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2009 MarsdenLR 1821
BALIA YUSOF WAHI
PP – Appellant
Versus
SHAH RIZAN AYOOB HUSSAIN – Respondent
The prosecution must present sufficient and credible evidence to establish a prima facie case; absence of key witnesses can lead to acquittal.
Headnote:(A) Dangerous Drugs Act 1952 - Sections 39B(1)(a) and 39B(2) - Criminal Procedure Code - Section 112 - Accused charged with drug trafficking - Evidence of agent provocateur was crucial for prosecution's case but his absence led to a gap in evidence - Prosecution failed to prove prima facie case due to lack of substantive evidence linking accused to drugs - The evidence presented was insufficient to show possession or intent - Acquittal and discharge ordered. (Paras 16, 21, 33, 39)
Facts of the case:
The accused were arrested during a drug transaction at a hotel where around 9,743 grams of cannabis were found. The prosecution's case was based on the testimonies of police officers and an agent provocateur who was not present during the trial.
Findings of Court:
The court found that the prosecution did not present a prima facie case as it relied on insufficient evidence without the agent provocateur’s testimony.
Issues: The main issues included whether the evidence of the agent provocateur was essential, and whether there was sufficient proof of the accused’s possession and involvement in drug trafficking.
Ratio Decidendi: The court ruled that without the crucial evidence from the agent provocateur, the prosecution's case lacked the strength to link the accused to the crime, necessitating their acquittal.
Result: The accused were acquitted and discharged.
Balia Yusof Wahi J:
[1] Both the accused persons were charged as follows:
Bahawa kamu pada 22 Jun jam lebih kurang 12.30 pagi, dalam mencapai niat bersama kamu, di tempat letak motokar Hotel Royal Casuarina, Jalan Gopeng Ipoh, di dalam Daerah Kinta, di dalam Negeri Perak, telah mengedar dadah berbahaya iaitu cannabis seberat 9743 gram dan oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama dibaca bersama seksyen 34 Kanun Keseksaan .
The Prosecution Case
[2] On 21 June 2003, DSP Ravichandran a/l Ramachandran (SP7) has arranged for a sale transaction of 10 kilograms of cannabis between Detective Lance Corporal Ananthakrishnan (the agent provocateur) with the two accused persons at the Hotel Royal Casuarina, Jalan Gopeng, Ipoh, Perak.
[3] Prior to that, on 6 June 2003, SP7 was told by one Lance Corporal Hosni that a "source" was willing to cooperate with him to introduce a supplier to the agent provocateur. At about 10.20pm on the same day, SP7 arranged for a meeting to take place between the agent provocateur and the supplier at the Mc Donald's Restaurant in Juru Seberang Perai. The supplier was later identified by SP9, Sergeant Hasni Mohamad to be the two accused persons. The meeting between the agent provocateur and the two accused persons took place for about 20 minutes which was observed by SP9 who sat in the distance observing what transpired at the said restaurant. SP9 subsequently briefed SP7 on what took place at the restaurant. SP7 was also told by the agent provocateur that the two accused agreed to supply 20 kilos of ganja at a price of RM2,000 per kilogram.
[4] Subsequently, on 20 June 2003 the agent provocateur contacted SP7 informing him that the supplier can supply 10 kilograms and willing to come to Ipoh the next day.
[5] Following that, on 21 June 2003 SP7 held a briefing at his office giving specific instructions to his men of an impending drugs transaction taking place at the Hotel Royal Casuarina, Jalan Gopeng, Ipoh. Among others, besides giving instruction on the placement of his men, SP7 gave RM20,000 as a "flash roll money" to the agent provocateur for the purchase of the said drugs. SP7 and his men waited in ambush at the hotel while the agent provocateur waited at the hotel lobby.
[6] At about 10.30pm the two accused persons were seen coming to the hotel in a Proton Waja car bearing registration no. PFH 4122. The two proceeded to the hotel lobby and met the agent provocateur there. They were seen having a conversation with the agent provocateur and a few minutes later were seen leaving the hotel in the same car going towards the direction of Jalan Gopeng. SP7 was informed by the agent provocateur that the transaction will take place at the hotel car park.
[7] Subsequently at about 12.15am on 22 June 2003 a Proton Wira car bearing registration no. PEH 5530 driven by the first accused with the second accused seated at the front passenger seat was seen coming to the hotel parking area followed by the earlier Proton Waja car no. PFH 4122. After parking the car PEH 5530, the two accused were seen going into the lobby of the hotel again to meet the agent provocateur and after having a conversation for about 5-6 minutes, the agent provocateur gave the pre-arranged signal to SP7 to effect arrest on the two accused. The two accused were arrested in the hotel lobby near the lift.
[8] The two accused were taken to the Proton Waja Car PFH 4122 and nothing incriminating was found therein. The two were then taken to the Proton Wira car no. PEH5530 and with the key earlier seized from the first accused, the car was unlocked and an inspection carried out. During the inspection, SP7 found a box with the words 'vacuum clear Nihoma' (exh. P7A) written on it and upon closer examination was found to contain five white envelopes Nippon Express Malaysia (exhs. P8 A-E) each containing two slabs of compres
