DALAM MAHKAMAH RAYUAN, MALAYSIA (APPEAL JURISDICTION) CRIMINAL APPEAL/RAYUAN NO. B /2013 BETWEEN VAHID NOORI AFZAL APPELLANT AND

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1 DALAM MAHKAMAH RAYUAN, MALAYSIA (APPEAL JURISDICTION) CRIMINAL APPEAL/RAYUAN NO. B /2013 BETWEEN VAHID NOORI AFZAL APPELLANT AND PUBLIC PROSECUTOR RESPONDENT (DALAM MAHKAMAH TINGGI DI SHAH ALAM) IN THE MATTER OF CRIMINAL APPEAL NO 45A-197-9/2013 BETWEEN PUBLIC PROSECUTOR AND VAHID NOORI AFZAL... ACCUSED CORAM: MOHTARUDIN BIN BAKI, HMR DAVID WONG DAK WAH, HMR AHMADI BIN HAJI ASNAWI, HMR JUDGMENT OF THE COURT Introduction: 1. This is an appeal against the decision of the High Court in which the learned Judge convicted the Appellant on the charge of trafficking of illicit drugs under section 39B (2) of the Dangerous Drugs Act 1952 (DDA). 1

2 2. We heard the appeal and after due consideration to respective submissions of counsel, we dismissed the appeal and now give our reasons. Background facts: 3. The Appellant arrived in Malaysia at KLIA on 26 February 2012 at about 8 am from Istanbul. While waiting for his luggage at carousel G, he was spotted by PW4 (a custom officer by the name of Mokhadinil Akma Bin Moktar) who formed the opinion that the Appellant was behaving nervously. The Appellant then took his luggage from the carousel and headed towards the green lane. However he was ordered by PW4 to put his luggage through the scan machines for luggage. Nothing of any significance was found in the Appellant s luggage. 4. Despite that, the Appellant s demeanour was still one of nervousness which caused PW4 to take the Appellant to his superior by the name of Elangovan A/L Retnasamy (PW7). Upon being informed by PW4 of the Appellant s demeanour, PW7 instructed that a body scan be conducted on the Appellant. The scan showed that there were foreign substance inside the Appellant s stomach. 5. Upon that discovery, PW7 informed PW5 by the name of Muhamad Hasru bin Mohd Fauzi and his unit head of the discovery. PW5 then lodged a police report to the investigating officer (IO) by the name of Khairul bin Mohd Anua (PW11). PW11 together with other customs officers then took the Appellant to Serdang Hospital. 2

3 6. At Serdang Hospital an X ray was conducted on the Appellant and the result of which was that foreign substance can be observed in the stomach area of the Appellant from the X ray film. 7. In order for the Appellant to extract the foreign substance from his stomach, he was put in a decontamination room and given some medication for the aforesaid purpose. Between the period from 2.20 pm till pm, a total of 75 capsules were extracted from the Appellant s stomach. While the Appellant was in the decontamination room, he was watched over by PW8 by the name of Mohd Bin Mohd Yusuf who is a customs officer and four other customs officer. 8. The 75 capsules with the search list were handed over to PW11. The 75 capsules were packed in plastic bags provided by the hospital. 9. The 75 capsules were then sent to the chemist department for analysis. PW6, the government chemist who did the analysis of the capsules and found them to contain 361 grams of Methamphetamine. High Court decision: 10. The learned Judicial Commissioner on the issue of possession of the Methamphetamine found as follows: To constitute possession, it was necessary to establish that the accused had knowledge of the said drugs and he had some form of control or custody over the drugs (see Leow Nghee Lim v Reg (1956) 22 MLJ 28, Chan Pean Leon v PP (1956) 22 MLJ 237 and PP v Muhamad Nasir bin Shaharuddin & Anor (1994) 2 MLJ 576). From the facts, it was crystal clear the accused was in possession of them. SP4, SP5 and SP7 confirmed that the 3

