DALAM
MAHKAMAH PERSEKUTUAN MALAYSIA DI PUTRAJAYA
RAYUAN
JENAYAH NO 05-42-2002 (W)
BETWEEN
BALACHANDRAN APPELLANT
AND
PUBLIC PROSECUTOR RESPONDENT
( Dalam
Mahkamah Rayuan Malaysia
Between
Balachandran Appellant
And
Public Prosecutor Respondent
Dalam
Mahkamah Tinggi Malaya Di Kuala Lumpur
Perbicaraan
Jenayah No 45-28-1999
Between
Public Prosecutor
And
Balachandran)
Coram
AHMAD FAIRUZ BIN SHEIKH ABDUL HALIM, K.H.N.
PAJAN SINGH GILL, H.M.P.
AUGUSTINE PAUL, H.M.R.
JUDGMENT OF THE COURT
The
accused was originally charged with trafficking in 73.34 grammes of
monoacetylmorphines under section 39B(1)(a) of the Dangerous Drugs Act 1952
(“the Act”). At the close of the case
for the prosecution the charge was reduced to one under section 12(2) read with
section 39A(2) of the Act. When he was
found guilty of the amended charge he was convicted and sentenced to 16 years’
imprisonment and whipping of 11 strokes.
His appeal against conviction and sentence was dismissed by the Court of
Appeal and he has now appealed to this Court.
The
facts of the case as summarised by the learned trial judge in his Grounds of
Judgment read as follows:
“Pada 23 September 1998 jam 8.25 malam, Inspektor
Wan Azlan (SP1) dan 13 anggota polis yang lain, telah membuat serang hendap di
hadapan Sekolah Rendah Jenis Kebangsaan Cina Mun Chong, Batu 5, Jalan Ipoh
Kuala Lumpur. SP1 telah nampak OKT
membimbit satu beg plastik warna oren P11 di tangan kirinya dan berjalan menuju
ke kereta No. JBW 2490. Pada masa itu
SP1 berada pada jarak 10 – 15 meter daripada OKT. OKT berseorangan ketika itu.
Tidak ada sesiapa pun di dalam kereta itu. SP1 dan D/L/Kpl. Fairuz Khan (SP3) terus menghampiri OKT dengan
menaiki sebuah motosikal yang dipandu oleh SP3. SP1 mengenalkan dirinya sebagai Polis kepada OKT dan OKT telah
cuba melarikan diri. Satu pergelutan
telah berlaku. P11 yang dipegang oleh
OKT terjatuh ke tanah dan dirampas oleh SP1.
Akhirnya, OKT telah berjaya ditangkap.
SP1 telah memeriksa P11 di hadapan OKT dan didapati
mengandungi 1 beg plastic warna putih (P12) di dalamnya yang mengandungi 5
bungkusan, terdiri dari 1 bungkusan keratan akhbar Cina (P13) dan 4 bungkusan
warna coklat (P14). Setiap bungkusan
tersebut mengandungi 1 paket plastik berisi ketulan dan serbuk merah jambu yang
disyaki dadah heroin. Satu talipon
bimbit Nokia (P5) dan satu dompet (P6) berisi wang tunai RM300/= dan 6 keping
kad kredit juga dirampas daripada OKT.
5 bungkusan tersebut telah dihantar ke Jabatan
Kimia, Petaling Jaya untuk dianalisis.
Ahli Kimia, Encik Cheong Meow Kioon (SP2) telah menjalankan analisis dan
mengesahkan bahan ketulan dan serbuk merah jambu dalam 5 bungkusan tersebut
mengandungi dadah berbahaya, jenis monoacetylmorphines dan beratnya ialah 73.34
gram. Jumlah berat bahan ketulan dan
serbuk merah jambu ialah 2,249.5 gram semuanya. Monoacetyl-morphines adalah dadah berbahaya yang disenaraikan di
bawah Jadual Pertama kepada Akta. SP2
juga telah menyediakan satu laporan kimia (P19) yang mana satu salinannya telah
diserahkan kepada OKT.
Keputusan
di akhir kes pendakwaan
Selepas mendengar hujah-hujah kedua belah pihak dan
meneliti serta menimbang segala keterangan yang ada terdiri dari 7 orang saksi
dan 24 exhibit yang telah dikemukakan, saya dapati pihak pendakwa telah berjaya
membuktikan secara prima facie bahawa OKT telah memiliki dadah berbahaya jenis
monoacetylmorphines dan beratnya ialah 73.34 gram.”
