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DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DI DALAM NEGERI JOHOR DARUL TA'ZIM PERBICARAAN JENAYAH NO: (MT-5) 45-67, 68 & 69 2005

PENDAKWA RAYA

LAWAN

1. 2.

CHAN TAI WEE VIVIAN YEO SIAW PING

DI DALAM MAHKAMAH TERBUKA DI HADAPAN Y.A. DATO' HUE SIEW KHENG PESURUHJAYA KEHAKIMAN

GROUNDS OF JUDGMENT

1.

The following charges were preferred against both accused:

(i)

First charge:

Bahawa kamu bersama-sama pada 7 Julai 2004 jam lebih kurang 6.00 petang, di tempat letak kereta Pelangi Leisure Mall, Taman Pelangi, di dalam daerah Johor Bahru, di dalam Negeri Johor Darul Tazim, dengan niat bersama telah didapati mengedar dadah berbahaya iaitu 128.78 gram 3-4 Methylenedioxymethamphetamine (MDMA), dan dengan itu kamu telah melakukan suatu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh
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dihukum di bawah Seksyen 39B(2) Akta yang sama dibaca bersama Seksyen 34 Kanun Keseksaan.

(ii)

Second charge:

Bahawa kamu bersama-sama pada 7 Julai 2004 jam lebih kurang 9.00 malam, di rumah No. 21, Jalan Jerau 5, Taman Pelangi, di dalam daerah Johor Bahru, di dalam Negeri Johor Darul Tazim, telah didapati memiliki dadah berbahaya iaitu 6.6 gram Nimetazepam, dan dengan itu kamu telah melakukan suatu kesalahan di bawah Seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 12(3) Akta yang sama.

(iii)

Third charge:

Bahawa kamu bersama-sama pada 7 Julai 2004 jam lebih kurang 9.00 malam, di rumah No. 21, Jalan Jerau 5, Taman Pelangi, di dalam daerah Johor Bahru, di dalam Negeri Johor Darul Tazim, dengan niat bersama telah didapati mengedar dadah berbahaya iaitu 56.1 gram 3-4 Methylenedioxymethamphetamine (MDMA), dan dengan itu kamu telah melakukan suatu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B(2) Akta yang sama dibaca bersama Seksyen 34 Kanun Keseksaan.

(iv)

Fourth charge:
Bahawa kamu bersama-sama pada 7 Julai 2004 jam lebih kurang 9.00 malam, di rumah No. 21, Jalan Jerau 5, Taman Pelangi, di dalam daerah Johor Bahru, di dalam Negeri Johor Darul Tazim, dengan niat bersama telah didapati mengedar dadah berbahaya iaitu 955.8 gram Ketamine, dan dengan itu kamu telah melakukan suatu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B(2) Akta yang sama dibaca bersama Seksyen 34 Kanun Keseksaan.

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The case for the prosecution 2. The prosecution called a total of 8 witnesses. Briefly, the evidence as led through the arresting officer, SP7 (ASP Azahar Mohd) is that on 7.7.2004 at about 5.30 p.m., acting on information received, SP7 led a police party to the car park of Giant Hypermarket at Leisure Mall in Taman Pelangi, Johor Bahru. The police party was then divided into 3 groups. After waiting for about hour, SP7 saw a blue Satria bearing registration no. JEB 8990 entering the parking area. The said car then proceeded to part at the parking lot marked X in photograph Ex. P17E. The first accused was seen driving the car while the second accused was seated at the front passenger seat. SP7 then drove his car and blocked the rear of the Satria whilst one SM Alias drove his car to block the left side of the Satria. Another police motorcycle blocked the drivers side. SP7 said he then approached the first accused, knocked on its glass window at the same time identifying himself as a police officer.

3.

SP7 said both the accused opened their car doors only after SP7 had knocked on the window several times. SP7 immediately turned off the car ignition and seized the key. SP7 further testified that from where he stood, he could see a gift wrapped box in the place marked Y as shown in photograph Ex. P16D. SP7 then seized the box and inspected it. SP7 said inside the box were 40 plastic packets each containing 25 reddish pills, totaling 1000 pills. The pills were later confirmed by the chemist to contain 128.78 grams of 3-4 Methylenedioxymethamphetamine (MDMA), the subject matter of the first charge.

4.

Body searches were then carried out on both the accused persons. A bunch of keys was recovered from the pocket of the first accuseds jeans. The accused persons were then brought back to the police station.

5.

