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DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA IRN).pdf Selangor Darul Ehsan, telah didapati mengedar dadah berbahaya iaitu Methampetamine seberat 419.7 gram dan dengan itu kamu telah

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    DALAM MAHKAMAH RAYUAN MALAYSIA

    (BIDANG KUASA RAYUAN)

    RAYUAN JENAYAH NO.: B-05-85-04/2013 (IRN)

    ANTARA

    MOHAMMAD REZA LAJEVARDI TAGHI …PERAYU

    DAN

    PENDAKWA RAYA …RESPONDEN

    (Dalam Perkara Mahkamah Tinggi Malaya di Shah Alam

    Perbicaraan Jenayah No. 45A-106 TAHUN 2011)

    Pendakwa Raya

    Lawan

    Mohammad Reza Lajevardi Taghi

    KORAM

    MOHD. ZAWAWI BIN SALLEH, HMR VARGHESE A/L GEORGE VARUGHESE, HMR

    PRASAD SANDOSHAM ABRAHAM, HMR

    Decision Date: 20th November 2014

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    GROUNDS OF THE COURT

    INTRODUCTION

    [1] The appellant was charged with trafficking in 419.7 grams of

    methamphetamine under section 39B (1)(a) of the Dangerous Drugs Act

    1952 (“DDA”). He was convicted and sentenced under section 39B (2)

    of the DDA. Aggrieved, the appellant now appeals to this Court.

    [2] The charge against the appellant was as follows:

    “Bahawa kamu pada 01hb Januari 2011, jam Iebih kurang 9.50

    pagi, bertempat di Kawasan Tuntutan Bagasi G, Balai Ketibaan

    Aras 3, MTB, KLIA, dalam Daerah Sepang, di dalam Negeri

    Selangor Darul Ehsan, telah didapati mengedar dadah berbahaya

    iaitu Methampetamine seberat 419.7 gram dan dengan itu kamu

    telah melakukan suatu kesalahan di bawah Seksyen 39B (1) (a)

    Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah

    Seksyen 39B (2) Akta yang sama.”

    [3] The prosecution had called 12 witnesses to testify. At the end of

    the prosecution’s case, the learned trial Judge found a prima facie case

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    against the appellant and ordered the appellant to enter his defence.

    The appellant elected to give unsworn evidence from the dock.

    [4] At the end of the defence case, the learned Judge found that the

    appellant had failed to raise any reasonable doubt against the

    prosecution’s case and consequently the appellant was convicted in

    respect of the said charge and sentenced to death.

    FACTS

    [5] Briefly, the factual scenario which led to the arrest of the appellant

    on 1.1. 2011 were as follows:

    a) On 1.1.2011, the Arresting Officer, D/Sarjan Hassan bin

    Jamil (SP4), was on duty at the Baggage Claim Area at the

    third floor of the Arrival Hall, KLIA from 9.00 in the morning.

    b) As SP4 was observing Carousel G for the arrival of

    passengers from flight No. QR 620, he noticed that the

    appellant was walking towards the exit through the green

    lane with a grey colour trolley bag.

    c) SP4 then directed his team member, D/Kpl Zulkefli, to stop

    the appellant and ordered D/Kpl Zulkefli to scan the

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    appellant’s bag. At the time when the bag was scanned SP4

    was also present there with D/KpI Zulkefli.

    d) After the bag was scanned, SP4 found nothing suspicious

    appearing on the screen of the scanner. SP4 then asked the

    appellant to open his bag which the appellant obeyed and

    opened his bag.

    e) When the bag was opened for SP4 to inspect, SP4 only

    found clothes in the bag.

    f) SP4 then opened the sides of the bag where he realised it

    was glued together. SP4 found a piece of white cotton below

    a hard piece of plastic underneath the bag.

    g) SP4 then took a sample of the white cotton and tested it on a

    test strip for drugs. The result came back positive for drugs.

    h) SP4 then arrested the appellant and confiscated the

    appellant’s bag. SP4 informed the appellant that there were

    drugs found in his bag.

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    i) SP4 checked the appellant’s pouch bag and found nothing

    suspicious except for his documents and money. SP4 then

    took away the appellant’s passport.

    j) SP4 then made a police report No. KLIA Sepang 08/2011

    and handed over the exhibits to SP10 at the Narcotic Office

    in IPD Sepang.

    k) The appellant was charged with trafficking 419.7 grams

    Methampetamine.

