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Public Prosecutor v Lee Chwee Kiok [1979] 1 MLJ 45:

[1979] 1 MLJ 45

PUBLIC PROSECUTOR v LEE CHWEE KIOK

OCRJ KUALA LUMPUR

HARUN J

SELANGOR CRIMINAL TRIAL NO 2 OF 1977

19 September 1977

Criminal Law and Procedure — Dangerous Drugs — Trafficking — Charge amended — No consent of Public Prosecutor on the amended charge — Whether trial was a nullity — Dangerous Drugs Ordinance, 1952, ss 37(b) & (g), 39B(1)(a), 39B(1)(c), 39(B)(3) — Criminal Procedure Code (FMS Cap 6), s 214(i)

Dangerous Drugs — Trafficking — Amended charge — Acquittal — Dangerous Drugs Ordinance, 1952, ss 37(b) & (g), 39B(1)(a), 39B(1)(c), 39(B)(3) — Criminal Procedure Code (FMS, Cap 6), s 214(i)

The accused was originally charged with trafficking in dangerous drugs on July 21, 1976 at TBG 1306 Jalan Harper, Kelang under section 39B(1)(a) of the Dangerous Drugs Ordinance. On November 25, 1976 the Public Prosecutor issued his written consent to prosecute under section 39B(3) of the said Ordinance. At the trial, on September 19, 1977, the learned Deputy Public Prosecutor amended the charge in two respects: The offence was alleged to have been committed at TBG 1306A, Jalan Harper, Kelang and the offence alleged was that of doing an act preparatory to trafficking under section 39B(1)(c) of the Dangerous Drugs Ordinance. No consent of the Public Prosecutor had been obtained on the amended charge.

Held, acquitting and discharging the accused:

  • (1)

the trial was a nullity as the Public Prosecutor had not given his consent on the amended charge;

  • (2)

the facts as found in this case did not support either charge.

Cases referred to

Abdul Hamid v Public Prosecutor [1956] MLJ 231

Lim Seo v R [1962] MLJ 304

Lyn Hong Yap v Public Prosecutor [1956] MLJ 226

CRIMINAL TRIAL

Gulamoydeen bin Mohamed Haniffa (Deputy Public Prosecutor) for the Public Prosecutor.

Radzi bin Tan Sri Sheikh Ahmad for the accused.

HARUN J

In this case the accused was charged under section 39B of the Dangerous Drugs Ordinance. At the close of the case for the prosecution, I heard the submissions of both counsel and then directed the jury to return a verdict of not guilty under section 214(i) of the Criminal Procedure Code. They did so, whereupon I acquitted and discharged the accused. My reasons for taking this course are as follows:

The accused was originally charged with trafficking in dangerous drugs on July 21, 1976 at TBG 1306, Jalan Harper, Kelang under section 39B(1)(a) of the Dangerous Drugs Ordinance. On November 25, 1976 the Public Prosecutor issued his written consent to prosecute under section 39B(3) of the said Ordinance. She was first produced before the Magistrate at Kelang on December 16, 1976 and at the close of the preliminary inquiry on January 28, 1977 she was committed to stand trial at the High Court on the same charge.

When the trial commenced before me however on September 19, 1977, the learned Deputy Public Prosecutor amended the charge in two respects:

  • (i)

The offence was alleged to have been committed at TBG 1306A, Jalan Harper, Kelang.

  • (ii)

The offence, alleged was that of doing an act preparatory to trafficking under section 39B(1)(c) of the Dangerous Drugs Ordinance.

The question is whether the court has jurisdiction to proceed with the trial on the amended charge without a fresh consent by the Public Prosecutor. As the matter is res integra I proceeded with the trial to save the public expense, the witnesses and jury being present in court. It will be observed that although the original and amended charges are two distinct offences, they are both created by the same section of the law viz. section 39B(1) and both carry the same penalty. Both require the consent of the Public Prosecutor under section 39B(3). The learned Deputy Public Prosecutor argued that the amendment was technical and as the Public Prosecutor had given his consent on the original charge he was at liberty to amend the charges in the manner he did. I do not think so. It was held in Abdul Hamid v Public Prosecutor [1956] MLJ 231 that a consent to prosecute “is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side”. The Public Prosecutor has clearly exercised his mind in respect of the original charge when he gave his consent to prosecute some four months after the alleged offence. It was incumbent on him however to exercise the same degree of deliberation in respect of the amended charge. He has not done so. In Lim Seo v Regina [1962] MLJ 304 counsel was given sanction to prosecute undersection 379 of the Penal Code but he proceeded under section 381 of the Penal Code instead. It was held that counsel cannot depart from the specific authorisation of the Public Prosecutor. It seems to me that the same principles apply here. The facts of the case were fully before the Public Prosecutor at the time of giving his consent and he could have elected to proceed on the amended charge then. He did not do so. It would appear therefore that the Public Prosecutor has not given his consent to prosecute under the amended charge. That being so, the trial is a nullity on the authority of Lyn Hong Yap v Public Prosecutor [1956] MLJ 226.

Be that as it may, the facts as I found them did not support either charge. In the first place there is the confusion about the address. It is clear from the evidence that the police party raided house no. TBG 1306. The confusion began when they found a water bill at TBG 1306 in the name of the accused but the address given was TBG 1306A. There is no evidence that house number TBG 1306 and TBG 1306A are in fact the same house nor is there evidence to show that there is no house numbered TBG 1306A. A reasonable inference is that these numbers indicate two separate houses and if that be so a doubt arises if the accused had the care and management or was the occupier of the premises TBG 1306 Jalan Harper. This fact is important since the prosecution was relying on the presumptions under section 37(b) and (g) of the Dangerous Drugs Ordinance. I found on the evidence that these two presumptions did not apply.

Secondly, the drugs were found in tins under the kitchen. These tins were found amongst other tins which were empty. There was no evidence to connect the accused with these tins and as I had found

1979 1 MLJ 45 at 46

that the presumption of ‘occupier’ did not apply to the accused, the presumption of knowledge of the concealment of the drugs under section 37(g) did not arise either.

Thirdly, the quantities of drugs found were insufficient to raise the presumption of trafficking under section 37(da):

Drug

Found in premises

Minimum Quantity under section 37(da)

Morphine

86.3 grammes

100 grammes

Chandu

550.8 grammes

1000 grammes

Chandu dross

121.6 grammes

1000 grammes

It was this fact that led to the amendment of the alleged offence. I pause here to observe that there is no change in the quantities found by the police and at the trial. This fact was known to the prosecution throughout and certainly to the Public Prosecutor when he signed the consent on November 25, 1976. The evidence did not disclose any fact of trafficking as defined in section 2 other than that of concealment. As the evidence stood it was insufficient to support a charge under section 39B(1)(a).

Turning now to the amended charge. Packing drugs in small packets is preparatory to trafficking within the meaning of section 39B(1)(c) but there was no evidence that the accused packed these drugs or that she had anything to do with them.

The drugs were certainly concealed under the kitchen at TBG 1306 Jalan Harper. Who concealed the drugs there? I found as a fact that the accused did not.

Solicitors: Radzi bin Tan Sri Sheikh Ahmad.

Abdul Hamid v PP [1956] MLJ 231:

[1956] 1 MLJ 231

ABDUL HAMID v PUBLIC PROSECUTOR

ACRJ SEREMBAN

SMITH J

CRIMINAL APPEAL NO 11 OF 1956

18 August 1956

Prevention of Corruption Ordinance, 1950, ss 3 & 12 — What amounts to an offence under s 3 of the Ordinance — Distinction between “consent” and “sanction” to prosecute — “Rights and powers” in s 376(iii) of the Criminal Procedure Code (Cap 6) — Scope of

Summary trial — Evidence of similar facts — Same transaction — Finding of ‘guilty’ whether to be formally recorded

In this case the learned Judge held that to establish an offence under section 3 of the Prevention of Corruption Ordinance, 1950, it is not necessary to show that the favour sought was within the power of the accused, but the favour shown must then have been within the power of the accused’s principal.

There is an essential difference between a sanction and a consent. A prosecution can be sanctioned without any deep consideration of the particular case: full consideration is required for consent since “consent” is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side. A sanction is therefore no evidence of consent.

