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[2016] 5 LNS 64 Legal Network Series
1
IN THE SESSIONS COURT IN KENINGAU
IN THE STATE OF SABAH
[CRIMINAL TRIAL NO. KGU-63ES-3/10-2015]
BETWEEN
PUBLIC PROSECUTOR
AND
LIM KEN VUN
JUDGMENT
[1] This is an appeal by the prosecution on the acquittal and
discharge of the accused person.
[2] The accused was preferred with a charge under section 41(2) of
the Wildlife Conservation Enactment 1997. The charge read:
“Bahawa kamu pada 10.3.2015 jam lebih kurang 6.04
petang bertempat di KM5, Jalan Keningau-Sook dalam
daerah Keningau di negeri Sabah, telah memiliki hasil
haiwan bearded pig (Sus barbatus) babi hutan seberat
373kg iaitu spesis hasil haiwan yang dilindungi
sepertimana disenaraikan dalam jadual 3, Enakmen
Pemeliharaan Hidupan Liar 1997 tanpa dokumen
pemilikan yang sah. Oleh yang demikian, kamu telah
melakukan satu kesalahan di bawah seksyen 41(2)
Enakmen Pemeliharaan Hidupan Liar 1997 dan boleh
dihukum di bawah seksyen 41(4) Enakmen yang sama.”
[2016] 5 LNS 64 Legal Network Series
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[3] After having perused the testimonies of the prosecution
witnesses, exhibits and oral submissions of both parties, this
Court found that the prosecution had failed to prove a prima
facie case against the accused hence the Court acquitted and
discharged the accused without calling the accused to enter his
defence.
THE PROSECUTION CASE
[4] The prosecution called 4 witnesses to prove its case. The
witnesses were:
[a] PW1 – Joseph Fabian Sipaut, the Arresting Officer;
[b] PW2 –Joannes Gilou, the photographer;
[c] PW3 – Jaikin bin Kubis, the store keeper; and
[d] PW4 – Joseph Ringging, the Investigation Officer.
[5] It was the case for the prosecution that on 10.3.2015 at about
6.04 p.m., acting on an information, a team of officers from the
Sabah Wildlife Department conducted a road block at KM5 Jalan
Sook-Keningau where they stopped the accused who was driving
a black pick-up truck Isuzu. DMax with registration number
ST4119K.
[6] Upon search on the vehicle, the officers uncovered “daging babi
hutan” at the bucket of the vehicle. The accused had failed to
produce any licence or permit for possession of the daging babi
hutan, hence the accused was arrested and the vehicle together
with the daging babi hutan were seized .
[7] Upon arrival at the store of the Sabah Wildlife Department, PW1
weighed the daging babi hutan at 373 kilograms.
[2016] 5 LNS 64 Legal Network Series
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[8] PW1 also prepared the exhibits as follows:
[a] P3 – A list of the seized items;
[b] P4 – Police Report Keningau/1405/15.
[c] P5 – Borang Serah Menyerah to the
Investigation Officer; and
[d] P6 – Borang Serah Menyerah to the store.
[9] PW2 was the photographer who prepared these exhibits as
follows:
[a] P2(1 )-(6) – photographs;
[b] P7 – Certificate under s. 90A of the Evidence Act
1950;
[c] ID8– the CD containing the photographs; and
[d] P9 – the sketch plan.
[10] PW4, the Investigation Officer testified that on 13.3.2015 based
on an Order for disposal from the Court, he had buried the
daging babi hutan and on the same date had posted a sample of
the daging babi hutan to the Chemist Department in Petaling
Jaya, Selangor via Poslaju.
[11] Exhibits tendered through the Investigation Officer were as
follows:
[a] P10 – the Chemist Report;
[b] P11 – Court Order dated 12.3.2015 for disposal of
the daging babi hutan; and
[2016] 5 LNS 64 Legal Network Series
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[c] P12 – Court Order dated 6.10.2015 to return the
vehicle to its owner.
