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2010 MarsdenLR 833
ABDUL MALIK ISHAK, JEFFREY TAN, AZHAR MAAH
RIDWAN – Appellant
Versus
PP – Respondent
The prosecution must prove possession of dangerous drugs beyond reasonable doubt; knowledge can be inferred from circumstances, rejecting the defence of innocent carrier as unconvincing.
Headnote:(A) Dangerous Drugs Act 1952 - Sections 39B(1)(a) and 37(da)(xvi) - Trafficking in dangerous drugs - Appellant convicted for trafficking 793.66 grammes of methamphetamine, sentenced to death - Sufficient evidence presented for conviction, with no reasonable doubt raised by the appellant's defence of being an innocent carrier. (Paras 1, 13, 27, 46)
(B) Evidence and burden of proof - The prosecution must prove possession beyond reasonable doubt; even in the absence of direct evidence, knowledge can be inferred from the circumstances of the case, and the accused bears the burden to raise reasonable doubt against the prosecution’s case. (Paras 18, 26, 28)
Facts of the case:
Appellant attempted to flee from customs officials, leading to his arrest. Drugs were recovered hidden under his clothing, leading to a charge of trafficking. Despite testifying as an innocent carrier, his credibility was challenged. (Paras 2, 10, 27)
Findings of Court:
High Court found the prosecution had established a prima facie case of possession and trafficking, rejecting the appellant's defence based on the circumstances. Evidence overwhelmingly supported the guilt beyond reasonable doubt. (Paras 13, 26)
Issues: Whether the evidence sufficiently proved knowledge and possession for a trafficking conviction and whether the appellant’s claim of being an innocent carrier could raise reasonable doubt. (Paras 14, 27)
Ratio Decidendi: The court affirmed the findings of possession and trafficking based on the appellant's behavior and the circumstances surrounding the drugs; the High Court correctly assessed the credibility of the defence against the prosecution case. (Paras 27, 46)
Result: Appeal dismissed; conviction and sentence affirmed.
Abdul Malik Ishak JCA:
Introduction
[1] The appellant was charged for trafficking in dangerous drugs under s. 39B(1)(a) of the Dangerous Drugs Act 1952 ("the Act"), to wit, 793.66 grammes of methamphetamine on 22 October 2003 at about 4.15pm at the Pejabat Kawalan Perjalanan (TCO), Terminal Feri Stulang Laut, in the district of Johor Bahru in the State of Johor Darul Takzim and punishable under s. 39B(2) of the Act. He was convicted and sentenced to death by the High Court at Johor Bahru. He now appeals to this court against the conviction and sentence.
The Case For The Prosecution
[2] On the date and time as per the charge, Lance Corporal Suhaimi bin Sahar (PW6), a special branch officer was on duty near the customs checkpoint at Terminal Feri Stulang Laut. There, PW6 saw a man (later identified as the appellant) coming from the direction of the immigration counter towards the customs checkpoint. PW6 noticed that the appellant was behaving suspiciously. Upon approaching the customs checkpoint, the appellant was seen retreating and running towards the immigration counter. Upon seeing this PW6 shouted, "Tolong orang lari." Raja Sharudin bin Jaafar (PW3), a security officer who was on duty near the immigration counter, heard PW6 shouting and PW3 swung into action. PW3 quickly grabbed the appellant's shirt. The appellant put up a struggle but with the assistance of two other security guards, namely, Mohamed Ismail bin Sani and Mohd Roslan bin Shamsudin, the appellant was subdued. The whole episode was witnessed by Puan Norhayati binti Hamdan (PW4) - the duty immigration officer who had earlier on endorsed the appellant's passport. PW3 with the assistance of the other two security guards handed the appellant to PW6. PW3 did not lodge a police report about the arrest.
[3] PW6 seized an Indonesian passport from the appellant. PW6 then handcuffed the appellant and took him to PW6's office at the Terminal escorted by PW3 and the other two security guards. The appellant refused to answer when asked why he tried to run away.
[4] At PW6's office, PW6 conducted a body search on the appellant and recovered two parcels wrapped in a Malay language newspaper each (exhs. P9 and P10) in the appellant's right leg stocking (exh. P19A(KN)) containing crystal like substances suspected to be syabu (exhs. P9A and P10A). PW6 also recovered two more parcels wrapped in the same way (exhs. P11 and P12) in the appellant's left leg stocking (exh. P19B(KR)) containing crystal like substances suspected to be syabu (exhs. P11A and P12A). PW6 also recovered a parcel similarly wrapped (exh. P13) inside the underwear (exh. P10) worn by the appellant containing clear plastic wrapped in a black masking tape which in turn contained crystal like substances suspected to be syabu (exh. P13A). The government chemist, Mr. Muhammad Yazid bin Ibrahim (SP5), analysed the incriminating exhibits and confirmed that they were methamphetamine weighing 793.66 grammes.
[5] At the close of the prosecution's case, the learned Judicial Commissioner held that a prima facie case had been made out against the appellant as per the charge and his Lordship then called upon the appellant to enter his defence.
The Case For The Defence
[6] The appellant testified on oath. He testified that at about 1pm on either 21 or 22 October 2003, he telephoned Mohd Yusof bin Mohd Ali (SD2) informing the latter that he wanted to go to Kuala Lumpur to see his elder brother by the name of Ramli who stayed in Ampang. SD2 agreed to accompany the appellant to Kuala Lumpur because SD2 wanted to visit his younger sibling there. From Larkin bus station at Johor Bahru, the duo then left for Kuala Lumpur by bus at about 4pm and they arrived at Kuala Lumpur at about 9pm. Upon arrival in Kuala Lumpur both of them then went to Pudu Raya complex for food. There, by coincidence, they met Syaifuddin.
[7] Syaifuddin had worked together with the appellant at Pulau Batam before. Syaifuddin inquired of the appellan