The very general words “rights and powers” appearing in section 376(iii) of the Criminal Procedure Code are sufficient to permit a Deputy Public Prosecutor to consent to a prosecution under the Prevention of Corruption Ordinance.

Where there are other offences of the same kind which are all part of one and the same transaction evidence thereof is properly admissible.

There is no requirement in section 173(m)(2) of the Criminal Procedure Code that the finding of “Guilty” shall be formally recorded unless the accused pleads guilty. It is sufficient if the record shews clearly that the Court did find the accused guilty.

Cases referred to

R v Metz 11 Cr App R 164

Hiralal Badlo v R (1950) MLJ 96

Raju v R (1953) MLJ 21

R v Rearden 4 F & F 76; 176 ER 473

MAGISTRATE’S CRIMINAL APPEAL

Edgar Joseph (Jr) for the appellant.

LA Massie (Federal Counsel) for the respondent.

SMITH J

The essential facts of this case were as follows.

The complainant applied for a post in the Home Guard. Hearing nothing he asked the accused about his application, the accused being at the time an Assistant Home Guard Officer and in charge of the Home Guard in Kuala Pilah. The complainant asked the accused whether there was a vacancy for a Permanent Staff Instructor. The accused told the complainant to write out an application for the post which the complainant did. The complainant handed the application to the accused who said that the complainant must pay him $100 or he would not recommend him. The complainant, who at the time had only $40, gave the $40 to the accused who said that the complainant was not to worry and that he would get the post. This was on 15th February 1956. On 23rd February the accused sought out the complainant and asked if the complainant had the balance of $60. The complainant had only $20 which the accused took. On 28th February the complainant approached the accused asking if his appointment had been approved. The accused asked for the balance of $40. The complainant gave accused the balance of $40. The accused had no authority to recruit personnel into the Home Guard.

The accused was tried upon the following charge which relates to the final payment of $40:—

That you on the 28th day of February, 1956, at Kuala Pilah in the State of Negri Sembilan being an agent of the Government of the Federation of Malaya namely an Assistant State Home Guard Officer corruptly accepted the sum of $40 from Samsudin bin Haji Salam as a reward for doing an act in relation to your principal’s affairs, namely for the purpose of recruiting the said Samsudin into the Home Guard as a Sergeant in the Home Guard, and that you have thereby committed an offence contrary to and punishable under Section 3 of the Prevention of Corruption Ordinance, 1950.

It was submitted first that there had not been a consent to the prosecution as required by section 12 of the Prevention of Corruption Ordinance, 1950 (hereinafter called ‘the Ordinance’) which reads:—

“12. A prosecution under this Ordinance shall not be instituted except by or with the consent of the Public Prosecutor.”

It was objected that Exhibit P1 was not signed by the Public Prosecutor personally and was a sanction under the Criminal Procedure Code and therefore not a consent. Exhibit P1 reads as follows:—

1956 1 MLJ 231 at 232

“The Officer-in-Charge,

Criminal Investigation,

Negri Sembilan,

Seremban.

SANCTION TO PROSECUTE UNDER SECTION 129

OF THE CRIMINAL PROCEDURE CODE (CAP. 6)

In exercise of the powers conferred upon me by section 129 and section 376(iii) of the Criminal Procedure Code, I, Leslie Alexander Massie, Deputy Public Prosecutor for the State of Negri Sembilan do hereby sanction the prosecution of Abdul Hamid bin Mohd. for an offence punishable under section 3(a) of the Prevention of Corruption Ordinance No. 5 of 1950 alleged to have been committed by him at Kuala Pilah on or about the 28th day of February 1956.

Dated this 26th day of April 1956.

sd. L. A. Massie
Deputy Public Prosecutor,
Negri Sembilan & Malacca.”

I do not consider that consent must be given personally by the Public Prosecutor. In my opinion the very general words “rights and powers” appearing in section 376(iii) of the Criminal Procedure Code (F.M.S. Cap. 6) are sufficient to permit a Deputy Public Prosecutor to consent to a prosecution under the Ordinance.

There was more substance in the argument that no consent had been given. The learned Deputy Public Prosecutor argued that section 12 of the Ordinance did not stipulate a particular form which the consent should take and that a sanction implied consent. I agree with the first argument but respect fully disagree with the second.

There is an essential difference to my mind between a sanction and a consent. A prosecution can be sanctioned without any deep consideration of the particular case: full consideration is required for consent since “‘Consent’ is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side” (Stroud 3rd Edition vol. I page 582). The sanction was therefore no evidence of consent. However I satisfied myself from evidence given by the learned Deputy Public Prosecutor that he had in fact fully applied his mind to the particular case and had consented before signing Ex. P1 (R v Metz 11 Cr App R 164, followed).

Secondly it was argued that since the accused had no power himself to recruit personnel for the Home Guard he had committed no offence under the Ordinance, applying the principles of Hiralal Badlo v R (1950) MLJ 96. In that case a soldier was offered an inducement to release a person who had been illegally arrested: it was held that no offence was disclosed since the favour sought was “not in relation to the affairs” of the principal since the arrest had been made outside the premises of the principal and in an area where the soldier had no power to make an arrest.

In this case it is clearly the affair of the Federal Government to recruit personnel for the Home Guard. Whether the accused had the power to recruit or not is immaterial: the question is for what purpose did the complainant give the money, was that purpose in relation to the affairs of the accused’s principal and did the accused receive the money knowing the intention with which it was given by the complainant. I respectfully agree with the learned President where he says:—

“The Ordinance does not say anything about the act being within the competence of the agent. If it did, no one, or at any event very few, could be prosecuted. It is quite obvious that a P.C. who releases a prisoner in return for a bribe is not competent to release that person. A Magistrate who takes a bribe and acquits a person would be competent, but it would be absurd to argue that the former could not be prosecuted, and the latter could.”

Thirdly it was strongly argued for the appellant that evidence of similar facts prejudicial to the accused had been admitted without reasonable cause and that no specific reason had been given for leading evidence thereon contrary to the principles enunciated in Raju’s (1953) MLJ 21 case.

I cannot agree that the evidence of the earlier instalments of the bribe were admitted without reasonable cause. As the learned President has noted in his Grounds of Judgment the three incidents really form one whole: the last incident, the subject of the charge, cannot be understood without reference to the earlier incidents. Where there are other offences of the same kind which are all part of one and the same transaction evidence thereof is properly admissible (see R v Rearden 4 F & F 76; 176 ER 473).

From the record it does not appear that before evidence of the earlier incidents was led the prosecution informed the Court for what purpose that evidence was being led. It is highly desirable that this should be done and, when not done, may put the accused, particularly when undefended, in great difficulties. In this particular case the accused was represented. The record reveals no objection to the evidence being led nor to any submission thereon at the close of the prosecution case. There is no statutory requirement that the purpose for which the evidence of this kind is led should be stated: it is a sound matter of practice. In this case I do not consider that the appellant was in any way prejudiced by the failure to state the purpose: it must have been self-evident. I am satisfied that here there was no omission in the proceedings

1956 1 MLJ 231 at 233

which has occasioned a failure of justice. (See section 422 Criminal Procedure Code).

The remaining points in this well-argued appeal may be disposed of shortly. It was submitted that the conviction was bad since the learned President had not recorded a formal finding of ‘Guilty’ but proceeded straightaway to conviction. Section 173(m)(2) reads as follows:—

“If the Court finds the accused guilty or if a plea of guilty has been recorded and accepted the Court shall pass sentence according to law.”

There is no requirement that the finding of ‘Guilty’ shall be formally recorded unless the accused pleads guilty. It is sufficient if the record shews clearly that the Court did find the accused guilty. In this case before convicting and sentencing the appellant the learned President delivered a long judgment in open Court which made that fact abundantly clear.

Several points were taken with reference to certain evidence which I consider the learned President admitted and weighed correctly.

I do not consider the sentence in any way excessive.

The appeal against conviction and sentence is dismissed.

Appeal dismissed.

Solicitors: Joseph & Son.

