approval by Sharma J in the case of Chua Beow Huat v
PP [1970] 2 MLJ 29. In the Federal Court case of Wong Swee Chin
v PP [1981] 1 MLJ 212 the principle that failure by one party to
cross-examine on a material evidence led by the adverse party
would amount to an acceptance of the said piece of evidence that
was not challenged, was entrenched in our legal system. In fact, the
latest case that had reaffirmed the utmost significance of above dual
principle has been the Federal Court decision in the case of Tan
Kim Ho and Ho Jin Lock v Public Prosecutor [Rayuan Jenayah
No. 05-21-2007(P) & 05-22-2007(P)] dated 17th February 2009. The
speech delivered by the learned Chief Justice Zaki Tun Azmi was
Page 36 of 50
clear on this point, where his Lordship had said that this matter of
non-putting one’s case to the relevant witness of the opposing side
would go a long way in assessing the credibility of the accused who
had only ‘revealed’ his/her version of the material event very late in
the day and only during the defence stage namely during the
defence stage. The learned Chief Justice had this to say: “In our
adversarial system of justice, the duty of each party is to show that
his case is the truth.
This is done by him adducing his own
witnesses to support his contention.
When it is the plaintiff or
prosecutor who is adducing the evidence, his witnesses are subject
to cross examination by the defence or the accused person. When a
prosecution witness makes a statement of fact which is disagreed to
by the defence it becomes the defence’s duty to, in whatever way,
put to the plaintiff or prosecution witness that what the witness has
said is not true.
In addition, he could also use the plaintiff’s or
prosecution’s witnesses to adduce evidence to support his defence
and to indicate what his defence is. This he is required to do to
enable the plaintiff or prosecution to bring out evidence to disprove
what the defence intends to adduce. If the defence does not in any
way indicate by cross examination of those facts, those statements
made by the plaintiff’s or prosecution’s witnesses must be accepted
as true. Even if the plaintiff’s or prosecution’s witness does not say
anything relating to the defence case, it is still the duty of the
defence to bring out his case during plaintiff’s or prosecution’s case.
In fact this duty to disclose his defence during the prosecution’s case
is more relevant in criminal cases than in civil. This is particularly so
Page 37 of 50
when the plaintiff or prosecution’s witness is relevant to the fact in
issue. In criminal cases, the prosecution does not know what the
defence is going to be, except in alibi, until the defence adduces its
evidence.”
The overall appreciation of the defence evidence and findings
thereof by this Court.
36.
In this case, the crux of the defence case was that the OKT
had no knowledge whatsoever about the contents of the 8 gunny
sacks found by SP3 on his boat that were subsequently found to
contain the impugned drugs cannabis. Reverting to the relevant
portions of the evidence led in this case, at the most, he said that he
was told by Asar Nawi that they had contained daily provisions to be
handed over to Wondar. He also testified that immediately before the
boat was detained by the Malaysian police marine, the boat was
helmed by Asar Nawi who had taken over the wheel because the
OKT was allegedly exhausted having been at the wheel for about 17
hours, ever since the boat had left the harbor at Batu Bara, Sumatra
during the early hours in the morning previous. This evidence is
entirely different from what prosecution witness SP4 had said in his
evidence in chief, where he had said:
“SP4: Bila saya menaiki bot OKT itu, saya lihat 3 orang
lelaki sedang tidur di dalam rumah kemudi, saya telah
kejutkan mereka”.
Page 38 of 50
37.
One of these 3 men who were seen sleeping by SP4, was
subsequently identified as Asar Nawi. This Court then proceeded to
see the evidence in this respect in the cross-examination of SP4 by
learned Counsel and after much searching this Court was not able to
find anything in the notes of evidence recorded during the said
cross-examination that impacted on this issue of Asar Nawi. It was
not disputed by learned Counsel that Asar Nawi was sleeping and
neither was it put categorically to the relevant Prosecution witness
that Asar Nawi was the man who was helming the said boat when it
was stopped and detained by our Marine Police patrol boat. It was
my finding too, that the cross-examination of the relevant
Prosecution witnesses had been general in nature and was directed
at diluting the veracity of their testimony but at the same time, what
specifically was the defence’s material version of events was never
suggested nor put to them in clear categorical terms.
38.