    I) The prosecution relied on the statutory presumption under

    Section 37(d) of the Dangerous Drugs Act 1952.

    Findings of the High Court

    [6] At the conclusion of the trial, the learned trial Judge found the

    appellant had failed to cast a reasonable doubt on the prosecution’s

    case and proceeded to find him guilty. The learned trial Judge reasoned

    that:

    a) The appellant’s unsworn statement carried no value and thus

    has no weight for the court to consider;

    b) The defence was a bare denial and the story was concocted;

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    c) The appellant had failed to rebut the presumption of

    knowledge of the incriminating items and he had custody and

    control over them; and

    d) SDI and SD2 were “interested witnesses” who had no

    knowledge of the facts but only the version told to them by

    SD3.”

    OUR FINDINGS

    [7] The written submissions of the appellant focuses mainly on the

    knowledge on the part of the appellant and not possession. And our

    analysis of the appellant’s case proceeds accordingly.

    [8] The burden to prove the existence of knowledge on the part of the

    appellant of the drugs found in the bag remains squarely on the

    prosecution. We refer to the decision of the Federal Court in Mohamad

    Radhi Yaakob v. PP [1991] 1 CLJ (Rep) 311 where the Court held:

    “It is a well-established principle of Malaysian criminal law that

    the general burden of proof lies throughout the trial on the

    prosecution to prove beyond reasonable doubt the guilt of the

    accused for the offence with which he is charged. There is no

    similar burden placed on the accused to prove his innocence.

    He is presumed innocent until proven guilty. To earn an

    acquittal, his duty is merely to cast a reasonable doubt in the

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    prosecution case. In the course of the prosecution case, the

    prosecution may of course rely on available statutory

    presumptions to prove one or more of the essential ingredients

    of the charge. When that occurs, the particular burden of proof

    as opposed to the general burden, shifts to the defence to rebut

    such presumptions on the balance of probabilities which from

    the defence point of view is heavier than the burden of casting a

    reasonable doubt, but it is certainly lighter than the burden of

    the prosecution to prove beyond reasonable doubt... If defence

    is called, the duty of the accused is only to cast a reasonable

    doubt in the prosecution case. He is not required to prove his

    innocence beyond reasonable doubt”.

    [9] The case of Warner v. Metropolitan Police Commissioner

    [1968], set some guidelines which have been followed in many

    jurisdictions including ours. In particular, Lord Wilberfore stated:

    “In order to decide between these two (possession and mere

    control) the jury should …. be invited to consider all the

    circumstances – the ‘modes or events’ by which the custody

    commences and the legal incident in which it is held. By

    these I mean, relating them to typical situations, that they

    must consider the manner and the circumstances in which the

    substance, or something which contains it, has been received,

    what knowledge or means of knowledge or guilty knowledge

    as to the presence of the substance, or as to the nature of

    what has been received, the accused had at the time of

    receipt or thereafter up to the moment when he is found with

    it; his legal relation to the substance or package (including his

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    right to access of it). On such matters as these (not

    exhaustively stated) they must make the decision whether, in

    addition to physical control, he has, or ought to have imputed

    to him, the intention to possess, or knowledge that he does

    possess, what is in fact a prohibited substance. If he has this

    intention or knowledge, it is not additionally necessary that he

    should know the nature of the substance”.

    [10] Discerning from the proved facts of this instant appeal one will see

    that appellant has made reference to 3 persons namely Farshad, Akbar

    and Mahmud, in his version of the events that took place that would go

    to support the appellant’s contention that the appellant lacked the

    knowledge of the presence of the drugs in the bag. The Public

    Prosecutor had re-examined the Investigating Officer, Inspector Eddy

    Amin bin Hussin Ala (SP10), on these names during the investigation of

    the case. SP10’s evidence at page 183 of the Appeal Record (herein

    after referred to “AR”) Vol. 2 as set out below confirms that:

    “S: Dalam siasatan awak adakah OKT beritahu tentang

    pekerjaan beliau dan tentang tugas beliau ke Malaysia?

    J: Saya tidak diberitahu.

    S: Adakah pada bila-bila masa dalam siasatan kamu timbul

    nama Akbar, Mahmud dan Farshad?

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    J: Dalam siasatan saya ada disebut melalui cautioned

    statement

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