Abdullah Zawawi Bin Yusoff v.

Pendakwa Raya
[1993] 4 CLJ Edgar Joseph Jr. SCJ 1

ABDULLAH ZAWAWI BIN YUSOFF a just the head of the appellant but that of others
as well.
v.
[Appeal allowed. Conviction quashed. Appel-
PENDAKWA RAYA lant acquitted and discharged].

SUPREME COURT, KUALA LUMPUR [Bahasa Malaysia Translation of Headnote]

TAN SRI DATUK MOHD. JEMURI b
SERJAN CJ (BORNEO), DADAH BERBAHAYA: Mengedar dadah
berbahaya - Suami dan isteri dipertuduh bersama
TAN SRI DATUK EDGAR JOSEPH JR. SCJ,
- Isteri dibebaskan dan dilepaskan - Suami
DATUK MOHAMED DZAIDDIN BIN disabitkan dan dijatuhkan hukuman mati -
HJ. ABDULLAH SCJ Rayuan terhadap kesabitan - Dadah dijumpai
[CRIMINAL APPEAL NO. 05-10-90] dalam sebuah kotak di rumah perayu - Sama ada
2 AUGUST 1993 dadah ditempatkan untuk menganiayai perayu
c - Sama ada terdapat bukti yang cukup untuk
DANGEROUS DRUGS: Trafficking in danger- menyokong verdik bersalah.
ous drugs - Husband and wife jointly charged -
Wife acquitted and discharged - Husband con- Perayu dan isterinya dipertuduh bersama atas
victed and sentenced to death - Appeal against pengedaran dadah berbahaya iaitu 592.6 gm
conviction - Drugs recovered from box in ganja, suatu kesalahan yang melanggar
appellant’s house - Whether drugs were planted s. 39B(1)(a) Akta Dadah Berbahaya 1952 (Akta
to frame appellant - Whether there was suffi- tersebut). Di penghujung perbicaraan tersebut,
cient evidence to support a verdict of guilty. d
isteri perayu telah dibebaskan dan dilepaskan
sementara perayu telah disabitkan kesalahan
The appellant and his wife were jointly charged
dan dijatuhkan hukuman mati.
with trafficking in dangerous drugs, to wit,
592.6 gms. of cannabis, an offence in contraven- Dadah tersebut dijumpai oleh pihak polis hasil
tion of s. 39B(1)(a) of the Dangerous Drugs Act daripada maklumut yang diterima oleh mereka.
1952 (the Act). At the end of the trial, the Dadah tersebut dijumpai dalam sebuah kotak
e
appellant’s wife was acquitted and discharged perkakas dari dalam sebuah almari yang
but the appellant was convicted and sentenced berkunci, dan kuncinya dipegang oleh isteri
to death. perayu, dalam rumah perayu yang masih berada
dalam pembinaan.
The drugs were recovered as a result of the
police acting on a tip off. The drugs were found Persoalan yang berbangkit di dalam rayuan
in the appellant’s toolbox in a locked cupboard, oleh perayu terhadap kesabitannya ialah sama
the keys of which were with the appellant’s wife, f ada terdapat bukti yang cukup untuk menyokong
in the appellant’s house which was still under verdik bersalah.
construction.
Diputuskan:
The question that arose on the appellant’s ap- [1] Walaupun terdapat beberapa cebis bukti
peal against his conviction was whether there yang menunjukkan perayu adalah bersalah,
was sufficient evidence to support a verdict of tiada satu pun daripadanya yang cukup kukuh.
guilty. g Tidak boleh diperkatakan bahawa terdapat
bukti yang secukupnya untuk menyokong verdik
Held: bersalah dengan menimbangkan bahawa
[1] Though there were several strands of evi- terdapat lebih daripada satu cara di mana
dence pointing to the appellant’s guilt, not one keterangan yang dikemukakan oleh pihak
of them alone was of great moment. It could not pendakwa boleh dilihat.
be said that there was sufficient evidence to
support a verdict of guilty considering that h [2] Keterangan yang dikemukakan oleh pihak
there was more than one way in which the pendakwa meninggalkan banyak persoalan yang
evidence adduced by the prosecution might be tidak dijawab di mana keputusannya ialah bak
viewed. kata pepatah, topi tersebut bukan sahaja padan
dengan kepala perayu tetapi juga dengan yang
[2] The evidence led by the prosecution left too lain.
many questions unanswered with the result
that the proverbial cap might have fitted not i [Rayuan dibenarkan. Kesabitan dibatalkan.
Perayu dibebaskan dan dilepaskan].
 Current Law Journal
2 October 1993 [1993] 4 CLJ