SP7 said the first accused later brought SP7 and his men to his (first accused) house at No. 21, Jalan Jerau 25, Taman Pelangi (the said

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house). The second accused was also brought along. Using the bunch of keys recovered from the pocket of the first accused, SP7 and his men gained access to the said house. There were 3 rooms in the said house. A search was made in respect of the first room which was unlocked. 4 strips of Erimin 5 totaling 40 pills were recovered in the drawer of the plastic cabinet as shown in photograph Ex. P18. This is the subject matter of the second charge.

6.

SP7 further testified that the second room was locked. He then asked the first accused for the key. SP7 said the first accused then went to the plastic cabinet in the hall as shown in photographs Ex. P18E and P18F where he produced a key and gave it to SP7. Drugs were recovered from the second room. The various items seized from the second room are as listed in the search list (Ex. P33). A Borang Serah Menyerah (Ex. P34) was also prepared. These items are the subject matter of the third and fourth charge.

7.

For ease of reference and to obviate confusion, I will refer to the charges as submitted by the learned defence counsel: i.e. the first charge will be referred to as the car charge, the second charge as the first room charge and the third and fourth charge as the second room charge.

The car charge 8. It is submitted by the defence that the prosecution has not made out a prima facie case against the second accused for the following reasons:

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i)

She was a mere passenger and as such could not be said to have custody, control or possession of the car.

ii)

There is no evidence of any physical nexus between the gift wrapped box and her.

iii)

The only evidence is that of proximity which cannot be equated with possession although learned counsel conceded that in certain circumstances proximity can give rise to an inference of knowledge as held in the cases of Surenthiran a/l Selavarajah v PP [2005] 3 AMR 56 and PP v Karim AB Jabar [2008] 5 CLJ 173. However, it was argued that the facts of the two (2) cited cases are dissimilar to the present case. In Surenthirans case (supra) , the packet of drugs was positioned between the feet of the appellant while he was driving and he was also the owner of the car. In Karims case (supra) , he was the sole occupant of the car and the package was on the front passenger seat. The amount of cannabis was a hefty 103.84 kilograms.

iv)

The conduct of the second accused, which was challenged, was attributed to the fact that SP7 and his men were not in uniform and they had advanced upon the occupants of the car suddenly. The action of SP7 and his men in suddenly blocking and surrounding the accused would certainly, it was submitted give rise to anxiety and confusion. It was submitted that the conduct of the accused here was not one of fright or struggle to evade arrest and as held by the Federal Court in Parlan Dadeh v PP [2009] 1 CLJ 717-

Conduct like the flight of an accused is a more positive act and is easily established. On the other hand conduct like the accused looking stunned, nervous, scared or frightened is very often a matter of perception and more detailed evidence may be required.

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v)

It was further submitted that as the drugs were found in the car, the statutory presumption in section 37(d) of the Dangerous Drugs Act (DDA) 1952 did not apply. The case of PP v Lin Lian Chen [1992] 2 MLJ 561 was relied on.

vi)

In respect of the first accused, it was submitted that:

a)

though the first accused is the driver and owner of the car in question, the mere act of transporting does not amount to trafficking (see Ong Ah Chuan v PP [1981] 1 MLJ 64);

b)

there was no overt act on the part of the first accused; neither was there any physical nexus or contact between the first accused and the gift wrapped box; and

c)

the same argument was adopted in respect of the conduct of the first accused.

vii)

As for the second, third and fourth charges in respect of the drugs found in the first and second room of the house the main thrust of the defence rested upon what learned defence counsel referred to as the Siow Long factor. The argument was advanced that a person by the name of Siow Long also had access to the said house. It is the contention of the accused that Siow Long was the actual trafficker and that Siow Long was not a fictitious character but a real, live person because of the following:

viii)

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a)

Siow Long had been mentioned by the second accused in her cautioned statement (D55). It was submitted that the defence that Siow Long was the actual trafficker was declared by the defence when the second accused gave her statement. Ex. D55 is a contemporaneous document. The second accused had said in D55 that Siow Long occupied the second room.

b)

It was incumbent upon the I.O. to investigate into his existence. The I.O. having merely testified that Dalam siasatan saya, tidak kewujudan Siow Long without elaborating on the effort he took to determine the existence of Siow Long, had clearly failed to carry out his duty. It was contended that it was the prosecutions duty to eliminate the possibility of Siow Long having access to the second room and therefore had both the time and opportunity to conceal the drugs there. The evidence of SP6 the landlady who said that prior to the rental of her house, she was visited by 3 adults, 2 males and a female. Because of the existence of Siow Long, who had access to the house and also the first room, which even though it was occupied by both accused, was not locked, it was contended that Siow Long could have concealed the drugs in the first room and the other drugs in the second room.

c)

ix)

As such, the defence submitted that the prosecution had failed to prove a prima facie case against both accused on all the charges.

