DALAM MAHKAMAH RAYUAN MALAYSIA

IN THE APPEAL COURT OF MALAYSIA

(BIDANGKUASA RAYUAN)
(APPELLATE JURISDICTION)
RAYUAN JENAYAH NO.
P-05-234-08/2011 & P05-233-08/2011

1. SHAMSIR BIN JAMALUDDIN

2. ZAILANI BIN ZAINOL

PERAYU-PERAYU

DAN

PENDAKWA RAYA

RESPONDEN

CORAM:

LINTON ALBERT, JCA

MOHTARUDIN BAKI, JCA
MOHD ZAWAWI BIN SALLEH, JCA

GROUNDS OF DECISION

The first and second appellants were jointly charged for the
offence of trafficking in dangerous drugs, namely, 8044 grammes of
cannabis under section 39B(1)(a) of the Dangerous Drugs Act 1952 (the
Act) and read together with section 34 of the Penal Code. They were both
convicted of the offence charged and sentenced to death under section
39B(2) of the Act. This is their appeal against conviction and sentence.

The prosecution called 11 witnesses to give evidence which was

meticulously set out by the learned trial judge in his written judgment, but
for the purpose of this appeal, a summary would suffice. Events which
led to the commission of the offence began to unfold in late afternoon on
11-2-2005, when after a briefing, the agent provocateur detective corporal
Govindasamy a/l Raju (SP4) entered Restoran Khaleel at Persiaran
Gurney, where he waited for the rendevous with the prospective drug
supplier. After waiting for more than an hour, two male Malays came in at
around 5.20 pm and were identified is as the first appellant (OKT1) and the
second appellant

(OKT2).

They both approached SP4 and OKT2,

enquired from SP4 whether SP4 was Sam.

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Sam was the name

designated by SP4s superior officer, one ASP Rizal Mohamad (SP5), to

be adopted by SP4 for the operation at the earlier briefing given by SP5.
SP4 replied in the affirmative after which

OKT2 introduced OKT1 as

Sham. After the introductions, OKT1 and OKT2 sat at the table where
SP4 was seated. SP4 then asked OKT2 whether the merchandise was
already available, meaning the cannabis,

to which OKT2 replied that

OKT1 was his taukeh and SP4 could deal with OKT1.

OKT1 then

confirmed that the merchandise was available and after some bargaining
OKT1 agreed to supply SP4 with 10 slabs of cannabis for a total purchase
price of RM27,000.00 The negotiation between OKT1 and SP4 was made
in the presence of both OKT2 and lance corporal Nanthakumar. OKT1
wanted to be assured that SP4 had the money to pay for the drugs.
Subsequently, SP4 arranged for detective sergeant Manimaran, who was
waiting in the car outside the restaurant, to show OKT1 the money stuffed
inside a bag in the car.
sufficient,

OKT1 asked SP4 whether the money was

to which SP4 replied there was RM30,000.00 in the bag.

OKT1 and SP4 then returned to the restaurant, whereupon OKT1 told
SP4 to wait there together with his boy, referring to OKT2, and said that
he was going to fetch the merchandise. OKT1 then left in a green Proton
Wira registration number WKR 204. After a short while, SP4 together with
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OKT2 and lance corporal Nanthakumar left the restaurant and walked
across the road and waited at the beach. At about 6.30pm, OKT1 came
together with a bald headed Malay male and told SP4 that the
merchandise would be delivered in 30 minutes, but at around 7.25pm,
OKT1 told SP4 to go to Tesco at Persiaran Tengku Kudin together with
OKT2 and wait there while OKT1 would go to fetch the merchandise and
then go to Tesco as well. OKT1 then left together with the bald headed
Malay male in the same car WKP 204.

SP4 then contacted ASP

Balasubramaniam (SP11) who was all the while lying in wait in the vicinity
together with several other police personnel to tell him that the venue for
delivery of the drugs had been changed to Tesco.

SP4 together with

OKT2 and lance corporal Nanthakumar proceeded to Tesco in the car

driven by detective sergeant Manimaran with OKT2 giving directions to get
to Tesco. SP11 and his men followed from behind. SP4 together with
OKT2 and lance corporal Nanthakumar arrived at Tesco at 8.15 pm and
waited inside the supermarket and sat at the same table at Restaurant
Pelita.

OKT1 came together with the bald headed Malay male at around

9.00 pm but left again together after OKT1 had told SP4 that he was going
to fetch the merchandise and that SP4 and OKT2 was to wait for him
there. Subsequently, OKT2 received a phone call and he then told SP4
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that OKT1 had informed him that they were to meet at 7-Eleven at Jalan
Sultan Azlan Shah, Sungai Nibong, near Krystal Point.
SP11 about the change of venue.