In explaining the reason for reducing the charge to
one of possession he said:
“Oleh kerana OKT telah dijumpai memiliki dadah
monoacetylmorphines melebihi 15 gram, maka menurut seksyen 37(da) Akta,
sehingga dibuktikan sebaliknya, OKT adalah dianggap mengedar dadah
tersebut. Walau bagaimanapun, beban
untuk mematahkan anggapan itu adalah ringan, iaitu atas imbangan
kebarangkalian, dan ia boleh dipatahkan dengan keterangan yang ada walaupun di
peringkat kes pendakwaan (sila lihat Chee
Chiew Heong v Public Prosecutor (1981) 2 MLJ 287). Dalam kes ini, saya dapati pihak pembelaan
telah berjaya mematahkan anggapan pengedaran dengan kemungkinan wujudnya Shan
dari awal kes pendakwaan. Pegawai
Penyiasat, SP5 telah mengesahkan bahawa OKT telah mengatakan dalam pernyataan
beramarannya (ID22) bahawa dadah yang dia bawa adalah kepunyaan Shan. Jadi kemungkinan besar Shan seorang pengedar
dadah yang sebenarnya tidak boleh dikesampingkan. Dengan itu, saya beri manfaat keraguan kepada OKT. Walaupun begitu, pihak pendakwa telah
berjaya membuktikan bahawa OKT telah memiliki dadah tersebut.”
It is clear that in reducing the charge the learned
trial judge had accepted the accused’s version of events as contained in his
cautioned statement. It is settled law
that an exculpatory statement cannot form the basis of an order in favour of an
accused person at the close of the case for the prosecution as the accused, not
having given evidence at that stage, cannot rely on the statement without it
having been tested by cross examination (see Pendakwa Raya v Mansor bin Mohd Rashid & Anor (1996) 3 MLJ 560,
PP v Adetunji Adeleye Sule (1993) 2
MLJ 70, PP v Chan Kim Choi (1989) 1
MLJ 404 and R v Storey (1968) 52 Cr
App R 334). It follows that the
reliance of the learned trial judge on the exculpatory part of the accused’s
cautioned statement at that stage cannot be sustained in law. However, the error does not amount to a
miscarriage of justice to warrant intervention by us in view of a similar finding
that he made at the close of the case for the defence. As he said in his Grounds of Judgment:
“Kemungkinan kewujudan Shan tidak boleh
dikesampingkan. Itulah sebabnya mengapa
pertuduhan pengedaran diperturunkan kepada kesalahan pemilikan.”
In his
submission before us learned counsel advanced several grounds of appeal. We gave anxious consideration to his
arguments on the facts and the law. His
complaints on the findings of fact of the learned trial judge, in particular,
the rejection of the evidence of DW2 cannot be sustained as they have been well
reasoned out. However, we felt that the
submission on some of the points of law raised by learned counsel merit
consideration. They are:
(a) The
effect of failure by the prosecution to tender in evidence the police report
made by PW1,
(b) The
sufficiency of the evidence of the chemist, and
(c) The standard
of proof on the prosecution at the close of the case for the prosecution.
We
will now consider the issues that have been identified.
(a) The effect of failure by the prosecution to
tender in evidence the police report made by PW1
Learned
counsel argued that the police report made by PW1, admissible under section
108A of the Criminal Procedure Code (“section 108A”) and sections 35 and 157 of
the Evidence Act 1950, is a vital piece of evidence. It ought to have been tendered in evidence by the prosecution particularly
as its case rested solely on the evidence of PW1. Accordingly, he contended that an adverse inference ought to have
been drawn against the prosecution. In
support he relied on the case of Tan
Cheng Kooi & Anor v PP (1972) 2 MLJ 115.
Section
108A reads as follows:
“In any proceeding under this Code a copy of an
entry relating to an information reduced to writing under the provisions of
section 107 or 108, and purporting to be certified to be a true copy by the
Officer in Charge of the Police District in which the police station where the
information given is situated, shall be admitted as evidence of the contents of
the original and of the time, place and manner in which the information was so
recorded.”
The certified copy is thus admissible only as
evidence of the contents of the original.
In other words it takes the place of the original. Section 108A therefore deals only with the admissibility
of a certified true copy of a first information report; its evidentiary value would therefore remain
on the same footing as that of the original.