Tarmizi bin Yacob & Anor v Public Prosecutor and another appeal FEDERAL COURT (PUTRAJAYA) ARIFIN ZAKARIA CJ (MALAYA), RICHARD MALANJUM CJ (SABAH AND SARAWAK) AND JAMES FOONG FCJ CRIMINAL APPEAL NOS 05–37 OF 2004 (W) AND 05–38 OF 2004 (W) Federal Court:

[2011] 4 MLJ 1
Tarmizi bin Yacob & Anor v Public Prosecutor and another appeal
FEDERAL COURT (PUTRAJAYA)

ARIFIN ZAKARIA CJ (MALAYA), RICHARD MALANJUM CJ (SABAH AND SARAWAK) AND JAMES FOONG FCJ

CRIMINAL APPEAL NOS 05–37 OF 2004 (W) AND 05–38 OF 2004 (W)

27 July 2010
Criminal Procedure — Prosecution — Consent of public prosecutor — Charge amended from s 39B(1)(a) to s 39B(1)(c) of the Dangerous Drugs Act 1952 — Amendment made by deputy public prosecutor at trial — Whether trial a nullity — Whether informer should have been called to testify — Whether appellants acted together with common intention in preparing sale of cannabis

The appellants in both the appeals herein were convicted under s 39B(1)(c) of the Dangerous Drugs Act 1952 (‘DDA’) and sentenced to death. Their appeal to the Federal Court was against the dismissal of their respective appeals to the Court of Appeal against conviction and sentence. Initially both appellants were charged under s 39B(1)(a) of the DDA but at the end of the prosecution’s case the deputy public prosecutor amended the charge to one under s 39B(1)(c), to wit, that they, in furtherance of a common intention, carried out an act preparatory to or for the purpose of trafficking in 2,996.4g cannabis.

The prosecution’s narration of the events was that a chief inspector of police (PW10), posing as a drug buyer, was introduced by his informer (‘Mud’) to the second appellant to discuss the purchase of cannabis. At the appointed time and place for the sale and purchase to take place PW10 met with both appellants. While PW10 and the second appellant waited, the first appellant went to get the drugs and returned in about 20 minutes carrying a bag from which the first appellant took out and showed the cannabis to PW10. PW10 signalled the police party that lay in ambush observing the proceedings. The appellants fled on seeing the police approaching; the first appellant throwing away the bag he was carrying as he fled. Both appellants were apprehended by the police after a brief struggle. In calling for their defence the trial court found as a fact that both appellants had a common intention in acting together to ensure the sale of the cannabis and that they had knowledge of the drugs as inferred from their attempts to resist arrest and escape the police party and the act of the first appellant in throwing away the bag containing the drugs. Their defence failed to cast any reasonable doubt on the prosecution’s case. In the Federal Court the appellants submitted that (i) the trial was a nullity because the public prosecutor had not consented to the charge being amended (ii) the prosecution ought to have called the informer ‘Mud’ to testify and/or offered him to the defence (iii) as the second appellant only negotiated the sale of the

4 MLJ 1 at 2

cannabis with PW10 and was never in possession of the drugs he was not involved in trafficking and (iv) as the first appellant did not participate in the negotiations or in the preparatory act but only had custody and control of the cannabis he should be found guilty of only possession and not trafficking.The prosecution replied that (i) consent to the amended charge was superfluous as the prosecution was conducted by a deputy public prosecutor (ii) Mud was not an agent provocateur but only an informer whose identity was protected by s 40 of the DDA. Mud merely introduced the second appellant to PW10 and did nothing else and (iii) the appellants acted together, with a common intention, to sell the cannabis to PW10.

Held, dismissing the appeals and affirming the appellants’ conviction and sentence:

  • (1)
    Consent of the public prosecutor to the amended charge was superfluous as the prosecution was conducted by the deputy public prosecutor in which case the consent of the public prosecutor was implicit in his actions and no further written consent of the public prosecutor was required:Garmaz s/o Pakhar & Anor v Public Prosecutor [1995] 3 SLR 701 followed. Public Prosecutor v Lee Chwee Kiok [1979] 1 MLJ 45 not followed (see paras 35 & 33).
  • (2)
    There was no necessity for the evidence of Mud in the narrative of the prosecution’s case. It was not disputed that the only role Mud played was to introduce PW10 to the second appellant. Just because Mud was known to the second appellant did not make him an agent provocateur (see para 43).
  • (3)
    In this case the trafficking was the sale of cannabis or the purchase of it by PW10. What transpired on the night of 5 April 1996 was the final chapter in the preparation of the trafficking of the drugs which constituted the supply and delivery of 3kg of the cannabis by the first appellant for the purpose of both the appellants jointly handing it over to PW10 in exchange for payment as earlier agreed. There was common intention to ensure the sale of the cannabis to PW10 (see paras 48 & 49).
  • (4)
    To constitute actual delivery it was not necessary that the agreed price had to be paid upon or before the physical delivery of the drugs. Here, the transaction was completed when the appellants produced the cannabis to PW10 and were only waiting for payment (see para 50).
  • (5)
    There was no misdirection in the evaluation of the evidence adduced or in the standard of proof applied by the trial judge in coming to his decision. Overwhelming evidence was adduced showing the roles played by the appellants to make the cannabis available to PW10 for purchase. The very act of each of them attempting to flee from the scene to avoid

    4 MLJ 1 at 3

    arrest by the police was a clear indication both of them knew what they were dealing in with PW10 (see paras 51 & 52).

Perayu-perayu di dalam kedua-dua rayuan telah disabitkan di bawah s 39B(1)(c) Akta Dadah Berbahaya 1952 (‘ADB’) dan telah dihukum mati. Rayuan mereka kepada Mahkamah Persekutuan adalah terhadap penolakan rayuan mereka masing-masing kepada Mahkamah Rayuan terhadap sabitan dan hukuman. Pada awalnya, kedua-dua perayu telah dituduh di bawah s 39B(1)(a) ADB tetapi pada akhir kes pihak pendakwaan timbalan pendakwa raya telah meminda tuduhan kepada satu yang tertakluk di bawah s 39B(1)(c), iaitu, bahawa mereka, sebagai lanjutan niat bersama, telah melakukan tindakan persediaan kepada atau bagi tujuan pengedaran 2,996.4g kanabis. Penceritaan kejadian pihak pendakwaan adalah bahawa ketua penyiasat polis (‘PW10’), menyamar sebagai pembeli dadah, telah diperkenalkan oleh pemberi maklumat (‘Mud’) kepada perayu kedua untuk berbincang tentang pembelian kanabis. Pada masa dan tempat yang ditetapkan bagi jual beli tersebut, PW10 bertemu dengan kedua-dua perayu. Sementara PW10 dan perayu kedua sedang menunggu, perayu pertama pergi mendapatkan dadah dan pulang selepas 20 minit membawa beg di mana perayu mengeluarkan dan menunjukkan kanabis kepada PW10. PW10 memberi isyarat kepada pihak polis yang sedang berselindung di dalam belukar dan memerhatikan prosiding tersebut. Perayu-perayu terus melarikan diri apabila melihat kedatangan polis; perayu pertama membuang beg yang dibawanya semasa dia melarikan diri. Kedua-dua perayu telah ditangkap oleh polis selepas pergelutan singkat. Dalam memanggil pembelaan mereka, mahkamah perbicaraan mendapati adalah fakta bahawa kedua-kedua perayu mempunyai niat bersama untuk bertindak bersesama untuk memastikan jualan kanabis dan bahawa mereka mempunyai pengetahuan tentang dadah tersebut melihatkan kepada percubaan mereka untuk mengelakkan diri daripada ditahan dan melarikan diri daripada pihak polis dan tindakan perayu pertama membuang beg yang mengandungi dadah tersebut. Pembelaan mereka gagal untuk meletakkan sebarang keraguan berpatutan ke atas kes pendakwaan.

Dalam Mahkamah Persekutuan, perayu-perayu berhujah bahawa (i) perbicaraan adalah terbatal oleh kerana pendakwa raya tidak memberi kebenaran terhadap tuduhan yang dipinda; (ii) pihak pendakwaan sepatutnya memanggil pemberi maklumat ‘Mud’ untuk memberi keterangan dan/atau menawarkannya kepada pembelaan; (iii) memandangkan perayu kedua hanya berunding tentang penjualan kanabis dengan PW10 dan tidak pernah dalam milikan dadah tersebut, dia tidak terbabit dalam pengedaran; dan (iv) memandangkan perayu pertama tidak terlibat dalam perundingan atau tindakan persediaan tetapi hanya mempunyai jagaan dan kawalan kanabis tersebut, dia patut didapati bersalah hanya untuk milikan dan bukan untuk pengedaran. Pihak pendakwaan membalas bahawa (i) kebenaran kepada tuduhan yang dipinda tidak diperlukan memandangkan pendakwaan telah

4 MLJ 1 at 4

dilakukan oleh timbalan pendakwa raya (ii) Mud bukanlah ejen perangkap tetapi hanya pemberi maklumat yang mana identitinya dilindungi oleh s 40ADB. Mud sekadar memperkenalkan perayu kedua kepada PW10 dan tidak lebih dari itu; dan (iii) perayu-perayu bertindak bersama-sama, dengan niat bersama untuk menjual kanabis kepada PW10.

