Ajeng Yulia v Public Prosecutor, 04-05-2016

• Judge: TENGKU MAIMUN TUAN MAT,ZAKARIA SAM,AHMADI HAJI ASNAWI
• Judgment Date: 04 May 2016
• Court: Court of Appeal (Malaysia)
• Appellant: AJENG YULIA
• Record Number: C-05-68-03/2015
• Respondent: PUBLIC PROSECUTOR

MRRJ -C-05-68-03/2015

IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO: C-05-68-03/2015

BETWEEN

AJENG YULIA ... APPELLANT

AND

PUBLIC PROSECUTOR ... RESPONDENT

(In the Matter of High Court of Malaya at Kuantan, Pahang

Criminal Trial No: 45A-6-04-2014

Between

Public Prosecutor

And

Ajeng Yulia)

CORAM:

TENGKU MAIMUN TUAN MAT, JCA

ZAKARIA SAM, JCA

AHMADI HAJI ASNAWI, JCA

JUDGMENT OF THE COURT

[1] The appellant was convicted and sentenced to death for trafficking in dangerous drugs. The charge reads:

“Bahawa kamu pada 10 haribulan November 2013, di antara jam lebih kurang 11.00 malam bertempat di Unit Pemeriksaan Penumpang, Balai Ketibaan Lapangan Terbang Sultan Ahmad Shah di dalam daerah Kuantan, dalam Negeri Pahang Darul Makmur, telah didapati mengedar dadah berbahaya iaitu jenis Methamphetamine seberat 3004 gram dan dengan itu kamu telah melakukan kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B(2) Akta yang sama.”

The Prosecution’s Case

[2] On 10.11.2013, Customs officer Suraya binti Mohamad Husin (SP3) and her supervisor, Zaiton binti Abdul Rahman (SP5) were on observation duties at the passenger examination counter at Sultan Ahmad Shah Airport, Kuantan, Pahang.

[3] At about 11.00pm, SP3 saw the appellant passing through the area. The appellant was pulling a blue coloured luggage (exhibit P9). SP3 stopped the appellant and upon being questioned, the appellant informed SP3 that she arrived from India and that she came to Kuantan for a holiday.

[4] SP3 then asked for the appellant’s passport and instructed the appellant to open P9 for examination. While waiting for the appellant to look for the key to P9, SP3 handed over the appellant’s passport to SP5. SP3 resumed examination over other passengers.

[5] After the examination of the other passengers was done, SP3 came back to the appellant and instructed the appellant to open P9. The appellant opened P9 with a key as instructed by SP3. SP3 had difficulty conducting examination over the contents of P9 as it was packed with clothes. SP3 instructed the appellant to scan P9 at the scanning machine.

[6] The scan of P9 revealed suspicious green-coloured images. SP5 then instructed SP3 to bring the appellant to the Customs office for further examination. The appellant was instructed to empty the contents of P9. Throughout the process, the appellant was co-operative and calm.

[7] After the contents were emptied, P9 was scanned again. The second scan revealed the same suspicious images. The appellant was then taken back to the Customs office together with P9.

[8] At about 12.50am, Mohd Sufian bin Mohamed Yusof (SP6) and his enforcement team arrived at the Airport Customs office. Upon a detailed examination of P9, SP6 discovered 5 compressed packages containing crystal-like substance concealed beneath the lining at both the bottom and top parts of the luggage.

[9] After analysis by the chemist, Khairul Hadi bin Haji Abd Raof (SP4), the substance was confirmed to contain 3,004 grams of Methamphetamine Methamphetamine is listed under the First Schedule of the Dangerous Drugs Act, 1952 (the Act).

Findings at the end of the prosecution’s case

[10] Based on the fact that the appellant was seen pulling P9, that P9 had the name tag of the appellant (exhibit P16), that the appellant had the key (exhibit P15) to P9 and that the clothes in P9 fitted the appellant, the learned trial judge found that the appellant had custody and control of the luggage P9 and the drugs found in it.

[11] From the quantity and the manner the drugs were concealed beneath the lining of P9, the learned trial judge inferred that the appellant had knowledge of the dangerous drugs in P9. Citing Teh Hock Leong v PP [2010] 1 MLJ 741, the learned trial judge ruled that the co-operative and calm conduct of the appellant did not negate the appellant’s knowledge of the drugs in P9. The learned trial judge had also invoked the statutory presumption under section 37(d) of the Act.

[12] As for the element of trafficking, the learned trial judge found that the appellant was carrying the drugs from one place to another which falls under the definition of trafficking in section 2 of the Act.

