Tarikh Pendengaran Rayuan: 22 Januari 2020 (Rabu)

DALAM MAHKAMAH PERSEKUTUAN MALAYSIA

[BIDANG KUASA RAYUAN]
RAYUAN JENAYAH MAHKAMAH PERSEKUTUAN NO: 05(lb)-93-04/2019(b)

ANTARA

PENDAKWA RAYA …PERAYU

DAN
LUKE NNAEMEKA UGWU …RESPONDEN
(NO. PASSPORT: A0375219)

[Rayuan daripada keputusan Mahkamah Rayuan Malaysia yang bersidang di Putrajaya pada tarikh 1 April
2019:

RAYUAN JENAYAH MAHKAMAH RAYUAN NO. B-05(M)-266-06/2017:

LUKE NNAEMEKA UGWU -LWN- PENDAKWA RAYA

Dalam Perkara:

PERBICARAAN JENAYAH MAHKAMAH TINGGI JENAYAH (6) MALAYA,

SHAH ALAM NO. 45A-244-10/2012:

PENDAKWA RAYA

-LWN-

LUKE NNAEMEKA UGWU

(NO. PASPORT: A0375219)

Pertuduhan di bawah Seksyen 39B(1)(a) AKTA DADAH BERBAHAYA 1952]

HUJAHAN BERTULIS RESPONDEN

 index
1. Introduction 1-4
2. brief facts 5
2.1 The Charge 5
2.2 The Prosecution’s case 5-7
2.3 The Respondent’s explanation 8-11
3. findings below 11
3.1 The High Court’s evaluation 11-13
3.2 The Court of Appeal’s reversal 13-14
4. the withholding of oscar peter’s
statement and adverse inference under 15
s. 114(g) of the evidence act

4.1 Irrelevancy or Unpalatability; the inference to be drawn from 15-20

the withholding of Oscar Peter’s statement

4.2 Show not tell; the circumstance calls for the production of the 20- 23
statement and not an explanation of it

4.3 There is a duty placed on the Prosecution to furnish Oscar 24-27

Peter’s statement

5. the learned trial judge’s failure to 28

consider the respondent’s defence of an
innocent carrier

5.1 The defence of an innocent carrier is a valid defence and must 28-31
be considered by the Learned Trial Judge

5.2 The prevailing circumstances and facts show that the 32-36
Respondent is an innocent carrier

6. conclusion 36
 dramatis personae

PW1 HAMDAN BIN HAMID Storekeeper 1

PW2 KAMAROL ZAMAN BIN MOHD DAUD Storekeeper 2

PW3 MOHD IZZAD BIN ISHAK 2nd Investigating Officer

PW4 ZULKEFLI BIN MOHD EDIN Chemist (Narcotics)

PW5 AHMAD YAZID KHAN BIN RAMZAN Photographer

KHAN

PW6 MOHD IZUAN SHAH BIN ABD JALIL Customs Officer/ Raiding Officer 1

PW7 ERIZASYIRA BINTI BASRI Chemist (DNA)

PW8 MOHAMMAD IZUWAN BIN MOHD Customs Officer/ Raiding Officer 2

ALI

PW9 MUHAMMAD BUKHORI BIN ALIAS 1st Investigating Officer

DW1 LUKE NNAEMEKA UGWU the Accused

ii
Dengan izin Yang Amat Arif – Yang Amat Arif & Yang Arif – Yang Arif Hakim-
Hakim Mahkamah Persekutuan Malaysia,

1. INTRODUCTION

1.1 This appeal before this Honourable Court primarily concerns the
twin components of the right to a fair trial; i.e. procedural and
substantive fairness; both of which as the Record of Appeal reflects
were denied to the respondent during his trial.

1.2 The respondent was charged for an offence under section 39B of
the DANGEROUS DRUGS ACT 1952 when customs officers at the
Kuala Lumpur International Airport, with the aid of a an x-ray
scanner, discovered drugs discretely and carefully concealed inside
a hidden secret compartment of a wheeled luggage bag the
respondent had voluntarily placed for scanning.

1.3 When he learned that there were drugs concealed behind the panel
of the luggage bag, the surprised respondent immediately explained
to the officers that the said luggage was passed to him in Lagos,
Nigeria by one ‘UCHE’; his senior in high school. He also explained
to the officers the circumstances that led to his custody of the bag,
i.e. that UCHE had sought the respondent’s favour to pass it to his
brother, ‘OYEBU’. Since OYEBU is also his housemates at a rented
house in Klang, there was nothing suspicious about the bag or the
request, and the Respondent obliged. He had known UCHE for
years, and as for OYEBU, they lived under the same roof in Taman
Sentosa, Klang.

1
1.4 Although the prosecution flatly denied the respondent’s version of
events, intriguingly, the record also shows that immediately after his
arrest, the customs officers did travel to Taman Sentosa, Klang, 50
kilometres away from KLIA. More curiously, despite the non-
discovery of anything incriminating there, the officers arrested an
occupant of the house who was present at that time, OGOCHUKWU
OSCAR PETER [Passport No. A01874743] and even saw it fit to
record his statement for investigative purposes.