SP4,

SP4 informed

together with OKT2, lance

corporal Nanthakumar and detective sergeant Manimaran then proceeded

to Sungai Nibong with OKT2 giving directions to go to Sungai Nibong. At
7-Eleven Jalan Sultan Azlan Shah, Sungai Nibong SP4 alighted from the
car driven by detective sergeant Manimaran while SP11 and his team
were keeping a surveillance in the vicinity of Krystal Point.

SP4 then

walked to the Krystal Point parking area. At 10.00pm, the car WKP204
driven by OKT1 who was alone inside, came slowly towards the Krystal
Point parking area and SP4 walked towards the car. OKT1 then stopped
the car, came out and stood at the door on the drivers side of the car. On
nearing

OKT1, SP4

responded

by

asked him for the cannabis, to which OKT1

pointing towards the left passenger seat with his right

hand. SP4 then opened the back door of the car and saw a white plastic
bag on the passenger seat and took out 5 slabs each wrapped with
transparent plastic and counted five more slabs inside the white plastic
bag making a total of ten slabs suspected to be cannabis.

SP4 then

closed the door, after which OKT1 then locked the doors with the remote
control and put the car key together with the remote control in his pocket.
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After confirmation by

SP4 that there were 10 slabs, OKT1 asked for

payment. SP4 then called SP11 instead and spoke to him in Tamil and
telling SP11 that the merchandise was there and he could come to make
the arrest. Soon after that, SP11 and his team launched the raid and
successfully apprehended and arrested OKT1 after a scuffle as OKT1 had
initially ran two or three steps from the car.

SP11 conducted a body

search on the OKT1 and recovered a car key and its remote control in his
pocket which SP11 seized and using the remote control SP11 opened the
doors of the car WKP204. SP11 then searched the car and found a white
plastic bag with the letters FOS written on it and inside the white plastic
bag SP11 found 10 slabs of dried leaves wrapped in transparent plastic
suspected to be cannabis.

SP11 seized the white plastic bag and its

contents as well as the car WKP204 and several personal items. On the
instructions of SP11, OKT2 who was sitting at the rear passenger seat of
the car driven by detective sergeant Manimaran was arrested by chief
inspector Basri (SP12).

The ten slabs of dried leaves were sent for analysis and were
found to be 8044 grammes of cannabis, a dangerous drug specified under
section 2 of the Act.
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On the evidence adduced by the prosecution, the learned trial

judge

found

that the prosecution had made out a prima facie case

against both OKT1 and OKT2 whereupon they were both called to enter
upon their defence.

Briefly, the defence put forth by OKT1 was this. On 11-2-2005,

he was introduced to one Azhar by OKT2. Azhar discussed the buying
and selling of clothing and a Rolex wrist watch with OKT1 and took both of
them to his car where he showed them a plastic bag with the letters FOS.
Azhar opened the plastic bag to show them some trousers and a box
containing a wrist watch. After some discussion, OKT1 agreed to sell the
things for

RM27.000.00.

OKT2 took

OKT1 to Restaurant Khaleel

because according to OKT2 there was someone interested to buy the

clothing and the Rolex wrist watch. They met two Indians there and the
discussion was on the buying and selling of the clothing and the Rolex
watch. The price was agreed at RM27,000.00.

Later, OKT1 was shown

the money, which was stuffed inside a bag. OKT2 then asked OKT1 to
fetch Azhar with OKT2s car which he did.

Azhar was introduced to the two Indians across the road from
Restaurant Khaleel and they discussed the buying and selling while OKT1
and OKT2 were some distance away. Azhar asked OKT1 to go to Tesco
with him where they met the two Indians again where they finally agreed
to deliver

the merchandise

at Sungai Nibong.

Subsequently, Azhar

asked OKT1 to take a bag with the letters FOS to Krystal Point where he
was apprehended and arrested. He did not know the contents of the bag.
He only knew that he was sent to deliver the clothing and the Rolex wrist
watch.

The narrative of OKT2s defence was similar to that of OKT1

except that he knew that the transaction with the two Indians was for
drugs but emphasized that as far as OKT1 was concerned OKT1 thought
all the while that the transaction was for the sale of clothing and the Rolex
wrist watch. According to OKT2, he and OKT1 had met Azhar at an eatery
and Azhar had shown a plastic parcel in his car and Azhar had opened the
parcel which contained clothing and a branded watch. In all discussions
on the buying and selling of the merchandise, to OKT1, it meant clothing
and branded watch which were to be sold for RM 30,000 and it was OKT2

who asked OKT1 to fetch Azhar in OKT2s car WKP 204 to bring the
merchandise after agreeing to sell it for RM27,000.00 with SP4.

