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2011 MarsdenLR 4329
ZALEHA ZAHARI, CLEMENT SKINNER, BALIA YUSOF WAHI
ABDUL AZIZ ADEI – Appellant
Versus
PP – Respondent
Testimony of police officers in drug trafficking cases can be relied upon despite their status; corroborative evidence is not a requirement for agent provocateurs. The burden of proof rests on the prosecution.
Headnote:(A) Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking of heroin and monoacetylemorphine - Conviction for possession of 10.4 grams of heroin and 20.5 grams of monoacetylemorphine leading to a death sentence upheld. (Paras 1, 10)
(B) Criminal Procedure - Burden of proof - The court held that evidence of police officers must not be dismissed merely due to their status; corroborative evidence is not mandated for an agent provocateur's testimony. (Paras 20, 24)
Facts of the case:
The appellant was charged with trafficking drugs and was found guilty based on police surveillance and undercover operations that identified him as the person involved in the drug transaction. (Paras 1-15)
Findings of Court:
The learned Judge was convinced of the prosecution's credibility and the appellant's defense was rejected as implausible, resulting in conviction affirmed upon appeal. (Paras 22-28)
Issues: Whether the appellant was Karim, and if the prosecution's case had gaps that would warrant an acquittal. (Paras 16-18)
Ratio Decidendi: The court found no gap in the prosecution case and evaluated the evidence's credibility, ruling the appellant was indeed involved in drug trafficking, affirming the lower court's findings. (Paras 20-24)
Result: Appeal dismissed; conviction and sentence upheld.
| Table of Content |
|---|
| 1. facts of the drug trafficking case (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8) |
| 2. appellant's defense as an innocent carrier (Para 10 , 11 , 12 , 13 , 14) |
| 3. court's analysis of evidence credibility (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24) |
| 4. court's findings on the appellant's arguments (Para 25 , 26 , 27) |
(1) Abdul Aziz bin Adei ("the appellant") was charged with an offence of trafficking in 10.4 grams Heroin and 20.5 grams of Monoacetylemophines making a total of 30.9 grams under s. 39B(1)(a) of the Dangerous Drugs Act 1952 (the DDA) on 27.10.2001 at Room 907, Hotel Plaza, Jalan Raja Laut, Kuala Lumpur. He was found guilty of the charge by the High Court and was sentenced to death under s. 39B(2) . This is the hearing of his appeal to this Court.
The Prosecution case
(2) The essential facts on which the appellant was convicted were these. On 27.10.2001 Chief Inspector Haslah bt Bachok (PW 3) received information about drug activities in the Klang Valley area by a person called "Karim" and was given 019-2558724 as his telephone contact number. PW3 assembled a group of some 6 police personnel to take further action on the information received.
(3) Det. L/Cpt G Jeganathan (PW4) was instructed to go undercover and act as a "buyer" of drugs. PW3 gave PW4 a handphone using the number 012-672444 to get in touch with Karim. In the presence of PW3, PW4 dialled phone no. 019-2558724 and spoke to a person called "Karim". PW4 introduced himself as "Siva" from Rawang and negotiated to buy 1 Ib of "barang" at RM7,700 per pound from Karim. Upon the price being agreed, PW4 told Karim that he would come down to KL the same day and book a room at the Hotel Plaza and inform Karim about it, which Karim agreed to.
(4) At about 2.00 pm the same day PW3, PW4 and Det.Kpl Harvinder Singh went to Hotel Plaza and booked adjourning rooms 907 and 908 on the 9th Floor of the Hotel. The two rooms had a connecting door. They were booked under the name of Krishnan a/l K.P.Nair. PW4 was instructed to use Room 907 to carry out the transaction while PW 3 and some 5 other policemen would wait in Room 908. PW4 was given RM7,700 and instructed that once the transaction was completed he should kick the connecting door of the 2 rooms. PW4 then made a call to "Karim" and in the presence of PW3 informed Karim about Room 907. According to PW4 "Karim" had responded by saying "Ok lah sebelum saya sampai lima minit di Hotel Plaza saya akan call awak".
(5) At about 4.15 pm the same day PW4 received a phone call in the presence of PW3. PW4 then informed PW3 that Karim had arrived at the hotel and would be at Room 907 in about 5 minutes. PW4 then went to Room 907 while PW3 and the others in the police party remained in Room 908.
(6) It was PW4s evidence that he waited in Room 907 for Karim. Subsequently the door bell rang. He peeped through the key-hole and saw a male person so PW4 opened the door whereupon the male person entered Room 907, held out his hand in greeting and identified himself as "Karim" to PW4 who in turn identified himself as "Siva". According to PW4, on entering the room Karim sat on one of the beds while PW4 sat opposite him on the other bed. PW4 then enquired from "Karim" if he had come alone to which Karim replied that was so and then said "Ini dia barang". According to PW4, Karim opened a dark green bag and took out a white plastic bag from which Karim took out a package wrapped in English newspapers. The package contained a transparent plastic packet containing a pink substance which PW4 suspected was heroine. "Karim" then asked PW4 for the money. While getting the money PW4 saw Karim putting back the package wrapped in newspapers into the white bag so PW4 kicked the connecting door of the two rooms.
(7) On receiving the signal PW3 and Det.Kpl Harvinder rushed into Room 907. PW3s evidence was that on entering the room she saw a male seated on a bed holding a white plastic bag in his right hand. PW3 identif