Cases referred to: a Upon entering the house, with DPC Masdan
R v. Abbott [1955] 2 AER 899 (refd) Kahat and DPC Mohd Hashim, Inspector Mat
D.P.P. v. Brooks [1974] 2 AER 840 (dist) Yusoff noticed a male Malay later identified as
Gooi Loo Seng v. Public Prosecutor [1993] 3 CLJ
Mohammad bin Mohd. Amin, sitting in the
1 (refd)
lounge near a wall smoking “rokok daun”. He
Legislation referred to: also noticed four or five children having their
Dangerous Drugs Act 1952, ss. 2, 37(d), (g), (d)(vi), meal in the kitchen. All in the house were then
39B(1)(a) b required to and did assemble in the lounge.

For the appellant - Karpal Singh; M/s. Karpal Singh Inspector Mat Yusoff then conducted a search of
& Co. the house starting from the lounge but found
For the respondent - Idrus bin Harun, DDP nothing incriminating.

JUDGMENT In the course of that search, (which was con-

c ducted in the presence of the appellant), he had
Edgar Joseph Jr. SCJ: inspected an almeirah, a radio speaker, a radio
This appellant and his wife, Ma Kelthom bt. cassette player and another almeirah (marked
Idris, were jointly charged and tried in the High J, K, L and M, respectively, in the sketch plan)
Court at Kota Bharu upon a charge that they did to no useful purpose.
on their own behalves on the afternoon of 1
But then, Inspector Mat Yusoff came to another
February 1986, at an unnumbered house, at
almeirah (marked I in the sketch plan) which
Jalan Masjid, Kampong Melayu, Gua Musang, d
was locked. So he asked for the key from the
in the State of Kelantan, traffic in dangerous
appellant, who said that it was with his wife.
drugs, to wit, 592.6 gms of cannabis, and had
The appellant then called out to his wife who
therefore committed an offence in contraven-
was then outside the house drying clothes. As a
tion of s. 39B(1)(a) of the Dangerous Drugs Act
result, the wife went up the house and hurriedly
1952 (“the Act”).
went into the kitchen where she climbed the
At the conclusion of the trial, the wife was e lower shelf of the ‘para’ (a rack normally used for
acquitted and discharged but the appellant was keeping cooking utensils and related items).
convicted and sentenced to death and against She then proceeded to open a wooden box which
that conviction he had appealed. lay on the upper shelf and tried to take out from
it a yellow plastic bag. At this point, DPC Md.
The case against the appellant and his wife was Hashim (who was present throughout the search)
this: also climbed the lower shelf, and prevented her
On 2 January 1986, as a result of a tip off, f from taking out the plastic bag by holding her
alleging drug trafficking at an unnumbered right hand and instructing her to put the bag
dwelling house at Jalan Masjid, Gua Musang, back in the box, which she did. DPC Md. Hashim
(“the house”) at about 1.00 p.m., a police party then announced the discovery to Inspector Mat
which comprised Inspector Mat Yusoff Akop Yusoff by saying: “Barang ini dah jumpa”.
(PW.4), Sgt. Abu Bakar bin Abdullah, DPC Without further ado, Inspector Mat Yusoff
Masdan Kahat (PW.2), DPC Md. Hashim bin Md. shouted to PC Azman who was then outside the
g
Zin (PW.8) and PC Azman bin Ithin departed from house, to arrest the appellant who had taken to
Gua Musang Police Station on three motor his heels, as soon as he had heard DPC Md.
cycles for the house. Hashim’s announcement of the discovery.
On arrival at the house Inspector Mat Yusoff DPC Hashim then picked up the plastic bag
saw a male Malay standing alone clad only in from the box and handed it to Inspector Mat
loin cloth (“kain basahan”) on a platform in front Yusoff. Similarly, DPC Hashim also brought
h down the wooden box.
of it. That male Malay was the appellant.
Inspector Mat Yusoff then approached the ap- In the lounge, in the presence of the wife,
pellant, identified himself and disclosed the Inspector Mat Yusoff first opened the plastic
object of his visit. He then instructed PC Azman bag and found in it dried leaves suspected to be
to keep watch at the front portion of the house cannabis. On opening the box he found in it
and Sgt. Abu Bakar at the rear. three newspaper packages all of which also
i contained dried leaves suspected to be cannabis
 Abdullah Zawawi Bin Yusoff v. Pendakwa Raya
[1993] 4 CLJ Edgar Joseph Jr. SCJ 3