So, it would be rather incredible for the OKT to assert so late
in the day as per his testimony in this Court during defence stage. In
the light of the authorities mentioned above, one cannot escape the
conclusion that the version put up in the defence of the OKT had
smacked of an afterthought. Without first putting or suggesting its
case during the prosecution’s case by way of introducing even the
bare essentials of what would be its defence to the relevant
prosecution witnesses, the OKT had, throughout almost the entirety
of his defence, adduced evidence which appeared to centre on the
Page 39 of 50
role of Asar Nawi as the person responsible for bringing on board the
8 gunny sacks which were told to him to have contained daily
provisions, but later had turned out to be the impugned drugs
cannabis, totally without the OKT’s knowledge. I thought that Justice
Edgar Joseph Jr SCJ in the case of PP v Lin Lian Chen [1992] 2
MLJ 561 had indeed encapsulated the true impact of this kind of
situation when he had said:
“A final point needs to be made. The trial judge
appreciated correct law when he held, as he did in fact
hold, that the defence is entitled, through crossexamination of prosecution witnesses, to put its case at
the earliest possible stage.
Indeed, it behoves the
defence to do so, for we need hardly say that if a
defence is sprung in court for the first time when the
accused makes his defence from the witness box or the
dock so that the prosecution is taken by surprise, the
accused runs the risk of being criticized for having kept
his defence ‘up his sleeve’, so to speak, and it being
branded as a recent invention.”
39.
As was clearly articulated by the learned Chief Justice Tun
Azmi in the Tan Kim Ho’s case [supra] a defence that was so
constructed and pursued so late in the day, being an afterthought,
would invariably have an inherent and serious credibility issue to
surmount.
Page 40 of 50
40.
During the defence stage, it was also said by the OKT that
after they had waited for Wondar for about 10 minutes, and when
Wondar had failed to appear, the OKT decided to make his way back
to Indonesia. It was the evidence of the OKT that they were on their
way back to Indonesia and that when the boat was detained by the
complainant, it was admitted by the OKT that it was within the
Malaysian waters. This Court found this testimony of the OKT to be
rather incredible to be believed, because having had travelled for 17
hours from Batu Bara to Pulau Indah to allegedly meet Wondar to
deliver the 2 men and the goods, the OKT could only wait for about
10 minutes before deciding to leave and head back for Indonesia.
Unless of course, the OKT had to leave in such a huff because he
knew what he was carrying in his boat all the way from Indonesia. To
my mind, under the circumstances of this case, such a conclusion
cannot be dismissed as being far-fetched and indeed that it was the
only reasonable inference to be arrived at.
41.
As could be recalled, apart from his own testimony, the
defence had put in 2 affidavits affirmed by two persons in Sumatra
whose names he had mentioned in the course of his evidence. From
the perusal of the 2 affidavits they had not thrown any light on the
drugs contained in the gunny sacks. The affidavit affirmed by Ahmad
Tingkis only went to the extent that he was told by Asar Nawi that the
gunny sacks had contained ‘barang keperluan seharian’ which were
to be handed over to one by the name of Wondar upon arrival in
Page 41 of 50
Klang. In that respect, it is different from the affidavits of the two
friends of the accused in the case of PP v. Forster Frank Edald
Heinrich [1988] 2 MLJ 594 where they had unreservedly admitted
that the drugs found in the bag belonging to the accused in that case
were in fact theirs, which they had thrown into his bag when the
accused was going for the hotel room door to see who were outside
their hotel room asking to check their room. It is also to be noted that
the learned trial judge in that case had not relied on the 2 affidavits in
the course of his deliberation of the evidence that had resulted in him
acquitting the accused. But to be fair, it must be stated here that the
learned judge in Forster Frank’s case [supra] did in fact remark that
he had found the 2 affidavits to be ‘reasonably probable’ and that if
he was to take them into account, the case for the defence would
have been overwhelming and convincing. To my mind, the 2
affidavits so admitted in this case, ought to be considered just like
any other evidence. One other aspect of that consideration must
necessarily be that the affidavits so admitted, were not open to
cross-examination by the opposing side and as such, its veracity
could not be readily established. In the case of PP v Jamil bin
Yahya [1993] 3 MLJ 702, Justice KC Vohrah J [as he then was] had
expressed a view on such evidence as follows:
“In my view the weight and degree of credit to be attached to
a statement by a Declarant under paragraph (i) who is
patently not disinterested must be examined with greatest of
caution lest false stories or a false colouring to the stories
given by the declarant in the statement makes the court draw
Page 42 of 50
a jaundiced view of facts which cannot be verified through the
cross-examination of the declarant and facts which may
falsely implicate an accused.
And, more so where an
accused faces a charge carrying a mandatory sentence of
death on conviction on the charge.”
42.
The acute observation made by the learned Justice KC
Vohrah as expressed by him above was indeed well-founded. If I
may add, to my mind, the potentially inherent injustice that could
occur, because of such unverifiable declarations, cuts both ways. I
said so because in as much as the unverified fact ‘may falsely
implicate the accused’, similarly unverified fact may unwittingly or
unfairly exonerate a completely guilty person based on the evidence
of a ‘patently not disinterested’ witness. Based on the evidence of
the OKT before this Court, it would be rather hard pressed for this
Court not to conclude that Ahmad Tingkis would not be a ‘patently
not disinterested witness’. Bearing in mind the findings of this Court
on the OKT’s own evidence, I would not put too much weight on the
2 affidavits, namely D28 and D29 although they had been admitted
as evidence for the accused person as they had fulfilled the
requirements imposed under section 424 of the CPC read together
with section 32 of the Evidence Act 1950.
