348 Malayan Law Journal [2013] 2 MLJ
Zaifull bin Muhammad v Public Prosecutor and another A
appeal
FEDERAL COURT (PUTRAJAYA) — CRIMINAL APPEAL NOS 05–197
B
OF 2011 AND 05–198 OF 2011
ARIFIN ZAKARIA CHIEF JUSTICE, ABDULL HAMID EMBONG,
ZAINUN ALI, SULONG MATJERAIE AND JEFFREY TAN FCJJ
9 JANUARY 2013
C
Criminal Procedure — Appeal — Conviction and sentence, against — Appellant
charged with drug trafficking — Whether there were material discrepancies
between particulars of charge and evidence of material witnesses — Whether
prosecution’s failure to explain discrepancies raised reasonable doubt in its case —
D
Whether safe to uphold convictions
Evidence — Exhibits — Break in chain of evidence — Whether number of slabs of
drug exhibit and gross weight of drug exhibit went to identity of drug exhibit —
Whether there was break in chain of evidence relating to drug exhibit E
Chief Inspector Loi Yew Lik (PW4) had been introduced to the second
appellant by an informer. PW4 had then negotiated with the second appellant
for the purchase of 1kg of cannabis at RM2,700. Based on that negotiation,
PW4 had arranged for an ambush to be carried out during the forthcoming F
meeting between PW4 and the second appellant. While PW4 waited in his car,
the second appellant arrived in a Proton Iswara driven by another, approached
PW4 and instructed him to drive to a location in Klang to collect the drugs
from a friend. At the location in Klang, the second appellant instructed PW4
to follow the same Proton Iswara, which PW4 did until the car stopped by the G
road side. After the second appellant confirmed that the drugs were in the
Proton Iswara and left PW4’s car to collect the drugs, PW4 gave the
prearranged signal for the police ambush party to act. Thereupon the police
ambush party descended on the Proton Iswara car and arrested the second
appellant and the driver of the Proton Iswara (‘first appellant’). PW4 H
conducted a search of the Proton Iswara and discovered a white plastic bag,
which contained a slab of compressed cannabis (‘satu ketulan’), underneath the
front passenger seat and a small black bag, which contained a small package of
cannabis (‘satu mampatan kecil’), on the back seat. PW4 marked the drugs
seized for identification by signing his name and writing the date before I
handing over the same to the investigating officer of the case (‘PW8’). The
drugs seized were later analysed by a government chemist to be 799.4g of
cannabis. The appellants were charged with trafficking in the cannabis. At the
close of the prosecution case the trial judge found that a prima facie case had
Zaifull bin Muhammad v Public Prosecutor and another
[2013] 2 MLJ appeal (Arifin Zakaria Chief Justice) 349
A been made against the appellants and ordered them to enter their defence. The
appellants, who elected to give evidence on oath, denied any knowledge of the
drugs found in the Iswara car. At the close of the defence the trial judge came
to the conclusion that the appellants had failed to raise any reasonable doubt on
the prosecution’s case and accordingly convicted them of the offence as charged
B and sentenced them too death. The appellants appealed to the Court of Appeal
but both the appeals were dismissed. Hence the present appeals, which were
heard together because they involved the same facts. In his appeal the first
appellant raised two grounds of appeal, while the second appellants raised four
C grounds of appeal. It was a common ground of their appeals that there were
serious doubts as to the identity of the drug exhibits. It was the appellants’
contention that there were contradictions and inconsistencies in the material
particulars of the charge and the evidence of the witnesses for the prosecution,
namely PW4, PW8 and the chemist who analysed the drugs. In this regard the
D appellants argued that the charge against them stated that there were six
‘ketulan’ of cannabis and that the gross weight of the cannabis was 880g.