In explaining its object and use as evidence Lord Porter in delivering
the advice of the Privy Council in Emperor
v Khwaja Nazir Ahmad AIR 1945 PC 18 said at p 20:
“In truth the provisions as to an information
report (commonly called a first information report) are enacted for other
reasons. Its object is to obtain early
information of alleged criminal activity, to record the circumstances before
there is time for them to be forgotten or embellished, and it has to be
remembered that the report can be put in evidence when the informant is
examined if it is desired to do so.” (Emphasis added)
Chang Min Tat J (as he then was) in dealing with
the evidentiary value of a first information report said in Tan Cheng Kooi & Anor v PP (1972) 2
MLJ 115 at p 118:
“Now the importance of a first information report
has been stressed in a number of decisions.
It is not a substantive piece of evidence and it is inadmissible for the
purpose of proving that the facts stated in it are correct. But it can be used by way of corroboration
or contradiction: per Carnduff J in 17 CWN 1213:
‘The first information is a document of great
importance and in practice it is always and very rightly produced and proved in
criminal trials. But it is not a piece
of substantive evidence and it can be used only as a previous statement
admissible to corroborate or contradict the author of it.’
as cited in Sohoni’s
Code of Criminal Procedure (14th Edn) at page 275.
Although of great importance, the omission of a
first information report does not however appear per se to be fatal to the
prosecution. In Ooi Hock Leong v R (1955) MLJ 229, Spenser-Wilkinson J (as he then
was) while deploring the omission as very serious found on the record evidence
other than from the complainant of the offence of the accused and dismissed the
appeal against conviction. Gill J (as
he then was) in Public Prosecutor v Foong
Chee Cheong (1970) 1 MLJ 97 was of the same mind. He held that the fact that no first information report was made
was not itself a ground for throwing out a case. The case of Ooi Hock Leong
v R, supra, is however distinguishable and was distinguished by the learned
judge himself from the earlier case of Chin
Khing Siong v R (1952) MLJ 74, and it is clear from his explanation that
where the case against the accused depended entirely on the evidence of the
complainant, the failure to produce the first information report had deprived
the accused of an opportunity to cross examine his accuser and in these
circumstances the presumption under section 114(g) of the Evidence Ordinance
must be raised that the report would be unfavourable to the prosecution
case. This rationale was followed by
Smith J in Teo Thin Chan & Anor v
Public Prosecutor (1957) MLJ 184 where the appeal against conviction was
allowed.”
The passage just referred to makes it patent that
the evidentiary value of a first information report is only to contradict the testimony
of a witness under section 145 of the Evidence Act 1950 or to corroborate his
testimony under section 157 of the said Act the operation of which is as
explained in Lim Guan Eng v PP (2000)
2 MLJ 577. It is not substantive
evidence of its contents. The question
that arises for determination, in the circumstances, is whether the failure to
adduce in evidence the first information report is capable of an adverse
inference being drawn against the prosecution under section 114(g) of the
Evidence Act 1950. Where the evidence
of a witness does not require to be corroborated in law there is no obligation
to tender corroborative evidence to support his testimony. Thus if the case for the prosecution rests
solely on the evidence of one witness in such a category there is no
requirement in law for his evidence to be corroborated. Any such requirement will conflict with
section 134 of the Evidence Act 1950 which provides that no particular number
of witnesses shall in any case be required for the proof of any fact. This means that the testimony of a single
witness, if believed, is sufficient to establish any fact (see Khaw Cheng Bok & Ors v Khaw Cheng Poon &
Ors (1998) 3 MLJ 457). However, the
facts and circumstances of a particular case may make it desirable for his
evidence to be corroborated. As Sinha J
said in Vadivelu Thevar v State of Madras
AIR 1957 SC 614 at pp 618 – 619:
“On the consideration of the relevant authorities
and the provisions of the Evidence Act, the following propositions may be
safely stated as firmly established:
(1)
As a general rule, a
court can and may act on the testimony of a single witness though
uncorroborated. One credible witness
outweighs the testimony of a number of other witnesses of indifferent
character.
(2)
Unless corroboration
is insisted upon by statute, courts should not insist on corroboration except
in cases where the nature of the testimony of the single witness itself requires
as a rule of prudence, that corroboration should be insisted upon, for example
in the case of a child witness, or of a witness whose evidence is that of an
accomplice or of an analogous character.
