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[2016] 2 MLJ A B Abuchi Ngwoke v Public Prosecutor (Kamardin Hashim JCA) 627 Cases referred to Leong Bon Huat v PP [1993] 3 MLJ 11, SC (refd) Mahdi Keramatviyarsagh Khodavirdi v PP [2015] MLJU 14; [2015] 3 CLJ 336, CA (refd) Teng Boon How v Pendakwa Raya [1993] 3 MLJ 553, SC (folld) Legislation referred to Criminal Procedure Code s 402B Dangerous Drugs Act 1952 ss 12(2), 39A(2), 39B (1)(a), Part III First C Schedule Evidence Act 1950 s 165 Appeal from: Criminal Trial No 45A-12–12 of 2012 (High Court, Melaka) D Hisyam Teh Poh Teik (Teh Poh Teik & Co) for the appellant. Nurshafini bt Mustafha (Deputy Public Prosecutor, Attorney General’s Chambers) for the respondent. Kamardin Hashim JCA: E F G H I [1] The appellant was charged at the Melaka High Court for an offence of trafficking in dangerous drugs. The charge reads: Bahawa kamu pada 23 May 2012, jam lebih kurang 5.00 pagi hingga 25.5.2012 jam lebih kurang 2.50 petang, di Wad Zon Merah, Hospital Besar Melaka, Melaka di dalam daerah Melaka Tengah, di dalam Negeri Melaka, telah didapati mengedar dadah berbahaya jenis methamphetamine berat bersih 251.66 gram. Oleh itu, kamu telah melakukan kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B (2) Akta yang sama. THE PROSECUTION CASE [2] Briefly, the prosecution case is as follows. On 22 May 2012 at about 1pm, a taxi driver by the name Wong Yew Teng (‘SP4’) took the appellant from KLIA Sepang to Melaka. The appellant wanted to pay the taxi fares in Nigerian currency but was rejected by SP4. An argument broke out between the two whereby the police was called by SP4. SP4 and the appellant were taken to the police station. At the police station with the help of the police, they managed to settle the dispute whereby SP4 accepted 5000 Naira from the appellant as the taxi fares. [3] On 23 May 2012 at around 12 midnight, while on his crime prevention round, L/Kpl Mohd Nor Hafzan bin Mazlan (‘SP6’) together with two other police officers went to Batik Selat House, MITC and arrested the appellant for

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ABUCHI NGWOKE

CASE BRIEF

Jurisdiction

Malaysia

Nationalities

Nigerian

Case Title: Abuchi Ngwoke (Federal Court Criminal Appeal No. 05-53-03/2016(M))

Age at Offence: 36

Age Group at Offence: Adult (18 to 59)

Gender: Male

Religious Group at Offence: Christian

Vulnerable/ Marginalised Group

Foreign National
Socio-economic Status

Jurisdiction - Geolocation

Latitude: 4.2105

Longitude: 101.9758

Jurisdiction - Geolocation (linked CASE BRIEF): Malaysia

Contributing TRP Partner

Malaysian Centre for Constitutionalism and Human Rights (Malaysia)

Latest Country's Death Penalty Status

Retentionist

Case Current Status: Closed: Commuted

Year when sentenced to Death Row: 2010s: 2014

Rights Allegedly Violated

Torture: Death row phenomenon
Torture: Solitary confinement

Nature of Offences for Death Penalty

Drug Crime

Expert Evidence

Forensic/Medical evidence: Chemistry/Toxicology/Drug analysis
Forensic/Medical evidence: Handwriting/questioned documents

Case Background (300 words max): A Nigerian man was arrested in Malaysia and charged with trafficking dangerous drugs (Methamphetamine) under Section 39B(1)(a) of the Dangerous Drugs Act 1952 (DDA) in 2012. 29 capsules were found in his body during a hospital visit following his arrest. He claimed that he had no knowledge that the capsules he swallowed contained drugs, as he was tricked by his friend in Lagos when drunk.

A prima facie case had been made out by the High Court judge, hence, he was found guilty and sentenced to death in 2014. The judge rejected his defense, citing lack of reasonable doubt, and presumed trafficking based on the DDA.

His conviction and sentence by the High Court was overturned by the Court of Appeal in 2016, replaced with a conviction under section 39A(2) DDA, sentenced to 20 years imprisonment and 10 strokes of whipping.

The Federal Court affirmed the decision in 2024, and substituted an imprisonment term of 30 years from the date of his arrest (in 2012) and 12 strokes of whipping.

Defence Arguments (200 words max.): The defense primarily centered on lack of knowledge, absence of intent to traffic, and possible deception as a drug mule. However, under Malaysian drug laws, proving innocence in such cases is extremely difficult, leading to his conviction.

In the Appeal court, it was contended that all written statements tendered by the prosecution were inadmissible in law as they did not strictly comply with the conditions in s 402B of the Criminal Procedure Code (‘the CPC’); that the learned trial judge had descended into the arena of conflict when His Lordship cross-examined the appellant and a witness; and there was no mens rea possession, alternatively, it was a case of passive possession.

The applicant’s written submission in the Federal Court has emphasised on his poor socio-economic background, expressing great regret for his actions, poor physical and mental health (along with death row phenomenon), loss of family members and being a father and his positive prospect of reform and rehabilitation. Along with being a first offender, he shows interest in rebuilding himself.

Judgement with Headnotes (200 words max): The judges allowed the appellant’s appeal, where they emphasised that s 402B(2) of the CPC must be complied with for the witness statement to be admitted as evidence. Failure to comply would be inadmissible.

The charge of trafficking was not proved with certainty as there was no evidence in how the analysis of drugs was conducted before the conclusion that it was Methamphetamine - as one of the witness’ written statements was not marked as an exhibit nor was it allowed to be said in court.

Besides, the trial judge had exceeded the desirable limits of judicial intervention in the examination and cross-examination of the appellant and witness notwithstanding the wide ambit of s 165 of the Evidence Act 1950. Extracts from the judgement clearly showed how the judge relied on his cross-examination of the appellant and a witness.

The judges were also doubtful that the appellant had the conscious knowledge that he was in mens rea possession of the impugned drugs.

Legal Representation Received

Appeal: Pro bono
Second Appeal: Pro bono
Pre-trial: Unknown
Trial: Unknown

Legislation Related to the Offence(s): Section 39B of the Dangerous Drugs Act 1952

Judicial Precedents

For the resentencing application, the defense counsel relied on:

Court of Appeal in Alowonle Oluwajuwon Gilbert v Public Prosecutor (Criminal Appeal No. B-05-260-08/2021) [Tab 2, Applicant’s Bundle of Authorities (ABOA)] - for the principle of sentencing in discretionary capital punishment cases for only the most exceptional cases, i.e., the "rarest of the rare" cases.
Rajendra Prasad v State of Uttar Pradesh 1979 AIR 916 [Tab 5, ABOA], Indian Supreme Court - for the proposition of “death row phenomenon” despite it not having legal recognition in Malaysian courts
The Privy Council in Lockhart v R [2011] UKPC 33, [Tab 3, ABOA] - compelling argument to prepare psychiatric report to evaluate prospect of reform. However, despite the absence of a report, it can be used as an additional support to show how the appellant has shown ways that they are able to reform and rehabilitate.

Case Brief Entry Status: Complete

Language of Case Materials

English
Malay

Is the case brief featured?: No

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ABUCHI NGWOKE

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