However, PW4 testified that he found ‘satu ketulan’ cannabis in a white plastic
bag and ‘satu mampatan kecil’ cannabis in a black bag in the back seat of the
car, and that he handed over the same to PW8. At the same time PW8 had
E testified that he received ‘two ketulan’ from PW4, while the chemist testified
that he had received ‘two ketulan’ from PW8. As for the gross weight of the
cannabis, PW8 stated that the gross weight was 880g, while the chemist
testified that the gross weight was 829.49g. In response the prosecution
submitted that all the relevant witnesses called by the prosecution had
F
positively identified the drug exhibit based on the contemporaneous markings
made by the witnesses. On that premise, the prosecution contended that the
discrepancies did not create any doubt in the identity of the drug exhibit.
G Held, allowing the appeals:
In the present case, there were two material discrepancies, namely the number
of ‘ketulan’ and the gross weight of the cannabis. Both these discrepancies were
never explained by the prosecution, save to say that the charge referred to by the
appellants was the original charge and that the amended charge read as
H trafficking in 799.4g of cannabis. In the circumstances of this case, it was
incumbent upon the prosecution to offer some explanation for the
discrepancies. The fact that these discrepancies were left unexplained created a
reasonable doubt as to identity of the drug exhibit and it was not open to the
prosecution to contend otherwise. As such, the defence should not have been
I called at the close of the prosecution. Having considered the cases cited, it was
a contradiction in terms for the prosecution to contend that there was no break
in the chain of evidence, when in fact there were material discrepancies as to the
weight and the number of ‘ketulan’ of the drug exhibit. On that premise, it
would not be safe to uphold the convictions (see para 37).
350 Malayan Law Journal [2013] 2 MLJ
[Bahasa Malaysia summary A
Ketua Inspektor Loi Yew Lik (‘PW4’) telah diperkenalkan kepada perayu
kedua oleh seorang pemberi maklumat. PW4 kemudiannya berunding dengan
perayu kedua untuk membeli 1kg ganja dengan harga RM2,700. Berdasarkan
rundingan tersebut, PW4 mengatur serang hendap semasa pertemuan akan B
datang di antara PW4 dan perayu kedua. Sementara PW4 menunggu di dalam
keretanya, perayu kedua tiba dengan Proton Iswara yang dipandu oleh orang
lain, mendekati PW4 dan mengarahkannya untuk memandu ke lokasi di
Klang untuk mengambil dadah tersebut daripada seorang kawan. Di lokasi di
Klang, perayu kedua mengarahkan PW4 untuk mengikuti Proton Iswaranya, C
yang mana PW4 turuti sehingga kereta tersebut berhenti di tepi jalan. Selepas
perayu kedua mengesahkan bahawa dadah berada dalam Proton Iswara dan
meninggalkan kereta PW4 untuk mengambil dadah tersebut, PW4
memberikan isyarat yang telah dirancang untuk pasukan polis serang hendap
bertindak. Dengan itu, pasukan polis serangan hendap mengepung kereta D
Proton Iswara tersebut dan menahan perayu kedua dan pemandunya (‘perayu
pertama’). PW4 menjalankan carian ke atas Proton Iswara tersebut dan
menjumpai beg plastik putih, yang mengandungi papak mampat ganja (‘satu
ketulan’), di bawah tempat duduk penumpang hadapan dan beg kecil hitam,
yang mengandungi bungkusan kecil ganja (‘satu mampatan kecil’), di tempat E
duduk belakang. PW4 menandakan dadah yang dirampas untuk pengenalan
dengan menandatangani namanya dan menulis tarikh sebelum
menyerahkannya kepada pegawai penyiasat kes tersebut (‘PW8’).