1.5 It was clear from the respondent’s case that he did not know about
the concealed drugs, nor did he suspect that the drugs were in the
bag to begin with; - the unmistakable defence of an innocent carrier.
This defence, mounted at both stages of the trial, was amply
corroborated by the evidence and inferences drawn from facts.

1.6 Even though the defence had crystallised into evidence at the end of
the case, the Learned Trial Judge paid no consideration at all to the
defence of an innocent carrier in his eventual 28-page written
grounds of decision; this occasioned a miscarriage of justice.

1.7 This omission had marred the decision-making process in that the
Learned Trial Judge did not view the whole evidence
comprehensively and objectively, thus depriving the respondent of
the chance of being acquitted.

2
1.8 Moreover, a fair trial was also denied when no adverse finding was
made against the prosecution for failing to secure the attendance of
OSCAR PETER to Court when the defence elected to call him; he
was, after all, offered to the defence when the prosecution case
concluded.

1.9 Despite the defence’s strong intimation that OSCAR PETER’s

testimony was central to the respondent’s case, the prosecution did
not furnish OSCAR PETER’s statement to atone for their failure to
produce him in court.

1.10 On the contrary, the prosecution justified its omission with a

unilateral and self-serving proclamation that OSCAR PETER was not
a witness material to the defence, all while keeping his statement
close to the chest.

1.11 During the trial, the prosecution further submitted that the crux of
the matter was one of possession and not ownership, but at the same
time perniciously made an application under s. 425 of the
CRIMINAL PROCEDURE CODE to recall PW9, the Investigating
Officer to rebut the respondent’s evidence on the existence of
OYEBU; a fact the prosecution deemed irrelevant to the case and
more importantly, one which has been specifically put to and
answered by PW9 when he first testified. The Learned Trial Judge
allowed the application.

3
1.12 In a final blow to the respondent’s already debilitated defence, the
Learned Trial Judge who had recognised the respondent’s dependence on
OSCAR PETER but refused to draw any adverse inference against the
prosecution for its failure nonetheless.The Learned Trial Judge then
turned the table on the respondent and made adverse remark against
him for his inability to prove the existence of OYEBU. This
deficiency, according to the Learned Trial Judge, rendered his
defence highly improbable.

1.13 Eventually, the respondent was convicted after having been

deprived of the opportunity to corroborate his version of events
through the testimony or statement from OSCAR PETER while the
prosecution reaped the rewards of their own omission - OSCAR
PETER’s absence had frustrated the defence.

1.14 Based on the issues raised in the above, the Court of Appeal
correctly held that the failures and omissions of both the Learned
Trial Judge and the prosecution rendered the conviction and
sentence passed to be unsafe and set aside the conviction. So too
should this Honourable Court.

4
2. BRIEF FACTS

2.1 The Charge preferred against the respondent reads:

“Bahawa kamu pada 15 Mei 2012, lebih kurang jam 9:25

malam di Cawangan Pemeriksaan Penumpang KLIA (CPP1),
Balai Ketibaan Antarabangsa, Terminal Utama Lapangan
Terbang Antarabangsa, Kuala Lumpur di dalam Daerah
Sepang, di dalam Negeri Selangor Darul Ehsan telah mengedar
dadah berbahaya iaitu Methamphetamine seberat 725.4 gram
dan dengan itu kamu telah melakukan satu kesalahan di bawah
seksyen 39B(1)(a) AKTA DADAH BERBAHAYA 1952 yang boleh
dihukum di bawah seksyen 39B(2) Akta yang sama.”
[Exh. P2, page 2, Vol. 4, Appeal Record]

2.2 THE PROSECUTION’S CASE

2.2.1 On 15.5.2012, customs officers, M OHD I ZUAN

S HAH BIN A BD J ALIL (“PW6”) and M OHAMAD
I ZUWAN BIN M OHD A LI (“PW8”) were on duty
at the airport’s arrival hall customs clearance.
At about 9:00 p.m., PW6 noticed the respondent
carrying a grey wheeled luggage (“Exh. P34”)
and instructed the respondent to place his
luggage for scanning, which the latter obliged.

5
2.2.2 PW6 then noticed a suspicious image from the
scan and instructed the respondent to take out
the contents of the luggage; again, the
respondent cooperated fully with the
instruction.

2.2.3 A thorough physical examination of the luggage

and contents was made, but even PW6 himself
was unsure of the location of the items
generating the suspicious image and arranged
for a second scan.

2.2.4 When the second scan still generated the same

suspicious image, the officers apprehended the
respondent and took him to Cawangan
Pemeriksaan Penumpang. A police report was
also lodged.

2.2.5 At 11:00 p.m., a 3-member team from the

Customs Enforcement Unit made up of
M UHAMMAD B UKHORI A LIAS (“PW9”), A HMAD
Y AZID K HAN (“PW5”) and the late R ASID
A HMAD arrived. PW9 then instructed PW8 to
pry open the panel concealing the telescopic
handles of Exh.P34.

