The recent Federal Court decision of Loh Kah Loon v PP  5 CLJ 345 (coram of Zulkefli Makinudin, Raus Sharif and Abdull Hamid Embong FCJJ) decided on 26 April 2011 is a worrying decision if it is a barometer of the court’s current and future attitude towards criminal cases. The judgment is also worrying if that is the general quality of consideration and thoroughness the bench holds itself to in deciding capital offence cases. When that decision is considered and juxtaposed with the Federal Court decision of Yusri bin Pialmi v PP  4 MLJ 533 (coram of Zaki Azmi CJ, Zulkefli Makinudin and Abdul Hamid Embong FCJJ) and Tan Yew Choy v PP  4 CLJ 245 (coram of Alauddin Mohd Shariff PCA, Ariffin Zakaria CJ (Malaya) and Zulkefli Makinudin FCJ), it raises interesting questions about the dynamics of decision making at the Federal Court bench.
The case of Loh Kah Loon
Loh Kah Loon relates to an accused charged pursuant to section 39B(1)(a) of the Dangerous Drugs Act 1952 for trafficking 115.54 grams of methamphetamine. It is important to bear in mind that this provision carries the sentence of hanging until death upon conviction to appreciate the magnitude of Loh Kah Loon‘s injustice.
The sole issue raised by the learned counsel, Encik Hisham Teh Poh Teik, was about the identity of the drugs. His argument ran as follows: there is a doubt about the identity of the drugs because the investigating officer (commonly referred to as the ‘IO’) testified that the gross weight of the drugs was 200 grams at the time of arrest but the chemist found that the net weight of the drugs at the time of testing was 214.74 grams. Since there was no explanation by the prosecution as to how the weight of the drugs increased between the time of arrest and testing, there was a reasonable doubt as to whether the drugs Loh was charged with was the actual drugs he was caught with.
This argument by the time Loh‘s case came up was not new. A similar argument was raised and found success in the Federal Court decisions of Yusri Pialmi v PP  6 CLJ 878 , Tan Yew Choy  4 CLJ 245 and Yeong Kia Heng v PP  1 CLJ 364 (Hashim Yeop Sani CJ (Malaya), Harun Hashim and Gunn Chit Tuan SCJJ). Following those line of authorities, how Loh should have been decided was obvious.
However, the Federal Court unanimously dismissed his appeal for the following reasons (Raus Sharif FCJ (now PCA) wrote the judgment):
A critical analysis of Loh Kah Loon
Clearly, an important step in the ratio of the judgment is the correctness in distinguishing the cases of Yusri Pialmi, Tan Yew Choy and Yeong Kia Heng from Loh Kah Loon. It is therefore necessary to consider precisely what these cases decided.
A consideration of Yeong Kia Heng
Raus FCJ in Loh Kah Loon said the following about the case:
The case of Yeong Kia Heng is also distinguishable on the facts from the present case. In that case, the investigating officer said the weight of the heroin was 113 grams whilst the chemist said it was 102.85 grams. But that was not the only issue. The then Supreme Court found that there were discrepancies between the evidence given by the police and the evidence given by the chemist with regard to the odour and description of the heroin tendered in court. [Emphasis mine]
However, this is how Gunn Chit Tuan SCJ wrote the judgment:
Keterangan yang tersebut di atas menunjukkan kecacatan dalam pembuktian identiti barang kes yang menjadi subjek pendakwaan terhadap perayu. Kecacatan itu menjadi subjek pendakwaan terhadap perayu. Kecacatan itu menjadi lebih ketara apabila keterangan dari pihak polis dibandingkan dengan keterangan pegawai kimia berkenaan dengan berat barang kes. Mengikut pihak polis berat barang kes ialah 113 gram. Ini ialah keterangan daripada Insp. Che Nor Ismail (SP5). Mengikut keterangan pegawai kimia (SP2) pula, berat barang-barang yang diterimanya dari pihak polis ialah 102.85 gram, iaitu perbezaan lebih dari 10 gram.
Berdasarkan kepada keterangan-keterangan yang tersebut di atas wujudlah satu keraguan yang serius berkenaan dengan identiti barang kes. Memandangkan kepada keterangan sebegini rupa berkenaan dengan identiti-identiti barang kes, perayu sememangnya tidak dikehendaki dipanggil untuk membela dirinya di atas pertuduhan itu. [Emphasis mine]
So although Gunn Chit Tuan SCJ did appreciate that there were other facts that went towards calling the drug exhibit into question, his Lordship said that the fact that there was a difference of more than 10 grams between the net weight and gross weight made it lebih ketara (more clear) that there was a reasonable doubt raised as to its identity. The difference in weight was therefore not simply corroborative but confirmatory.
