rayuan jenayah no: a-05-120-2009 antara mohd kamal bin osman

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8 [20] According to him, the last time he used the motorcycle was two or three weeks before the incident. Analysis [21] We will now proceed to examine the grounds set forth in the Petition of Appeal. We will begin by making reference to ground two of the Petition of Appeal which alluded to the failure of the learned High Court Judge to invoke the adverse inference against the prosecution for the non- calling of the appellant’s wife by the name of Salmah bt Omar being the registered owner of motorcycle bearing registration number AEB 2680 that was ridden by the appellant on that fateful night. [22] It is apparent that the prosecution elected not to call Salmah bt Omar – the wife of the appellant and the registered owner of the said motorcycle, as a witness for the prosecution. Nevertheless, Salmah bt Omar was offered as a witness to the defence at the close of the prosecution’s case. The prosecution held the view that Salmah bt Omar is not a material witness essential to the unfolding of the narration of the prosecution’s version of the events that took place on that fateful night, namely, on 28.2.2001 at about 8.40 p.m. at the place mentioned in the charge. [23] Both SP4 and SP5 narrated that they saw the appellant was riding alone on the said motorcycle before he was apprehended. The Court
9 is not concerned as to the ownership of the said motorcycle but rather the possession of the black coloured plastic bag (exhibit “P5C”) that contained the dangerous drugs found in the carrier basket of the said motorcycle. [24] The learned High Court Judge rightly referred to the Court of Appeal case of PP v. Letchumanan Suppiah [2006] 1 CLJ 557 and his Lordship then decided that section 114(g) of the Evidence Act 1950 did not apply and it cannot be invoked against the prosecution for the non-calling of the appellant’s wife. We are concerned here with the custody and control of the black coloured plastic bag (exhibit “P5C”) found in the carrier basket of the motorcycle which cannot be related to the ownership of the motorcycle on which the appellant was riding. That black coloured plastic bag (exhibit “P5C”) was within sight of the appellant as he rode the said motorcycle on that fateful day. There was not even an iota of evidence linking the appellant’s wife to the drugs at all. There was no cross- examination of SP4 and SP5 that the drugs belonged to the appellant’s wife. [25] The prosecution’s case hinged on the evidence of SP4 whose evidence was corroborated by SP5. The totality of the evidence led by the prosecution pointed solely to the culpability of the appellant. No one else was involved. It is our judgment, even without calling the appellant’s wife,
Page 1 and 2: 1 DALAM MAHKAMAH RAYUAN MALAYSIA (B
Page 3 and 4: 3 [3] The appellant elected to give
Page 5 and 6: 5 [7] SP4 succeeded in apprehending
Page 7: 7 [16] When the appellant was about
Page 11 and 12: 11 was sanctioned by the Federal Co
Page 13 and 14: 13 [30] Likewise SP5 also testified
Page 15 and 16: 15 [36] Here, the learned High Cour
Page 17 and 18: 17 [42] We will now reproduce the d
Page 19 and 20: 19 burden is always on the prosecut
Page 21 and 22: 21 “Bertindak atas maklumat dadah
Page 23: Cases referred to in this judgment:

rayuan jenayah no: a-05-120-2009 antara mohd kamal bin osman

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