6
2.2.6 Once successfully forced open, the officers
discovered 4 packages wrapped in carbon papers
carefully tucked in the space between the
handles.

2.2.7 E N . Z ULKEFLI BIN M OHD E DIN (“SP4”) from

the Chemistry Department certified the
contents of the 4 packages to be 752. grams of
Methamphetamine.

2.2.8 Essentially, the whole substratum of the

prosecution’s case against the respondent rests
solely on the discovery of the impugned drugs
concealed underneath the panel covering the
telescopic handles of Exh. P34.

2.2.9 With no evidence of any overt act, guilty

conduct, or any other fact to impute the
respondent’s knowledge over the existence of
the carefully and ingeniously concealed drugs in
the hidden compartment, the prosecution
resorted to the statutory presumption under s.
37(d) of the DANGEROUS DRUGS ACT 1952 as
an aid.

7
2.3 THE RESPONDENT’S EXPLANATION

2.3.1 As the Record reflects, the respondent’s

explanation from the outset was that he has no
knowledge over the existence of the concealed
drugs, nor was he put to suspicion over the
contents of the luggage.

2.3.2 The respondent was a student in Malaysia, and

had flown back to his hometown in Nigeria when
news came about his father’s heart attack. His
hometown is about a 5-hour bus ride from the
former capital, Lagos.

2.3.3 There, the respondent discovered that the

situation was not as serious as it was painted out
to be. Reassured of his father’s recovery, the
respondent made plans to come back to Malaysia
and to his classes.

2.3.4 Prior to his return, the respondent was in

contact with U CHE , his senior in school. U CHE ,
who was then based in Lagos, insisted that they
both meet up before the respondent leave for
Malaysia.

8
2.3.5 Since he is departing from Lagos, the
respondent agreed. U CHE offered the
respondent to spend the night at his place and
picked him at the bus station.

2.3.6 Later that evening, U CHE passed a luggage bag

to him. U CHE opened the luggage and
demonstrated to the respondent that the luggage
was empty and told him that his younger brother
O YEBU was fond of that particular luggage bag.

2.3.7 U CHE sought the respondent’s help in passing

the bag to O YEBU . O YEBU after all, is also a
student in Malaysia and was living together with
the Respondent in T AMAN S ENTOSA , K LANG .

2.3.8 The respondent testified that he had only

accepted the bag only after he had personally
inspected the same; there was not any indication
of tampering or adjustment made to the same
nor was there any crack or odour permeating
therefrom. There was nothing to raise his
suspicion about the request or the bag itself that
should put him on alert.

9
2.3.9 The respondent maintained that when the
concealed drugs were extricated forcefully from
the secret compartment, he informed PW6 “this
bag, U CHE give me.” Even PW6 himself admitted
in evidence that he cannot recall or ascertain
with certainty what was said to him by the
respondent.

2.3.10 According to the respondent, the same was also

narrated to PW9 that the bag was to be passed to
O YEBU his housemate, but this was of course
denied by this witness.

2.3.11 As adverted earlier in this submission, the

Appeal Record nevertheless reflects that the
investigation team did in fact make their way to
Taman Sentosa immediately after the arrest. It
was PW9’s own evidence that he had arrested
and recorded a statement from one occupant of
the said house who was present at that time, one
O GOCHUKWU O SCAR P ETER , a Nigerian national
and one of the four occupants of the house
together with O YEBU and one C HINEDU .

2.3.12 Although, O SCAR P ETER was offered by the

prosecution at the conclusion of the
prosecution’s case, the prosecution however
had failed to produce him in Court nor was his

10
 statement recorded extended to the defence to
be used for purposes of the respondent’s use.

2.3.13 Instead, the prosecution submitted that the

witness would not have been useful for purposes
of the respondent’s defence and kept both the
trial court and the respondent in the dark as to
what was actually in his statement to PW9
during investigation.

3. FINDINGS BELOW

3.1 THE HIGH COURT’S EVALUATION

3.1.1 The crux of the respondent’s grievance against the Learned

Trial Judge’s judicial conduct before the immediate appellate
court as well as before this Honourable Court is in regards to
the apparent non-consideration of the respondent’s defence
of an innocent carrier.

3.1.2 It is palpable from the Written Grounds of Decision that such

a defence did not receive any proper judicial consideration by
the Learned Trial Judge, despite the respondent’s evidence
asserting his lack of knowledge over the concealed drugs
being reiterated in the Grounds of Decision.

11
3.1.3 This omission is indicative of whether the cardinal principle
of maximum evaluation propounded by this Court in
BALACHANDRAN v PP [2005] 1 CLJ 85 and the statutory
duty under section 182A of the CRIMINAL PROCEDURE
CODE has been complied with by the Learned Trial Judge.

3.1.4 Moreover, this non-appreciation of the respondent’s

evidence has left a serious question of whether the Learned
Trial Judge did apply his mind to the question of whether the
respondent’s version has rebutted the artificial presumption
of knowledge under section 37(d) of the DDA.