43.
It was also worth noting that although the OKT had tried to
shift the knowledge of the contents of the 8 gunny sacks to Asar
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Nawi and he had failed to call Asar Nawi to testify on his behalf, I
was of the view that nothing adverse could be inferred against him
for not having done so. The decision of the learned Chief Justice of
Singapore in the case of Mohammad Abdullah s/o Abdul Razak v
PP [2000] 2 SLR 789 would, in my view, represent the correct legal
position in respect of invoking adverse inference against an accused
person in a criminal trial. In a criminal trial, the Court ought to
consider in totality all that evidence that had been adduced by the
defence in the light of the evidence led by the Prosecution and see
whether
the
accused
person
had
rebutted
the
applicable
presumption against him or raised a reasonable doubt in the
prosecution’s case. In coming to that conclusion, one way or the
other, the fact that the accused person has failed to produce a
material witness or witnesses no adverse inference resembling the
one as provided under section 114(g) of the Evidence Act 1950,
could legally be invoked against him.
44.
Having said that, it is important to bear that in mind because
the OKT in this case had the onus of disproving or rebutting a
presumption of possession under section 37[d] DDA 1952 that had
been invoked against him, he would have to rebut that presumption
on the balance of probabilities. I found that the fact that the OKT did
not put his case to the relevant witnesses for the Prosecution during
the
respective
cross-examination
by
learned
Counsel
had
adveresely impacted his own credibility and the veracity of the
version of events as to what had actually taken place in Batu Bara.
Page 44 of 50
Had his version been put across to the relevant witnesses during
Prosecution’s case, the Prosecution would have been hard pressed
to rebut it. But the fact that it was not done, it therefore had smacked
of an afterthought and one of recent invention and one that had been
eked out of convenience. Invention, however ingenious, would still
remain an invention. Looking at the totality of the evidence made
available by the defence before this Court, it was my finding that it
has failed to rebut the presumption of possession with regard to the
impugned drugs. I had found it to be rather incredible to be believed
such that it had not rebutted the presumption of possession
operating against him on the balance of probabilities.
45.
The next issue must necessarily relate to the matter of
whether or not, under the circumstances obtaining in this case, the
OKT had actually committed an act of drug trafficking. This issue
had to be decided as a separate exercise, meaning to say that the
mere fact that the OKT had failed to rebut the presumption of
possession does not mean, ipso facto, that he must be guilty of
trafficking in the said drugs. Indeed, under the legal regime as could
be clearly seen in the DDA 1952, one could be guilty for an offence
of possession per se or for an offence of trafficking and these
offences exist as separate and distinct offences in their own right
and different punishments have been provided accordingly. Lest I
forget, in this case, it is worth remembering that no presumption of
trafficking under section 37[da] of the DDA 1952 was invoked
against the OKT. As such, the attending evidential burden which the
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OKT would have to discharge in order to be acquitted was to raise a
reasonable doubt in the factual ingredient of actual trafficking as
established by the Prosecution against him.
46.
In this regard, the case of Ong Ah Chuan v PP [1981] 1 MLJ
64, was instructive and the speech delivered by Lord Diplock in that
case had been cited in our Courts with approval and the relatively
recent stamp of approval had found its expression in the Federal
Court case of Abdul Rahman bin Akif [2007]5 MLJ 1. The conduct
of trafficking must necessarily involve an element of transporting or
delivering or conveying the contraband item from point ‘A’ to point ‘B’
for a purpose other than for one’s own consumption. The larger the
amount of contraband involved, the stronger would be the
assumption that they were not meant for self consumption and
naturally, the stronger would be the assumption that they were
meant for trafficking purposes. The assumption was rebuttable in
nature, but the larger the amount of the drugs involved, the more
difficult it would be for it to be rebutted in direct proportion. The
circumstances in this case had, to my mind, shown abundantly
clearly that the OKT was trafficking by way of transporting the said
drugs from Batu Bara to Klang area when the boat that he was
helming was stopped by SP3 and his men. His defence had been a
total denial of knowledge, thus the requisite possession, of the
contents of the 8 gunny sacks except that he was told that they had
contained daily provisions to be handed over to Wondar on arrival at
Klang, by Asar Nawi. We had since then known as a fact that the 8
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gunny sacks had contained 143,915 grammes of cannabis as
defined under section 2 of the DDA 1952. Lord Diplock had said in
Ong Ah Chuan’s case [supra] as follows: “Whether the quantities
involved be large or small, however, the inference was always
rebuttable. The accused himself best knew why he was conveying
the drugs from one place to another and, if he can satisfy the court,
upon the balance of probabilities only, that they were destined for his
own consumption he is entitled to be acquitted of the offence of
trafficking under section 3.” Having been presumed to be in
possession of the huge amount of cannabis, the OKT had not
attempted to explain his conduct in relation to the same. Indeed in
the instant case before me, the OKT had never said in his defence
that the said drugs were for his own consumption. Indeed, for him to
say that the drugs were for his own consumption would amount to
contradicting his professed line of defence, which had been one of
complete ignorance of the existence of the impugned drugs in the 8
gunny sacks that were brought onto his boat allegedly by Asar Nawi
in the waters near Batu Bara, in Sumatra. I therefore found that the
OKT in this case had failed to raise a reasonable doubt in the issue
of actual trafficking of the said drugs by the OKT.