and also some old and unused carpenter’s tools. a there was sufficient evidence to attract the
However, the box contained no key or bunch of presumptions under s. 37(d), (g) and (d)(vi) of
keys. the Act, with the result that the appellant and
his wife were deemed to be in possession of the
Inspector Mat Yusoff then summoned a police
cannabis, and as its total weight exceeded 200
vehicle and a woman police constable from the
grammes, were to be presumed, until the con-
police station and, some five minutes later, PC
trary was proved, to be trafficking in the same.
Azman brought back to the house the appellant b Apparently, Counsel for the appellant and his
who was then immediately informed of the
wife shared that view for neither made a sub-
discovery of the offending exhibits and these,
mission of no case to answer. Accordingly, the
together with the other contents of the box, were
Judge ruled that there was a case to answer
duly shown to him.
against both the appellant and his wife.
The appellant, his wife and the male Malay
The appellant elected to make his defence from
found smoking in the house, Mohammad, were c the witness box. What he said was this: on the
then taken to the police station, Gua Musang,
morning of 1 February 1986 he was at Kampong
where, in a room, and in the presence of the
Lembaga about half a mile from the house,
three of them, Inspector Mat Yusoff proceeded
engaged in working on a newly built house, the
to carry out a detailed examination of the con-
property of one To’ Haji Omar, and alone. At
tents of the plastic bag and the three newspaper
about mid-day, he had gone to his wife’s coffee
packages. As a result, Inspector Mat Yusoff
stall and told her that he would be having lunch
found in the plastic bag, 90 sticks of dried leaves, d
at home that day. He then returned home and
in the first package (with a “Watan” newspaper
was followed by his wife.
wrapping) were 30 sticks of dried leaves, in the
next package (with a Chinese newspaper wrap- He duly returned home for lunch and saw
ping) were 20 sticks of dried leaves and, lastly, Mohammad bin Amin and his three children.
in the remaining package (with “Mingguan His wife served lunch which he had with his two
Kanak-Kanak” newspaper wrapping) were 19 children and Mohammad. Having served lunch
sticks of dried leaves. In all, there were 159 e his wife left the house to do some washing.
sticks of dried leaves. And all these were duly Having eaten his lunch, clad only in loin cloth
sent to the Government Chemist Mr. N. Hothaya (“kain basahan” ) he moved to the lounge near
Jeevan, for analysis and report who, in due the main door where he had a rest while
course, certified that all the sticks were plant Mohammad had a smoke there - some four feet
material which was cannabis within the mean- away from him. His two children then wanted to
ing of s. 2 of the Dangerous Drugs Act 1952, f have a bath at a nearby brook, so he told them
weighing in all 592.6 grammes. to go ahead and that he would join them later
after he had a short rest.
It was also proved, and indeed freely admitted,
that the house belonged to the appellant and his Just as he was about to leave the house, while
wife and that they and their five children lived still seated at the doorway, he saw four persons,
there. Similarly, it was freely admitted by the each on a motor cycle, pulling up in front of the
appellant that he was a carpenter by occupation house. Having parked their motor cycles, one of
g
and that the carpenter’s tools found in the box the four - DPC Md. Hashim - approached him
were his personal property. saying: “Saya ada hal dengan awak”. So, on his
invitation, DPC Md. Hashim entered the house
An attempt had been made by the prosecution to
apparently alone. When he attempted to follow
adduce in evidence a cautioned statement made
DPC Md. Hashim, the latter promptly told him
by the appellant but, at the conclusion of a trial
to sit where he was. While the other three
within a trial, the Judge ruled after a most
h persons remained outside the house, DPC
thorough, careful and persuasive analysis of the
Hashim, who was in the lounge, checked the
evidence, that the prosecution had failed to
cassette player, radio speakers and the
establish its voluntary character and we cannot
almeirahs (marked J and M in the sketch plan),
but agree with his reasons and conclusions for
but found nothing incriminating. DPC Md
having so held.
Hashim then moved to another almeirah
However, at the close of the case for the prosecu- (marked I in the sketch plan), but found it was
tion, the Judge ruled that he was satisfied that i locked. The appellant claimed that he did not
 Current Law Journal
4 October 1993 [1993] 4 CLJ