Dadah-dadah yang dirampas kemudiannya dianalisa oleh ahli kimia kerajaan
sebagai seberat 799.4g ganja. Perayu-perayu dituduh mengedar ganja tersebut. F
Di akhir kes pendakwaan hakim bicara mendapati bahawa kes prima facie telah
dibuktikan terhadap perayu dan memerintahkan mereka untuk
mengemukakan pembelaan. Perayu-perayu, yang memilih untuk memberikan
keterangan bersumpah, menafikan sebarang pengetahuan tentang dadah yang
ditemui di dalam kereta Proton Iswara. Di akhir kes pembelaan hakim bicara G
membuat kesimpulan bahawa perayu telah gagal menimbulkan sebarang
keraguan munasabah ke atas kes pendakwaan dan menyabitkan mereka atas
kesalahan seperti yang dituduh dan menjatuhkan hukuman mati ke atas
mereka. Perayu-perayu merayu ke Mahkamah Rayuan tetapi kedua-dua
rayuan ditolak. Dengan itu, rayuan ini, yang telah dibicarakan bersama-sama H
kerana melibatkan fakta-fakta yang sama. Dalam rayuannya, perayu pertama
membangkitkan dua alasan rayuan, manakala perayu kedua membangkitkan
empat alasan rayuan. Adalah menjadi alasan asas rayuan mereka bahawa
terdapat keraguan serius terhadap identiti ekshibit dadah. Perayu
menghujahkan bahawa terdapat percanggahan dan ketidakseragaman dalam I
butir-butir material pertuduhan dan keterangan saksi-saksi bagi pihak
pendakwaan, iaitu PW4, PW8 dan ahli kimia yang menganalisa dadah. Dalam
hal ini perayu-perayu menghujahkan bahawa pertuduhan terhadap mereka
menyatakan bahawa terdapat enam ‘ketulan’ ganja dan berat kasar ganja adalah
Zaifull bin Muhammad v Public Prosecutor and another
[2013] 2 MLJ appeal (Arifin Zakaria Chief Justice) 351
A 880g. Walau bagaimanapun, PW4 memberi keterangan bahawa dia
menjumpai ‘satu ketulan’ ganja dalam beg plastik putih dan ‘satu mampatan
kecil’ ganja dalam beg hitam di tempat duduk belakang kereta tersebut, dan
bahawa dia menyerahkannya kepada PW8. Pada masa yang sama PW8 telah
memberi keterangan bahawa dia menerima ‘dua ketulan’ daripada PW4,
B manakala ahli kimia memberi keterangan bahawa dia menerima dua ketulan
daripada PW8. Bagi berat kasar ganja, PW8 menyatakan bahawa berat kasar
adalah 880g, manakala ahli kimia memberi keterangan bahawa berat kasar
adalah 829.49g. Sebagai jawapan pihak pendakwaan menghujahkan bahawa
kesemua saksi berkenaan yang telah dipanggil oleh pihak pendakwaan telah
C mengenalpasti secara positif ekshibit dadah berdasarkan tanda semasa yang
dibuat oleh saksi-saksi. Oleh itu, pihak pendakwaan menghujahkan bahawa
percanggahan tidak menyebabkan sebarang keraguan pada identiti ekshibit
dadah.
D
Diputuskan, membenarkan rayuan-rayuan:
Dalam hal ini, terdapat dua percanggahan material, iaitu bilangan ‘ketulan’
dan berat kasar ganja. Kedua-dua percanggahan tidak dijelaskan oleh pihak
pendakwaan, kecuali untuk menyatakan bahawa pertuduhan yang dirujuk
E oleh perayu adalah pertuduhan asal dan bahawa pertuduhan yang dipinda
dibaca sebagai mengedarkan 799.4g ganja. Dalam hal keadaan kes ini, pihak
pendakwaan wajib menawarkan beberapa penjelasan bagi percanggahan. Fakta
bahawa percanggahan ini dibiarkan tanpa dijelaskan mewujudkan keraguan
munasabah ke atas identiti ekshibit dadah dan ia tidak terbuka kepada
F pendakwaan untuk menghujahkan sebaliknya. Oleh itu, pihak pembelaan
tidak sepatutnya dipanggil di akhir pendakwaan. Setelah mempertimbangkan
kes-kes yang dirujuk, menjadi suatu penyanggahan bagi pihak pendakwaan
untuk menghujahkan bahawa tiada pemutusan dalam rantaian keterangan,
sedangkan hakikatnya terdapat percanggahan material berat dan bilangan
G ‘ketulan’ ekshibit dadah. Oleh itu, tidak selamat untuk mengekalkan sabitan
(lihat perenggan 37).]
