Sardar Ali Hassan Muhammad (W/Pakistan) v Public Prosecutor [2020] MLJU 1395

Court of Appeal, Putrajaya

Criminal Procedure – Appeal against conviction and sentence – Accused convicted under s 39B(1)(a) of Dangerous Drug Act  

1.    On 7 August 2014, at around 1.10 p.m., Sardar Ali Hassan Muhammad (“the Appellant”), a Pakistani national, arrived at KLIA.

2.    A police officer (“SP1”) observed him acting nervously while picking up a bag at Carousel C and approaching the exit.

3.    After stopping him and conducting a body search, SP1 found two packets containing brown substances strapped to both of his calves using compression sleeves.

4.    Lab analysis confirmed the brown substances were heroin and monoacetylmorphines (“the drugs”) the total weight of the drugs was 1,909.8 grams. The drugs were classified as dangerous drugs under the Dangerous Drugs Act 1952 [Act 234] (“DDA”).

5.    The Appellant was charged under paragraph 39B(1)(a) of the DDA for drug trafficking, which carries the death penalty.

6.    In his defence, the Appellant claimed that he was given a bag by a man named Rashid’s cousin in Lahore, Pakistan, supposedly containing clothes.  After arriving at KLIA, he allegedly received a threatening phone call from Rashid instructing him to remove the “medicine” from the bag and strap it to his legs.  He said he complied out of fear for his and his family’s safety.

7.    However, the trial judge found his version unreasonable and inconsistent, especially because his phone had no SIM card, making the alleged call questionable.

8.    Further, e had a return flight booked just one week later despite claiming he came to work.  There was no evidence of the job or company he claimed to return to.  Further, he did not collect his own bag, only the one given by Rashid’s contact.

9.    The trial judge found he had actual knowledge and possession of the drugs and convicted him.

1.    Whether the Appellant had knowledge and possession (mens rea) of the drugs found strapped to his calves?

2.    Whether the testimony of the key prosecution witness (SP1) was credible and reliable?

3.    Whether the impugned drugs were strapped to the Appellant’s calves from Pakistan or at the KLIA?

4.    Whether procedural errors, such as the date of the Consent To Prosecute (CTP), affected the validity of the trial?

1.    Whether the Appellant had knowledge and possession (mens rea) of the drugs found strapped to his calves?

(a)      Court of Appeal (COA) held that knowledge is an essential element to establish possession, as established in Ibrahim Mohamad v PP [2011] 4 CLJ 113. Mere physical control of the drugs is insufficient and there must be evidence that the accused knew the nature of the item in his custody.

(b)      In this case, the COA found that the Appellant’s conduct at KLIA, including his nervous behaviour, shifty movements, and the manner in which the drugs were tightly strapped to his calves, clearly pointed to actual knowledge of the drugs.

(c)      The Appellant did not provide a credible explanation and the Court rejected his story that he believed the items were “medicine” and that he was acting under threat.

(d)      COA further emphasized that the Appellant’s attempt to hide the drugs in a concealed and calculated manner (i.e., strapped with cloth and sleeves) showed that he had mens rea possession of the drugs before even picking up the bag from the carousel.

(e)      Therefore, the trial judge’s finding that the Appellant had knowledge and possession was affirmed by the COA.

2.    Whether the testimony of the key prosecution witness (SP1) was credible and reliable?

(a)   The Appellant challenged the credibility of SP1, claiming the Appellant was evasive, unsure during cross-examination, and that his evidence should not be relied upon.

(b)   However, the COA disagreed and upheld the trial judge’s finding that SP1 was a credible and reliable witness.

(c)   The decisions based on the grounds of no material contradictions or flaws were found in SP1’s testimony and his account was consistent and corroborated by his superior, Inspector Kenneth Khanna (SP5), who was present during the arrest and the search.

(d)   The trial judge, having the advantage of seeing and hearing SP1 in person, was in the best position to assess his credibility. This principle well supported by case law such as Amri Ibrahim & Anor v PP [2017] 1 CLJ 617 (FC) and Tan Kim Ho & Anor v PP [2009] 3 CLJ 236.