(3)
Whether corroboration
of the testimony of a single witness is or is not necessary must depend upon
facts and circumstances of each case and no general rule can be laid down in a
manner like this and much depends upon the judicial discretion of the Judge
before whom the case comes.”
It is therefore clear that the need for a first
information report to be used to corroborate the testimony of a witness depends
on the facts and circumstances of each particular case. Where the evidence of a single witness who
has made a first information report is vague it is most desirable to tender it
in evidence in order to enhance his credibility. That was the basis of the judgment in cases such as Chin Khing Siong v R (1952) MLJ 74 and Ooi Hock Leong v R (1955) MLJ 229. Where it is not tendered in evidence in such
a situation the evidence of the witness stands to be rejected; not because it lacks corroboration but
because it may not pass the test of credibility and reliability on its own. It is only to that extent can it be said
that the failure to produce the first information report is fatal. If indeed it contradicts the evidence of a
witness it is the duty of the defence to use it in order to attack the
credibility of the witness. Where that
has not been done it would be a contradiction in terms for the defence to ask
for an adverse inference to be drawn against the prosecution for failure to
adduce it in evidence. On the contrary
the failure of the defence to use it as described may lead rise to the
inference that it is not adverse to the evidence of the witness. The corollary is that an adverse inference
cannot be drawn against the prosecution for failure to tender in evidence a
first information report and the strength of its case is to be assessed as it
stands. The submission advanced by
learned counsel cannot be sustained as the learned trial judge had accepted the
evidence of PW1 which was supported by the testimony of PW3. The need for PW1’s evidence to be
corroborated by his police report therefore does not arise.
In any event the report made by PW1 (if any) is not
the first information report as he himself obtained information regarding this
case from one ASP Rosdi. Perhaps learned
counsel was influenced by the judgment in PP
v Lee Eng Kooi (1993) 2 MLJ 322 where it was held that the repeal of the
old section 113(1) with the substitution as it now reads “ … has the effect of
clearly and decisively removing the pre-amendment distinction between first
information and non-first information reports” (at p 330). The distinction between both types of
reports is not anchored on rules relating to their admissibility but the
purpose they serve. While a first
information report serves as a complaint to the police to set the criminal law
in motion the other reports relate to steps taken by the police thereafter as,
for example, an arrest report. Thus any
change in the law relating to their admissibility cannot alter their
character. The distinction between both
types of reports still remains. It must
be added that only the first information report is admissible under section
108A in addition to sections 145 and 157 of the Evidence Act 1950 while the
other reports are admissible only under the latter provisions of law.
(b) The sufficiency of the evidence of the chemist
In
order to appreciate the submission of learned counsel on the sufficiency of the
analysis of the dangerous drugs carried out by the chemist it is necessary to
first set out the material parts of his evidence. It runs as follows:
“ … The
exhibits were handed to me for analysis for dangerous drugs. (N.B.:
Insp Rajendran – was not around yet for identification).
This is the official acknowledgement receipt issued
to Insp Rajendran – produced as (P18).
ID10 – box referred – this is the box received,
produced as (P10).
In this box are:
1. An
orange plastic bag marked ‘A’ in which was a white plastic bag marked ‘B’
containing a newspaper package and 4 brown paper packages marked from ‘C’ to
‘G’ respectively. I found each of the 5
packages C to G to contain a plastic packet of pinkish granular powdery
substance marked from C1 to G1, respectively.
On 26/2/99 during office hours I carried out
analysis and found the pinkish substances in the 5 packages C1 to G1 to contain
monoacetymorphines (MAM). The result of
the analysis are as follows:
Package – C1
Net
weight of the pinkish substance was 458.9 grams. Monoacetylmorphines (MAM) obtained was 14.31 grams.
Package – D1
Net
weight of the pinkish substance was 459.3 grams. MAM obtained was 16.44 grams.
Package - E1
Net
weight of the pinkish substance was 443.2 grams. MAM obtained was 13.91 grams.
Package – F1
Net
weight of the pinkish substance was 444.2 grams. MAM obtained was 13.59 grams.
Package – G1
Net
weight of the pinkish substance was 443.9 grams. Weight of MAM was 15.09 grams.
The total weight of pinkish substance obtained from the 5 packages was
2,249.5 grams. The total weight of MAM
obtained was 73.34 grams.