move from his position while DPC Md. Hashim a yellow plastic bag (including its contents) which
carried out his search. was taken out from the box and shown to him.
He said that he was not shown any other pack-
Then another police officer, Inspector Yusoff,
ages. He admitted that the wooden box was kept
entered the house and approached Mohammad
in the second shelf (P19D).
and asked him where he came from. Mohammad
replied: “Thailand”. Inspector Yusoff then ap- He was then allowed a change of clothes and
proached DPC Md. Hashim and was told that b taken to the Gua Musang Police Station, but his
the almeirah was locked. On hearing this, In- wife and Mohammad were not taken together
spector Yusoff attempted to open the almeirah with him.
but to no avail. Whereupon, DPC Md. Hashim
He claimed that he did not usually open the box
asked the Appellant for the key but the latter
and that when he did so it was to keep his tools.
replied it was with his wife. Upon being asked
As for the tools he was using, these were left at
to fetch the key the appellant walked up to the
c the work site.
door and called out to his wife (who was out of
sight though he assumed that she was nearby) The Judge, having carefully reviewed the testi-
to fetch the key. The appellant then went back mony of the appellant, found it to be unreliable,
to where he was before and, just then, he it being riddled with contradictions and lies.
recalled that his two children were having their
bath in the brook and decided to go to them. As Without embarking on the several points on
he did so, his wife passed him, entering the which he found the testimony of the appellant to
d be unacceptable, it would be sufficient if we said
house. He insisted that at no time did he run out
of the house as alleged by some members of the that the Judge preferred the version deposed to
police party though he admitted that he did by members of the police party as to what
walk briskly in the direction of the brook. actually transpired in and around the house at
the material time. In particular, we would pause
The appellant added that as he left the house, he to note, that the Judge rejected the Appellant’s
realised that a male Malay was following him version that he did not run from the house. The
from behind but he took no notice of this. Then, e Judge found that he did run, but this was only
as he was about to go down the steps which led after the police had announced the discovery of
to the brook, this male Malay put his hand round the drugs. We shall return to this point a little
his (the appellant’s) neck. This caused the ap- later. Suffice it to say, that so far as the events
pellant to immediately turn round and, at the at or near the house were concerned and the
same time, to exclaim “Apa ini”. The male Malay Judge’s reasoning for preferring the prosecution’s
then lost his hold, and the appellant took to his f version of those events, it is difficult to rebut the
heels. same.
The appellant said that that male Malay was But, one of the crucial points in the case was,
one of the four persons who had come to his whether the drugs might have been planted in
house earlier that day. He was pursued for some the box, since the house was, as the Judge
45 yards when, being overcome by exhaustion, himself found, still under construction.
he could go no further and stopped. The appel-
g The Judge was of the view that though the house
lant asked why he was being pursued and was
told that someone wanted to search his house. was still under construction there was no evi-
The male Malay then merely held his right hand dence to show that there had been access to the
and brought him back to the house. But, another house through the uncompleted part. With re-
policeman handcuffed him, as he approached spect, given the fact that this was a case where
his house. the police were acting on a tip off undoubtedly
by an informer, who might have been a paid
When he was about to walk past the doorway of h
informer, and the further fact that the house
his house DPC Md. Hashim walked up to him was still under construction, the onus was not
and promptly slapped him once on the face. He on the defence to prove possibility of access by
was then shown the wooden box (P22), which he others but on the prosecution to exclude such
freely admitted was his. Similarly, he freely possibility. Of course, the defence could besides
admitted that the old and unused tools in it were taking advantage of infirmities in the prosecu-
his. However, he denied all knowledge of the i tion case in this regard, have gone further, and
 Abdullah Zawawi Bin Yusoff v. Pendakwa Raya
[1993] 4 CLJ Edgar Joseph Jr. SCJ 5