4 body scan done on the accused at the CPP1 office showed images of foreign bodies in his stomach/abdomen. This was further confirmed by an X-ray taken of the accused abdomen at the Serdang Hospital by SP10. On admission, the accused passed out 75 white coloured capsules based on the testimony of SP8, SP9 and SP11. A second abdominal x-ray confirmed total clearance of any foreign substances in the bowel of the accused prior to his discharge from hospital according to SP12 who said medication was administered to help expedite bowel movement.. The discharged capsules came out from within the body of the accused that only be due to ingestion. This irresistibly inferred that he had complete control and custody of those capsules before and when he took the deliberate step to swallow them. Knowledge that the capsules contained drugs were inside his own body after having swallowed them. I went on to find the prosecution had therefore proved actual possession of the methamphetamine on the part of the accused. Since the weight of the methamphetamine exceeded the trigger amount of 50 grams, I invoked the presumption of trafficking under section 37(da)(xvi) of the Dangerous Drugs Act. 11. We see no error in the learned Judicial Commissioner s inference and the invocation of the statutory presumption of trafficking from the undisputed fact that the capsules had originated from the body of the Appellant. In our view there cannot be any other inference than that the Appellant had full control and custody of the Methamphetamine. Accordingly the learned Judicial Commissioner was perfectly correct in finding that the prosecution had proven a prima facie case at the end of the prosecution case which warranted her to call upon the Appellant to enter his defence. 4

5 12. In his defence, the Appellant chose to make an unsworn statement from the dock which in essence lays the blame on a person by the name of Moshin in Istanbul. He alleged that it was Moshin who had paid for his airfare and requested him to swallow the 75 capsules. He also alleged that he was threatened by Moshin. The learned Judicial Commissioner rejected the Appellant s defence and in our view rightly so in view of the circumstances in which the capsules were found in the Appellant s body. 13. We agree with the learned Judicial Commissioner in the manner that she dealt with the value of the unsworn statement. We find that the she had adopted the right principle in assessing the Appellant s unsworn statement. We find it suitable to refer to Udayar Alagan & Ors v. Public Prosecutor [1961] 1 LNS 146 where the court explained the principle in Shimmin s case 15 Cox CC122,124 in Mr Cave J stated that: A prisoner, though defended by Counsel, may, if he chooses, himself make his statement to the jury. He ought to be heard in his defemce, and have the opportunity of making his explanation of the circumstances proved against him. True, his statement was not made on oath, and that he was not liabe to be crossexamined by the prosecuting Counsel, and what he said was therefore not entitled to the same weight as sworn testimony. Our grounds of decision: 14. Learned counsel for the Appellant in his submission before us raises only one issue and that is the identity of the capsules recovered from the Appellant and the capsules examined by the government chemist. Or to put it in another way there was a break in the chain of evidence in respect of the identity of the capsules making the conviction of the Appellant 5

6 unsafe. The same submission was made before the learned Judicial Commissioner. 15. Learned counsel s submission is premised on the followings: a. The difference in gross weight between that of the chemist and PW11. b. The non-sealing of the capsules. c. The non- marking of the capsules. d. The conflicting evidence as to who washed the capsules. Difference in weight 16. The Learned counsel submitted that the gross weight of the capsules obtained by SP11 was questionable. It was submitted that SP11 had weighed one capsule and multiplied the result by 75. There was no reasonable explanation on the failure of SP11 to weigh all the capsules. In this respect, we adopt the explanation by the learned Judicial Commissioner where she said that: In the instant case, the gross weight of the capsules taken by SP11 was just an estimate premised on sample weighing while SP6 weighed the 75 capsules by using a calibrated weighing apparatus that was in good condition. SP11 admittedly did not weigh all the 75 capsules. That was the distinction and I accepted it as a viable explanation for the discrepancy. In reiteration hence I found from the facts and evidence of the case that the capsules discharged from the body of the accused, seized by SP8 and SP9, handed over to SP11 who marked them and examined by SP6 were the same drug exhibits that contained 361 grams of methamphetamine for which the accused was charged with trafficking. These exhibits were 6