Diputuskan, menolak rayuan dan mengesahkan sabitan dan hukuman perayu-perayu:

  • (1)
    Kebenaran pendakwa raya untuk tuduhan yang dipinda adalah tidak perlu memandangkan pendakwaan telah dilakukan oleh timbalan pendakwa raya di mana kebenaran pendakwa raya adalah tersirat daripada tindakannya dan kebenaran bertulis selanjutnya oleh pendakwa raya adalah tidak perlu: Garmaz s/o Pakhar & Anor v Public Prosecutor [1995] 3 SLR 701 diikut; Public Prosecutor v Lee Chwee Kiok [1979] 1 MLJ 45 tidak diikut (lihat perenggan 35 & 33).
  • (2)
    Keterangan Mud adalah tidak perlu di dalam penceritaan kes pihak pendakwaan. Tidak dapat dipertikaikan bahawa peranan yang dimainkan oleh Mud hanyalah untuk memperkenalkan PW10 kepada perayu kedua. Hanya kerana Mud dikenali oleh perayu kedua tidak bermakna dia adalah ejen perangkap (lihat perenggan 43).
  • (3)
    Dalam kes ini pengedaran tersebut adalah penjualan kanabis atau pembeliannya oleh PW10. Apa yang berlaku pada malam 5 April 1996 adalah bab terakhir dalam persediaan untuk pengedaran dadah yang mana membawa kepada bekalan dan penyerahan 3kg kanabis oleh perayu pertama bagi tujuan untuk diberikan kepada PW10 oleh kedua-dua perayu sebagai ganti untuk pembayaran yang dipersetujui sebelum itu. Terdapat niat bersama untuk memastikan penjualan kanabis kepada PW10(lihat perenggan 48 & 49).
  • (4)
    Untuk membentuk penyerahan sebenar, adalah tidak perlu bahawa harga yang dipersetujui hendaklah dibayar apabila atau sebelum penyerahan fizikal dadah tersebut. Di sini, transaksi telah disempurnakan apabila perayu-perayu menyediakan kanabis kepada PW10 dan hanya menunggu untuk bayaran (lihat perenggan 50).
  • (5)
    Tidak terdapat salah arah dalam penilaian keterangan yang dikemukakan atau standard pembuktian yang digunakan oleh hakim bicara dalam membuat keputusannya. Keterangan kukuh yang dikemukakan menunjukkan peranan yang dimainkan oleh perayu-perayu untuk menyediakan kanabis untuk pembelian oleh PW10. Tindakan setiap daripada mereka yang cuba untuk melarikan diri daripada tempat kejadian untuk mengelakkan diri daripada ditahan oleh polis adalah petunjuk yang jelas bahawa kedua-duanya tahu akan urusniaga mereka dengan PW10 (lihat perenggan 51 & 52).
4 MLJ 1 at 5
Notes

For cases on consent of Public Prosecutor to prosecute, see 5(2) Mallal’s Digest (4th Ed, 2010 Reissue) paras 3093–3095.

Cases referred to

Garmaz s/o Pakhar & Anor v PP [1995] 3 SLR 701, HC (refd)

Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, CA (refd)

Lee Lee Chong v PP [1998] 4 MLJ 697, CA (refd)

Pendakwa Raya v Mansor bin Mohd Rashid & Anor [1996] 3 MLJ 560, FC (refd)

PP v Lee Chwee Kiok [1979] 1 MLJ 45 (refd)

PP v Sa’ari Jusoh [2007] 2 CLJ 197, FC (refd)

Ti Chuee Hiang v PP [1995] 2 MLJ 433, SC (refd)

Legislation referred to

Dangerous Drugs Act 1952 ss 2, 39B(1)(a), (1)(c), 39B(2), 40A

Penal Code s 34

Appeal From: Criminal Appeal Nos W–05–53 of 1997 and W–05–54 of 1997 (Court of Appeal, Putrajaya).
Gurbachan Singh (Ratnam with him) (Bachan & Kartar) for the appellants.
Ahmad Bache (Deputy Public Prosecutor, Attorney General’s Chambers) for the respondent.
Jaya Prakash watching brief for the Indonesian Consulate.

Richard Malanjum FCJ (delivering judgment of the court)
INTRODUCTION

[1] There are two appeals before us heard together. In both the appeals the respective appellants were convicted and sentenced to death on the amended charge under s 39B(1)(c) of the Dangerous Drugs Act 1952 (‘the Act’) read with s 34 of the Penal Code and punishable under s 39B(2) of the Act by the High Court Kuala Lumpur on 5 August 1997. Their respective appeals to the Court of Appeal were dismissed on 2 December 2004. They now appeal to this court on 15 grounds of appeal.

[2] Initially both the appellants were charged under s 39B(1)(a) of the Act read with s 34 of the same Code and punishable under s 39B(2) of the Act. However, at the end of the case for the prosecution the learned deputy public prosecutor amended the charge to one of s 39B(1)(c) of the Act.

[3] In this judgment the appellant in the first appeal is described as the first appellant and the appellant in the second appeal as the second appellant and

4 MLJ 1 at 6

together as the appellants.

FACTUAL BACKGROUNDS

[4] The amended charge preferred against the appellants in the High Court reads:

Bahawa kamu bersama-sama pada 5 April 1996, lebih kurang 9.45 malam, di Jalan Raja Alang, Kampung Baru, Kuala Lumpur, Wilayah Persekutuan, dalam mencapai niat bersama, kamu telah di pihak kamu melakukan satu perbuatan persediaan untuk mengedar dadah berbahaya, iaitu 2996.4 gram cannabis, suatu kesalahan di bawah seksyen 39B(1)(c)Akta Dadah Berbahaya 1952 (Disemak 1980) dibaca bersama dengan seksyen 34 Kanun Keseksaan dan boleh dihukum di bawah seksyen 39B(2)Akta Dadah Berbahaya 1952.

[5] It is the case for the prosecution that on 4 April 1996 at around 5pm. Chief Inspector Amir Hamzah bin Hanudin (‘PW10’) from the Unit Risikan Jenayah Ibu Pejabat Bukit Aman, acting as a drug buyer, was introduced by his source a person known as Mud to Agam, the second appellant, an Indonesian, at the Restoran Hashimah Paya Jaras, Sungai Buluh.

[6] After Mud had introduced PW10 to the second appellant he asked Mud to leave. PW10 then began discussion with the second appellant. PW10 informed the second appellant that he wished to buy 10 kilo of drugs ‘ganja’ (‘cannabis’). The second appellant agreed to supply at the price of RM1,700 per kilo. PW10 did not agree on the price. Further negotiation took place on the price and it was finally agreed at RM1,600 per kilo. The second appellant then told PW10 that the cannabis was at Kampung Baru, Kuala Lumpur in the area of Jalan Raja Alang and could only be collected in the evening or at night.

[7] At about 7pm on the same evening the second appellant invited PW10 to come with him to Kampung Baru to collect the cannabis. PW10 drove his car, a red GTO Mitsubishi with registration No WDX 983. The second appellant sat on the passenger seat.

[8] On arrival at the place the second appellant went out for 15–20 minutes but only to come back to say that the cannabis was not yet available. The second appellant then told PW10 they were to return to Paya Jaras and on the way back the second appellant informed PW10 that the cannabis could not be obtained that evening as it was not safe to do so. The second appellant then said to PW10 that he could get someone to deliver the cannabis at Paya Jaras with an additional payment of RM300. PW10 disagreed and advised the second appellant that if there was any further development he was to call him on his

4 MLJ 1 at 7

mobile phone. In reply the second appellant asked PW10 to come to Kampung Baru at the same location around 3pm the next day.[9] At around 11.30am the next day PW10 went to the Operation Room of the Narcotics Department Task Force of the Bukit Aman Police Headquarters at Cheras to brief the members of the task force (‘the police’) on the pending transaction at Jalan Raja Alang Kampung Baru in which he would pose as a buyer of the cannabis.