3.1.5 To compound the matter further, the Learned Trial Judge

fell into a grave misstep when he on the one hand recognised
that the prosecution is not in the position to determine
whether OSCAR PETER’s evidence would be material to the
Respondent’s defence or not but nevertheless refused to
draw any adverse inference against the prosecution for its
failure to secure the attendance of this offered witness or
furnish his statement recorded.

3.1.6 Astonishingly, the Learned Trial Judge thereafter turned the

table on the respondent and made an adverse finding against
the Respondent for his failure to prove the existence of
OYEBU, an inability brought about by the prosecution’s
failure to secure the attendance of OSCAR PETER in the first
place.

12
 3.1.7 This failure according to the Learned Trial Judge, rendered
the respondent’s defence to be ‘highly improbable’ , an
afterthought, and therefore had not rebutted the statutory
presumption invoked. The respondent was then sentenced to
capital death.

3.2 THE COURT OF APPEAL’S REVERSAL

3.2.1 The issues adverted in the above were canvassed

before the Court of Appeal and the appellate judges
were unanimous in their decision that there was a
misdirection by way of non-direction when the
Learned Trial Judge had failed to address his mind
to the respondent’s defence of an innocent carrier.

3.2.2 The appellate court, found that the Appeal Record

is replete with suggestions and challenges
mounting such the defence, even the respondent’s
own sworn testimony had crystallised the
challenges into evidence, and therefore it is the
bounden duty of the Learned Trial Judge to
consider the respondent’s defence.

3.2.3 This failure had occasioned a miscarriage of justice

and this in and of itself entitles the respondent to
an acquittal.

13
3.2.4 On top of the miscarriage of justice occasioned, the
appellate court added that the prosecution’s failure
to secure or at least furnish O SCAR P ETER ’s
statement to the defence warranted the invocation
of s. 114(g) of the EVIDENCE ACT and renders the
conviction unsustainable.

3.2.5 The Court of Appeal also remarked that the

Learned Trial Judge had downplayed the
importance of O SCAR P ETER ; he is the best person
to verify and substantiate the existence of O YEBU ,
the luggage intended recipient.

3.2.6 The appellate court also opined that in the interest

of fair trial, it is unfair for the prosecution to
withhold such vital piece of evidence from the
defence.

3.2.7 In the circumstances, the Court of Appeal was

satisfied that a miscarriage of justice had occurred
and the respondent’s conviction was wholly unsafe
and therefore acquitted the respondent of the
charge.

14
4. THE WITHOLDING OF OSCAR PETER’S
STATEMENT AND ADVERSE INFERENCE
UNDER S. 114(g) OF THE EVIDENCE ACT.
“[I]f the witness cannot be produced by the prosecution, it will be appropriate for the prosecution to
hand over the s. 112 statement recorded from the witness to whittle down any complaint by the
defence to invoke s. 114(g) of the Evidence Act…”- Hamid Sultan JCA in KOBRA TABA
SEIDALI v. PUBLIC PROSECUTOR [2014] 2 MLJ 554.

4.1 IRRELEVANCY OR UNPALATIBILITY; THE

INFERENCE TO BE DRAWN FROM THE
WITHOLDING OF OSCAR PETER’S STATEMENT.

4.1.1 It is an accepted legal principle that whenever

witnesses are offered to the defence, the
prosecution must secure their attendance in court.
Numerous decisions underscored the significance
of this responsibility and cautioned about the
ramifications for its non-adherence.

4.1.2 In PP v. ASNAWI YUSUF [2012] 3 CLJ 41 [Tab 1],

His Lordship Sulong Matjeraie, in dealing with
facts almost similar to the present appeal i.e. the
prosecution there was unavailable to trace
witnesses offered to the defence, observed that ‘it
is the bounden duty for the prosecution to avail the
witnesses for the defence. If in the exercise of this duty,
the prosecution fails… the accused must be acquitted.’

15
4.1.3 His Lordship further remarked that the
presumption of innocence also requires that ‘the
accused be given every opportunity to substantiate his
story’ and without those witnesses offered he is
deprived of the opportunity to do so.

4.1.4 Reverting to the facts of the present appeal, the

Appeal Record reflects that O SCAR P ETER was
named as a prosecution witness and offered to the
defence when the prosecution’s case concluded.
The Notes of Proceedings demonstrated as follows:

Notes of Proceedings
2 Mac 2017:

TPR: Kami tawarkan saksi-saksi yang tidak dipanggil.

[Line 24, Page 40, Vol. 3, Appeal Record]

Notes of Proceedings
27 April 2017:

P.B.: Saya ada satu saksi yang ditawarkan kepada

pembelaan nama Oscar Peter, kami pohon TPR
untuk dapatkan saksi ini.

[Line 25, Page 56, Vol. 3, Appeal Record]

16
4.1.5 Moreover, it was also an uncontroverted fact that
O SCAR P ETER ’s statement was also recorded by
PW9 as reflected by the following excerpt from the
Notes of Proceedings:

Cross-examination of PW9:

S: Masa pemeriksaan di rumah ada rakam

percakapan sesiapa di rumah itu?
J: Ada.