7 positively identified by these witnesses in court as well as from the photographs taken of them. Without any hesitation I concluded that there was no break in the chain of evidence pertaining to them and there was no basis, in my view, to cast any doubt on the identity of the drug exhibits and the prosecution case itself due to the weight discrepancy. We therefore find that the failure of SP11 to weigh all 75 capsules did not cause any discrepancy as to the weight of the capsules, hence in this context there was no break in the chain of evidence. 17. A similar argument was raised in Hasbala Mohd Sarong v PP [2013] 6 CLJ 945. The Appellant there submitted that the discrepancies in weight had created a reasonable doubt in the prosecution case. However, the Federal Court was of the view that the difference in weight of the drugs did not create a reasonable doubt to the prosecution s case when there is no break in the physical chain of evidence. In that case, there was no doubt that the drugs seized from the Appellant were the same drugs examined by the chemist (PW3). 18. Here, we are satisfied that the capsules were discharged from the body of the Appellant. The same capsules were then marked by SP11 and examined by the chemist. The Appellant was then charged with trafficking in the drug exhibits that contained 361 grams of Methamphetamine. We are also satisfied that the witnesses identified the same drugs and there were photographs of the same submitted in court. We therefore agree with the learned Judicial Commissioner that the weight discrepancy did not create a break in the chain of evidence. 7

8 19. Further we see no cross-examination by the Appellant s counsel on this issue during the prosecution case to suggest that there has been a break in the physical chain of evidence. The law is quite clear and that is where there is a failure to cross-examine on certain aspect of the prosecution case, it can be equated to an admission. We can do no better than refer to the case of Wong Swee Chin v PP [1981] 1 MLJ 212 where Raja Azlan Shah CJ (Malaya) (as His Highness then was) declared: A correct statement of the law is that failure of the defence to cross-examine the prosecution witnesses on the matter merely goes to the creditability of their testimony... On this point we need only say there is a general rule that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness testimony. But as it is common with all general rules, there are also exceptions as pointed out in the judgment of the Supreme Court of New Zealand in Transport Ministry v Garry where Haslam J said at p 122: In Phipson on Evidence (11th Ed) paragraph 1544 the learned authors suggest examples by way of exception to the general principle that failure to cross-examine will amount to an acceptance of the witness testimony, viz, where... the story is itself of an incredible or romancing character, or the abstention arises from mere motive of delicacy... or when counsel indicates that he is merely abstaining for convenience, eg, to save time. And where several witnesses are called on the same point, it is not always necessary to cross-examine them all. 8

9 Non sealing and marking of capsules 20. The Learned counsel for the Appellant submitted that the plastic packets in which the capsules were placed in were not sealed and could have been tampered with. The Learned counsel pointed out that during crossexamination, SP11 testified that the plastic packets were not sealed with the Custom s seal, instead they were sealed with ordinary plastic packets. We are of the view that the suggestion by the Learned counsel could not be accepted because once the capsules were discharged and cleansed or washed, they were handed over by SP8 and SP9 to SP11, and SP11 then marked the capsules from A1 to A75 together with his signature. The date that the capsules were received was placed on the plastic packets that contained the capsules. The fact that the plastic packets containing the capsules were not sealed with the Custom s seal could not raise a doubt or suggest a break in the chain of evidence. Conflicting evidence as to who washed the capsules 21. The Learned counsel submitted there was conflicting evidence on who had washed the capsules. He submitted that SP11 had testified that an officer named Zulazfri Fahmi bin Abdul Majid had washed 75 capsules that were discharged between 2.20pm and 7.20pm. However, the evidence given by SP1 was that he had directed the Appellant to wash the capsules after they were discharged. This was then supported by SP9 who also said that the Appellant was instructed to wash the capsules. Further to that, in cross-examination, SP11 testified that he did not know who washed the capsules as he was not in the room where the Appellant was being controlled by other officers. 22. We agree with the Learned Judicial Commissioner that the question on who washed the capsules that were discharged from the Appellant could 9

10 not raise any doubt as to the evidence. It was clear that the capsules were discharged from the Appellant, they were washed and then handed over to SP8 and SP9. The capsules were marked A1 to A75 and the date and signature were placed on the plastic packets containing the capsules. The issue of the conflicting evidence on who washed the capsules were not material and could not raise any inference that the exhibits were tampered with. Essentially, we were satisfied that there was no break in the chain of evidence. Conclusion: 23. For reasons stated above, we see no appealable error on the part of the High Court and hence we dismissed the appeal. The conviction and sentence are confirmed. Dated : 13 February 2015 t.t. (DAVID WONG DAK WAH) Judge Court of Appeal Malaysia For the Appellant : S. Ravichandran Tetuan Seah Balan Ravi & Co. For the Respondent : TPR Kwan Li Sa Notice: This copy of the Court's Reasons for Judgment is subject to formal revision. 10

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