FINDINGS OF THIS COURT
[12] Section 41(2), (3) and (4) of the Wildlife Conservation
Enactment 1997 read:
“Possession of protected animals and animal products
(2) No person shall possess any other protected animal
or animal product thereof unless such animal or animal
product has been lawfully imported, obtained under the
authority of a valid licence or permit, through operation of
the law or in consequence of the death of any person or
has been purchased in accordance with section 48(2).
(3) The burden of proving lawful possession of any
animal or animal product shall be upon the person
possessing such animal or animal product.
(4) A person who contravenes subsection (1) or
subsection (2) commits an offence and shall be liable on
conviction, in the case of ... an animal or animal product
of a species listed in .. Schedule 3, to a fine of thirty
thousand ringgit or to imprisonment of three years or to
both.”
[13] Bearded pig or Sus barbatus is listed under the list of Protected
Species of Animal for Which Hunting Licence is Required under
Schedule 3 at number 4.
[2016] 5 LNS 64 Legal Network Series
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(i) Whether the meat seized from the vehicle driven by the Accused
was a species of a protected animal or animal product?
[14] The Investigation Officer (PW4) testified that he had taken a
sample of the meat to send to the Chemist Department. The
testimony read as follows:
“Pada petang 12.03.2015 saya juga ke stor untuk
mengambil contoh daging sebanyak 200 gram yang saya
masukkan ke dalam termos diikat dan dipatri dan dicop
dengan Pengarah Jabatan Hidupan Liar, Sabah untuk
dikirim ke Jabatan Kimia Petaling Jaya, Selangor ... Pada
13.03.2015, saya telah mengirim sampel daging ini ke
Jabatan Kimia Petaling Jaya, Selangor dengan
menggunakan Poslaju di Pejabat Pos Keningau.”
(emphasis added)
[15] Looking at the Chemist Report which was tendered and marked
as P10, where relevant parts of the Report read as follows:
“… telah menerima satu tong silinder … melalui kiriman
PosLaju (Tracking No. EF 70 284 927 5MY ... bertanda
‘EXHIBIT NO: 1’ dan mendapati di dalamnya
mengandungi dua (2) ketulan daging.” (emphasis added)
[16] This Court found that there was a break in the chain of evidence,
where the Investigation Officer PW4 testified that he had taken
200 grams sample of meat. This was not supported by the
Chemist Report P10 where it was stated that the sample received
was ‘dua (2) ketulan daging’. There was no evidence tendered
by the Prosecution to show that the 200 grams sample was in
two chunks of meat or that the two chunks of meat weighed 200
grams.
[2016] 5 LNS 64 Legal Network Series
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[17] Furthermore, the Investigation Officer PW4 testified that he put
the sample in a thermos tied and sealed with the seal of the
Director of the Sabah Wildlife Department, whereas the Chemist
Report P10 stated that the Chemist received a cylinder tong
marked ‘EXHIBIT NO: 1’.
[18] There was no evidence that the thermos sent by PW4 was
marked with ‘EXHIBIT NO: 1’, or that the thermos and the
cylinder tong were the same thing.
[19] Moreover, the Investigation Officer PW4 testified that he had
posted the sample via Poslaju but did not offer any evidence to
tie the tracking number with the package, in comparison to the
Chemist Report P10 where it was written that the Tracking
number for the Poslaju read EF 70 284 927 5MY.
[20] The issue on whether the sample sent to the Chemist Department
by the Investigation Officer PW4 was the same sample received
by the Chemist and reported in the Chemist Report P10 raised
doubt because the Investigation Officer PW4 testified that
before the sample was obtained and before the meat was
disposed by way of burial, the meat was kept in a freezer in the
store of the Sabah Wildlife Department, where there were other
items in the freezer. The testimony read as follows:
“Q40 Sila terangkan kepada Mahkamah berapa besar
freezer tempat simpanan daging itu?
A Freezer Jabatan Hidupan Liar Keningau di dalam
stor lebih kurang panjang 6 kaki dan lebar 3 kaki
dan ada dua buah tetapi malangnya freezer ini telah
pun penuh.
[2016] 5 LNS 64 Legal Network Series
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Q41 Apabila exhibit kes ini iaitu daging dirampas oleh
pegawai Jabatan Liar pada 10hb freezer yang dua
buah ini sudah berisi?
A Ya.