Findings of the court at close of prosecution case

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9.

It is not disputed that the drugs in respect of the car charge were recovered somewhere near the footrest of the front passenger seat though the exact placement is disputed. It was also not disputed that the car belonged to the first accused.

10.

With regard to the contention that possession cannot be fastened onto the second accused because she was a mere passenger and therefore had no custody, control or possession of the car, I am of the view that the fact that the second accused had no custody, control or possession of the car by itself does not negative possession in respect of the drugs if there is evidence to the contrary.

11.

In this case, the box containing the impugned drugs were gift wrapped and point to an attempt at concealment under the guise of an innocuous gift. Both accused were not strangers as the evidence showed, they were co-habiting at the material time.

12.

I agree with the submission of the defence that the fact that they were panic stricken and in a state of confusion because they found themselves suddenly surrounded by a group of people did not conclusively prove guilty knowledge.

13.

However, taking the evidence in its totality, I am satisfied that the element of mens rea possession has been proved by the prosecution and that both accused were acting in concert at all times.

14.

In respect of the drugs found in the house, the evidence led by the prosecution showed that the tenancy agreement Ex. P30 bore only the names of SP6 the landlady and the first accused as the tenant. SP6 had testified that the keys to the house were given to both accused.

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15.

PW7 had given evidence that the keys to the house were recovered from the first accused who opened the door of the house with these keys when brought there by the police party.

16.

I agree with the defence that the evidence led by the prosecution with regard to the key to the second room to be inadmissible as no caution was administered to the second accused.

17.

I find that there is a nexus between the drugs that were recovered from the car with the drugs recovered from the house as gift wrapping papers similar to the wrapper on the box that contained the drugs found in the car were also found in the house. The wrapping papers were tendered as Ex. P49A and P49B.

18.

The prosecutions contention that Siow Long did not exist was supported by the evidence of the photographs taken of the second room which the accused claimed to be occupied by Siow Long. The photographs Ex. P18N and P18O show that there are no clothings or personal effects in the room and appear to be not lived in.

19.

Viewed in its totality, I find that there is no credible evidence that Siow Long is a real person and I find that mens rea possession of the drugs recovered from both rooms of the house have been proved by the prosecution.

Trafficking

20.

Trafficking is defined in section 2 of the Act astrafficking includes the doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering,

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transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug

21.

Trafficking was explained by Lord Diplock in the off-cited case of Ong Ah Chuan v PP [1981] 1 MLJ 64 as follows:
Proof of the purpose for which an act is done, where such purpose is a necessary ingredient of the offence with which an accused is charged, presents a problem with which criminal courts are very familiar. Generally, in the absence of an express admission by the accused, the purpose with which he did an act is a matter of inference from what he did. Thus, in the case of an accused caught in the act of conveying from one place to another controlled drugs in a quantity much larger than is likely to be needed for his own consumption the inference that he was transporting them for the purpose of trafficking in them would, in the absence of any plausible explanation by him, be irresistible even if there were no statutory presumption such as is contained in section 15 of the Drugs Act. As a matter of common sense the larger the quantity of drugs involved the stronger the inference that they were not intended for the personal consumption of the person carrying them

22.

In respect of the first charge, which is 128.78 grams of MDMA the weight is well above the weight which triggers the presumption under section 37(da) of the Dangerous Drugs Act 1952. The same applies for the third and fourth charge. As the quantity of the drugs found in their possession is much larger than is likely to be needed for their own consumption the inference that they were transporting (in respect of the first charge) and keeping them for the purpose of the trafficking (in respect of the third and fourth charge), in the absence of any plausible explanation by them, is irresistible and should be drawn. As for the second charge, the prosecution has clearly proved a case of possession against them as the drugs were found concealed in a drawer in their room.

23.

24.

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25.

Being satisfied that a prima facie case had been proved in respect of each charge, both accused were called to enter upon their defence on all 4 charges.

The defence 26. Both accused elected to give evidence on oath. Essentially their defence was that they had no knowledge of the drugs found in the car and in both rooms of the house and hence could not be said to be in possession of the drugs seized. Briefly, the defence was that the second accused was the fianc of the first accused and that she was three (3) months pregnant with his child. At the material time, both of them were working at a disco, he was a bar tender and she as a waitress. They were living together in the house raided and were occupying the first room whilst the second room was occupied by Siow Long, an old friend of the first accused. On the day in question both of them had gone to the Leisure Mall at Taman Pelangi to do some grocery shopping in preparation for the visit by the second accuseds mother the next day who was bringing along with her, the second accuseds 1 year old child. They were going to the Giant supermarket at Leisure Mall to purchase items like milk powder and diapers for the child. Both accused said they were shocked when the gift box that was recovered from the car contained drugs as they had no knowledge of the drugs. According to the first accused he had told SP7 that Siow Long had borrowed his car that day and had just returned the car to him before they went to Leisure Mall. Both denied ownership of the gift box.

