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2013 MarsdenLR 221
COURT OF APPEAL PUTRAJAYA
LIM PAH SOON – Appellant
Versus
PP – Respondent
[Criminal Appeal No: B-05-5-01-2012]
Unexplained material discrepancies in drug evidence create reasonable doubt on identity, warranting acquittal despite a prima facie case.
Headnote:(A) Dangerous Drugs Act 1952 - Sections 39B(1)(a) and 39B(2) - Trafficking in dangerous drugs - Appellant charged with trafficking in 1,563 grams of Ketamine and 52 grams of Nimetazepam on 14 March 2010 - Conviction and mandatory death penalty imposed by High Court, subsequently appealed. (Para 1, 2)
(B) Criminal Procedure Code - Section 180 - Requirement for trial court to determine whether prosecution has established a prima facie case - Duty on trial judges to evaluate credibility and reliability of evidence for essential ingredients of the offence. (Paras 12-13)
Facts of the case:
Appellant charged with drug trafficking based on evidence obtained during police surveillance leading to the discovery of drugs in his car. Appellant contended he was unaware of the drugs and claimed a third party placed them in his vehicle. (Paras 1-7)
Findings of Court:
Material discrepancies in drug weight went unexplained and raised reasonable doubt on the identity of the exhibits. The High Court's failure to address this material issue led to a failure of justice. (Paras 10-16)
Issues: Whether prosecution established a prima facie case considering the material discrepancies in the drug exhibits and if the appellant's defense was adequately considered. (Paras 9, 12)
Ratio Decidendi: The court emphasized the prosecution's burden to explain discrepancies in evidence, holding that unexplained discrepancies result in reasonable doubt about the identity of drug exhibits. (Paras 12, 15-17)
Result: Appeal allowed; conviction and sentence quashed, appellant acquitted and discharged.
| Table of Content |
|---|
| 1. facts establishing the drug trafficking charge. (Para 1 , 3 , 4 , 5) |
| 2. final judgment to quash the conviction based on reasonable doubt. (Para 2) |
| 3. prosecution's failure to explain material discrepancies. (Para 6 , 9 , 10 , 11 , 12) |
| 4. appellant's defense regarding the involvement of ah meng. (Para 7 , 8) |
| 5. court's requirement for judges to ensure evidence evaluation. (Para 13 , 15) |
| 6. importance of addressing discrepancies in drug identity. (Para 14) |
[1] Lim Pah Soon ("the appellant") was charged and tried in the High Court at Shah Alam for trafficking in dangerous drugs, namely, 1,563 grams of Ketamine and 52 grams of Nimetazepam, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ("DDA"), and punishable under s 39B(2) of the . The offence was said to have been committed on 14 March 2010 at about 5.10pm at a parking lot at Jalan Bunga Tanjung 7, Taman Muda, Ampang, in the District of Hulu Langat, in the State of Selangor Darul Ehsan.
[2] The learned High Court Judge, at the conclusion of the trial, convicted the appellant and sentenced him to the mandatory death penalty prescribed by the DDA. The appellant then appealed to this Court. We heard his appeal, wherein at its conclusion, we unanimously allowed it. We now give the reasons of our decision.
[3] The facts of the case, which the learned Judge held made out a prima facie against the appellant, have been fully set out in his judgment. Very briefly, the facts adduced by the prosecution, giving rise to the charge against the appellant, were as follows. Acting on information received, DSP Maimunah bt. Abu Bakar (SP2) and a police raiding team carried out surveillance on a Proton Wira, bearing registration no. WRK 8963 ("the car") at the targeted area in Taman Muda. While SP2 was keeping watch, she saw the car heading towards the shop houses and parked in front of a row of the shop houses. The appellant was seen driving the car. No one else was with him at that time. As soon as the appellant had parked the car, SP2 then instructed the driver of her car to block the car driven by the appellant from behind. Almost immediately, SP2 and the other members of the raiding team then rushed to the car. SP2 knocked on the driver's window, identified herself as police, and told the appellant to come out of the car. At that point, according to SP2, the appellant attempted to push the door forcibly and tried to escape. The appellant was arrested after he had come out of the car.
[4] SP2 then inspected the car. SP2 found a plastic package on the front passenger seat. SP2 examined it. The plastic bag had the words 'Thank You' written on it. Inside the plastic bag was a box with the word 'Ribena'. Inside the Ribena box, SP2 found the following items: (i) 2 packages wrapped in Chinese newspapers, and (ii) 10 transparent plastic packets containing aluminium foils. In each of the newspaper packages were powdery substances suspected to be dangerous drugs. From the 10 transparent plastic packets were 100 aluminium foils. Each foil had 10 pills also suspected to be dangerous drugs. These two different types of drugs were the subject matter of the charge against the appellant.
[5] It is the case for the prosecution that the two packages and aluminium foils were later sent to the Chemistry Department for chemical examination and analysis. The contents of the two packages and the aluminium foils were later confirmed by the Chemist, Suhana bt. Ismail (SP1), to be 1,563 grams of Ketamine and 52 grams of Nimetazepam.
[6] At the conclusion of the case for the prosecution, the learned Judge came to the finding that the prosecution had made out a prima facie case against the appellant and, therefore, called upon the appellant to enter his defence in respect of the offence charged.
[7] The appellant elected to give sworn evidence. According to him, although he is self-employed, he is also a football bookie. He testified that one Ah Meng had placed bets through him and was indebted to hi