shown the possibility of access by others, but a she was involved, for why else was she pros-
this they were not, in Law, obliged to do. ecuted jointly with the appellant? Indeed, the
Judge ruled, at the close of the case for the
To return to the judgement, in fairness to the
prosecution, that she had a case to answer
Judge, he did pursue the point about the possi-
though, admittedly, at the close of the case for
bility of a plant. What he said was this:
the defence, he did acquit her saying in the final
Counsel also makes a faint insinuation of the part of his judgment:
possible involvement of Mohammad bin b
Mohd. Amin in the commission of the alleged However, I am satisfied second Accused has
offence, and that could be the reason why he is succeeded in rebutting the presumptions,
scared to come to court. I have given a thor- thereby creating a doubt on the case against
ough thought to such a possibility but unable her. I therefore acquit and discharge her. There
to accept it as I find there is no conceivable is no appeal against her acquittal.
reason for Mohammad to frame up the first
He did not, however, give any reasons for that
Accused. Most of the time when he was in Gua c
Musang, he stayed with the first Accused. He conclusion and we note that the wife did not
even worked for him and more or less regarded implicate the appellant in any way, nor was
himself as part of the family. I cannot by any there any evidence that they were acting in
stretch of imagination think of him having a concert.
plan to implicate the person who had been
more than a friend to him. There is nothing to In this context we are reminded of the case of R
show that he would stand to gain by it. The v. Abbott [1955] 2 AER 899, where Lord Goddard,
insinuation without more remains only an in- d C.J. delivering the judgment of the Court of
sinuation, without any evidence to link Appeal of England, said this (at p. 901 E to G):
Mohammad with the alleged offence.
... If two people are jointly indicted for the
We recognise the force of the Judge’s reasoning, commission of a crime and the evidence does
but motive is not always an easy matter to not point to one rather than the other, and
prove, and there was the testimony of Assistant there is no evidence that they were acting in
concert, the jury ought to return a verdict of not
Superintendent of Police Hj. Hamzah b. Awang e guilty against both because the prosecution
(PW10), who took over investigations in the case have not proved the case. If, in those circum-
that he had attempted to secure the attendance stances, it were left to the defendants to get out
of Mohammad at the trial but failed because of it if they could, that would put the onus on the
Mohammad, who by then was living in Kampong defendants to prove themselves not guilty.
Dusun Nyior, Narathiwat, Thailand, did not Finemore, J., remembers a case in which two
dare to come to Malaysia. There was also evi- sisters were indicted for murder, and there was
dence that most of the time when he was in Gua f evidence that they had both been in the room at
the time the murder of the boy was committed;
Musang, Mohammad stayed with the appel-
but the prosecution could not show that sister
lant; in other words, he had liberal access to the A had committed the offence or that sister B
house. Then, again, there was the evidence of had committed the offence. Very likely one or
his presence in the house at the time of the police the other must have committed it, but there
raid and his arrest by the police. These are was no evidence which, and although it is
matters upon which we did not place undue unfortunate that a guilty party cannot be
g brought to justice, it is far more important that
stress and we therefore mention it, only in
passing, to show that Mohammad was a pos- there should not be a miscarriage of justice and
that the law should be maintained that the
sible suspect.
prosecution should prove the case ...
But there was more substance in the point (not
Another distinct possibility - not considered by
raised by Counsel or considered by the Judge)
the Judge - was that the informer upon whose
that the wife of the appellant might have con-
h tip off the raid on the appellant’s house had been
cealed the drugs in the box without the appel-
conducted might have planted the drugs in the
lant being a party to such act even though he
box. This does not seem to us a fanciful possibil-
might have known about it. The charge, be it
ity, bearing in mind that the house was still
noted, was trafficking in dangerous drugs and it
under construction and unfenced at the mate-
will be recalled, that it was the conduct of the
rial time, and both the appellant and his wife
wife which led to the discovery of the drugs, and
were engaged in trade which took them out of
certainly the case for the prosecution was that i doors; he as a carpenter engaged in building a
 Current Law Journal
6 October 1993 [1993] 4 CLJ