[10] It was therefore agreed during the briefing:

  • (a)
    that the police would focus on the agreed location;
  • (b)
    that PW10 would used the same car; and
  • (c)
    that the police would move to ambush only after PW10 had given the signal by opening the boot of his car.

[11] At around 7.50pm on 5 April 1996 the second appellant called PW10 on his mobile phone. The first four calls of the same number PW10 did not answer. It was only the fifth call that he answered and it was the second appellant.

[12] Over the phone the second appellant told PW10 that the cannabis was available and that PW10 was to come to Jalan Raja Alang in front of Yuli Clinic at around 9pm. PW10 agreed.

[13] PW10 then informed the police who were with him at the Golf Club PDRM of the agreed location and emphasised to them that the seller would be entering his car.

[14] PW10 arrived at the designated location at about 9.10pm and knew that the police had also arrived due to the presence of one member in short pants near the public telephone booth. PW10 parked his car under a street light in order to have clear sight of what might happen.

[15] At about 9.20pm the second appellant arrived with another person introduced to PW10 as Tarmizi, the first appellant. PW10 asked both of them to enter his car. The first appellant was seated on the front passenger seat while the second appellant was at the back seat. The first appellant proceeded to inform PW10 that he only had 3kg of the cannabis. PW10 agreed to buy and the first appellant asked for payment.

[16] When the first appellant asked for the money PW10 showed him and said that he would only pay upon seeing the cannabis. The first appellant

4 MLJ 1 at 8

therefore went out of the car walking to the rear of the car towards a corner not far from it. PW10 then asked the second appellant to come to the front seat.[17] While waiting for the first appellant PW10 was informed by the second appellant that only 3kg could be obtained for the transaction but he would arrange again next time.

[18] After about 15–20 minutes the first appellant came back. PW10 asked the second appellant to come out with him and moved to the rear of the car. The three met at the rear of the car. The first appellant told PW10 he had the cannabis inside the bag he was carrying. The first appellant brought it in front of PW10 and the second appellant. From inside the bag the first appellant proceeded to take out a compact bundle wrapped with transparent plastics. PW10 smelt it, looked at it and pressed it before suspecting it was cannabis.

[19] The first appellant and second appellant asked PW10 to be quick. PW10 went to get the money inside the car but at the same time pulling the lever to open the boot to signal the police to act. At that time the cannabis was still with the first appellant. When PW10 was about to return to the rear of the car he saw the police heading for the first appellant and second appellant. PW10 went back into his car, turned on the engine and sped off.

[20] The transaction between PW10 and the appellants were witnessed by Chief Inspector Fisol (‘PW5’) who led the police that night and Det Cpl Rosdi (‘PW8’). They were about 10–15 meters away from the car of PW10. They identified the first appellant as a tall, well-built man wearing a red short–sleeve T–shirt and dark jeans while the second appellant was wearing a white T–shirt and dark pants.

[21] When the signal to act came on PW5 and PW8 ran to apprehend the first appellant and second appellant respectively. However after a struggle with PW5 the first appellant managed to free himself and threw away the bag he was carrying before running away. PW5 did not pursue him but stayed back to watch over the bag thrown by the first appellant. It was Inspector Zambri who made another attempt to apprehend the first appellant. He too failed. He was injured when he was pushed and fell down. The first appellant was then pursued by Det Cpl Khalid (‘PW7’) who managed to arrest him after firing two shots at him and injuring his right leg. Several members of the police also came to assist PW7. The second appellant also tried to escape but was caught by PW8 with the help of Det Sjn Abdullah.

[22] The first appellant and second appellant were both identified by PW7 and PW8 as the two persons with PW10 that night based on their clothing.

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[23] After the arrest of the first appellant and second appellant PW5 examined the content of the bag in their presence. PW5 found three compressed slabs suspected to be cannabis. PW6, the chemist, (Cheong Meow Kioon) did the analysis of the three slabs seized by the police. In his evidence PW6 said that he was given three compressed slabs of plant material wrapped with plastic sheet and secured with adhesive tape. He found the nett weight of each slab to be 1,018.4g, 991.4g and 986.6g respectively and giving the total weight of 2,996.4g. And after he had carried out the essential analysis on the three slabs by way of several established and accepted tests he found all the plant material of the three slabs to be cannabis as defined in s 2 of the Act.

[24] At the end of the case for the prosecution and after giving the maximum evaluation of the evidence adduced by the prosecution the learned High Court judge called for the defence of both the first appellant and second appellant. In doing so he made several findings of fact related to the issues raised by learned counsel for the first appellant and second appellant, inter alia:

  • (a)
    that the first appellant and second appellant were identified by PW10 and corroborated by PW5, PW7 and PW8. In addition both the first appellant and second appellant were arrested at the scene of the event;
  • (b)
    that the identification of the first appellant and second appellant was possible that night since the views of the prosecution’s witnesses who observed the event were not hampered. There were street lights and building lights in the vicinity;
  • (c)
    that PW6 concluded that the three slabs he analysed were cannabis as defined in s 2 of the Act;
  • (d)
    that the first appellant and second appellant had the common intention since they acted together in the preparation for the sale of the cannabis; and
  • (e)
    that the first appellant and second appellant had knowledge of the cannabis. The acts of the first appellant in struggling with the police to resist arrest, throwing the bag containing the cannabis and running away indicated such knowledge. And so was the second appellant who also struggled with the police in an attempt to escape.

[25] The learned trial High Court judge did not think that the failure by the Prosecution to tender as evidence the Police Report Dang Wangi No 7049/96 had jeopardised the prosecution’s case as he opined it was not a first information report. And neither did the learned trial High Court judge find any break in the chain of evidence adduced by the prosecution. The evidence of PW10 was also held to be admissible under s 40A of the Act.

4 MLJ 1 at 10

[26] In his unsworn statement the first appellant said that he happened to be at the scene of the event when he heard shouts of ‘Polis, polis, polis’. As he was an illegal immigrant and feared of being apprehended he ran off. In the process he dropped his watch and while looking for it he heard a gun shot and felt pain on his right thigh. He fainted.

[27] The learned trial High Court judge did not find the version of the first appellant as having cast any reasonable doubt in the prosecution’s case. His reasons were as follows:

  • (a)
    that the first appellant did not deny that he was at the scene of the event that night;
  • (b)
    that there was no reason why the police would go for the first appellant if indeed there were other people in the vicinity at that time. Further it was illogical for the first appellant to say that he ran away as he was an illegal immigrant yet gave his watch a priority when he stopped to look for it at the risk of being arrested; and
  • (c)
    that there was nothing in the statement of the first appellant to contradict the evidence of the prosecution that at that time he was carrying a bag containing the cannabis and which he threw away when the police wanted to arrest him.

[28] The second appellant also made an unsworn statement from the dock. He said that on 4 April 1996 he did meet Mud with another person introduced to him as Abang Jo at the restaurant in Paya Jaras. While at the restaurant Mud and Abang Jo agreed to meet at Jalan Raja Alang the next day. The second appellant went on to say that he met Mud on 5 April 1996 at Jalan Raja Alang. Mud told him that there was a man in a car who asked him to go in. The second appellant said that he followed but did not enter the car. Then suddenly he heard gun shots and the shouts of ‘Polis, polis’. He was subsequently arrested.

[29] Having heard the version of the second appellant the learned trial High Court judge did not find it having cast any reasonable doubt on the prosecution’s case for the following reasons:

  • (a)
    the second appellant did not deny that he was at the scene of the event that night;
  • (b)
    the second appellant did not say who was the man inside the car;
  • (c)
    the second appellant did not deny that he struggled with the police; and
  • (d)
    there was no reason or even suggested reason why the police would arrest the second appellant.
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[30] The learned trial High Court judge thus found both the first appellant and second appellant guilty of the charge preferred against them. He convicted and sentenced them accordingly.

