Monday, August 13, 2018

[164.08] PEMBELAAN "MISTAKE" MENGAMBIL BEG ATAU PEMILIKAN BEG ORANG LAIN DALAM KES PENGEDARAN DADAH


Pembelaan atau versi pembelaan menyatakan bahawa tertukar beg atau salah pada beg masih boleh diterima oleh Mahkamah dalam kes pengedaran dadah di Malaysia jika dirujuk beberapa kes lain dan bacaan maksud tersirat mahkamah kepada isu berkenaan.
Namun apa ditekankan ialah, ada test perlu dilakukan kepada pembelaan "mistake" tersebut samada ia benar-benar terdapat isu tertukar atau terambil beg (atau apa-apa muatan) yang milikan orang lain tanpa sedar.
Sila rujuk kes di bawah bagi test/ujian berkenaan.
Namun di dalam kes yang diputuskan (tidak terhad kes di bawah), pemilikan (ownership) bukan isu penting dan pembelaan baik kepada pengedaran dadah di bawah seksyen 39B Akta Dadah Berbahaya 1951 kerana beban bukti pendakwaan adalah untuk membuktikan penjagaan (possession) dan pengetahuan (knowledge) Tertuduh kepada dadah berkenaan.
Sekiranya elemen tersebut dibuktikan kepada Tertuduh, ownership tidak lagi penting kepada kes.
Isu non calling witness, kita dah sebut pada artikel sebelum ini. Sila rujuk artikel sebelum ini. Tetapi copy & paste penghakiman kes di bawah turut menyatakan secara ringkas tentang artikel kami sebelum ini mengenainya.
Kita sama-sama merujuk kepada kes terbaru mengenainya -
VANIA OSMAN VS. PP
Mahkamah Rayuan Malaysia
Rayuan Jenayah No: P-05(SH)-418-11/2016
Tarikh Keputusan: 06.08.2018
"[53] The final ground raised by counsel is that the failure of the prosecution to call or offer Derrick Randall had compromised its case and s. 114(g) of the Act can be invoked. It was submitted that Derrick Randall is the most material witness and the prosecution ought to have called him or offer him to the defence for the purpose of cross- examination. Counsel submitted that for the defence case, Derrick Randall is the trafficker because the said bag was checked in by him, the bag tag was in his name and the clothes in the bag belonged to him and fitted him. At the material time Derrick Randall was in the country and no reason was proffered why he could not be called. Counsel referred to Ghasem Hozouri Hassan v PR [2018] MYFC 13 and Nanda Kumar Kunyikanan & Anor [2011] 8 CLJ 406. Counsel argued that certainly it will make a difference because he could confirm that he checked in the bag, he was in possession of the bag and its contents including the drugs and that the appellant had no nexus with the drugs in the bag. Therefore, it was submitted that for the prosecution to prove its case beyond reasonable doubt,
the prosecution must rebut or negate the defence case. Thefailure to call Derrick Randall not only has acted unfairly but als failed to discharge the onus of proof. The appellant relied on the cases of Ooi Chee Seong & Anor v PP [2014] 3 MLJ 593 and R v Russell-Jones [1995] 3 ALL ER 239.
[54] The learned DPP had submitted that the non-calling of Derrick Randall in this case did not give rise to an adverse inference to the prosecution’ case. She referred to the case of Dwi Supriyatno Meo v PP & Another cases [2016] 1 LNS 242 that to call or not to call three persons to testify was the prerogative of the prosecution. The learned DPP submitted that SP9 who is the investigation officer in Derrick Randall’s case was called by the prosecution. His evidence is at pg. 86 to 88 AR Vol2. He said that Derrick Randall was arrested by customs officer. Therefore, if any information and confirmation with regard to the bag (P9) and other things that belonged to Derrick Randall is required the defence could cross-examine SP9 and obtain such information or confirmation. The non-calling of Derrick Randall therefore is nonissue.
[55] Further, it was submitted that the bag tag (P10) was clearly visible of which she had the opportunity to ascertain whether the bag belonged to her or not. In this case the appellant defence is that she had mistakenly taken the bag. The learned DPP relied on the case of Tan Khee Wan v Public Prosecutor [1995] 2 SLR 63 which held that
“The test of whether a mistake was made in good faith is
not whether the mistake was an easy one to make or whether a reasonable person could make the mistake. The mistake may be a natural one to make and it may be one which reasonable persons often make, Nevertheless, the defence is not made out, unless it is shown on a balance of probabilities that the appellant exercised due care and attention”
[56] We agreed with the learned DPP’s submission that the calling of witness or witnesses for the prosecution is the prerogative of the prosecution. In this case, the non-calling of Derrick Randall had been considered by the learned JC. At pg.19 of his grounds of judgment the learned JC held that-
“The defence raised that the adverse inference under
20 section 114 (g) of the Evidence Act 1950 ought to be invoked against the prosecution for their failure to call Derrick Randall. The issue to be determined at this stage of the close of prosecution case is one of possession. As alluded to earlier, possession and knowledge was deemed by reason of the 25 operation of section 37 (d) of the Act after the prosecution had successfully proven custody and control of the bag (P9). The issue of ownership of the bag does not therefore arise and is irrelevant in this context. Therefore, the failure to call Derrick Randall did not result in adverse inference arising against the prosecution nor did such failure result in a gap in the unfolding of the narrative of the prosecution case. From a consideration of the facts and authorities referred to, I find that the prosecution has succeeded in proving a prima facie case against the accused. I therefore called upon the accused to make her defence”.
[57] We agreed with the reasoning and finding of the learned JC. The learned JC held that the issue of ownership of P9 is irrelevant. The relevant issue is that the appellant had possession and knowledge of the said drug (See; Aida Dizon Garcia v PP [2015] 1 LNS 141; Ali Hosseinzadeh Bashir v PP [2015] 1 CLJ 918).
The learned JC had made his finding that the belated action of the appellant in only informing the authorities that the bag did not belong to her when the impugned drugs were discovered reflected a last gasp attempt to extricate herself from the predicament when she found herself in knowing fully well of the drugs. Based on the defence evidence, the learned JC held that the appellant had failed to rebut on the balance of probabilities the 25 statutory presumption of possession and knowledge under section 37 (d) of the Act. The appellant had further failed to raise
a reasonable doubt in the prosecution’s case of trafficking in dangerous drugs as defined under section 2 of the Act."
- Yang Arif Hakim Kamaludin Md Said
Ok!.. solat dan nak balik dulu.

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Dah baca sila bagi sepatah kata..

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