27.

28.

29.

30.

31.

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32.

The first accused denied that he had used the key to the second room, which was locked, to open the second room, because the room was occupied by Siow Long. Both accused denied any knowledge of the drugs recovered from the second room and their room i.e. the first room, which was not locked. The defence also relied on the cautioned statement of the second accused (D55) to corroborate their evidence that Siow Long is not a fictitious character.

33.

34.

The car charge 35. To corroborate their evidence that their purpose in going to Leisure Mall was for the innocuous purpose of grocery shopping and not trafficking, the second accuseds mother (SD3) was called. SD3 confirmed that she did in fact arrive in Johor Bahru from Kuching with her granddaughter on 8.7.2004 at about 9.00 p.m. via Air Asia. SD3 said she waited for the second accused at the Senai Airport till about 12.00 midnight after which she took a taxi to lodge at a hotel. The second accused in her evidence said she had requested the investigating officer (SP8) to check whether her mother had arrived. SP8 however said he could not remember. As stated earlier, the main thrust of the defence was the Siow Long factor. At the close of the prosecutions case, I found no credible evidence of his existence, other than D55, an exculpatory statement of the second accused.

36.

37.

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38.

However, at the defence stage, both accused testified that they had prior to moving house to the house in question from where the drugs were recovered, Siow Long had already been staying with them at a house in Taman Sentosa. The reason for shifting was because the tenancy in respect of the Taman Sentosa house had expired. The move from the house in Taman Sentosa to Taman Pelangi involved both accused, Siow Long, the second accuseds brother Fabian Yeo and three (3) other workers. Fabian Yeo was called as a defence witness. He confirmed he had met Siow Long in the Taman Sentosa house and that Siow Long was also involved in their shifting house. Taking these pieces of evidence together and also the fact that Siow Long had been put to SP7 when SP7 was being cross-examined and the cautioned statement (D55) of the second accused, and having considered the fact that the I.O. (SP8) failed to conduct a proper investigation into the existence of Siow Long I find that it is more than probable that Siow Long Is not a fictitious character. That being so, I find the evidence of the accused that Siow Long occupied the second room and kept the room locked at all times to be neither incredible nor improbable. The drugs that are the subject matter of the third and fourth charge and the wrapping paper were found in the second room which the prosecution has already proved was locked. As for the drugs in the first room, since the room was not locked, the defence have raised a reasonable doubt as to whether they could have been planted by Siow Long. The first accused had testified under oath that Siow Long had borrowed his car before he and the second accused left for Leisure Mall. Both of them denied seeing the box when they were in the car. The position of the box in the car was disputed by the accused. Both disputed SP7s evidence that the box was found at Y as marked by

39.

40.

41.

42.

43.

44.

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SP7. They insisted they saw SP7 recovering the box from the spot marked Z in Ex. P16D which was a position not as visible as Y. 45. Even though SP7 was challenged on this in his cross-examination, no other police officer involved in the arrest of the accused was called to corroborate SP7s evidence that the box was indeed recovered from Y. Due to this conflict of evidence, as held in Muhamad Yatim bin Abu Bakar v PP [1950] MLJ 57, the correct approach to adopt would be to decide whether the version of the accused had raised a reasonable doubt and not on the basis of which side had spoken the truth. Having considered all the above, I was satisfied that the defence had raised a reasonable doubt on the prosecutions case in all the four (4) charges and accordingly acquitted and discharged both accused of all four (4) charges.

46.

47.

(DATO HUE SIEW KHENG) Judicial Commissioner High Court Malaya Johor Bahru
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DATE:

1st JANUARY 2010

KAUNSEL
En. Akram bin Mohd. Gharib (TPR), En. Mohd. Daud Ismail (TPR) - Pej. Penasihat Undang-Undang Negeri Johor, Nusajaya bagi pihak pendakwaan. En. Hisham Teh Tetuan Teh Poh Teik & Co., Peguambela dan Peguamcara, Johor Bahru bagi pihak kedua-dua tertuduh.
MT5-45-67,68,69-2005/ChanTaiWee&1YL/DHSK/zj

JB-MT5-45-67-68-69-2005/PP v Chan Tai Wee & 1YL