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DALAM MAHKAMAH TINGGI MALAYA DI KOTA BHARU
DALAM NEGERI KELANTAN DARUL NAIM
[RAYUAN JENAYAH NO: DA-41S-32-10/2018]
ANTARA
WAN HAIRIZ FARHAN BIN WAN ZAKARIA … PERAYU
DAN
PENDAKWA RAYA … RESPONDEN
[Dalam Mahkamah Majistret Di Pasir Puteh
Dalam Negeri Kelantan Darul Naim
No. Kes: DA-83D-609-09/2017
Antara
Pendakwa Raya
Dan
Wan Hairiz Farhan bin Wan Zakaria]
JUDGMENT
[1] The appellant was charged and convicted of an offence under s.
12(2) of the Dangerous Drugs Act 1952 and punishable under s.
39A(1) of the same. The charge against the appellant reads as
follows:
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Bahawa kamu bersama-sama pada 07/052017 jam lebih
kurang 5.25 petang di tepi Jalan Bandar Baru Pasir Puteh,
di dalam Daerah Pasir Puteh, di dalam Negeri Kelantan
telah didapati ada di dalam milikan kamu bersama-sama
dadah berbahaya jenis Methamphetamine berat bersih
16.53 gram. Oleh yang demikian itu kamu bersama-sama
telah melakukan satu kesalahan di bawah seksyen 12(2)
Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah
seksyen 39A(1) Akta yang sama.
[2] The appellant was charged with one “Roshamira”, a minor at the
time of the commission of the offence. Roshamira, who was
SP4, had pleaded guilty and was sent to Henry Gurney school
for 3 years.
[3] As against the appellant, and at the end of the case for the
defence, he was found guilty by the learned Magistrate,
convicted and sentenced to 2 years imprisonment and 3 strokes
of whipping commencing from the date of the sentence.
[4] Aggrieved by the said decision, the appellant appealed.
[5] The brief facts of the case are as follows. Acting on information
received, on 7.5.2017, at about 5.25 pm, Insp Mohd Anwar Md
Salleh, SP3, and his team had led a drug trafficking operation.
The location was at the Jalan Bandar Baharu, Pasir Puteh. A
Perodua Kelisa, driven by the appellant with SP4 by his side,
entered a petrol station and stopped behind a white Viva
motorcar. SP4 was seen alighted from the car. She then walked
towards the Viva motorcar, where she was arrested.
[6] SP3 approached the appellant’s car and directed him to come out
of the vehicle, to which the appellant complied. SP3 then
conducted a body search on the appellant but found nothing
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incriminating. A similar search was conducted on SP4, who was
seen holding a handbag, by Insp Hafizi and Sjn Fazila. An
inspection was conducted on the handbag and 6 red-coloured
pills suspected to be drugs were found.
[7] A search was also conducted on the appellant’s car by the
raiding team and they discovered 900 red-coloured pills and 10
green- coloured pills suspected to be drugs in the console box of
the Perodua Kelisa.
[8] The appellant was then arrested.
[9] Both the appellant and SP4 were then handed to the
investigating officer, ASP Yusof Zainuddin. Those red and
green-coloured pills found in the console box, upon analysis by
the government chemist, were found to be 16.53g
Methamphetamine, which was the subject matter of the charge.
At the Magistrates Court
[10] At the Magistrates Court, the main issue was the probative value
of the evidence of SP4, who was a co-accused and had admitted
to and was convicted of the charge. During examination in chief,
SP4 had given a detailed chronology of events as to how the
impugned drugs were brought into the car.
[11] According to SP4, the appellant took the impugned drugs from
his foster brother in Jertih, Besut. She then testified as follows:
Sampai di Jertih, saya tak tahu lokasi dia sampai, dia
turun, saya dalam kereta, pergi kat abang angkat
dekat rumah. Dia ambil barang dan masuk dalam
kereta balik.
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[12] The learned Magistrate took cognisance that the evidence of SP4
was incriminating against the appellant. However, the learned
Magistrate was also of the view that other witnesses of the
prosecution corroborated the evidence of SP4.
[13] After having quoted s. 30 of the Evidence Act 1950, the learned
Magistrate then referred to the Federal Court case of PP v. Yeoh
Teck Chye [1981] 2 MLJ 176 FC.
[14] The learned Magistrate then called the appellant to enter his
defence upon finding a prima facie case against the appellant.
[15] At the end of the defence case, the learned Magistrate held that
the defence was a bare denial and went on to convict the
appellant.
At the High Court
[16] I have gone through the notes of evidence in the Appeal Record
(“RR”) and note that after SP4 was found guilty by the learned
Magistrate, the prosecution did not indicate to the court that
they were calling SP4 as a witness at the trial.
[17] On the first day of the trial of the appellant, which was on
20.5.2019, the prosecution informed the court that they were
ready with the witnesses:
P: Untuk bicara kali pertama. Dalam kes in
representasi telah dihantar kepada AG. Jawapan di
tolak. Kes untuk bicara hari ini 8 saksi dan tutup kes.
Again, there was no indication by the prosecution that SP4 will
be called to give evidence for the trial.
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[18] During re-examination, SD4 said that the appellant had
convinced her to plead guilty to the charge and that he would
visit her at the place that she would be detained after she was
found guilty. Apparently, up until she testified in court on that
very day, the appellant did not visit her.
[19] Learned counsel for the appellant submitted that her evidence
must be treated with caution. According to counsel, she was
angry and felt jilted.
[20] Again, during the re-examination, SP4 reaffirmed that the
impugned drugs belong to the appellant.
Q: Dadah itu bukan milik Farhan. Kamu kata tak setuju.