house at Kg. Lembaga for one Tok Haji Omar a True it is that though there were several strands
and she as a coffee stall holder at Gua Musang of evidence pointing to the appellant’s guilt, not
from 6 in the morning until 12 noon and again one of them alone was of great moment and the
from 2.30 in the afternoon until 10.00 at night. question arises, whether juncta juvant it could
be said that there was sufficient evidence to
Having said that, it cannot be gainsaid that the
support a verdict of guilty. It was our view that
appellant may very well have concealed the
this question must be answered in favour of the
drugs in the box for, after all, the house was his, b appellant considering that there was more than
the box contained his old unused tools, and he
one way in which the evidence adduced by the
did take to his heels upon Inspector Mat Yusoff
prosecution might be viewed. We have already
announcing the discovery of the drugs.
remarked that the evidence could have been
But, as against the discovery of the box contain- regarded as implicating the appellant or the
ing the drugs from his house, there was the wife or, the both of them, or the informer or even
evidence of possible access to the house by c Mohammad.
others which we have referred to and discussed;
Having examined the evidence led by the pros-
as for the fact that the appellant’s old and
ecution afresh, we found that the evidence left
unused tools were discovered in the box which
too many questions unanswered with the result
contained the drugs, this might be precisely
that the proverbial cap might have fitted not
why, if it was a case of a plant, that the person
just the head of the Appellant but that of others
who did so, chose the box in order to implicate
as well.
the appellant; in any case, we regard this as no d
higher than a suspicious circumstance. To conclude, we think it not out of place to refer
to a recent judgment of this Court delivered
We now come to what does seem to us evidence
on 19 April 1993 in Gooi Loo Seng v. Public
of a potent kind against the appellant; namely,
Prosecutor [1993] 3 CLJ 1:
his conduct in taking to his heels upon Inspector
Mat Yusoff announcing the discovery of the Clearly, therefore, the trial Judge, was
drugs in the box. This conduct of the appellant e bound to, but did not view the whole of the
was consistent with his having known of the evidence objectively and from all angles,
with the result that the appellant had lost
presence of the drugs in the box before their
the chance which was fairly open to him of
discovery, indicating thereby a sense of guilt. being acquitted. On this point, we consider
On the other hand, it was conduct equally that the non-direction amounts to a misdi-
rection, for, in the words of Pickford, J. in
consistent with the appellant having been in a
R. v. Bundy 5 Cr. App. R. 270:
state of pure panic, bearing in mind that it was f
only after Inspector Mat Yusoff announced the ‘the trial was not satisfactory, and the
discovery of the drugs that the appellant took to case was not put to the jury in a way to
his heels. An innocent man faced with the ensure their due appreciation of the
prospect of arrest on a capital charge might value of the evidence.’
foolishly react in that way. It is true that the We must treat the failure of a trial Judge
appellant himself denied running away, but we sitting alone, to direct himself correctly in the
agree with the Judge that the appellant lied on g same way as a failure to direct a jury cor-
this point, but this does not preclude us from rectly. In these circumstances, a miscarriage
drawing such inferences as may be justified of justice may well have occurred.
from the evidence adduced by the prosecution. In the result, we allowed the appeal, quashed
The Jamaican Privy Council case of D.P.P. v. the conviction, and acquitted and discharged
Brooks [1974] 2 AER 840, cited to us by the the appellant.
learned Deputy Public Prosecutor, where the
accused, who occupied the driver’s seat of a h
stationary van which contained more than 1000
lbs. of ganja, together with several others in the
van, scrambled out and ran off, when police
officers hurried towards the van, is, therefore,
readily distinguishable.
i