Public Prosecutor v Ahmad Firdaus bin Zulkifli [2017] MLJU 75

Court of Appeal (Putrajaya)

Similar Fact Evidence

Facts

2.    On July 15, 2014, at approximately 3.45 a.m., a police team led by Inspector Izwan Hafees bin Mukhtar (PW9) detained the Respondent in a Suzuki Swift car bearing registration No. BKV 462 (the said car) in front of house No. 56, Lorong Padang Permai 41, Jalan Sg. Lembing, Kuantan (the House).

3.    The Respondent was the driver of the aforementioned car. The other three passengers in the car were also detained at the same time. They were Muhammad Rafiq bin Othman (PW5), Ahmad Fakhurrazi Bin Zakaria (PW6), and Shafinaz Binti Bidin, the Respondent’s lady companion, who sat in the front passenger seat next to the driver’s seat.

4.    Nothing incriminating was discovered on the persons of all occupants of the aforementioned car, including the Respondent. However, when PW9 searched the vehicle, he discovered a newspaper package tied with a rubber band hidden beneath the driver’s seat.

5.    Upon further inspection, the newspaper package was discovered to contain 200 pills, each with a “WY” logo, suspected to be dangerous drugs, the subject of the second charge.

6.    The Respondent and the other three occupants of the aforementioned car were arrested immediately. SP9 also recovered a number of keys from a compartment located between the driver’s seat hand rest and the front passenger seat.

7.    When questioned, the Respondent stated that the keys are the keys of the House. SP9 then brought all of the arrested people to the said House. SP9 was able to enter the house using the keys recovered from the said car.

8.    SP9 discovered a ‘Clarks Original’ shoe box on the floor in a room in the back of the said House. When the shoe box was opened, it revealed a newspaper package tied with a rubber band.

9.    Further investigation revealed that the newspaper package contained 3,971 pills, each with a “WY” logo, which were suspected to be dangerous drugs. A digital scale with the brand name ‘CONSTANT’ was also discovered in the shoe box.

10.  SP9 also seized a pair of ‘GUESS’ jeans and a ‘A/X’ T-shirt from the same room.

11.  The 200 pills found in the said car and the 3,971 pills found in the said House’s shoe box were later sent to chemist Suraini Binti Mat Yasin (PW7) for analysis.

12.  PW7 confirmed that the 200 pills recovered from the car contained a total of 28.88 grammes of Methamphetamine after analysing them. The 3,971 pills recovered from the shoe box contained a total of 55.51 grammes of Methamphetamine, the substance under investigation for trafficking.

13.  Based on the evidence given by the prosecution’s witnesses, the learned Judicial Commissioner (learned JC) found that the Respondent had custody and control of the impugned drugs found inside the said car at the conclusion of the prosecution’s case.

14.  In relation to the drugs recovered from the shoe box in the said house, the learned JC relied on the testimony of the tenant, Mohd Shafiq Bin Alias (PW11), as well as the evidence of the investigating officer, Inspector Hafizey Bin Hassan (PW12), and the testimony of SP9, the arresting officer.

15.  As a result, the learned JC concluded that the prosecution had established a prima facie case against the Respondent on the charge of trafficking. The Respondent was then ordered to enter his defence on both charges.

16.  According to the Respondent, he was arrested when he pulled over in front of the said House. SP11, who was handcuffed, was surrounded by police officers.

17.  The Respondent also stated that the police returned him to the said car after searching the same car and discovering drugs inside.

18.  The Respondent also testified that he stayed in the said House with SP11, Azhar, and Mat Nyek. He paid RM200.00 per month in rent and occupied the third room, while Azhar occupied the master bedroom and SP11 occupied the second.

19.  Mat Nyek stayed in the second room when SP11 left the house in the middle of May 2014.   The fourth room, where the drugs were discovered by the police, was used as a storage area.

20.  The house was furnished with a television and a sofa set, both of which belonged to SP11. Inside the third room he occupied, there was a cupboard and mattresses.

21.  When he was under remand, all his belongings in the said house were collected by his mother, Maznah Binti Jusuh (SD2).

22.  After considering the Respondent’s version, the JC concluded that the Respondent had succeeded in casting reasonable doubt on the prosecution’s case in relation to the trafficking charge.

23.  On the balance of probabilities, the learned JC determined that the defence had also succeeded in rebutting the presumption of trafficking under Section 37(da)(xvi) of the Act 234.

24.  As a result, the Respondent was acquitted and discharged of the trafficking charge, and the Deputy Public Prosecutor (‘DPP’) made an appeal.

1.    Whether the JC was correct in acquitting the Respondent due to the reason that the Respondent had succeeded in raising a reasonable doubt.

(a)   The DPP’s complaint was based on the Learned JC’s negative finding regarding the possibility of others having access to the said house, specifically SP11, Mat Nyek, and Azhar.

