SAR v Public Prosecutor [2017] 6 MLJU 155

Court of Appeal, Putrajaya

Criminal Procedure Code – Section 39B(1)(a) of the Dangerous Drugs Act 1952 – Drug trafficking

1.    On 15 June 2013, around 3.00 p.m., Inspector Arman (“PW5”) received information from an informer about a drug transaction involving a Malay man at Batu 5, Jalan Gambang, selling ½ kg of cannabis for RM2,400.

2.    PW5 appointed Constable Mohd Anuar (“PW4”) as agent provocateur.  RM3,000 “flash roll” was given to PW4 to purchase the drugs. Then, PW5 introduced PW4 to the informer, who would in turn introduce PW4 to the Accused.

3.    At 4.30 p.m., PW4 and the informer went to Dewan Mat Kilau, Batu 4½, where the Accused was expected.  The informer called the Accused to inform them of their arrival.

4.    The Accused arrived on a motorcycle, greeted the informer and the informer left the scene. The Accused then had a conversation with PW4 after the informer left.

5.    PW4 asked if the Accused had the goods and the Accused told him to wait and said they were nearby.  PW4 requested a discount, and the Accused agreed to reduce the price by RM100 (from RM2,400 to RM2,300).  The Accused told PW4 to follow him to get the drugs.

6.    On the way, the Accused told PW4 he didn’t trust the informer and that future deals should be done directly with him.

7.    He said the goods were placed in the surau toilet under a blue container (“tong biru”).  Around 4.55 p.m., both arrived at the surau compound. The Accused then asked for payment. Nonetheless, PW4 insisted on seeing the goods first.  The Accused pointed to the toilet, and said that the drugs were under the “tong biru”.

8.    PW4 made a coded phone call to PW5, indicating drugs were present.  PW5 entered the surau compound, introduced himself as police and PW4 told him where the drugs were.

9.    The Accused was detained.  Upon questioning, he admitted the drugs were in the toilet.  PW5 found an inverted “tong biru” containing blue trousers with “Motor California Cycle” wording.

10.  Inside were plastic and paper packages containing dried leaves suspected to be cannabis.  Items were seized, brought to PW5’s office, and handed to IO PW6.

11.  PW6 sent the exhibits to the chemist, who analyzed them and confirmed that the substance was cannabis as defined under section 2 DDA 1952.

12.  At the High Court (“HC”), the Judge ruled that the prosecution has failed to prove a prima facie case, thus Accused was acquitted and discharged without defence being called.

13.  The prosecution appealed to the Court of Appeal (“COA”), and the decision of the High Court was reversed.

14.  COA found that a prima facie case on the charge has been proven and COA then ordered the Accused to enter defence.

15.  The trial of the defence went before the High Court and the learned trial Judge found that the Accused failed to raise a reasonable doubt on the prosecution’s case.

16.  The Accused was found guilty, convicted and sentenced under subsection 39B (2) of the Dangerous Drugs Act 1952 (DDA 1952).

17.  Therefore, this was an appeal against the conviction in the Temerloh High Court.

1.    Whether the non-calling of the informer by the prosecution constituted a break in the chain of evidence?

2.    Whether the Accused had raised a credible defence that cast a reasonable doubt?

3.    Whether the sentence imposed was in accordance with to the law?

1.    Whether the non-calling of the informer by the prosecution constituted a break in the chain of evidence?

(a)      The COA held that this issue was addressed at the prosecution stage when the COA previously reversed the High Court’s acquittal and ordered the defence to be called. This indicated that the Court was satisfied that the essential elements of the offence, including the chain of evidence, had been proven at the prima facie stage.

(b)      The Defence produced no new evidence to show that the informer played an active or major role in the drug transaction that would justify lifting the statutory protection under subsection 40(1) Dangerous Drugs Act 1952.

(c)      Unlike in Hussin bin Mohamad v PP and PP v Saladdin bin Yusof & Anor, where the informer had actively negotiated and placed orders for the drugs, the informer in this present case had remained anonymous all along and was never a party nor privy to the discussions /transaction that took place at the surau. His role was merely to introduce PW 4 to the Accused. He later left the scene on foot when the transaction or the conversation between PW 4 and the Accused took place

(d)      Therefore, COA was of the view that the informer did not participate in discussions or the transaction itself, so his absence as a witness did not break the chain of evidence.

2.    Whether the Accused had raised a credible defence that cast a reasonable doubt?

(e)      The Accused claimed he was only helping PW4 find the surau after being asked by another man (the informer). He also denied talking about drugs or knowing there were drugs in the surau toilet.

(f)        The trial judge found the Accused’s story that the informer had merely asked him to guide PW4 to the surau was not credible.

(g)      The prosecution’s witnesses (PW4 and PW5) testified to detailed negotiations about the price and quality of the cannabis, while the Accused claimed only a brief, unrelated conversation occurred.

(h)      The judge concluded that the Accused’s version was a bare denial and that PW4’s account was corroborated by PW5 finding the drugs exactly where the Accused indicated (“tong biru” in surau toilet) was credible and trustworthy.

(i)        The Accused produced no supporting evidence for his version, and the credibility of PW4 and PW5 remained unchallenged.

(j)        The defence’s argument that the surau was busy at Asar time was deemed an afterthought, as it was never raised during the prosecution stage and contradicted unchallenged evidence from PW6.

(k)       The COA found inconsistencies in the Accused’s account about how he met PW4, further undermining his credibility.

(l)        The Accused failed to discredit prosecution witnesses as PW4, PW5, or PW6, credibility stood strong and his denials was weak and unsupported.

(m)     Thus, COA held that the Accused’s defence was just a bare denial with no proof, while the prosecution’s case was clear, consistent, and backed by evidence. The Accused failed to create any reasonable doubt.

3.    Whether the sentence imposed was in accordance to law?

(n)      Section 277 Criminal Procedure Code (“CPC”) prescribes that –

“When any person is sentenced to death the sentence shall direct that he be hanged by the neck till he is dead, but shall no state the place where nor the time when the sentence is to be carried out.”.

(o)      Defence argued that omission of the words “hanged by the neck” rendered the sentence unlawful.

(p)      Decided cases such as The Crown v Saidhu AIR 1950 Lah 82 and The Crown v Habibullah AIR 1950 Lah 250 clarified that such omissions were treated as clerical in nature and did not nullify the sentence, since the law itself prescribes hanging as the only mode of execution.

(q)      In Malaysia, execution of death sentences is governed by Chapter XXVII CPC. The Warrant of Execution (Form 34 CPC), which is issued after sentencing, expressly requires the prisoner “to be hanged by the neck until he is dead.”

(r)        Thus, even if the trial judge omitted the exact phrase in oral/written grounds, the sentence remains valid because the only lawful mode of execution in Malaysia is hanging by the neck and the Warrant cures any omission by expressly directing the method of execution.

(s)        Therefore, the Defence’s contention cannot be sustained. COA views that the sentence imposed by the learned trial judge is in accordance with the provision of section 277 of the Criminal Procedure Code.

The COA dismissed the appeal and affirmed the decision on conviction and sentence from the trial judge.

1.        Non-calling of an informer will not invalidate a prosecution’s case unless the informer plays a crucial and active role in the transaction.

2.        Bare denials by the Accused without substantive contradiction of the prosecution’s evidence are insufficient to raise reasonable doubt.

3.        Procedural omissions (specific phrasing in sentencing eg, hanged by the neck) may not render a sentence unlawful if legal execution procedures are otherwise complied with.