Notes
For cases on appeal against conviction and sentence, see 5(1) Mallal’s Digest
H (4th Ed, 2012 Reissue) paras 324–370.
Cases referred to
(1) Namasiyam (2) Rajindran (3) Goh Chin Peng and (4) Ng Ah Kiat v Public
I Prosecutor [1987] 2 MLJ 336, SC (refd)
Loh Kah Loon v PP [2011] 4 MLJ 260; [2011] 5 CLJ 345, FC (refd)
Tan Yew Choy v PP [2010] 5 MLJ 212; [2009] 4 CLJ 246, FC (refd)
Yeong Kia Heng lwn Pendakwa Raya [1992] 1 MLJ 327; [1992] 1 CLJ 364, SC
(folld)
352 Malayan Law Journal [2013] 2 MLJ
Legislation referred to A
Dangerous Drugs Act 1952 ss 2, 40A(1), (2)
Hisham Teh Poh Teik (Teh Poh Teik & Co) for the first appellant.
Rosal Azimin bin Ahmad (Shamsuddin & Co) for the second appellant.
Mohamad Abazafree bin Mohamad Abbas (Deputy Public Prosecutor, Attorney B
General’s Chambers) for the respondent.
Arifin Zakaria Chief Justice (delivering judgment of the court):
C
INTRODUCTION
[1] These two appeals were heard together as they involved the same facts.
The Court of Appeal had on 19 July 2011 dismissed the appeals by the D
appellants against their conviction and sentence imposed by the High Court.
The charge proffered against the appellants reads:
Bahawa kamu bersama-sama, pada 8 Disember 2004, lebih kurang jam 7.45 petang
di Jalan Emas, Taman Melawis, di dalam daerah Klang, di dalam Negeri Selangor E
Darul Ehsan, untuk mencapai niat bersama kamu, telah didapati memperedarkan
dadah berbahaya iaitu seberat 799.4 gram Cannabis dan dengan itu kamu telah
melakukan satu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya
1952 dan boleh dihukum di bawah Seksyen 39B(2) Akta Dadah Berbahaya 1952
dibaca bersama-sama Seksyen 34 Kanun Keseksaan.
F
THE FACTS
[2] The facts relevant to this appeal as narrated by the trial judge are briefly
as follows: On 8 December 2004, at a food stall at Simpang Empat, Kampung G
Delik, Klang, Chief Inspector Loi Yew Lik (‘PW4’) was introduced to the
second appellant by his informer. The informer left the scene immediately after
the introduction. In that introduction, PW4 introduced himself to the second
appellant as ‘Alex’, a businessman running a pub in Sunway, Petaling Jaya. The
second appellant introduced himself as ‘Osama’. H
[3] PW4 negotiated with the second appellant for the purchase of proscribed
drugs from the second appellant. PW4 asked for 3kg of cannabis from the
second appellant, but the second appellant refused to supply that amount as he
was apprehensive about it, since he had never dealt with PW4 before. Instead, I
the second appellant offered only 1kg of cannabis to PW4. The second
appellant told PW4 that the drug was of a high quality and fixed the price at
RM2,700, which PW4 agreed. PW4 showed the money to the second
appellant. However, the second appellant asked PW4 to meet him later at 7pm
Zaifull bin Muhammad v Public Prosecutor and another
[2013] 2 MLJ appeal (Arifin Zakaria Chief Justice) 353
A on the same day and place. The negotiation was conducted in Malay. Based on
that negotiation, PW4 went back to his office at the police headquarters in
Shah Alam and briefed his men. They then, arranged for an ambush to be
carried out during the forthcoming meeting between PW4 and the second
appellant.
B
[4] At 6.30pm that evening, PW4 waited in his car at the agreed place. He
was alone in the car. At 7pm, PW4 saw a car, a Proton Iswara bearing
registration No BHC 4964 approaching his car and stopped about 15 meters
from where he was waiting. Then, the second appellant came out from the
C front passenger door of that car and walked towards PW4’s car. The second
appellant asked PW4 to get into his car to take the drug, but PW4 refused. The
second appellant then went back to his car. Two minutes later, the second
appellant came out of his car and walked towards PW4’s car. The second
appellant got into PW4’s car and told PW4 that his friend would fetch the drug
D while he and PW4 would wait there. PW4 agreed with that plan.