S: Nama dia?
J: Tak ingat.

S: Ada orang lain?

J: Tak pasti.

[Line 14-20, Page 38, Vol. 3, Appeal Record]

Re-examination of PW9:

…saya tak ingat nama lelaki yang mendiami

rumah di Klang tersebut, nama dia Ogobhukwu
(sic) Oscar Peter.
[Line 9, Page 40, Vol. 3, Appeal Record]

4.1.6 Thus, it is clear from the above, that the

prosecution was not only in possession of O SCAR
P ETER ’s statement but even saw it fit to list him as
a witness.

17
4.1.7 This begs the question of the inference to be drawn
against the prosecution’s deliberate refusal to
disclose O SCAR P ETER ’s statement during trial or
furnish the same to the Defence.

4.1.8 While it is an accepted principle of law that the

prosecution need not call all witnesses in proving
its case to avoid repetition, the exercise of that
discretion must also be scrutinised to hinder any
suppression of evidence i.e. the withholding of
facts unpalatable to the prosecution.

4.1.9 In the present appeal, even after the prosecution

had failed to secure O SCAR P ETER ’s attendance in
court, the opportunity to avoid the invocation of
section 114(g) of the EVIDENCE ACT 1950 through
the production of his statement was not seized.

4.1.10 At this juncture, reference is made to the

decision of the Court of Appeal in KOBRA TABA
SEIDALI v. PUBLIC PROSECUTOR [2014] 2 MLJ 554
[Tab 2] where His Lordship Hamid Sultan JCA
made the following pertinent observation:

[18]…if the witness cannot be produced by the

prosecution it will be appropriate for the
prosecution to hand over the s.112 statement
recorded from the witness to whittle down any

18
 complaint by the defence to invoke s. 114(g) of
EA 1950 as in the instant case.

[19] In the instant case, we take the view the

failure of the prosecution to produce Maryam as
a witness or hand over a copy of the witness
statement to the defence to be used if it is
favourable as part of the defence exhibit at the
defence stage is fatal on the factual matrix of the
case…In consequence we agree with the learned
counsel that an opportunity of fair trial has been
compromised by the prosecution.”

4.1.11 On the contrary, the prosecution justified

their failure with a simple explanation;- O SCAR
P ETER was not a material witness, he would not
have raised a reasonable doubt on the prosecution’s
case nor was he material to support the defence’s
case [at page 108 of Volume 5 of the Appeal
Record].

4.1.12 It is clear from the above response that the

prosecution had anointed itself as the determiner
of whether O SCAR P ETER ’s statement was material
to its own adversary.

4.1.13 Furthermore, even if such assertion is to be

believed, this attracts more suspicion and not
deflect it. If the statement was irrelevant and
worthless to the defence, why hang on to it?

19
 4.1.14 It is submitted that this is a textbook example
of the circumstances envisioned by section 114(g)
of the EVIDENCE ACT :

“ THAT EVIDENCE WHICH COULD BE AND IS

NOT PRODUCED WOULD IF PRODUCED BE

UNFAVOURABLE TO THE PERSON WHO

WITHHOLDS IT ”

4.2 SHOW NOT TELL; THE CIRCUMSTANCE CALLS

FOR THE PRODUCTION OF THE STATEMENT
AND NOT AN EXPLANATION OF IT.

4.2.1 The Record also reflects that in an attempt to

disprove the respondent’s assertion on the
existence of O YEBU , the prosecution resorted to
section 425 of the CRIMINAL PROCEDURE CODE to
recall PW9 as rebuttal witness.

4.2.2 While it is conceded that such a recourse under

S .425 of the CPC is generally permissible, in the
present case, based on the facts, it was uncalled for.

4.2.3 As adverted earlier, the recalling of PW9 was made

on the pretext of ‘rebutting’ the respondent’s
assertion on the existence of O YEBU ; an issue
which has already been put to and answered by PW9
when he first testified:

20
 Cross-examination of PW9:

S: Untuk diserahkan kepada adik Uche nama

“Oyebu”?
J: Tak setuju.

S: Masa pemeriksaan rumah ada rakam percakapan

sesiapa lain di rumah itu?
J: Ada.

S: Ada orang lain?

J: Tak pasti.

S: Adakah Oyebu tinggal di situ?

J: Tak pasti.

[Line 13-22, Page 38, Vol. 3, Appeal Record]

4.2.4 It is submitted that this recourse is antithetical to

the scope and intent of the decision in PP v. CHIA
LEONG FOO [2000] 4 CLJ 649 [Tab 3] where His
Lordship Augustine Paul J (then) forbade the
introduction of further evidence after the accused
had presented his defence as it would tantamount
to the prosecution splitting its case.

4.2.5 His Lordship went on further to distinguish

between a real necessity for rebuttal from a false
one, and held the following:

21
 “The judicial power is … to decide whether the Crown is
attempting to improve on something it has already begun,
or whether it is seeking to refute something that can
reasonably be characterized as fresh material contained in
the defence case.”