[31] The Court of Appeal dismissed the respective appeals of the appellants. Briefly, the Court of Appeal held:

  • (a)
    that preparatory act for the purpose of trafficking drugs consists of several continuing acts;
  • (b)
    that the evidence of the chemist (‘PW6’) was credible. There was no necessity for him to show in detail what he did in his laboratory; and
  • (c)
    that the consent of the public prosecutor was implied in this case since the prosecution was conducted by a deputy public prosecutor.

[32] Before us learned counsel for the appellants only pursued grounds of Appeal Nos 13, 14 and 15. But he raised the issue of absence of consent of the public prosecutor for the amended charge.

ISSUE OF CONSENT ON THE AMENDED CHARGE

[33] Learned counsel for the appellants submitted that the trial of his clients was a nullity in view of the absence of consent to the amended charge preferred against them at the close of the case for the prosecution. He cited the case of Public Prosecutor v Lee Chwee Kiok [1979] 1 MLJ 45. In that case the original charge was under s 39B(1)(a) of the Act but on the day of trial the learned deputy public prosecutor amended it to s 39A(1)(c) of the same Act. Harun J (as he then was) said this at p 1:

It will be observed that although the original and amended charges are two distinct offences, they are both created by the same section of the law viz s 39B(1) and both carry the same penalty. Both require the consent of the public prosecutor under s 39B(3). The learned deputy public prosecutor argued that the amendment was technical and as the public prosecutor had given his consent on the original charge he was at liberty to amend the charges in the manner he did. I do not think so. It was held in Abdul Hamid v Public Prosecutor [1956] MLJ 231 that a consent to prosecute ‘is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side’. The public prosecutor has clearly exercised his mind in respect of the original charge when he gave his consent to prosecute some four months after the alleged offence. It was incumbent on him however to exercise the same degree of deliberation in respect of the amended charge. He has not done so … The facts of the case were fully before the public prosecutor at the time of giving his consent and he could have elected to proceed on the amended charge then. He did not do so. It would appear therefore that the public prosecutor

4 MLJ 1 at 12

has not given his consent to prosecute under the amended charge. That being so, the trial is a nullity on the authority of Lyn Hong Yap v Public Prosecutor [1956] MLJ 226.

[34] In his response the learned deputy submitted to us that consent would be superfluous in this case as the prosecution was conducted by a deputy public prosecutor. In its judgment the Court of Appeal held the same view.

[35] We agree with the view of the Court of Appeal and the submission of the learned deputy. The law was concisely and correctly summarised by Yong Pung How CJ (Singapore) in Garmaz s/o Pakhar & Anor v Public Prosecutor [1995] 3 SLR 701 when he said this at p 720:

The settled Malaysian position has been to consider a deputy public prosecutor as being capable of exercising all the rights and powers of the public prosecutor … It follows from this proposition that where prosecution is conducted by a DPP, the consent of the public prosecutor is implicit in his actions and no further written consent of the public prosecutor is required. Indeed, this was the holding of the Privy Council inPublic Prosecutor v Oie Hee Koi [1968] 1 MLJ 148. The ruling in Public Prosecutor v Oie Hee Koi [1968] 1 MLJ 148 was followed inPerumal v Public Prosecutor [1970] 2 MLJ 265, Public Prosecutor v Mohamed Halipah [1982] 1 MLJ 155, Public Prosecutor v Datuk Haji Dzulkifli [1982] 1 MLJ 340 and Public Prosecutor v Lim Boon Hock [1985] 2 MLJ 219.

[36] The learned Chief Justice also noted that in Public Prosecutor v Lee Chwee Kiok Harun J (as he then was) had not been referred to the Privy Council decision in Public Prosecutor v Oie Hee Koi.

[37] And in fact Yusof Abdul Rashid J in Public Prosecutor v Mohamed Halipah declined to follow the judgment of Harun J. He preferred to follow Public Prosecutor v Oie Hee Koi and said this at p 159:

It is to be noted that in the above case the prosecution was conducted before the High Court by a deputy public prosecutor who under the Criminal Procedure Code is vested with all the powers of the public prosecutor. On the authority of this case, it is clear that where the prosecution is conducted by a deputy public prosecutor the consent of the public prosecutor is implicit in his action and no written consent of the public prosecutor is required.

[38] In another case of Gnanasegaran a/l Pararajasingam v Public Prosecutor [1997] 3 MLJ 1 Mahadev Shankar JCA said this at pp 13–14:

If a deputy public prosecutor is present and goes on record when the accused is called upon to plead to an offence under this Act, no separate consent should be required (see Lyn Hong Yap v Public Prosecutor [1956] MLJ 226 and Perumal v Public Prosecutor [1970] 2 MLJ 265).

4 MLJ 1 at 13

[39] As such we find no merit in the contention of learned counsel for the appellants on the issue of absence of consent of the public prosecutor in respect of the amended charge.

GROUND 13 — THE FAILURE TO CALL AS A WITNESS THE INFORMER, MUD

[40] Next, learned counsel for the appellants argued that the learned judges of the Court of Appeal ‘erred and misdirected themselves in law and in fact in not holding that the informer (Mud) ought to have been called by the prosecution to unfold the narrative of the Prosecution’s case and/or offered him to the defence’. Learned counsel contended that PW10 was introduced by Mud to the second appellant and thus Mud must have been known to the second appellant. He cited the case of Ti Chuee Hiang v Public Prosecutor [1995] 2 MLJ 433 to support his contention.

[41] Learned deputy replied that Mud was only an informer hence his identity was protected by s 40 of the Act. He pointed out that Mud merely introduced the second appellant to PW10 and did nothing else. As such he was an Informer and not an agent provocateur. The learned deputy went on to say that Mud did less than the informer in Pendakwa Raya v Mansor bin Mohd Rashid & Anor [1996] 3 MLJ 560 yet the Federal Court in that case ruled that the informer was not an agent provocateur when it said this at p 578:

In Munusamy v Public Prosecutor [1987] 1 MLJ 492 (SC), Mohd Azmi SCJ (now FCJ) in delivering the judgment of the court, opined (at p 494) that ‘whether a person is an informer or has become an active agent provocateur would depend on the facts of each particular case’. In our instant case under appeal though Cholar introduced PW9 to the second respondent and was present when both transactions involving cannabis were struck, there was no evidence that he had done anything apart from being present. It appears obvious that his presence during the negotiation process and the transactions was merely to lend credence to PW9’s intention to purchase the cannabis in the minds of the respondents.

On the particular facts and circumstances of the instant case under appeal, we are of the view that Cholar was not an agent provocateur. But even if he was, there is more than sufficient credible evidence of the respondents’ involvement in the negotiation and agreement to sell to PW9 the 902g of cannabis subsequently brought out by the second respondent from room ‘K’ in the said house.

[42] In its judgment the Court of Appeal held that the role of Mud in this case was merely to introduce the second appellant to PW10 unlike the informer in Ti Chuee Hiang v Public Prosecutor who played an active role as an agent provocateur to arrange for the accused to meet the police and subsequently for his arrest.

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[43] We have perused the whole evidence adduced. We are of the view that there was no necessity for the evidence of Mud in the narrative of the prosecution’s case. In fact it was not disputed that the only role of Mud was to introduce PW10 to the second appellant. Just because Mud was known to the second appellant did not make him an agent provocateur. We therefore agree with the view of the Court of Appeal that the role of Mud could not be compared to that of the informer in Ti Chuee Hiang v Public Prosecutor ‘who had enticed the appellant to walk into a deliberate trap, which had been planned and organised by PPP Noorhashim and executed by a team of six police officers led by K/Inspector Mohd Amin bin Abd Raof (‘PW3′) who was then attached to Cawangan Anti Dadah, Bukit Aman, Kuala Lumpur, on the date and at the time and place referred to in the charge’.

[44] Accordingly, we also find no merit in this issue as raised by learned counsel for the appellants.

GROUNDS 14 AND 15 — CUSTODY, CONTROL AND POSSESSION OF THE CANNABIS

[45] Learned counsel for the appellants contended that the second appellant only did the negotiation with PW10 and he was not in possession of the cannabis. As such there was no question of him involved in the trafficking of the cannabis.

[46] In respect of the first appellant’s learned counsel argued that he did not participate in the negotiation or in the preparatory act. He only had the custody and control of the cannabis. As such the presumption of possession applied and thus he should only be guilty of possession and not for trafficking. The case of Public Prosecutor v Sa’ari Jusoh [2007] 2 CLJ 197 was cited in support.