The pinkish substance in 5 packages C1 to G1 had
been powdered during analysis after which they were put into 5 separate plastic
packets supplied by me and marked with laboratory number (PJ) For 8267/98 – 0 –
followed by C1 to G1 respectively. … …
…
XX : I agree the report was made under sec.
399 of the C.P.C. The gross weight of
the 5 packages is 2,265.76 grams. The
analysis started on 26/2/99.
Put : Your analysis was improper and
inadequate.
A : I disagree.
t.t.
(Dato’ Nik Hashim Bin Nik Ab Rahman)
Rexx : Gross weight is the weight of the pinkish
substance plus the plastic packages containing the substance.”
Learned
counsel’s submission on this issue was two-fold. Firstly, he contended that the evidence of the chemist does not
state the amount of the drugs that he analysed. He said that this is fatal as section 37(j) of the Dangerous
Drugs Act 1952 (“section 37(j)”) requires an analysis of ten percent of the
total amount of drugs. In support he
relied on Loo Kia Meng v PP (2000) 3
MLJ 664. In his reply the learned
Deputy Public Prosecutor argued that section 37(j) does not arise for
consideration as all the drugs seized had been analysed. He added that in any event the amount that
is required to be analysed by section 37(j) is ten percent of the receptacles
as enunciated in Au Ah Lin v PP (1963)
MLJ 365 and not of the contents.
Secondly, learned counsel submitted that the evidence of the chemist
does not disclose the nature of the analysis conducted by him. He said that the chemist ought to have
testified on the tests that he carried out in arriving at his conclusion. In his reply the learned Deputy Public
Prosecutor said that based on PP v Lam
San (1991) 3 MLJ 426 there is no obligation on the prosecution to lead such
evidence which ought to have been elicited in cross examination which was not
done.
The
thrust of the first submission of learned counsel becomes a relevant matter for
consideration only if the chemist had not analysed all the substances handed to
him. The chemist had testified on the
net weight of the pinkish substance in each of the five packages followed by
the weight of monoacetylmorphines obtained from each package. This indicates that he had analysed all of
the pinkish substances in each of the packages. It is confirmed by his evidence that the pinkish substances in
the five packages were powdered during analysis. This makes it patent that the chemist had analysed all the
substances handed to him thereby making it unnecessary for the prosecution to rely
on section 37(j). This part of the
submission of learned counsel therefore does not require consideration by us.
The
second part of the submission of learned counsel relates to the nature of the
evidence that must be adduced from the chemist. It is true that the chemist did not give any evidence of the
tests carried out by him in arriving at his conclusion. It has been held by the trilogy of the
(then) Supreme Court cases of Munusamy v
PP (1987) 1 MLJ 492, PP v Lam San (1991)
3 MLJ 426 and Khoo Hi Chiang v PP
(1994) 1 MLJ 265 that the Court is entitled to accept the evidence of the
chemist on its face value without the necessity for him to go into details of
what he did in the laboratory step by step unless it is inherently incredible
or the defence calls evidence in rebuttal by another expert. The rationale of this view is lucidly
explained in Khoo Hi Chiang v PP (1994)
1 MLJ 265 where it was held that the evidence of a chemist on dangerous drugs
analysed by him is one of fact and not of opinion. In the circumstances the evidence of a chemist is not controlled
by section 51 of the Evidence Act 1950 thereby making it unnecessary for him to
testify on the tests conducted by him in arriving at his conclusion. The evidence of the chemist is therefore sufficient. The trial judge had accepted it. The defence did not seriously challenge the
evidence beyond merely putting to the chemist that his analysis was improper
and inadequate. The chemist disagreed
with the suggestion. This submission of
learned counsel cannot therefore be sustained.
We are
thus unable to agree with the submission of learned counsel on the sufficiency
of the evidence of the chemist.
(c) The standard of proof on the prosecution at
the close of the case for the prosecution
Learned
counsel submitted that the burden on the prosecution at the close of its case
is to make out a case which is beyond reasonable doubt and not on a prima facie
basis as done in this case. The learned
Deputy Public Prosecutor relied on Looi
Kow Chai & Anor v Pendakwa Raya (2003)
2 AMR 89 to disagree with the submission made.
As the
offence in this case was committed in 1998 the burden of proof on the
prosecution is governed by sections 180 and 182A of the Criminal Procedure Code
as amended in 1997 (“section 180” and “section 182A” respectively). They read as follows:
Section
180
(1)
When the case for the
prosecution is concluded, the Court shall consider whether the prosecution has
made out a prima facie case against the accused.