4.2.6 It is clear from trial transcripts that the

respondent’s defence in relation to O YEBU has been
put to PW9 earlier and he has every opportunity to
clarify or rebut it at that point. Instead, PW9
specifically answered that he was unsure whether
O YEBU was living there.

4.2.7 When he took his second bite at the apple however,

PW9 testified that there was no one else at the house
and in the process had contradicted his own earlier
testimony on the existence of another occupant the
house; O SCAR PETER .

4.2.8 It is clear that both parties were in disagreement on

the existence of OYEBU . In the circumstances, the
best evidence to substantiate or rebut the
Prosecution’s assertion on the non-existence of
OYEBU is through the testimony of the other
occupant of the house; - OSCAR PETER and not by
way of explanations from other witnesses as
alternatives. We submit that OSCAR PETER ’s

22
 statement itself must be produced to quell any
doubt arising.

4.2.9 In any event, even if this Court is of the view that

the recourse to section 425 of the CPC by the
prosecution was proper, the prosecution should
have adduced OSCAR PETER ’s statement through
PW9 during the rebuttal stage, especially when the
application was made after the prosecution had
announced that efforts to locate him was
unsuccessful, and even more so when it is alleged
that his statement ‘would not have raised any
reasonable doubt on the prosecution’s case’.

4.2.10 Further, the prosecution should not be

allowed to be put in a position to dictate or
determine how the respondent should conduct its
defence by depriving the respondent of the vital
piece of evidence to substantiate its defence. This
should not be the case especially in a serious charge
such as the present.

23
4.3 THERE IS A DUTY PLACED ON THE
PROSECUTION TO FURNISH OSCAR PETER’S
STATEMENT.

4.3.1 In addition to the decision in KOBRA TABA SEIDALI as

cited in the above, reference is also made to the
recent decision in SITI AISYAH v. PP [2019] 7 CLJ
27 [Tab 4] wherein the Court of Appeal remarked
that the principles of fair trial and equality of arms
would require that police statements recorded from
witnesses offered to the defence must be furnished
to the defence for use.

4.3.2 The Court of Appeal in SITI AISYAH v. PP dealt with

an almost similar issue such as the present; some
the witnesses offered to the defence were either
deceased or could not be located, prompting the
defence to apply for their statements. The
application however was denied by both the
prosecutor and the trial judge. On appeal, the
decision was reversed, and the Court of Appeal
observed the following:

“In our view, there would certainly be a miscarriage of

justice if the police statements from especially the deceased
persons and others who cannot be brought to court as
witnesses were not provided to the defence.”

24
4.3.3 The appellate court in SITI AISYAH v. PP , in coming
to its decision examined the shifts in judicial
attitudes in calling for a more prosecutorial
disclosure in other common law jurisdictions; the
Singapore’s Court of Appeal for example found a
common law duty for the prosecution to disclose
some unused material including material ‘credible
and relevant to the guilt or innocence of the accused’ –
(See MUHAMMAD BIN KADAR & ANOR v. PP [2011]
SGCA 32 [Tab 5]).

4.3.4 Similarly in Brunei, the Court of Appeal in YEO

TSE SOON & ANOR v. PP [1995] 2 CLJ 179 [Tab 6]
held that the withholding of a statement without
good reasons is a material irregularity and the
conviction and sentence was set aside.

4.3.5 It is clear from the authorities cited in the above

that there appears to be no reasonable justification
to permit the prosecution to stash unused
statements, especially when the statements came
from witnesses surrendered to the defence. More
so, when their attendance cannot be secured.

4.3.6 In short, remnants of the materials for

prosecution’s case should be handed over to the
defence.

25
 4.3.7 Moreover, it has been the courts’ experience that
witnesses are mortals; they might pass on,
disappear, apt to forget, or even go rogue. It is with
these susceptibility in mind that the EVIDENCE ACT
provides numerous provisions to avert or alleviate
those situations. 1 That said however, almost all of
the safeguards under the EVIDENCE ACT requires
the party resorting to them to have a copy of the
written statements at the outset; a privilege not
necessarily open to the defence.

4.3.8 Furthermore, it is also submitted that any assertion

that such statements are privileged or that non-
disclosure is necessary to prevent witness-
tampering must be scrutinised carefully especially
when the prosecution’s case has concluded. If the
testimonies or statements were crucial or sensitive,
surely as a matter of precaution these evidences
should be led by the prosecution and not be offered
to the defence.

4.3.9 Further to the above, it is submitted that a clear

distinction should be made from the decision of
this Honourable Court in DATO ’ SRI MOHD NAJIB
RAZAK BIN HAJI ABD RAZAK v. PENDAKWA RAYA

1
See s. 32, s. 145, s. 155, s. 157, s. 159 & s. 160 of the Evidence Act 1950.

26
 [ RAYUAN JENAYAH NO . 05( L )-77-03/2019( W )]
[Tab 7] wherein the application for the witness
statements were made prior to the conclusion of
the prosecution’s case, whereas the present appeal
concerns the supply of a witness statement from an
offered witness and one whose attendance cannot
be secured by the prosecution.