Q42 Kamu setuju dengan saya bahawa dari 10hb
sehingga 13hb bulan March daging ini dicampur
dengan daging yang lain?
A Tidak Setuju.”
[21] Based on the testimony of the Investigation Officer PW4 that
there were other items in the freezer, hence there must be a link
to tie the sample taken by him and sent to and received by the
Chemist Department. There was no such link in this case.
[22] In addition to the lack of link as illustrated above, although
when questioned, the Investigation Officer PW4 did not agree
that the meat could have mixed with other items already existent
in the freezer in the store of the Sabah Wildlife Department,
there was no explanation offered as to why the meat could not
have mixed, except that PW4 could distinguish the meat based
on the freshness. The testimony read:
“Q8 Bagaimana kamu mengenali daging yang dirampas
dalam kes ini dengan daging kes lain?
A Daging dirampas tidak bercampur dengan daging
kes-kes yang lain.
Q9 Apakah kaedah kamu untuk mengenalpasti ini?
A Saya kenalpasti melalui keadaan daging yang masih
barn daripada daging-daging yang lain.”
[2016] 5 LNS 64 Legal Network Series
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[23] However, the Investigation Officer PW4 contradicted himself in
his testimony in that on one hand, he testified that he could
identify the meat based on its freshness (as above), and on the
other hand, he testified that he had to expeditiously dispose the
meat as they were starting to smell and deteriorate. The
testimony read as follows:
“Q10 Tadi kamu mengatakan kamu memusnahkan daging
itu dengan tergesa-gesa. Sila jelaskan.
A Sebelum saya memusnahkan daging tersebut saya
telah mengambil contoh daging. Oleh kerana
keadaan daging yang mulai berbau busuk dan
mulai rosak sebab itulah saya musnahkan daging
tersebut.” (emphasis added)
[24] According to the Chemist Report P10, the Chemist received the
sample on 17.3.2015 however, the Report P10 was dated
6.4.2015 and was handed over to one Joseph Ringging (PW4) on
10.9.2015 at 9.30 a.m.
[25] There was no evidence on when the sample was tested and
examined and where the sample was kept, the custody of the
sample before and after the examination or how the
Investigation Officer PW4 obtained the report.
[26] PW4 merely testified that he received the Report on 10.9.2015
and the relevant part of the testimony of PW4 on the receipt of
the Chemist Report read as follows:
“Q25 Selepas kamu hantar ke Jabatan kimia apa yang
berlaku?
A Pada 10.09.2015 saya menerima laporan daripada
Jabatan Kimia Petaling Jaya, Selangor yang
[2016] 5 LNS 64 Legal Network Series
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mengesahkan bahawa daging yang 200 gram yang
saya kirim adalah daging babi hutan atau nama
saintifiknya “Sus barbatus”.
[27] Looking at the Chemist Report P10, it seemed that the only
thing tying the sample received and examined by the Chemist to
the sample obtained and sent by the Investigation Officer PW4
was the police report number, however, the number also could
not relate as it was incompletely stated: The police report
number read “NO LAPORAN POLIS: KENINGAU/001405/1”.
[28] The Court could not presume the reason why the number was
stated as such.
[29] Apart from the Chemist Report P10, all the four the prosecution
witnesses testified that the meat confiscated from the vehicle
driven by the Accused was daging babi hutan. However, there
was no proof that the meat was in fact daging babi hutan but for
the personal opinion of the prosecution witnesses .
[30] Based on the reasons stated above, the Court found the answer
to the above question (i) in the negative, in that there was a
break in the chain of evidence and as such, there was no
evidence that the meat seized from the vehicle driven by the
Accused was in fact an animal or animal product of a protected
species.
[31] Thus, the Court found that the prosecution had failed to prove
that the meat seized on 10.3.3015 at 6.04 p.m. from the vehicle
driven by the Accused was the meat form an animal listed under
the Schedule 3 of the Wildlife Conservation Enactment 1997, at
list number 4 i.e. Bearded Pig (Sus barbatus).
[2016] 5 LNS 64 Legal Network Series
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(ii) Whether section 114(g) of the Evidence Act 1950 applies?