[5] Later, the second appellant asked PW4 to drive to Taman Melawis in
Klang, where he said his friend would deliver the drug. PW4 agreed and drove
to that place. Near the junction heading towards Taman Melawis, PW4
E stopped his car. Five minutes later, PW4 saw the same Iswara car driven by a
Malay man driving slowly past his car. The second appellant asked PW4 to
follow the Iswara car, which he did.
F
[6] After a while, the Iswara car stopped by the road side. PW4 stopped his
car right behind the Iswara car. The second appellant then went out from
PW4’s car and got into the Iswara car. One minute later, the second appellant
came out from the Iswara car and got into PW4’s car. The second appellant told
PW4 that his friend wanted the money to be paid first before PW4 could take
G
delivery of the drug. PW4 did not agree to that and told the second appellant
that he wanted to see the drug first. PW4 asked the second appellant to bring
the drug to him. The second appellant then told PW4 that he had personally
seen the drug inside the Iswara car. The second appellant went back to the
Iswara car, to take the drug.
H
[7] When the second appellant got into the Iswara car, PW4 then gave the
prearranged signal, that is by pressing on the brake lights of his car, to the police
ambush party to act. Thereupon, the police ambush party descended on the
Iswara car. A police Pajero vehicle blocked the path of the Iswara car. PW4
I rushed out of his car and arrested the second appellant. Chief Inspector Mohd
Husni bin Manaf (‘PW5’) arrested the driver of the Iswara car, who was later
identified as the first appellant.
354 Malayan Law Journal [2013] 2 MLJ
[8] PW4 then conducted a search inside the Iswara car. Underneath the front A
passenger seat of the car, PW4 found a white plastic bag with the words ‘Mobil
Mart’ printed on it. Inside that bag, PW4 found a slab of compressed cannabis
(‘satu ketulan mampat dadah ganja’) wrapped in transparent plastic and
aluminum foil.
B
[9] On the back seat, PW4 found a small black bag with the words ‘Bahagian
Pembangunan Kesihatan Keluarga Kementerian Kesihatan’. Inside that black
bag, PW4 found a small package of cannabis (‘satu mampatan kecil ganja’)
wrapped in yellow cellotape and yellow plastic. The first and second appellants, C
together with the packages seized, were all brought to IPD Klang.
[10] Before handing over the seized items to the investigating officer, Chief
Inspector Ahmad bin Mohd Rambli (‘PW8’), PW4 marked those items for
identification, by signing his signature and writing the date ‘8/12/04’ coupled D
with other markings.
[11] The seized items were sent to the government chemist for analysis. The
government chemist, PW2 confirmed that they were cannabis as defined in s 2
of the DDA, having a net weight of 799.4g. E
PROCEEDINGS IN THE HIGH COURT
[12] At the end of prosecution case, upon a maximum evaluation of the F
prosecution case, the learned trial judge held that a prima facie case had been
established against both the appellants. The learned judge held that the ‘actual
possession’ and ‘actual knowledge’ had been proven against them. As to the
admissibility of PW4’s evidence as an agent provocateur, the learned trial judge
relied on s 40A(1)–(2) of the DDA and the decision of the Federal Court in (1) G
Namasiyam (2) Rajindran (3) Goh Chin Peng and (4) Ng Ah Kiat v Public
Prosecutor [1987] 2 MLJ 336.
[13] Accordingly, both the appellants were ordered to enter upon their
defence. Both the appellants opted to give their evidence on oath. H
The first appellant’s defence
[14] The first appellant denied any knowledge of the drug found in the
Iswara car. He said, the Iswara car belonged to his father. That night, he I
borrowed his father’s car to pick up and send the second appellant to his
workplace at the Marine Department Port Klang. On their way, the second
appellant received a phone call and requested to be dropped off at Simpang
Empat, Kampung Delik, Klang to meet a friend.