It is also unclear where Raus FCJ found a discrepancy regarding the ‘odour’ of the drugs since this was not mentioned anywhere in the Gunn Chit Tuan’s judgment. What is more the only difference in description was that the arresting officer described it as ketul-ketulan berwarna merah jambu (pink lumps) whereas the chemist describes it as seruk berwarna merah jambu (pink powder). When Gun Chit Tuan’s judgment is carefully read, the weight discrepancy was not simply a supportive factor but a crucial fact to deciding that there was a reasonable doubt raised about the identity of the drug.
A consideration of Tan Yew Choy
Raus FCJ said the following in distinguishing this decision:
In Tan Yew Choy, the issue was more on the failure of the learned trial judge in not resolving the doubt as to the weight of the cannabis. In Tan Yew Choy, the drug in question was cannabis. The statutory presumption of trafficking for cannabis under s. 37(da)(vi) of the DDA is 200 grams. However, the raiding officer and investigating officer indicated that the weight of the cannabis was 205 grams. Whereas according to the chemist, the total weight of the cannabis was 224.65 grams. Thus, the amount of the cannabis which was the subject matter of the charge was just 5 grams as weighed by the investigating officer or 24.65 grams as weighed by the chemist for the statutory presumption of trafficking to be triggered. However, the learned trial judge failed to address the issue, which according to this court is of particular importance. This is because the weight is a borderline amount that can trigger the statutory presumption of trafficking under s. 37(da)(vi) of the DDA. [Emphasis mine]
Zulkefli Makinudin FCJ wrote the judgment for Tan Yew Choy. Although paragraphs 10 – 12 of the judgment are most relevant, I think it suffices to reproduce paragraph 12 to demonstrate the point:
 We are of the view that if we were to accept the reasons given by the learned trial judge as representing the correct law it means that the identity of the exhibit when it is first recovered is immaterial as ultimately what is important is the weight as determined by the chemist. With respect, this is not the law. In the present case the appellant has shown there is a discrepancy in that the nett weight of the cannabis as determined by the chemist exceeded the gross weight of the cannabis when they were first recovered by the police. It would therefore follow that the prosecution cannot be said to have proven the offence of trafficking beyond reasonable doubt against the appellant. A reasonable doubt has been created as to whether the cannabis that was recovered by the police that was sent to the chemist for analysis is the same substance that is found to be cannabis and it is in respect of that substance that the appellant is charged with trafficking. (See the case of Gunalan Ramachandran & Ors. v. PP  4 CLJ 551). On this ground alone the appellant would succeed in his appeal. [Emphasis mine]
So although Zulkefli Makinudin FCJ did remark that ‘the learned trial judge erred in law in not resolving this aspect in favour of the appellant bearing in mind that this is a borderline case where the weight of the cannabis is 224.65 grams and that amount is only 24.65 in excess of the amount of 200 grams to attract the statutory presumption of trafficking under section 37(da) of the Act’, what his Lordship meant was that the issue of weight difference should have been resolved in the accused’s favour by ruling that there was a doubt in respect of the identity of the drugs. What is more Raus FCJ appears to have overlooked the last sentence of the quote above which clearly states that the sole issue of a discrepancy in the weight of the drugs would enable an accused to succeed in his appeal.
A consideration of Yusri Pialmi
Raus FCJ’s remarks in relation to this case is as follows:
“In Yusri bin Pialmi, the difference in the weight was not the only issue. There was another issue ie, the issue of a break in the chain of evidence, which this court held to be fatal to the prosecution’s case.”
