1 IN THE COURT OF APPEAL MALAYSIA CRIMINAL APPEAL NO: W-05-218 & 219-2010 BETWEEN (1) FORMI AFTA BIN AHMAD (2) JAFARUDDIN BIN SULAIMAN ---- APPELLANTS AND PUBLIC PROSECUTOR ---- RESPONDENT In the matter of Criminal Trial No: 45-31-06 High Court of Kuala Lumpur, Wilayah Persekutuan BETWEEN PUBLIC PROSECUTOR AND (1) FORMI AFTA BIN AHMAD (2) JAFARUDDIN BIN SULAIMAN CORAM: (1) ABDUL MALIK BIN ISHAK, JCA (2) AZAHAR BIN MOHAMED, JCA (3) MOHD ZAWAWI BIN SALLEH, JCA 2 ABDUL MALIK BIN ISHAK, JCA DELIVERING THE JUDGMENT OF THE COURT Introduction [1] After a full trial, both the appellants were found guilty of trafficking in 38,260 grammes of cannabis, an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (“DDA”) and punishable under section 39B(2) of the DDA read with section 34 of the Penal Code and they were convicted and sentenced to death. The offence was said to have been committed on 1.8.2005 at about 2.30 a.m. at “Kawasan Plaza Tol Jalan Duta, dalam Daerah Sentul, dalam Bandaraya Kuala Lumpur, Wilayah Persekutuan”. [2] Aggrieved, both the appellants filed an appeal to this Court. The case for the prosecution [3] On 31.7.2005, after Chief Inspector Mazli bin Abd Aziz (SP6) was informed by Superintendent Tang Yoot Leng about a drug trafficking activity that would take place that night at the Jalan Duta toll area, SP6 assembled his police personnel at about 9.00 p.m. and briefed them about the drug trafficking operation to be held at the Jalan Duta toll area. [4] On 31.7.2005 at about 12.00 midnight, SP6 led his police personnel to Jalan Duta toll and they arrived there at about 2.00 a.m. on 3 1.8.2005. SP6 and his police personnel took up ambush positions and they kept vigil. About thirty (30) minutes later, SP6 saw a metallic gold coloured Proton Wira motorcar bearing registration number WDE 2748 – the target motorcar (hereinafter referred to as “the Proton Wira motorcar”), approaching the Jalan Duta toll. SP6 instructed detective sergeant 82473 Abdul Halim bin Ahmad (SP8), who was then driving an unmarked police motorcar, to block the path of the Proton Wira motorcar from the front side. SP8 complied and the driver of the Proton Wira motorcar had no choice but to stop the said motorcar. [5] SP6 swung into action and he approached the driver of the Proton Wira motorcar and introduced himself as a police officer. According to SP6, the driver of the Proton Wira motorcar reversed the said motorcar and collided into another unmarked police motorcar (with Inspector Balasubramaniam on board) who had blocked the path of the Proton Wira motorcar from the rear on the instruction of SP6. [6] According to SP6, there were two (2) persons inside the Proton Wira motorcar. The driver of the Proton Wira motorcar was identified as the first appellant while the passenger who sat in the front left of the said motorcar was identified as the second appellant. SP6 arrested the first appellant and, according to SP6, the second appellant got out of the Proton 4 Wira motorcar and tried to run away but he was eventually arrested by Chief Inspector Balasubramaniam. [7] SP6 physically examined both the appellants and nothing incriminating was found on them. SP6 then proceeded to examine the boot of the Proton Wira motorcar, in the presence of both the appellants, and he found four (4) plastic bags containing forty-four (44) blocks of compressed items suspected to be ganja. [8] Both the appellants together with the Proton Wira motorcar were brought to the Sentul police station on 1.8.2005 at about 7.00 a.m. to 8.00 a.m., after SP6 and the police personnel accompanied by both the appellants went to three (3) different places for purposes of further investigation to trace the purchasers of the drugs. [9] On 1.8.2005 at 1.30 p.m., after SP6 had marked the exhibits, he handed them together with both the appellants to ASP Som Chai a/l Din Lian (SP9), the investigating officer of the case, at the Kuala Lumpur police station. [10] The prosecution also led evidence that SP9 sent the exhibits for analysis to the government chemist by the name of Puan Maimonah bt Sulaiman (SP3) and she confirmed that the exhibits were cannabis weighing 38,260 grammes within the meaning of section 2 of the DDA. 5 The case for the defence (i) The testimony of the first appellant under oath [11] His testimony went along the following lines: (a) That on 30.7.2005 at about 9.30 p.m., his grandfather by the name of Hj Musa bin Hj Yusof (hereinafter referred to as “Hj Musa”) requested him to fetch the second appellant in front of the provision shop at Kampung Limau Manis, Putrajaya and then send the second appellant to Segambut, Kuala Lumpur. The reason for this request was because his grandfather, at that time, was feeling tired. (b) He then drove the Proton Wira motorcar and fetched the second appellant at Kampung Limau Manis, Putrajaya at about 9.45 p.m. (c) He described his grandfather as a “kereta sapu” driver. (d) He said that the Proton Wira motorcar belonged to his mother by the name of Siti Norini bt Musa (SP4) and that she left the said motorcar in the custody of his grandfather so that it could be used by family members to send his younger brother to the hospital as well as to allow his grandfather to use the said motorcar as a “kereta sapu”. (e) He said that he used to see the second appellant three (3) to four (4) times in his grandfather’s house but he did not know the 6 second appellant that well. He said that he could not recognise the second appellant that well. And his grandfather told him that the second appellant was waiting in front of the provision shop. (f) He said that when the second