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2020 MarsdenLR 1019
COURT APPEAL MALAYA
MUHAMAD RIDHA BAHARUDIN – Appellant
Versus
PP – Respondent
[Criminal Appeal Nos: W-05(SH)-560-11/2018 & W-05(SH)-562-11/2018]
The prosecution must establish a prima facie case with credible evidence; reliance on a single witness with inconsistencies compromises conviction.
Headnote:(A) Dangerous Drugs Act 1952 – Sections 39B and 38B(2A) – Appellant's conviction for trafficking in cannabis and sentence of life imprisonment challenged – Prosecution relied solely on testimony of a police officer, raising issues of credibility – Defence presented alternative narrative with material gaps in prosecution case, including failure to present corroborative evidence – Court found discrepancies in evidence and lack of prima facie case – Appeal allowed, conviction and sentence set aside. (Paras 1-6, 28)
(B)
Burden of proof in criminal cases – Prosecution bears the onus to establish beyond reasonable doubt – Evidence must be credible and cogent; failure to call material witnesses or address significant evidentiary discrepancies undermines the case. (Paras 5, 6)
(C)
Cross-examination rights – Witness refusal to answer pertinent questions compromises credibility and the integrity of the decision-making process – Adverse inference applicable under Evidence Act. (Paras 12-15)
Facts of the case:
Appellant accused of possessing drugs linked to an alleged sling bag thrown during police encounter – Police assertions conflicted with defence claims of alternative arrest and evidence suggesting drugs belonged to another individual.
Findings of Court:
Evidence insufficient to uphold the conviction; reliance on a single, unreliable witness and absence of cross-examinations deemed critical.
Issues
: Whether credible evidence supported conviction; adequacy of prosecution's case amidst evidential gaps and contradictions.
Ratio Decidendi:
Credibility of sole prosecution witness jeopardized by inconsistencies and refusal to address crucial evidence; absence of corroborative witness testimony tilted the decision towards acquittal.
Result:
Appeal allowed, conviction and sentence dismissed.
[1] The appellant appealed against the conviction and sentence of life imprisonment under s 39B of the Dangerous Drug Act 1952 ( DDA 1952). There is also a cross-appeal on the sentence by the Deputy Public Prosecutor and the main issues are as follows:
(a) It is not in dispute that only SP 4 (Kpl. Faizal) who was in the team which led to the arrest, gave evidence;
(b) SP4's version was that he saw the accused sitting on a motorbike with a sling bag and he threw the sling bag and later the bag was found to have the drugs;
(c) the defendant's version was that he was not in the scene at all or with the alleged motorbike;
(d) no photographs of the scene or the motorbike, etc. were produced;
(e) finger prints evidence against the accused was negative;
(f) during the cross-examination, SP4 maintained that there was only one arrest and refused to answer the cross-examination questions in respect of another arrest and seizure of drug from another person where there was a police report and marked as Exhibit D15;
(g) SP4 only gave reasons during re-examination which the learned counsel says in essence it is abhorrent to notion of justice and fair play and that part of evidence was not according to law and case laws;
(h) the learned judge had failed to address Exhibit D15 and the fact that SP4 refused to answer the cross-examination question on D15, where his name also appears in the report;
(i) Police report of D15 is produced and it records as follows:
(j) In the instant case, the court appreciates the magnanimity of the Deputy Public Prosecutor who conceded SP4 refused to answer the cross-examination questions related to D15.
Brief Facts And Grounds Of Decision Of The High court
[2] The brief facts and grounds of the decision is placed before us in a rudimentary manner and to save court's time, we repeat verbatim and it read as follows:
"Brief Facts:
1. On 22 March 2017, around 9.45pm, around the scene, Kpl Faizal/SP4 was patrolling to inspect motorist as per their police briefing. The patrolling was extended until 7.00am of 23 March 2017. At the time and scene as per the charge, SP4 with his team saw the accused/OKT sitting on a motorcycle with suspicious behaviour. They keep an eye on OKT for 10 minutes and then they decided to approach OKT. When SP4 introduced himself as police, OKT threw a sling bag in front of him about 2 feet from OKT's motorcycle. SP4 directed OKT to pick up the sling bag and SP4 inspected the sling bag. SP4 found a compressed slab of dried leaves wrapped by aluminium foil which he suspected to be cannabis. Later OKT was arrested and SP4 handed over the slab to the Chemist Department.
2. Rahman/Chemist/SP3 examined the slab and found it to be cannabis as per the charge.
Findings of the High court at the end of Prosecution Case
3. OKT had possession and custody of the sling bag. By throwing the sling bag, it was shown that OKT knew the content of the sling bag. The slab was cannabis and the weight had exceeded the minimum threshold for presumption of trafficking.
Defence
4. The defence's challenges were mounted on OKT's involvement and the ownership of the sling bag.
5. SD1/OKT testified that at that time, OKT just quitted his job as a technician. His friend named Mohd Nor offered OKT a job but Mohd Nor did not inform OKT of the type of the job except for OKT to stay in Cheras and wait for his call. Before going to Cheras, OKT went to see his uncle, Shahrulnizam/SD2, and OKT had a chit chat with SD2. OKT waited for Mohd Nor's call there until OKT fell asleep. Around 12.00am, Mohd Nor called OKT and asked OKT to go at the scene. OKT went there and stopped in front of the guardhouse. OKT called Mohd Nor and Mohd Nor came in a car and stopped at the lobby. Several minutes later, OKT saw 3 security guards searching the car. The security asked OKT what he was doing there and OKT said he was waiting for someone. The security informed OKT that Mohd Nor was arrested because Mohd Nor had drugs.
