PP v. SOFYAN ABDULLAH & ORS
HIGH COURT, SHAH ALAM
ABDUL ALIM ABDULLAH J
[CRIMINAL TRIAL NO. 45-37-2007]
19 OCTOBER 2010
IN THE HIGH COURT OF MALAYA IN SHAH ALAM
IN THE STATE OF SELANGOR DARUL EHSAN
[CRIMINAL TRIAL NO. 45-37-2007]
PUBLIC PROSECUTOR
v.
SOFYAN BIN ABDULLAH
FITRIADI LUTAN
MUHAMMAD FAIZ
USMAN HASAN
JUDGEMENT
1. This is a case of entrapment. At the close of the Prosecution's case the four accused persons were acquitted and discharged without calling for their defence.
2. The police operation was a near perfect job.
3. Police Sargeant Chan Bee Wan (PW2) acted as the undercover agent to buy cannabis at RM1,400.00 per kilogram. He assumed the name of Peter. He established contact with an Indonesian from Acheh by the name of Haron (Accused 4). They agreed to meet at Kiblah Restaurant, Cheras, Kuala Lumpur. Another undercover agent, Inspector Razali Md. Kassim (PW4) with an assumed name "Boy" was also there. The duty of PW4 was to take delivery of the drugs. Accused 4 arrived at 3.30 pm and negotiations went underway. From the Restaurant, Accused 1 the "towkay" of Accused 4 called him and then spoke to PW2. At 6.15 pm Accused 1 and Accused 2 arrived at the Restaurant and the details of the transactions were further negotiated as to the packaging, payment and place of delivery. It was at first agreed that the drugs be delivered at Jaya Jusco Kepong. Accused 1 and Accused 2 left the Restaurant and so did PW4 a while later. PW2 left the Restaurant at 11.35 pm and a police team sprang and Accused 4 was arrested. PW2 took no part in the arrest. Neither did PW4.
4. PW4, the said other undercover agent who was to take delivery of the drugs was to signal the raiding party to spring an arrest by folding his shirt sleeve. He left the Restaurant at 8.30 p, and headed for Jaya Jusco Kepong.
5. It was at Kiblah Restaurant where PW2 and Accused 4 remained when Accused 1 called Accused 4 informing him of the change of venue for the delivery of the drugs, to be then made at Sri Damansara. Accused 1 later called PW4 indicating a rendezvous at McDonald's Restaurant in Sri Damansara where PW4 met Accused 1 and Accused 2 by the roadside. By that time PW4 had already informed Chief Inspector Mohd. Zuhairi Mohd. Zubir (PW6) who headed the police arresting party. It was there too that PW4 met Accused 3 who was introduced as the "Boss" and he and Accused 2 were given sight of the flash money in a disguised police car.
6. PW4 was then informed that the drugs had arrived and he and Accused 1 walked to a Wira Aeroback car parked by the roadside which had no passengers but had its headlights on. Upon reaching the car, Accused 1 opened the boot. PW4 saw 3 bags and upon opening one of them he had pierced one of its packets with his fingernail and he sniffed it to be cannabis. Thereon he signalled PW6 and his raiding police party by folding his shirt sleeve. Thereupon Accused 1, Accused 2 and Accused 3 were arrested. PW4 had left the scene by then.
7. Accused 4 who was arrested in Cheras was handed over to SP8, the investigation officer, by Inspector Zulkefli Khamis. The others, Accused 1, Accused 2 and Accused 3 were handed over to SP8 by PW6, L/Corporal Saiful Asram and L/Corporal Azmi Sanusi respectrively.
8. The issue that had vexed the prosecution's case and one that is even aggravating is the identity of the exhibits that were allegedly seized by the police. It is central yet fundamental to the charges against all the accused persons. The failure by prosecution in this is fatal. It is surely distressingly grim to an otherwise successful entrapment leading to a bumper seizure of 90 packages of compacted cannabis comprising 88,244 grams of it all.
9. It is remarkable and amazing that there are glaring yet outrageous or even manifest contradictions in the testimonies of PW6 (raiding officer) and PW8 (investigation officer) as compared to PW1 (Chemist) concerning the packaging of the exhibits which they each described, leaving this Court to wonder and to make a negative finding as to the identity of the drugs seized and the same that were sent to the Chemist. It is all easy to capture the discrepancies by reproducing all in the table herein below:
10. There are also other startling revelations that necessarily and seriously affect the identity of the drugs seized. The prosecution evidence has it that the drugs were sent to the Police Forensic Department for fingerprint examination. Exhibits P26 and P28 show the submission and return of the said Exhibits by PW8 and one ASP Izanizam Salleh respectively. Exhibit P27 is the fingerprint report. All the said Exhibits P26, P27 and P28 significantly show the date 18.1.07 as signified by both PW6 and PW8. What is puzzling here is that P27 (the fingerprint report) make known the date of examination of the exhibits on 16.1.07 by ASP Izanizam Salleh, which was two days earlier from their receipt from PW8.
11. ASP Izanizam Salleh was not called by the Prosecution to explain this odd and yet bizarre situation of the non-possibility of the examination by him of the exhibits prior to their receipt and worse still, if at all he had anything to do with the different wrappings (paragraph 9 above). Without the evidence of ASP Izanizam Salleh, the evidence of the Prosecution remained unharmonious and discrepant.
12. In all the above, this Court refers to the following cases that it finds support in its finding that there exists a doubt as to the identity of the drug exhibits in this case. In Teoh Hoe Chye v. PP [1987] CLJ Rep. 386 (Supreme Court), it was held:
"[1] In so far as the trial Court is concerned, its duty is essentially to decide whether on the evidence before it, the prosecution has proved its case. Where a doubt as to the identity of an exhibit arises, a failure to adduce evidence to provide the necessary link in the chain of evidence would be fatal to the prosecution case. In the instant case, there was such a failure.