“In Yusri bin Pialmi, this court basically found there was doubt as to the identity of the exhibit ie, the cannabis. It is because the movement of the cannabis was not clearly explained by the prosecution witnesses. However, in the present case, the movement of the exhibits was well explained. PW3, the raiding officer testified that from the time he took possession of the exhibits at the place of incident until he handed them over to the investigating officer (PW8), the drug exhibits were under his personal custody and control.” [Emphasis mine]
Zulkefli Makinudin FCJ who wrote the judgment opined as follows:
The appellant had shown there was a discrepancy in that the weight of the cannabis as determined by the chemist exceeded the weight of the cannabis when they were first recovered by the police. According to the chemist, the total weight of the cannabis contained in the two packages was 1850.21 grammes. However, the investigating officer in his evidence stated that he weighed the cannabis and found the total weight to be 1840 grammes. This in turn resulted in creating a doubt as to the identity of the cannabis. The prosecution could not be said to have proven the offence of trafficking beyond reasonable doubt against the appellant. A reasonable doubt had been created as to whether the cannabis that was recovered by the police that was sent to the chemist for analysis was the same substance that was found to be cannabis and it was in respect of that substance the appellant was charged with trafficking. A defect with regard to the identity of the case exhibit in the present case was a serious matter. On this ground alone the appellant would succeed in his appeal. [Emphasis mine]
Considering Yusri Pialmi, Tan Yew Choy and Yeong Kia Heng collectively
Now it has been demonstrated that both the Federal Court decisions of Yusri Pialmi and Tan Yew Choy clearly decided that the issue of weight discrepancy with regards to the drugs (particularly when the net weight is higher than the gross weight) would allow an accused to succeed in his appeal on that ground alone. There was no need for this issue to be bound up with other issues such as a break in the chain of condition for an accused to succeed. It has also been demonstrated that the Supreme Court decision of Yeong Kia Heng was not properly considered. A proper consideration of all these cases would show that there was no basis whatsoever to distinguish all these three cases from Loh Kah Loon be it on the facts or the law.
How Loh Kah Loon was actually decided
Paragraphs 10 and 11 of the judgment set out how the courts below decided the case:
“ The issue of discrepancy on the weight of the drug exhibits P7A & B has been extensively discussed by both at the High Court as well as the Court of Appeal. The High Court after a lengthy discussion on this issue, took the view that the prosecution’s case should not fail just because the nett weight of the drug exhibits as found by the chemist was higher than the gross weight as found by the police. The High Court found it as a fact that the drug exhibits recovered by PW3 was the same drug exhibits sent by PW8 to PW4 for analysis and subsequently produced in court as evidence. The High Court has no doubt as to the identity of the drug exhs. P7A & B as there was no break in the chain of evidence as to their movement.”
“ The Court of Appeal agreed with the finding of the High Court.”
So essentially, the High Court and Court of Appeal did not want to acquit Loh Kah Loon simply because there was a weight discrepancy in the drugs. How they went about it was cunning. They decided that because there was no break in the chain of evidence (i.e. the movement of the drugs was accounted for at every stage of movement from one officer to the other and its storage place), there was no doubt raised about the identity of the drugs relating to the charge. Raus FCJ endorsed this position and opined the following:
“It can be seen from the above that there was no break in the chain of evidence regarding the exhibits. The identity of the exhibits was well established. Thus, on the facts of this case, the difference in the weight of the exhibits as found by the police and the chemist, by itself cannot be said to have created doubt as to the identity of the exhibits. The real question is whether the exhibits recovered by the police is the same exhibits sent to and examined by the chemist and subsequently produced in court as evidence. We have no doubt that it was the same exhibits.” [Emphasis mine]
So it seems that the law on this issue has changed so quickly and dramatically from 14 June 2010 (when Yusri Pialmi was decided) and 26 April 2011 (when Loh Kah Loon was decided). A critical reading of Loh Kah Loon would leave one with the impression that the Federal Court in that decision was justifying a decision as opposed to deciding it based on previous authorities. There appears to be an attempt to depart from previously and recently decided decisions to change the law on the issue of weight discrepancy of the drugs from being an issue that could by itself win an appeal to one that needs to be bound together with other issues in order to succeed.
It is hard to understand how Loh Kah Loon can be considered satisfactory since the decision leaves this crucial questioned unanswered: How on earth can there be an increase in the net weight of the drug from the gross weight? This question is not addressed at all by Raus FCJ in his Lordship’s decision and it is noteworthy that there is no reasonable explanation provided in Loh Kah Loon to account for the increase. That such a crucial question is left unanswered is especially appalling when it involves a capital offence case. Loh Kah Loon is going to hang to death despite there being no satisfactory explanation about the weight discrepancy.
What is significant is that there was no dissent from Abdull Hamid Embong FCJ who sat on Yusri Pialmi and Zulkefli Makinuddin FCJ who sat and wrote the judgments for both Yusri Pialmi and Tan Yew Choy. It should be especially obvious to Zulkefli Makinuddin FCJ that Raus FCJ was not accurate in his appreciation of his judgment in Yusri Pialmi and Tan Yew Choy. It should be noted that Raus FCJ does not say that his judgment was read in draft by his learned brothers who approved of it. All the same, that Zulkefli Makinudin FCJ should remain so mute in the face of such improper considerations of his very own judgment is surprising.
It would seem that the standard of proof required in criminal cases to convict an accused has been lowered from beyond a reasonable doubt to even if got a reasonable doubt.