Zaifull bin Muhammad v Public Prosecutor and another
[2013] 2 MLJ appeal (Arifin Zakaria Chief Justice) 355
A [15] After dropping off the second appellant, the first appellant received a
phone call from a friend by the name of Madin. Madin wanted to see the first
appellant in a restaurant at Melawis, Klang. He claimed, he met Madin at the
restaurant. Madin borrowed the Iswara car for about 1/2 an hour, while he
waited at the restaurant.
B
[16] After Madin returned the car to him, he went off to pick up the second
appellant, from where he had dropped off the second appellant earlier. But on
his way, he was stopped by the second appellant who was inside PW4’s car. He
then stopped his car in front of PW4’s car.
C
[17] Then, he saw the second appellant coming out from PW4’s car and
walked towards his car. The second appellant told him to wait for a while.
Then, the second appellant went back to PW4’s car. A short while later, the
second appellant walked back to his car and got into the car.
D
[18] Once inside, the second appellant asked him to send him to his work
place. When he was about to engage the car into the first gear, a Pajero jeep
suddenly intercepted his path and blocked his car.
E
[19] A number of persons came out from the Pajero. They were all not
wearing police uniform. The first appellant thought that they were robbers.
The first and second appellants were pulled out of the car and were brought
behind the car and made to sit on the road side. Then, one of the members of
F the raiding party, who identified himself as a police officer, told him he wanted
to conduct a search. They could not see what was happening inside the car as
they were sitting behind the car, facing the opposite direction. 20 minutes later,
a Chinese gentleman approached the first appellant showing a package. He put
that package on the roof of the car and asked the first appellant, what was in
G that package. The first appellant said he had no knowledge of the contents of
the package. He then told the first appellant, ‘Ini barang salah …’. The first
appellant was shocked and scared. He asked the police, where was the package
found. The police said, it was found inside the car.
H [20] They were subsequently brought to Shah Alam Police Station. Later on,
the first appellant was brought to his house and a search was conducted in his
house, but nothing incriminating was found.
I
356 Malayan Law Journal [2013] 2 MLJ
The second appellant’s defence A
[21] The second appellant also denied any knowledge of the drug. He
admitted he met PW4 on the morning and later at night on the day in
question. However, at those meetings, they were merely chit-chatting about B
their common interest, ie fishing while having teh tarik. He denied negotiating
for the sale of any drug with PW4. He said, he was introduced to PW4 by his
friend Sabri at a stall.
[22] And on the material date, initially, he took a ride in the first appellant’s C
car to his work place. But on the way, Sabri called him to go over to the stall.
[23] The first appellant dropped him off at the stall where he met Sabri and
PW4. They chit chatted about fishing. Since the first appellant did not turn up D
to pick him up as promised, the second appellant asked PW4 to drive him to
his work place. On the way, the first appellant called and told him that he was
at Taman Melawis. Then, he saw the first appellant’s car overtaking their car
and stopping in front of PW4’s car. He then went over to the first appellant’s car
to thank him, but all of a sudden, a Pajero jeep blocked the first appellant’s car E
and arrested them.
Decision of the High Court
F
[24] At the close of the defence, the learned trial judge came to the
conclusion that the appellants failed to raise any reasonable doubt on the
prosecution’s case and accordingly the learned trial judge held that the
appellants were guilty of the offence as charged. They were sentenced to death.
G
PROCEEDINGS IN THE COURT OF APPEAL
[25] The appellants appealed to the Court of Appeal. The appeals were heard
together. On 19 July 2011, the Court of Appeal unanimously dismissed both
H
the appeals and affirmed the conviction and sentence imposed by the High
Court.
FINDINGS OF THIS COURT
I
[26] Learned counsel for the first appellant raised two grounds of appeal
while learned counsel for the second appellant raised four grounds of appeal.
We will first consider the common ground of appeal that there are serious
doubts as to the identity of the drug exhibit.