appellant boarded the Proton Wira motorcar, the second appellant did not carry anything. (g) He said that while seated in the Proton Wira motorcar, the second appellant merely requested to be sent to the destination which he requested. (h) He said that on the way to Segambut, Kuala Lumpur, he stopped several times to eat, to top up the petrol, and finally at the Jalan Duta toll to ease his bladder and to wash his face. (i) He said that as he drove the Proton Wira motorcar out of the R & R near the Jalan Duta toll, a Proton Waja motorcar suddenly came from the frontal direction and blocked his path and prevented him from driving the said motorcar any further. (j) Thereafter, a group of men alighted from the Proton Waja motorcar and rushed towards the Proton Wira motorcar that was driven by him. At that time, the situation was tense. He said that the group of men pulled him out of the Proton Wira motorcar and likewise, the second appellant shared the same fate and was also assaulted. 7 (k) He said that both he and the second appellant neither attempted to run away nor did he reverse the Proton Wira motorcar which collided against another person’s motorcar. (l) He said that after he was pulled out of the Proton Wira motorcar and assaulted, the police then physically examined his person and nothing incriminating was found. The police also checked the interior of the Proton Wira motorcar and nothing incriminating was found. He said that the police then proceeded to check the boot of the Proton Wira motorcar and they found a few plastic packages and they showed them to him. (m) He said that the police questioned him in regard to the contents of the packages and he replied that he did not know their contents. He said that he then led the police party to Desa Putra, Kajang, the house of his grandfather and there, the police party headed by SP6, conducted a thorough search and nothing incriminating was found in his grandfather’s house. At that time, his grandfather, grandmother and Norman were inside the said house. He said that the second appellant was not brought inside his grandfather’s house because he was taken elsewhere in another vehicle. 8 (n) He said that after Desa Putra, Kajang, the police took him to Kampung Limau Manis, Putrajaya, and there, the second appellant was taken out of the motorcar and brought inside a house. (o) From Kampung Limau Manis, Putrajaya, the first appellant was brought to Puchong, Selangor by the police to meet the first appellant’s friend and there, the first appellant admitted to SP6 that he used to visit his friend’s house but on that day, SP6 was told by the first appellant’s other friends that this particular friend of his was no longer staying there. (p) From there, the first appellant said that he was brought to the Sentul police station at about 6.00 a.m. and by that time, the exhibits (“P55 A-D”) were not shown to the first appellant yet. (q) He said that at the Jalan Duta toll, only the black plastic bags were shown to him but not their contents. He said that he never saw those “things” when he was driving the Proton Wira motorcar, he did not know who the owners of those “things” were and he did not know who had put the black plastic bags inside the boot of the motorcar which he drove that night with the second appellant. 9 (r) He categorically said that he did not try to run away and he had possession of the Proton Wira motorcar approximately at 9.45 p.m. to approximately at 12.00 midnight on 31.7.2005 when he was arrested. And he said that the said motorcar was driven by his grandfather on 31.7.2005 from afternoon till 7.00 p.m. (s) He said that his younger brother used to drive the Proton Wira motorcar and, at times, his grandfather would rent out the said motorcar to other people. (t) When he was cross-examined by learned counsel acting for the second appellant, he said that the second appellant often rented his grandfather’s motorcar and the last occasion was a week before the incident. (ii) The testimony of the second appellant under oath [12] He testified as follows: (a) That on 31.7.2005, he lived in Kampung Limau Manis, Putrajaya, and he worked as a construction labourer. (b) On that date, he telephoned Hj Musa and requested for transportation to send him to Segambut, Kuala Lumpur. However, it was the first appellant who came to fetch him. (c) Before the incident, he did not know the first appellant but used to see him (the latter) at Hj Musa’s house. 10 (d) On the night in question, when the police pounced on them, he did not try to run away because he did not know what was kept in the boot of the Proton Wira motorcar. (e) He categorically said that he did not see those “things” (exhibits “P55A-D”) inside the Proton Wira motorcar which he boarded and he too said that he did not see the first appellant put those “things” inside the said motorcar. (f) He also said that the first appellant did not reverse the Proton Wira motorcar when the first appellant was arrested by the police. (g) When he was cross-examined by the learned deputy public prosecutor, he testified that it was Hj Musa who directed the first appellant to fetch and send the second appellant to Segambut, Kuala Lumpur. He said that once he was seated inside the Proton Wira motorcar, he struck a conversation with the first appellant. [13] He denied, when cross-examined, in regard to the following matters: (a) that it was he who telephoned the first appellant; (b) that he met the first appellant for the purpose of trafficking the drugs; (c) that he and the first appellant were friends; (d) that he attempted to run away when confronted by the police;