[2016] 5 LNS 64 Legal Network Series - Amazon Web Services · 2021. 3. 9. · sepertimana disenaraikan dalam jadual 3, Enakmen Pemeliharaan Hidupan Liar 1997 tanpa dokumen pemilikan

[2016] 5 LNS 64 Legal Network Series

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IN THE SESSIONS COURT IN KENINGAU

IN THE STATE OF SABAH

[CRIMINAL TRIAL NO. KGU-63ES-3/10-2015]

BETWEEN

PUBLIC PROSECUTOR

AND

LIM KEN VUN

JUDGMENT

[1] This is an appeal by the prosecution on the acquittal and

discharge of the accused person.

[2] The accused was preferred with a charge under section 41(2) of

the Wildlife Conservation Enactment 1997. The charge read:

“Bahawa kamu pada 10.3.2015 jam lebih kurang 6.04

petang bertempat di KM5, Jalan Keningau-Sook dalam

daerah Keningau di negeri Sabah, telah memiliki hasil

haiwan bearded pig (Sus barbatus) babi hutan seberat

373kg iaitu spesis hasil haiwan yang dilindungi

sepertimana disenaraikan dalam jadual 3, Enakmen

Pemeliharaan Hidupan Liar 1997 tanpa dokumen

pemilikan yang sah. Oleh yang demikian, kamu telah

melakukan satu kesalahan di bawah seksyen 41(2)

Enakmen Pemeliharaan Hidupan Liar 1997 dan boleh

dihukum di bawah seksyen 41(4) Enakmen yang sama.”


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[3] After having perused the testimonies of the prosecution

witnesses, exhibits and oral submissions of both parties, this

Court found that the prosecution had failed to prove a prima

facie case against the accused hence the Court acquitted and

discharged the accused without calling the accused to enter his

defence.

THE PROSECUTION CASE

[4] The prosecution called 4 witnesses to prove its case. The

witnesses were:

[a] PW1 – Joseph Fabian Sipaut, the Arresting Officer;

[b] PW2 –Joannes Gilou, the photographer;

[c] PW3 – Jaikin bin Kubis, the store keeper; and

[d] PW4 – Joseph Ringging, the Investigation Officer.

[5] It was the case for the prosecution that on 10.3.2015 at about

6.04 p.m., acting on an information, a team of officers from the

Sabah Wildlife Department conducted a road block at KM5 Jalan

Sook-Keningau where they stopped the accused who was driving

a black pick-up truck Isuzu. DMax with registration number

ST4119K.

[6] Upon search on the vehicle, the officers uncovered “daging babi

hutan” at the bucket of the vehicle. The accused had failed to

produce any licence or permit for possession of the daging babi

hutan, hence the accused was arrested and the vehicle together

with the daging babi hutan were seized .

[7] Upon arrival at the store of the Sabah Wildlife Department, PW1

weighed the daging babi hutan at 373 kilograms.


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[8] PW1 also prepared the exhibits as follows:

[a] P3 – A list of the seized items;

[b] P4 – Police Report Keningau/1405/15.

[c] P5 – Borang Serah Menyerah to the

Investigation Officer; and

[d] P6 – Borang Serah Menyerah to the store.

[9] PW2 was the photographer who prepared these exhibits as

follows:

[a] P2(1 )-(6) – photographs;

[b] P7 – Certificate under s. 90A of the Evidence Act

1950;

[c] ID8– the CD containing the photographs; and

[d] P9 – the sketch plan.

[10] PW4, the Investigation Officer testified that on 13.3.2015 based

on an Order for disposal from the Court, he had buried the

daging babi hutan and on the same date had posted a sample of

the daging babi hutan to the Chemist Department in Petaling

Jaya, Selangor via Poslaju.

[11] Exhibits tendered through the Investigation Officer were as

follows:

[a] P10 – the Chemist Report;

[b] P11 – Court Order dated 12.3.2015 for disposal of

the daging babi hutan; and


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[c] P12 – Court Order dated 6.10.2015 to return the

vehicle to its owner.