Zaifull bin Muhammad v Public Prosecutor and another
[2013] 2 MLJ appeal (Arifin Zakaria Chief Justice) 357
A [27] Learned counsel for the appellants submitted that in the present case,
the original charge before the magistrate reads as follows:
Bahawa kamu bersama-sama pada 08/12/2004 jam lebih kurang 7.45 petang, di
tepi Jalan Emas, Taman Melawis, di dalam Daerah Klang, di dalam Negeri Selangor
B bukan seorang yang diberi Kuasa di bawah Akta Dadah Berbahaya 1952 atau
mana-mana Peraturan di bawah Akta tersebut telah didapati di dalam jagaan dan
kawalan kamu [6] ketulan mampatan daun kering yang disyaki Ganja 880 gram [berat
kasar], oleh yang demikian kamu telah melakukan kesalahan di bawah Seksyen 39B
(1) Akta Dadah Berbahaya 1952 dan bolih dihukum di bawah Seksyen 39B(2) Akta
yang sama (Pindaan 1986). (Emphasis added.)
C
The material particulars stated in the said charge were — (a) there were six
‘ketulan’ of cannabis; and (b) the gross weight of the cannabis is 880g. Learned
counsel contended that they were not consistent with the evidence of the
witnesses for the prosecution.
D
[28] The material evidence on these issues are that of PW4, PW8 and PW2.
PW4 testified that he found a white plastic bag with the words ‘Mobil Mart’
printed on it. On examination, he found that the said bag contained ‘satu
ketulan mampat dadah ganja yang berbalut plastik lutsinar dan kertas timah’.
E PW4 also testified that he found on the backseat, a small black bag with the
markings ‘Bahagian Pembangunan Kesihatan Keluarga Kementerian
Kesihatan’. On examination, he found it to contain ‘satu mampatan kecil ganja
yang berbalut selotape berwarna kuning dan plastik warna kuning, di dalam
beg itu’. PW4 then handed over the exhibits to PW8.
F
[29] PW8 in his testimony stated that he received two ‘ketulan’ from PW4
which he later marked them as ‘AA1’ and ‘AB2’. Upon weighing, he found that
the gross weight of ‘AA1’ was 800g and that of ‘AB2’ was 80g thus, the total
weight was 880g. He further stated that after examining and marking the
G exhibits, he then kept them in the steel cabinet under lock and key. On
7 February 2005, he sent the exhibits to PW2.
[30] PW2 testified that he had received two ‘ketulan’ from PW8. He then
analysed the drug exhibit and confirmed that they were cannabis having a gross
H
weight of 829.49g. The net weight of the cannabis was 799.4g. PW4, PW8 and
PW2 consistently spoke of only two ‘ketulan’ of cannabis and no one ever
mentioned six ‘ketulan’ as stated in the original charge. As for the gross weight
of the cannabis, PW8 stated that the gross weight was 880g. However, PW2
testified that the gross weight was 829.49g.
I
358 Malayan Law Journal [2013] 2 MLJ
[31] In response, the learned deputy public prosecutor submitted that the A
charged referred to by the learned counsel was the original charge framed
against the appellants when they were first charged in the lower court. The
charge was later amended to read as trafficking in 799.4g of cannabis. On that
premise, he contended that the discrepencies are not material to the
prosecution’s case. B
[32] We are of the view that in present case, there exist material discrepancies
in the gross weight of the cannabis mentioned in the original charge compared
to the evidence of PW2. Other than that, there also exist material discrepancy
in the number of ‘ketulan’ mentioned in the original charge compared to the C
number of ‘ketulan’ as testified by PW4, PW8 and PW2. The gross weight and
the number of ‘ketulan’ of the drug exhibit certainly go to the identity of the
drug exhibit. How else can the identity of the drug exhibit be established.
Therefore, any serious discrepancies on the gross weight and the number of
‘ketulan’, unless satisfactorily explained, in our view will go the question of D
identity of the drug exhibit.
