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2013 MarsdenLR 1343
COURT OF APPEAL PUTRAJAYA
NOOR AZMAN ABIDIN – Appellant
Versus
PP – Respondent
[Criminal Appeal Nos: P-05-21-01/2012 And P-05-27-02/2012]
A conviction for possession of drugs is unsafe if the prosecution fails to prove knowledge and possession beyond reasonable doubt, as speculative conclusions may compromise the decision-making process.
Headnote:(A) Dangerous Drugs Act 1952 - Sections 39A(2) and 39B(1)(a) - Appeal against conviction and sentence for possession of dangerous drugs - Initial charge of trafficking reduced to possession - Elements of possession including knowledge and reasonable doubt discussed - Burden of proof rests on prosecution to establish guilt beyond reasonable doubt - Conviction found unsafe due to speculative reasoning and failure to adequately evaluate the defence. (Paras 2, 5, 11, 12, and 13)
(B) The court highlighted that a defendant's explanation may raise reasonable doubt against charges of possession, thus necessitating thorough consideration of all evidentiary elements. (Paras 6, 8, 10, and 12)
Facts of the case:
The appellant was originally charged with trafficking but the judge amended the charge to possession of cannabis after the prosecution's case. Evidence suggested a mistaken identity regarding drug ownership and involved a third party. Defence claimed the drug did not belong to the accused, leading to a focus on criminal possession rather than ownership.
Findings of Court:
The trial judge's analysis resulted in a perverse decision that compromised the integrity of the decision-making process. The appeal court found the conviction unsafe due to speculative conclusions about the defence.
Issues: Main issues included the sufficiency of evidence for conviction and the accuracy of the trial judge's conclusions regarding the accused's knowledge of drug possession.
Ratio Decidendi: The court emphasized the necessity of evaluating defence evidence without speculation and confirmed that the prosecution must prove its case beyond reasonable doubt, leading to the conclusion that the conviction was unsafe.
Result: Appeal allowed; conviction and sentence squashed; appellant acquitted and discharged.
| Table of Content |
|---|
| 1. details of the appeals and charges (Para 1 , 2) |
| 2. factual background of drug possession (Para 3 , 4) |
| 3. summary of the defense case (Para 5) |
| 4. arguments for the appeal (Para 6 , 7) |
| 5. court's reasoning on appeal safety (Para 8 , 9 , 10) |
| 6. assessment of conviction validity (Para 11 , 12) |
[1] The appellant's/accused appeal against conviction and sentence for possession, and the prosecution appeal against the decision of the learned trial Judge for reducing the charge of trafficking to one of possession of dangerous drugs at the prosecution stage, came up for hearing on 7 May 2013. We heard both appeals, dismissed the prosecution's appeal, and allowed the accused to appeal. My learned brothers, Mohamed Apandi bin Haji Ali JCA and Linton Albert JCA have read the judgment and approved the same. This is our judgment.
[2] In the instant case, the accused was charged for trafficking under s 39B 1(a) of the Dangerous Drugs Act 1952 (DDA 1952). At the end of the prosecution case, the learned trial Judge reduced the charge of one relating to possession and amended the charge to attract s 39A(2) 1952 and called for the defence. At the end of the defence case, the accused was convicted and sentenced to 18 years' imprisonment and 10 strokes of the 'rotan'. The amended charge by the Judge under s 39A(2) reads as follows:
"Bahawa kamu, pada 5 Januari 2011, jam lebih kurang 3.00 petang, di kawasan letak kereta belakang Pasaraya Sunshine, Air Itam, Georgetown, di dalam Daerah Timur Laut, di dalam Negeri Pulau Pinang, telah didapati ada dalam milikan kamu, dadah berbahaya iaitu cannabis seberat 1,941 gram. Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah s 6 Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah s 39A(2) Akta yang sama."
Brief Facts
[3] The facts of the case are well adumbrated by the learned trial Judge in his 27 pages judgment. We do not wish to repeat the same, save for the purpose of the appeal to summarise as follows:
(a) The police had information of a person known as 'Adik,' who was involved in drug trafficking, and had also his mobile No. 017-4835772 and one officer, SP3 (agent provocateur), had communicated on the said number several times for the purchase of drugs.
(b) Even though the name known was 'Adik', when SP3 first communicated with the person, the person who replied identified himself as 'Mat'. The various telephone conversations as per evidence were with 'Mat'.
(c) SP3 after having finalised the deal with 'Mat,' subsequently agreed to meet 'Mat' at the designated place. Mat came with a yellow coloured bag and knocked on the window of the car of SP3, who was waiting to buy the drugs. Subsequently, Mat was arrested, and charged.
[4] Defence Case
(i) His brother, Mohd Azuddin, was known as 'Adik', and he is the one who is the owner of the mobile no. 017-4835772. His mobile no. was 013-4334201.
(ii) It was 'Adik' who asked him to hand over the bag to SP3. When he knocked on the window and when the window was opened, he had informed SP3 that 'Adik' had informed him that the bag was to be handed over.
[5] The learned trial Judge had captured the defence in the judgment as follows:
"Thus the trial is to proceed by getting a plea of the accused afresh on the amended charge. Having read and explained the amended charge, the accused maintained his plea of not guilty. The accused gave his evidence on oath. His evidence is this. On 5 January 2011, the accused went to Pasaraya Sunshine to buy milk for his new born baby. He went there in a Proton Waja motorcar, PFU 8619. The Proton Waja was driven by Mohd. Azuddin. The said motorcar was owned by Noor Azuan. Mohd. Azuddin and Noor Azuan are both the younger brothers of the accused. While on the way to the Pasaraya Sunshine, Mohd. Azuddin was heard talking over the phone to someone but the accused did not understand the conversation.
Upon arrival at the Pasaraya Sunshine, Mohd. Azuddin stopped the motorcar in front of its main entrance. At the request of Mohd