(2)
If the Court finds
that the prosecution has not made out a prima facie case against the accused,
the Court shall record an order of acquittal.
(3)
If the Court finds
that a prima facie case has been made out against the accused on the offence
charged the Court shall call upon the accused to enter on his defence.
Section 182A
(1)
At the conclusion of
the trial, the Court shall consider all the evidence adduced before it and
shall decide whether the prosecution has proved its case beyond reasonable
doubt.
(2)
If the Court finds
that the prosecution has proved its case beyond reasonable doubt, the Court
shall find the accused guilty and he may be convicted on it.
(3)
If the Court finds
that the prosecution has not proved its case beyond reasonable doubt, the Court
shall record an order of acquittal.
Section 180(1) makes it clear that the standard of
proof on the prosecution at the close of its case is to make out a prima facie
case while section 182A(1) enunciates that at the conclusion of the trial the
Court shall consider all the evidence adduced and decide whether the
prosecution has proved its case beyond reasonable doubt. The standard of proof on the prosecution at
the end of its case and at the end of the whole case has thus been statutorily
spelt out in clear terms. The
submission made must therefore be ratiocinated against the background of the
meaning of the phrase “prima facie case” in section 180. Section 180(2) provides that the Court shall
record an order of acquittal if a prima facie case has not been made out while
section 180(3) provides that if a prima facie case has been made out the
accused shall be called upon to enter his defence. A prima facie case is therefore one that is sufficient for the
accused to be called upon to answer. This
in turn means that the evidence adduced must be such that it can be overthrown
only by evidence in rebuttal. The
phrase “prima facie case” is defined in similar terms in Mozley and Whiteley’s Law Dictionary 11th Ed as:
“A litigating party is said to have a prima facie
case when the evidence in his favour is sufficiently strong for his opponent to
be called on to answer it. A prima
facie case, then, is one which is established by sufficient evidence, and can
be overthrown only by rebutting evidence adduced by the other side.”
The result is that the force of the evidence adduced
must be such that, if unrebutted, it is sufficient to induce the Court to
believe in the existence of the facts stated in the charge or to consider its
existence so probable that a prudent man ought to act upon the supposition that
those facts exist or did happen. On the
other hand if a prima facie case has not been made out it means that there is
no material evidence which can be believed in the sense as described earlier. In order to make a finding either way the Court
must, at the close of the case for the prosecution, undertake a positive evaluation
of the credibility and reliability of all the evidence adduced so as to
determine whether the elements of the offence have been established. As the trial is without a jury it is only
with such a positive evaluation can the Court make a determination for the
purpose of section 180(2) and (3). Of
course in a jury trial where the evaluation is hypothetical the question to be
asked would be whether on the evidence as it stands the accused could (and not
must) lawfully be convicted. That is so
because a determination on facts is a matter for ultimate decision by the jury
at the end of the trial. Since the
Court, in ruling that a prima facie case has been made out, must be satisfied
that the evidence adduced can be overthrown only by evidence in rebuttal it
follows that if it is not rebutted it must prevail. Thus if the accused elects to remain silent he must be convicted. The test at the close of the case for the prosecution
would therefore be: Is the evidence
sufficient to convict the accused if he elects to remain silent? If the answer is in the affirmative then a
prima facie case has been made out. This
must, as of necessity, require a consideration of the existence of any
reasonable doubt in the case for the prosecution. If there is any such doubt there can be no prima facie case.
As the accused can be convicted on the prima facie
evidence it must have reached a standard which is capable of supporting a
conviction beyond reasonable doubt.
However it must be observed that it cannot, at that stage, be properly described
as a case that has been proved beyond reasonable doubt. Proof beyond reasonable doubt involves two
aspects. While one is the legal burden
on the prosecution to prove its case beyond reasonable doubt the other is the
evidential burden on the accused to raise a reasonable doubt. Both these burdens can only be fully discharged
at the end of the whole case when the defence has closed its case. Therefore a case can be said to have been
proved beyond reasonable doubt only at the conclusion of the trial upon a
consideration of all the evidence adduced as provided by section 182A(1) of the
Criminal Procedure Code. That would
normally be the position where the accused has given evidence. However, where the accused remains silent there
will be no necessity to re-evaluate the evidence in order to determine whether
there is a reasonable doubt in the absence of any further evidence for such a
consideration. The prima facie evidence
which was capable of supporting a conviction beyond reasonable doubt will
constitute proof beyond reasonable doubt.