[33] In the present case, there are two material discrepancies that is as to the
number of ‘ketulan’ and as to the gross weight of the cannabis. Both these
discrepancies were never explained by the prosecution, save to say that the E
charged referred to by learned counsel was the original charge, and the charge
was later amended to read as trafficking in 799.4g of cannabis. It was further
contended by the prosecution that since the amended charge is based on the
net weight, therefore, any discrepancy in the gross weight is immaterial.
F
[34] The prosecution further argued that based on the evidence before the
court, there is no break in the chain of the evidence with regard to the drug
exhibit. The prosecution submitted that all the relevant witnesses called by the
prosecution had positively identified the drug exhibit based on the
G
contemporaneous markings made by the witnesses. On that premise, the
prosecution contended that the discrepancies do not create any doubt in the
identity of the drug exhibit.
[35] With respect, we could not agree with the prosecution on this issue. We H
are of the view that, in the circumstance of this case, it is incumbent on the
prosecution to offer some explanation for the discrepancies. With the
discrepancies left unexplained, this created a reasonable doubt as to the identity
of the drug exhibit. In the circumstance, the defence should not have been
called at the close of the prosecution case. I
Zaifull bin Muhammad v Public Prosecutor and another
[2013] 2 MLJ appeal (Arifin Zakaria Chief Justice) 359
A [36] In Yeong Kia Heng lwn Pendakwa Raya [1992] 1 MLJ 327; [1992] 1 CLJ
364, like in the present case, there was a discrepancy in the weight of the drug
exhibit between the police and the chemist. The former Supreme Court held
that the difference in weight had cast a reasonable doubt on the identity of the
drug exhibit. On that premise, the Supreme Court held that the appellant
B ought not to have been called to enter his defence. Similarly in Tan Yew Choy v
Public Prosecutor [2010] 5 MLJ 212; [2009] 4 CLJ 246, the Federal Court
again found that because of the discrepancy in weight of drug exhibit as found
by the police as against the chemist, the Federal Court held that that gave rise
to a serious doubt on the identity of the drug exhibit and allowed the appeal by
C the accused. Zulkefli Makinudin FCJ, in delivering judgment of the court had
this to say:
We agree with the contention of the appellant that there is a serious doubt as to the
weight of the cannabis, thus affecting the identity of the cannabis. According to the
D chemist (PW3) the total weight of the cannabis is 224.65g. The weight of 224.65g
is obtained by adding the weight of the cannabis placed on the newspaper which is
151.08g and the cannabis from the 40 plastic packets which is 73.57g. However,
exh P15 (Borang Serah Menyerah) stated that the weight of the cannabis to be 140g
(on the newspaper) and 65g (in the 40 packets) making the total gross weight to be
205g. This would mean that by the time the cannabis reached the hands of the
E chemist the cannabis has increased in weight by 19.65g.
[37] Our attention was drawn to the case of Loh Kah Loon v Public Prosecutor
[2011] 4 MLJ 260; [2011] 5 CLJ 345 where the Federal Court held that even
F though there existed a discrepancy in the weight of the drug exhibit as found by
the police and the chemist, the High Court found as a fact that there was no
doubt in the identity of the exhibit because the evidence before the court
showed that there was no break in the chain of evidence. Having considered
these three previous decisions, we agree with the reasoning in Yeong Kia Heng
G lwn Pendakwa Raya . In our view, it is a contradiction in terms, to say that there
is no break in the chain of evidence, when in fact there exists material
discrepancy as to the weight of the drug exhibit. In any event, in the present
case the discrepancies are not only as regard to the gross weight but also as to the
number of ‘ketulan’. In our view, these are material discrepancies that go to the
H issue of identity of the drug exhibit. In the circumstances, therefore, it cannot
be said that there is no break in the chain of evidence. On that premise, we hold
I
360 Malayan Law Journal [2013] 2 MLJ
that it would not be safe to uphold the convictions. A
CONCLUSION
[38] In the upshot, the appeals are allowed and the conviction and sentence
imposed by the High Court, which were affirmed by the Court of Appeal, are B
set aside. The appellants are acquitted and discharged.
Appeals allowed.
C
Reported by Kohila Nesan