[32] The photographer PW2 testified that he had taken 60 photos at
the crime scene. That part of his testimony read as follows:
“Q8 Berapa keping gambar yang ambil di tempat
kejadian?
A Lebih kurang 60 keping.”
(emphasis added)
[33] However, there were only 6 photographs tendered by the
prosecution and marked as prosecution exhibit, contrary to the
testimony of the Photographer PW2 himself when he testified he
snapped 60 photos.
[34] Apart from the fact that only 6 photos were tendered in Court,
the Investigation Officer PW4 testified that he received 90
photographs from the Photographer PW2 The relevant part of the
testimony read:
“Q12 Bagaimana dengan gambar-gambar?
A Saya telah menerima gambar-gambar sebanyak 90
keping dari Jurugambar pada 13.03.2015. Semua
gambar-gambar ini sudah pun dicetak.” (emphasis
added)
“Q19 Siapa yang menentukan gambar-gambar apa yang
akan diletak di dalam IP?
A Saya sebagai IO kes dalam kes ini hanya memilih
gambar-gambar yang saya rasakan sesuai dan saya
letakkan dalam IP kerana gambar-gambar yang lain
[2016] 5 LNS 64 Legal Network Series
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ada yang shot dan tidak berapa bagus serta
berulang-ulang.”
[40] Another issue was that the Photographer PW2 himself did not
testify that he had snapped photographs anywhere else but at the
scene of crime. However, when referred to the photograph
P2(3), the Photographer PW2 testified that that particular photo
was taken at the store. His testimony read:
“Q9 Sila lihat gambar P2(3-4). Sila lihat latar belakang
gambar ini, adakah ia menunjukkan keadaan masih
terang atau gelap?
A Pada gambar P2(2) masih terang,gambar P2(3)
telah gelap di stor.”
Q10 Kamu katakan gambar P2(3) adakah ini diambil di
stor?
A Ya.” (emphasis added)
[41] Furthermore, there was no evidence that the camera used by the
Photographer PW2 was ever calibrated or used in the ordinary
course of business, or that the photographs were printed using
what type of printer and whether that printer was ever calibrated
or that it was in any working condition.
[42] The real number of photographs were doubtful, the place where
the photographs were taken, whether at the scene of the crime or
at the store, and if photographs were taken at the store, why was
that evidence not presented before the Court? There was no
evidence on the working condition of the equipment used to take
the photographs.
[2016] 5 LNS 64 Legal Network Series
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[43] As the exhibits in this case were tendered by way of
photographs only and the original meat confiscated had already
been disposed of, the photographs must be tendered and
identified without any doubt.
[44] Hence, to the question number (ii) above, this Court found the
answer in the positive in that section 114(g) of the Evidence Act
1950 applies, in that if the remaining photographs were tendered
in Court, it would have an adverse inference against the
prosecution.
(iii) The disposal of the meat before the disposal of the case
[45] This issue was submitted by the defence. However, this Court
found no merit in this submission as the disposal of the meat
was done in accordance to an Order of the Court as appearing in
Exhibit P11.
(iv) Type of meat
[46] Another issue submitted by the defence was that the Chemist
Report P10 found the meat as Babi Bodoh whereas the charge
against the Accused was Babi Hutan. Despite the reasoning
above on the Chemist Report P10, the Court found no merit in
this submission as it was affirmed by the Chemist that the meat
was of Sus barbatus, a type listed under Schedule 3.
[47] The scientific name prevails over any other name the animal is
known for, either babi hutan or babi bodoh.
[2016] 5 LNS 64 Legal Network Series
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CONCLUSION
[48] Based on the reasons above, the perusal of the testimonies of the
prosecution witnesses, exhibits and submissions of both parties,
this Court found that the prosecution had failed to prove a prime
facie case against the Accused against the charge preferred
against him.
[49] Accordingly, the Accused was acquitted and discharged without
calling for defence.
Dated: 6 JUNE 2016
(AINUL SHAHRIN MOHAMAD)
Judge
Sessions Court Keningau
Legislation referred to:
Wildlife Conservation Enactment 1997, ss. 41(2), (3), (4), Schedule 3
Evidence Act 1950, ss. 90A, 114(g)