Kenapa?
A: Sebab memang benda itu dia yang punya.
[21] Learned counsel for the appellant referred me to my decision in
Mohd Tarmizi bin Mohd Azri v. PP [2019] 1 LNS 1022. In that
case, I inter alia held that if a co-accused had pleaded guilty and
that he or she was to be made a witness for the prosecution, this
should have been made known by the prosecution at the
commencement of the trial. In the said case, I had referred to the
judgment of Ahmad Bache J in PP v. Mohd Ishamuddin Ismail
[2018] 6 CLJ 257. The proposition that can be distilled from
Mohd Ishamuddin is that an accused person cannot be a
prosecution witness at the same time.
[22] Before me, the learned DPP had reiterated the application of s.
30 of the Evidence Act and has cited a line of authority to
support the proposition that a co-accused can be a witness for
the prosecution.
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[23] With respect, s. 30 of the Evidence Act does not even mention
the word witness. S. 30(1) of the Evidence Act provides as
follows:
When more persons than one are being tried jointly
for the same offence, and a confession made by one
of those persons affecting himself and some other of
those persons is proved, the court may take into
consideration the confession as against the other
person as well as against the person who makes the
confession.
[24] The learned DPP invites me to give a generous meaning to the
word “confession” in the aforesaid sub-section to include a
guilty plea. I do not, with respect, think that I can assent to this
line of argument. If that were the intention of the legislation, it
would have said so in no uncertain terms in s. 30(1).
[25] The learned DPP also cited the case of Yeoh Teck Chye. In that
case, the Federal Court reiterated the well-established law that
where the accused persons are tried jointly, and one of them
gives evidence on his behalf incriminating another co-accused,
the accused who has given the incriminating evidence is not
placed in the position of an accomplice. With respect, it does
not say that a co-accused who has pleaded guilty can be a
prosecution witness at the same time.
[26] Further, the learned DPP contended that the prosecution has the
right to call any witnesses to testify in court. I think this
contention is misplaced. I believe I state the law correctly when
I say that the calling of any witnesses is not a matter of right for
the prosecution. It is a discretion – and just like any other
discretion, it must be exercised within the framework of the law.
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In PP v. Dato’ Seri Anwar bin Ibrahim (No.3) [1999] 2 MLJ 1,
where Augustine Paul J (later FCJ) held:
It is settled law that in a criminal trial the prosecution has
a discretion, provided that there is no wrong motive, as to
whether or not to call any particular witness and in
particular has a discretion not to call in support of its case
a witness whom it does not believe to be a witness of truth.
[27] Having said that, I am not suggesting for one moment that the
prosecution could not call SP4 at all. I think the rule is not
absolute. But, if the prosecution had intended to call her, it
should have been made known to the defence at the start of the
prosecution case. The reason is this. It would enable the defence
to cross-examine other witnesses in relation to the proposed
evidence of SP4. Failure to make it known to the defence at the
commencement of the trial would affect the preparation of the
defence case. I have no hesitation whatsoever that this would
ultimately prejudice the appellant.
[28] So, when I say the exercise of the discretion in the calling or for
that matter non-calling of any witness by the prosecution is
subject to the framework of the law, it means that the ultimate
result shall not in any way prejudice the appellant.
[29] In arriving at his conclusion, the learned Magistrate said:
Mahkamah pada hari ini menerima pakai kesemua
keterangan oleh saksi-saksi pihak Pendakwaan tersebut,
termasuklah SP4 dalam menentukan keputusan kes ada hari
ini.
This means that the learned Magistrate had accepted the
evidence of SP4. But should the learned Magistrate have
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expressly warned himself on the danger of accepting the
evidence of SP4 without any corroboration? I believe the answer
is in the affirmative. This is even more so in the light of SP4’s
evidence that the appellant had breached his promise to visit her
at the Henry Gurney School. The corroborative value of SP4’s
evidence should be addressed properly and distinctly, separate
from the evidence of other witnesses.
[30] In the circumstances, the learned Magistrate had erred and
misdirected himself when he failed the address the aforesaid
issue.
[31] In his finding, the learned Magistrate should have made a
finding that even if he did not take into account SP4’s evidence,
the prosecution had nevertheless successfully established a
prima facie case against the appellant. Alternatively, the learned
Magistrate could have made a finding that SP4’s evidence was
corroborated by other witnesses of the prosecution.
[32] Unfortunately, this was not done.
[33] It has always been a rule of practice for a trial judge to have
expressly warned himself on the danger of convicting an
accused person based on the uncorroborated accomplices'
evidence unless that there are circumstances make it safe to
dispense with; see Mohd Rozneh bin Jaineh v. PP [2013] 8 MLJ
391.
[34] In the failure to expressly warn himself, the learned Magistrate
had misdirected himself by way of non-direction and I so hold.
[35] The appellant was seriously prejudiced in the manner in which
the trial was conducted, which has occasioned a failure of
justice.
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[36] The appellant’s conviction is no longer safe and it ought to be
quashed. I so order. The appellant is acquitted and discharged.
Dated: 4 OCTOBER 2020
(WAN AHMAD FARID WAN SALLEH)
Judge
High Court Kota Bharu.
COUNSEL:
For the appellant - Nik Mohamed Ikhwan Nik Mahamud; M/s Nik Ikhwan & Co
For the respondent - TPR Nik Hajarul Falenna Itah Abu Bakar Adli;
Pejabat Penasihat Undang-Undang Negeri
Legislation referred to:
Dangerous Drugs Act 1952, ss. 12(2), 39A(1)
Evidence Act 1950, s. 30(1)