4.3.10 In sum, it is submitted that there appears to

be no reasonable justification for the prosecution’s
failure to furnish O SCAR PETER ’s statement to the
defence, especially after its own failure to secure
his attendance in court. This failure has resulted in
both a miscarriage of justice and calls for the
drawing of an adverse inference against the
prosecution. This ground in itself, we submit,
renders the respondent’s conviction and sentence
unsafe.

27
5. THE LEARNED TRIAL JUDGE’S FAILURE
TO CONSIDER THE RESPONDENT’S
DEFENCE OF AN INNOCENT CARRIER.
“[A] case can be said to have been proven beyond reasonable doubt only at the conclusion of the trial
upon consideration of all the evidence adduced.” -Augustine Paul JCA in BALACHANDRAN v.
PP [2005] 1 CLJ 85.

5.1 THE DEFENCE OF AN INNOCENT CARRIER IS A

VALID DEFENCE AND MUST BE CONSIDERED
BY THE LEARNED TRIAL JUDGE.

5.1.1 It is palpable from the Grounds of Decision, the

Learned Trial Judge had failed to give any proper
judicial consideration to the respondent’s defence
of an innocent carrier mounted.

5.1.2 At the outset, the decision of this Court in

MUNUSWAMY SUNDAR RAJ v. PP [2016] 1 CLJ 357
[Tab 8] has made it clear that the defence of an
innocent carrier is a valid defence for drug
trafficking cases and cited in approval the
observation made by the Court of Appeal in
VENKATESAN CHINNASAMI v. PP [2011] 1 LNS
1736:

“…A defence of innocent carrier refers to a state

of affairs where an accused person acknowledges
carrying, for example a bag or a box, as in the
case before us, containing dangerous drugs but
disputes having knowledge of the drugs.”

28
5.1.3 As such, it is submitted that since the defence
mounted by the respondent was a valid and
recognised defence, the Learned Trial Judge is
obligated to subject the defence evidence to a
proper judicial appreciation.

5.1.4 Unfortunately, however, as the Appeal Record

reflects such judicial consideration has not been
exercised and has not been exercised judiciously by
the Learned Trial Judge. The Learned Trial Judge
made no deliberation on the respondent’s
explanation that he has no knowledge over the
drugs concealed in the luggage he was carrying; this
is clearly against the time-worn direction in MAT v.
PUBLIC PROSECUTOR [1963] MLJ 263

5.1.5 It is submitted that due to the fact-specific nature

of the defence of an innocent carrier, the defence
cannot be viewed in isolation and must be
determined by reference to the prevailing facts and
circumstances.

5.1.6 In the facts and circumstances of the present

appeal, the drugs were so ingeniously concealed
that even the customs officer could not even detect
the location of the packages from the two scans
made. Even the Learned Trial Judge himself

29
 alluded to this fact in his Grounds of Decision. His
observation on this issue is as follows:

“Bungkusan-bungkusan ini pula telah ditemui

di dalam bagasi P34, iaitu tersorok pada
bahagian tempat simpanan besi penarik eksibit
P34. Keadaan ini sukar untuk dikesan kecuali
setelah satu pembongkaran teliti, iaitu diumpil
di bahagian penarik besi dibuat untuk
pengesanan dadah berkenaan…

…dadah tersebut tidak dapat dikesan dengan

hanya melalui pandangan mata kasar…”

5.1.7 From the above excerpt, it is clear from the

clandestine manner in which the drugs were
concealed, this fact should have prompted the
Learned Trial Judge to consider or at least
reconsider whether the respondent had the
necessary knowledge over the concealed drugs
before the respondent was convicted.
Unfortunately, this was not done.

5.1.8 It is submitted that the failure of the Learned Trial

Judge to properly appreciate the respondent’s
defence had violated the presumption of innocence
as the respondent was convicted while a reasonable

30
 doubt may still exist ( ALMA NUDO ATENZA v. PP &
ANOTHER APPEAL [2019] 5 CLJ 780).

5.1.9 On this point, it is also submitted that this omission

amounted to a misdirection on the part of the
Learned Trial Judge. The observation made in
GOOI LOO SENG V . PP [1993] 2 MLJ 137 [Tab 9] by
His Lordship Edgar Joseph Jr SCJ on this point is
most pertinent:

“Clearly, therefore, the trial judge was bound

to, but did not view the whole of the evidence

objectively and from all angles, with the result

that the appellant had lost the chance which was

fairly open to him of being acquitted. On this

point, we consider that the non-direction

amounts to a misdirection…”

31
5.2 THE PREVAILING CIRCUMSTANCES AND
FACTS SHOW THAT THE RESPONDENT IS AN
INNOCENT CARRIER.

5.2.1 Further to the point made in the above, it is

submitted that the facts and circumstances
prevailing suggest that the respondent was carrying
the luggage without the necessary knowledge over
the existence of the hidden drugs.