(e)   The COA reiterated the legal position that an appellate court should be slow to interfere with a trial judge’s finding on witness credibility unless there are substantial and compelling reasons which were absent in this case.

(f)     Furthermore, the Appellant failed to prove any motive or bias on SP1’s part. SP1 was simply performing his duty and had no prior connection to the appellant.

(g)   Thus, the COA held that SP1’s evidence was credible, reliable, and properly accepted by the trial court.

3.    Whether the impugned drugs were strapped to the Appellant’s calves from Pakistan or at the KLIA?

(a)   COA judge held that the precise location where the drugs were strapped on whether in Pakistan or at KLIA, was not material in determining the offence of trafficking.

(b)   COA referred to established legal principles under section 2 of the DDA trafficking includes acts of “carrying” and “transporting” dangerous drugs. Thus, even if the Appellant only strapped the drugs at KLIA, the act of carrying those drugs with the intention to exit the airport still satisfied the legal definition of trafficking.

(c)   However, the COA also reviewed the evidence and agreed with the trial judge’s factual finding that the Appellant’s version, that he received a call from Rashid at KLIA and strapped the drugs in the toilet, was not credible, because the Appellant’s phone had no SIM card, making it unlikely he received any call, the police officer did not observe him entering the toilet. His story was inconsistent with his earlier cautioned statement, which made no mention of serious threats or strapping at KLIA

(d)   Thus, the COA concluded that the Appellant’s version was an afterthought and upheld the trial judge’s finding that the drugs were already strapped to his legs before arrival.

(e)   Regardless, the Court emphasized that even if the drugs were strapped at KLIA, it would not affect the charge because the act of carrying the drugs in Malaysia alone was sufficient to constitute trafficking under the law.

4.    Whether procedural errors, such as the date of the Consent To Prosecute (CTP), affected the validity of the trial?

(f)     The Appellant argued that the Consent To Prosecute (CTP) issued under subsection 39B(3) of the Dangerous Drugs Act 1952 was defective because it was dated 27.4.2014, while the offence took place on 7.8.2014, suggesting the consent predated the charge.

(g)   However, the COA held that there was no failure of justice in the present case as the error as to the date of CTP was curable. Section 422 of the Criminal Procedure Code allows procedural defects (such as date errors in the CTP) to be cured, provided they do not cause a failure of justice. Under section 422 of the Criminal Procedure Code provides that –

“No finding, sentence or order shall be reversed or altered on account of any error, omission or irregularity… unless it has occasioned a failure of justice.”

(h)   Further, the defence did not show how the incorrect date of the CTP had prejudiced the Appellant’s right to a fair trial.

(i)     Moreover, the trial was conducted by a Deputy Public Prosecutor (DPP), who is the alter ego of the Public Prosecutor. This provides an implied valid consent under the law.

(j)     The Court reaffirmed that the presence of the DPP during the entire trial was sufficient to satisfy the legal requirement for prosecution under subsection 39B(3).

(k)    The Court concluded that the procedural error did not affect the fairness or outcome of the trial. The trial remained valid, and the conviction and sentence were upheld.

(l)     As such, the Court held that the prosecution proved the case beyond reasonable doubt, and the defence failed to raise any reasonable doubt.

1.    Possession under the law is not only about physical custody knowledge of the item is essential. The court found that the appellant’s suspicious behaviour supported an inference that he knew he was carrying drugs.

2.    The act of bringing drugs into Malaysia, including by personally strapping them to one’s body, meets the definition of trafficking under section 2 of the Dangerous Drugs Act 1952.

3.    A mistake in the date of the Consent To Prosecute (CTP) did not invalidate the trial. The court emphasized that technical errors alone are insufficient to overturn a valid conviction unless they result in a miscarriage of justice.

4.    Findings on credibility, demeanour, and factual inferences are primarily within the trial court’s purview. The Court of Appeal will not interfere unless there is a clear misdirection or injustice which was not present here.