It
follows that the submission of learned counsel that the burden on the
prosecution at the close of its case is to make out a case which is beyond
reasonable doubt and not on a prima facie basis is contrary to the clear and
plain language of section 180 and section 182A. It cannot therefore be sustained.
With
the rejection of the submissions of learned counsel the appeal against
conviction must be dismissed. Learned
counsel did not address us on sentence.
In imposing sentence the learned trial judge took into account the
relevant factors. As he said in his Grounds
of Judgment:
“Dalam mitigasi untuk meringankan hukuman,
peguambela yang bijaksana memohon Mahkamah mengenakan hukuman dekat dengan
minimum yang dibenarkan atas dasar OKT berumur 31 tahun, sudah berkahwin,
mempunyai seorang anak berumur 6 tahun;
OKT bekerja sebagai jurujual dengan pendapatan RM1,200/= sebulan.
Bagi pihak pendakwaan pula, Penolong Pendakwa Raya
yang bijaksana, memohon suatu hukuman yang setimpal dengan kesalahan dan
menarik perhatian Mahkamah kepada kepentingan awam dan berat dadah supaya ia
diberi pertimbangan saksama dalam menjatuhkan hukuman. Beliau juga mengesahkan bahawa OKT ada
mempunyai satu kesalahan lampau menurut Pendaftaran Jenayah Pusat (P25), iaitu
pada 14/9/1990 OKT telah dihukum penjara 1 hari dan denda S$200/= oleh Mahkamah
Majistrate Singapura atas kesalahan mencuri dalam bangunan di bawah seksyen 380
Cap 224.
Dalam menentukan hukuman yang setimpal dalam kes
ini, Mahkamah telah meletak kepentingan awam sebagai pertimbangan utama
daripada kepentingan peribadi kerana tujuan sesuatu hukuman itu bukan sahaja
untuk menghukum OKT tetapi ia juga mestilah merupakan suatu langkah pencegahan
kepada orang ramai daripada melakukan kesalahan.
Kesalahan yang melibatkan dadah berbahaya adalah
amat serius dalam negara kita.
Penyalahgunaan najis dadah membawa kepada kemusnahan masyarakat. Jadi, hukuman yang dikenakan hendaklah
mencerminkan keseriusan kesalahan itu.
Dalam kes ini, OKT telah didapati bersalah selepas perbicaraan penuh
apabila pertuduhan asal diperturunkan.
Jadi, diskaun yang lazimnya diberi kepada pesalah yang mengaku salah
tidak terpakai kepada OKT.
Berat dadah yang terlibat ialah 73.34 gram dan
jenis dadah ialah monoacetylmorphines, dan semestinya ia perlu diambil kira
dalam menentukan hukuman pemenjaraan dan sebatan. Berat dadah dalam kes ini adalah banyak, melebihi 68.34 gram
daripada minimum 5 gram yang ditetapkan di bawah seksyen 39A(2)(c) Akta.
Jadi, memandangkan kepada factor-faktor di atas
dengan mengambilkira kepentingan awam dan kepentingan OKT, saya telah
menjatuhkan hukuman penjara selama 16 tahun mulai tarikh tangkap 23 September
1998 dan sebatan 11 kali, dengan penuh harapan semoga OKT akan insaf akan
tindakan jijiknya dalam melakukan kesalahan ini dan sekaligus memberi amaran
kepada orang awam betapa beratnya kesalahan yang melibatkan penyalahgunaan dadah
berbahaya di negara ini.”
We are unable to say that the learned trial judge
had erred in imposing the sentence as he had taken relevant factors like the
element of public interest and the weight of drugs involved into consideration.
In the
upshot we dismiss the appeal against conviction and sentence.
Date: 23 November 2004
Sgd
( DATO' AUGUSTINE PAUL )
Judge
Court of Appeal
Malaysia
Counsel:
For the Appellant: Mr Gurbachan Singh
Solicitor: Tetuan Bachan & Kartar
Peguambela & Peguamcara
No 31, Jalan Dato Maharajalela
30000 Ipoh
For the Respondent: Mr Teo Say Eng
Timbalan Pendakwa Raya
Jabatan Peguam Negara
Aras 1 – 8, Blok C3
Pusat Pentadbiran Kerajaan
Persekutuan
62502 Putrajaya