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2011 MarsdenLR 1546
COURT OF APPEAL PUTRAJAYA
SHAHRULLAH ABDUL RAKEB – Appellant
Versus
PP – Respondent
[Criminal Appeal No: B-05-17-2009]
The court affirmed that rebuttal evidence was essential for the just decision of the case, emphasizing the appellant's failure to raise reasonable doubt regarding the trafficking charge.
Headnote:(A) Dangerous Drugs Act 1952 - Section 39B(1)(a) and 39B(2) - Appellant charged with trafficking cannabis weighing 1,727 grammes - Convicted and sentenced to death by hanging. The court affirmed that sufficient evidence established guilt per the definition of trafficking under the Act. (Paras 1, 2, 8, 29, 77)
(B) Evidentiary law - Rebuttal evidence and its necessity - Court allowed rebuttal witness to address new assertions made during defense, essential for just decision under Section 425 of CPC - The decision was justified as it responded to defense claims made unexpectedly. (Paras 8, 40, 44, 59)
Facts of the case:
The appellant assisted a friend carrying a sling bag and claimed ignorance of its contents; drugs were found in a bag linked to him during the arrest. Appeals were made against conviction citing procedural errors. (Paras 3, 9, 46)
Findings of Court:
The learned Judicial Commissioner assessed evidence strength, accepting police testimonies as credible and dismissing the appellant’s defense as lacking veracity. Rebuttal witness bolstered prosecution's case, resulting in affirmed conviction. (Paras 54, 63, 79)
Issues: Whether the allowance of Lamran as a rebuttal witness was appropriate and whether the defense established a case of reasonable doubt. (Paras 13, 14)
Ratio Decidendi: The court determined that the trial judge properly executed discretion under Section 425 CPC to allow rebuttal and effectively ruled that the appellant's defense was fundamentally weak, not raising reasonable doubt. (Paras 37, 79)
Result: Appeal dismissed; conviction and sentence upheld.
| Table of Content |
|---|
| 1. introduction and charge information. (Para 1 , 2) |
| 2. establishment of facts surrounding the arrest. (Para 3 , 4 , 5 , 6 , 7) |
| 3. assessment of evidence by jc. (Para 8 , 19 , 20 , 22) |
| 4. appellant's defense and explanation of events. (Para 9 , 10 , 11 , 12) |
| 5. grounds of appeal against jc's decisions. (Para 13 , 25) |
| 6. discussion on rebuttal witness and evidentiary standards. (Para 14 , 15 , 16 , 17) |
| 7. court's evaluation of credibility and necessity of rebuttal evidence. (Para 18 , 38 , 39 , 40) |
| 8. appellant's defense claims. (Para 32) |
| 9. exploration of rebuttal evidence admissibility. (Para 36 , 46 , 47 , 48) |
[1] The appellant was charged for trafficking in cannabis weighing 1,727 grammes on 10 August 2005 at about 8. 15pm in front of McDonald's restaurant at a Projet petrol station, Lot PT 5946, Jalan Lingkaran Tengah 2, off Lebuh Raya Kuala Lumpur-Karak, in the district of Gombak, in the State of Selangor, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ("Act") punishable under s 39B(2) of the same Act.
[2] At the close of the defence case, the learned Judicial Commissioner ("JC") found the appellant guilty of the said charge and convicted him accordingly. As mandated by the law, the learned JC sentenced the appellant to death by hanging. The appellant now appeals against his conviction and sentence to this court.
Facts of the Case
[3] On 10 August 2005 at about 4. 00pm, ASP Ahmad Tarmizi (SP1) received information about drug trafficking involving a male person using motorcycle model RXZ bearing registration number WCK 897 at the location as stated in the charge. SP1 briefed his police personnel numbering 17 in all about the information which he received and, on the same day at 6. 30pm, SP1 and his police party proceeded to the location as stated in the charge and upon arrival at 7. 30pm, SP1 and his police party took up ambush positions and waited.
[4] Both SP1 and Corporal RF/93257 Mohd Salleh bin Paiman (SP5) together with two other policemen waited in the motor car and observed.
[5] At about 8. 15pm, SP1 and SP5 saw the target motorcycle ridden by Mohd Lamran bin Yamsah (SPRI) (hereinafter referred to as "Lamran") with the appellant as the pillion entering the petrol kiosk area and stopped in front of the McDonald's restaurant. At this point of time, both SP1 and SP5 saw the appellant with a sling bag (P6C) hung across his shoulders behind him alighted from the motorcycle and headed towards the toilet of the petrol kiosk. And Lamran was seen entering the McDonald's restaurant.
[6] SP1 and SP5 together with the other ambush party quickly rushed into the same toilet at the petrol kiosk and they saw the appellant standing in front of a sink before a wall mirror as per photographs marked "N" and "O" at page 250 of the appeal record at Jilid III with the same sling bag (P6C) still slung on his back over his shoulders. In the toilet, SP1 identified himself as a police officer to the appellant and the latter looked scared and had tried to evade arrest by putting up a struggle. The appellant was overpowered by the police party and he was brought out of the same toilet together with the sling bag (P6C). SP1 examined the sling bag (P6C) that was seized from the appellant in his presence as well as before the other police party. The examination of the sling bag (P6C) was done in the front area outside the same toilet. Upon examining the sling bag (P6C), SP1 found inside it a black plastic bag. On further examination of the black plastic bag, SP1 found two (2) slabs of dried leaves suspected to be cannabis wrapped in transparent plastic. The appellant together with the seized items were brought back to the police station for further investigation. Lamran who was the rider of the motorcycle was also arrested and brought back to the police station.
[7] SP5 corroborated the version of SP1. In due course, Chief Inspector Noresah binti Abd Rashid (SP7) sent the two (2) slabs of plant materials to the government chemist Wa