(b)   The JC relied on the evidence of SP12 and SD2 that when both the witnesses went to the House, they found that the door to the said House was not locked.

(c)   As a result, the JC concluded that there was a possibility that SP11, Mat Nyek, or Azhar had the keys to the said House and thus had accessed to it.

(d)   Nevertheless, the Court agreed with the learned DPP’s contention that the JC erred in his finding regarding access by others to the said House.

(e)   The Court determined that SP11 left the said House in May 2014 and that the Respondent had continuously occupied the House.

(f)     Regarding SP12’s evidence that the door was not locked, SP12 went to the House on 17.7.2012, two days after the incident, and SD2, the Respondent’s mother, went to the said House on the same day the Respondent was arrested.

(g)   According to the evidence presented in court, the said House was vacant at the time of the police raid. There was no evidence that Mat Nyek and Azhar had obstructed the said House.

(h)   Nothing was discovered to show that the two had occupied the said House together with the Respondent.

(i)     In addition, the Court agreed that the learned JC had failed to consider other material evidence against the Respondent.  Firstly, that there were clothing found from the same room where the impugned drugs were recovered which fits the Respondent well.

(j)     Second, prior to the incident, the Respondent had borrowed Ahmad Fakhurrazi Bin Zakaria’s (SP6) motorcycle, and at that night in question, SP6 and the Respondent were together in the said car, fetched earlier by the Respondent, to retrieve his motorcycle, which was kept by the Respondent in the said House.

(k)    This evidence supports the Respondent’s contention that the said House was solely occupied by him. The other piece of material evidence overlooked by the learned JC concerned similar fact evidence.

(l)     On the issue of similar facts, the Court refer to Section 15 of the Evidence Act 1950 (Act 56), which provides as follows:

“Facts bearing on question whether act was accidental or intentional:

When there is a question whether an act was accidental or intentional or done with a particular knowledge or intention, the fact that the act formed part of series of similar occurrences, in each of which the person doing the act was concerned, is relevant.”

(m) Evidence of similar fact was also accepted by the Federal Court in Junaidi Abdullah v. PP [1993] 3 CLJ 201 where it was decided as follows:

“Since this line of defence had already been indicated during cross- examination of DSP Mustaffa Kamil (PW1), we were of the view that the evidence of Tajuddin (PW2) on the armed robbery in which the appellant was involved, was admissible in evidence to rebut that defence, on the principle enunciated in Makin v. Atorney-General for New South Wales [1894] AC 57.”

(n)   The same issue was raised again in Mohammad b. Abdullah v. PP [2011] 4 MLJ 549 where PW7 had testified that prior to that incident they had delivered cannabis to Abang Puchong. Learned counsel submitted that the evidence should not be admitted by the court as it was prejudicial to the appellant. It was held by the Court of Appeal that-

“In the present case we were of the view that the probative value of the similar fact evidence adduced through PW7 far outweighed its prejudicial effect. The evidence of PW7 was admissible not because it tends to show that a person committing one offence is likely to commit another offence but to show knowledge of intention of the appellant and that possession was not accidental.”

(o)   In the instant appeal, the Respondent was found guilty of another charge where drugs in similar packaging was found earlier hidden under the driver’s seat of a car driven by the Respondent.

(p)   There were similarities not only in the type of the drugs but were also wrapped with newspaper cutting dated the same day, i.e Tuesday the 13th of May 2014, bound with rubber band, packed in yellowish paper where each package contained a transparent plastic packet and each plastic packet contained a plastic packet blueish in colour, each with “WY” pills in various colours.

(q)   The similar fact evidence, even though circumstantial in nature but nevertheless sufficiently strong to connect the Respondent to the commission of the offence charged, was simply ignored by the trial judge.

(r)     This similar fact evidence is admissible to show possession and knowledge on the part of the Respondent of the drugs found in the said House.

(s)    Therefore, the Court held that the learned JC had misdirected himself on this issue which amounts to a non-direction, sufficient to warrants appellate intervention.

(t)    Thus, in the present case the learned JC, having given the evidence before him the maximum evaluation before calling for the defence, should have therefore focused on whether the defence had cast a reasonable doubt in the prosecution’s case and even if did not, whether the prosecution had proved its case beyond reasonable doubt before finding the Appellants innocent or guilty for the offence as charged.

1.    The Court of Appeal allowed the DPP’s appeal and set aside the order of acquittal and discharge in respect of the 1st charge and substituted it with an order that the Respondent be convicted of the trafficking charge.

Key Take Away

1.    Section 15 of Act 56 highlighted that in determining whether an act was accidental or intentional or done with a particular knowledge or intention, the fact that the act formed part of a series of similar occurrences is relevant.

2.    This section allowed the local court to adopt the specific purpose approach in Makin v. Attorney-General for New South Wales [1894] AC 57.

3.    To conclude, the first component of Section 15 of Act 56 refers to state of mind (“to show whether the act was accidental or intentional”).