FINDINGS OF THIS COURT

[12] Section 41(2), (3) and (4) of the Wildlife Conservation

Enactment 1997 read:

“Possession of protected animals and animal products

(2) No person shall possess any other protected animal

or animal product thereof unless such animal or animal

product has been lawfully imported, obtained under the

authority of a valid licence or permit, through operation of

the law or in consequence of the death of any person or

has been purchased in accordance with section 48(2).

(3) The burden of proving lawful possession of any

animal or animal product shall be upon the person

possessing such animal or animal product.

(4) A person who contravenes subsection (1) or

subsection (2) commits an offence and shall be liable on

conviction, in the case of ... an animal or animal product

of a species listed in .. Schedule 3, to a fine of thirty

thousand ringgit or to imprisonment of three years or to

both.”

[13] Bearded pig or Sus barbatus is listed under the list of Protected

Species of Animal for Which Hunting Licence is Required under

Schedule 3 at number 4.


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(i) Whether the meat seized from the vehicle driven by the Accused

was a species of a protected animal or animal product?

[14] The Investigation Officer (PW4) testified that he had taken a

sample of the meat to send to the Chemist Department. The

testimony read as follows:

“Pada petang 12.03.2015 saya juga ke stor untuk

mengambil contoh daging sebanyak 200 gram yang saya

masukkan ke dalam termos diikat dan dipatri dan dicop

dengan Pengarah Jabatan Hidupan Liar, Sabah untuk

dikirim ke Jabatan Kimia Petaling Jaya, Selangor ... Pada

13.03.2015, saya telah mengirim sampel daging ini ke

Jabatan Kimia Petaling Jaya, Selangor dengan

menggunakan Poslaju di Pejabat Pos Keningau.”

(emphasis added)

[15] Looking at the Chemist Report which was tendered and marked

as P10, where relevant parts of the Report read as follows:

“… telah menerima satu tong silinder … melalui kiriman

PosLaju (Tracking No. EF 70 284 927 5MY ... bertanda

‘EXHIBIT NO: 1’ dan mendapati di dalamnya

mengandungi dua (2) ketulan daging.” (emphasis added)

[16] This Court found that there was a break in the chain of evidence,

where the Investigation Officer PW4 testified that he had taken

200 grams sample of meat. This was not supported by the

Chemist Report P10 where it was stated that the sample received

was ‘dua (2) ketulan daging’. There was no evidence tendered

by the Prosecution to show that the 200 grams sample was in

two chunks of meat or that the two chunks of meat weighed 200

grams.


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[17] Furthermore, the Investigation Officer PW4 testified that he put

the sample in a thermos tied and sealed with the seal of the

Director of the Sabah Wildlife Department, whereas the Chemist

Report P10 stated that the Chemist received a cylinder tong

marked ‘EXHIBIT NO: 1’.

[18] There was no evidence that the thermos sent by PW4 was

marked with ‘EXHIBIT NO: 1’, or that the thermos and the

cylinder tong were the same thing.

[19] Moreover, the Investigation Officer PW4 testified that he had

posted the sample via Poslaju but did not offer any evidence to

tie the tracking number with the package, in comparison to the

Chemist Report P10 where it was written that the Tracking

number for the Poslaju read EF 70 284 927 5MY.

[20] The issue on whether the sample sent to the Chemist Department

by the Investigation Officer PW4 was the same sample received

by the Chemist and reported in the Chemist Report P10 raised

doubt because the Investigation Officer PW4 testified that

before the sample was obtained and before the meat was

disposed by way of burial, the meat was kept in a freezer in the

store of the Sabah Wildlife Department, where there were other

items in the freezer. The testimony read as follows:

“Q40 Sila terangkan kepada Mahkamah berapa besar

freezer tempat simpanan daging itu?

A Freezer Jabatan Hidupan Liar Keningau di dalam

stor lebih kurang panjang 6 kaki dan lebar 3 kaki

dan ada dua buah tetapi malangnya freezer ini telah

pun penuh.


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Q41 Apabila exhibit kes ini iaitu daging dirampas oleh

pegawai Jabatan Liar pada 10hb freezer yang dua

buah ini sudah berisi?

A Ya.

