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Rahmani Ali Mohd V PP
Rahmani Ali Mohd V PP
PP 405
v.
PP
B COURT OF APPEAL, PUTRAJAYA
AZAHAR MOHAMED JCA
ROHANA YUSUF JCA
TENGKU MAIMUN JCA
[CRIMINAL APPEAL NO: B-05-164-06-2012 (IRN)]
C 10 JUNE 2014
(1) The defence of the appellant that the two bags belonged to
Mohd Reza was not something that was sprung for the first
time in the defence case. From the evidence, it was clear that
C
the appellant, at the earliest possible opportunity, had given
his defence to the investigating officer (‘PW8’) that he had no
knowledge of the drugs concealed inside P19A and P19B.
A detailed and careful scrutiny of the evidence of PW8 fitted
in with the defence of the appellant that although he had
D
control and custody of the two bags, he had no knowledge
of the impugned drugs. (para 13)
(2) The trial judge had failed to direct his attention to the defence
of the appellant, particularly in the evidence of PW8 that was
favourable to the appellant resulting in insufficient judicial E
appreciation of the defence case. The trial judge had failed to
view the defence of the appellant objectively and from all
angles. The omission had seriously prejudiced the appellant as
it was an error on a very crucial point directly relevant to the
defence. Hence, it was a serious non-direction which amounts F
to a misdirection by the trial judge warranting appellate
intervention. (para 14)
[Appeal from High Court, Shah Alam; Criminal Trial No: 45A-203-2009]
D
Reported by S Barathi
JUDGMENT
E
Azahar Mohamed JCA:
[9] It should be pointed out that learned High Court Judge had A
invoked s. 37(d) of the DDA to find knowledge of the appellant
of the drugs concealed in the bags. Before this court, the central
ground raised by learned counsel for the appellant was that
learned High Court Judge had misdirected himself when he failed
to rule that the appellant had successfully rebutted the B
presumption of knowledge on a balance of probabilities.
[11] Now, it was the appellant’s case that he did not know P19A
and P19B contained the impugned drugs and that he had never
seen the two bags before arriving at KLIA. The appellant
E
maintained that both the bags belonged to Mirza Sadeghi
Mohammad Reza (“Mohd Reza”). According to the appellant,
P19A and P19B were not checked in by him at Teheran Airport.
Upon arrival at KLIA, Mohd Reza had collected P19A and P19B
from the carousal and placed them on the scanner before heading
F
out to get a taxi. According to the appellant, he had informed the
customs officers at KLIA that the bags belonged to Mohd Reza.
In order to appreciate the defence of the appellant, it is necessary
to reproduce the material part of his evidence:
I also told the officer that 2 bags were not mine. I did not touch G
the bags. Yes, I was standing side by side with OKT1.
Mohd Reza told me through the phone that he will come. Then,
they brought us into a room. There, they told us, they want to
break the bags. I told it was not our bags. Then my handphone
rang. Then I gave my handphone to the officer to show that the
I
owner of the bag is on the phone and please talk to him. The
officer did not talk through the phone. I tried very hard in sign
[2014] 7 CLJ Rahmani Ali Mohamad v. PP 413
[12] This then brings into focus the evidence of the investigating
officer, PW8. From PW8’s evidence, the following was established
C during the prosecution’s case itself:
D (iii) PW8 produced the Flight Manifest, exh. D56 (see pp. 388
and 389 of appeal record jilid 4) which proved that Mohd
Reza travelled on the same flight as the appellant.
(iv) The appellant informed PW8 that he did not know P19A
and P19B contained drugs.
E
(v) When the appellant was with PW8, the appellant received a
number of calls on his hand phone.
(vi) PW8 did not allow the appellant to answer the calls.
F
(vii) The appellant had informed PW8 in broken English that
someone was waiting for him outside.
(viii) PW8 went to Gate 6 to look for the person. The appellant
was not brought along. PW8 could not find the person.
G
(ix) P19A and P19B did not contain any personal items belonging
to the appellant.
[13] The evidence above makes it patently clear that the defence
H
of the appellant that the two bags belonged to Mohd Reza was
not something that was sprung for the first time in the defence
case (see: Public Prosecutor v. Lin Lian Chen [1992] 4 CLJ 2086;
[1992] 1 CLJ (Rep) 285; [1992] 2 MLJ 561). From the evidence,
it is clear that the appellant at the earliest possible opportunity
I
had given his defence to PW8 that he had no knowledge of the
drugs concealed inside P19A and P19B. One of the tests for
accepting or rejecting the evidence of a witness is how far it fits
414 Current Law Journal [2014] 7 CLJ
in with the rest of the evidence and the circumstances of the case A
(see: Fadil Bachok v. PP [2012] 9 CLJ 65; [2013] 2 MLJ 391).
In our judgment, a detailed and careful scrutiny of the evidence
of PW8 fits in with the defence of the appellant that although he
had control and custody of the two bags, he had no knowledge
of the impugned drugs. B
A have been drawn by learned High Court Judge at the close of the
prosecution case (see: Lee Kwan Woh v. PP [2009] 5 CLJ 631 and
Alcontara Ambross Anthony v. Public Prosecutor [1996] 1 CLJ 705;
[1996] 1 MLJ 209).
B [16] In our judgment, the appellant’s right to a fair trial has been
compromised as a result of the failure of PW8 to carry out
investigation to verify the appellant’s version of fact. The appellant
may thereby have lost a chance which was fairly opened to him
of being acquitted and that there had been occasioned a failure
C or a miscarriage of justice (see: Mraz v. The Queen [1955] 93 CLR
493 quoted with approval in Lim Hock Boon v. PP [2007] 4 CLJ
114; [2007] 1 MLJ 46).