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2013 MarsdenLR 2762
FEDERAL COURT PUTRAJAYA
ZAIFULL MUHAMMAD – Appellant
Versus
PP & ANOTHER APPEAL – Respondent
[Criminal Appeals No: 05-197-2011 & 05-198-2011]
Material discrepancies in the prosecution's charge raised reasonable doubt about the identity of the drug exhibit, necessitating an acquittal.
Headnote:(A) Dangerous Drugs Act, 1952 - Sections 39B(1)(a), 39B(2), and 34 - Appeals against conviction and sentence for drug trafficking - Conviction based on evidence of police officer as agent provocateur and possession of cannabis - Inconsistencies in original charge as related to weight and number of drug packets raised doubts on identity of drug - Material discrepancies necessitate explanation by prosecution. (Paras 34, 35, 36)
(B) Criminal Law - Presumption of innocence - Burden of proof lies with prosecution to establish guilt beyond reasonable doubt - Any material discrepancy that affects identity of exhibit raises reasonable doubt. (Paras 34, 37)
Facts of the case:
The appellants were arrested during a prearranged drug transaction involving 799.4 grams of cannabis. The 1st appellant claimed he had no knowledge of the drug found in his vehicle. The 2nd denied negotiating the sale. Decision of the High Court: Both appellants were convicted and sentenced to death, with no reasonable doubt raised on the prosecution's case.
Findings of Court:
There were material discrepancies regarding the weight and number of cannabis packets that compromised the integrity of the prosecution's evidence.
Issues: Whether there were discrepancies in the weight and identity of the drug exhibit and if these discrepancies affected the prosecution's case.
Ratio Decidendi: The court ruled that significant inconsistencies in the charge regarding weight and number of drug packets raised doubts on the drug's identity, leading to a reasonable doubt on guilt.
Result: Appeals allowed; convictions set aside.
| Table of Content |
|---|
| 1. description of drug trafficking incident. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 2. 1st appellant's account of events. (Para 15 , 16 , 17 , 18 , 19 , 20) |
| 3. 2nd appellant's defense of innocence. (Para 22 , 23 , 24) |
| 4. high court's concluding remarks on guilt. (Para 25 , 26) |
| 5. arguments on inconsistencies in drug evidence. (Para 27 , 28 , 29 , 30 , 31 , 32 , 33) |
| 6. judicial reasoning on evidence discrepancies. (Para 34 , 35 , 36 , 37 , 38 , 39) |
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 appellants against their conviction and sentence imposed by the High Court.
[2] 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 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 s 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah s 39B(2) Akta Dadah Berbahaya 1952 dibaca bersama-sama s 34 Kanun Keseksaan."
The Facts
[3] 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 Delik, Klang, Chief inspector Loi Yew Lik ("PW4") was introduced to the 2nd appellant by his informer. The informer left the scene immediately after the introduction. in that introduction, PW4 introduced himself to the 2nd appellant" as "Alex", a businessman running a pub in Sunway, Petaling Jaya. The 2nd appellant introduced himself as "Osama".
[4] PW4 negotiated with the 2nd appellant for the purchase of proscribed drugs from the 2nd appellant. PW4 asked for three kilograms of cannabis from the 2nd appellant, but the 2nd appellant refused to supply that amount as he was apprehensive about it, since he had never dealt with PW4 before. instead, the 2nd appellant offered only one kilogram of cannabis to PW4. The 2nd appellant told PW4 that the drug was of a high quality and fixed the price at RM2, 700.00, which PW4 agreed. PW4 showed the money to the 2nd appellant. However, the 2nd appellant asked PW4 to meet him later at 7pm 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 2nd appellant.
[5] 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 2nd appellant came out from the front passenger door of that car and walked towards PW4's car. The 2nd appellant asked PW4 to get into his car to take the drug, but PW4 refused. The 2nd appellant then went back to his car. Two minutes later, the 2nd appellant came out of his car and walked towards PW4's car. The 2nd appellant got into PW4's car and told PW4 that his friend would fetch the drug while he and PW4 would wait there. PW4 agreed with that plan.
[6] Later, the 2nd 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 stopped his car. Five minutes later, PW4 saw the same Iswara car driven by a Malay man driving slowly past his car. The 2nd appellant asked PW4 to follow the Iswara car, which he did.
[7] After a while, the Iswara car stopped by the road side. PW4 stopped his car right behind the Iswara car. The 2nd appellant then went out from PW4's car and got into the Iswara car. One minute later, the 2nd appellant came
