(appellate jurisdiction) criminal appeal no. r-05-15-01/2015 between akbar ali bin

30 Pages·2017·0.34 MB·English

IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA
(APPELLATE JURISDICTION)
CRIMINAL APPEAL NO. R-05-15-01/2015

BETWEEN

AKBAR ALI BIN ABDUL RAHMAN …APPELLANT

AND

PUBLIC PROSECUTOR …RESPONDENT

(In the Matter of the High Court of Malaya
At Kangar
Criminal Trial No. 45A-01-02/2014

Between
Public Prosecutor
And
Akbar Ali Bin Abdul Rahman)

CORAM:
AZIAH BINTI ALI, JCA
ZAKARIA BIN SAM, JCA
AHMADI BIN HAJI ASNAWI, JCA

1
JUDGMENT
[1] The appellant was convicted and sentenced to suffer the death
penalty upon the following charge:
“Bahawa kamu pada 12 Oktober 2013 jam lebih kurang 9.00 malam di tepi
jalan berhadapan Kedai Celcom, Kompleks Tok Arau, Arau, di dalam
Negeri Perlis, telah didapati mengedar dadah berbahaya iaitu cannabis
seberat 9401.8 gram dan dengan yang demikian kamu telah melakukan
kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya, 1952 yang
boleh dihukum di bawah seksyen 39B(2) Akta yang sama”.

[2] The appeal before us was in respect of the said conviction and
sentence.

[3] We found no merit in the appeal and dismissed the appeal without
more. We now give our grounds.

The Case for The Prosecution
[4] PW-3 (Detektif Koperal Mohd Dahalan bin Yunus) acted as the
agent provocateur in this case. On 10.10.2013, PW-3, who at the material
time was attached with Jabatan Siasatan Jenayah Narkotik (‘JSJN’) Bukit
Aman, had received a call from Detektif Sarjan Salim (‘DSS’) from JSJN
Ibu Pejabat Polis Kontinjen Perlis (‘IPK Perlis’) relating to an information
2
received by DSS from his informer about drug trafficking activities
involving a Malay male known by his moniker ‘Li’. DSS gave the phone
number ‘019-5277640’ said to be used by ‘Li’ to PW-3 and instructed him
to contact ‘Li’ and make an arrangement for the purchase of 10
kilogrammes of ‘ganja’.

[5] At about 7.15 p.m. the same day, PW-3 called the said number. The
call was unanswered. However, at about 7.50 p.m., PW-3 received a call
from the said number. PW-3 assumed an undercover name of ‘Abang Zan’
and the caller introduced himself as ‘Li’ during the conversation. PW-3
told ‘Li’ that he got his number from his friend ‘Man’ and enquired about
purchasing 10 kilogrammes of ‘ganja’ from ‘Li’. The purchase price was
agreed at RM1,600.00 per kilogram. PW-3 was told to call him when he is
ready with the purchase money within a day or two.

[6] At about 8.40 p.m. the same day, PW-3 related his conversation with
Li to DSS and ASP Meor. PW-3 was asked to meet ASP Mior at his office
at IPK Perlis the next morning. PW-3 met ASP Meor at his office at about
11.30 a.m. on 11.10.2013. Before that at about 10.05 a.m., PW-3 had
again talked to ‘Li’ to confirm about the availability of the said ‘ganja’.
3
[7] PW-3 next called ‘Li’ on 12.10.2013 at about 11.35 a.m. but his call
went unanswered. At about 12.20 p.m., PW-3 received a ‘SMS’ from the
said number, indicating in part: “Insyallah malam ni pukul 8.00 aku p kat
hang lagi elok di Kuala Perlis”. PW-3 forwarded the said ‘SMS’ to ASP
Meor and DSS.

[8] A briefing session was held at about 3.00 p.m. on 12.10.2013 at IPK
Perlis by ASP Meor attended by, among others, PW-2 (Inspektor Abdul
Shukor bin Yusoff), PW-3, PW-4 (Detektif Koperal Mohd Khairizan bin
Baharudin) and PW-5 (Detektif Koperal Azhar bin Lazim). PW-4 was to
accompany PW-3 as the ‘moneyman’ during the transaction. PW-2 was
assigned as head of the raiding team. PW-5 was a member of a raiding
team.

[9] On the same day at about 7.00 p.m. PW-3 received a call from the
said number. He left it unanswered. At about 8.15 p.m. he returned the
call and talked to ‘Li’. A meeting point to transact the ‘ganja’ was agreed
at Restoran Yasmeen, Kompleks Tok Arau.

4
[10] PW-3 and PW-4 arrived at the restaurant at about 8.30 p.m.. At
about 8.45 p.m. PW-3 received a call from ‘Li’ informing him of his arrival
at the restaurant, wearing a blue ‘kopiah’ (skullcap) and blue shirt. PW-3
saw and identified ‘Li’ in blue shirt and blue ‘kopiah’ and hailed him to his
table (herein after referred to as ‘the appellant’). PW-3 suggested that the
appellant had dinner but the appellant declined. Instead the appellant
asked PW-3 to follow him to his car. PW-3 said he will go alone as PW-4
have yet to finish his dinner. PW-3 followed the appellant to his car.

[11] Inside the car was a woman sitting at the front passenger seat and
three boys sitting at the back seat. The appellant told PW-3 that the drug
(referred to as “ikan” in their conversation) was inside the rear car-boot.
When PW-3 again asked whether he had the drug, the appellant ensured
him by knocking on the car-boot several times. PW-3 told the appellant
that he had left the money with PW-4. The appellant then told PW-3 to
wait at a tyre shop in front of the said restaurant. The appellant next
entered his car. Thereupon, PW-3 gave the agreed signal to the raiding
team by removing his skullcap and immediately left the place together with
PW-4 who was, at all times waiting at the restaurant.