At the end of the defence of both OKT1 and OKT2, the learned
trial judge found that neither OKT1 nor OKT2 had raised a reasonable
doubt on the case against them which the prosecution had established
beyond reasonable doubt.

They were accordingly convicted and

sentenced to death.

The petition of appeal of OKT1 contained 5 overlapping grounds,

namely:
1. the learned trial judge had erred in law and in fact in finding
that the prosecution had established its case beyond
reasonable doubt;
2. the learned trial judge had erred because the prosecution had
failed to establish a prima facie case;
3. the learned trial judge had erred because there were doubts
arising from the evidence given by police witnesses;

4. the learned trial judge had erred in fact and in law in failing to
consider doubts in the extent of OKT1s involvement; and
5. the learned trial judge had erred in fact and in law in failing to
consider the failure of the prosecution to prove possession by
OKT1.
Grounds 1 and 2 essentially cover the rest of the grounds in the
petition of appeal of OKT1. The case for the prosecution rests on the
evidence of SP4 who was the agent provocateur, whose negotiation for
the purchase of cannabis began when OKT2 introduced OKT1 to SP4 as
his tauke, and thereupon negotiation for the supply of cannabis ensued
between OKT1 and SP4, culminating in the agreement for OKT1 to supply
and deliver 10 slabs of cannabis to SP4 at a price of RM27,000.00. While
OKT2 did not participate in the negotiations for the supply and purchase of
the cannabis, his active involvement in the whole transaction was patently
clear in that he took instructions from OKT1 and transmitted them to SP4
in particular as to the change of venue for the delivery from Tesco to
Krystal Point. OKT2 showed the way to go to Tesco as well as Krystal
Point. The element of common intention to supply and deliver the drugs
was

clearly

established.

OKT2 was present throughout the whole

episode right up to the delivery of the cannabis by OKT1 at Krystal Point.

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There was no misdirection or error in the evaluation of the evidence by the

learned trial judge in finding that the prosecution had established a prima
facie case against OKT1 and OKT2 on the basis that there was actual
possession when the drugs were delivered to SP4 and found at the back
seat of the car driven by him and that the presumption of trafficking under
section 37(da) of the Act was applicable (See Looi Kow Choi & Anor v.
PP [2003] 1 CLJ 73).

Having found that SP4 was a credible witnesses,

the learned trial judge was decidedly correct in rejecting the defence of
OKT1 because it only came about at the defence stage there being no
cross-examination whatsoever on the witnesses for the prosecution on any
aspect of the case for the defence (See PP v. Johar Mustapha [2004] 5
CLJ 187).

The contention that OKT1 was just an innocent carrier for

Azhar could not, therefore,

cast a reasonable doubt on the prosecution

case which was established beyond reasonable doubt.

Learned counsel for OKT2 advanced two issues on his behalf,
namely the failure of the learned trial judge to consider the role played by
OKT2 and the apparent passive possession attributed to OKT2. There
was no merit in either of these contentions because the element of
common intention was clearly established by the participation of OKT1 on

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the facts set out and evaluated by the learned trial judge.

(See Wan

Yurillhami Wan Yaacob and Anor v. PP [2010] 1 CLJ 17).

In the circumstances aforesaid, the prosecution had established

the case beyond reasonable doubt and neither OKT1 nor OKT2 had
succeeded in raising a reasonable doubt. Both appeals are without merit
and are accordingly dismissed. The convictions and sentences by the
High Court are affirmed.

LINTON ALBERT
Judge,
Court of Appeal, Malaysia
PUTRAJAYA
Dated: 5th September, 2013

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Counsel:

For the 1st Appellant

K. Viknesvaran
Messrs Viknes Ratna & Co
Peguambela & Peguamcara
(Advocates & Solicitors)
No. 1-5-10, Tingkat 5, Block C
Jalan 1/50 Diamond Square
Off Jalan Gombak
53000 Kuala Lumpur

For the 2nd Appellant

K.C. Hue
Messrs K.C. Hue
Peguambela & Peguamcara
(Advocates & Solicitors)
No.43 Jalan Midah Timur 1
Taman Midah
Cheras
56000 Kuala Lumpur

For the Respondent

Samihah bt Rhazali together with

Munahyza bt Mustafa
Timbalan Pendakwa Raya
Jabatan Peguam Negara
Malaysia

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