[47] In response the learned deputy submitted that the appellants were charged with common intention for the offence. And that the evidence adduced must be considered as a whole including the overwhelming evidence that the appellants acted together to effect the sale of the cannabis to PW10.

[48] On this issue the Court of Appeal held that the preparatory act for the purpose of trafficking drugs covers a number of continuing acts. It begins from an agreement until the successful handing over of the drugs to another party. The acts in between carried out to achieve the purpose included such acts as getting the supply, wrapping, sending and meeting between the parties. In this case the trafficking was the sale of cannabis or the purchase of it by PW10. And what transpired on the night of 5 April 1996 along Jalan Raja Alang was the final chapter in the preparation of the trafficking of the drugs which

4 MLJ 1 at 15

constituted the supply and delivery of 3kg of the cannabis by the first appellant for the purpose of the first appellant and second appellant jointly handing it over to PW10 in exchange for the payment as earlier agreed.[49] The appellants were charged with common intention to ensure the sale of the cannabis to PW10. And such sale was proved by direct evidence without relying on any of the statutory presumptions in the Act. We are therefore in entire agreement with the view of the Court of Appeal in finding that the contention of learned counsel for the appellants has no merit.

[50] On the issue of delivery it is now a settled law that to constitute actual delivery it is not necessary that the agreed price must be paid upon or before the physical delivery of the drugs (see Wan Mazuki bin Wan Abdullah v Public Prosecutor Criminal Appeal No 05–56 of 2008 (T). As such the decision in Public Prosecutor v Sa’ari Jusoh should not be narrowly construed. And in this case the transaction was in fact completed since the appellants had produced the cannabis to PW10 and were only waiting for the payment when the police moved in to apprehend them.

[51] In respect of the complaint that there was misdirection in the evaluation of the evidence adduced and the standard of proof applied by the learned trial High Court judge before coming to his decision, we agree with the Court of Appeal that there was no such misdirection shown or apparent.

[52] While in essence the basic defence of the appellants was one of mere denial, there were overwhelming evidence adduced indicating the roles played by the first appellant and second appellant in order to make the cannabis available for PW10 to purchase. Indeed the very act of each of them in attempting to flee from the scene and avoiding arrest by the police was one clear indication that both knew what they were dealing in with PW10 (see Lee Lee Chong v Public Prosecutor [1998] 4 MLJ 697).

[53] As learned counsel for the appellants did not pursue the other grounds of appeal we need not have to deal with them. At any rate we are not persuaded that any of them could have made the difference to our conclusion.

[54] The respective appeals of the first appellant and second appellant are therefore dismissed. We affirmed their respective convictions and sentences imposed by the High Court and upheld by the Court of Appeal.

Appeals dismissed and appellant’s conviction and sentence affirmed.

LYN HONG YAP v PUBLIC PROSECUTOR CA KL MATHEW CJ, BROWN AG CJ (S) AND WILSON J FM CRIMINAL REFERENCE NO 2 OF 1953 2 December 1953 [1956] 1 MLJ 226

[1956] 1 MLJ 226
LYN HONG YAP v PUBLIC PROSECUTOR
CA KL

MATHEW CJ, BROWN AG CJ (S) AND WILSON J

FM CRIMINAL REFERENCE NO 2 OF 1953

2 December 1953
Prevention of Corruption Ordinance, 1950, s 12 — Criminal Procedure Code (Cap 6), s 422 — Consent of Public Prosecutor — Validity of consent — Whether want of consent curable — Practice where a consent or sanction is required

In this case the facts proved at the time relating to the question of consent were as follows: On June 13, 1952 the Police applied to the Magistrate at Kuala Kangsar for a summons to issue against the appellant in respect of an offence committed “on a day between 17th and 19th April 1952”. On June 19 the Magistrate made an order for the Summons to issue and it was issued on June 21. On July 1, the Dy. Public Prosecutor signed a document of consent under section 12 of the Prevention of Corruption Ordinance. The charge to which the appellant was called on to plead on July 3 and on which he was tried was that he had committed an offence under section 3(b) of the said Ordinance and punishable under section 3(c). Throughout the trial in the Sessions Court not a word was said by either of the two counsel who at different times represented the appellant as to the validity of the consent of the Public Prosecutor or as to any want of consent. The point was raised for the first time at the hearing of the second appeal and then in answer to a question of Thomson J. the Dy. Public Prosecutor informed the Court after going through his papers that his colleague in office who had signed the consent of July 1, 1952 had in fact given his consent to the institution of the proceedings and indeed had instructed them to be instituted on June 2, 1952, that was some eleven days before the application for process by the Police.

Thomson J. accepted this assurance and dismissed the appeal. The learned Judge held that the want of consent under section 12 of the Prevention of Corruption Ordinance is not an omission that can be cured by reason of section 422 of the Criminal Procedure Code.

The Court of Appeal agreed with the decision of Thomson J. and held that the consent of the Public Prosecutor in this case was not defective, and that the trial of the appellant was not a nullity.

The Court of Appeal further suggested that difficulties which might arise in cases where a consent or sanction is required, could be avoided if the practice were adopted on accompanying every application for a summons or a warrant of arrest with the consent or sanction in writing.

Cases referred to

R v Bates 6 Cr App R 153

R v Metz 11 Cr App R 164

Hori Ram Singh v R AIR 1939 PC 43 50

Gill v R AIR 1948 PC 128 133

Morarka v R AIR 1948 PC 82

Chong Tuck Loong v Public Prosecutor Perak Cr App No 73/1952 — Unreported

THOMSON J

The judgment of the Court below was as follows:

The appellant in this case appeared before the Sessions Court at Kuala Kangsar on 3rd July, 1952, charged with an offence in contravention of section 3 (b) of the Prevention of Corruption Ordinance, 1950. He claimed trial and was represented by Counsel. At the close of the case for the prosecution the learned President decided that there was no case to answer and acquitted and discharged him.

Against that order of acquittal and discharge the Public Prosecutor appealed and on 18th December, 1952, the appeal was allowed, the order of acquittal was set aside and the case was remitted to the Sessions Court to be further dealt with according to law. I am not concerned here with the matters that were at issue in that appeal.

On 22nd January, 1953, the case again came before the Sessions Court when the appellant was represented by a different Counsel. In the event, the appellant was convicted and fined $750 or nine months rigorous imprisonment in default of payment.

Against that conviction appellant appealed on a number of grounds the only ones of which I am concerned with here being certain grounds relating to the question of whether the consent of the Public Prosecutor given under section 12 of the Prevention of Corruption Ordinance was defective and whether therefore the Sessions Court was without jurisdiction and the trial was therefore a nullity.

The facts proved at the time relating to this question of consent are as follows.

On 13th June, 1952, the Police applied to the Magistrate at Kuala Kangsar for a summons to issue against the appellant in respect of an offence committed “on a day between 17th and 19th April, 1952”. On 19th June the Magistrate made an order for the summons to issue and it was issued on 21st June. On 1st July, the Deputy Public Prosecutor signed a document in the following terms:—

Consent under Section 12.

“Under the provisions of section 12 of the Prevention of Corruption Ordinance, 1950, I, Matthew Gilbert Neal, Deputy Public Prosecutor, Perak, hereby consent to the

1956 1 MLJ 226 at 227

prosecution of one LYN HONG YAP for an offence punishable under section 3(b) of the aforesaid Ordinance, alleged to have been committed at Liman, Kati, Kuala Kangsar, between 19th-20th April, 1952.Dated at Ipoh this 1st day of July, 1952.

(Sd.) M. G. Neal,
Deputy Public Prosecutor,
Perak.”

and the charge to which the appellant was called on to plead on 3rd July and on which he was tried was as follows:—

“That you on a day between 17th and 20th April, 1952 at 1.30 p.m. at No. 5 New Village, Liman Kati, in the district of Kuala Kangsar did corruptly agree to give a sum of $50 to an agent, namely, K. Retnasingam, Health Inspector, as an inducement to him to show favour to one Lee Kow in a matter in relation to the said K. Retnasingam’s principal affairs, namely, to grant the said Lee Kow a licence for Coffee and eating shop and that you have thereby committed an offence under Section 3(b) of Prevention of Corruption Ordinance No. 5 of 1950 and punishable under Section 3(c) of the same Ordinance.”