5
[12] Upon seeing the signal, PW-2 and his team members raided the car.
PW-2 introduced himself as a police officer and ordered the appellant who
was sitting at the driver’s seat to exit the car. A body search conducted
upon the appellant found nothing incriminating. The team members then
searched the car.

[13] Resulting from the search, PW-2 had found, at the spare-tyre
compartment inside the car-boot, a garment bag branded ‘DIACOPPER’
(Exhibit P18) containing a black plastic bag (Exhibit P19) containing 10
slabs of compressed dried plant materials (“10 ketulan mampat daun-
daun kering”) wrapped with transparent plastic tape. The appellant was
thereupon arrested and handcuffed.

[14] PW-2 took custody of the appellant and the incriminating exhibits.

[15] The appellant and other occupants of the car were taken to IPK
Perlis. The bag and the 10 slabs were marked with the letter ‘S’ and ‘S1
to S10’ respectively by PW-2 before they were handed over to the
investigating officer, PW-8 (Inspektor Mohammad Fairiz bin Nawi), on
13.10.2013 at about 12.45 a.m. PW-2 had also lodged a police report
6
(exhibit P6) pertaining to the arrest of the appellant and the seizure of the
drugs evinced at p. 305, Jilid 2, Rekod Rayuan (‘RR’).

[16] PW-8 had also put his mark on the bag with the letter ‘F’ and the 10
slabs with letters ‘F1 to F10’. The exhibits were kept in a locked iron
cabinet inside PW-8’s room. The exhibits were taken out from the cabinet
on 13.10.2013 at about 2.30 p.m. for finger-print dusting process and
photo taking. The exhibits were again taken out from the cabinet on
14.10.2013 at about 8.00 a.m. for a media conference. The exhibits were
finally put in a sealed box marked ‘M’ by PW-8 and handed over to the
chemist on 14.10.2013 at about 12.18 p.m.

[17] The chemist, PW-1 (Puan Nur Izzati binti Suib) had analysed the ‘10
ketulan mampat bahan tumbuhan’ and found it to be cannabis within the
meaning of s.2 of the Dangerous Drugs Act, 1952 (‘DDA 1952’) (herein
after referred to as “the said drugs”) weighing 9401.8 grammes. Her report
is marked as exhibit P11, evinced at p.312, Jilid 2, RR.

7
[18] The defence had raised the involvement of a person named Mohd
Adlin bin Abdul Rahman (‘Adlin’).

[19] PW-3 disagreed with the learned counsel’s suggestion that during
the briefing session conducted by ASP Meor on 12.10.2013 at 3.00 p.m.,
ASP Meor had informed the briefing about the arrest of Adlin on 1.10.2013
and the present operation were made pursuant to the said arrest. PW-3
testified that he was never informed about the involvement of Adlin, or
even of his existence.

[20] PW-2 as the raiding officer, also testified that he had no knowledge
about the existence and involvement of Adlin.

[21] However, PW-8 confirmed that the appellant had mentioned about
the involvement of Adlin. Based on the information given by the appellant,
PW-8 found that Adlin was arrested on 1.10.2013 for a drug-related
offence. PW-8 met Adlin on 12.11.2013 at Penjara Reman Pulau Pinang
and recorded his statement. In his statement Adlin denied any
involvement in the case as claimed by the appellant. PW-8 also testified
that he had failed to trace Adlin at his home address after his release.
8
[22] At the end of the prosecution’s case, the learned trial judge had
considered the evidence of PW-2 and PW-8 and dismissed any
involvement of Adlin.

[23] The learned trial judge found that the prosecution had proven that
the ‘10 ketulan mampat’ were cannabis within the definition of s.2 of the
DDA, 1952 and there was no break in the chain of the movements,
custody and handling of the said cannabis. The cannabis analysed by
PW-1 and produced in court through PW-1 were the same cannabis
seized by PW-2 from the appellant’s motorcar at the scene of the crime.

[24] The learned trial judge also found PW-3 to be a credible witness.
He accepted the evidence of PW-3 who had identified the appellant as the
same person known as ‘Li’ with whom he had been dealing through the
phone for the drug transaction and the one he met at the restaurant. He
also accepted PW-3’s evidence that the appellant was the person who
had brought the drug and ensured him that the drug was inside the car-
boot. He thus concluded that the appellant indeed had possession of the
said drugs and he had committed an act of trafficking by delivering the
said drugs to PW-3 (‘perbuatan Tertuduh membawa dadah berbahaya
tersebut untuk diserahkan kepada SP3’’) within the ambit of s.2 of the
9
DDA, 1952 (at para 14 and 15 of the Grounds of Judgment – at p. 256-
257, Jilid 2, RR).

[25] Having satisfied that the prosecution had established a prima facie
case, the learned trial judge ordered the appellant to enter his defence.

The Defence of The Appellant
[26] The appellant gave evidence on oath. In brevity, the appellant
testified that he was requested by his friend Adlin to deliver the said bag
to Adlin’s friend named ‘Abang Zan’.

[27] The appellant testified that on 2.10.2013, he had received a call from
Adlin asking for his help to bail him out. Adlin told the appellant that his
friend would call the appellant to discuss on how the bail money of
RM6,000.00 would be raised. The money raised would also be used to
settle Adlin’s debt to the appellant.

10