Q42 Kamu setuju dengan saya bahawa dari 10hb

sehingga 13hb bulan March daging ini dicampur

dengan daging yang lain?

A Tidak Setuju.”

[21] Based on the testimony of the Investigation Officer PW4 that

there were other items in the freezer, hence there must be a link

to tie the sample taken by him and sent to and received by the

Chemist Department. There was no such link in this case.

[22] In addition to the lack of link as illustrated above, although

when questioned, the Investigation Officer PW4 did not agree

that the meat could have mixed with other items already existent

in the freezer in the store of the Sabah Wildlife Department,

there was no explanation offered as to why the meat could not

have mixed, except that PW4 could distinguish the meat based

on the freshness. The testimony read:

“Q8 Bagaimana kamu mengenali daging yang dirampas

dalam kes ini dengan daging kes lain?

A Daging dirampas tidak bercampur dengan daging

kes-kes yang lain.

Q9 Apakah kaedah kamu untuk mengenalpasti ini?

A Saya kenalpasti melalui keadaan daging yang masih

barn daripada daging-daging yang lain.”


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[23] However, the Investigation Officer PW4 contradicted himself in

his testimony in that on one hand, he testified that he could

identify the meat based on its freshness (as above), and on the

other hand, he testified that he had to expeditiously dispose the

meat as they were starting to smell and deteriorate. The

testimony read as follows:

“Q10 Tadi kamu mengatakan kamu memusnahkan daging

itu dengan tergesa-gesa. Sila jelaskan.

A Sebelum saya memusnahkan daging tersebut saya

telah mengambil contoh daging. Oleh kerana

keadaan daging yang mulai berbau busuk dan

mulai rosak sebab itulah saya musnahkan daging

tersebut.” (emphasis added)

[24] According to the Chemist Report P10, the Chemist received the

sample on 17.3.2015 however, the Report P10 was dated

6.4.2015 and was handed over to one Joseph Ringging (PW4) on

10.9.2015 at 9.30 a.m.

[25] There was no evidence on when the sample was tested and

examined and where the sample was kept, the custody of the

sample before and after the examination or how the

Investigation Officer PW4 obtained the report.

[26] PW4 merely testified that he received the Report on 10.9.2015

and the relevant part of the testimony of PW4 on the receipt of

the Chemist Report read as follows:

“Q25 Selepas kamu hantar ke Jabatan kimia apa yang

berlaku?

A Pada 10.09.2015 saya menerima laporan daripada

Jabatan Kimia Petaling Jaya, Selangor yang


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mengesahkan bahawa daging yang 200 gram yang

saya kirim adalah daging babi hutan atau nama

saintifiknya “Sus barbatus”.

[27] Looking at the Chemist Report P10, it seemed that the only

thing tying the sample received and examined by the Chemist to

the sample obtained and sent by the Investigation Officer PW4

was the police report number, however, the number also could

not relate as it was incompletely stated: The police report

number read “NO LAPORAN POLIS: KENINGAU/001405/1”.

[28] The Court could not presume the reason why the number was

stated as such.

[29] Apart from the Chemist Report P10, all the four the prosecution

witnesses testified that the meat confiscated from the vehicle

driven by the Accused was daging babi hutan. However, there

was no proof that the meat was in fact daging babi hutan but for

the personal opinion of the prosecution witnesses .

[30] Based on the reasons stated above, the Court found the answer

to the above question (i) in the negative, in that there was a

break in the chain of evidence and as such, there was no

evidence that the meat seized from the vehicle driven by the

Accused was in fact an animal or animal product of a protected

species.

[31] Thus, the Court found that the prosecution had failed to prove

that the meat seized on 10.3.3015 at 6.04 p.m. from the vehicle

driven by the Accused was the meat form an animal listed under

the Schedule 3 of the Wildlife Conservation Enactment 1997, at

list number 4 i.e. Bearded Pig (Sus barbatus).


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(ii) Whether section 114(g) of the Evidence Act 1950 applies?

[32] The photographer PW2 testified that he had taken 60 photos at

the crime scene. That part of his testimony read as follows:

“Q8 Berapa keping gambar yang ambil di tempat

kejadian?