[13] Having found that the prosecution had made out a prima facie case, the appellant was called upon to enter her defence.

The Defence

[14] Under oath, the appellant stated that in Jakarta she came to know a Nigerian, by the name of Stanley through the “Blackberry Messenger”. Stanley invited the appellant to New Delhi, India for a holiday.

[15] The appellant left Jakarta on 6.11.2013 and arrived in New Delhi the same day. She met Stanley and stayed with Stanley in New Delhi for four (4) days.

[16] The appellant further stated that Stanley bought some clothes to be given to her relatives in Jakarta. Before she left for Kuantan, at New Delhi Airport, Stanley had asked her to change her bag that she had brought from Jakarta as it was too small to fit in all the clothes that Stanley had bought. Stanley gave the appellant P9 in exchange for the appellant’s bag.

[17] It was also the evidence of the appellant that she had checked P9 and found it to be empty. There was nothing abnormal with the luggage and neither did she find anything suspicious in P9.

[18] Upon arrival in Kuantan, the appellant was supposed to call Stanley, but as she was arrested, she was not able to do so. Stanley’s hand phone number was in her hand phone which was seized by the Customs officers. The appellant’s testimony was consistent with her cautioned statement (exhibit D21) in material particulars.

Findings at the end of the defence case

[19] The learned trial judge found that apart from the name, the appellant was not able to provide any other particulars about Stanley. The appellant did not know the occupation of Stanley. Neither did the appellant know about Stanley’s address in New Delhi.

[20] The learned trial judge concluded that Stanley was fictitious and that the defence has failed to raise a reasonable doubt on the prosecution’s case and failed to rebut the presumption under section 37(d) of the Act. The appellant was thus convicted and sentenced to death. Hence this appeal.

The Appeal

[21] Before us, learned counsel for the appellant ventilated the following issues:

1. that there was a break in the chain of evidence;

2. that the luggage tag exhibit P16 is inadmissible;

(iii) that the appellant did not have the mens rea possession; and

(iv) that the prosecution had failed to rebut the defence.

[22] On the first issue, the submission of learned counsel was that there was a material discrepancy between the evidence of SP3 and SP6 as to the person who handed over the belongings of the appellant, in particular exhibit P9 to SP6.

[23] According to SP3, she handed the appellant, exhibit P9 and all other appellant’s belongings to SP6. This evidence is consistent with the police report of SP6 (exhibit P18) wherein it was stated that SP6 received exhibit P9 from SP3. In his oral evidence, SP6 however stated that he received the exhibit from SP5. Learned counsel contended that the discrepancy between the police report and the oral evidence of SP6 created a gap in the chain of evidence as there was a doubt whether the luggage bag which was scanned by SP3 was the same as the one examined by SP6.

[24] Another aspect in the chain of evidence challenged by learned counsel arose from the following evidence. SP6 testified that at about 12.00 noon, he and SP3 went to the Kuantan police station to lodge a police report and that he returned to the office at about 1.15pm. The exhibits then were in the custody and care of Customs officers Munirah and Azizah. After SP6 came back from the police station, he handed the exhibits to the investigating officer, Noormad Razamussein bin Ismail (SP7). Munirah and Azizah were not called as witnesses. Learned counsel argued that the failure to call Munirah and Azizah resulted in a serious break in the chain of evidence. Teoh Hoe Chye v PP and Another case [1987] CLJ (Rep) 386 was cited to support his argument.

[25] On the second issue, it was the submission of learned counsel that the luggage tag, exhibit P16 which was tendered through SP7 was an inadmissible hearsay document as it was not tendered through the maker. Hence, the luggage tag could not be relied upon to draw the inference that the appellant was the owner of the luggage P9. Learned counsel relied on Sim Siew Bee v PP [1973] 2 MLJ 200 and Nahar Singh v Pang Hon Chin [1986] 2 MLJ 141.

[26] In respect of the third issue, learned counsel highlighted that from the evidence of the prosecution witnesses, the appellant was indeed co-operative with the Customs officers throughout the relevant period. The complaint of learned counsel was that the learned trial judge erred in his reliance on Teh Hock Leong v PP [2010] 1 MLJ 741 to infer that the appellant had the requisite knowledge of the drugs in P9. It was submitted that the learned trial judge had completely ignored and overlooked all other inferences favourable to the appellant which could be drawn from the same facts upon which his Lordship based his conclusion as to the element of knowledge.

[27] The fourth issue...