47.
In the case of Mohamed Yatin bin Abu Bakar v PP (1950)
MLJ 57 it was held by learned Justice Spencer Wilkinson J that at
the end of defence case, the role of the trial Court must necessarily
be to determine whether the story offered by an accused person had
cast a reasonable doubt on the truth of the Prosecution’s case. If he
Page 47 of 50
succeeded in doing that, he must be acquitted. At the same time,
applying the legal principles in the case of Mat v PP [1963] 263 I had
found too that the OKT had failed to raise any reasonable doubt in
the case for the Prosecution that he was in fact trafficking in the
143,915 grammes of cannabis, contained in the 8 gunny sacks. I
found that the version presented by the defence in this case to be
akin to an afterthought which had severely compromised the
credibility of his evidence taken in totality and in the context of the
evidence led in the whole case in its entirety. Not only had I found
his evidence and the contents of the 2 affidavits to be difficult of
belief, I had found that, taken as a whole and cumulatively, the story
offered by the defence had not raised a reasonable doubt on the
truth of the Prosecution’s case. At this juncture, I had found it
opportune to quote learned Justice Augustine Paul FCJ in the
Federal Court case of Balachandran v PP [2005] 2 MLJ 301 where
he had stated that proof beyond reasonable doubt involved two
components. He had proceeded to explain that statement as follows:
“While one is the legal burden on the prosecution to
prove its case beyond reasonable doubt the other is the
evidential burden on the accused to raise a reasonable
doubt. Both these burdens can only be fully discharged
at the end of the whole case when the defence has
closed its case. Therefore a case can be said to have
been proved beyond reasonable doubt only at the
conclusion of a trial upon a consideration of all evidence
adduced as provided by s. 182A (1) of the Criminal
Page 48 of 50
Procedure Code. That would normally be the position
where the accused has given evidence. However, where
the accused remains silent there will be no necessity to
re-evaluate the evidence in order to determine whether
there is a reasonable doubt in the absence of any further
evidence for such a consideration.
The prima facie
evidence which was capable of supporting a conviction
beyond reasonable doubt will constitute proof beyond
reasonable doubt”.
48.
In this case before me, the prima facie case established
against the OKT by the prosecution had been subject to some
challenge by way of the OKT adducing evidence and presenting his
witness as well as the introduction of the 2 affidavits (D28 and D29).
Having taken the same in its totality, I had found that it had not been
able to create any reasonable doubt in the case for the prosecution.
In that regard, it was also my finding that the OKT had altogether
failed to raise a reasonable doubt in the mind of this Court as to his
guilt. As such, the Prosecution had succeeded in establishing proof
against the OKT beyond reasonable doubt. In the final analysis, it
was my finding that the OKT was guilty of trafficking in the said drugs
that were found in the cargo hatch of his boat when he was arrested
in Malaysian waters, just 0.2 nautical mile off Pelabuhan Barat,
Klang, Selangor and 0.28 nautical mile from Pulau Mat Zin , also in
Selangor.
Page 49 of 50
49.
Premised on the above findings, I had thereby convicted the
OKT on the charge P2, as preferred against him. The OKT,
according to his learned Counsel, before his arrest for this offence,
was a fisherman and that he had 9 children back in Indonesia. The
learned Deputy had said that there was only one mandatory death
sentence open to this Court as provided under the law for a
conviction under section 39B(1) of the DDA 1952. Such being the
case, I had thereby sentenced this OKT to death under section
39B(2) of the same Act, by hanging.
(ABANG ISKANDAR BIN ABANG HASHIM)
JUDICIAL COMMISSIONER,
HIGH COURT,
WILAYAH PERSEKUTUAN KUALA LUMPUR.
Dated 17th September 2009.
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