[2] The failure to call Supt. Lum as a witness had caused a serious break in the chain of evidence relating to the identity of the exhibits.".
In Ti Chuee Hiang v. PP [1995] 3 CLJ 1; [1995] 2 MLJ 433, the Supreme Court observed:
"[1] While the prosecution has a complete discretion as to the choice of witnesses to be called at the trial, it also has the duty to call all necessary witnesses essential to the unfolding of the narrative of the prosecution case to establish proof against the accused beyond all reasonable doubt. At the very least, the prosecutor should make them available for cross examination by the defence. If the prosecution failed to fulfil this duty, the accused must be acquitted.
[2] In the present case, not only that there was a gap in the narrative of the prosecution case without the informer's testimony, but there was also no suggestion that his testimony would have been hostile to the prosecution or unreliable. The prosecution had failed in its obligation to call and examine him or at least tender him for cross-examination by the defence, or in default, explain why they were unable or unwilling to call him.".
Obiter:
"In any event, in this case it would not have sufficed for the prosecution to have merely made the informer available to be called as defence witness, as this would have put the defence at the disadvantage of not having been able to cross-examine him on any point which might support the prosecution case.".
13. The Prosecution evidence became even more unaccountable and bewildering when scrutinizing the Chemist Report (P6) which established the four boxes, NS, NS1, NS2 and NS3, containing the drug packages which were sent to the Chemistry Department to bear the "POLIS DIRAJA MALAYSIA CAD P.JAYA" seal but upon their examination in open court, only to find none but instead the presence of "POLIS DIRAJA MALAYSIA FORENSIC" sealing tape on them.
14. It was also featured by the prosecution's evidence that PW3 (the police photographer) had taken the photographs of the drug exhibits on 18.1.07 at 7.30 am at the Police District Headquarters, Petaling Jaya. Contrary to this, is the evidence of PW8 (the Investigation Officer) that she had directed PW3 to do so after receiving the said exhibits from PW6 (the Raiding Officer) which was at 10.30 am that day. This discrepancy must relate to which were the drugs and in whose proper custody were they when PW8 had directed PW3 to have them photographed. In other words, PW8 could not have given the said directions when the exhibits were not handed over to her at 7.30 am on 18.1.2007. This discrepancy was never explained and is thought-provoking whether the photographs of the drugs in Exibits P23A-P23O are the photographs of the drugs seized in this case.
15. This Court does not and shall play no part in bridging the gaps in the above evidence. This Court looks askance at the prosecution evidence. Two authorities deserve mention here. The Court of Appeal in Looi Kow Chai v. PP [2003] 1 CLJ 734, it was cited:
"Under s. 180 of the Criminal Procedure Code (Revised 1999), the duty of Judge, sitting alone, at the close of the case for the prosecution, is to determine, as a trier of fact, whether the prosecution has made out a prima facie case against the accused. The Judge has only one exercise to undertake; he must subject the evidence of the prosecution to a maximum evaluation and then ask himself this question: If I decide to call upon the accused to enter on his defence, and he elects to remain silent, am I prepared to convict him on the totality of the evidence contained in the prosecution's case? If the answer is in the negative, then no prima facie case has been made out, and the accused is entitled to an acquittal. (subjecting the prosecution's evidence to a maximum evaluation to determine if the defence is to be called does not mean that the prosecution has to prove its case beyond a reasonable doubt at that intermediate stage).".
In PP v. Mohd. Radzi Abu Bakar [2006] 1 CLJ 457 it was cited:
"After the amendments to ss. 173(f) and 180 of the CPC, the statutory test has been altered. What is required of a subordinate court and the High Court under the amended sections is to call for the defence when it is satisfied that a prima facie case has been made out at the close of the prosecution case. This requires the court to undertake a maximum evaluation of the prosecution evidence when deciding whether to call on the accused to enter upon his or her defence. It involves an assessment of the credibility of the witnesses called by the prosecution and the drawing of inferences admitted by the prosecution evidence. Thus, if the prosecution's evidence admits of two or more inferences, one of which is in the accused's favour, then it is the duty of the court to draw the inference that is favourable to the accused.".
16. In assessing the credibility of the prosecution witnesses this Court finds their evidence questionable given the gaps in the narrative of the prosecution case giving rise to two inferences of it, wherefore one that is favourable to the defence ought to be accepted. The descrepancies and contradictions are too fundamental and which go to the root of the subject matter of the charge against the accused persons. To sum it all, it was said in Yusri Pialmi v. PP [2010] 6 CLJ 878 by the Federal Court that:
"[10] ... A reasonable doubt has been created as to whether the cannabis that was recovered by the police that was sent to the chemist for analysis is the same substance that is found to be cannabis and it is in respect of that substance the appellant is charged with trafficking.
[11] We would like to categorically state here that the evidence adduced by the prosecution in the present case showed there is a reasonable defect in the identity of the case exhibit which is the subject matter of the prosecution against the appellant. In a criminal trial an accused person is permitted to take every available opportunity to reveal any defect in the prosecution's case. (See the case of Yeong Kia Heng lwn. Pendakwa Raya [1992] 1 CLJ 364; [1992] 1 CLJ (Rep) 372). A defect with regard to the identity of the case exhibit in the present case to us is a serious matter.
On this ground alone the appellant would succeed in his appeal.",
17. This Court is left with no better decision but to acquit all the accused persons without calling for their defence.
(ABDUL ALIM ABDULLAH)
Judge
High Court Malaya
Shah Alam.
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