A Lebih kurang 60 keping.”

(emphasis added)

[33] However, there were only 6 photographs tendered by the

prosecution and marked as prosecution exhibit, contrary to the

testimony of the Photographer PW2 himself when he testified he

snapped 60 photos.

[34] Apart from the fact that only 6 photos were tendered in Court,

the Investigation Officer PW4 testified that he received 90

photographs from the Photographer PW2 The relevant part of the

testimony read:

“Q12 Bagaimana dengan gambar-gambar?

A Saya telah menerima gambar-gambar sebanyak 90

keping dari Jurugambar pada 13.03.2015. Semua

gambar-gambar ini sudah pun dicetak.” (emphasis

added)

“Q19 Siapa yang menentukan gambar-gambar apa yang

akan diletak di dalam IP?

A Saya sebagai IO kes dalam kes ini hanya memilih

gambar-gambar yang saya rasakan sesuai dan saya

letakkan dalam IP kerana gambar-gambar yang lain


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ada yang shot dan tidak berapa bagus serta

berulang-ulang.”

[40] Another issue was that the Photographer PW2 himself did not

testify that he had snapped photographs anywhere else but at the

scene of crime. However, when referred to the photograph

P2(3), the Photographer PW2 testified that that particular photo

was taken at the store. His testimony read:

“Q9 Sila lihat gambar P2(3-4). Sila lihat latar belakang

gambar ini, adakah ia menunjukkan keadaan masih

terang atau gelap?

A Pada gambar P2(2) masih terang,gambar P2(3)

telah gelap di stor.”

Q10 Kamu katakan gambar P2(3) adakah ini diambil di

stor?

A Ya.” (emphasis added)

[41] Furthermore, there was no evidence that the camera used by the

Photographer PW2 was ever calibrated or used in the ordinary

course of business, or that the photographs were printed using

what type of printer and whether that printer was ever calibrated

or that it was in any working condition.

[42] The real number of photographs were doubtful, the place where

the photographs were taken, whether at the scene of the crime or

at the store, and if photographs were taken at the store, why was

that evidence not presented before the Court? There was no

evidence on the working condition of the equipment used to take

the photographs.


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[43] As the exhibits in this case were tendered by way of

photographs only and the original meat confiscated had already

been disposed of, the photographs must be tendered and

identified without any doubt.

[44] Hence, to the question number (ii) above, this Court found the

answer in the positive in that section 114(g) of the Evidence Act

1950 applies, in that if the remaining photographs were tendered

in Court, it would have an adverse inference against the

prosecution.

(iii) The disposal of the meat before the disposal of the case

[45] This issue was submitted by the defence. However, this Court

found no merit in this submission as the disposal of the meat

was done in accordance to an Order of the Court as appearing in

Exhibit P11.

(iv) Type of meat

[46] Another issue submitted by the defence was that the Chemist

Report P10 found the meat as Babi Bodoh whereas the charge

against the Accused was Babi Hutan. Despite the reasoning

above on the Chemist Report P10, the Court found no merit in

this submission as it was affirmed by the Chemist that the meat

was of Sus barbatus, a type listed under Schedule 3.

[47] The scientific name prevails over any other name the animal is

known for, either babi hutan or babi bodoh.


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CONCLUSION

[48] Based on the reasons above, the perusal of the testimonies of the

prosecution witnesses, exhibits and submissions of both parties,

this Court found that the prosecution had failed to prove a prime

facie case against the Accused against the charge preferred

against him.

[49] Accordingly, the Accused was acquitted and discharged without

calling for defence.

Dated: 6 JUNE 2016

(AINUL SHAHRIN MOHAMAD)

Judge

Sessions Court Keningau

Legislation referred to:

Wildlife Conservation Enactment 1997, ss. 41(2), (3), (4), Schedule 3

Evidence Act 1950, ss. 90A, 114(g)

Documents

[2016] 5 LNS 64 Legal Network Series - Amazon Web Services · 2021. 3. 9. · sepertimana disenaraikan dalam jadual 3, Enakmen Pemeliharaan Hidupan Liar 1997 tanpa dokumen pemilikan