Throughout the trial in the Sessions Court not a word was said by either of the two Counsel who at different times represented the appellant as to the validity of the consent of the Public Prosecutor or as to any want of consent. The point was raised for the first time at the hearing of the second appeal and then in answer to a question by myself the Deputy Public Prosecutor who was appearing for the respondent informed me after going through his papers that his colleague in office who had signed the paper bearing the date 1st July, 1952, had in fact given his consent to the institution of the present proceedings and indeed had instructed them to be instituted on 2nd June, 1952, that is some 11 days before the application for process by the Police.

I accepted that assurance given from the Bar and having considered the other Grounds of Appeal and being of the opinion that it was abundantly clear on the evidence that the appellant had in fact committed the offence charged against him, I dismissed the appeal. I intimated, however, that if I were asked to do so I would give my certificate to allow the matter to be taken further.

The real question which arose on the appeal was not any question of what constitutes or does not constitute a valid consent by the Public Prosecutor but what course this Court should take when such a question is raised for the first time on appeal.

In my opinion the answer is to be found in an examination of the two English cases of Rex v Bates 6 Cr App R 153 and Rex v Metz 11 Cr App R 164.

In Bate’s case the appellant was convicted of an offence under the Explosives Substances Act, 1883, for the prosecution of which the consent of the Attorney-General was required. Although the point was not raised at the trial, and was indeed not raised by the appellant himself in the appeal, Counsel for the Crown stated from the Bar that he had ascertained that the consent of the Attorney-General was in fact not obtained. On that, the Court quashed the conviction on the ground that the absence of the consent of the Attorney-General took away the jurisdiction of the trial Court.

In Metz’s case the appellant had been convicted of an offence against the Trading with the Enemy Act, 1914, for the institution of a prosecution for which the consent of the Attorney-General was necessary. No evidence was given at the trial that such consent had been obtained but at the trial the point of want of consent was not taken. At the hearing of the appeal, Counsel for the Crown informed the Court from the Bar that the fiat of the Attorney-General, which apparently was in writing, had been produced at the Police Court and so came to the Court of trial (the Central Criminal Court) attached to the depositions. The appeal was dismissed. In dismissing it Lord Reading, observed that two points had been taken on behalf of the appellant and went on to say:—

“The first is that it is necessary that the consent of the Attorney-General should be given before a prosecution is instituted; under s. 1(4) of the Trading with the Enemy Act. It is not suggested that the prosecution was in fact instituted without the necessary consent, but it is said that there was no evidence of it at the trial. The point was not taken at the trial. As we now know, the consent was in fact proved at the police court. The document was in Court at the trial, but it was not formally proved. If the point had been taken at the trial the defect would have been immediately cured, so the point is a pure technicality. We do not think it possible for the point now to succeed in this Court when there was an opportunity for counsel to take it in the Court below if he desired.”

He went on to distinguish the case from that of Bates supra as follows:—

“Our attention has been called to the case of Bates, where the objection was taken that consent had not in fact been obtained, which is a totally different matter; it was there pointed out by Lord Alverstone that although the point had not been taken below it was necessary that there should be consent before the prosecution was instituted. No consent had been obtained, so the conviction was quashed.”

I was unable to find any distinction in principle between Metz’s case and the present case. In Metz’s case the Court accepted the assurance of counsel that the consent of the Attorney-General was in fact in existence and in the present case I accepted the assurance of Counsel that the consent of the Deputy Public Prosecutor (which, it is to be remembered, is not required to be in writing) was in fact in existence before the institution of the prosecution. In the circumstances, I did not feel it was necessary to examine the actual evidence on the point that was given at the trial. If Counsel for the appellant had wished to take the point he should have done so at the trial. If he had done so, it would have been open to the prosecution to ask for an adjournment to enable the Deputy Public

1956 1 MLJ 226 at 228

Prosecutor to appear in person when I have no doubt he would have made the same statement as he made at the hearing of the appeal. If an adjournment had not been granted and the point had succeeded the result would have been not an order of acquittal but an order dismissing the complaint and thus it would have been left open to the prosecution to institute further proceedings after a valid consent had been obtained. (See Hori Ram Singh v R AIR 1939 PC 43 50).I was fortified in this view by certain observations made by Lord Simonds in the case of Gill v R AIR 1948 PC 128 133. In that case their Lordships were concerned inter alia with the question of whether a sanction to a prosecution given under section 197 of the Indian Criminal Procedure Code was invalid by reason of the necessary facts not having been laid before the sanctioning authority. An inference had been drawn from certain circumstances that the necessary facts had been laid before the sanctioning authority and Lord Simonds observed:—

“It is an inference, which at this late stage of the proceedings cannot properly be challenged, that the same facts were before the sanctioning authority when the sanction was given. If it was desired to raise such a question, that should have been done at the earliest moment when the prosecution could have supported by evidence the inference which even without it can fairly be drawn.”

I would add that I do not think that what I have said is in any way inconsistent with the judgment of the Privy Council in the case of Morarka v R AIR 1948 PC 82. In that case the appellant had been convicted under an Indian statute relating to the control of cotton clothing which provided that no prosecution under it should be instituted without the previous sanction of the Provincial Government concerned, and the Court held that the sanction which had in fact been given was defective. The only material before the Court apparently consisted of the evidence given at the original trial and I fail to see that the decision has any bearing on the question at issue in the case of Rex v Metz 11 Cr App R 164 supra or in the present case.

In this connection, I have had occasion to consider my own judgment in the case of Chong Tuck Loong v Public Prosecutor Perak Cr App No 73/1952 — Unreported, in which I discussed this question of consent under the Prevention of Corruption Ordinance at some length. In that judgment I made the following observations:—

“… if that section (Section 12) is not complied with the Court has no jurisdiction to try offences under the Ordinance, and I do not think it can be said to be complied with unless it is clear either on the face of the proceedings or as a matter of reasonable inference that the Public Prosecutor (or, by reason of section 376 of the Criminal Procedure Code, the Solicitor-General or a duly appointed Deputy Public Prosecutor) has either taken an active part in the prosecution or has consented to the charges brought against the accused after applying his mind at the lowest to the facta probanda forming the material of these charges.”

In making these observations I was concerned with the particular facts of the case under appeal and my attention had not been invited to Metz’s case. On further consideration I have come to the conclusion that in making these observations I went too far and that they would more accurately state the law if the words, “either on the face of the proceedings or as a matter of reasonable inference” were omitted.

To avoid misunderstanding and to ensure a full examination of the question, I should say that in my opinion want of consent under section 12 of the Prevention of Corruption Ordinance is not an omission that can be cured by reason of section 422 of the Criminal Procedure Code. On that point to my mind the judgment of the Privy Council in the case of Morarka v R AIR 1948 PC 82, supra, is conclusive. It is true that in that case their Lordships were concerned with section 537 Of the Indian Code which does not contain the specific reference to sanctions which occurs in section 422 of our Code. It is to be noted, however, that until 1923 section 537 of the Indian Code did contain a reference to sanctions required under section 195 of that Code (our section 129) which was repealed in that year. An examination of the Indian decisions prior to 1923 (see the cases set out in the A.I.R. Commentary of the Indian Criminal Procedure Code at Vol. III pp. 2984-5) shows that the Indian Courts consistently held that the reference was only to sanctions required under the Indian section 195 and did not include sanctions under any other statutory provision.

MATHEW CJ

COURT OF APPEAL (Criminal Reference).

S. P. Seenivasagam for the appellant.

L. Talog Davies (Federal Counsel) for the respondent.

This is a Reference under section 34 of the Courts Ordinance. The point for our determination is:—

“Whether the consent of the Public Prosecutor in this case was defective and whether the trial of the appellant was thereby a nullity.”

We are in complete agreement with the very full and clear grounds of judgment delivered by Thomson J., and there is nothing that we can profitably add to what has been said therein. In consequence, we hold that the consent of the Public Prosecutor this case is not defective, and that the trial of the appellant was not a nullity.

We would suggest that difficulties of this kind, which might arise in cases where a consent or sanction is required, could be avoided if the practice were adopted of accompanying every application for a summons or a warrant of arrest with the consent or sanction in writing.

Order accordingly.
Solicitors: S Seenivasagam & Sons.