5.2.2 The evidences which were adduced before the

Learned Trial Judge are as follow:

Cross-examination of PW6:

S: Setuju dengan kebolehan Bahasa Inggeris yang

terhad, dia kata berikut “this bag, Uche give
me”?
J: Saya tak ingat.
[Line 18, Page 19, Vol. 3, Appeal Record]

Cross-examination of PW8:

S: OKT letak beg dengan sendiri?

J: Ya.
[Line 23, Page 28, Vol. 3, Appeal Record]

32
 S: Cadangan: Beg ini diberikan oleh Uche untuk
diserahkan kepada adik Uche bernama Oyebu.
Adakah perkara ini dinyatakan kepada kamu
waktu itu?
J: Tidak.

S: Cadangan: Ada kemungkinan OKT memang

betul-betulnya tidak tahu adanya dadah dalam
beg itu?
J: Setuju.
[ Page 29-30, Vol. 3, Appeal Record]

Cross-examination of PW9:

S: Setuju ketika pembongkaran OKT cakap beg itu

diberikan oleh Uche?
J: Tidak setuju.

S: Untuk diserahkan kepada adik Uche nama

Oyebu?
J: Tak setuju.
[Line 9-13, Page 38, Vol. 3, Appeal Record]

5.2.3 Notwithstanding the above suggestions put to

various prosecution witnesses which have
crystallised into evidence, such defence were not
properly considered by the Learned Trial Judge at
the conclusion of the case.

5.2.4 In addition to the above, the circumstantial

evidence that speaks in favour of the respondent
also escaped the judicial consideration of the

33
Learned Trial Judge. The silent evidence that
substantiated the respondent’s assertion of not
having knowledge over the drugs are as follow:

Cross-examination of PW6:
S: Kamu pasti dimana dadah disorok?
J: Tidak.

S: Setuju dadah itu tidak boleh dilihat dengan mata

kasar sebelum pembongkaran?
J: Ya.

S: Beg itu terpaksa dikoyak dan dipecah untuk

dapatkan dadah?
J: Ya.
[Page18- 19, Vol. 3, Appeal Record]

Cross-examination of PW8:
Setuju sebelum pembongkaran beg ini kelihatan
biasa.

S: Ketika itu awak pun tak tahu ada dadah?

J: Ya.

S: Setelah pembongkaran baru kamu lihat ada

barangan tersembunyi?
J: Ya.
[Page 28-29, Vol. 3, Appeal Record]

34
5.2.5 Based on the excerpts above, it is apparent that the
respondent was mounting the unmistakable defence
of an innocent carrier and if the Learned Trial
Judge had directed his mind to the same, he would
conclude that the Respondent’s defence was highly
probable and would have rebutted the presumption
under section 37(d) of the DANGEROUS DRUGS
ACT particularly so as the factual matrix does not
disclose any circumstances to prompt his suspicion
or to put him on inquiry.

5.2.6 It is unfortunate however, instead of reviewing the

whole evidence objectively, the Learned Trial
Judge chose to dwell on peripheral facts e.g. the
respondent was seen carrying the bag and the
presence of his clothings therein, which were not
disputed and have no bearing on his actual defence
i.e. that he has no knowledge over the drugs
concealed therein.

5.2.7 Moreover, as adverted earlier, the respondent was

even faulted for failing to prove the existence of
OYEBU when he was unable to do so without the
attendance of O SCAR PETER or at least his witness
statement. This inability was brought about by the
prosecution’s own failure for which the trial court
somehow did not see it fit to reprimand.

35
 5.2.8 In sum, it is submitted that the respondent has been
deprived of his constitutional right to receive a trial
by an impartial tribunal and to have a just decision
based on the facts and established principles of law.
.

6. CONCLUSION
“[T]he inherent difficulties of proving negative (in the present context, a lack of knowledge) must be
borne in mind, and the burden on an accused person faced with this task should not be made so
onerous that it becomes virtually impossible to discharge -Chao Hick Tin JA in HARVEN A/L
SEGAR v. PP [2017] SGCA 16.

6.1 Based on the foregoing, it is submitted that the respondent had been
deprived of a fair trial both procedurally and substantively and there
was a miscarriage of justice occasioned.

6.2 The respondent should have been allowed the opportunity to

substantiate his defence by way of through OSCAR PETER’s testimony
or his police statement and the failure of the prosecution in this regard
renders his conviction unsafe.

6.3 Furthermore, the respondent deserves a fair trial in which all evidence
adduced are properly and judicially considered by the trier of facts. He
was not accorded with one when the trier of fact had omitted to consider
his side of the story and did not reprimand the prosecution for depriving
him of the opportunity to substantiate his story.

36
6.4 In the premises the Respondent prays for the order by the Court of
Appeal be affirmed and the conviction and sentence passed by the High
Court be set aside.

We are much obliged.

Dated this 31 s t of December 2019

…………………………………………………….
Messrs. Azwan Aiman Fakhrul & Co.
Counsels for the Respondent

37